Exhibit 10.28
LEASE AGREEMENT
By and Between
Capitol Distributors Corp.
a New York Corporation
(herein "Landlord")
and
Petroleum Heat and Power Co., Inc.
a Minnesota Corporation
(herein "Tenant")
Demised Premises: (i) Approximately 135,400 square feet in building known
as 55-60 58th Street, Maspeth, County of Queens,
New York 11378
(ii) Entire parking facility at premises known as 56-25 56th
Street, Maspeth, County of Queens, New York 11378
Dated: As of February 7, 1997
INDENTURE OF LEASE
THIS INDENTURE OF LEASE made as of this 7th day of February, 1997,
by and between CAPITOL DISTRIBUTORS CORP., a New York corporation, having a
mailing address c/o Lawrence Michaels, 150 East 77th Street, New York, N.Y.
10021, hereinafter referred to as "Landlord", and PETROLEUM HEAT AND POWER CO.,
INC., a Minnesota corporation, having its principal office at 2187 Atlantic
Street, Stamford, Connecticut 06904, hereinafter referred to as "Tenant".
W I T N E S S E T H :
ARTICLE I
DEMISED PREMISES -- TERM OF LEASE
That the Landlord, in consideration of the rents herein reserved,
and of the agreements, conditions, covenants and terms on the part of the Tenant
hereinafter contained, hereby demises and leases to the Tenant, and the Tenant
hereby takes, hires and leases from the Landlord:
(a) approximately 135,400 square feet in the building (as
delineated on the plan annexed hereto as Exhibit "A") known as 55-60
58th Street, Maspeth, County of Queens, State of New York 11378 (the
legal description of the land on which
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such building is erected is set forth in Exhibit "B" annexed
hereto) (hereinafter the "demised building premises"), and
(b) the entire parcel of land, which is adjacent to the land
on which is located the building containing the demised building
premises, known as 56-25 56th Street, Maspeth, County of Queens,
State of New York (the legal description of which is set forth in
Exhibit "C" annexed hereto) (hereinafter referred to as the "demised
parking premises") (the demised building premises and the demised
parking premises are hereafter collectively referred to as the
"demised premises"),
the lease term hereinafter set forth, together with all of Landlord's rights,
privileges, easements and appurtenances, if any, in, over and upon adjoining and
adjacent public or private land, highways, roads and streets reasonably required
for ingress to and egress from the demised premises;
SUBJECT, however, to the following:
1. Any state of facts an accurate survey or visual inspection may
show.
2. All present and future zoning ordinances, laws and regulations of
the local government in which the demised premises are situated, and all present
and future ordinances, laws, regulations and orders of all boards, bureaus,
commissions and bodies of any
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municipal, town, village, county, state or federal government now or hereafter
having or acquiring jurisdiction of the demised premises and of the use and
improvement thereof.
3. The condition and state of repair of the demised premises as of
the date hereof (but subject to Landlord's obligations hereunder) and on the day
of the commencement of the term of this lease on July 1, 1997, and all
deterioration, injury, loss, damage or destruction which may hereafter occur due
to normal wear and tear, it being acknowledged by Tenant that it has inspected
the demised premises, including the structural components (as hereinafter
defined in Section 5.02) and the systems of the demised building premises,
including, without limitation, heating and air conditioning, electrical,
plumbing, elevator and sprinkler. Tenant acknowledges that subject to Landlord's
obligations hereunder the demised building premises, including without
limitation the structural components (as hereinafter defined in Section 5.02)
and systems (including, without limitation, heating and air conditioning,
electrical, plumbing, elevator and sprinkler) of the demised building premises,
are being leased to it "as is" without any representations, statements or
warranties, express or implied, by Landlord, and Landlord is not liable for any
latent defects therein.
4. Any future mortgages(s) on the fee of the demised premises
(provided Tenant obtains nondisturbance and recognition protection in accordance
with Article XII). Landlord represents that there is no present mortgage on the
fee of the demised premises.
5. Violations of law, ordinances, orders or requirements, if any,
now or hereafter noted in or issued by any federal, state, county, municipal,
town or village department or authority having jurisdiction and any conditions
constituting such violations
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although not so noted; provided, however, that Landlord will be responsible for
the payment of any fines and costs of cure arising from violations noted of
record prior to the date hereof and shall do all work necessary to cure such
violations diligently, but Tenant shall furnish without charge to Landlord an
expediter to effect the actual removal from the records of such violations.
6. Revocable nature of the right, if any, to maintain vault space,
areas or signs beyond the building lines.
7. Encroachments, if any, upon any street or highway adjoining or
abutting the demised premises.
8. Any real estate taxes, sewer rents and water charges which is not
a lien against the demised premises prior to the date hereof, but Landlord shall
be responsible for paying all real estate taxes for the period through June 30,
1997, and for all sewer rents and water charges which accrue up until the date
hereof.
9. Covenants, easements, agreements and restrictions of record, if
any, affecting the demised premises, and any future utility or telephone
easement granted by Landlord (which right of grant is expressly reserved to
Landlord) which does not materially interfere with Tenant's use of the demised
premises.
TO HAVE AND TO HOLD the demised premises unto Tenant for and during
a term of twenty (20) years beginning on July 1, 1997 and ending June 30, 2017,
unless sooner
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terminated as hereinafter provided. For purposes hereof, a lease year shall be
the twelve (12) month period commencing on each July 1 and ending on the
following June 30, and each succeeding twelve (12) month period thereafter.
