LEASE AGREEMENT BETWEEN
760-24 WESTCHESTER AVENUE, LLC
and 800-60 WESTCHESTER AVENUE, LLC,
AS LESSOR,
AND
TRIARC COMPANIES, INC.,
AS LESSEE.
Premises:
800 Westchester Avenue
Rye Brook, New York
Prepared By:
The Law Offices of
STEVEN C. HIRSCH
585 Stewart Avenue
Suite 430
Garden City, New York 11530
(516) 227-1117
TABLE OF CONTENTS
ARTICLE 1 - DEMISE AND TERM OF DEMISE.........................................1
ARTICLE 2 - RENT..............................................................1
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES.........................3
ARTICLE 4 - USE OF DEMISED PREMISES...........................................9
ARTICLE 5- POSSESSION AND CONDITION OF DEMISED PREMISES......................11
ARTICLE 6- UTILITIES, CLEANING, ETC..........................................12
ARTICLE 7- REPAIR AND MAINTENANCE............................................15
ARTICLE 8- LESSEE'S WORK; ALTERATION FUND; SUPPLEMENTAL ALTERATION FUND......16
ARTICLE 9- COMPLIANCE WITH LAWS..............................................18
ARTICLE 10- RIGHTS RESERVED TO LESSOR........................................19
ARTICLE 11- INSURANCE........................................................20
ARTICLE 12 - DAMAGE OR DESTRUCTION...........................................21
ARTICLE 13 - CURING DEFAULTS; FEES AND EXPENSES..............................22
ARTICLE 14 - DEFAULT PROVISIONS..............................................22
ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT..........................25
ARTICLE 16 - INDEMNIFICATION.................................................26
ARTICLE 17 - MECHANIC'S AND OTHER LIENS......................................26
ARTICLE 18 - CONDEMNATION....................................................27
ARTICLE 19 - COVENANT OF QUIET ENJOYMENT.....................................27
ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL...........................28
ARTICLE 21 - NOTICES.........................................................28
ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING.........................28
ARTICLE 23- RIGHTS CUMULATIVE................................................29
ARTICLE 24- CONVEYANCE; LIABILITY OF PARTIES.................................29
ARTICLE 25- CHANGES AND ALTERATIONS BY LESSEE................................29
ARTICLE 26 - CERTIFICATES OF LESSEE AND LESSOR...............................30
ARTICLE- 27 ASSIGNMENTS, SUBLEASES AND MORTGAGES.............................31
ARTICLE 28 - SUBORDINATION...................................................33
ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY.........................34
ARTICLE 30 - RENEWAL TERMS...................................................34
ARTICLE 31- RIGHT OF FIRST REFUSAL...........................................36
ARTICLE 32- BROKERS..........................................................37
ARTICLE 33- RIGHT OF FIRST OFFER.............................................37
ARTICLE 34- DEFINITIONS......................................................39
ARTICLE 35- MISCELLANEOUS....................................................42
ARTICLE 36- ROOF SPACE.......................................................44
LIST OF EXHIBITS TO LEASE
EXHIBIT "A" THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY
EXHIBIT "B" THE FLOOR PLANS OF DEMISED PREMISES
EXHIBIT "C" BUILDING RULES AND REGULATIONS
EXHIBIT "D" THE CLEANING SPECIFICATIONS
EXHIBIT "E" THE COMMENCEMENT DATE CERTIFICATE
EXHIBIT "F" THE LOCATION OF LESSEE'S RESERVED PARKING SPACES
EXHIBIT "G" STANDARD REQUIREMENTS FOR ALTERATIONS
TO BE PERFORMED BY LESSEES
EXHIBIT "H" LESSOR'S PREFERRED VENDOR LIST
EXHIBIT "I" THE CURRENT FORMS OF NON-DISTURBANCE AGREEMENTS
EXHIBIT "J" LESSOR'S LOBBY RENOVATION WORK
EXHIBIT "K" THE HEALTH CLUB WAIVER
EXHIBIT "L" THE PARTIES ODOR ABATEMENT OBLIGATIONS
AGREEMENT OF LEASE, dated as of December 22, 2004 between 760-24
WESTCHESTER AVENUE, LLC and 800-60 WESTCHESTER AVENUE, LLC both having an office
in care of RPW Group, Inc., 120 Bloomingdale Road, White Plains, New York 10605
(hereinafter referred to collectively as "Lessor") and TRIARC COMPANIES, INC.,
having an office at 800 Westchester Avenue, Rye Brook, New York (hereinafter
referred to as "Lessee");0
W I T N E S S E T H
WHEREAS, Lessor, is owner of the land and all the improvements erected
thereon located in the Town of Rye Brook, County of Westchester, State of New
York and more particularly described in EXHIBIT "A" annexed hereto (the
"Property");
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to hire from
Lessor, the entire Seventh (7th) floor in the building commonly known as and
located at 800 Westchester Avenue, Rye Brook, New York and located on the
Property and which the parties hereto agree shall be deemed to consist of
Fifty-Two Thousand, Nine Hundred and Sixty (52,960) rentable square feet
(hereinafter referred to as the "Demised Premises") and as more particularly
described on the floor plans annexed hereto as EXHIBIT "B" and made a part
hereof; and
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions and agreements hereinafter set forth, Lessor and Lessee agree as
follows:
ARTICLE 1 - DEMISE AND TERM OF DEMISE
SECTION 1.01.A. Lessor, in consideration of the rents hereinafter reserved
and of the terms, covenants, conditions and agreements herein contained on the
part of Lessee to be paid, observed and fulfilled, does hereby demise and lease
the Demised Premises to Lessee and Lessee hereby hires the same from Lessor;
subject to all present and future zoning ordinances, laws, regulations,
requirements and orders, including building restrictions and regulations, and
all other present and future ordinances, laws, regulations, requirements and
orders of all departments, boards, bureaus, commission and bodies, of any
municipal, county, state or federal governments now or hereafter having or
acquiring jurisdiction of the Demised Premises, provided, however, that same do
not prohibit the use of the Demised Premises for the Permitted Use (as
hereinafter defined) in accordance with the provisions of this Lease; Taxes (as
hereinafter defined) not yet due and payable; all other present and future
covenants, easements and restrictions affecting the Property and the Demised
Premises and the revocable nature of any restriction, easement, agreement,
ordinance or right affecting the Property and the Demised Premises, provided,
however, that same do not prohibit the use of the Demised Premises for general
and executive office use in accordance with the provisions of this Lease.
B. The Demised Premises are demised and leased unto Lessee, for a term
("Term") commencing on the Commencement Date (as hereinafter defined) and
expiring at noon on December 31, 2015 (the "Expiration Date"), unless the same
shall sooner terminate pursuant to any of the terms, covenants, conditions or
agreements of this Lease or pursuant to law.
C. Lessee shall have, as appurtenant to the Demised Premises, the
non-exclusive right to use in common with others, the public or common lobbies,
hallways, stairways, corridors, elevators, entranceways, exits, freight loading
docks, stairways, walkways, toilet facilities, fitness center and cafeteria and
executive cafeteria, subject, however, to the provisions of this Lease.
SECTION 1.02. As used herein, the term "Commencement Date" shall mean the
later of: (i) February 1, 2005, or (ii) the date that reasonable access to the
Demised Premises are delivered to Lessee vacant and broom clean free of all
personal property in their current condition, reasonable wear and tear excepted.
SECTION 1.03. As used herein, the term "Rent Commencement Date" shall mean
the date which is Eleven (11) months from the Commencement Date.
SECTION 1.04. Upon the request of Lessor, given to Lessee after the
Commencement Date, Lessor and Lessee shall execute and deliver a certificate
setting forth the Commencement Date, Rent Commencement Date and/or the
Expiration Date in the form annexed hereto as EXHIBIT "E," but the failure of
Lessee to execute and deliver such certificate shall not detract from the
effectiveness of any of the provisions of this Lease.
ARTICLE 2 - RENT
SECTION 2.01. Lessee shall pay to Lessor, or to such other person as Lessor
may from time to time designate, at the address specified in or pursuant to
Section 2.04, during the Term, fixed rent ("Fixed Rent"), over and above the
other and additional payments to be made by Lessee as hereinafter provided, as
follows:
A. During and in respect of the period from the Rent Commencement Date to
the day preceding the Second (2nd ) Anniversary of the Rent Commencement Date
(both dates inclusive) an amount each year equal to One Million, Six Hundred and
Fifty-Five Thousand, Eight Hundred and Ninety-Two and 48/100 ($1,655,892.48)
Dollars (exclusive of electric) payable in equal monthly installments of One
Hundred and Thirty-Seven Thousand, Nine Hundred and Ninety-One and 04/100
($137,991.04) Dollars (exclusive of electric); and
B. During and in respect of the period from the Second (2nd) Anniversary of
the Rent Commencement Date to the day preceding the Fourth (4th) Anniversary of
the Rent Commencement Date (both dates inclusive) an amount each year equal to
One Million, Seven Hundred and Thirty-Five Thousand, Three Hundred and
Thirty-Two and 48/100 ($1,735,332.48) Dollars (exclusive of electric) payable in
equal monthly installments of One Hundred and Forty-Four Thousand, Six Hundred
and Eleven and 04/100 ($144,611.04) Dollars (exclusive of electric); and
C. During and in respect of the period from the Fourth (4th) Anniversary of
the Rent Commencement Date to the day preceding the Sixth (6th) Anniversary of
the Rent Commencement Date (both dates inclusive) an amount each year equal to
One Million, Eight Hundred and Fourteen Thousand, Seven Hundred and Seventy-Two
and 48/100 ($1,814,772.48) Dollars (exclusive of electric) payable in equal
monthly installments of One Hundred and Fifty-One Thousand, Two Hundred and
Thirty-One and 04/100 ($151,231.04) Dollars (exclusive of electric); and
D. During and in respect of the period from Sixth (6th) Anniversary of the
Rent Commencement Date to the Expiration Date (both dates inclusive) an amount
each year equal to One Million, Eight Hundred and Sixty-Seven Thousand, Seven
Hundred and Twenty-Two and 48/100 ($1,867,722.48) Dollars (exclusive of
electric) payable in equal monthly installments of One Hundred and Fifty-Five
Thousand, Six Hundred and Forty-Three and 54/100 ($155,643.54) Dollars
(exclusive of electric).
SECTION 2.02.A. Fixed Rent shall be paid in equal monthly installments on
the first day of each and every month during the Term without any set off or
deduction whatsoever; provided however, that if Fixed Rent shall be payable for
any period prior to the first day of the first full month during the Term, then
such Fixed Rent shall be paid in a proportionate amount for the number of days
in such period and paid as and when the first equal monthly installment is
payable as aforesaid. Notwithstanding the foregoing, Lessee shall pay the first
(1st) monthly installment of Fixed Rent upon execution of this Lease which shall
be applied against the first month's Fixed Rent after the free rent period.
B. In the event that Lessor is unable or fails to provide Critical Services
(as hereinafter defined) which it is obligated to provide under this Lease
solely as a result of Lessor's negligence or wilful acts, and the loss of such
services causes all or part of the Demised Premises to become unusable or access
to the Demised Premises is barred for more than five (5) consecutive business
days, or if such condition is caused by any other reason other than as provided
for herein and such condition continues for thirty (30) consecutive days, and
the Demised Premises are in fact not used for the purposes for which they were
leased, during such period, then in such event, Lessee shall be entitled to a
pro rata abatement of Rent (as hereinafter defined) commencing with the sixth
(6th) consecutive business day, or the thirty-first (31st) consecutive day that
same are unusable, as the case may be; provided however, that Lessee shall not
be entitled to any abatement of Rent if such unusability is (a) caused by any
act or omission of Lessee or any of Lessee's servants, employees, agents, or
licensees; or (b) where such condition arises in connection with work performed
by Lessor at the request of Lessee to make a decoration, alteration, improvement
or addition; or (c) where the repair in question are those which Lessee is
obligated to make or furnish under any of the provisions of this Lease. The
provisions of this paragraph B shall not apply in the event of a condition
caused by fire or other casualty or condemnation as provided for in Articles 12
and 18, respectively.
C. As used herein the term "Critical Services" shall mean electricity,
heating, ventilating, air conditioning, and elevators to the Demised Premises.
SECTION 2.03. If Lessee shall fail to pay as and when due under this Lease
any Additional Rent (as hereinafter defined), and such failure shall not be
remedied within the grace period (if any) applicable thereto under this Lease,
Lessor shall have all of the rights and remedies provided in this Lease as in
the case of default in the payment of the Fixed Rent, including any rights
available to Lessor at law or in equity and shall be entitled interest on any
unpaid Fixed Rent and Additional Rent at the maximum legal rate from and after
the end of the grace period following the date such payments where due. Except
as otherwise specifically provided in this Lease, the Fixed Rent and Additional
Rent shall be paid without notice, demand, credit, abatement, deduction or
setoff of any kind whatsoever. The Fixed Rent and Additional Rent are sometimes
referred to collectively herein as "Rent."
SECTION 2.04. Lessee shall pay the Rent to Lessor in lawful money of the
United States of America which shall be legal tender for all debts, public and
private, at the time of payment, at the office of Lessor set forth above, or to
such other person or persons and/or at such other place or places as Lessor may
designate from time to time by notice to Lessee. Such payments may be by check
of Lessee, subject to collection, payable to the order of Lessor or to such
other person or persons as Lessor may designate from time to time by notice to
Lessee; any such payment shall be deemed made upon receipt thereof, subject to
collection.
SECTION 2.05. Any obligation of Lessee for payment of Rent which shall have
accrued with respect to any period during or prior to the Term shall survive the
expiration or termination of this Lease.
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES
SECTION 3.01. As used herein:
A. "Lessor's Statement" shall mean an instrument containing a computation
of any Additional Rent payable by Lessee to Lessor pursuant to this Article.
B. "Common Area Maintenance Charges" shall mean all costs and expenses of
whatever kind or nature, whether or not herein specifically mentioned or now
contemplated, which are incurred by Lessor or Lessor's agents in connection with
the use, operation, repair or maintenance of the Building and/or Property,
including, but not limited to the following: (1) premiums and other charges for
insurance which Lessor is required or permitted to maintain hereunder including,
but not limited to, general comprehensive liability insurance covering bodily
injury, personal injury (including death), property damage, public liability,
non-hired automobile insurance, sign insurance, plate glass insurance and any
other insurance incurred by Lessor for the Building and/or Property; (2) costs
and expenses of performing repairs in or to the Building and/or Property and the
sidewalks and curbs adjacent thereto; (3) costs and expenses of performing
repairs or resurfacing of the parking lots and any adjacent facilities; (4)
costs and expenses of landscaping and maintaining the grounds of the Building
and/or Property; (5) costs and expenses of snow and ice removal and/or
treatment; (6) costs and expense of rubbish, garbage and other refuse removal;
(7) fees and disbursements payable to any person to furnish management, repair
or other services regarding the Building and/or Property, except that, in the
case of any such person who is affiliated with Lessor, such fees shall not
exceed that which is customary or reasonable in the industry for similar
buildings in Westchester County; (8) cost and expenses of performing repairs to
all structural walls, roofs, and plate glass doors and windows, if any, which
are not expressly made part of the Building, Property or the Demised Premises;
(9) cost of refurbishing the common areas and modernizing and replacing
equipment servicing the common areas, including but not limited to regular
painting of non-tenanted areas at the Building and/or Property; (10) cost and
expense of repairs to component portions, as opposed to replacements, of the
Building Equipment ; (11) costs and expenses of performing repairs and
maintenance of common area lighting and lighting fixtures; (12) repair and
maintenance of all or any part of the sprinkler system installed in any part of
the Building and/or Property; (13) cost of utilities, such as electricity, water
and sewer to the common areas of the Building and/or Property; depreciation of
the capital cost of all items required to be capitalized pursuant to this Lease,
including but not limited to, machinery, equipment (including on-site sewage,
lighting and power facilities) and vehicles used in connection with the
operation and maintenance of the common areas as determined by Lessor for
federal income tax purposes but utilizing the straight-line method of computing
depreciation and the normal useful lives; (14) costs and expenses of performing
repairs and maintenance of all heating, ventilating and air conditioning
equipment installed in any part of the Building, including but not limited to
that portion contained within the Demised Premises; (15) cost and expense of
performing repairs and maintenance of utility lines, sanitary and storm sewer
lines and culverts and drainage facilities; (16) costs and expenses of providing
and maintaining security, if any; (17) costs and expenses of providing and
maintaining traffic control, if any; (18) labor costs and expenses of part
and/or full time personnel employed at the Property in connection with the
operation of the Building at or below the grade of building manager; (19) costs
and expenses of providing holiday and other decorations to the Building and/or
Property; (20) costs and expenses of performing repairs and maintenance of all
elevators in any part of the Building and/or Property; (21) cost and expense of
providing and performing cleaning and related services; (22) cost and expense of
providing window washing; (23) cost and expense of all supplies; (24) wages,
salaries, disability benefits, pensions, hospitalization, retirement plans and
group insurance respecting service and maintenance employees of Lessor; (25)
cost and expense of all uniforms and working clothes for such employees and the
cleaning thereof; (26) cost and expense imposed on Lessor pursuant to law or to
any collective bargaining agreement with respect to such employees; (27) cost
and expense of providing and maintaining worker's compensation insurance,
payroll, social security, unemployment and other taxes now in effect or
hereinafter imposed with respect to such employees; (28) cost of all sales,
utility and use taxes and other taxes of like import now in effect or
hereinafter imposed; (29) cost and expense of all maintenance and service
contracts for the Building and/or Property; (30) cost of all other normal
operating expenses of repair, operation, and maintenance of the Building and/or
Property; (31) cost and expense of providing and maintaining loading dock
personnel, if any, to the extent not provided for in subparagraph (18) hereof;
(32) cost and expense of all professional and consulting fees, including legal
and audit fees and all costs and disbursements incurred in connection therewith;
(34) such cost and expenses shall be subject to Lessor's overhead and
administrative cost of Fifteen (15%) percent; (35) cost and expense of
providing, operating and maintaining the cafeteria and/or food service facility
and fitness center net of any income received with respect thereto; and (36) the
cost of any capital equipment or capital expenditures only to the extent
specifically provided for in Section 3.01.C. hereof; provided, however, that the
following items shall be excluded from Common Area Maintenance Charges: (1)
leasing commissions; (2) cost of repairs or replacements incurred by reason of
fire or other casualty (to the extent the same is or would have been covered by
insurance required to be maintained by Lessor herein), or caused by the exercise
of the right of eminent domain (to the extent same is covered by any
condemnation award) less any cost incurred by Lessor in obtaining such insurance
proceeds or condemnation award; (3) costs incurred in performing work or
furnishing services to or for individual tenants (including Lessee) at such
tenant's expense; (4) debt service on any mortgages now or hereafter encumbering
the Building and/or Property; (5) the cost of attorneys' fees incurred in
connection with negotiating and drafting leases with other tenants, or in
connection with disputes with other tenants; (6) costs incurred in the sale or
refinancing of the Building and/or Property; (7) interest or penalties due to
Lessor's violations of law; (8) advertising and promotional expenses; (9)
depreciation; (10) leasehold improvements made for other tenants; (11) Taxes;
(12) salaries of officers of Lessor; (13) leasehold improvements made for new
tenants of the Building; (14) capital expenditures except as otherwise
specifically provided for in Section 3.01.C. hereof; (15) any ground lease
rental; (16) rentals for items which if purchased, rather than rented, would
constitute a capital expenditure, except as otherwise specifically provided for
in Section 3.01.C hereof; (17) costs, including permit, license and inspection
costs, incurred with respect to the installation of tenant improvements made in
leasable areas for new tenants or existing tenants in the Building or incurred
in renovating or otherwise improving, decorating painting or redecorating vacant
leasable space of tenants or other occupants of the Building; (18) the cost of
furnishing electricity to any leasable areas of the Building; (19) marketing
costs including leasing commissions, attorneys' fees in connection with the
negotiation and preparation of letters, deal memos, letters of intent, leases,
subleases and/or assignments, space planning costs, and other costs and expenses
incurred in connection with the lease, sublease and/or assignment negotiations
and transactions with present or prospective tenants or other occupants of the
Building; (20) all costs and expenses of providing any service to any tenant or
occupant of, or to any leasable space in, the Building (or level or amount of
any service) in excess of that required by this Lease to be provided to Lessee
free of separate additional charge; (21) amounts paid to Lessor or to
subsidiaries or affiliates of Lessor for goods and/or services to the extent the
same exceeds the costs of such goods and/or services rendered by unaffiliated
third parties on a competitive basis; (22) Lessor's general corporate overhead
and general and administrative expenses; (23) costs of signs in or on the
Building identifying the owner of the Building or other tenants' signs, other
than the Building directories; (24) taxes and tax penalties incurred as a result
of Lessor's negligence, inability or unwillingness to make payments and/or to
file any income tax or informational returns when due; (25) costs arising solely
from the negligence, intentional act or fault of Lessor or its agents, or any
vendors, contractors, or providers of materials or services selected, hired or
engaged by Lessor or their agents; (26) all costs and expenses attributable to
any hazardous waste, substances or materials or any testing, investigation,
management, maintenance, remediation or removal thereof, (27) costs arising from
Lessor's charitable or political contributions; (28) costs for sculpture,
paintings or other subjects of art (other than normal repair or maintenance)
thereof in excess of Five Thousand ($5,000.00); and (29) costs covered by any
guarantees.
C.1. If Lessor shall purchase any item of capital equipment or make any
capital expenditure intended to result in savings or reductions in the Common
Area Maintenance Charges and which Lessor reasonably believes shall provide
Lessee with the benefit of a savings or reduction in such common area
maintenance charges based upon the advice of Lessor's consultants, then the
costs for same shall be included in the Common Area Maintenance Charges, to the
extent hereinafter set forth. Lessor shall deliver to Lessee, promptly following
Lessee's request, a copy of any concluded studies conducted by Lessor which show
anticipated savings or reductions in such Common Area Maintenance Charges as a
result of any planned capital expenditure or purchase of capital equipment. The
costs of capital equipment or capital expenditures are so to be included in the
Common Area Maintenance Charges in which the costs are incurred and in any
subsequent years, on a straight-line basis, to the extent that such items are
amortized over such period of time as reasonably can be estimated at the time in
which such savings or reductions in such Common Area Maintenance Charges are
expected to equal Lessor's costs for such capital equipment or capital
expenditure, with an interest factor equal to two percent (2%) above the
interest rate payable on United States Treasury securities having a maturity
comparable to the period of amortization at the time Lessor incurred said costs.
If Lessor shall lease any such item of capital equipment designed to result in
savings or reductions in any common area maintenance charges, then the rentals
and other costs paid pursuant to such leasing shall be included in such common
area maintenance charges for the year in which they were incurred.
2. If Lessor shall purchase any item of capital equipment or make any other
capital expenditure in order to comply with Legal Requirements, Insurance
Requirements or Environmental Laws (as those terms are hereinafter defined) or
in order to benefit or increase the safety and security of the Building or
Property tenants and/or invitees, then the costs for same shall be included in
common area maintenance charges for the year in which the costs are incurred and
subsequent years, on a straight-line basis, amortized over the useful life of
such items, with an interest factor equal to two percent (2%) above the interest
rate payable on United States Treasury securities having a maturity comparable
to the useful life of such items at the time Lessor incurred said costs. If
Lessor shall lease any such item of capital equipment to comply with Legal
Requirements, Insurance Requirements, Environmental Laws or to increase safety
and security then the rentals and other costs paid pursuant to such leasing
shall be included in common area maintenance charges for the year in which they
were incurred. Notwithstanding the foregoing, in no event shall the amount
included in Common Area Maintenance Charges for any year pursuant to the
provisions of Section 3.01.C hereof exceed the projected savings for such year.
D. If during all or part of any year, including calendar year 2006, (i)
less than ninety-five percent (95%) of the leasable space in the Building is
occupied by tenants or occupants or (ii) Lessor shall furnish any particular
item(s) of work or service (which would constitute a common area maintenance
charge hereunder) to less than ninety-five percent (95%) of the leasable
portions of the Building or to only a portion of the Property, due to the fact
that less than ninety-five percent (95%) of the leasable portions of the
Building are occupied, or because such item of work or service is not required
or desired by the tenant of such portion, or such tenant is itself obtaining and
providing such item of work or service, or for other reasons, then, for the
purposes of computing the Additional Rent payable hereunder, the amount of
Common Area Maintenance Charges or the amount of the expenses attributable to
such item, as the case may be, for such period shall be deemed to be increased
by an amount equal to the additional costs and expenses which would reasonably
have been incurred during such period had the Building been at least ninety-five
percent (95%) occupied or had Lessor furnished such item of work or services to
such other portions of the Building or the Property.
E. Lessor shall have the absolute right, at all times during the Term to
increase, reduce, alter or otherwise modify the way in which it uses, operates,
repairs, or maintains the Building and/or the Property and the cost thereof.
Nothing contained herein shall require Lessor to incur or provide any particular
service or charge in connection with its use, operation, repair or maintenance
of the Building and/or Property, except as otherwise provided in this Lease, it
being agreed and understood that the items described in Section 3.01.B. are by
way of illustration only and shall not obligate Lessor thereto, except that
Lessor shall maintain the Building and Property in such condition as is
otherwise provided for herein.
F. The term "Taxes" shall mean all such taxes, assessments, use and
occupancy taxes in respect of this Lease and any subleases made hereunder, water
and sewer charges, rates and rents, water and other meter charges (to the extent
not otherwise included in Common Area Maintenance Charges or reimburseable by
tenants) and all such other similar charges, taxes, levies and sums of every
kind or nature whatsoever, general and special, extraordinary as well as
ordinary, whether or not now within the contemplation of the parties, as shall
or may during or in respect of the Term (or any period prior to the Term for
which Fixed Rent is payable) be assessed, levied, charged or imposed upon by any
Governmental Authority (as hereinafter defined) or become a lien, imposed by any
Governmental Authority, on the Property, Building, or Demised Premises, or any
part thereof, or anything appurtenant thereto, or the sidewalks, streets or
roadways in front of, adjacent to or appurtenant to the Property, Building or
Demised Premises (and which have a basis related in any way to the Property,
Building, or Demised Premises and/or the use or manner of use thereof), or
which, if imposed on Lessee or in respect of the Property, Building or Demised
Premises and if not paid by Lessee, would be collectible from Lessor, or which
have been so assessed, levied, charged or imposed prior to the Term (but, in the
last-mentioned case, only with respect to a period falling within the Term);
provided, however, that, except if and to the extent otherwise provided in the
succeeding sentence, "Taxes" shall not mean federal, state or local income
taxes, franchise, excise, gift, transfer, capital stock, estate, succession or
inheritance taxes or penalties or interest for late payment of any tax in
respect of which Lessee shall have duly made payment of Additional Rent as
herein provided, or any increase in Taxes directly attributable to Lessor's
Initial Building Renovation. If, at any time during the Term, the methods of
taxation prevailing at the commencement of the Term shall be altered so that, in
lieu of or as a substitution in whole or in part for the taxes, assessments,
levies, impositions or charges now or hereafter levied, assessed or imposed on
real estate and the improvements thereon, shall be levied, assessed or imposed
any tax or other charge on or in respect of the Property, Building and/or
Demised Premises or the rents, income or gross receipts of Lessor therefrom
(including any county, town, municipal, state or federal levy), then such tax or
charge shall be deemed a Tax, but only to the extent that such Tax would be
payable if the Property, Building or Demised Premises, or the rent, income or
gross receipts received therefrom, were the only property of Lessor subject to
such Tax, and Lessee shall pay and discharge the same as herein provided in
respect of the payment of Taxes.
G. The term "School/Village Tax Base" shall mean the amount of Taxes as
hereinabove defined, imposed, levied, assessed and/or collected on the Property,
for the 2006/2007 School Tax and "Town/County Tax Base" shall mean the amount of
Taxes as hereinabove defined, imposed, levied, assessed and/or collected on the
Property for the 2006 Town and County Tax.
H. The term "School/Village Tax Year" shall mean each period of twelve (12)
consecutive months commencing as of the first day of July of each such period
for the School Tax and each twelve (12) consecutive months commencing as of the
first of June of each such period for the Village Tax; and "Town/County Tax
Year" shall mean each period of twelve (12) consecutive months commencing as of
the first day of January of each such period, in which any part of the term of
this Lease shall occur, or such other periods of twelve (12) months as may be
adopted as the fiscal year for real estate tax purposes.
SECTION 3.02.A. Lessee shall pay to Lessor, as Additional Rent, during or
in respect of the period from the First (1st) Anniversary of the Rent
Commencement Date to the Expiration Date (both dates inclusive) for each
School/Village Tax Year and Town/County Year or portion thereof, its
proportionate share ("Lessee' Proportionate Share," as hereinafter defined) of
increases in Taxes which will be imposed, levied, assessed or collected on the
Property, and/or Building of which the Demised Premises are a part, for such
School/Village Tax Year and/or Town/County Tax Year, as the case may be, over
the respective tax bases based solely upon an increase in the tax rate or any
other tax. Notwithstanding the foregoing, the parties hereto acknowledge that as
of the Commencement Date, the Property is assessed on less than full occupancy.
Commencing in the Assessment Year (as hereinafter defined), Lessee shall also
pay its Proportionate Share of increases in the Taxes which are the result of
increases in the assessed value of the Property over the Assessment Base (as
hereinafter defined). Reasonable fees and expenses, if any, incurred in
obtaining any reduction in assessed valuation from the tentative assessment to
the final assessment shall also be considered an increase in Taxes for the
purpose of this provision. Such payments shall be made by Lessee as Additional
Rent in equal monthly installments during the applicable tax year together with
the payment of Fixed Rent. Copies of tax bills applicable to the School/Village
Tax Base and the Town/County Tax Base, as the case may be, and to any such
applicable tax year shall be made available by Lessor for inspection by Lessee
during normal business hours. In the event of any reduction in Taxes by reason
of a reduction in the assessed value of the Property after the Assessment Year
and with respect to which Lessee has paid its proportionate share of any
increases in Taxes by reason of such increase in assessed value of the Property
after the Assessment Year, any such reduction, less fees and expenses incurred
to obtain such reduction shall be refunded in proportionate amounts to Lessee.
B. As used herein the "Assessment Year" shall mean the tax year in which
tenants for at least Ninety-Five (95%) percent of the rentable square footage of
the Building have executed leases and the Building has been fully assessed as a
fully completed and occupied Building with tenants having paid a full years
rent. As used herein the "Assessment Base" shall mean the assessed value of the
Property for tax year immediately following the Assessment Year regardless of
whether or not the Governmental Authority (as hereinafter defined) actually
increases the assessed value of the Property for that tax year.
SECTION 3.03.A. Lessee shall pay to Lessor, as Additional Rent, during or
in respect of the period from the First (1st) Anniversary of the Rent
Commencement Date to the Expiration Date (both dates inclusive) for each
calendar year or portion thereof, Lessee's Proportionate Share of the increases
in the Common Area Maintenance Charges over the over the Base Common Area
Maintenance Charges (as hereinafter defined). Such payments shall be made by
Lessee as Additional Rent in equal monthly installments during the applicable
calendar year together with the payment of Fixed Rent.
B. The term "Base Common Area Maintenance Charges" shall mean the greater
of: (x) the actual Common Area Maintenance Charges in effect for the calendar
year ending December 31, 2006 or (y) the Common Area Maintenance Charges in
effect for the calender year ending December 31, 2006 as grossed up in
accordance with the provisions of Section 3.01.D of this Lease.
SECTION 3.04.A. At any time hereafter and from time to time, Lessor may
furnish to Lessee a Lessor's Statement, which shall be reasonably detailed
setting forth specific items of Common Area Maintenance Charges and setting
forth (i) Lessor's actual Common Area Maintenance Charges (or any one or more
items thereof) and/or actual Taxes for a period which shall have expired only if
a final statement has not been previously rendered, and/or (ii) Lessor's
reasonable estimate of Common Area Maintenance Charges and/or Taxes for a
succeeding period. Within Thirty (30) days next following rendition of each such
Lessor's Statement, Lessee shall pay to Lessor the entire amount, if any, shown
on such Lessor's Statement as being due with respect to any period which shall
have expired. In addition, Lessee shall pay to Lessor, on the first day of each
month following rendition of each such Lessor's Statement, on account of the
estimated Additional Rent thereafter payable, a proportionate sum of the total
Additional Rent shown upon such Lessor's Statement as being Lessor's reasonable
estimate for a succeeding period on an annual basis (it being agreed that
Lessor's estimate shall in any event be deemed reasonable if it is based on
actual Common Area Maintenance Charges (or any one or more items thereof) and/or
actual Taxes for a period which shall have expired immediately prior thereto, so
that one month prior to the end of such period, Lessee's Proportionate Share of
the increase shall be paid in full, and Lessee shall continue to pay Additional
Rent on such basis until receipt of a subsequent Lessor's Statement. Such
Additional Rent shall be due and payable at the same time as each monthly
installment of Fixed Rent.
B. A reconciliation shall be made upon each Lessor's Statement as follows:
Lessee shall be debited with any Common Area Maintenance Charges and/or Taxes
payable as shown on such Lessor's Statement, and credited with the aggregate of
the total amount, if any, paid by Lessee in accordance with the provisions of
the preceding paragraph on account of the estimated Additional Rent, for the
period or item in question, and, within thirty (30) days next following
rendition of such Lessor's Statement, Lessee shall pay Lessor the amount of any
net debit balance shown thereon or Lessor shall apply against the next ensuing
installments of Fixed Rent the net credit balance shown thereon.
C. Without limiting the preceding provisions of Section 3.04, it is
understood that Lessor shall furnish a Lessor's Statement, for each calendar
year falling wholly or partially within the Term.
SECTION 3.05. A. Lessor's failure to render Lessor's Statements with
respect to any period shall not prejudice Lessor's right to render a Lessor's
Statement with respect to that or any subsequent period, provided, however, that
failure to provide such Lessor's Statement within two (2) years after any such
period shall be deemed a waiver thereof, except for any item for which Lessor is
billed after such two (2) year period. The obligations of Lessor and Lessee
under the provisions of this Article with respect to Additional Rent shall
survive the expiration or any sooner termination of the Term. Lessor agrees to
use reasonable efforts to furnish Lessor's Statement within One Hundred and
Twenty (120) days after the end of each calendar year.
B. Each Lessor's Statement shall be conclusive and binding upon Lessee
unless within two (2) years after receipt of such Lessor's Statement, Lessee
shall notify Lessor that it disputes the reasonableness or correctness of
Lessor's Statement, specifying to the extent known by Lessee the respects in
which Lessor's Statement is claimed to be unreasonable or incorrect, which may
be a statement that Lessee simply desires to verify such costs. Pending the
determination of such dispute by agreement or otherwise, Lessee shall pay
Additional Rent in accordance with the applicable Lessor's Statement, and such
payment will be without prejudice to Lessee's position. If the dispute shall be
finally determined in Lessee's favor by a court of competent jurisdiction,
Lessor shall forthwith pay Lessee the amount of Lessee's overpayment of
Additional Rent resulting from compliance with Lessor's Statement together with
interest thereon at the legal rate, or Lessee may, on ten (10) days written
notice to Lessor, offset such overpayment from the Rent next accruing hereunder.
C. Provided that Lessee substantially complies with the provisions of this
Section 3.05, Lessee shall have the right, at its sole cost and expense, to
retain an independent firm of certified public accountants, or Lessee's
employees or other firms retained by Lessee ("Lessee's Accountants"), to review
supporting data and/or documentation for any portion of Lessor's Statement that
Lessee disputes. Lessee's right under the provisions of this Section 3.05 may be
exercised only once for any Lessor's Statement and if Lessee fails to
substantially satisfy all of the conditions contained in this Section 3.05, then
in such event, Lessee's rights as provided herein with respect to that
particular Lessor's Statement shall be deemed waived.
D.1. Lessee acknowledges that Lessor maintains its records for the Property
at the offices of its managing agent as it may change from time to time, and
Lessee agrees that any review of records as provided for in this Section 3.05
shall take place at the offices of Lessor's managing agent, which may change
from time to time. Lessee acknowledges and agrees that any records reviewed by
it shall constitute confidential information of Lessor which shall not be
disclosed to anyone other than the Lessee's Accountants and the principals of
Lessee who receive the results of the review and disclosure or dissemination of
such information shall be deemed a material breach of this Lease and Lessor
shall be entitled to all its remedies at law or in equity.
2. In the event that Lessee's Accountants find an error in Lessor's
Statement, such error shall be: (i) promptly corrected in the event that Lessor
agrees with Lessee's Accountant, or (ii) resolved by agreement between Lessor
and Lessee in the event that Lessor does not agree with Lessee's Accountants. In
the event that Lessor and Lessee are unable to resolve such error, then in such
event the error shall be determined by arbitration pursuant to the provisions
hereof. If the Disputed Item (as hereinafter defined) is agreed upon by Lessor
and Lessee, or found by the arbitrators, to be greater or lesser than the amount
set forth in Lessor's Statement, then in such event: (i) if Lessee has overpaid
its obligations for a preceding period, the amount of such overpayment shall be
credited against Lessee's subsequent installments obligations to pay its
Proportionate Share of Common Area Maintenance Costs or Rent; or (ii) if Lessee
has underpaid its obligations for a preceding period, the amount of such
underpayment shall be paid to Lessor with Lessee's next installment obligation
of Common Area Maintenance Costs. If the dispute shall be determined in Lessee's
favor by arbitration or otherwise and Lessee's Proportionate Share of Common
Area Maintenance Charges increases as charged by Lessor is more than one hundred
and ten (110%) percent of Lessee's Proportionate Share as determined by Lessee's
audit after arbitration, as the case may be, then in such event, Lessor agrees
to reimburse Lessee for all reasonable actual out of pocket audit fees incurred
by Lessee in connection therewith, provided, however, that same does not exceed
the amount that it has been determined that Lessor owes Lessee and provided
further, that Lessor shall have no obligation to reimburse Lessee for the cost
of its in-house certified public accountants.
3.A. In the event that Lessor and Lessee are unable to resolve a dispute
concerning the reasonableness and/or correctness of any specific item on
Lessor's Statement (hereinafter referred to as the "Disputed Item"), then either
Lessor or Lessee (hereinafter referred to as the "Initiating Party") may give
the other party (hereinafter called the "Responding Party") a notice designating
the name and address of the arbitrator designated by the Initiating Party to act
on its behalf in the arbitration process hereinafter described (the "Review
Notice").
B. If the Initiating Party gives a Review Notice, then within twenty (20)
days after giving of such Review Notice, the Responding Party shall give notice
to Initiating Party specifying in such notice the name and address of the
arbitrator designated by the Responding Party to act on its behalf. In the event
the Responding Party shall fail to give such notice within such twenty (20) day
period, then the appointment of such arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where two arbitrators are appointed hereunder and the parties are unable to
agree to such appointment. The two arbitrators so chosen shall meet within
thirty (30) days after the second arbitrator is appointed and shall exchange
sealed envelopes each containing such arbitrator's written determination as to
the reasonableness and/or correctness of the Disputed Item. The reasonableness
and/or correctness of any Disputed Item submitted by Lessor's arbitrator shall
be called the "Lessor's Submitted Value" and reasonableness and/or correctness
of any Disputed Item submitted by Lessee's arbitrator shall be called the
"Lessee's Submitted Value". Copies of such written determinations shall promptly
be sent to both Lessor and Lessee. Any failure of either such arbitrator to meet
and exchange such determinations shall be acceptance of the other party's
arbitrator's determination as to the reasonableness and/or correctness of the
Disputed Item if, and only if, such failure persists for five (5) days after
notice to the party for whom such arbitrator is acting, and, provided that such
five (5) day period shall be extended by reason of any Unavoidable Delay. If the
higher determination as to the reasonableness and/or correctness of the Disputed
Item is not more than one hundred and five (105%) percent of the lower
determination as to the reasonableness and/or correctness of the Disputed Item,
then the reasonableness and/or correctness of the Disputed Item shall be deemed
to be the average of the two determinations. If, however, the higher
determination is more than one hundred and five (105%) percent of the lower
determination, then within ten (10) days of the date the arbitrators submitted
their respective determinations, the two arbitrators shall appoint a third
arbitrator. In the event of their being unable to agree upon such appointment
within ten (10) days after the exchange of the sealed envelopes, the third
arbitrator shall be selected by the parties themselves if they can agree thereon
within a further period of ten (10) days. If the parties do not so agree, then
either party, on behalf of both and on notice to the other, may request such an
appointment by the American Arbitration Association (or any successor
organization) in accordance with its rules then prevailing or if the American
Arbitration Association (or any successor organization) shall fail to appoint
said third arbitrator within fifteen (15) days after such request is made, then
either party may apply for such appointment, on notice to the other, to the
President of the Westchester County Bar Association (who may consult with the
Chairman of the Real Property Law Committee of the Westchester County Bar
Association). Within ten (10) days after the appointment of such third
arbitrator, the Lessor's arbitrator shall submit Lessor's Submitted Value to
such third arbitrator and the Lessee's arbitrator shall submit Lessee's
Submitted Value to such third arbitrator. Such third arbitrator shall, within
thirty (30) days after the end of such fifteen (15) day period, make his own
determination as to the reasonableness and/or correctness of the Disputed Item,
and send copies of his determination promptly to both Lessor and Lessee
specifying whether Lessor's Submitted Value or Lessee's Submitted Value was
closer to the determination by such third arbitrator as to the reasonableness
and/or correctness of the Disputed Item. Whichever of Lessor's Submitted Value
or Lessee's Submitted Value shall be closer to the determination by such third
arbitrator shall conclusively be deemed correct.
C. In no event shall the arbitrators enlarge upon, or alter or amend, this
Lease or Lessor's or Lessee's rights as provided in this Lease, it being
understood that the sole issue for determination by the arbitrators shall be the
single issue of fact as to the reasonableness and/or correctness of the Disputed
Item. The arbitrators shall be certified public accountants who are
disinterested and are currently practicing in the Westchester County, New York
area with at least ten (10) years experience in evaluating and auditing common
area maintenance charges.
D. Except as otherwise provided in the following sentence, the fees and
expenses of an arbitration proceeding shall be borne by the parties equally. The
fees of respective counsel engaged by the parties the fees and expenses of
expert witnesses and other witnesses called and the cost of transcripts shall be
borne by the parties engaging such counsel or calling such witness or ordering
such transcripts.
SECTION 3.06. Lessee shall pay and discharge, or cause to be paid and
discharged, the following items, regardless of to whom or how incurred, all
taxes and assessments, if any, which shall or may during the Term be charged,
levied, assessed or imposed upon, or become a lien upon, the personal property
of Lessee used in the operation of the Demised Premises and which, if not paid
by Lessee, would be collectible from Lessor.
ARTICLE 4 - USE OF DEMISED PREMISES
SECTION 4.01.A. Subject to the provisions of this Article, Lessee shall
have the right to use the Demised Premises for general and executive office
purposes, for a trading floor and executive kitchen and dining room and for no
other purposes, provided, however, that with respect to the trading floor and
executive kitchen and dining room, Lessee shall, at its sole cost and expense,
be required to comply with all Legal Requirements, Insurance Requirement and
Environmental Laws with respect to such use (the "Permitted Use").
B.1. From and after the Commencement Date, Lessor does hereby grant unto
Lessee the privilege and a license to One Hundred and Thirty-Eight (138)
non-reserved parking spaces in the parking area located on the Property for a
period to be coterminous with the Term of this Lease for a period to be
coterminous with the Term of this Lease. Lessee agrees that Lessor shall have
the right, in its sole and absolute discretion, upon thirty (30) days written
notice to Lessee, to change the location of all non-reserved parking spaces in
the event that Lessor determines to change the area, level, location and
arrangement of parking areas and other facilities; to build multistory parking
facilities; to temporarily restrict parking by lessees, their officers, agents
and employees; and to close all or any portion of said areas or facilities to
such extent as may be legally sufficient to prevent a dedication thereof or the
accrual of any right to any person or the public therein; to close temporarily
all or any portion of the parking areas or facilities to discourage non-tenant
parking, provided, however, that in the event such closure is during Normal
Working Hours (as hereinafter defined) Lessor shall provide Lessee with no less
than the number of non-reserved parking spaces required to be provided under
this Lease at a location within a reasonable distance of the Demised Premises
and at no charge to Lessee. The license and privilege hereby granted shall apply
only to those duly registered and operating private passenger motor vehicle(s)
owned and operated by Lessee or Lessee's employees, invitees and contractors and
shall not be transferable to any other person or used for any other purpose
other than as herein provided. Lessee and its employees, officers, partners,
directors, agents, and contractors, covenant and agree that they shall park
their vehicles in legal parking spaces designated by Lessor on the Property and
shall not park their vehicles in any other location on the Property, or on any
roadway or property adjacent to the Property.
B.1. From and after the Commencement Date, Lessor does hereby grant unto
Lessee the privilege and a license to Twenty-One (21) reserved parking spaces in
the parking area located on the Property as shown on EXHIBIT "F" annexed hereto
and made a part hereof, which shall be identified as exclusive to Lessee, for a
period to be coterminous with the Term of this Lease. Lessee agrees that Lessor
shall have the right, upon thirty (30) days written notice to Lessee, to change
the location of all reserved parking spaces in the event that Lessor is required
to do so by reason of any Legal Requirements, Insurance Requirements and/or
Environmental Laws. Lessee further agrees that Lessor shall have the right to
change the location of all reserved parking spaces in the event that Lessor
determines to change the area, level, location and arrangement of parking areas
and other facilities or build multistory parking facilities, provided, however,
that Lessor shall not make such change to accommodate another tenant in the
Building and such alternate area for the reserved parking spaces is as
reasonably close the main elevator bank as the previous reserved parking spaces;
to temporarily restrict parking by lessees, their officers, agents and
employees; and to close all or any portion of said areas or facilities to such
extent as may be legally sufficient to prevent a dedication thereof or the
accrual of any right to any person or the public therein; to close, other than
during Normal Working Hours, temporarily all or any portion of the parking areas
or facilities to discourage non-tenant parking. The license and privilege hereby
granted shall apply only to those duly registered and operating private
passenger motor vehicle(s) owned and operated by Lessee or Lessee's employees,
invitees and contractors and shall not be transferable to any other person or
used for any other purpose other than as herein provided. Lessee and its
employees, officers, partners, directors, agents, and contractors, covenant and
agree that they shall park their vehicles in legal parking spaces designated by
Lessor on the Property and shall not park their vehicles in any other location
on the Property, or on any roadway or property adjacent to the Property.
SECTION 4.02. Lessee shall not use or occupy the Demised Premises in any
manner or suffer or permit the Demised Premises or any part thereof to be used
in any manner, or do or suffer or permit anything to be done in the Demised
Premises, or bring anything into the Demised Premises or suffer or permit
anything to be brought into the Demised Premises, which would in any way do any
of the following: (a) violate any of the provisions of the Mortgage (as
hereinafter defined) or Superior Lease (as hereinafter defined) for which Lessor
has notified Lessee in writing and do not prohibit the use of the Demised
Premises for the Permitted Use; (b) violate any Legal Requirements, Insurance
Requirements or Environmental Laws (as such terms are hereinafter defined); (c)
make void or voidable any insurance policy then in force with respect to the
Demised Premises, Building or Property; (d) make unobtainable from insurance
companies authorized to do business in the State of New York and rated by Best's
Insurance Rating Service with a rating at least equal to A:XII, at standard
rates without any special premium or charge, any fire or other casualty
insurance with extended coverage, or rental, liability or boiler insurance, or
other insurance provided for in Section 11.01 or otherwise may be required to be
furnished by Lessor under the terms of the Mortgage or Superior Lease with
respect to the Demised Premises (Lessor acknowledges that the use of the Demised
Premises for the Permitted Use shall not be deemed to violate the foregoing);
(e) cause physical damage to the Demised Premises, Building or Property, or any
part thereof; (f) constitute a public or private nuisance; (g) substantially
impair the appearance or character of the Demised Premises, Building or
Property; (h) discharge or cause the discharge of objectionable substances,
fumes, vapors or odors from the Demised Premises not otherwise in compliance
with Legal Requirements, Insurance Requirements and Environmental Laws; (i)
cause Lessee to default in the observance and performance of any of its other
obligations to be observed and performed under this Lease; (j) unreasonably
interfere with the effectiveness or accessibility of the utility, mechanical,
electrical and other systems installed or located anywhere at the Demised
Premises, or (k) violate any of the Building's Rules and Regulations annexed
hereto as EXHIBIT "C," as same may be amended from time to time.
SECTION 4.03. If any governmental license or permit shall be required for
the proper and lawful conduct of Lessee's business in the Demised Premises or
any part thereof, then Lessee, at its sole cost and expense, shall duly procure
and thereafter maintain such license or permit and submit the same to inspection
by Lessor. Lessee shall, at all times, comply with the terms and conditions of
each such license or permit, but in no event shall failure to procure and
maintain same by Lessee affect Lessee's obligations hereunder. Lessee shall not
use or occupy the Demised Premises, or suffer or permit anyone to use or occupy
the Demised Premises, in violation of any certificate of occupancy issued for
the Building or Property.
SECTION 4.04. Lessee shall obtain the appropriate certificate(s) required
for Lessee's occupancy of the Demised Premises upon substantial completion of
Lessee's Work (as that term is hereinafter defined).
SECTION 4.05. Lessee shall not place, or suffer, or permit anyone to place
a load upon any floor of the Building that exceeds the floor load per square
foot that such floor was designed to carry and which is allowed by certificate,
rule, regulation, permit or law, nor shall Lessee overload, or suffer, or permit
anyone to overload any wall, roof, land surface, pavement, landing or equipment
on the Demised Premises.
SECTION 4.06. Lessee shall not use, or suffer, or permit anyone to use, on
or across the Demised Premises, Building or Property, any equipment having
caterpillar-type tracks or tires, or any other equipment which would be damaging
to the Demised Premises, Building or Property or any road surface or
blacktopping thereon.
SECTION 4.07. A. Lessee shall not release, discharge or dispose of, or
permit, or suffer any release, discharge or disposal of any Hazardous Material
at the Demised Premises in violation of any Environmental Law (as hereinafter
defined). Lessee shall not permit or suffer the manufacture, generation,
storage, transmission or presence of any Hazardous Material over or upon the
Demised Premises in violation of any Environmental Law.
B. Lessee shall: (i) promptly, upon learning thereof, notify Lessor of any
violation of, or non-compliance with, potential violation of or non-compliance
with, or liability or potential liability under, any Environmental Law
concerning the Demised Premises, (ii) promptly make (and deliver to Lessor
copies of) all reports or notices that Lessee is required to make under any
Environmental Law concerning the Demised Premises and maintain in current status
all permits and licenses required under any Environmental Law concerning the
Demised Premises, (iii) immediately comply with any orders, actions or demands
of any Governmental Authority (as herein defined) with respect to the discharge,
clean-up or removal of Hazardous Materials at or from the Demised Premises due
to a breach of a covenant set forth in Section 4.07.A, (iv) pay when due the
cost of removal of, treatment of, or the taking of remedial action with respect
to, any Hazardous Material on the Demised Premises which is required by an
Environmental Law due to a breach of a covenant set forth in Section 4.07.A, (v)
keep the Demised Premises free of any lien imposed pursuant to any Environmental
Law in respect of a breach of a covenant set forth in Section 4.07.A, (vi) from
time to time, upon the request of Lessor, execute such affidavits, certificates
and statements concerning Lessee's knowledge and belief concerning the presence
of Hazardous Materials on the Demised Premises and (vii) otherwise comply with
all Environmental Laws concerning the Demised Premises.
C. Lessor shall not release, discharge or dispose of, or permit, or suffer
any release, discharge or disposal of any Hazardous Materials at the Demised
Premises and/or the Property in violation of any Environmental Law. Lessor shall
not permit or suffer the manufacture, generation, storage, transmission or
presence of any Hazardous Material over or upon the Demised Premises and/or
Property in violation of any Environmental Law. If the presence of any Hazardous
Materials exists on the Property in excess of the amount permitted by
Environmental Laws, and to the extent the presence thereof is caused by Lessor,
or a third party (other than Lessee, its agents, contractors, subcontractors,
invitees or licensees), or is a pre-existing condition, Lessor shall, at
Lessor's sole cost and expense, promptly take all actions necessary to comply
with such Environmental Laws.