Landlord and Tenant do hereby further covenant and agree:
ARTICLE II
FIXED RENT AND ADDITIONAL RENT
Section 2.01. Tenant shall pay to Landlord as fixed rent ("fixed
rent") for the demised premises the annual sum as follows: Seven Hundred
Seventy-Eight Thousand One Hundred Fifty ($778,150) Dollars for the first lease
year of this lease; Seven Hundred Eighty-One Thousand Five Hundred Twenty-Five
($781,525) Dollars for the second lease year of this lease; Seven Hundred
Eighty-Four Thousand Nine Hundred Eighty-One ($784,981) Dollars for the third
lease year of this lease; Seven Hundred Eighty-Eight Thousand Five Hundred
Twenty-Seven ($788,527) Dollars for the fourth lease year of this lease; Seven
Hundred Ninety-Two Thousand One Hundred Sixty-Three ($792,163) Dollars for the
fifth lease year of this lease; Eight Hundred Sixty-Three Thousand Five Hundred
Eighty-Nine ($863,589) Dollars for the sixth lease year of this lease; Eight
Hundred Sixty-Seven Thousand Four Hundred Five ($867,405) Dollars for the
seventh lease year of this lease; Eight Hundred Seventy-One Thousand Three
Hundred Twenty ($871,320) Dollars for the eighth lease year of this lease; Eight
Hundred Seventy-Five Thousand Three Hundred Thirty-Four ($875,334)
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Dollars for the ninth lease year of this lease; Eight Hundred Seventy-Nine
Thousand Four Hundred Forty-Seven ($879,447) Dollars for the tenth lease year of
this lease; Nine Hundred Twenty-Two Thousand Five Hundred Eighty-Six and 50/100
($922,586.50) Dollars for the eleventh lease year of this lease; Nine Hundred
Forty-Five Thousand Nine Hundred Eighty-Four and 36/100 ($945,984.36) Dollars
for the twelfth lease year of this lease; Nine Hundred Sixty-Nine Thousand Nine
Hundred Seventy-Seven and 66/100 ($969,977.66) Dollars for the thirteenth lease
year of this lease; Nine Hundred Ninety-Four Thousand Five Hundred Seventy-Five
and 40/100 ($994,575.40) Dollars for the fourteenth lease year of this lease;
One Million Nineteen Thousand Seven Hundred Sixty-Eight and 58/100
($1,019,768.58) Dollars for the fifteenth lease year of this lease; One Million
Forty-Five Thousand Five Hundred Ninety-Seven and 82/100 ($1,045,597.82) Dollars
for the sixteenth lease year of this lease; One Million Seventy-Two Thousand
Ninety and 12/100 ($1,072,090.12) Dollars for the seventeenth lease year of this
lease; One Million Ninety-Nine Thousand Two Hundred Eighteen and 48/100
($1,099,218.48) Dollars for the eighteenth lease year of this lease; One Million
One Hundred Twenty-Seven Thousand Thirty-Six and 98/100 ($1,127,036.98) Dollars
for the nineteenth lease year of this lease; and One Million One Hundred
Fifty-Five Thousand Five Hundred Sixty-Three and 70/100 ($1,155,563.70) Dollars
for the twentieth lease year of this lease.
All fixed rent and additional rent (as hereinafter provided) payable
hereunder shall be paid as follows:
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(i) the fixed rent in equal monthly installments in advance on the
first (1st) day of each and every month except that the fixed rent for the
first month of the first lease year shall be paid on the execution and
delivery of this lease.
(ii) in United States currency which shall be legal tender for the
payment of all debts, public and private;
(iii) except as otherwise specifically provided in this lease,
without any deduction, abatement, setoff or credit whatsoever; and
(iv) at the address set forth at the head of this lease, or at such
other address as the Landlord may hereafter designate in accordance with
this lease.
Section 2.02. Except to the extent otherwise provided in this lease,
it is the intention of the parties hereto, and it is hereby mutually covenanted
and agreed, that the Landlord shall receive the fixed rent free from all taxes
which, by the terms of this lease, are made payable by Tenant, and that Tenant
also shall pay directly or reimburse Landlord for all costs, charges, expenses
and damages (collectively, "Charges") which, except for the execution and
delivery of this lease, relate to or could have been chargeable during the term
hereby granted against the demised premises and/or would have been payable by
Landlord directly in respect of the demised premises, except that nothing herein
contained shall be deemed to require the payment by Tenant of any lien or
encumbrance created by orattributable
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to Landlord, including, but not limited to, principal or interest of any
mortgage or mortgages covering the fee of the demised premises.
Section 2.03. (a) Landlord shall be obligated and responsible for
paying all Real Estate Taxes (as such term is hereinafter defined), together
with any interest or penalties lawfully imposed upon the late payment thereof,
during the term hereof, or any subsequent period of retention of possession by
Tenant as a holdover or otherwise, assessed on the Property (as hereinafter
defined in this Section 2.03) which is attributable to the demised premises;
provided, however, that as between Landlord and Tenant, the Landlord's
obligation and responsibility for the payment of such Real Estate Taxes
attributable to the demised premises shall, commencing on the day of the
commencement of the term of this lease on July 1, 1997 (the "Tax Period
Commencement Date"), and continuing for the remainder of the term hereof, and
any subsequent period of retention of possession by Tenant as a holdover or
otherwise (the "Tax Period"), be limited to an aggregate of Two Hundred Sixteen
Thousand Three Hundred Fifteen and 50/100 ($216,315.50) Dollars ("Base Tax
Amount") for each fiscal tax year. Landlord represents to Tenant that the Base
Tax Amount is equal to the sum of (i) Tenant's proportionate share (based on
square footage) of the amount of Real Estate Taxes assessed for the fiscal tax
year July 1, 1996 to June 30, 1997 on the building in which the demised building
premises are located and on the land on which such building is situated (tax
parcel Block 2585, Lot 21, County of Queens) plus (ii) all Real Estate Taxes
assessed for the fiscal tax year July 1, 1996 to June 30, 1997 on the demised
parking premises (tax parcel
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Block 2585, Lots 7 and 18, County of Queens). The aforesaid tax parcels Block
2858, Lots 21, 7 and 18 and the improvements thereon are collectively referred
to as the "Property." The sum of (i) all Real Estate Taxes on the demised
parking premises (Block 2585, Lots 7 and 18), plus (ii) Tenant's proportionate
share (based on square footage) of all Real Estate Taxes on the land and
building in which the demised building premises are located (Block 2585, Lot
21), for any fiscal tax year during the Tax Period, which is in excess of the
Base Tax Amount, whether such excess is by reason of an increase in the tax rate
or an increase in the assessed valuation, or both, or by reason of the levying,
assessing or imposition of any new or additional Real Estate Taxes, shall be
paid by Tenant to Landlord as additional rent at least twenty (20) days before
the last date on which the Real Estate Taxes on the Property for such fiscal tax
year may be paid without penalty or interest. Landlord shall, after receipt by
Landlord of the bills for such Real Estate Taxes on the Property for each fiscal
tax year during the Tax Period, notify Tenant of the amount of the additional
rent due from Tenant as a result of such Real Estate Taxes for such fiscal tax
year. Upon request, Landlord shall deliver to Tenant a copy of the receipted
bill for such Real Estate Taxes as soon as it is available from the applicable
governmental authority, together with a copy of the cancelled check(s) used to
make such payment.
(b) If for any fiscal tax year during the Tax Period, the Real
Estate Taxes on the Property shall be adjusted, corrected or reduced, whether as
the result of the protest of any tentative assessment or by means of agreement,
or as the result of any legal proceedings, any additional rent becoming due in
that fiscal tax year which is attributable to
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Real Estate Taxes shall be determined on the basis of the corrected, adjusted or
reduced taxes. If Tenant shall have paid any additional rent which is
attributable to Real Estate Taxes for which Tenant is obligated prior to such
adjustment (and provided Tenant is not then in default under any of the terms,
covenants or conditions of this lease), Landlord shall credit Tenant
proportionately with the amount received by Landlord from the applicable taxing
authority relating to such adjustment, including any interest thereon, against
the next installment(s) of additional rent due under this lease which is
attributable to Real Estate Taxes.