SECTION 4.08.A. Lessor shall, at Lessor's sole cost and expense, include
Lessee's name on any internal Building directory and on the floor directional
signs. Lessee shall also be entitled to Lessee's Proportionate Share of listings
on the internal Building directory. Lessor shall, at Lessee's sole cost and
expense, include Lessee's name on the entrance door to the Demised Premises.
Other than the foregoing, Lessee shall not place or suffer to be placed or
maintain any sign, awning or canopy upon or outside the Demised Premises or in
the Building; nor shall Lessee place at the store front any sign, decoration,
lettering or advertising matter of any kind without first obtaining Lessor's
written approval and consent in each instance. In the event that Lessor gives
its consent hereunder, all signs shall be of a size, color and design as is
approved in writing by Lessor and shall be installed where designated by Lessor
and maintained in good condition, repair and appearance at all times, according
to Lessor's standards and the laws of the municipality having jurisdiction over
such signs. If Lessor shall deem it necessary to remove any sign in order to
paint or to make any repairs, alterations or improvements in or upon the Demised
Premises or any part thereof, Lessor shall have the right to do so, provided the
same be removed and replaced at Lessor's cost and expense unless having been
occasioned by fault of Lessee. Lessor shall have the right, with or without
notice to Lessee, to remove any signs (paper or otherwise) installed by Lessee
in violation of this paragraph and to charge Lessee the cost of such removal
without liability to Lessee for such removal.
B. Subject to the provisions of Section 10.03 of this Lease, in the event
that Lessor allows another tenant in the Building who occupies the same amount
or less rentable square feet in the Building than Lessee herein named to put
their name on or above the entrance to the Building or in the lobby of the
Building, then in such event, Lessor agrees that Lessee herein named shall have
the right to have their name installed on or above the entrance to the Building
or in the lobby of the Building.
SECTION 4.09 No property, other than such as might normally be brought upon
or kept in the Demised Premises as incidental to the reasonable use of the
Demised Premises for the purposes herein permitted, will be brought upon or kept
in the Demised Premises.
ARTICLE 5- POSSESSION AND CONDITION OF DEMISED PREMISES
SECTION 5.01. Lessee has inspected the Demised Premises and the state of
title thereto and Lessee accepts the Demised Premises in their "AS IS" state and
condition on the Commencement Date and without any representation or warranty
(except as expressly set forth herein), express or implied, in fact or by law,
by Lessor, and without recourse to Lessor, as to title thereto, the nature,
condition or usability thereof or as to the use or occupancy which may be made
thereof.
SECTION 5.02.A. If delivery of possession to the Demised Premises to Lessee
is delayed by reason of Unavoidable Delays (as hereinafter defined), then this
Lease and the validity thereof shall not be affected thereby and Lessee shall
not be entitled to terminate this Lease, to claim actual or constructive
eviction, partial or total, or to be compensated for loss or injury suffered as
a result thereof, nor shall the same be construed in any way to extend the Term,
provided, however, that, notwithstanding the provisions of Article 1, the
Commencement Date shall be deemed to occur only if and when possession of the
Demised Premises is made available to Lessee.
B. Notwithstanding the foregoing and except for Lessee Delays, in the event
that the Demised Premises are not delivered to Lessee on or before May 1, 2005
(the "Delivery Date") time being of the essence with respect to said date, then
in such event, and in lieu of any other remedies at law or in equity, Lessee may
serve notice on Lessor of its intention to terminate this Lease on May 31, 2005
(the "Termination Date") and if by the Termination Date, Lessor shall not
delivered possession of the Demised Premises to Lessee in accordance with the
provisions of this Lease, this Lease shall terminate on the Termination Date as
if such termination date were the Expiration Date, and the Fixed Rent and
Security Deposit paid by Lessee upon the execution of this Lease shall be
refunded by Lessor to Lessee. Lessee hereby agrees that in the event it
exercises it right to terminate this Lease, then in such event, Lessee hereby
agrees that Lessee's right to terminate this Lease shall be its sole and
exclusive remedy. Lessor and Lessee agree that this Section 8.02.C. is an
express provision to the contrary as to the time when Lessor shall deliver
possession of the Demised Premises.
C. Notwithstanding the foregoing and except for Lessee Delays, in the event
that Lessor's Lobby Renovation Work (as hereinafter defined) is not
substantially complete June 1, 2005 (the "Lobby Renovation Completion Date"),
then in such event, and in lieu of any other remedies at law or in equity,
Lessee shall be entitled to a credit against Fixed Rent in the amount of: (i)
One Thousand, One Hundred and Thirty-Four and 17/100 ($1,134.17) Dollars for
each and every day after the Lobby Renovation Completion Date up to June 30,
2005 until Lessor's Lobby Renovation Work is substantially complete as and for
liquidated damages; (ii) Two Thousand, Two Hundred and Sixty-Eight and 34/100
($2,268.34) Dollars for each and every day after July 1, 2005 up to July 31,
2005 until Lessor's Lobby Renovation Work is substantially complete as and for
liquidated damages; (iii) Three Thousand, Four Hundred and Two and 51/100
($3,402.51) Dollars for each and every day after August 1, 2005 up to August 31,
2005 until Lessor's Lobby Renovation Work is substantially complete as and for
liquidated damages; and (iv) Four Thousand, Five Hundred and Thirty-Six and
68/100 ($4,536.68) Dollars for each and every day after September 1, 2005 until
Lessor's Lobby Renovation Work is substantially complete as and for liquidated
damages (hereinafter referred to collectively as the "Rent Credit").
SECTION 5.03. The provisions of this Article shall be considered an express
provision to the contrary pursuant to New York Real Property Law Section 223-(a)
governing delivery of possession of the Demised Premises and any law providing
for such a contingency in the absence of such express agreement now or hereafter
enacted shall have no application is such case to the extent inconsistent with
this Lease.
ARTICLE 6- UTILITIES, CLEANING, ETC.
SECTION 6.01.A. During the Term hereof, Lessor shall furnish to Lessee,
during Normal Working Hours (as hereinafter defined: (i) necessary elevator
facilities; (ii) heat to the Demised Premises when and as required by law; (iii)
water for ordinary lavatory purposes for the Demised Premises, but if Lessee
uses or consumes water for any other purposes or in unusual quantities (of which
fact Lessor shall be the sole judge), Lessor may install a water meter at
Lessee's expense in good working order and repair to register such water
consumption and Lessee shall pay for water consumed as shown on said meter as
Additional Rent as and when bills are rendered; (iv) air conditioning and/or
cooling for the Demised Premises through the Building's air conditioning and/or
cooling system (the "Building's AC System"); (v) ventilation for the Demised
Premises; (vi) electricity for Building lighting and normal Building equipment
and other incidental equipment (hereinafter collectively referred to as the
"Utility Service".
B. Except as otherwise specifically provided for in this Lease, and
notwithstanding the provisions of Section 6.01.A. above, Lessor represents and
warrants that Lessee shall have access (by elevator) to the Demised Premises
Twenty-Four (24) hours a day, Seven (7) days a week.
C. During the Term hereof, Lessor shall also provide concierge service in
the Building Twenty-Four (24) hours a day, Seven (7) days a week.
D.1. The Building's AC System shall be capable of supplying hot and cool
air to the point of distribution within the Demised Premises as follows: (i)
Forty-Five Thousand (45,000) cubic feet per minute at 57 degrees F for cooling
from AHU#9 located in the penthouse and chilled water that feeds individual
perimeter fan coils that total Ten Thousand, Four Hundred and Twenty (10,420)
cubic feet per minute and Twelve Thousand (12,000) cubic feet per minute to the
Seventh (7th) floor atrium and center areas; and (ii) Forty-Five Thousand
(45,000) cubic feet per minute at 62-64 degrees F for heat.
2. If due to use of the Demised Premises in a manner exceeding the
aforementioned occupancy and electrical load criteria, or due to rearrangement
of partitioning after the initial preparation of the Demised Premises,
interference with normal operation of the Building's AC System servicing the
Demised Premises results, necessitating changes in the Building's AC System
servicing the Demised Premises, such changes shall be made by Lessor upon
written notice to Lessee and Lessee's sole cost and expense. Lessee agrees to
keep all windows closed, and to lower and close window coverings when necessary
because of the sun's position whenever the said air conditioning system is in
operation, and Lessee agrees at all times to cooperate fully with Lessor and to
abide by all the regulations and requirements which Lessor may prescribe for the
proper functioning and protection of the said air conditioning system. Lessor,
throughout the Term, shall have free and unrestricted access to any and all air
conditioning facilities in the Demised Premises.
E. It is agreed and understood that Lessee is responsible for designing and
building the heating, air conditioning and ventilating distribution system
within the Demised Premises (the "HVAC Distribution System") and that Lessor
makes no representation that the HVAC Distribution System will be able to comply
with the foregoing specifications, provided, however, that Lessor represents
that the Building's AC System will be capable of delivering the required
performance specifications to Lessee's point of distribution within the Demised
Premises. If due to use of the Demised Premises in a manner exceeding the
aforementioned occupancy and electrical load criteria, or due to rearrangement
of partitioning of the Demised Premises by reason of Lessee's Work, or the HVAC
Distribution System, interference with normal operation of the Building's AC
System in the Demised Premises results, necessitating changes in the Building's
AC System servicing the Demised Premises, such changes shall be made by Lessee
at its sole cost and expense.
SECTION 6.02. During the Term hereof and any Renewal Term, Lessor shall
furnish to Lessee cleaning services for the Demised Premises, Monday through
Friday, in accordance with the Cleaning Specifications annexed hereto as EXHIBIT
"D."
SECTION 6.03.A. If Lessee requests air cooling, heat or ventilation in the
Demised Premises outside Normal Working Hours (the "Overtime Services"), Lessee
agrees to pay to Lessor the Overtime Charge (as hereinafter defined) to cover
Lessor's expenses for providing such Overtime Services. Except as otherwise
specifically provided for in the Lease, Lessor agrees that Electric Service
shall be furnished to the Demised Premises in accordance with the provisions of
Section 6.04 of this Lease twenty-four (24) hours a day, seven (7) days a week.
B.1 Lessor shall furnish such Overtime Services to Lessee provided that (i)
Lessee pays to Lessor as Additional Rent the hourly Overtime Charges (as
hereinafter defined) for each hour that Lessee requests Overtime Services, which
Overtime Charges will be billed to Lessee along with Lessee's next monthly
installment of Fixed Rent if such service shall have been furnished to Lessee
prior to the fifteenth (15th) day of the month or along with the subsequent
monthly installment of Fixed Rent if such service shall have been furnished to
Lessee after the fifteenth (15th) day of the month, (ii) that Lessee's request
shall be received by Lessor by not later than 2:00 P.M. on the day for which
after hours service is requested (and by not later than 2:00 P.M. on the day
preceding any requested before-hours service), and (iii) the Building's AC
system is not then producing chilled water for future. Notwithstanding anything
contained to the contrary in this Article 6, Lessee shall not be required to pay
Overtime Charges for intermittent use of the Demised Premises outside Normal
Working Hours, unless such use shall be on a scale and frequency so as to
constitute the regular operation of Lessee's business outside Normal Working
Hours. In no event, however, shall Lessor be obligated to supply heating or air
conditioning outside of Normal Working Hours unless Lessee shall request and pay
for the same as provided in this Article 6. In the event that Lessee and any
other tenant in the Building shall request Overtime Services, then, to the
extent that the Building Equipment permits same, Lessee and such other tenants
shall pay their proportionate share of the Overtime Charges.
2. As used herein, the "Overtime Charges" shall be an amount equal to the
sum of: (i) One Hundred and 00/100 ($100.00) Dollars and (ii) the Utility
Consumption Charges (as hereinafter defined). As used herein, the "Utility
Consumption Charges" shall be determined by adding Lessor's actual cost of
providing all electric service, natural gas service and/or oil consumed in the
Building, as the case may be, during the month in which such Overtime Service is
requested and dividing that total amount by the total number of Normal Working
Hours during the month in which such Overtime Service is requested.
3. Lessee agrees that the Overtime Charges, may from time to time, be
increased by Lessor, with not less than thirty (30) days prior written notice to
Lessee, if the rates at which Lessor purchases electrical energy from the public
utility corporation supplying electrical current to the Building of which the
Demised Premises are a part shall be increased, or any tax is imposed upon
Lessor's receipt from the sale or resale of electrical energy by any Federal,
State or Municipal Authority, or any charges incurred or taxes payable by Lessor
in connection therewith shall be increased. The Overtime Charges shall be
increased by an amount equal to the product of the respective hourly rate times
the percentage increase in the rates at which Lessor purchases electrical energy
from the public utility corporation as aforesaid.
SECTION 6.04.A. During the Term hereof, or any Renewal Term, Lessor shall
also provided Lessee with the necessary facilities to furnish electricity
("Electric Service") to the Demised Premises, including any supplemental
heating, ventilating and air conditioning systems.
B. Lessee agrees that it shall purchase or receive such Electric Service
directly from Lessor and to pay directly to Lessor all charges for Electric
Service rendered or supplied to the Demised Premises throughout the Term hereof,
or any Renewal Term.
C. Lessee's consumption of Electric Service shall be measured by means of
separate flow meters (hereinafter referred to as the "Meters") installed by
Lessee as part of Lessee's Work, and Lessee shall pay, during the entire Term of
this Lease, or any Renewal Term, all costs and expenses including the payments
of any taxes and/or penalties in connection therewith for all Electric Service
used, consumed or provided to the Demised Premises, including electricity for
any auxiliary heating, ventilating and air conditioning systems servicing the
Demised Premises. All such costs and expenses for Electric Service shall be at
the same rates that the utility company servicing the Building is charging
Lessor for consumption of electricity in the Building.
D. Lessee shall pay for all Electric Service consumed, used or provided to
the Demised Premises as hereinabove provided within twenty (20) days after
rendition of a bill for same by Lessor (the "Utility Statement"). Lessor shall
bill Lessee at Lessor's cost for all Electric Service and there shall be no fee
payable to Lessor to read the Meters and prepare the Utility Statement. All
Electric Service billed by Lessor to Lessee shall be deemed Additional Rent.
Each Utility Statement shall be conclusive and binding upon Lessee unless within
thirty (30) days after receipt of such Utility Bill Lessee shall notify Lessor
that it disputes the reasonableness or correctness of the Utility Statement,
specifying the respects in which the Utility Statement is claimed to be
unreasonable or incorrect. Pending the determination of such dispute by
agreement or otherwise, Lessee shall pay for Electric Service in accordance with
the applicable Utility Statement, and such payment will be without prejudice to
Lessee's position.
E. Lessee shall make no substantial alterations or additions to the initial
lighting, electrical appliances or office equipment if the connected electrical
load, when combined with the load of all lighting fixtures and all occupancy
factors (excluding any supplemental HVAC system installed by Lessee in the
Demised Premises as part of Lessee's Work) exceeds seven and one-half (7.5)
watts of connected per square foot of installed ceiling area, without first
obtaining written consent from Lessor in each instance. Lessor warrants that the
electrical facilities servicing the Demised Premises are in good working order
and can accommodate a normal office installation with associated office
machinery and equipment, provided, however, that the connected electrical load
(excluding any supplemental HVAC system installed by Lessee in the Demised
Premises as part of Lessee's Work) , when combined with the load of all lighting
fixtures and all occupancy factors does not exceed seven (7.5) watts of
connected load per square foot of installed ceiling area. Lessee agrees that at
all times its use of Electric Service shall not exceed the capacity or overload
any of the central and appurtenant installations for Electric Service including,
but not limited to all wires, feeders, risers, electrical boxes, switches,
outlets, connections, and cables located in the Property, Building, or Demised
Premises or any other mechanical equipment spaces located therein. Lessee's use
of Electric Service shall not interfere with the use thereof by other occupants
of the Property, or Building and shall be of such a nature, as determined by
Lessor in its reasonable judgment and discretion, so as not cause permanent
damage or injury to the Demised Premises or the Building of which the Demised
Premises are a part, or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense, or interfere
with or disturb other tenants or occupants.
SECTION 6.05.A. Provided that Lessee substantially complies with the
provisions of this Section 6.05, Lessee shall have the right, at its sole cost
and expense, to retain an independent engineering firm or electrical contractor
("Lessee's Engineers"), to review supporting data and/or documentation for any
portion of the Utility Statement that Lessee disputes. If Lessee fails to
satisfy substantially all of the conditions contained in this Section 6.05, then
in such event, Lessee's rights as provided herein with respect to that
particular Utility Statement shall be deemed waived.
B. Lessee acknowledges and agrees that any records reviewed by it shall
constitute confidential information of Lessor which shall not be disclosed to
anyone other than the Lessee's Engineers and the principals of Lessee who
receive the results of the review and disclosure or dissemination of such
information shall be deemed a material breach of this Lease and Lessor shall be
entitled to all its remedies at law or in equity.
C. In the event that Lessee's Engineers find an error in the amount of
Electric Service consumed by Lessee in the Demised Premises as stated in the
Utility Statement (hereinafter referred to as "Electric Consumption"), such
error shall be: (i) promptly corrected in the event that Lessor agrees with
Lessee's Engineers, or (ii) resolved by agreement between Lessor and Lessee in
the event that Lessor does not agree with Lessee's Engineers. In the event that
Lessor and Lessee are unable to resolve such error, then in such event, the
error shall be determined by arbitration as provided for in this Section 6.05.
If the amount of Electric Consumption is agreed upon by Lessor and Lessee, or
found by the arbitrators, to be greater or lesser than the amount set forth in
the Utility Statement, then in such event: (i) if Lessee has overpaid its
obligations for a preceding period, the amount of such overpayment shall be
credited against Lessee's subsequent obligation to pay its Utility Statement or
Rent; or (ii) if Lessee has underpaid its obligations for a preceding period,
the amount of such underpayment shall be paid to Lessor with Lessee's next
Utility Statement or Rent.
D. In the event that Lessor and Lessee are unable to resolve a dispute
concerning the amount of Electric Consumption in the Demised Premises, then
either Lessor or Lessee (hereinafter referred to as the "Initiating Party") may
give the other party (hereinafter called the "Responding Party") a notice
designating the name and address of the arbitrator designated by the Initiating
Party to act on its behalf in the arbitration process hereinafter described (the
"Review Notice").
E. If the Initiating Party gives a Review Notice, then within twenty (20)
days after giving of such Review Notice, the Responding Party shall give notice
to Initiating Party specifying in such notice the name and address of the
arbitrator designated by the Responding Party to act on its behalf. In the event
the Responding Party shall fail to give such notice within such twenty (20) day
period, then the appointment of such arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where two arbitrators are appointed hereunder and the parties are unable to
agree to such appointment. The two arbitrators so chosen shall meet within
thirty (30) days after the second arbitrator is appointed and shall exchange
sealed envelopes each containing such arbitrator's written determination of the
amount of Electric Consumption. The amount of the Electric Consumption specified
by Lessor's arbitrator shall be called the "Lessor's Submitted Value" and the
amount of Electric Consumption specified by Lessee's arbitrator shall be called
the "Lessee's Submitted Value". Copies of such written determinations shall
promptly be sent to both Lessor and Lessee. Any failure of either such
arbitrator to meet and exchange such determinations shall be acceptance of the
other party's arbitrator's determination as to the Electric Consumption, if, and
only if, such failure persists for five (5) days after notice to the party for
whom such arbitrator is acting, and, provided that such five (5) day period
shall be extended by reason of any Unavoidable Delay. If the higher
determination of the Electric Consumption for the Demised Premises is not more
than one hundred and five (105%) percent of the lower determination of the
Electric Consumption, then the Electric Consumption for the Demised Premises
shall be deemed to be the average of the two determinations. If, however, the
higher determination is more than one hundred and five (105%) percent of the
lower determination, then within ten (10) days of the date the arbitrators
submitted their respective Electric Consumption determinations, the two
arbitrators shall appoint a third arbitrator. In the event of their being unable
to agree upon such appointment within ten (10) days after the exchange of the
sealed envelopes, the third arbitrator shall be selected by the parties
themselves if they can agree thereon within a further period of ten (10) days.
If the parties do not so agree, then either party, on behalf of both and on
notice to the other, may request such an appointment by the American Arbitration
Association (or any successor organization) in accordance with its rules then
prevailing or if the American Arbitration Association (or any successor
organization) shall fail to appoint said third arbitrator within fifteen (15)
days after such request is made, then either party may apply for such
appointment, on notice to the other, to the President of the Westchester County
Bar Association (who may consult with the Chairman of the Real Property Law
Committee of the Westchester County Bar Association). Within ten (10) days after
the appointment of such third arbitrator, the Lessor's arbitrator shall submit
Lessor's Submitted Value to such third arbitrator and the Lessee's arbitrator
shall submit Lessee's Submitted Value to such third arbitrator. Such third
arbitrator shall, within thirty (30) days after the end of such fifteen (15) day
period, make his own determination of the Electric Consumption in the Demised
Premises, and send copies of his determination promptly to both Lessor and
Lessee specifying whether Lessor's Submitted Value or Lessee's Submitted Value
was closer to the determination by such third arbitrator of the Electric
Consumption in the Demised Premises. Whichever of Lessor's Submitted Value or
Lessee's Submitted Value shall be closer to the determination by such third
arbitrator shall conclusively be deemed to be the Electric Consumption in the
Demised Premises.
F. In no event shall the arbitrators enlarge upon, or alter or amend, this
Lease or Lessor's or Lessee's rights as provided in this Lease, it being
understood that the sole issue for determination by the arbitrators shall be the
single issue of fact of the Electric Consumption in the Demised Premises. The
arbitrators shall be licensed engineers or electrical contractors who are
disinterested and are currently practicing in the Westchester County, New York
area with at least ten (10) years experience in evaluating and auditing electric
consumption.
G. Except as otherwise provided in the following sentence, the fees and
expenses of an arbitration proceeding shall be borne by the parties equally. The
fees of respective counsel engaged by the parties the fees and expenses of
expert witnesses and other witnesses called and the cost of transcripts shall be
borne by the parties engaging such counsel or calling such witness or ordering
such transcripts.
SECTION 6.06. Lessor reserves the right to stop, interrupt and/or suspend
Utility Service and/or Electric Service when necessary by reason of accident or
for repairs, alterations, replacements or improvements necessary or desirable in
the judgement of Lessor for as long as may be reasonably required by reason
thereof. The repairs, alterations, replacements or improvements shall be done
with a minimum of inconvenience to Lessee and upon reasonable notice to Lessee
(except that no notice shall be required in the event of an emergency) and
Lessor shall pursue same with due diligence.
SECTION 6.07. The Lessor shall in no way be liable for any loss, damage, or
expense which Lessee may incur as a result of the change, at any time, of the
character or quality of Electric Service or Utility Service or any failure of or
defect in Electric Service or Utility Service by reason of any public or private
utility company then supplying such service to the Property, Building or the
Demised Premises and Lessee agrees to hold the Lessor harmless and to indemnify
it from and against any loss, liability or damage in connection therewith
resulting from Lessee's negligent or wilful acts or omissions. This indemnity
shall survive the expiration or other termination of this Lease.
ARTICLE 7- REPAIR AND MAINTENANCE
SECTION 7.01.A. Subject to the provisions of Section 7.02 hereof, Lessee
shall, during the Term of this Lease and any Renewal Term, at Lessee's sole cost
and expense, take good care of, maintain and make all repairs, (other than
structural) in the Demised Premises, and the fixtures and equipment therein and
appurtenances thereto, including but not limited to, internal doors and
entrances, door checks, internal signs, floor covering, interior walls, columns
and partitions; and lighting, heating, hot water, plumbing and sewerage
facilities located within the Demised Premises and serving only the Demised
Premises, the portion of the sprinkler system and sprinkler heads serving only
the Demised Premises; and supplemental air conditioning units, if any, located
within the Demised Premises and serving only the Demised Premises.
B. If Lessee refuses or neglects to clean, maintain or make repairs or
otherwise fails to perform any of Lessee's repairs or maintenance obligations
hereunder, Lessor shall have the right, but shall not be obligated, to make such
repairs or perform on behalf of and for the account of Lessee. All sums so paid
by Lessor in connection with the payment or performance by it or any of the
obligations of Lessee hereunder and all actual and reasonable costs, expenses
and disbursements paid in connection therewith or enforcing or endeavoring to
enforce any right under or in connection with this Lease, or pursuant to law,
together with interest thereon at the maximum legal rate from the respective
dates of the making of such payment, shall constitute Additional Rent payable by
Lessee under this Lease and shall be paid by Lessee to Lessor upon demand by
Lessor. The provisions of this Section shall survive the expiration or other
termination of this Lease.
SECTION 7.02. Except to the extent caused by the acts or omissions of
Lessee, or Lessee's agents, contractors, subcontractors, employees, or invitees,
Lessor shall be required to make all necessary structural repairs to the Demised
Premises and/or Building, repairs to the Building Equipment (as hereinafter
defined) and for damage caused by a casualty or Lessor's negligent acts,
excluding Lessee's property. Lessor shall during the Term of this Lease and any
Renewal Term, operate, maintain and repair all common areas and other facilities
in or about the Property and/or the Building, exclusive of interior doors,
interior door frames, interior door checks, interior windows and interior window
frames. Lessor shall construct, maintain and operate the common areas of the
Building and Property as a first class office building in Westchester County,
New York, and Lessor shall have full right and authority to employ and discharge
all personnel with respect thereto. If Lessor shall designate an employee or
lessee parking area or areas, Lessee and its employees shall use only such areas
for parking and Lessee shall cooperate fully with Lessor in enforcing this
covenant.
SECTION 7.03. "Repairs" as used herein shall mean all repairs,
replacements, renewals, alterations, additions and betterments. All contracts
between Lessee and others for installations, maintenance, and repairs and
alterations involving the Demised Premises, including maintenance agreements,
shall be subject to the prior written approval of Lessor, not to be unreasonably
withheld or delayed.
SECTION 7.04. Lessor shall not be required to make any repairs or
replacements to the common areas occasioned by the act or negligence of Lessee,
its agents, employees, invitees, customers, licensees, or contractors, except to
the extent that Lessor is reimbursed therefor under any policy of insurance
permitting waiver of liability and containing a waiver of subrogation, except as
otherwise provided in this Article and Article 12 of this Lease.
ARTICLE 8- LESSEE'S WORK; ALTERATION FUND; SUPPLEMENTAL ALTERATION FUND
SECTION 8.01. Lessee acknowledges that Lessor shall have no obligation
whatsoever to perform any build-out or similar work to Demised Premises, and
Lessee agrees to accept same in "AS IS" physical order and condition on the
respective commencement dates and without any representation or warranty,
express or implied, in fact or by law, by Lessor, and without recourse to
Lessor, as to the nature, condition or usability thereof or as to the use or
occupancy which may be made thereof.
SECTION 8.02.A. Following the Commencement Date, Lessee shall build-out and
fully equip with all trade and operating fixtures and equipment, plumbing,
lighting and other fixtures and equipment, furniture, furnishings, floor
covering, and any and all other items necessary for the proper operation of
Lessee's business in the Demised Premises ("Lessee's Work"). All fixtures and
equipment permanently affixed to the Demised Premises in connection with
Lessee's Work shall not be subject to liens, conditional sales contracts,
security agreements or chattel mortgages. Lessee shall complete or cause to be
completed all of Lessee's Work required on Lessee's part to be performed in and
at the Demised Premises under this Lease pursuant to Lessor's Standard
Requirements For Alterations To Be Performed By Lessees,' annexed hereto as
EXHIBIT "G."
B.1. Lessee agrees that Lessor's designated general contractor shall
perform the Demolition Portion (as hereinafter defined) of Lessee's Work only,
provided that such general contractor can perform the same within the time frame
reasonably requested by Lessee. As used herein "Demolition Portion" shall mean
the demolition of the entire Demised Premises, including, but not limited to;
(x) removal of all high voltage and low voltage electric wires, conduits,
sockets, transformers, etc.; (y) the requirements of all Governmental
Authorities having jurisdiction over Lessee's Work; and (z) carting away all
debris form the Demised Premises, Building and/or Property, as the case may be.
The cost of the Demolition Portion of Lessee's Work performed by Lessor shall be
at competitive rates and mutually agreed upon by Robert P. Weisz, on behalf of
Lessor, and either Peter May or Nelson Peltz, on behalf of Lessee.
2. Lessee hereby agrees that Lessor shall be entitled to a supervision fee
equal to Sixty Thousand and 00/100 ($60,000.00) Dollars to supervise and
coordinate the Base Building Portion (as hereinafter defined) of Lessee's Work
("Lessor's Supervision Fee"), provided, however, that Lessee agrees to use one
of Lessor's recommended subcontractors for the heating, ventilating and air
conditioning, electrical, sprinkler and fire alarm portion of Lessee's Work as
more particularly set forth on EXHIBIT "H" annexed hereto and made a part
hereof, provided that the recommended sub contractors can perform such work
within a time frame reasonably requested by Lessee and are competitively priced.
Lessor's Supervision Fee shall be payable upon substantial completion of that
portion of Lessee's Work giving rise to Lessor's Supervision Fee as Additional
Rent. Any and all supervision and/or coordination by Lessor of Lessee's Work
shall in no way obligate Lessor in any manner whatsoever in respect to the
finished product designed and/or constructed by Lessee. Any deficiency in design
or construction in Lessee's Work, shall be solely the responsibility of Lessee.
Except for Lessor's Supervision Fee, Lessor agrees not to charge Lessee for
security persons, hoists, freight elevators, or access to the Building's loading
docks, or moving into the Demised Premises during Normal Working Hours. Lessee
agrees that it shall be responsible for payment of all Electric Service used
and/or consumed in the Demised Premises during Lessee's Work in the amount of
Twelve Thousand, One Hundred and Thirty-Six and 67/100 ($12,136.67) Dollars per
month or portion thereof, payable in advance on the first (1st) day of each
month commencing on the Commencement Date. As used herein, "Base Building
Portion" shall mean all portions of Lessee's Work, other than the finishes,
cabinetry, wall coverings and flooring. In the event that Lessee requires Lessor
to provide supervision and/or construction management fees for other than the
Base Building Portion of Lessee's Work, Lessee agrees to pay Lessor its
reasonable and customary fee to provide such services to other tenants in the
Building.
C. All construction and transportation of construction material in
connection with the performance of Lessee's Work, shall be performed only by
contractors and/or subcontractors having collective bargaining agreements with
unions affiliated with the Building and Construction Trades Department of the
AFL-CIO. Thirty (30) days prior to commencement of Lessee's Work, Lessee shall
provide Lessor with a list of names of the general contractor and subcontractors
for submission by the holder of the Mortgage to the local Building Trades
Council for verification as to their current status with the Building Trades
Department. All construction contracts in connection with Lessee's Work must
require that the contractor and all subcontractors affirmatively agree to pay
prevailing wages and fringe benefits to the appropriate employee benefit plan in
accordance with the collective bargaining agreement in force on the construction
site.
SECTION 8.03.A.1. Subject to the provisions of this Section 8.03, Lessor
shall contribute an amount not to exceed Two Million, One Hundred and Eighteen
Thousand, Four Hundred and 00/100 ($2,118,400.00) Dollars towards the cost of
the performance of Lessee's Work, including fees of architects, engineers,
expediters, consultants and other soft costs incurred by Lessee in connection
with the performance of Lessee's Work (the "Alteration Fund").
2. In addition to the Alteration Fund, Lessor agrees to provide Lessee with
an additional sum not to exceed One Million, Fifty-Nine Thousand, Two Hundred
and 00/100 ($1,059,200.00) Dollars (the "Supplemental Alteration Fund") towards
the cost of the performance of Lessee's Work, exclusive of fees of architects,
engineers, expediters, consultants and other soft costs incurred by Lessee in
connection with the performance of the Lessee's Work.
B. Lessor shall make Proportionate Disbursements (as hereinafter defined)
from Alteration Fund and Supplemental Alteration Fund, as the case may be, to
Lessee from time to time, within thirty (30) days after receipt of the items set
forth in Section 8.03.C. hereof, provided that such request is received by the
Lessor by the tenth (10th) day of the calendar month in which Lessor receives
such request, and further provided that on the date of a request and on the date
of disbursement from the respective alteration fund, no Event of Default shall
have occurred or be continuing. Disbursements from the Alteration Fund and
Supplemental Alteration Fund, shall not be made more frequently than monthly,
and shall be in an amount equal to the aggregate amounts theretofore paid (as
certified by Lessee's chief financial officer and Lessee's independent licensed
architect) to Lessee's contractors, subcontractors and materialman which have
not been the subject of previous disbursement from the Alteration Fund and
Supplemental Alteration Fund, as the case may be. As used herein, "Proportionate
Disbursement" shall mean fraction, the numerator of which is the amount
requested from the Alteration Fund and Supplemental Alteration Fund, as the case
may be, and the denominator of which is the total cost of Lessee's Work.
C. Lessor's obligation to make disbursements from the respective alteration
funds shall be subject to receipt of: (a) a request for such disbursement from
the specified fund from Lessee signed by the chief financial officer of Lessee,
together with the certification required by Section 8.03.C. hereof; (b) copies
of all receipts, invoices and bills for the work completed and materials
furnished in connection with Lessee's Work and incorporated into the Demised
Premises; (c) copies of all contracts (to the extent not already given to
Lessor), work orders, change orders and other documents relating to the work or
materials; (d) a certificate of Lessee's independent licensed architect stating
(i) that, in his opinion, the portion of the Lessee's Work theretofore completed
and for which the disbursement is requested was performed in a good and
workmanlike manner in accordance with the final detailed plans and
specifications for Lessee's Work as approved by Lessor; (ii) the percentage of
completion of Lessee's Work as of the date of such certificate, and (iii) the
estimated total cost to complete the performance of Lessee's Work; and (e) lien
waivers, to the extent permitted by law, from each contractor, subcontractor and
materialmen who performed work in connection with the Lessee's Work to the
extent of the amount theretofore paid to such contractor, subcontractor or
materialman.
D. In no event shall the aggregate amount paid by Lessor to Lessee under
this Section 8.03 exceed the amount of the Alteration Fund and Supplemental
Alteration Fund, as the case may be. Upon the disbursement of the entire
Alteration Fund and Supplemental Alteration Fund, as the case may be, Lessor
shall have no further obligation or liability whatsoever to Lessee for further
disbursement of any portion of the Alteration Fund and Supplemental Alteration
Fund, as the case may be, to Lessee. It is expressly understood and agreed that
Lessee shall complete at its sole cost and expense, Lessee's Work, whether or
not the Alteration Fund and Supplemental Alteration Fund, as the case may be, is
sufficient to fund such completion. Any costs to complete Lessee's Work in
excess of the Alteration Fund shall be the sole responsibility and obligation of
Lessee.
E. Within forty-five (45) days after completion of the Lessee's Work,
Lessee shall deliver to Lessor final waivers of lien from all contractors,
subcontractors and materialmen involved in performance of the Lessee's Work and
supply of material furnished in connection therewith, and a certificate from
Lessee's independent licensed architect certifying that (i) in his opinion the
Lessee's Work has been performed in a good and workmanlike manner and completed
in accordance with the final detailed plans and specifications for such Lessee's
Work as approved by the Lessor, and (ii) all contractors, subcontractors and
materialmen have been paid for the Lessee's Work and materials furnished through
such date.
F. Prior to the commencement of the Lessee's Work, (i) Lessee shall provide
Lessor with copies of all contracts with contractors, subcontractors who will be
performing the Lessee's Work, and (ii) Lessor shall approve (which approval
shall not be unreasonably withheld) the schedule of payments to be made
thereunder.
G. Lessee shall maintain comprehensive records and copies of all plans,
specifications, budgets and other appropriate documentation in connection with
any and all Lessee's Work, copies of which shall be furnished to Lessor upon
demand.
H. Lessor hereby acknowledges that Lessee may elect, in its sole
discretion, to use all or any portion of the Supplemental Alteration Fund,
provided, however, that Lessee shall notify Lessor in writing on or before
November 15, 2005, time being of the essence with respect to said date, as to
what portion of the Supplemental Alteration Fund that Lessee intends to use.
Lessor hereby agrees that on the Rent Commencement Date, to the extent that
Lessee does not use all of the Supplemental Alteration Fund for Lessee's Work
(the portion of the Supplemental Alteration Fund not being used hereinafter
called the "Unused Supplemental Alteration Fund"), then in such event, the Fixed
Rent provided for in Section 2.01 of this Lease shall be reduced each year by an
amount equal to the product of: (i) the Unused Supplemental Alteration Fund; and
(ii) No Dollars and 1384/10000 ($0.1384) Dollars (the "Annual Alteration
Credit"). Lessee hereby acknowledges and agrees that from and after the Rent
Commencement Date, Lessee shall not be entitled to the Unused Supplemental
Alteration Fund.
SECTION 8.04. Other than as specifically provided for in Section 8.03
hereof, Lessee shall not do any construction, work or alterations to the Demised
Premises, nor shall Lessee install any items other than Lessee's trade fixtures
without first: (1) obtaining Lessor's written consent, which consent shall not
be unreasonably withheld, conditioned or delayed, and (2) complying with all of
the terms, covenants and conditions contained in Lessor's Standard Requirements
For Alterations To Be Performed by Lessees', annexed hereto as EXHIBIT "G," as
may be amended from time to time.
ARTICLE 9- COMPLIANCE WITH LAWS
SECTION 9.01. Lessor represents that the Demised Premises, the Building and
Property will comply with all Legal Requirements, Environmental Laws and
Insurance Requirements as of the Commencement Date, provided, however, that
Lessor shall not be required to make any modifications or alterations to the
Demised Premises, Building and/or Property required by reason of Lessee's Work.
SECTION 9.02. Throughout the Term of this Lease, Lessee shall promptly
comply with all Legal Requirements, Environmental Laws and Insurance
Requirements, with respect to the Demised Premises, whether or not such
compliance involves structural repairs or changes or be required on account of
any particular use to which the Demised Premises, or any part, may be put by
Lessee, other than general office use, and whether or not any such Legal
Requirements, Environmental Laws, or Insurance Requirements be of a kind not now
within the contemplation of the parties hereto. Compliance by Lessee with Legal
Requirements, Environmental Laws, and Insurance Requirements shall be at
Lessee's sole cost and expense. Lessee shall not contest the application or
validity of any such Legal Requirements, Environmental Laws, or Insurance
Requirements without the prior written consent of Lessor in each such instance,
which consent shall not be unreasonably withheld, conditioned or delayed,
provided, however, that (i) such contest shall not result in Lessor being in
default under any Superior Mortgages or Leases; (ii) does not impose any civil
or criminal liability on Lessor's officers, directors, shareholders or partners;
(iii) Lessee agrees to pay any and all fines and/or penalties incurred, assessed
or levied in connection with such contest; and (iv) Lessee shall and does hereby
indemnify and hold harmless Lessor, and Lessor's agents, officers, directors,
and employees, from and against any and all loss, liability, fines, suits,
claims, obligations, damages, penalties, demands and actions, and costs and
reasonable expenses of any kind or nature (including reasonable architects' and
attorneys' fees) due to or arising out of such contest. Any repair or change
required under this Section shall be deemed a repair for the purposes of Article
7. With respect to actions necessary to comply with Legal Requirements,
Insurance Requirements and Environmental Laws which due to their nature, can
only be taken by Lessor, Lessor, at Lessee's expense, will cooperate with Lessee
in facilitating such compliance.
ARTICLE 10- RIGHTS RESERVED TO LESSOR
SECTION 10.01. Lessee shall permit Lessor, Lessor's agents, and its
invitees to enter the Demised Premises, or any part thereof, at all reasonable
times provided same does not unreasonably interfere with Lessee's business and a
representative of Lessee is present for the purposes of (a) inspecting the same,
(b) curing Events of Default of Lessee (after Ten (10) days notice to Lessee,
except that no notice shall be required in case of an emergency), (c) showing
the same to mortgagees, appraisers, or prospective lenders, purchasers or
showing the same to prospective lessees during the last six (6) months of the
Term or any Renewal Term, (d) observing the performance by Lessee of its
obligations under this Lease, (e) performing any act or thing which Lessor may
be obligated or have the right to do under this Lease or otherwise, and (f) any
other reasonable purpose. Lessor and any providers of Utility Services or other
services shall have the right to maintain existing utility, mechanical,
electrical and other systems and to enter upon the Demised Premises to make such
repairs and alterations therein or in or to the Demised Premises as may, in the
reasonable opinion of Lessor, be deemed necessary or advisable. Lessor shall not
be liable for inconvenience, annoyance, disturbance or loss of business to
Lessee or any sublessee by reason of making any repairs or the performance of
any work, or on account of bringing materials, tools, supplies and equipment
into or through the Demised Premises during the course thereof and the
obligations of Lessee under this Lease shall not be affected thereby. The rights
provided in this Article shall be exercised so as to minimize interference with
the use and occupancy of the Demised Premises by Lessee and all work shall be
diligently prosecuted to completion by Lessor. Nothing contained in this Article
shall impose, or shall be construed to impose on Lessor any obligation to
maintain the systems referred to in this Article or the Demised Premises or
anything appurtenant thereto, or to make repairs or alterations thereof or
thereto, or to create any liability for any failure to do so.
SECTION 10.02.A. Without abatement or diminution in rent, Lessor reserves
and shall have the following additional rights: (a) to change the street address
and/or the name of the Building of which the Demised Premises are a part and/or
the Property and/or the locations of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building
and/or Property without liability to Lessee provided that access to the Demised
Premises is not adversely affected thereby, (b) to reasonably approve in writing
all sources furnishing construction work, painting, decorating, repairing,
maintenance and any other work in or about the Demised Premises, (c) to erect,
use and maintain pipes and conduits in and through the Demised Premises provided
that they are behind the walls or above the dropped ceilings, (d) to charge to
Lessee any expense including overtime cost incurred by Lessor in the event that
repairs, alterations, decorating or other work in the Demised Premises are made
or done after ordinary business hours at Lessee's request, and (e) to grant to
anyone the exclusive right to conduct any particular business or undertaking in
the Building of which the Demised Premises are a part.
B. Lessor may exercise any or all of the foregoing rights hereby reserved
to Lessor without being deemed guilty of an eviction, actual or constructive, or
disturbance or interruption of Lessee's use or possession and without being
liable in any manner toward Lessee and without limitation or abatement of rent
or other compensation, and such acts shall have no effect on this Lease.
SECTION 10.03.A. Lessor hereby agrees that it will not name the Building
for any of Lessee's herein named, or its successors by merger, sale of assets or
otherwise, direct competitors on the date that Lessor notifies Lessee in
writing, pursuant to Article 21 of this Lease, that it seeks to name the
Building. Lessee herein named shall, within ten (10) business days after receipt
of the notice from Lessor that it intends to name the Building, provide Lessor
with names of its direct competitors(time being of the essence with respect to
said ten (10) business day period). Lessee's herein named failure to notify
Lessor within the ten (10) business day period shall be deemed Lessee's consent
to Lessor to name the Building.
B. Subject to the provisions of Section 10.03.A., Lessor hereby further
agrees that it will not name the Building for any tenant who has less square
footage than Lessee and does not occupy at least one third or more of the
rentable square footage of the Building.
ARTICLE 11- INSURANCE
SECTION 11.01. A. Lessee shall obtain and keep in full force and effect
during the Term, and during any earlier period of time when Lessee or Lessee's
agents, employees, or contractors may enter the Demised Premises and/or Roof
Deck (as hereinafter defined) at its own cost and expense:
(1) commercial general liability insurance (with a contractual liability
endorsement covering the matters set forth in Article 16) having a combined
single limit of not less than Three Million ($3,000,000.00) Dollars protecting
Lessor, any Lessor's agent which is acting as a property manager for the
Property, the holder of any Mortgage, or lessor under any Superior Lease and
Lessee as insureds (and naming each such person as an insured party or as an
additional insured) against any and all claims for bodily injury, death or
property damage occurring, during the Term and during any earlier period of time
when Lessee or Lessee's agents, employees, or contractors may enter the Demised
Premises and/or Roof Deck;
(2) insurance (herein sometimes referred to as "Lessee's fire (casualty)
insurance") against loss or damage by any and all risks and hazards to Lessee's
Property (as hereinafter defined) for the full replacement value thereof
(including coverages which are currently sometimes referred to as "all risk"
with coverage written on a replacement cost basis);
(3) workers' compensation and employees liability insurance in accordance
with the laws of the State of New York and all Governmental Authorities having
jurisdiction over the Demised Premises, Roof Deck and/or the Property; and
(4) If there is a steam boiler, steam generator, or any other combustible
device, mechanism or appliance in, on, adjoining or beneath the Demised
Premises, for the exclusive use of the Lessee, Lessee shall insure and keep
insured in the name of Lessee, with the name of Lessor included as an additional
insured, at Lessee's expense a broad form boiler insurance in the amount of at
least Five Hundred Thousand ($500,000.00) Dollars. Lessee shall further insure,
at Lessor's request, against any other peril generally insured against by a
business of Lessee's type.
B. Said insurance is to be written in form and substance reasonably
satisfactory to Lessor by an insurance company, licensed to do business in the
State of New York, which shall be rated by Best's Insurance Rating Service with
at least a rating equal to A-:VIII. Lessee shall procure, maintain and place
such insurance and pay all premiums and charges therefor and upon failure to do
so Lessor may, but shall not be obligated to, procure, maintain and place such
insurance or make such payments, and in such event Lessee agrees to pay the
amount thereof plus interest at the maximum legal rate then prevailing, to
Lessor on demand as Additional Rent. If Lessee has other locations that it owns
or leases, said policy shall include an aggregate per location endorsement.
Lessee shall cause to be included in all such insurance policies (i) a provision
to the effect that the same will not be canceled except upon not less than
thirty (30) days prior written notice to the Lessor, and (ii) a provision to the
effect that the naming of any person other than Lessee as an insured shall not
obligate such person to pay any premium. Each such Lessee's fire (casualty)
insurance policy shall contain an agreement by the insurer that the act or
omission of one insured will not invalidate the policy as to any other insured.
Not less than ten (10) days prior to the Commencement Date the original
insurance policies or appropriate certificates and paid receipts therefor,
(together with a photocopy of the policy, if Lessor shall so request) shall be
deposited with Lessor. Any renewals or endorsements thereto shall also be
deposited with Lessor, not less than ten (10) days prior to the expiration date
of the policy being renewed, replaced or endorsed, to the end that said
insurance shall be in full force and effect at all times during the Term.
SECTION 11.02. Lessee agrees to use reasonable efforts to include in each
of its insurance policies (insuring the Demised Premises and Lessor's property
therein, against loss occasioned by fire or other casualty) a waiver of the
insurer's right of subrogation against the Lessor, or if such waiver should be
unobtainable or unenforceable, (a) an express agreement that such policy shall
not be invalidated if the insured waives or has waived before the casualty the
right of recovery against any party responsible for a casualty covered by the
policy, or (b) any other form of permission for the release of the other party,
or (c) the inclusion of the Lessor as an additional insured. Lessee, upon
request from Lessor from time to time, will furnish evidence of the nature of
the insurance arrangements made concerning the subject matter of this Section.
SECTION 11.03. As long as both parties' fire (casualty) insurance policies
then in force include the waiver of subrogation or agreement or permission to
release liability referred to in Section 11.02 or name the other party as an
additional insured, each party hereby waives (and agrees to cause any other
permitted occupants of the Demised Premises to execute and deliver to the other
party written instruments waiving) any right of recovery against the other
party, the holder of the Mortgage, or Superior Lease, and any servants,
employees, agents or contractors of the other party, or of any such lessor or
holder, or of any such other tenants or occupants, for any loss occasioned by
fire or other casualty, that is an insured risk under Lessee's fire (casualty)
insurance policies. In the event that at any time either party's fire (casualty)
insurance carriers shall not include such or similar provisions in the other
party's fire (casualty) insurance policies, the waivers set forth in the
foregoing sentence shall be deemed of no further force and effect. During any
period when either party fails to maintain such fire (casualty) insurance, for
the purposes of the first sentence of this Section there shall be deemed to be
in effect such fire (casualty) insurance meeting the requirements of such
sentence.
SECTION 11.04. Nothing contained in this Lease shall (i) relieve Lessee of
any liability to Lessor or to its insurance carriers which Lessee may have under
law or the provisions of this Lease in connection with any damage to the Demised
Premises by fire or other casualty; (ii) impose upon Lessor any duty to procure
or maintain any kinds of insurance or any particular amounts or limits of any
such kinds of insurance.
SECTION 11.05. Lessor shall insure the Building with all risk insurance
coverage in such amounts so as to avoid co-insurance and Lessor agrees that such
policies shall contain a waiver of subrogation in favor of Lessee.
ARTICLE 12 - DAMAGE OR DESTRUCTION
SECTION 12.01. If the Demised Premises or any part thereof shall be damaged
by fire or other casualty, Lessee shall give prompt notice thereof to Lessor and
Lessor shall proceed (subject to the provisions of this Article) with reasonable
diligence to repair or cause to be repaired such damage, including, without
limitation all Building systems located in the Demised Premises and all of
Lessee's improvements to the Demised Premises. Except as provided in Section
12.05, the Fixed Rent shall be abated proportionately to the extent that the
Demised Premises shall have been rendered Untenantable (as hereinafter defined),
such abatement to be from the date of such damage or destruction to the date the
Demised Premises shall no longer be Untenantable.
SECTION 12.02. If the Demised Premises, including, without limitation all
Building systems located in the Demised Premises and all of Lessee's
improvements to the Demised Premises shall be rendered Untenantable by fire or
other casualty, and Lessor has not terminated this Lease pursuant to Section
12.03 and Lessor has not completed the making of the required repairs and
restored and rebuilt the Demised Premises and/or access thereto within one (1)
year from the date of such damage or destruction to the condition the Demised
Premises were in on the date preceding such casualty (except for Lessee's
Property), and such additional time after such date, as shall equal the
aggregate period Lessor may have been delayed in doing so by Unavoidable Delays
or adjustment of insurance, Lessee may serve notice on Lessor of its intention
to terminate this Lease and if within thirty (30) days thereafter, Lessor shall
not have substantially completed the making of the required repairs and restored
and rebuilt the Demised Premises to the condition the Demised Premises were in
on the date preceding such casualty (except for Lessee's Property), then in such
events, this Lease shall terminate on the expiration of such thirty (30) day
period as if such termination date were the Expiration Date, and the Fixed Rent
and Additional Rent shall be apportioned as of such date of sooner termination
and any prepaid portion of Fixed Rent and Additional Rent for any period after
such date shall be refunded by Lessor to Lessee.
SECTION 12.03.A. If more than sixty (60%) percent of rentable square
footage of the Building shall be rendered Untenantable by fire or other casualty
that substantial alteration or reconstruction shall, in Lessor's reasonable
opinion, be required, then and in such events Lessor may, at its option,
terminate this Lease and the Term and estate hereby granted by giving Lessee not
less than thirty (30) days, nor more than sixty (60) days, notice of such
termination, within ninety (90) days after the date of such damage, provided,
however, that Lessor terminates the leases of all other tenants in the Building
who are similarly situated. In the event that such notice of termination shall
be given, this Lease and the Term and estate hereby granted shall terminate as
of the date provided in such notice of termination (whether or not the Term
shall have commenced) with the same effect as if that were the Expiration Date,
and the Fixed Rent and Additional Rent shall be apportioned as of such date of
sooner termination, and any prepaid portion of Fixed Rent and Additional Rent
for any period after such date shall be refunded by Lessor to Lessee.