(c) Nothing herein shall obligate Landlord to protest, apply
or otherwise commence legal or other proceedings to obtain a reduction in Real
Estate Taxes on the Property. If Landlord shall protest or commence legal or
other proceedings to obtain a reduction in such Real Estate Taxes, Tenant shall
continue to pay additional rent which is attributable to such Real Estate Taxes
as if no such protest had been made or proceeding had been commenced and any
adjustment resulting from such protest or proceeding will be made after the
final determination of the amount of such Real Estate Taxes. Tenant shall
reimburse Landlord for Tenant's proportionate share (based on square footage) of
all legal fees and disbursements incurred by Landlord in connection with such
contest with respect to tax parcel Block 2585, Lot 21 and all of such legal fees
and disbursements with respect to tax parcels Block 2585, Lots 7 and 18, within
twenty (20) days after receipt by Tenant of a copy of the bill for such fees and
disbursements, or, at Landlord's option, all such fees and disbursements shall
be deducted from any refund received by Landlord from the applicable taxing
authority in computing the amount of any credit due Tenant. If Landlord does not
protest or otherwise
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contest the Real Estate Taxes on the Property or any part thereof for any fiscal
tax year during the Tax Period, Tenant shall have the right to protest and
otherwise contest the amount or validity of such Real Estate Taxes if, in
accordance with paragraph (a) above of this Section 2.03, Tenant would be liable
for any such Real Estate Taxes in excess of the Base Tax Amount, by appropriate
legal proceedings, diligently pursued, provided that: (i) Tenant shall timely
make all payments of additional rent which are attributable to such contested
Real Estate Taxes; (ii) neither the demised premises nor any part thereof nor
any interest therein shall be in any danger of being sold, forfeited, or
interfered with; (iii) Tenant shall have furnished such security, if any, as may
be required in the proceedings in question or as may be reasonably required by
Landlord (provided, however, that the amount of any security required by
Landlord shall not exceed the sum of the installment of Real Estate Taxes in
question and interest and penalties on such installment through the anticipated
date of settlement); (iv) all expenses incurred in connection with such
proceedings shall be paid by Tenant; and (v) Landlord shall have the right of
reasonable approval of Tenant's selection of the attorney to handle such protest
or other proceeding.
(d) "Real Estate Taxes" shall mean all real estate taxes,
assessments, levies, impositions, charges and special assessments imposed and
payable on the Property (but excluding water and sewer charges). If, at any time
during the term of this lease, the methods of taxation shall be altered,
modified or changed, in whole or in part, so that, in lieu of, or as an addition
to, or as a substitute for the whole or any part of the taxes, assessments,
levies, impositions, charges or special assessments now levied, assessed or
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imposed on the Property, there shall be levied, assessed or imposed on the
Property any taxes, assessments, levies, impositions, charges or special
assessments not now levied, assessed, or imposed on the Property, including,
without limitation: (i) a tax, assessment, levy, imposition or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom; (ii) a
tax, assessment, levy, imposition, or charge measured by, or based in whole or
in part, upon the Property and imposed upon Landlord; (iii) a license fee
measured by the rents payable by a tenant to a landlord; (iv) an income, gross
receipts, capital stock or other tax levied against Landlord or the Property
which otherwise would constitute a Real Estate Tax; or (v) any other
governmental charges, whether federal, state, city, county or municipal, and
whether general or special, ordinary or extraordinary, foreseen or unforeseen,
then all such taxes, assessments, levies, impositions, charges or special
assessments, or the part thereof so measured or based, shall be deemed to be
included within the term "Real Estate Taxes" for the purposes hereof. As to any
assessment, Tenant's share shall be computed as if Landlord had elected to pay
same in installments over the longest period permitted by law, and Tenant's
share shall only include installments that would have been payable during the
term had Landlord so elected. As to any substitute tax, Tenant's share shall be
computed as if the Property were the only property owned by Landlord.
(e) If the Tax Period Commencement Date or the last date of
the Tax Period occurs on a day other than the first day or the last day of the
applicable fiscal year, then the additional rent payable pursuant to this
Article for such fiscal tax year shall be prorated using a fraction, the
numerator of which is the number of days in such fiscal tax year
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which occur during the Tax Period and the denominator of which is 365. Tenant's
obligation hereunder to pay additional rent for Real Estate Taxes for the Tax
Period shall survive the expiration or termination of the term of this lease.
(f) Except to the extent provided in paragraph (d) of this
Section 2.03, nothing contained in this Section 2.03 shall obligate Tenant to
pay to, or on behalf of, Landlord additional rent which is attributable to: (i)
any United States Federal tax on net income and items of tax preference or
Federal tax in lieu of a net income tax; (ii) any State tax imposed on or
measured by net income, or any State franchise or similar tax in lieu of a net
income or franchise tax; (iii) any county, municipal or local tax imposed on or
measured by net income; (iv) any personal property, gross receipts, gift,
payroll, stamp, excise, corporate, franchise, estate, inheritance, succession,
capital levy, capital stock or transfer tax imposed on Landlord; or (v) any Real
Estate Taxes imposed against the Property and covering a period other than the
Tax Period.
(g) Tenant shall pay directly to the applicable governmental
authority(ies) all water charges and sewer rent imposed with respect to the
demised premises arising on and after the date hereof and during the term of
this lease and any subsequent period of retention by Tenant of possession of the
demised premises.
Section 2.04. All amounts which Tenant is required to pay pursuant
to this lease (other than fixed rent) together with every fine, penalty,
interest and cost which may be added for non-payment or late payment thereof,
shall constitute additional rent. If Tenant shall
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fail to pay any such fixed rent and/or additional rent on or before the date on
which the same shall become due, Landlord shall have all the rights, powers and
remedies with respect thereto as are provided in this lease or by law.
Section 2.05. If Landlord shall not have received any installment of
fixed rent or any additional rent within five (5) business days after the same
shall have become due and payable, and Tenant shall not have, within three (3)
business days after receiving a telecopier notice from Landlord, delivered to
Landlord payment of such installment of fixed rent or additional rent that was
due and payable, Tenant shall pay Landlord a late charge of four (4%) percent of
the amount of each such installment which was not received by Landlord within
the additional three (3) business day period following the telecopier notice;
provided, however, that such additional three (3) business days notice shall not
be required before imposition of such late charge if within a twelve (12) month
period there is a third or further nonreceipt by Landlord of such installment
within five (5) business days after same is due .
Section 2.06. In addition to the late charge specified in Section
2.05, Tenant shall pay to Landlord interest on all overdue fixed and additional
rent from the date which is five (5) business days after the due date thereof
until paid at an annual rate which shall be two (2%) percent in excess of the
prime rate for such period as published from time to time in the eastern edition
of The Wall Street Journal.
Section 2.07. Except as specifically provided in this lease,
Landlord is not required to render any services of any kind to Tenant.