B. If the Demised Premises shall be totally damaged or the whole or
substantially all of the Demised Premises shall be rendered untenantable by fire
or other casualty, and Lessor has not terminated this Lease as provided in
Section 12.03.A., Lessor shall notify Lessee, within ninety (90) days after such
fire or other casualty, as to the estimated period of time necessary to complete
the required repairs and restore and rebuild the Demised Premises to the
condition the Demised Premises were in on the date preceding such casualty
(except for Lessee's Property). If such Lessor's estimate exceeds one (1) year,
from the date of such casualty, or if Lessor falls to deliver such notice, then
in such events, Lessee may serve on Lessor, within thirty (30) days of its
receipt of Lessor's notice, or the expiration of the ninety (90) days after such
fire or other casualty, as the case may be, (time being of the essence with
respect thereto), notice of its intention to terminate this Lease on a date
which shall be not more than thirty (30) days from the date of Lessee's notice.
If Lessee gives notice of its intention to cancel this Lease as provided herein,
then in such events, this Lease shall terminate on the expiration of such thirty
(30) day period as if such termination date were the Expiration Date, and the
Fixed Rent and Additional Rent shall be apportioned as of such date of sooner
termination and any prepaid portion of Fixed Rent and Additional Rent for any
period after such date shall be refunded by Lessor to Lessee. Lessee's failure
to notify Lessor within the thirty (30) day period shall be deemed a waiver of
the right to terminate this Lease.
SECTION 12.04. Lessor shall not be liable for any inconvenience or
annoyance to Lessee or injury to the business of Lessee resulting in any way
from such damage by fire or other casualty or the repair thereof.
SECTION 12.05. Except as otherwise specifically provided for in Section
12.01 of this Lease, Lessee shall restore all improvements made by Lessee to the
Demised Premises, at Lessee's sole cost and expense. Nothing herein contained
shall relieve Lessee from any liability to the Lessor or to its insurers in
connection with any damage to the Property, Building or Demised Premises by fire
or other casualty if Lessee shall be legally liable in such respect to the
extent same is not covered by Lessee's insurance required to be maintained under
this Lease. Notwithstanding any of the foregoing provisions of this Article, if
by reason of some action or inaction on the part of Lessee or any of its
employees, agents, officers, directors or contractors, Lessor or the holder of
the Mortgage or Superior Lease shall be unable to collect all of the insurance
proceeds (including rent insurance proceeds) applicable to damage or destruction
of the Demised Premises by fire or other cause, then, without prejudice to any
other remedy which may be available against Lessee, the abatement of Fixed Rent
provided for in this Article shall not be effective to the extent of the
uncollected insurance proceeds.
SECTION 12.06. This Lease shall be considered an express agreement to the
contrary pursuant to New York Real Property Law Section 227 governing any case
of damage to or destruction of the Demised Premises or any part thereof by fire
or other casualty, and any law providing for such a contingency in the absence
of such express agreement, now or hereafter enacted, shall have no application
in such case to the extent inconsistent with this Lease.
SECTION 12.07. Lessee shall, at its own cost and expense, remove all of
Lessee's property from the Demised Premises as Lessor shall require in order to
repair and restore the Demised Premises and Lessor shall not be obligated to
commence repairs or restoration of the Demised Premises until such property has
been removed by Lessee from the damaged portion of the Demised Premises. Should
Lessee neglect, fail, or refuse to remove its aforesaid property within thirty
(30) days after such damage or destruction, the provisions for abatement of
Fixed Rent contained herein shall be suspended and of no force and effect
whatsoever until Lessee has completed such removal. In no event shall the Lessor
be required to repair or replace Lessee's merchandise, trade fixtures,
furniture, furnishings, inventory and equipment.
ARTICLE 13 - CURING DEFAULTS; FEES AND EXPENSES
SECTION 13.01. If Lessee shall default in the full and prompt performance
of any covenant contained herein and to be performed on Lessee's part, Lessor,
after all applicable notice and cure periods as otherwise specifically provided
for herein (except that a lesser notice appropriate to the circumstances shall
be required in case of an emergency), without being under any obligation to do
so and without thereby waiving such default may perform such covenant for the
account and at the expense of Lessee and may enter upon the Demised Premises for
any such purpose and take all action thereon as may be necessary therefor. All
sums so paid by Lessor in connection with the payment or performance by it of
any of the obligations of Lessee hereunder and all actual and reasonable costs,
expenses and disbursements paid in connection therewith or enforcing or
endeavoring to enforce any right under or in connection with this Lease, or
pursuant to law, together with interest thereon at the maximum legal rate from
the respective dates of the making of each such payment, shall constitute
Additional Rent payable by Lessee under this Lease and shall be paid by Lessee
to Lessor upon demand by Lessor. The provisions of this Section shall survive
the expiration or other termination of this Lease.
ARTICLE 14 - DEFAULT PROVISIONS
SECTION 14.01. A. If any one or more of the following events shall happen
and shall not have been cured within any applicable grace period herein
provided:
(1) if default shall be made in the due and punctual payment of Fixed Rent
or Additional Rent payable by Lessee under this Lease when and as the same shall
become due and payable, and such default shall continue for a period of ten (10)
days after written notice thereof from Lessor to Lessee (provided that no such
notice shall be required if, during the period of one (1) year immediately
preceding the date of default, there shall have been three (3) or more defaults
in the due and punctual payment of Fixed Rent or Additional Rent payable by
Lessee under this Lease when and as the same shall have been due and payable);
or
(2) if default shall be made by Lessee in performance of, or compliance
with, any of the covenants, agreements or conditions contained in this Lease and
either (i) in the case of a default or a contingency which can with due
diligence be cured within thirty (30) days, such default shall continue for a
period of thirty (30) days after written notice thereof from Lessor to Lessee,
or (ii) in the case of a default or a contingency which cannot with due
diligence be cured within thirty (30) days, Lessee shall fail, after written
notice thereof from Lessor, to proceed promptly and with all due diligence to
commence to cure the same and thereafter to prosecute the curing of such default
with all due diligence (it being intended that, in connection with a default
which is not susceptible of being cured with due diligence within thirty (30)
days the time of Lessee within which to cure the same shall be extended for such
period as may be necessary for the curing thereof with all due diligence); or
(3) if Lessee shall file a voluntary petition seeking an order or relief
under Title 11 of the United States Code or similar law of any jurisdiction
applicable to Lessee, or Lessee shall be adjudicated a debtor, bankrupt or
insolvent, or shall file any petition or answer seeking, consenting to or
acquiescing in any order for relief, reorganization, arrangement, composition,
adjustment, winding-up, liquidation, dissolution or similar relief with respect
to Lessee or its debts under the present or any future bankruptcy act or any
other present or future applicable federal, state or other statute or law, or
shall file an answer admitting or failing to deny the material allegations of a
petition against it for any such relief or shall generally not, or shall be
unable to, pay its debts as they become due or shall admit in writing in any
filing with any court or Governmental Authority its insolvency or its inability
to pay its debts as they become due, or shall make a general assignment for the
benefit of creditors or shall seek or consent or acquiesce in the appointment of
any trustee, receiver, examiner, assignee, sequestrator, custodian or liquidator
or similar official of Lessee or of all or any part of Lessee's property or if
Lessee shall take any action in furtherance of or authorizing any of the
foregoing; or if Lessee shall call a meeting of, or propose any form of
arrangement, composition, extension or adjustment with, its creditors holding a
majority in amount of Lessee's outstanding indebtedness; or
(4) if any case, proceeding or other action shall be commenced or
instituted against Lessee, seeking to adjudicate lessee a bankrupt or insolvent,
or seeking an order for relief against Lessee as debtor, or reorganization,
arrangement, composition, adjustment, winding-up, liquidation, dissolution or
similar relief with respect to Lessee or its debts under the present or any
future bankruptcy act or any other present or future applicable federal, state
or other statute or law, or seeking appointment of any trustee, receiver,
examiner, assignee, sequestrator, custodian or liquidator or similar official of
Lessee or of all or part of Lessee's property, which either (i) results in the
entry of an order for relief, adjudication of bankruptcy or insolvency or such
an appointment or the issuance or entry of any other order having similar effect
or (ii) remains undismissed for a period of ninety (90) days; or if any case,
proceeding or other action shall be commenced or instituted against Lessee
seeking issuance of a warrant of execution, attachment restraint or similar
process against Lessee or any of Lessee's property which results in the taking
or occupancy of the Demised Premises or an attempt to take or occupy the Demised
Premises which shall not have been vacated, discharged, or stayed or bonded
pending appeal within ninety (90) days after the entry thereof; or
(5) if any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted to the unexpired balance of the Term would,
by operation of law or otherwise, devolve upon or pass to any person other than
Lessee, except as is expressly permitted under Article 27, or if default shall
be made by Lessee in the performance of, or compliance with, the covenants,
agreements and conditions set forth in Article 27; or
(6) if Lessee's (other than Lessee herein named) obligations under this
Lease shall have been guaranteed by any person other than Lessee and such person
shall default in observance or performance of any term, covenant or condition to
be observed or performed by such person under the instrument or agreement
containing such guarantee; or
(7) This Paragraph Has Been Intentionally Omitted; or
(8) This Paragraph Has Been Intentionally Omitted; or
(9) if Lessee is the subject of a Chapter 11 reorganization under the
Bankruptcy Reform Act of 1978 and such reorganization is not confirmed within
eighteen (18) months from the time of filing of a voluntary or involuntary
petition thereunder (it being understood that in such event Lessee consents to
the termination of the automatic stay provisions of Section 362 of such Act);
then and in any such event (hereinafter sometimes called an "Event of Default")
Lessor may give written notice ("Termination Notice") to Lessee specifying such
Event of Default or Events of Default and stating that this Lease and the Term
shall expire and terminate on the date specified in the Termination Notice,
which shall be at least seven (7) days after the giving of the Termination
Notice, and on the date specified therein this Lease and the Term and all rights
of Lessee under this Lease shall expire and terminate, it being the intention of
the Lessor and Lessee hereby to create conditional limitations, and Lessee shall
remain liable as provided in Article 15 and in accordance with those provisions
of this Lease which are specifically stated herein to survive the expiration or
other termination of this Lease.
B. Notwithstanding the provisions of Section 14.01.A, if there shall be an
Event of Default at any time or from time to time under the provisions of
subdivision (1) of Section 14.01.A, Lessor may, in lieu of giving a Termination
Notice, at any time after the occurrence of any such Event of Default and during
the continuance thereof, institute an action for the recovery of the Fixed Rent
and/or Additional Rent in respect of which an Event of Default shall have
occurred and be continuing. Neither the commencement of any such action for the
recovery of Fixed Rent and/or Additional rent nor the prosecution thereof shall
be deemed a waiver of Lessor's right to give a Termination Notice in respect of
any such Event of Default during the continuance thereof and Lessor may,
notwithstanding the commencement and prosecution of any such action, give a
Termination Notice and terminate this Lease pursuant to Section 14.01.A at any
time during the continuance of such Event of Default.
C. If, at any time, (i) Lessee shall be comprised of two or more persons,
or (ii) Lessee's obligations under this Lease shall have been guaranteed by any
person other than Lessee, or (iii) Lessee's interest in this Lease shall have
been assigned, the word "Lessee", as used in subdivisions (4), (5) and (9) of
Section 14.01.A, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Lessee's obligations under this Lease. Any
monies received by Lessor from or on behalf of Lessee during the pendency of any
proceeding of the types referred to in said subdivisions (4), (5) and (9) of
Section 14.01.A shall be deemed paid as compensation for the use and occupation
of the Demised Premises and the acceptance of any such compensation by Lessor
shall not be deemed an acceptance of rent or a waiver on the part of Lessor of
any rights under Section 14.01.
SECTION 14.02. In the event that this Lease shall be terminated as provided
in this Article, Lessor or Lessor's agents may, immediately, or at any time
thereafter, without further notice, enter upon and re-enter the Demised Premises
and possess and repossess itself thereof, by summary proceedings, ejectment or
otherwise, and have, hold and enjoy the Demised Premises and the right to
receive all income of and from the same. No re-entry by Lessor pursuant to this
Article shall be deemed an acceptance of a surrender of this Lease nor shall it
absolve or discharge Lessee from any liability under this Lease.
SECTION 14.03. In the event that this Lease shall be terminated as provided
in this Article, Lessor may, at any time or from time to time thereafter, relet
the Demised Premises or any part thereof, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions (which may include concessions or
free rent, which shall, however, be amortized over the entire term for the
purpose of determining damages under Article 15) as Lessor may determine, to any
tenant which it may deem suitable and satisfactory and for any use and purpose
it may deem appropriate and may collect and receive the rents therefor. Lessor
shall use commercially reasonable methods in making such reletting. Lessor, at
its option, may make such repairs, alterations, additions, improvements,
decorations and other physical changes in and to the Demised Premises as Lessor
considers advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Lessee of any liability under this Lease
or otherwise affecting any such liability. Lessor shall in no way be responsible
or liable for any failure to relet the Demised Premises, or any part thereof, or
for any failure to collect any rent due upon such reletting. Except as
aforesaid, Lessor shall not in any event be required to pay Lessee (but shall
credit Lessee, to the extent set forth in Article 15, with) any sums received by
Lessor on a reletting of the Demised Premises, or any part thereof, whether or
not in excess of the rent reserved in this Lease.
SECTION 14.04. Lessee, on its own behalf and on behalf of all persons
claiming through or under Lessee including all creditors, does hereby waive any
and all rights and privileges, so far as is permitted by law, which Lessee and
all such persons might otherwise have under any present or future law, to (i)
the service of any notice of intention to re-enter or institute legal
proceedings to that end, excluding service of process, (ii) redeem the Demised
Premises, (iii) re-enter or repossess the Demised Premises, or (iv) restore the
operation of this Lease, after Lessee shall have been dispossessed by a judgment
or by warrant of any court or judge, or after any re-entry by Lessor or after
any expiration or termination of this Lease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Lease. The words "re-enter," "re-entry" and
"re-entered" as used in this Lease shall not be deemed to be restricted to their
technical legal meanings.
SECTION 14.05. In the event the Lessee shall dispute the validity or
amount, or the time or manner of payment of, any rent claimed by Lessor to be
due from Lessee under this Lease, Lessee shall nevertheless pay the same and
such payment may be without prejudice to Lessee's position if Lessee so requests
at the time of payment. If the dispute shall be finally determined in Lessee's
favor by a court of competent jurisdiction, Lessor shall within a reasonable
period of time not to exceed sixty (60) days pay Lessee the amount of Lessee's
overpayment of such rent. Lessee's failure to observe and perform the provisions
of this Section shall be deemed a default under subdivision (1) of Section
14.01.A.
ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT
SECTION 15.01. A. In the event that this Lease be terminated pursuant to
Article 14 as a result of an Event of Default on the part of the Lessee and
whether or not the Demised Premises be relet, Lessor shall be entitled to retain
all monies, if any, paid by Lessee to Lessor, whether as advance rent or
otherwise, but such monies shall be credited by Lessor against any rent due at
the time of such termination, or at Lessor's option, against any damages payable
by Lessee, and Lessor shall be entitled to recover from Lessee, and Lessee shall
pay to Lessor the following:
(a) All rent to the date upon which this Lease and the Term shall have
terminated, and
(b) All expenses reasonably incurred by Lessor in recovering possession of
the Demised Premises (including summary proceedings), restoring the Demised
Premises to good order and condition, maintaining the Demised Premises in good
order and condition while vacant, altering or otherwise preparing the same for
reletting, and in reletting the Demised Premises (including brokerage
commissions and legal expenses), the same to be paid by Lessee to Lessor on
demand, and
(c) The amount by which the rent which, but for the termination of this
Lease, would have been payable under this Lease from the date of termination to
the Expiration Date exceeds the rental and other income, if any, collected by
Lessor in respect of the Demised Premises, or any part thereof, subject
nevertheless to the provisions of Section 14.03, said amount to be due and
payable by Lessee to Lessor on the several days on which the rent reserved in
this Lease would have become due and payable for the period which otherwise
would have constituted the unexpired portion of the Term (that is to say, upon
each of such days Lessee shall pay to Lessor the amount of deficiency then
existing).
B. Whether or not Lessor shall have collected any monthly deficiencies
aforesaid, Lessor shall be entitled to recover from Lessee on demand, as and for
liquidated damages, a lump sum payment equal to the amount by which the Fixed
Rent and Additional Rent payable hereunder for the period which otherwise would
have constituted the unexpired portion of the Term (due account being taken of
amounts, if any, collected under clause [c] of Section 15.01.A, and conclusively
presuming the Additional Rent to be the same as was payable for the year
immediately preceding such termination or re-entry) exceeds the then rental
value of the Demised Premises for the same period both discounted at a rate
equal to then applicable Treasury Rate to present value. If the Demised Premises
or any part thereof be relet by Lessor for the unexpired portion of the Term, or
any part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed prima facie to be the fair and reasonable rental value for the
part or the whole of the Demised Premises so relet during the term of the
reletting. Nothing herein contained shall limit or prejudice the right of the
Lessor to prove for and obtain as damages by reason of such termination an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater or less than the amount of
liquidated damages referred to above (due account to be taken, however, of the
amounts, if any, collected under this Article 15).
SECTION 15.02. In no event shall Lessee be entitled to receive any excess
of the rental and other income collected by Lessor in respect of the Demised
Premises over the sums payable by Lessee to Lessor hereunder. In no event shall
Lessee be entitled in any suit for the collection of damages pursuant to this
Article to a credit in respect of any such rental and other income, except to
the extent that such rental and other income is allocable to the portion of the
Term in respect of which such suit is brought and is actually received by Lessor
prior to the entry of judgment in such suit.
SECTION 15.03. Separate actions may be maintained by Lessor against Lessee
from time to time to recover any damages which, at the commencement of any such
action, have then or theretofore become due and payable to Lessor under Article
14, without waiting until the end of the Term and without prejudice to Lessor's
right to collect damages thereafter.
ARTICLE 16 - INDEMNIFICATION
SECTION 16.01. Notwithstanding that joint or concurrent liability may be
imposed upon either party by statute, ordinance, rule, regulation, order or
court decision, and notwithstanding any insurance furnished by either party
pursuant hereto or otherwise, Lessee shall and does hereby indemnify and hold
Lessor and its agents, officers, directors, and employees, harmless from and
against any and all loss, liability, fines, suits, claims, obligations, damages,
penalties, demands and actions, and costs and reasonable expenses of any kind or
nature (including architects', engineers' and attorneys' fees) due to or arising
out of any of the following:
(a) any work or thing done in, on or about the Demised Premises, Building
or the Property or any part thereof or any use, possession, occupation,
condition, operation, maintenance, repair or management of the Demised Premises,
Building or the Property or any part thereof, by Lessee or anyone claiming
through or under Lessee or the respective employees, agents, licensees,
contractors, servants or sublessees of Lessee or any such person;
(b) any act or omission on the part of Lessee or any person claiming
through or under Lessee, or the respective employees, agents, licensees,
invitees, contractors, servants or sublessees of Lessee or any such person; or
(c) any accident or injury to any person (including death) or damage to
property (including loss of property) occurring in, on, or about the Demised
Premises, Building or the Property or any part thereof, due to the act or
omission by Lessee, its employees, agents, licensees, invitees, contractors or
servants.
The provisions of this Section 16.01 shall survive the expiration or
termination of this Lease. Any sums payable by Lessee to Lessor under this
Section 16.01 shall be due and payable on demand.
SECTION 16.02. Lessor and Lessor's agents, officers, directors, and
employees shall not be liable for any of the following, however caused, other
than by its negligent or wilful acts: (a) failure of any Utility Service, (b)
damage to Lessee's property on the Demised Premises caused by or resulting from
any cause whatsoever, including explosion, falling plaster, vermin, smoke,
gasoline, oil, Hazardous Materials, steam, gas electricity, earthquake,
subsidence of land, hurricane, tornado, flood, wind or similar storms or
disturbances or water, rain, ice or snow which may be upon, or leak or flow
from, any street, road, parking lot, sewer, gas main or subsurface area, or from
any part of the Property, or leakage of gasoline, oil or other substances from
pipes, pipelines, appliances, storage tanks, sewers or plumbing works in or at
the Property, or from any other place, or from the breaking of any electrical
wire or the breaking, bursting or leaking of water or Hazardous Materials from
any plumbing or sprinkler system, or any other pipe or storage tanks in, on,
under or about the Property, (c) interference with light or other incorporeal
hereditaments, and (d) loss by theft or otherwise of Lessee's Property or the
property of any person claiming through or under Lessee. Any employees of Lessor
to whom any property shall be entrusted by or on behalf of Lessee shall be
deemed to be acting as Lessee's agents with respect to such property and neither
Lessor nor Lessor's agents shall be liable for any loss or for damage to any
such property by theft or otherwise. This Section 16.02 shall not be construed
as a provision for indemnification.
SECTION 16.03. Except as otherwise provided for in this Lease, Lessor shall
and does hereby indemnify and hold harmless Lessee and Lessee's agents from and
against any and all loss, liability, fines, suits, claims, obligations, damages,
penalties, demands and actions, and costs and reasonable expenses of any kind or
nature (including architects' and attorneys' fees) due to or arising out of the
negligence or willful misconduct of Lessor, its agents, officers, directors and
employees. In case of any obligation of Lessor to indemnify Lessee pursuant to
this Section, such obligation shall be subject to and conditioned upon (x) the
receipt by Lessor of prompt written notice of the claim with respect to which
indemnification is sought and (y) Lessor's having had reasonable opportunity to
conduct the defense of such claim in such manner as it deems appropriate, with
the full cooperation of Lessee, and using counsel reasonably acceptable to
Lessor
ARTICLE 17 - MECHANIC'S AND OTHER LIENS
SECTION 17.01. If any mechanic's, laborer's or materialman's lien shall be
at any time be filed against the Demised Premises, Building or Property, or any
part thereof with respect to any work done, or caused to be done, or labor or
materials furnished, or caused to be furnished, by Lessee or anyone claiming
through or under Lessee, Lessee, within thirty (30) days after notice to Lessee
of the filing thereof, shall cause the same to be discharged of record by
payment, deposit, bond, order of a court of competent jurisdiction or otherwise.
If Lessee shall fail to cause such lien to be discharged within the period
aforesaid, then, in addition to any other right or remedy, Lessor may, but shall
not be obligated to, discharge the same by bonding proceedings, if permitted by
law (and if not so permitted, by deposit in court). Any amount so paid by
Lessor, including all costs and expenses paid by Lessor in connection therewith,
together with interest thereon at the maximum legal rate from the respective
dates of Lessor's so paying any such amount, cost or expense, shall constitute
Additional Rent payable by Lessee under this Lease and shall be paid by Lessee
to Lessor on demand.
ARTICLE 18 - CONDEMNATION
SECTION 18.01. If the whole of the Demised Premises, or such part thereof
as will render the remainder Untenantable, shall be acquired or condemned for
any public or quasi-public use or purpose, this Lease and the Term shall end as
of the date of vesting of title in the condemning authority with the same effect
as if said date were the Expiration Date. If only a part of the Demised Premises
shall be so acquired or condemned then, except as otherwise provided in this
Article, this Lease and the Term shall continue in force and effect but, from
and after the date of the vesting of title, the Rent shall be an amount which
bears the same ratio to the Rent payable immediately prior to such condemnation
pursuant to this Lease as the value of the untaken portion of the Demised
Premises (appraised after taking and repair of any damage to the Demised
Premises pursuant to this Section) bears to the value of the entire Demised
Premises immediately before the taking. The value of the Demised Premises before
and after the taking shall be determined for the purposes of this Section by an
independent licensed appraiser chosen by Lessor. If more than sixty (60%)
percent of the total area of the Building included in the Demised Premises
immediately prior to acquisition or condemnation is so acquired or condemned, or
if by reason of such acquisition or condemnation, Lessee no longer has
reasonable means of access to the Demised Premises, or more than thirty (30%)
percent of the Demised Premises occupied by Lessee herein named and any
affiliated or related assignee or subtenant of Lessee herein named (exclusive of
any portion of the Demised Premises subleased to all other tenants or occupants)
is so acquired or condemned, or more than thirty (30%) percent of the total
parking on the Property is so acquired or condemned and such parking cannot be
replaced by Lessor with alternative parking within walking distance to the
Building at no charge to Lessee, then in such events, either party, may give
notice to the other party within sixty (60) days next following the date upon
which Lessee have received notice of vesting of title, thirty (30) days notice
of termination of this Lease. Lessor will give Lessee notice of such taking or
condemnation as soon as reasonably practicable. In the event any such thirty
(30) day notice of termination is given by Lessor or Lessee, this Lease and the
Term shall terminate upon the expiration of said thirty (30) days with the same
effect as if that date were the Expiration Date. If a part of the Demised
Premises shall be so acquired or condemned, and the Term shall not be terminated
pursuant to the provisions of this Section, Lessor, at Lessor's expense, shall
restore that part of the Demised Premises not so acquired or condemned to a
self-contained unit. In the event of any termination of this Lease and the Term
pursuant to the provisions of this Section, the Rent shall be apportioned as of
the date of sooner termination and any prepaid portion of the Rent for any
period after such date shall be refunded by Lessor to Lessee, subject to the
claims, if any, of Lessor against Lessee hereunder or otherwise.
SECTION 18.02. In the event of any acquisition or condemnation of all or
part of the Demised Premises for any public or quasi-public use or purpose,
except as hereinafter provided Lessor shall be entitled to receive the entire
award for such acquisition or condemnation, other than the unamortized leasehold
improvements paid by Lessee and not reimbursed by Lessor, Lessee shall have no
claim against Lessor or the condemning authority for the value of any unexpired
portion of the Term and Lessee hereby expressly assigns to Lessor all of its
right, title and interest in and to any such award, and also agrees to execute
any and all further documents that may be required in order to facilitate the
collection thereof by Lessor. Nothing contained in this Section shall be deemed
to prevent Lessee from making a separate claim in any condemnation proceeding
for moving expenses and for the value of any Lessee's Property which would be
removable at the end of the Term pursuant to the provisions hereof, directly
against any governmental authority authorized to exercise the power of eminent
domain, provided that applicable statutes permit such awards and any award to
Lessor is not diminished or adversely affected thereby.
SECTION 18.03. The terms "condemnation" and "acquisition" as used in this
Article shall include any agreement in lieu of or in anticipation of the
exercise of the power of eminent domain between Lessor and/or any Superior
Mortgage and any governmental authority authorized to exercise the power of
eminent domain.