Furthermore, Tenant expressly
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acknowledges that, except as otherwise expressly and specifically provided for
in this lease, no event, occurrence or situation during the term hereof shall
relieve Tenant of the obligation to pay fixed and additional rent hereunder or
entitle Tenant to an abatement of same, and, except as otherwise expressly
provided herein, the obligations of Tenant hereunder are separate and
independent covenants and agreements and shall continue unaffected by any such
event, occurrence or situation.
ARTICLE III
USE OF THE DEMISED PREMISES
Section 3.01. The demised building premises shall be used only for
offices, administrative use and the storage and maintenance of trucks and any
other legal purpose, except as provided in Section 3.02. The demised parking
premises shall be used only for the parking and storage of vehicles and any
other legal purposes except as provided in Section 3.02.
Section 3.02. Tenant shall not use or knowingly permit to be used
any part of the demised premises for any unlawful purpose, nuisance or
disreputable purpose. The Tenant's use or storage on the demised premises of any
oil or petroleum products or any other hazardous or toxic materials shall be in
compliance with all applicable federal, state and local environmental laws.
Section 3.03. Tenant shall not at any time use or occupy the demised
premises in violation of any certificate of occupancy issued therefor or zoning
ordinance, it being agreed
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that Tenant shall be responsible financially and otherwise for obtaining any
amendment to the present certificate of occupancy or new certificate of
occupancy to lawfully permit the storage of trucks in the demised building
premises. Landlord shall not enter into any future agreement which would
derogate from the uses for which the demised premises may be used under this
lease, and shall not further amend the certificate of occupancy for the demised
building premises in such manner as would prohibit or materially impair the use
of the demised building premises for the uses set forth in Section 3.01. In the
event that any department of any local government in which the demised premises
are situated, or of the State of New York, shall at any time contend/or declare
during the term of this lease by notice, violation, order or in any other manner
whatsoever that the demised premises are being used for a purpose which is in
violation of any such certificate of occupancy, use permit or zoning ordinance,
Tenant shall either (i) discontinue such violative use of the demised premises
within fifteen (15) business days of being notified of same or with such lesser
time as required by the concerned governmental authority, or (ii) in good faith,
diligently undertake within a fifteen (15) business days period to contest any
notice or order with respect to the claimed violation in the manner and under
the conditions set forth in Section 4.05 hereof. Failure by Tenant to either
discontinue such claimed violation or contest same as aforesaid shall be
considered a default by Tenant.
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ARTICLE IV
OBLIGATIONS OF TENANT
Section 4.01. Beginning with the date hereof, Tenant shall have
right of access to the demised premises and the right to commence the changes
and alteration work pursuant to Article VII. Except as otherwise specifically
provided in this lease, beginning with the date hereof and continuing during the
term of this lease and any subsequent period of retention of possession by
Tenant as a holdover or otherwise, Tenant shall be solely responsible,
financially and otherwise, for the condition, operation, management and
maintenance of the demised premises (except for environmental problems which
Tenant establishes were not caused or introduced by Tenant), which
responsibility shall include but not be limited to:
(i) taking care of the demised premises and every part thereof
including systems and equipment (but excluding structural components as defined
in Section 5.02 provided, however, that Tenant shall be responsible for
maintaining, repairing and replacing structural components which it has
constructed pursuant to Article VII or thereafter and shall perform preventive
maintenance on the structural components for which Landlord is responsible such
as removing snow from the roofs) and maintaining and keeping same in good order,
condition; and repair;
(ii) suffering or permitting no waste, overloading, damaging,
defacing, nuisance or injury to the demised premises;
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(iii) maintaining and repairing sidewalks and curbs adjacent to or
abutting the demised premises and keeping the demised premises and such
sidewalks and curbs free of snow, ice, dirt, rubbish and other obstacles;
(iv) promptly making and paying the cost of all ordinary and
extraordinary repairs, painting and replacements required to the interior,
including the systems, of the demised premises (except for structural components
as defined in Section 5.02 for which Landlord is responsible pursuant to Section
5.02), which said repairs, painting and replacements shall be effected in a good
and workmanlike manner;
(v) paying for all utility, operating and maintenance expenses of
the demised premises;
(vi) effecting, keeping in force, and paying and/or reimbursing
Landlord for the premiums for insurance as provided in Article IX.
(vii) reimbursing Landlord for governmental license and inspection
fees proportionately (such as sprinkler inspection fees) or entirely (such as
elevator inspection fees) attributable to the demised premises within ten (10)
business days after demand therefor, it being understood that Tenant shall pay
directly to the concerned governmental departments all license permits and
inspection fees in connection with changes and alteration work performed by
Tenant as provided in Article VII;
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(viii) complying with local requirements regarding landscaping.
(ix) pay the water and sewer charges attributable to the demised
premises before interest or penalties are imposed;
Section 4.02. Tenant on and after the date hereof at its sole cost
and expense shall perform and comply with all the orders, regulations, rules and
requirements of every kind and nature of the municipal, county, town, village,
state and federal authorities applicable to the demised premises, and of any
applicable board of fire underwriters and of any other body, board, commission,
governmental or quasi-governmental authority or sovereign concurrently or
successively exercising fire and other hazard safety ratings and requirements
applicable to the demised premises (including any orders and requirements for
investigating and rectifying any possible hazardous or toxic materials,
condition, discharge, leakage or activity introduced or caused by Tenant or by
Tenant's invitees, contractors or permitted sublessees), and Tenant shall so
perform and comply, whether or not such laws, rules, orders, ordinances,
regulations or zoning regulations shall now exist or shall hereafter be enacted
or promulgated and whether or not such laws, rules, orders, ordinances,
regulations or zoning regulations may be said to be within the present
contemplation of the parties hereto, except Tenant shall not be responsible for
environmental problems which Tenant establishes were not caused or introduced by
Tenant and except that Landlord shall be responsible for any changes or repairs
to structural components that are required by existing or future laws,
regulations or orders other than those structural components which have been
constructed by the Tenant. In
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determining whether Tenant introduced or caused any possible hazardous or toxic
materials, condition, discharge, leakage or activity, Tenant shall have to
establish that such materials, condition, discharge, leakage or activity were
not introduced or caused by Tenant (or Tenant's invitees, contractors or
permitted sublessees). Tenant shall not be responsible for environmental
problems it did not introduce or cause. Without limiting such obligations, if
any, that may be imposed by law or order of any governmental body upon Tenant,
at the written request of the Landlord but not more than four (4) times during
the term of this lease and, in addition, upon the expiration or sooner
termination of the term of this lease, Tenant shall hire at its sole cost and
expense an independent environmental firm, reasonably satisfactory to Landlord,
to do a visual inspection of the demised premises similar to those visual
inspections currently done in connection with Phase I Environmental Site
Assessment. If it is the conclusion of the firm handling the inspection that,
based on the results of such inspection, further investigations are in order,
Tenant shall have such investigations done at its sole cost and expense. If the
hazardous or toxic materials were introduced or caused by Tenant (or Tenant's
invitees, contractors or permitted sublessees), Tenant shall take all
appropriate action (including where appropriate coordination with responsible
governmental agencies which may require remediation) in connection therewith at
its sole cost and expense. Environmental reports, in duplicate, regarding the
demised premises have been signed on the first page by respective
representatives of Landlord and Tenant and the subsequent pages initialed by
such representatives.