ARTICLE 19 - COVENANT OF QUIET ENJOYMENT
SECTION 19.01. If and so long as no Event of Default shall have occurred
and be continuing, Lessor covenants and agrees that Lessee may peaceably and
quietly enjoy the Demised Premises and Lessee's possession of the Demised
Premises will not be disturbed by Lessor, its successors and assigns, subject,
however, to the terms of this Lease (including those set forth in Sections 24.01
and 24.02), the Mortgage, Superior Lease and any and/or all other agreements and
any amendments thereto, to which this Lease is subordinated.
ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL
SECTION 20.01. In the event that Lessor shall commence any summary or other
proceedings or action for non-payment of rent hereunder, Lessee shall not
interpose any counterclaim of any nature or description in such proceeding or
action, unless such non-interposition would effect a waiver of Lessee's right to
assert such claim against Lessor in a separate action or proceeding. The parties
hereto waive a trial by jury on any and all issues arising in any action or
proceeding between them or their successors under or in any way connected with
this Lease or any of its provisions, any negotiations in connection therewith,
the relationship of Lessor and Lessee, or Lessee's use or occupation of the
Demised Premises, including any claim of injury or any emergency or other
statutory remedy with respect thereto. The provisions of this Article shall
survive the expiration or other termination of this Lease.
ARTICLE 21 - NOTICES
SECTION 21.01. A. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests, consents or other communications
given or required to be given under this Lease shall be effective only if
rendered or given in writing and
(a) If to Lessee, then, at the option of Lessor, (i) addressed to Lessee's
address as set forth in this Lease, or to such other address as Lessee may
designate as its new address for such purpose by notice given to Lessor in
accordance with the provisions of this Section, or (ii) delivered personally to
Lessee, or (iii) by overnight courier,
(b) If to Lessor, sent by personal delivery or overnight courier, addressed
to Lessor at Lessor's address as set forth in this Lease, with copies thereof to
Steven C. Hirsch, Esq., 585 Stewart Avenue, Suite 430, Garden City, New York
11530, or to such other address as Lessor may designate as its new address for
such purpose by notice given to Lessee in accordance with the provisions of this
Section.
B. Any such bill, statement, notice, demand, request, consent or other
communication shall be deemed to have been rendered or given: (i) on the date
delivered, if delivered to Lessee personally, or by overnight courier and (ii)
on the expiration of five (5) days after mailing, if mailed to Lessor or Lessee
as provided in this Section. Any notice by a party signed by counsel for such
party shall be deemed a notice signed by such party.
ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING
SECTION 22.01. The receipt of full or partial rent by Lessor with knowledge
of any breach of this Lease by Lessee or of any default on the part of the
Lessee in the observance or performance of any of the provisions or covenants of
this Lease shall not be deemed to be a waiver of any such provision, covenant or
breach of this Lease provided, however, that acceptance of a payment of rent
shall be valid pro tanto. No waiver or modification by Lessor, unless in
writing, and signed by Lessor, shall discharge or invalidate any provision or
covenant or affect the right of Lessor to enforce the same in the event of any
subsequent breach or default. The failure on the part of Lessor to insist in any
one or more instances upon the strict performance of any of the provisions or
covenants of this Lease, or to enforce any covenant or provision herein
contained or to exercise any right, remedy or election herein contained
consequent upon a breach of any provision of this Lease, shall not affect or
alter this Lease or be construed as a waiver or relinquishment for the future of
such one or more provisions or covenants or of the right to insist upon strict
performance or to exercise such right, remedy or election, but the same shall
continue and remain in full force and effect with respect to any existing or
subsequent breach, act or omission, whether of a similar nature or otherwise.
The receipt by Lessor of any rent or any other sum of money or any other
consideration hereunder paid by Lessee after the termination, in any manner, of
the Term, or after the giving by Lessor of the Termination Notice, shall not
reinstate, continue or extend the Term, or destroy, or in any manner impair the
efficacy of any such Termination Notice, as may have been given hereunder by
Lessor to Lessee prior to the receipt of any such rent, or other sum of money or
other consideration, unless so agreed to in writing and signed by Lessor.
Neither acceptance of the keys or any other act or thing done by Lessor or any
agent or employee shall be deemed to be an acceptance of a surrender of the
Demised Premises, or any part thereof, excepting only an agreement in writing
signed by Lessor. No payment by Lessee or receipt by Lessor of a lesser amount
than the correct rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check, as distinguished from any
letter accompanying such check or payment, be deemed to effect or evidence an
accord and satisfaction, and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance or pursue any other remedy in
this Lease provided.
ARTICLE 23- RIGHTS CUMULATIVE
SECTION 23.01. Each right and remedy of Lessor shall be cumulative and to
the extent permitted by law, the exercise or beginning of the exercise by Lessor
of any one or more of the rights or remedies of such party shall not preclude
the simultaneous or later exercise by Lessor of any or all other rights or
remedies; provided, however, that this sentence shall not be construed to
entitle Lessor to satisfaction of more than one remedy in respect of a
particular breach. In the event of any breach or threatened breach by Lessee or
any persons claiming through or under Lessee of any of the agreements, terms,
covenants or conditions contained in this Lease, Lessor shall be entitled to
enjoin such breach or threatened breach (if entitled to do so at law or in
equity or by statue or otherwise) and shall have the right to invoke any right
or remedy allowed by law or in equity or by statute or otherwise as if re-entry,
summary proceedings or other specific remedies were not provided for in this
Lease.
ARTICLE 24- CONVEYANCE; LIABILITY OF PARTIES
SECTION 24.01. The term "Lessor" as used herein shall mean and include only
the owner or owners at the time in question of the Lessor's interest in this
Lease so that in the event of any transfer or transfers (by operation of law or
otherwise) of Lessor's entire interest in this Lease, Lessor herein named (and
in the case of any subsequent transfers or conveyances, the then transferor)
shall be and hereby is automatically freed and relieved, from and after the date
of such transfer or conveyance, of all liability in respect of the performance
of any covenants or obligations on the part of the Lessor contained in this
Lease thereafter to be performed, provided that the transferee shall be deemed
to have assumed and agreed to perform subject to the limitation of this Article
(and without further agreement between or among the parties or their successors
in interest, and/or the transferee) and only during and in respect of the
transferee's period of ownership, all of the terms, covenants and conditions in
this Lease contained on the part of Lessor to be performed, which terms,
covenants, and conditions shall be deemed to "run with the land", it being
intended hereby that the terms, covenants and conditions contained in this Lease
on the part of the Lessor to be performed shall, subject as aforesaid, be
binding on Lessor, its successors and assigns, only during and in respect of
their respective successive periods of ownership.
SECTION 24.02. In the event of a breach by Lessor of any provisions,
covenants or obligations of this Lease to be performed by Lessor, the monetary
liability of Lessor in relation to any such breach shall be limited to the
equity of Lessor in the Property and the rents and issues therefrom, and Lessee
shall look only to Lessor's equity in the Property and the rents and issues
therefrom for the performance and observance of the terms, covenants, conditions
and obligations of this Lease to be performed or observed by Lessor and for the
satisfaction of Lessee's remedies for the collection of any award, judgment or
other judicial process requiring the payment of money by Lessor in the event of
a default in the full and prompt payment and performance of any Lessor's
obligations hereunder and in no event shall any of the partners constituting
Lessor (the "Partners"), nor the partners, shareholders, officers or directors
of Lessor or the Partners shall be liable for the performance of Lessor's
obligations under this Lease, nor shall any of the Partners assets be liable to
any levy, execution, restraint, award, claim of any kind whatsoever arising out
of, or in any way related to this Lease.
SECTION 24.03. The term "Lessee" as used in this Lease shall mean and
include Lessee named herein and, during and in respect of their respective
successive periods of ownership, each subsequent owner or owners of the
leasehold estate created by this Lease. For all purposes of this Lease and
without affecting the rights of, and obligations between, Lessee herein named
and any transferee, notwithstanding any transfer (by operation or law or
otherwise) of title to the leasehold estate created by this Lease by Lessee
herein named or by any subsequent owner of such estate and notwithstanding the
assumption by any transferee of the obligations of the Lessee hereunder, Lessee
herein named, as between Lessor and Lessee herein named, shall remain primarily
liable as primary obligor and not as a surety, for the full and prompt payment
and performance of Lessee's obligations hereunder and, without limiting the
generality of the foregoing or of Article 28, shall remain fully and directly
responsible and liable to Lessor for all acts and omissions on the part of any
transferee subsequent to it in violation of any obligation of this Lease.
ARTICLE 25- CHANGES AND ALTERATIONS BY LESSEE
SECTION 25.01.A. Lessee shall have no right to make any alteration, change,
additions or improvement, structural or otherwise, to the Demised Premises or
any appurtenances thereto which affect the Building Equipment or require a
permit and/or appropriate certificates from the Governmental Authority (an
"Alteration") without the prior written consent of Lessor in each instance,
which consent shall not be unreasonably withheld, conditioned or delayed. With
respect to any alterations, changes, additions, or improvements which are
considered cosmetic and not constituting an Alteration, no consent of the Lessor
shall be required, provided, however, that Lessee shall notify Lessor of same at
least five (5) days prior to performing such an Alteration.
B. If Lessor shall grant its consent to the making of an Alteration, then
the same shall (i) be performed at the sole cost and expense of Lessee, (ii) be
performed in a good and workmanlike manner, and in compliance with all
applicable Legal Requirements (including existing zoning requirements),
Insurance Requirements and Environmental Laws, (iii) be consistent with the use
of the Demised Premises provided for herein, (iv) not in any way render the
Demised Premises other than a complete, self containing operating unit, (v) in
the case of a structural alteration, be performed in accordance with plans and
specifications approved prior to the commencement of any work by the appropriate
Governmental Authorities and by Lessor, (vi) be of such nature so as not to
lessen the fair market value of the Demised Premises, and (vii) be performed
under the supervision of a licensed architect approved by Lessor and in
accordance with Lessor's Standard Requirements For Alterations To Be Performed
By Lessees', as may be amended from time to time, as EXHIBIT "G."
SECTION 25.02.A. Any and all Alterations made in accordance with Section
25.01 shall immediately become the property of Lessor, provided, however, that
if, in accordance with the provisions of Sections 25.02.B and 29.02, Lessee
shall have the option to and shall remove its trade fixtures, provided that same
are not affixed to or such removal would otherwise materially damage the Demised
Premises, then the same shall cease to be property of the Lessor upon removal,
provided Lessee repairs any such damage.
B. Unless Lessor shall otherwise expressly indicate in writing at the time
of granting its consent to the making of a proposed Alteration, Lessee shall, as
and when provided in Section 29.02, restore the affected portion of the Demised
Premises to the state or condition thereof existing prior to the making of such
Alteration.
C. Any and all contractors to be involved in performing work shall be
subject to Lessor's prior approval, which shall not be unreasonably withheld.
D. Prior to commencing any work at the Demised Premises, Lessee shall
furnish Lessor with evidence reasonably satisfactory to Lessor of such insurance
as Lessor may require and such insurance shall be in full force and effect
during such work and will cover, by endorsement or otherwise, the risk during
the course of such work.
E. In the event of any Alteration as provided for in this Article, the Rent
payable hereunder shall not be reduced or abated in any manner whatsoever.
F. No Alterations shall involve the removal of any fixtures, equipment or
other property in the Demised Premises which are not Lessee's property, unless
Lessor's prior written consent is first obtained and unless such fixtures,
equipment or other property shall be promptly replaced, at Lessee's expense and
free of superior title, liens and claims, with fixtures, equipment or other
property (as the case may be) of like utility and at least equal value (which
replaced fixtures, equipment or other property shall thereupon become the
property of Lessor), unless Lessor shall otherwise expressly consent in writing.
SECTION 25.03. Notwithstanding anything herein to the contrary, Lessor
shall have the option of performing any and all Alterations pursuant to Article
25 of this Lease on Lessee's behalf and at Lessee's Cost.
ARTICLE 26 - CERTIFICATES OF LESSEE AND LESSOR
SECTION 26.01. Lessee agrees at any time and from time to time, within
twenty (20) days after request by Lessor, to execute, acknowledge and deliver a
statement certifying (i) the Commencement Date hereunder, (ii) that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (iii) the dates to which the Fixed Rent and Additional Rent have
been paid, and (iv) whether or not to the knowledge of the signer of such
statement (a) Lessor is in default in keeping, observing or performing any term,
covenant, agreement, provision, condition or limitation contained in this Lease
and, if in default, specifying each such default, (b) either party is holding
any funds under this Lease in which the other has an interest (and, if so,
specifying the party holding such funds and the nature and amount thereof), and
(c) there is any amount then due and payable to Lessee by Lessor, it being
intended that any such statement delivered pursuant to this Section may be
relied upon by Lessor, any mortgagee, superior lessor or any person who may and
does become a mortgagee, superior lessee, any person who may and does become a
purchaser or assignee of Lessor's interest in this Lease or the mortgagee's
interest in any mortgage or the Lessor's interest in the Superior Lease.
SECTION 26.02. Lessor agrees at any time and from time to time, within
twenty (20) days after request by Lessee, to execute, acknowledge and deliver a
statement certifying (i) the Commencement Date hereunder, (ii) that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications), (iii) the dates to which the Fixed Rent and Additional Rent have
been paid, and (iv) whether or not to the knowledge of the signer of such
statement (a) Lessee is in default in keeping, observing or performing any term,
covenant, agreement, provision, condition or limitation contained in this Lease
and, if in default, specifying each such default, (b) either party is holding
any funds under this Lease in which the other has an interest (and, if so,
specifying the party holding such funds and the nature and amount thereof), and
(c) there is any amount then due and payable to Lessor by Lessee, it being
intended that any such statement delivered pursuant to this Section may be
relied upon by Lessee.
ARTICLE- 27 ASSIGNMENTS, SUBLEASES AND MORTGAGES
SECTION 27.01.A. Except as otherwise specifically provided in this Article,
neither this Lease, nor the Term and estate hereby granted, nor any part
thereof, nor the interest of Lessee in any sublease or the rental thereunder,
shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by
Lessee or Lessee's legal representatives or successors in interest, by operation
of law or otherwise, and neither the Demised Premises, nor any part thereof, nor
any Lessee's Property, shall be encumbered in any manner by reason of any act or
omission on the part of Lessee or anyone claiming under or through Lessee, or
shall be sublet or be used or occupied or permitted to be used or occupied or
utilized for desk or storage space by anyone other than Lessee or for any
purpose other than as specifically permitted by this Lease, without the prior
written consent of Lessor in each case, which consent shall not be unreasonably
withheld, conditioned or delayed.
B. If Lessee herein named is a corporation or other entity, upon at least
thirty (30) days prior notice to Lessor, this Lease in its entirety may be
assigned without Lessor's consent to a corporation or other entity into which
Lessee merges or consolidates, or which controls, is controlled by or under
common control with Lessee immediately prior to such transaction, or to an
entity which is purchasing, regardless of the form of the transaction, all or
substantially all of the assets or stock of Lessee herein named (hereinafter
referred to collectively as the "Related Transactions"), so long as the Demised
Premises continue to be used for the use described in Article 4 of this Lease;
the transfer is not principally for the purpose of transferring the leasehold
estate created hereby; the assignee assumes by documents reasonably satisfactory
to Lessor all of Lessee's obligations to be performed under this Lease, and;
provided such assignment shall be subject to all of the other terms and
conditions of this Lease.
C. Notwithstanding the foregoing, Lessee shall have the right, upon ten
(10) days notice to Lessor, without Lessor's consent, to: (i) sublease
individual offices and secretarial areas in the Demised Premises, provided that
same do not exceed in the aggregate, more than Twenty (20%) percent of the
rentable square footage of the Demised Premises, and (ii) sublease portions of
the Demised Premises, and permit portions of the Demised Premises to be occupied
or utilized for desk space by, affiliates, subsidiaries or a parent of Lessee
and/or their employees or consultants, so long as the Demised Premises continue
to be used for the use described in Article 4 of this Lease and provided such
sublease shall be subject to all of the other terms and conditions of this Lease
(hereinafter referred to collectively as the "Permitted Subleases").
SECTION 27.02.A. Except for Related Transaction and Permitted Subleases, if
this Lease be assigned, whether or not in violation of the provisions of this
Lease, Lessor may collect rent from the assignee, and Lessor shall be entitled
to receive, as Additional, Rent, Twenty-Five (25%) percent of all of the excess
consideration paid to Lessee in connection with such assignment as shall for any
period exceed the aggregate of the Rents payable under this Lease (the "Excess
Consideration"). Such Excess Consideration shall be reduced by the reasonable
cost of tenant improvements, brokerage commissions and attorneys' fees and
disbursements reasonably incurred by Lessee for such assignment, and the net
amount thereof shall be paid to Lessor either: (i) in a lump sum, (ii) or
allocated to such period on a straight line basis over the term of such
assignment if paid in installments, as the case may be, promptly after receipt
thereof by Lessee. The provisions of the preceding sentence shall be in full
force and effect notwithstanding that Lessee has sought the protection of any
provisions of the bankruptcy law (as hereinafter defined) or if a petition has
been filed against Lessee under such bankruptcy law. If the Demised Premises or
any part thereof be sublet or be used or occupied by anybody other than Lessee,
whether or not in violation of this Lease, Lessor may, after default by Lessee
and expiration of Lessee's time to cure such default, if any, collect rent from
the sublessee or occupant. In either event, Lessor may apply the net amount
collected to the rents herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
Section 27.01, or the acceptance of the assignee, sublessee or occupant as
tenant, or a release of Lessee from the further performance by Lessee of
Lessee's obligations under this Lease. The consent by Lessor to an assignment,
mortgaging or subletting pursuant to any provision of this Lease shall not in
any way be considered to relieve Lessee from obtaining the express consent of
Lessor for any other or further assignment, mortgaging or subletting. References
in this Lease to use or occupancy by anyone other than Lessee shall not be
construed as limited to sublessees and those claiming under or through
sublessees but as including also licensees and other claiming under or through
Lessee, immediately or remotely. The listing of any name other than that of
Lessee on any door of the Demised Premises or on any sign on the Demised
Premises, or otherwise, shall not operate to vest in the person so named any
right or interest in this Lease or in the Demised Premises, or be deemed to
constitute, or serve as a substitute for, any prior consent of Lessor required
under this Article, and it is understood that any such listing shall constitute
a privilege extended by Lessor which shall be revocable at Lessor's will by
notice to Lessee. Lessee agrees to pay to Lessor any reasonable counsel fees
incurred by Lessor in connection with any proposed assignment of Lessee's
interest in this Lease or any proposed subletting of the Demised Premises or any
part thereof. Neither any assignment of Lessee's interest in this Lease nor any
subletting, occupancy or use of the Demised Premises or any part thereof by any
person other than Lessee as provided in this Article, nor any application of any
such rent as provided in this Article shall, under any circumstances, relieve
Lessee herein named of its obligations fully to observe and perform the terms,
covenants and conditions of this Lease on Lessee's part to be observed and
performed. B. Lessor, however, shall not in any event be obligated to consent to
the assignment of this Lease, in those cases where consent is required
hereunder, unless: (i) in the reasonable judgment of Lessor the proposed
assignee is of a character and financial worth such as is in keeping with the
standards of Lessor in those respects for the Demised Premises, or the assignee
can otherwise secure and guaranty the payment to Lessor or all Rent and any
other amounts due from Lessee pursuant to this Lease in a manner reasonably
satisfactory to Lessor; (ii) the nature of the proposed assignee's business and
its reputation are in keeping with the character of the Demised Premises and the
use thereof, (iii) the purpose for which the proposed assignee intends to use
the Demised Premises assigned to it are uses expressly permitted by and not
expressly prohibited by this Lease; (iv) the proposed assignment shall prohibit
any further assignment without Lessor's consent as provided for herein; (v) no
Event of Default shall have occurred and be continuing; and (vi) Lessee shall
reimburse Lessor for all reasonable costs that may be incurred by Lessor in
connection with the said assignment, including the costs of making
investigations as to the acceptability of a proposed assignee and legal costs
incurred in connection with the granting of any requested consent.
SECTION 27.03. A. Except for Related Transactions and Permitted Subleases,
notwithstanding anything contained in Sections 27.01 and 27.02, in the event
that, at any time or from time to time during the Term, Lessee desires to sublet
all or any part of the Demised Premises, Lessee shall notify Lessor of such
desire and shall: (i) submit to Lessor in writing the name and address of the
proposed subtenant, a reasonably detailed statement of the proposed subtenant's
business, reasonably detailed financial references for the proposed subtenant
and any other information reasonably requested by Lessor, and (ii) submit to
Lessor a copy of the proposed sublease.
B. If within five (5) business days after Lessee shall have requested the
consent of Lessor to any assignment or subletting under this Article, and shall
have submitted all items required hereby, the term of the proposed assignment or
sublease may commence upon Lessor's consent, which consent may not be
unreasonably withheld, it being agreed that if within such five (5) business day
period Lessor does not advise Lessee that such consent is granted, such consent
shall be deemed granted by Lessor. Lessor, however, shall not in any event be
obligated to consent to the proposed sublease or the commencement of the term
unless: (i) in the reasonable judgment of Lessor the proposed subtenant is of a
character and financial worth such as is in keeping with the standards of Lessor
in those respects for the Demised Premises, and the nature of the proposed
subtenant's business and its reputation are in keeping with the character of the
Demised Premises and the use thereof, (ii) the purpose for which the proposed
subtenant or assignee intends to use the portion of the Demised Premises sublet
or assigned to it are uses expressly permitted by and not expressly prohibited
by this Lease; (iii) the proposed sublease shall prohibit any assignment or
subletting without the consent of Lessor, which consent shall not be
unreasonably withheld, conditioned or delayed; (iv) no Event of Default shall
have occurred and be continuing and (v) Lessee shall reimburse Lessor for all
reasonable costs that may be incurred by Lessor in connection with the said
sublease, including the costs of making investigations as to the acceptability
of a proposed subtenant and legal costs incurred in connection with the granting
of any requested consent.
C. With respect to each and every subletting authorized by the provisions
of this Article it is further agreed and understood between Lessor and Lessee
that: (i) the subletting shall be, and each such sublease shall expressly
provide that is, subject and subordinate at all times and in all respects, to
this Lease, (ii) no subletting shall be for a term ending later than one day
prior to the Expiration Date originally provided for herein and that part, if
any, of the proposed term of any sublease which shall extend beyond a date one
day prior to the Expiration Date originally provided for herein (or any sooner
date of the expiration of the term or termination of this Lease) is hereby
deemed to be a nullity, (iii) there shall be delivered to Lessor, within ten
(10) days after the commencement of the term of the proposed sublease, notice of
such commencement and a fully executed copy of the proposed sublease (unless
previously submitted) and (iv) Lessee shall pay to Lessor, as Additional Rent,
Twenty-Five (25%) percent of all of the Excess Consideration allocated to such
period on a straight line basis over the term of such subletting.
D. Anything herein contained to the contrary notwithstanding: (i) Lessee
shall not advertise but may list its space for subletting or assignment, and may
list its space at a rental rate lower than the rental rate then being paid by
Lessee to Lessor only with respect to subletting (but not assignment) and (ii)
no assignment or subletting shall be made to any person or entity which shall at
that time otherwise be a tenant, sub-tenant or other occupant of any part of the
Property or which shall within the prior Five (5) months have been negotiating
with Lessor to become such a tenant, sub-tenant or occupant of the Property.
ARTICLE 28 - SUBORDINATION
SECTION 28.01.A. Subject to Section 28.01.C, this Lease, and all rights of
Lessee hereunder, are and shall be subject and subordinate in all respects to
(a) the IDA Lease (as hereinafter defined) and all present and future ground
leases, overriding leases and underlying leases and/or grants of term of the
Property, the Building, the Building Equipment and/or any appurtenance thereto
of which Lessor has notified Lessee (collectively, the "Superior Lease"), (b)
all mortgages and building loan agreements, including leasehold mortgages, deeds
of trust, and building loan agreements, which may now or hereafter affect the
Property, the Building, the Building Equipment and/or any appurtenance thereto,
of which Lessor has notified Lessee (collectively, the "Mortgage"), whether or
not the Mortgage shall also cover other land and/or buildings, and (c) each and
every advance made or hereafter to be made under the Mortgage and to all
renewals, modifications, replacements, substitutions and extensions of any
Superior Lease and the Mortgage and spreaders and consolidations of the
Mortgage. The provisions of this Section shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Lessee shall promptly execute and deliver, at its own cost and
expense, an instrument in recordable form to evidence such subordination. If, in
connection with the obtaining, continuing or renewing of financing for which the
Demised Premises or the interest of the lessee under the Superior Lease
represents collateral in whole or in part, a bank, insurance company or other
lender shall request reasonable modifications of this Lease as a condition of
such financing, Lessee will not unreasonably withhold or delay its consent
thereto, provided that such modifications do not increase the monetary
obligations of Lessee under this Lease or materially increase the other
obligations of Lessee hereunder or materially and adversely affect the rights of
Lessee under this Lease.
B. Upon execution of this Lease, Lessor shall deliver to Lessee a
Subordination and Non-Disturbance Agreement from The Union Labor Life Insurance
Company, Lessor's current mortgagee, and The Westchester County Industrial
Development Agency in the forms annexed hereto collectively as EXHIBIT "I."
C. In addition to the provisions of Section 28.01.B of this Lease, during
the Term of this Lease, Lessor agrees to provide Lessee with an agreement from
the holder of the Mortgage or the lessor under the IDA Lease and/or a Superior
Lease, providing in substance, that if and so long as no Event of Default shall
be continuing, this Lease shall continue upon its then executory terms and
conditions and possession of the Demised Premises held by Lessee, and any
permitted sublessee or assignee, will not be disturbed by such person in the
event of a default under the Mortgage, IDA Lease, or Superior Lease, as the case
may be (the "NDA"). The form of the NDA shall be the holder of the Mortgage, IDA
Lease or Superior Lease, as the case may be, current standard form of
non-disturbance agreement, provided, however, that such NDA will not increase
the monetary obligations of Lessee under this Lease or increase the other
obligations of Lessee hereunder more than to a de minimus extent or adversely
affect the rights of Lessee under this Lease or reduce Lessor's obligations
hereunder.