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Section 4.03. If on or after the date hereof any proceedings are
instituted or orders made for the widening or other enlargement of any street
contiguous to the demised premises, requiring removal of any projection or
encroachment on, under or above any such street, or any changes or alterations
upon the demised premises, or in the appurtenances, Tenant, at Tenant's own cost
and expenses, shall comply promptly with such requirements other than with
respect to structural components for which Landlord is responsible in accordance
with Section 5.02.
Section 4.04. Tenant shall have the right to contest or to have
reviewed, in Tenant's name or (wherever necessary) in Landlord's name, any
order, regulation or requirements or notice issued against the demised premises
by legal proceeding or in such other manner as it deems suitable and may defer
compliance therewith until the determination of such contest or review, provided
such deferral, to Landlord's reasonable satisfaction, shall not subject Landlord
to criminal prosecution, penalty or other liability or place in jeopardy
Landlord's title to any part of the fee to, or the certificate of occupancy or
use permit for, the demised premises. If any such actions or proceedings are
instituted, they shall be conducted promptly at the expense of Tenant (if
Tenant's responsibility) and free of expense to Landlord (unless Landlord's
responsibility), and if as a result of any such proceedings, any order,
regulation, rule, requirement or notice is modified or partially revoked or
canceled, Tenant (if Tenant's responsibility) shall then be obligated to comply
with only that part thereof which shall remain in force and effect. The legal
proceedings herein referred to shall include appropriate appeals from judgments,
decrees or orders, but all such original legal proceedings
21
and appeals shall be begun as reasonably soon as possible after the filing of
any such order, regulation, rule, requirement or notice and shall be prosecuted
to final adjudication with all reasonable promptness and dispatch. If and
whenever any such order, regulation, rule, requirement or notice shall become
absolute against Tenant and the demised premises, or against Landlord after
contest thereof, Tenant (if Tenant's responsibility) will comply with the same
with due diligence.
Landlord, without liability or expense to Landlord (unless
Landlord's responsibility) shall cooperate with Tenant and execute any documents
or pleadings required for such purpose, provided that Landlord shall reasonably
be satisfied that the facts and data set forth in any such documents or
pleadings are accurate.
Section 4.05. Tenant agrees to give Landlord notice of any law,
rule, order, ordinance, or regulation enacted, passed, promulgated, made, issued
or adopted by any of the governmental departments or agencies or authorities
hereinbefore mentioned affecting the demised premises, a copy of which is served
upon or received by Tenant, or a copy of which is posted on, or fastened or
attached to, the demised premises, or otherwise brought to the attention of
Tenant, by mailing within five (5) business days after such service, receipt,
posting, fastening or attaching or after the same otherwise comes to the
attention of the Tenant, a copy of each and every one thereof to Landlord. At
the same time, the Tenant will inform Landlord as to the work or steps which the
Tenant proposed to do or take in order to comply therewith. Provided, however,
that if the same would require any alterations such as would
22
reduce the value of the demised premises or change the general character or
design of the demised premises, and if the Tenant shall not desire to contest
the same, Tenant will, if Landlord so requests (unless such request would
substantially interfere with Tenant's use), defer compliance therewith in order
the Landlord may, if Landlord wishes at it sole cost and expense, contest or
seek modification of or other relief with respect to such requirements, but
nothing herein shall relieve Tenant of the duty and obligation, at Tenant's
expense (if Tenant's responsibility), to comply with such requirements, or such
requirements as modified whenever Landlord shall so direct, except for
Landlord's obligations as expressly set forth in this lease with respect to
changes or repairs to structural components.
Section 4.06. Tenant shall defend, indemnify and save Landlord and
its officers, directors, employees, shareholders and agents (collectively,
"Landlord's representatives") harmless from and against any and all liability,
loss, damages, expenses, costs of action, reasonable attorneys fees, suits,
interest, fines, penalties, claims and judgments (to the extent that the same
are not paid out of the proceeds of any policies or insurance for which the
premiums are paid by Tenant or reimbursed to Landlord by Tenant) arising on and
after the date hereof and during the term of this Lease and any subsequent
retention of possession by Tenant as a holdover or otherwise, from injury or
claim of injury, to person or property of any and every nature, and from any
matter or things arising out of Tenant's occupation, possession, use,
management, improvement, alteration or control of the demised premises and of
the equipment and fixtures therein, and of the adjacent streets, sidewalks,
passages, spaces, areas and vaults, or arising out of any action or proceeding
which Tenant
23
may hereinafter bring for the specific purposes as hereinbefore provided, or
arising out of Tenant's failure to perform fully and promptly each and every
covenant, term, condition and agreement in this lease provided to be performed
by Tenant; provided, however, that the obligation of Tenant so to defend,
indemnify and save harmless Landlord and Landlord's representatives shall not be
applicable where the cause thereof arises after the re-entry by Landlord into
the demised premises pursuant to the applicable covenant of this lease providing
specifically therefor; and Tenant shall defend by counsel (who shall be
reasonably satisfactory to Landlord) any and all suits that may be brought, and
claims which may be made against Landlord or Landlord's representatives, or in
which Landlord of Landlord's representatives may be impleaded with others,
whether Landlord or Landlord's representatives shall be liable or not, upon any
such mentioned liability, loss, damage, expense, cost of action, suit, interest,
fine, penalty, claim and judgment, and Tenant shall satisfy, pay and discharge
any and all judgments that may be recovered against Landlord or Landlord's
representatives in any such action and any interest thereon; provided, further,
however, that Landlord may, at its option and expense, intervene in such suits
with counsel of its choice. The obligations of Tenant in this Section 4.06 (and
elsewhere in this lease) to defend and indemnify Landlord and Landlord's
representatives are separate and apart from and not in lieu of Tenant's
obligation to provide for Landlord's and Landlord's representatives' benefit and
protection the comprehensive general liability insurance required in accordance
with Article IX and during any repair, alteration, improvement or installation
work being done by or for Tenant at the demised premises.
24
Section 4.07. If at any time prior to or during the term of this
lease or any subsequent retention of possession by Tenant by reason of a
holdover or otherwise (or within the statutory period thereafter if attributable
to Tenant), any mechanic's or other lien or order for payment of money shall be
filed against the demised premises or any part thereof for work performed by or
on behalf of Tenant or a permitted sublessee, Tenant, if such lien results from
Tenant's or such permitted sublessee's failure to pay, shall at its own cost and
expense procure the same to be discharged by payment, bonding or otherwise, as
provided by law, within twenty (20) business days after notice by Landlord to
Tenant of the filing thereof, but nothing herein contained shall in any way
prejudice the rights of Tenant to contest to final judgment or decree any such
lien. Tenant shall, upon reasonable notice and request in writing by Landlord,
defend for Landlord, at Tenant's sole cost and expense, any action or proceeding
which may be brought on or for the enforcement of any such lien or order
aforesaid for payment of money, if due to Tenant's (or a sublessee's) failure to
pay, and will pay any damages and satisfy and discharge any judgment entered in
such action or proceeding and save harmless Landlord from any liability, claim
or damage resulting therefrom. In default of Tenant's procuring the discharge of
any such lien as aforesaid Landlord may without notice, and without prejudice to
its other remedies hereunder, procure the discharge thereof by bonding or
payment or otherwise, and all cost and expenses including reasonable attorneys
fees which Landlord shall incur shall be paid by Tenant to Landlord as
additional rent on the first day of the next succeeding month.
25
Section 4.08. Landlord shall not under any circumstances be liable
to pay for any work, labor or services rendered or materials furnished to or for
the account of Tenant upon or in connection with the demised premises, and no
mechanic's or other lien for such work, labor or services or material furnished
shall, under any circumstances, attach to or affect the reversionary interest of
Landlord in and to the demised premises or any part thereof. Nothing in this
lease contained shall be deemed or construed in any way as constituting the
request or consent of Landlord, express or implied, by inference or otherwise,
to any contractor, subcontractor, laborer or materialman for the performance of
any labor or the furnishing of any materials or any specific improvements,
alteration to or repair of the demised premises or any part thereof, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any lien against the demised premises.
Section 4.09. In the event any vault now or hereafter constructed in
front of or adjoining the demised premises, or any part thereof, or any portico,
stoop, window, or other projection or erection, of any kind beyond the building
lines of the demised premises shall be ordered removed, or shall be removed as
the result, or by virtue of any law, order or ordinance of any federal, state,
county, municipal, town, village or other public authority, Tenant covenants and
agrees that such removal shall not constitute, or be deemed or construed to be,
a violation or breach of any covenant of this lease on the part of Landlord to
be kept, observed and performed, or a ground for any claim for damage against
Landlord, or a ground for any claims for the diminution or abatement of rent;
and such removal and incidental alteration or
26
repair shall be made to the satisfaction of Landlord by and at the cost and
expense of Tenant, and Tenant agrees to indemnify Landlord against such cost or
expenses, as well as against all costs, damages, reasonable attorneys fees and
penalties arising out of a failure to comply with any law, order or ordinance
directing such removal or alteration. In no event are any vaults to be filled in
unless there is a positive requirement so to do by legal authority. Landlord,
however, shall be responsible including paying for the removal or correction of
any structural components that Landlord is obligated to replace or repair in
accordance with Article V.
Tenant agrees to pay all fees, payments or charges that may be made,
required or demanded for the maintenance and/or construction of any such vault,
portico, stoop, window or other projection or erection.
Section 4.10. Except for Landlord's negligence, Tenant covenants
that Landlord and Landlord's representatives shall not be liable for any bodily
injury or property damage caused by or to any persons in or outside the demised
premises resulting on or after the date hereof from electricity, water, steam,
rain, snow or gas or other substances which may leak or flow into or from any
part of the demised premises or from the drainage pipes, plumbing works,
heating, ventilating, sprinkler or wiring or any other system of the demised
premises, or from any other place in the demised premises or cause, or any
interference with the use of the demised premises or any part thereof caused by
the operations of any public or quasi-public work, and Tenant agrees to defend
and indemnify Landlord and Landlord's
27
representatives against any such claim, as well as against all costs and
expenses, including reasonable attorneys fees, and damages arising therefrom.
ARTICLE V
LANDLORD'S OBLIGATIONS
Section 5.01. Prior to the commencement of the lease term on July 1,
1997, Landlord shall be responsible financially and otherwise to complete the
conversion of the demised parking premises into a lawful facility of
approximately 90,000 usable square feet for the parking and storage of vehicles
including but not limited to clearing, grading, paving and fencing the demised
parking premises and providing a drainage system into the city sewer system.
Tenant shall be responsible financially and otherwise for the installation,
including associated labor costs, in the demised parking premises of wiring and
appliances for lighting and truck heating, a motorized gate and any security
arrangement which Tenant desires and provided, further, same is done in
accordance with any governmental requirements. Unless Tenant notifies Landlord
in writing to the contrary (and in reasonable detail) (i) within ten (10) days
of taking possession of the demised parking premises or (ii) within ten (10)
days after notification by Landlord in writing to Tenant that such demised
parking premises are ready for use by Tenant (whichever event in clause (i) or
(ii) earlier occurs), the taking of possession or use by Tenant under this lease
of the demised parking premises shall be conclusive of the acceptance and
acknowledgment by Tenant that Landlord has fulfilled its obligation to provide
the demised parking premises in a condition for such use by Tenant. As to the
demised parking premises, Landlord will coordinate its schedule of work with
Tenant so that (i) Tenant
28
can efficiently install the wiring and appliances for lighting and truck
heating, the motorized gate and any security arrangements in conjunction with
Landlord's work and (ii) Tenant at all times will have access to the building
through the demised parking premises for Tenant's construction in the demised
building premises except for temporary nonaccess because of work on the demised
parking premises or where access for such construction work by Tenant is
available other than through that part of the demised parking premises where
work is being performed.
Section 5.02. Landlord shall be responsible financially and
otherwise for its work on the demised parking premises described in Section 5.01
and for repairs and replacements of the structural components of the demised
building premises. As used in this lease, "structural components" shall mean the
roofs, foundation, ceiling slabs, the outer brickwork walls (not including
windows) and those walls within the interior of the premises which are load
bearing. Notwithstanding the foregoing provisions of this Section 5.02, Tenant
shall be responsible financially and otherwise for any repairs or replacements
required to the structural components by reason of any changes or alterations to
the demised building premises made by the Tenant, including those changes or
alterations provided for in Article VII.
Section 5.03. In anticipation that Tenant will substantially perform
the work shown on the plans for the initial changes or alterations provided for
in Article VII, Landlord shall contribute the sum of Two Hundred Two Thousand
($202,000) Dollars toward the
29
changes or alterations to be made by Tenant as set forth in Section 7.01. If
Landlord desires to make all or part of such payment directly to the contractors
performing such alterations and changes, it shall be required to notify Tenant
in writing on or before May 15, 1997 and, upon such timely notification, Tenant
shall forthwith notify Landlord of the contractor or contractors remaining
unpaid up to such $202,000 to which Landlord may make payment. If the Landlord
does not give such notification on or before May 15, 1997, then Landlord shall
pay such sum of $202,000 on July 1, 1997 to Tenant or, at Tenant's option, to
the contractor or contractors performing such alterations or changes. The
improvements constructed with such sum contributed by Landlord shall be made for
Landlord's account, it being understood that Tenant is supervising said
construction for Landlord's convenience.