SECTION 28.02. If at any time prior to the expiration of the Term, the
holder of the Mortgage shall become the owner of the Demised Premises as a
result of foreclosure of its mortgage or by reason of an assignment of the
lessee's interest under any such lease or conveyance of the Demised Premises,
Lessee agrees, at the election and upon demand of any owner of the Demised
Premises, or of the holder of any Mortgage or Superior Lease (including a
leasehold mortgage) in possession of the Demised Premises, to attorn, from time
to time, to any such owner, or lessee, upon the then executory terms and
conditions of this Lease, provided that such owner, holder or lessee, as the
case may be, shall then be entitled to possession of the Demised Premises. No
such owner, holder or lessee shall be liable for any previous acts or omission
of Lessor under this Lease (except that this provision shall not be construed to
relieve such person from any obligation thereafter to be performed), nor shall
such owner holder or Lessee be subject to any offset which shall have
theretofore accrued to Lessee against Lessor, or be bound by any previous
modification of this Lease, not expressly provided for in this Lease, entered
into after the date of the Mortgage, or Superior Lease, or by any previous
prepayment of more than one month's Fixed Rent. The foregoing provisions of this
Section shall enure to the benefit of any such owner, holder or lessee, shall
apply notwithstanding that, as a matter of law, this Lease may terminate upon
the termination of the Superior Lease, or the foreclosure (including judgment of
foreclosure and sale) of the Mortgage, shall be self-operative upon any such
demand, and no further instrument shall be required to give effect to said
provisions. Lessee, however, upon demand of any such owner, holder or lessee,
agrees to execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section, acknowledging such attornment and setting
forth the terms and conditions of its tenancy. Nothing contained in this Section
shall be construed to impair any right otherwise exercisable by any such owner,
holder or lessee.
ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY
SECTION 29.01. On the last day of the Term or on the earlier termination of
the Term, Lessee shall peaceably and quietly leave, surrender and deliver the
Demised Premises to Lessor, together with (a) all alterations, changes,
additions and improvements, which may have been made upon the Demised Premises,
and (b) except for Lessee's Property, all fixtures and articles of personal
property of any kind or nature which Lessee may have installed or affixed on,
in, or to the Demised Premises for use in connection with the operation and
maintenance of the Demised Premises (whether or not said property be deemed to
be fixtures), all of the foregoing to be surrendered in good, substantial and
sufficient repair, order and condition, reasonable use, wear and tear, and
damage by fire or other casualty, excepted, and free of occupants and
sublessees.
SECTION 29.02. On or prior to the Expiration Date or any earlier
termination of this Lease, Lessee shall remove Lessee's Property, and any items
referred to in clauses (a) or (b) of Section 29.01, which Lessor shall request
Lessee to remove (unless Lessor shall have waived such right as to any item
referred to in clause (a) of Section 29.01 at the time of the granting of
consent with respect thereto under Article 25), and Lessee shall pay or cause to
be paid the cost of repairing or remedying any damage caused thereby, provided
that no item of Lessee's Property may be removed if its removal would impair the
integrity (structural or otherwise) of the Building or Building Equipment. All
property not so removed shall be deemed abandoned and may either be retained by
Lessor as its property or disposed of, without accountability, at Lessee's sole
cost, expense and risk, in such manner as Lessor may see fit.
SECTION 29.03. If the Demised Premises are not surrendered in accordance
with the provisions of this Article upon the expiration or termination of this
Lease, Lessor shall have all rights given at law or in equity, in the case of
holdovers, to remove Lessee and anyone claiming through or under Lessee. In any
event, Lessee shall and does hereby indemnify Lessor against all loss or
liability arising from delay by Lessee in so surrendering the Demised Premises,
including any claims made by any succeeding lessees founded on such delay.
Lessee expressly waives, for itself and for any person claiming through or under
Lessee (including creditors), any rights which lessee or any such person may
have under the provisions of any law in connection with any holdover summary
proceedings which Lessor may institute to enforce the provisions of this
Article. Lessee's obligations under this Article shall survive the expiration or
termination of this Lease.
SECTION 29.04. Lessee acknowledges the extreme importance to Lessor that
possession of the Demised Premises be surrendered at the expiration or sooner
termination of this Lease. In the event that Lessee fails to vacate the Demised
Premises at the expiration or sooner termination of this Lease, Lessee shall be
obligated to pay Lessor damages in an amount equal to One Hundred and Fifty
(150%) percent of the annual Fixed Rent and Additional Rent provided for on the
day preceding the Expiration Date for such period of time that Lessee holds over
on a per diem basis.
ARTICLE 30 - RENEWAL TERMS
SECTION 30.01. Lessee named herein, shall have the right, at its option, to
extend this Lease for Two (2) terms (each a "Renewal Term") of Five (5) years
each to commence on the Expiration Date originally provided for herein and to
end at noon on the Fifth (5th) anniversary of such Expiration Date originally
provided for herein and commencing on Fifth (5th) anniversary of Expiration Date
originally provided for herein and to end at noon on the Tenth (10th)
anniversary of the Expiration Date originally provided for herein, respectively,
by giving Lessor notice of such election at any time but not less than twelve
(12) months prior to the Expiration Date and/or the Fifth (5th) anniversary of
Expiration Date, as the case may be, originally provided for herein (time being
of the essence with respect thereto), and upon the giving of such notice this
Lease thereupon shall, subject to the provisions of Section 30.02, be
automatically extended for each such Renewal Term with the same force and effect
as if such Renewal Term had been originally included in the Term, without the
execution of any further instrument.
SECTION 30.02. Any notice of election to exercise the option to extend as
hereinbefore provided must be in writing and sent to Lessor as provided in
Article 21. Neither the option granted to Lessee in this Article to extend the
Term, nor the exercise of such option by Lessee, named herein shall prevent
Lessor from exercising any option or right granted or reserved to Lessor in this
Lease to terminate this Lease with respect to all or a portion of the Demised
Premises, and the effective exercise of any such right of termination by Lessor
shall terminate any such renewal or extension and any right of Lessee to any
such renewal or extension with respect to that portion of the Demised Premises
so terminated, whether or not Lessee shall have exercised any such option to
extend the Term. Any such option or right on the part of Lessor to terminate
this Lease pursuant to the provisions hereof shall continue during any Renewal
Term.
SECTION 30.03. All of the terms, covenants and conditions of this Lease
shall continue in full force and effect during each such Renewal Term except
that (i) the Fixed Rent for each such Renewal Term shall be as provided in
Section 30.04 (all other rent and charges payable by Lessee remaining
unaffected), and (b) there shall be no further privilege of extension of this
Lease beyond the second Renewal Term.
SECTION 30.04. A. During each such Renewal Term, Lessee shall pay to Lessor
annual Fixed Rent, at the same times and in the same manner as in the Term
originally provided for, at the annual rate equal to the annual fair rental
value of the Demised Premises (with deduction for the cash value of free rent
and leasehold improvements and providing new base years for Taxes and Common
Area Maintenance Charges), which renewing, non-equity tenants are then receiving
in connection with a lease for comparable space in a building of the same age,
quality, size, location, services, amenities, quality of construction and
appearance to that of the Building on the date of the commencement of each such
Renewal Term with a term equal to each such Renewal Term and otherwise
containing the same provisions as this Lease contains, as determined by
agreement between Lessor and Lessee. If, prior to the commencement of either
Renewal Term, Lessor and Lessee are unable to agree on the amount of the annual
Fixed Rent during such Renewal Term, then in such event, the determination of
such annual fair rental value shall be made by arbitration pursuant to the
provisions of Section 30.04. B. hereof. If either Renewal Term, shall commence
prior to determination of the amount of annual Fixed Rent payable during such
Renewal Term, either by agreement or by decision of the arbitrators, Lessee, in
the meantime, shall pay the monthly installments of Fixed Rent at the annual
rate payable under this Lease for the year ending on the Expiration Date, or the
Fifth (5th) anniversary of the Expiration Date originally provided for herein,
as the case may be. If monthly installments of the amount agreed upon by Lessor
and Lessee, or found by the arbitrators, shall be greater than such amount, then
Lessee, forthwith after such agreement or arbitrators' decision, shall pay to
Lessor, for the period from the commencement of such Renewal Term to the last
day of the calendar month in which the agreement or the arbitrators' decision
takes effect, the difference between the monthly installments actually paid and
the monthly installments which should have been paid in accordance with such
agreement or arbitrator's decision, together with interest at the prime rate
plus two (2%) percent from the respective due dates of each monthly installment
to the date of payment pursuant to this paragraph; and, thereafter, Lessee shall
pay the monthly installments at the new rate. If monthly installments of the
amount agreed upon by Lessor and Lessee, or found by the arbitrators, shall be
less than such amount, then Lessor, forthwith after such agreement or
arbitrators' decision, shall credit Lessee, for the period from the commencement
of such Renewal Term to the last day of the calendar month in which the
agreement or the arbitrators' decision takes effect, the difference between the
monthly installments actually paid and the monthly installments which should
have been paid in accordance with such agreement or arbitrator's decision,
together with interest at the prime rate plus two (2%) percent from the
respective due dates of each monthly installment to the date of payment pursuant
to this paragraph; and, thereafter, Lessee shall pay the monthly installments at
the new rate.
B. (1) In the event that Lessor and Lessee are unable to agree on the
amount of the annual Fixed Rent during either Renewal Term, then either Lessor
or Lessee (hereinafter referred to as the "Initiating Party") may give the other
party (hereinafter called the "Responding Party") a notice designating the name
and address of the arbitrator designated by the Initiating Party to act on its
behalf in the arbitration process hereinafter described (the "Review Notice").
(2) If the Initiating Party gives a Review Notice, then within twenty (20)
days after giving of such Review Notice, the Responding Party shall give notice
to Initiating Party specifying in such notice the name and address of the
arbitrator designated by the Responding Party to act on its behalf. In the event
the Responding Party shall fail to give such notice within such twenty (20) day
period, then the appointment of such arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where two arbitrators are appointed hereunder and the parties are unable to
agree to such appointment. The two arbitrators so chosen shall meet within
thirty (30) days after the second arbitrator is appointed and shall exchange
sealed envelopes each containing such arbitrators written determination of the
fair market rent of the Demised Premises based on the criteria set forth in
Section 30.04.A. The fair market rent specified by Lessor's arbitrator shall be
called the "Lessor's Submitted Value" and the fair market rent specified by
Lessee's arbitrator shall be called the "Lessee's Submitted Value". Copies of
such written determinations shall promptly be sent to both Lessor and Lessee.
Any failure of either such arbitrator to meet and exchange such determinations
shall be acceptance of the other party's arbitrator's determination as to fair
market rent, if, and only if, such failure persists for ten (10) business days
after notice to whom such arbitrator is acting, and, provided that such ten (10)
business day period shall be extended by reason of any Unavoidable Delay. If the
higher determination of the fair market rent for the Demised Premises is not
more than one hundred and five (105%) percent of the lower determination of the
fair market rent, then the fair market rent for such space shall be deemed to be
the average of the two determinations. If, however, the higher determination is
more than one hundred and five (105%) percent of the lower determination, then
within ten (10) days of the date the arbitrators submitted their respective fair
market rent determinations, the two arbitrators shall appoint a third
arbitrator. In the event of their being unable to agree upon such appointment
within ten (10) days after the exchange of the sealed envelopes, the third
arbitrator shall be selected by the parties themselves if they can agree thereon
within a further period of ten (10) days. If the parties do not so agree, then
either party, on behalf of both and on notice to the other, may request such an
appointment by the American Arbitration Association (or any successor
organization) in accordance with its rules then prevailing or if the American
Arbitration Association (or any successor organization) shall fail to appoint
said third arbitrator within fifteen (15) days after such request is made, then
either party may apply for such appointment, on notice to the other, to the
President of the Westchester County Bar Association (who may consult with the
Chairman of the Real Property Law Committee of the Westchester County Bar
Association). Within ten (10) days after the appointment of such third
arbitrator, the Lessor's arbitrator shall submit Lessor's Submitted Value to
such third arbitrator and the Lessee's arbitrator shall submit Lessee's
Submitted Value to such third arbitrator. Such third arbitrator shall, within
thirty (30) days after the end of such fifteen (15) day period, make his own
determination of the fair market rent of the Demised Premises using the criteria
set forth in Section 30.04.A. hereof, and send copies of his determination
promptly to both Lessor and Lessee specifying whether Lessor's Submitted Value
or Lessee's Submitted Value was closer to the determination by such third
arbitrator of the fair market rent of the Demised Premises. Whichever of
Lessor's Submitted Value or Lessee's Submitted Value shall be closer to the
determination by such third arbitrator shall conclusively be deemed to be the
fair market rent of the Demised Premises.
(3) In no event shall the arbitrators enlarge upon, or alter or amend, this
Lease or Lessor's or Lessee's rights as provided in this Lease, it being
understood that the sole issue for determination by the arbitrators shall be the
single issue of fact of the annual fair rental value of the Demised Premises as
provided in paragraph A of this Section 30.01.
(4) Except as otherwise provided in the following sentence, the fees and
expenses of an arbitration proceeding shall be borne by the parties equally. The
fees of respective counsel engaged by the parties the fees and expenses of
expert witnesses and other witnesses called and the cost of transcripts shall be
borne by the parties engaging such counsel or calling such witness or ordering
such transcripts.
(5) The arbitrators selected by either party shall have a minimum of ten
(10) years experience as an appraiser of commercial real property in Westchester
County and who is not related directly or indirectly to either party. In the
event that a third arbitrator is required, such third arbitrator shall not have
any prior business relationship with either party hereto.
SECTION 30.05. The rights provided to Lessee to extend this Lease as
provided in Section 30.01 is conditioned in all respects upon there being no
Event of Default in the observance or performance of any term, covenant,
condition or agreement of Lessee's part to be observed or performed under this
Lease both at the time the notice of exercise is given and immediately prior to
commencement of such Renewal Term. Any termination, cancellation or surrender of
this Lease shall terminate any right of extension hereunder for either Renewal
Term.
SECTION 30.06. If Lessee shall effectively exercise its option to extend
this lease for either Renewal Term, Lessor and Lessee, upon demand of either,
shall execute and deliver to each other duplicate originals of an instrument,
duly acknowledged, setting forth (i) that the Term has been extended, (ii) the
period of such extension, (iii) the annual Fixed Rent payable during each
Renewal Term and (iv) that such extension is upon and subject to all of the
terms, covenants, conditions and limitations contained herein.
ARTICLE 31- RIGHT OF FIRST REFUSAL
SECTION 31.01.A. During and with respect of the period from Commencement
Date up to and including the day preceding the Rent Commencement Date (both date
inclusive), Lessor agrees that upon receipt of a bona fide offer to lease, from
another prospective tenant, or its agent, at least Twenty Thousand (20,000)
contiguous rentable square feet or more of vacant space on the Sixth (6th) floor
of the south side of the Building off the main elevator bank, it shall give
Lessee notice of the terms and conditions of the Bona-Fide Offer and the right,
at its option, to lease all such additional space (the "Additional Space") on
the same terms and conditions of the Bona-Fide Offer. Notwithstanding the
foregoing, Lessee hereby acknowledges and agrees that Lessor shall have the
right to lease space on the Sixth (6th) floor of the Building without offering
same to Lessee, so long as Lessor retains at least Twenty Thousand (20,000)
contiguous rentable square feet of vacant space on the Sixth (6th) floor of the
south side of the Building off the main elevator bank, it being agreed and
understood that Lessor does not have to offer Lessee the right to lease any
other space on Sixth (6th) Floor of the Building except as otherwise
specifically provided for herein.
B. Lessee shall, within Ten (10) business days after receipt of the notice
from Lessor that it has received the Bona-Fide Offer, notify Lessor of its
intention to lease the Additional Space (time being of the essence with respect
thereto) on the same terms and conditions as contained in the Bona-Fide Offer.
Lessee's failure to notify Lessor within the Ten (10) business day period shall
be deemed a waiver of the right to lease the Additional Space.
SECTION 31.02. Any notice of election to exercise the right to expand the
Demised Premises as hereinbefore provided must be in writing and sent to Lessor
as provided in Article 21. In addition, if prior to the exercise of the right to
expand the Demised Premises, Lessee herein named shall have assigned this Lease,
no notice by the then Lessee of election to exercise an option to extend shall
be valid unless joined in or consented to in writing by Lessee herein named
(which consent, in order for the exercise of such right to be effective, shall
be delivered to Lessor at or prior to the time of the exercise of the right as
to which consent of Lessee herein named had been given). Neither the right
granted to Lessee in this Article to expand the Demised Premises, nor the
exercise of such right by Lessee, shall prevent Lessor from exercising any
option or right granted or reserved to Lessor in this Lease to terminate this
Lease, and the effective exercise of any such right of termination by Lessor
shall terminate any such renewal or extension and any right of Lessee to any
such renewal or extension, whether or not Lessee shall have exercised any such
right to expand the Term. Any such option or right on the part of Lessor to
terminate this Lease pursuant to the provisions hereof shall apply to the
Additional Space.
SECTION 31.03. Except for the terms of the Bona-Fide Offer, all of the
terms, covenants and conditions of this Lease applicable to the Demised Premises
as originally constituted shall be applicable to the Demised Premises including
the Additional Space.
B. During and in respect of the Term hereof, Lessee's Proportionate Share
shall be increased by the rentable square footage of all Additional Space that
Lessee occupies in the Building.
SECTION 31.04. If Lessee shall effectively exercise its right to hire the
Additional Space, Lessor and Lessee, upon demand of either, shall execute and
deliver to each other duplicate originals of an instrument, duly acknowledged,
setting forth: (i) that the Demised Premises have been expanded to include the
Additional Space; (ii) the amount of such Additional Space; (iii) the annual
Fixed Rent payable during the Term; (iv) that such Additional Space is upon and
subject to all of the terms, covenants, conditions and limitations contained
herein; and (v) Lessee's Proportionate Share as increased by the Additional
Space.
SECTION 31.05. The right of Lessee to hire the Additional Space as provided
in Section 31.01 is conditioned in all respects upon there being no Event of
Default in the observance or performance of any term, covenant, condition or
agreement on Lessee's part to be observed or performed under this Lease both at
the time the notice of exercise is given and immediately prior to the Additional
Space Commencement Date. Any termination, cancellation or surrender of this
Lease shall terminate Lessee's right to hire the Additional Space.
ARTICLE 32- BROKERS
SECTION 32.01. Lessee represents that in connection with this Lease it
dealt with no broker other than Cushman & Wakefield of Connecticut, Inc. and
Albert B. Ashforth, Inc. (the "Brokers") nor has Lessee had any correspondence
or other communication in connection with this Lease with any other person who
is a broker, and that so far as Lessee is aware the Brokers are the only brokers
who negotiated this Lease. Each party hereby indemnifies the other party and
holds it harmless from any and all loss, cost, liability, claim, damage, or
expense (including court costs and attorneys' fees) arising out of any
inaccuracy of the above representation. Lessor agrees to pay the Brokers all
commissions due for its services pursuant to a separate written agreement.
ARTICLE 33- RIGHT OF FIRST OFFER
SECTION 33.01.A. In the event that Lessee does not exercise its rights with
respect to the Additional Space as otherwise specifically provided for in
Article 31 of this Lease, Lessor hereby agrees that from and after the Rent
Commencement Date and prior to offering for lease the Additional Space, it shall
give Lessee notice of and the right to, at its option, expand the Demised
Premises herein to include the Additional Space with occupancy to commence on
the Additional Space Offer Commencement Date (as hereinafter defined) and to end
on the Expiration Date originally provided for herein.
B. Lessee shall, within Thirty (30) days after receipt of the notice from
Lessor that the Additional Space is available for hire, notify Lessor of its
intention to lease the Additional Space (time being of the essence with respect
thereto). Lessee's failure to notify Lessor within the Thirty (30) day period
shall be deemed a waiver of the right to hire the Additional Space. Upon the
giving of such notice the Additional Space shall be deemed added to and a part
of the Demised Premises, with the same force and effect as if originally so
demised under this Lease.
C. Lessee shall have the right to inspect the Additional Space, prior to
exercising its rights herein. Lessee agrees to accept the Additional Space in
its "AS IS" state and condition on the Additional Space Offer Commencement Date
without any representation or warranty, express or implied, in fact or by law,
by Lessor, and without recourse to Lessor, as to title thereto, the nature,
condition or usability thereof or as to the use or occupancy which may be made
thereof.
SECTION 33.02. Any notice of election to exercise the right to expand the
Demised Premises as hereinbefore provided must be in writing and sent to Lessor
as provided in Article 21. In addition, if prior to the exercise of the right to
expand the Demised Premises, Lessee herein named shall have assigned this Lease,
no notice by the then Lessee of election to exercise an option to extend shall
be valid unless joined in or consented to in writing by Lessee herein named
(which consent, in order for the exercise of such right to be effective, shall
be delivered to Lessor at or prior to the time of the exercise of the right as
to which consent of Lessee herein named had been given). Neither the right
granted to Lessee in this Article to expand the Demised Premises, nor the
exercise of such right by Lessee, shall prevent Lessor from exercising any
option or right granted or reserved to Lessor in this Lease to terminate this
Lease, and the effective exercise of any such right of termination by Lessor
shall terminate any such renewal or extension and any right of Lessee to any
such renewal or extension, whether or not Lessee shall have exercised any such
right to expand the Term. Any such option or right on the part of Lessor to
terminate this Lease pursuant to the provisions hereof shall apply to the
Additional Space.
SECTION 33.03. The "Additional Space Offer Commencement Date" shall be the
date which is the later of: (i) the date specified in Lessor's notice, or (ii)
the date upon which Lessor delivers possession of the Additional Space to
Lessee.
SECTION 33.04.A.1. All of the terms, covenants and conditions of this Lease
applicable to the Demised Premises as originally constituted shall be applicable
to the Demised Premises including the Additional Space, except that Lessee shall
be entitled to the Additional Space Allowance (as hereinafter defined) and the
annual Fixed Rent provided for in Article 2 shall be increased as follows:
(i) during and in respect of the period from the Additional Space
Commencement Date to the day preceding the Second (2nd) Anniversary of the Rent
Commencement Date (both dates inclusive) by an amount each year equal to the
product of Twenty- Eight and 50/100 ($28.50) Dollars (exclusive of electric) and
the rentable square footage of the Additional Space; and.
(ii) during and in respect of the period from the Second (2nd) Anniversary
of the Rent Commencement Date to the day preceding the Fourth (4th) Anniversary
of the Rent Commencement Date (both dates inclusive) by an amount each year
equal to the product of Thirty and 00/100 ($30.00) Dollars (exclusive of
electric) and the rentable square footage of the Additional Space; and.
(iii) during and in respect of the period from the Fourth (4th) Anniversary
of the Rent Commencement Date to the day preceding the Sixth (6th) Anniversary
of the Rent Commencement Date (both dates inclusive) by an amount each year
equal to the product of Thirty-One and 50/100 ($31.50) Dollars (exclusive of
electric) and the rentable square footage of the Additional Space; and.
(iv) during and in respect of the period from the Sixth (6th) Anniversary
of the Rent Commencement Date to the Expiration Date (both dates inclusive) by
an amount each year equal to the product of Thirty-Two and 50/100 ($32.50)
Dollars (exclusive of electric) and the rentable square footage of the
Additional Space.
2. As used herein, "Additional Space Allowance" shall be equal to the
product of: (i) rentable square footage of the Additional Space and (ii) the
Proportionate Additional Space Allowance Factor (as hereinafter defined). As
used herein, the "Proportionate Additional Space Allowance Factor shall be equal
to the product of: (i) Forty and 00/100 ($40.00) Dollars and (ii) a fraction,
the numerator of which is the number of months remaining in the Term of the
Lease as of the Additional Space Offer Commencement Date and the denominator of
which is One Hundred and Twenty (120).
B. During and in respect of the Term hereof, Lessee's Proportionate Share
shall be increased by the rentable square footage of all Additional Space that
Lessee occupies in the Building.
SECTION 33.05. If Lessee shall effectively exercise its right to hire the
Additional Space, Lessor and Lessee, upon demand of either, shall execute and
deliver to each other duplicate originals of an instrument, duly acknowledged,
setting forth: (i) that the Demised Premises have been expanded to include the
Additional Space; (ii) the amount of such Additional Space; (iii) the annual
Fixed Rent payable during the Term; (iv) that such Additional Space is upon and
subject to all of the terms, covenants, conditions and limitations contained
herein; and (v) Lessee's Proportionate Share as increased by the Additional
Space.
SECTION 33.06. The right of Lessee to hire the Additional Space as provided
in Section 33.01 is conditioned in all respects upon there being no Event of
Default under this Lease both at the time the notice of exercise is given and
immediately prior to the Additional Space Offer Commencement Date. Any
termination, cancellation or surrender of this Lease shall terminate Lessee's
right to hire the Additional Space.
SECTION 33.07.A. In the event that Lessee exercises its right to hire the
Additional Space as provided in Section 33.01, Lessor agrees that Lessee shall
have the right, subject to Lessor's consent, which shall not be unreasonably
withheld, to install, use and maintain and internal staircase between the
Demised Premises and the Additional Space (the "Internal Staircase").
B. If Lessor shall grant its consent to the installation, use or
maintenance of the Internal Staircase, then the same shall (i) be installed and
maintained at the sole cost and expense of Lessee and in a location reasonably
acceptable to Lessor, (ii) be installed and maintained in a good and workmanlike
manner, and in compliance with all applicable Legal Requirements (including
existing zoning requirements), Insurance Requirements and Environmental Laws,
(iii) be consistent with the use of the Demised Premises provided for herein,
(iv) be performed in accordance with plans and specifications approved prior to
the commencement of any work by the appropriate Governmental Authorities and by
Lessor, which approval by Lessor will not be unreasonably withheld, conditioned
or delayed, (v) be performed under the supervision of a licensed architect
reasonably approved by Lessor and in accordance with Lessor's Standard
Requirements For Alterations To Be Performed By Lessees', as may be reasonably
amended from time to time; and (vi) be subject to Lessor's right to require
Lessee, upon the expiration or sooner termination of this Lease, to remove the
Internal Staircase and restore the Demised Premises and Additional Space to the
condition existing prior to the installation of the Internal Staircase.