Section 5.04. Tenant has examined the demised building premises for
any asbestos and to the extent, if any, it has found any specific asbestos
condition within the demised building premises that may be in violation of
existing federal, state or local laws and regulatioins dealing with asbestos,
Tenant shall be responsible financially and otherwise for remediating such
asbestos condition. Landlord shall have no liability or responsibility
financially or otherwise for remedying any asbestos condition within the demised
building premises, whether readily observable or latent. Without limiting the
foregoing, Tenant shall be responsible financially and otherwise for any
asbestos condition violative of any present or future laws or regulations which
result from any alteration or other change in the demised building premises
performed by Tenant.
30
ARTICLE VI
NO REPRESENTATIONS BY LANDLORD
Section 6.01. Except with respect to Landlord's obligations provided
in Article V, Tenant accepts the demised premises in its present condition and
in its condition at the commencement of the term of this lease, and without any
representation or warranty by Landlord as to the condition of the demised
premises (including the structural components and systems of the demised
building premises and any environmental matters) now or then, or as to the
lawful use or occupancy which may be made thereof, the expenses, including
taxes, of operation or any other matter or thing affecting or relating to the
demised premises, and, further, Landlord shall not be responsible for any latent
or other defect or change of condition in the demised premises except for its
obligations specifically set forth herein, and the fixed rent, additional rent
and payments of Charges and other sums provided in this lease to be paid by
Tenant shall in no event be withheld, abated or diminished on account of any
defect in the demised premises nor for any change in its condition nor for any
damage occurring thereto.
ARTICLE VII
CHANGES OR ALTERATIONS TO DEMISED PREMISES
Section 7.01. Tenant has delivered to Landlord plans for the changes
and alterations to the demised building premises which Tenant intends to perform
(subject to reasonable modifications of the plans, governmental approvals, field
conditions and
31
constructual tolerances) prior to and at the inception of this lease at its cost
and expense, and Landlord consents to the general scope, as well as the
specifications, of such changes and alterations as shown on the plans, a
duplicate of which has been signed on the first page by respective
representatives of Landlord and Tenant and the subsequent pages initialed by
such representatives.
Section 7.02. For the purpose of permitting Tenant to perform the
changes and alterations provided for in Section 7.01, Tenant shall have access
to the demised premises beginning on the date hereof to commence the work,
provided, however, that Tenant shall be responsible financially and otherwise
for all expenses of operation and maintenance of the demised premises beginning
on the date hereof, including those set forth in Article IV.
Section 7.03. With respect to all other changes and alterations
following the work contemplated pursuant to Section 7.01, Tenant is hereby given
the right, from time to time, to redecorate the demised premises and to make
such changes, alterations, repairs and replacements, other than those to or
affecting the structural components, as Tenant deems expedient or necessary, at
Tenant's sole cost and expense, without Landlord's consent if a building permit
for such alterations is not legally required, or if such a building permit is
required, or if Tenant wishes to make structural changes then subject to
obtaining Landlord's consent, which consent shall not be withheld or delayed
unreasonably.
32
Section 7.04. Any alterations or changes remaining on the demises
premises at the termination of this lease shall, if not readily removable
without damage to the demised premises (unless such damage is repaired in a good
and workman manner), revert to Landlord.
Section 7.05. Tenant agrees that it will procure all necessary
permits from the concerning governmental authorities before making any repairs,
alterations, other improvements or installations, including without limitation
any alterations made pursuant to Sections 7.01 and 7.03 . Tenant agrees to pay
promptly when due the entire cost of any work done by it upon the demised
premises so that the demised premises at all times shall be free of liens for
labor and materials. Tenant further agrees to save harmless and indemnify
Landlord and Landlord's representatives from and against any and all injury,
loss, claims or damage to any person or property occasioned by or arising out of
the doing of any such work by Tenant or its employees, agents or contractors.
Tenant further agrees that in doing such work it shall employ materials of good
quality and comply with all governmental requirements, and perform such work in
a good and workmanlike manner. In addition, Tenant shall properly insure in
accordance with Article IX, with Landlord (and Landlord's representatives) named
as an additional named insured, against liability for personal and property
injury or damage while any repairs, alterations, other improvements or
installations are in progress.
33
ARTICLE VIII
ACCESS TO DEMISED PREMISES BY LANDLORD
Section 8.01. Tenant shall permit Landlord, by its officers,
employees, or agents, to enter the demised premises at all reasonable hours on
appointment, except for an emergency in which case no appointment shall be
necessary, for the purpose of inspecting same or of making repairs which Tenant
may neglect or refuse to make in accordance with the terms and conditions of
this lease and also for the purpose of showing the premises to a prospective
mortgagee or to persons wishing to purchase same, or at any time, upon
reasonable notice, within one (1) year prior to the expiration of the term of
this lease, to persons wishing to rent the demised premises or any part thereof;
and, during the last twelve (12) months of the term of this lease, Tenant shall
permit the usual notice of "TO LET" to be placed upon the demised premises and
remain thereupon without molestation and to allow potential tenants to enter the
demised premises during business hours upon reasonable notice.
ARTICLE IX
INSURANCE
Section 9.01. Beginning on the date hereof and throughout the term
of this lease and any subsequent retention of possession by Tenant by reason of
a holdover or otherwise, Tenant shall, at its own cost and expense (except to
the extent hereafter provided with respect to the "all risks" property
insurance), obtain and maintain with reputable insurance companies the following
insurance with respect to the demised premises: (a)
34
comprehensive general liability insurance, including coverage for any vehicles
operated or located on the demised premises, for the benefit of Landlord ( and
Landlord's representatives) and Tenant as named insureds and as their respective
interests shall appear, in limits of not less than $5,000,000 for claims of
injury or death to or property damage for any one occurrence and with a per
location endorsement providing for a separate aggregate general liability
coverage during a policy period of one year of not less than $15,000,000 with
respect to the demised premises, or a separate policy solely for the demised
premises with not less than the aforesaid limits of liability for any one
occurrence and in the aggregate; and excess liability coverage of not less than
$10,000,000 for any one occurrence and not less than $30,000,000 in the
aggregate during a one year policy period; or such greater primary and excess
liability limits as may be reasonably required by the Landlord so long as
consistent with insurance coverage in buildings in the locality similarly
constructed, occupied and maintained, which insurance shall be written on a
so-called "occurrence basis"; and (b) "boiler and machinery" insurance for the
benefit of Landlord and Tenant as their interests may appear with respect to the
demised premises with limits of not less than $1,000,000, and (c) insurance on
the entire building in which the demised building premises are located and on
the demised parking premises for the benefit of and as named insureds, and with
the insurance proceeds payable to, Landlord and Tenant jointly, affording "all
risks" coverage against loss or damage to the full amount of the replacement
cost (guaranteed replacement value) of such entire building (less the cost of
excavation, footings and foundations) and of the demised parking premises, with
a maximum deductible of $50,000, such replacement cost amount to be reasonably
35
determined from time to time by Landlord, with the initial amount of such
insurance to be $10,000,000, and (d) rental value insurance covering loss and
damage by fire and the other risks or hazards covered under the "all risks"
coverage required by paragraph (c) of this Section 9.01 in an amount equal to at
least the fixed rent for the next twelve (12) months plus for such twelve months
the reasonably estimated additional rent, Charges and any other sums required
under the lease to be paid by Tenant; the rental value policy shall be written
in favor of Tenant, with loss insurance proceeds payable fifty (50%) percent to
Tenant and fifty (50%) percent to Landlord, with Landlord's portion to be
applied as security, in an interest-bearing account for the benefit of Tenant,
against the payments next due under this lease from Tenant to Landlord of fixed
rent, additional rent, Charges and any other sums required under this lease to
be paid by Tenant.