ARTICLE 34- DEFINITIONS
SECTION 34.01 For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) "Additional Rent" shall mean all sums of money, other than Fixed Rent,
as shall become due from and payable by Lessee hereunder.
(b) "Building" shall mean the building commonly known as and located at 800
Westchester Avenue, Rye Brook, New York and all structures and improvements, and
related facilities, including paved areas and all parking lots adjacent and/or
appurtenant thereto (other than "Building Equipment," as such term is herein
defined), now or hereafter erected, constructed or situated on the Property,
underlying or appurtenant to the Building or any part thereof, together with all
alterations, additions and improvements thereto and all restorations and
replacements thereof.
(c) "Building Equipment" shall mean all machinery, systems, apparatus,
facilities, equipment and fixtures of every kind whatsoever now or hereafter
belonging, attached to and used exclusively (whether or not same constitute
fixtures), or procured for exclusive use, in connection with the operation or
maintenance of the Building and/or Property, including water, sewer and gas
connections, all heating, electrical, lighting, and power equipment, engines,
furnaces, boilers, pumps, tanks, dynamos, motors, generators, conduits,
plumbing, cleaning, fire prevention, refrigeration, ventilating, air cooling,
air conditioning equipment and apparatus, cranes, elevators, escalators, ducts
and compressors and any and all replacements thereof and additions thereto; but
excluding, however, (i) Lessee's Property, (ii) property of any sublessee which
sublessee may be authorized to remove from the Building upon and subject to the
terms and conditions of its sublease and this Lease, (iii) property of
contractors servicing the Building, and (v) improvements for water, gas, and
electricity and other similar equipment or improvements owned by any public
utility company or any governmental agency or body.
(d) "Cost" shall mean that Lessor will perform all such services on a "cost
plus" basis, whereby Cost shall include, but not be limited to, the cost of
sub-contractors, material, equipment rental, transportation and delivery items,
permits, fees, taxes, insurance's, debris removal, demolition, safety
protection, labor, supervision, project management, purchasing, expediting and
material handling, and shall also include a contingency, based on the complexity
of the work to be performed, of up to five percent (5%) of the total of all such
items otherwise included within such definition (the "Trades"). In addition,
with respect to Lessor's Work as provided for in Article 8 of this Lease or
Alterations as provided for in Article 25 of this Lease, Cost shall also include
Lessor's fee for acting as general contractor which shall be equal to the then
prevailing rates being charged by general contractors for similar work,
provided, however, that with respect to decorating only, such fee shall be
applicable to labor and costs of installation, but shall not be applicable to
the cost of furniture, art and similar items otherwise included therein. Lessee
agrees that the same shall be collectible as Additional Rent pursuant to the
Lease, and in default of payment thereof Lessor shall, in addition to all other
remedies, have the same rights as in the event of default of payment of rent.
(e) "Environmental Laws" shall mean any and all Federal, state, local, or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental conditions
at the Demised Premises, Building or Property as now or may at any time
hereafter be in effect, including but not limited to and without limiting the
generality of the foregoing, The Clean Water Act also known as the Federal Water
Pollution Control Act, 88 U.S.C. ss.ss.1251 et seq., the Toxic Substance Control
Act, 15 U.S.C. ss.ss.2601 et seq., the Clean Air Act, 42 U.S.C. ss.ss.7401 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss.ss.186
et seq., the Safe Drinking Water Act, 42 U.S.C. ss.ss.300f et seq., the Surface
Mining Control and Reclamation Act, ss.1201 et seq., 80 U.S.C. ss.1201 et seq.,
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. ss.ss.9601 et seq., the Superfund Amendment and
Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. ss.1818, the
Emergency Planning and Community Right to Know Act, 42 U.S.C. ss.ss.1101 et
seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss.ss.6901
et seq., and the Occupational Safety and Health Act as amended ("OSHA"), 29
U.S.C. ss.655 and ss.657, together with any amendments thereto, regulations
promulgated thereunder and all substitutions thereof.
(f) "Hazardous Material" shall mean (i) Any hazardous, toxic or dangerous
waste, substance or material defined as such in (or for the purpose of) CERCLA,
SARA, RCRA, or any other Environmental Law as now or at any time hereafter in
effect; (ii) any other waste, substance or material that exhibits any of the
characteristics enumerated in 40 C.F.R. ss.ss.261.20 through 261.24, inclusive,
and those extremely hazardous substances listed under Section 902 of SARA that
are present in threshold planning or reportable quantities as defined under SARA
and toxic or hazardous chemical substances that are present in quantities that
exceed exposure standards as those terms are defined under Section 6 and 8 of
OSHA and 29 C.F.R. Part 1910; (iii) any asbestos or asbestos containing
substances whether or not the same are defined as hazardous, toxic, dangerous
waste, a dangerous substance or dangerous material in any Environmental Law;
(iv) "Red Label" flammable materials; (v) all Laboratory Waste and by-products;
and (vi) all biohazardous materials.
(g) "IDA Lease" shall mean that certain lease by and between Lessor, as
landlord, and The County of Westchester Industrial Development Agency, as
tenant, dated September 10, 2004 and that certain sublease by and between The
County of Westchester Industrial Development Agency, as sublessor and Lessor, as
sublessee, dated September 10, 2004, and all renewals, modifications,
replacements, substitutions and extensions thereof.
(h) "Insurance Requirements" shall mean the rules, regulations, orders and
other requirements of any insurance rating or regulatory organization having
jurisdiction of, and which are applicable to, the Demised Premises and of any
liability, casualty, or other insurance policy which either Lessor or Lessee is
required hereunder to maintain or may maintain hereunder.
(i) "Legal Requirements" shall mean the requirements of every statute, law,
ordinance, regulation, rule requirement, order or directive, now or hereafter
made by any Federal, state or local government or any department, political
subdivision, bureau, agency, office or officer thereof, or any other
governmental authority having jurisdiction, including the rules and regulations
of any national securities exchange (a "Governmental Authority") with respect to
and applicable to (i) the Demised Premises and appurtenances thereto, and/or
(ii) the condition, equipment, maintenance, use or occupation of the Demised
Premises, including the making of an alteration or addition in or to any
structure upon, connected with or appurtenant to the Demised Premises.
(j) "Lessee's Delays" shall mean any and all delays caused by or
attributable to any action or failure or refusal of Lessee to perform a duty of,
Lessee or any person claiming through or under Lessee, or any agent, servant,
employee, director, shareholder, contractor or invitee of Lessee or any such
person.
(k) "Lessee's Property" shall mean all articles of personal property and
fixtures and other property, which have been installed or affixed on, in or to,
or brought into, the Demised Premises, at the expense of Lessee or any permitted
sublessee of Lessee or other permitted occupant of the Demised Premises and
without any credit or allowance by Lessor, which are not replacements or any
property of Lessor (whether any such replacement is made at Lessee's expense or
otherwise), and which do not constitute alterations, changes, additions, or
improvements to the Demised Premises or any appurtenances thereto.
(l) "Lessee's Proportionate Share" shall mean a fraction the numerator of
which is equal to the rentable square footage that Lessee occupies in the
Demised Premises, and the denominator of which is equal to the total rentable
square footage of all of the buildings located on the Property, as it presently
exists or may hereinafter be increased or enlarged. As of the Commencement Date,
the total rentable square footage of the Building located on the Property, shall
be deemed to consist of Four Hundred and Seventy Thousand (470,000), the total
rentable square footage of the Demised Premises shall be deemed to consist of
Fifty-Two Thousand, Nine Hundred and Sixty (52,960) rentable square feet, and
Lessee's Proportionate Share shall be deemed to be Eleven and Twenty-Seven
Hundredths (11.27%) percent. Lessee and Lessor agree that Lessee's Proportionate
Share is based upon BOMA ANSI Z65.1-1996 definitions of rentable and useable
square footage as of the Commencement Date in measuring the Demised Premises and
the Building on the Property and represents an agreed upon percentage which
shall not be contestable by either party at a future date.
(m) "Lessor's Agents" shall be deemed to include agents, servants,
employees, directors, officers, shareholders and contractors of Lessor.
(n) "Lessor's Lobby Renovation Work" shall mean the work more particularly
set forth on EXHIBIT "J" annexed hereto and made a part hereof.
(o) "Normal Working Hours" shall mean only those between the hours of 8:00
A.M. and 7:00 P.M., Monday through Friday, exclusive of New Years Day, the day
designated as the legal holiday for the celebration of Washington's Birthday,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas Day and
all union holidays.
(p) "Unavoidable Delays" shall mean any and all delays beyond Lessor's
reasonable control, including Lessee's Delays, governmental restrictions,
governmental preemption, strikes, labor disputes, lockouts, shortages of labor
and materials, enemy action, civil commotions, riot, insurrection and fire,
other casualty and other acts of God.
(q) "Untenantable" shall mean actual inability to use space in the Demised
Premises for the purposes permitted by Section 4.01.
SECTION 34.02. For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The terms "include", "including", and "such as" shall be construed as
if followed by the phrase "without being limited to".
(b) Whenever this Lease provides that Lessee shall pay Lessor interest at
the "maximum legal rate" then interest shall be payable at the highest rate of
interest permitted at the relevant time by applicable law to be paid by Lessee
without impairing the validity or enforceability of this Lease and without
incurring any civil or criminal penalty.
(c) The term "obligations of this Lease" and words of similar import, shall
mean the covenants to pay Fixed Rent and Additional Rent and all of the other
covenants and conditions contained in this Lease. Any provision in this Lease
that one party or the other or both shall do or not do or shall cause or permit
or not cause or permit a particular act, condition or circumstance shall be
deemed to mean that such party so covenants or both parties so covenant, as the
case may be.
(d) The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(e) Reference to "substantially complete" and words of similar import shall
be deemed to mean, with regard to construction work, completion but for such
minor details of work, the non-completion of which would not materially
interfere with the utility of the affected space and a certificate of occupancy
has been issued by the Governmental Authority having jurisdiction over the
Demised Premises.
(f) Reference to "termination of this Lease" includes expiration or earlier
termination of the Term or cancellation of this Lease pursuant to any of the
provisions of this Lease or to law. Upon the termination of this Lease, the Term
and estate hereby granted by this Lease shall end at noon on the date of
termination as if such date were the date of expiration of the Term and neither
party shall have any further liability or obligation to the other after such
termination (i) except as shall be expressly provided for in this Lease, and
(ii) except for such obligations as by their nature or under the circumstances
can only be, or by the provisions of this Lease, may be, performed after such
termination, and, in any event, unless expressly otherwise provided in this
Lease, any liability for a payment which shall have accrued to or with respect
to any period ending at the time of termination shall survive the termination of
this Lease.
ARTICLE 35- MISCELLANEOUS
SECTION 35.01. This Lease shall be governed in all respects by the laws of
the State of New York applicable to leases made and to be performed wholly
therein.
SECTION 35.02. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, single or plural, as the identity of
the person or persons or entity or entities in question may require. The term
"person" shall be deemed to include individuals, corporations, partnerships,
joint ventures, firms, associations and other entities.
SECTION 35.03. All provisions of this Lease shall be deemed and construed
to be "conditions" as well as "covenants", as though the words specifically
expressing or importing covenants and conditions were used in each separate
provision hereof.
SECTION 35.04. If any provision of this Lease or application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
SECTION 35.05. The article headings in this Lease are inserted only as a
matter of convenience and reference and are not to be given any effect
whatsoever in construing this Lease.
SECTION 35.06. This Lease contains the entire agreement between the parties
regarding the Demised Premises and shall not be modified in any manner except by
an instrument in writing executed by the parties or their respective successors
in interest. No waiver or modification by either party or any provision or
covenant of this Lease shall be deemed to have been made unless such waiver is
expressed in writing and signed by the party against whom such waiver or
modification is sought.
SECTION 35.07. Lessee agrees with Lessor that Lessee will not record this
Lease or any memorandum of this Lease without the prior written consent of
Lessor.
SECTION 35.08. The covenants, agreements, terms, provisions and conditions
contained in this Lease shall apply to and inure to the benefit of and be
binding upon Lessor and Lessee and their respective successors and assigns,
except as otherwise provided for herein.
SECTION 35.09. Upon request of Lessor, but not more often than once each
fiscal or calendar year, as the case may be, Lessee and any such person shall
submit to Lessor true, correct, current and complete financial statements of
Lessee.
SECTION 35.10. Solely for the purposes of a proceeding under the present or
future federal bankruptcy act or any other present or future applicable federal,
state or other statute or law (a "bankruptcy law"), the following terms and
conditions have been agreed upon by Lessor and Lessee:
(a) In the event of a default by Lessee under this Lease continuing after
the filing of a voluntary or involuntary petition (a "pre-petition default")
under any bankruptcy law, a period exceeding thirty (30) days for curing such
default shall in no event be deemed reasonable.
(b) In order to be deemed adequate assurance by Lessee for the cure of any
pre-petition default, Lessee, or the trustee, as the case may be, must (i)
deposit with a banking institution selected by Lessor securities, in negotiable
form, issued by the United States of America, with a fair market value, at all
relevant times, equal to twice the amount of rent due or the cost, as estimated
by Lessor of curing the pre-petition default, as the case may be, or (ii) grant
to Lessor a security interest or lien, which shall be superior to any and all
claims and liens, on any of Lessee's property that is valued at liquidation at
twice the amount of such rent or cost.
(c) In order to be deemed adequate assurance by Lessee, with respect to the
payment of rent due after the filing of a voluntary or involuntary petition
under any bankruptcy law, Lessee must (i) deposit with a banking institution
selected by Lessor securities in negotiable form, issued by the United States of
America, with a fair market value, at all relevant times, of not less than six
(6) months' rent, or (ii) grant a security interest or lien, which shall be
superior to any and all claims and liens, in any of Lessee's property that is
valued at liquidation at not less than six (6) months' rent.
SECTION 35.11. Lessee represents and warrants: (i) that it is a corporation
duly formed under laws of the state of its formation and is authorized to do
business in the State of New York; (ii) that it has all requisite authority to
execute and to enter into this Lease and that the execution of this Lease will
not constitute a violation of any internal by-law, agreement or other rule of
governance, and (iii) that the individual executing this Lease on behalf of
Lessee is so authorized and Lessee shall supply Lessor with written
documentation evidencing such authority upon or prior to Lessee's execution of
this Lease.
SECTION 35.12. Lessor hereby agrees that Lessee's officers, directors and
employees Lessee shall have, as appurtenant to the Demised Premises, the
non-exclusive right to use exercise facility located in the Building of which
the Demised Premises are part and the cafeteria and executive cafeteria,
provided, however, that: (i) such officers, directors, and employees each pay
Lessor the monthly charges therefor (the "Exercise Fee"); and (ii) each such
officer, director, and employee signs the health care waiver in the form annexed
hereto as EXHIBIT "K." Lessee hereby agrees that Lessee shall have the right to
change the Exercise Fee, from time to time, with not less than thirty (30) days
prior written notice to Lessee, and such increased amount shall be paid by
Lessee, provided, however, that such increase shall not exceed the then current
fair market value for similar exercise facilities in first class office building
located in Westchester County, New York.
SECTION 35.13. Lessor agrees that the Exercise Fee and the prices being
charged in the cafeteria shall be the same for all tenants in the Building. In
the event, Lessor offers any other tenant in the Building a discount on or a
reduction in the Exercise Fee and/or cafeteria prices, then Lessee shall be
entitled to the receive the same discounts or reductions.
SECTION 35.14.A. In anticipation of executing and delivering the Lease,
Lessor and Lessee hereby agree not disclose, directly or indirectly, in any
print (e.g. press releases) or electronic media the Confidential Information (as
hereinafter defined) to any other person, firm or entity without the specific
written approval and consent of the other party, except to the extent required
pursuant to this Lease or by Legal Requirements, Insurance Requirements or
Environmental Law, or the IDA (as hereinafter defined) or Lessor may confirm to
any request from the media that Lessee has taken space in the Building.
B. Lessor and Lessee hereby acknowledge that breach of the provisions of
this Section 35.14 will cause irreparable damage to the other party and hereby
consent to the issuance of an injunction restraining such breach as a matter of
course in any action instituted for that purpose without limitation to any
additional remedies that such party may seek against the breaching party to
protect such Confidential Information, including reasonable attorneys fees and
court costs incurred in connection therewith.
C. As used herein, Confidential Information" shall mean the fact that this
Lease has been executed or that Lessee is a tenant in the Building, the Fixed
Rent, Additional Rent, the Alteration Fund, the Supplemental Alteration Fund,
Additional Space Allowance and all other financial matters and charges that are
being paid by either party under this Lease.
SECTION 35.15.A. From and after the Rent Commencement Date, Lessor hereby
agrees that in the event Lessor receives a bona fide offer to lease (the
"Restaurant Offer") a portion of space in the Building to a tenant for use a
"quick service" restaurant (the "Restaurant Space") it shall give Lessee notice
of the terms and conditions of the Restaurant Offer and Lessee, or its
affiliated and/or related entities, shall have the right, at its option, to
lease all such Restaurant Space on the same terms and conditions of the
Bona-Fide Offer for use as an Arby's restaurant only.
B. Lessee shall, within Ten (10) business days after receipt of the notice
from Lessor that it has received the Restaurant Offer, notify Lessor of its
intention to lease the Restaurant Space (time being of the essence with respect
thereto) on the same terms and conditions as contained in the Restaurant Offer.
Lessee's failure to notify Lessor within the Ten (10) business day period shall
be deemed a waiver of the right to lease the Restaurant Space.
C. Any notice of election to exercise the right to lease the Restaurant
Space as hereinbefore provided must be in writing and sent to Lessor as provided
in Article 21. Neither the right granted to Lessee in this Article to lease the
Restaurant Space, nor the exercise of such right by Lessee, shall prevent Lessor
from exercising any option or right granted or reserved to Lessor in this Lease
to terminate this Lease.
D. The right of Lessee to hire the Restaurant Space as provided herein is
conditioned in all respects upon there being no Event of Default in the
observance or performance of any term, covenant, condition or agreement on
Lessee's part to be observed or performed under this Lease at the time the
notice of exercise is given. Any termination, cancellation or surrender of this
Lease shall terminate Lessee's right to lease the Restaurant Space.
SECTION 35.16. Lessor acknowledges that Lessee has made application to the
County of Westchester Industrial Development Agency ("IDA") for certain tax
exemptions and other benefits in connection with Lessee's leasing of the Demised
Premises. Lessor agrees to reasonably cooperate with Lessee in connection with
Lessee's application for such tax and other benefits which may be sought by
Lessee from the IDA, including the execution of any reasonably necessary or
appropriate modifications to this Lease, including, but not limited to, granting
Lessor's consent to an assignment of this Lease to the IDA and the simultaneous
subleasing of the Demised Premises from the IDA to Lessee, provided, however,
that such modification shall not adversely effect any of the rights, remedies or
benefits of Lessor at law or in equity, or increase the obligations of Lessor
under this Lease, except to a de minimus extent. Lessor hereby agrees that the
obligation to provide simultaneous notices to Lessee and the IDA shall in and of
itself constitute a de minimus obligation, provided, however, that the providing
of such notices shall not increase or enlarge the time within which Lessee has
to cure an Event of Default. Lessee hereby acknowledges that such cooperation of
Lessor is at the request of Lessee, and in order to induce Lessor to so
cooperate Lessee agrees that: (i) to the extent that Lessor shall incur any
reasonable out-of-pocket costs or expense in so cooperating or in rendering such
assistance (including, without limitation, reasonable legal and other
professional fees and all reasonable costs incurred in obtaining State and City
tax rulings regarding the IDA benefits transaction), Lessee shall reimburse
Lessor for such expenses upon demand as Additional Rent; (ii) Lessee agrees to
indemnify and hold Lessor harmless from and against any and all loss, liability,
fines, suits, claims, obligations, damages, penalties, demands and actions, and
costs and reasonable expenses of any kind or nature (including architects',
engineers' and attorneys' fees) due to or arising out of Lessor's cooperation
with Lessee or in connection with the IDA benefits transaction, unless caused by
the wilful acts or omissions of Lessor, or its agents, employees,
representatives or contractors; and (iii) Lessee agrees to indemnify and hold
harmless Lessor, any direct owner or constituent partner of Lessor from and
against any and all loss, liability, fines, suits, claims, obligations, damages,
penalties, demands and actions, and costs and reasonable expenses of any kind or
nature (including reasonable attorneys' fees) suffered or incurred by any such
person or entity which is in excess of the costs which would have been suffered
or incurred in the absence of Lessee obtaining the IDA benefits, including,
without limitation, any increase in commercial rent or occupancy tax, real
property tax, transfer tax, transfer gains tax, Federal, State or local income
or franchise taxes or any other tax obligation, liability, or penalties incurred
by such person or entity, including any such taxes or penalties attributable to
the receipt of payment pursuant hereto.
SECTION 35.17. Lessor agrees to use it best efforts to abate any noise from
the lobby cafeteria/kitchen area and shall furnish and install, at its sole cost
and expense, the following: (i) appropriate baffling and sound insulating
materials in the cafeteria/kitchen area; (ii) potted trees and plants in the
cafeteria/kitchen area; and (iii) a white noise machine which shall be operated
during Normal Working Hours.
SECTION 35.18. Lessor and Lessee hereby agree to cooperate with each other
and comply with the provisions of the Odor Abatement Obligations set forth on
EXHIBIT "L" annexed hereto and made a part hereof so to abate, to the extent
reasonably practicable, the penetration of cooking smells into the Demised
Premises from the lobby cafeteria/kitchen area.
SECTION 35.19. This Lease may be executed in one or more counterparts, each
of which shall constitute an original but all of which, taken together, shall
constitute but one and the same instrument.
ARTICLE 36- ROOF SPACE
SECTION 36.01.A. From and after the Commencement Date, Lessor agrees that
Lessee shall have the right, subject to Lessor's reasonable consent (which shall
not be unreasonably withheld, conditioned or delayed), to use: (i) Lessee's
Proportionate Share of the total available square footage of the roof of the
Building to install, use and maintain on the roof of the Building satellites,
microwave dishes, supplemental HVAC equipment and/or electric generators (the
"Roof Equipment"); and (ii) those portions of the roof and roof ledge adjacent
to the Demised Premises as a roof deck for use by Lessee's officers, employees
and invitees (the "Roof Deck") for the Term of this Lease or any Renewal Term.
Lessee shall notify Lessor of its intention to install, use and maintain the
Roof Equipment and/or Roof Deck in accordance with the provisions of this Lease.
B. If Lessor shall grant its consent to the installation, use or
maintenance of the Roof Equipment and/or Roof Deck, as the case may be, then the
same shall: (i) be installed and maintained at the sole cost and expense of
Lessee and in a location reasonably acceptable to Lessor, (ii) be installed and
maintained in a good and workmanlike manner, and in compliance with all
applicable Legal Requirements (including existing zoning requirements),
Insurance Requirements and Environmental Laws, (iii) be consistent with the use
of the Demised Premises provided for herein, (iv) be performed in accordance
with plans and specifications approved prior to the commencement of any work by
the appropriate Governmental Authorities and by Lessor, which approval by Lessor
will not be unreasonably withheld, conditioned or delayed, (v) be of such nature
so as not to lessen the fair market value of the Building or Property, and (vi)
be performed under the supervision of a licensed architect reasonably approved
by Lessor and in accordance with Lessor's Standard Requirements For Alterations
To Be Performed By Lessees', as may be reasonably amended from time to time.
C. Except as otherwise specifically provided for in this Lease, Lessor
agrees that Lessee shall have exclusive use of the Roof Deck. Lessee shall also
have, subject to Lessor's consent, which consent shall not be unreasonably
withheld, conditioned or delayed, the right to install, use and maintain guard
rails, access doors, seating, flooring, tables and potted plants and potted
shrubs on and to the Roof Deck, provided, however, that same shall: (i) be
installed and maintained at the sole cost and expense of Lessee and in a
location reasonably acceptable to Lessor, (ii) be installed and maintained in a
good and workmanlike manner, and in compliance with all applicable Legal
Requirements (including existing zoning requirements), Insurance Requirements
and Environmental Laws, (iii) be consistent with the use of the Demised Premises
provided for herein; and (iv) be of such nature so as be consistent with the
architectural features of the Building or Property.
D. Any and all contractors to be involved in performing work shall be
subject to Lessor's prior approval, which shall not be unreasonably withheld,
conditioned or delayed.
E. Prior to installing the Roof Equipment and/or Roof Deck, as the case may
be, Lessee shall furnish Lessor with evidence reasonably satisfactory to Lessor
of such insurance as Lessor may require and such insurance shall be in full
force and effect during such installation and will cover, by endorsement or
otherwise, the risk during the course of such installation.
F. The right of Lessee to install, use or maintain the Roof Equipment
and/or Roof Deck as provided in this Section 33.01 is conditioned in all
respects upon there being no Event of Default in the observance or performance
of any term, covenant, condition or agreement on Lessee's part to be observed or
performed under this Lease both at the time the notice is given. Any
termination, cancellation or surrender of this Lease shall terminate Lessee's
right to install, use or maintain the Roof Equipment and/or Roof Deck, as the
case may be.
THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY OMITTED
SIGNATURES ARE ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, the parties to this Lease have executed the same
on the day and in the year first above written.
760-24 WESTCHESTER AVENUE, LLC, (Lessor)
By: 24 South Third Avenue Corp., its sole member
By: /s/ Robert P. Weisz
----------------------------------
Name: Robert P. Weisz
Title: President
800-60 WESTCHESTER AVENUE, LLC, (Lessor)
By: 60-3RD Ave. Corp., its sole member
By: /s/ Robert P. Weisz
----------------------------------
Name: Robert P. Weisz
Title: President
TRIARC COMPANIES, INC., (Lessee)
By: /s/ Stuart I. Rosen
---------------------------------
Name: Stuart I. Rosen
Title: Senior Vice President and
Secretary
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On this day of December, 2004, before me, the undersigned, personally
appeared ROBERT P. WEISZ, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s), or the person on behalf of which the
individual(s) acted, executed the instrument.
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On this day of December, 2004, before me, the undersigned, personally
appeared , personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person on behalf of which the
individual(s) acted, executed the instrument.
Notary Public