Section 9.02. All of the above mentioned insurance policies shall be
obtained by Tenant and certificates of insurance with respect thereto delivered
to Landlord (and if there is a mortgagee of the fee, such certificates shall
also be delivered to such mortgagee), and shall be with such insurance companies
("A" or better rated by a national rating organization and which are licensed to
do business in the State of New York) and in a form satisfactory to any
mortgagee of the fee of the demised premises. Tenant shall pay all of the
premiums thereon, except Landlord shall, upon receipt of invoice from Tenant,
pay fifty (50%) percent of each annual premium for the "all risks" property
insurance; provided further, however, that Landlord shall have the option to
provide in lieu of Tenant such "all risks" property insurance and, in such case,
there shall be included in the policy the aforesaid rental value insurance
36
described in clause (d) of Section 9.01, and pay the premiums therefor in which
event Tenant shall pay to Landlord towards the annual premiums upon written
notice from Landlord an amount equal to one-half of the annual premium which
Tenant most recently paid for such "all risk" property insurance and rental
value insurance.
Section 9.03. All such insurance shall contain endorsements to the
effect that such policies will not be changed by reducing the amount, reducing
the scope of the coverage or effecting cancellation without at least thirty (30)
days' prior written notice to the Landlord and any mortgagee. At least twenty
(20) days prior to the expiration of any policy or policies of such insurance,
Tenant shall renew such insurance, by delivering to Landlord (and to any
mortgagee of the fee) certificates of insurance with respect to such renewed
insurance, endorsed in accordance with the provisions of this Article together
with proof of payment of premiums.
Section 9.04. Tenant shall not violate, or permit to be violated,
any of the conditions of any of the said policies.
Section 9.05. Tenant may comply with its obligations under the
provisions of this Article through use of a so-called blanket policy as well as
by use of so-called umbrella coverage. In such event Tenant employs a blanket
policy for all or part of the coverage required hereunder, Tenant shall obtain
an endorsement or express allocation to the demised
37
premises of the amount of insurance required to be carried hereunder had the
risk been insured under a separate policy.
Section 9.06. In the event that the fee of the demised premises
shall be subject to any mortgage, the insurance referred to in Section 9.01
shall also be issued in the name of such mortgagee as a loss payee as its
interests may appear and shall contain a Standard New York Mortgagee Clause. All
such insurance policies referred to in this Section 9.01 shall provide that
losses shall be payable notwithstanding any act or negligence of Tenant or
Landlord and shall provide for waiver of subrogation (both for tort and
contractual based liability) against Tenant and Landlord, as the case may be.
Tenant shall not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that provided for in Section 9.01, unless
Landlord is included therein as as an additional named insured and loss payee as
its interest may appear and there is a waiver of any subrogation claim aainst
Landlord.
ARTICLE X
RESTORATION OR REPAIR OF PREMISES
Section 10.01. In the event of any damage to or destruction of the
demised premises, Landlord, on behalf of Landlord and Tenant (but with Tenant's
full cooperation) shall adjust the loss and settle all claims with the insurance
companies issuing such policies. The parties hereto do irrevocably assign the
proceeds from such insurance policies attributable to the damage or destruction
of the demised premises for the purposes hereinafter stated to
38
Landlord to be held by Landlord in constructive trust, for the benefit of
Landlord and Tenant, for repair, restoration, rebuilding or replacement, or any
combination thereof, of the demised premises. Any proceeds in excess of such
proceeds as shall be necessary for such repair, restoration, rebuilding,
replacement or any combination thereof shall be the sole property of Landlord,
and if the proceeds necessary for such repair, restoration, rebuilding or
replacement, or any combination thereof shall be inadequate to pay the cost
thereof, Landlord shall suffer the deficiency. Tenant agrees that Landlord shall
have sole and complete responsibility for disbursement of the insurance proceeds
aforesaid, and Landlord shall be solely responsible for the repair, restoration,
rebuilding, replacement or any combination thereof, of the demised premises
which Landlord shall diligently complete.
Section 10.02. Anything contained herein to the contrary
notwithstanding (i) in the event of a casualty not required to be insured
hereunder, or (ii) in the event such damage or destruction occurs during the
last two (2) years of the term of this lease and the repair and replacement cost
of the demised premises by reason of such casualty shall amount to one third
(1/3rd) or more of the insured amount for total replacement of the demised
premises, this lease, at the election of Landlord, may be terminated provided
that notice of termination is sent by Landlord to Tenant within sixty (60) days
following the occurrence of such damage or destruction, in which event all
available insurance proceeds shall be released to Landlord, free of constructive
trust, and without any obligation to use same for the purposes set forth in
Section 10.01. Such termination at the election of Tenant shall not be effective
for ninety (90) days after the notice is given.
39
Section 10.03. In the event, as a result of an occurrence referred
to in this Article X or Article XV, or arising from the repair and restoration
work, Tenant is prevented from operating in the demised premises, such inability
to operate and any inconvenience or loss of business shall not create any
liability of Landlord to Tenant, but Tenant shall continue to be obligated for
and to pay the fixed rent, additional rent, Charges and other sums provided in
this lease to be paid by Tenant; provided, however, Tenant's obligation to pay
the fixed rent, additional rent, Charges and other sums provided in this lease
shall be suspended beginning one year after all governmental approvals for
repair and restoration of the demised premises have been obtained by Landlord
and such suspension shall end when the demised premises have been repaired and
restored and a temporary certificate of occupancy issued so that Tenant can
operate in the demised premises.
Section 10.04. The provisions of this Article shall be deemed an
express written agreement governing any case of damage or destruction of the
demised premises by fire or other casualty, and Section 227 of the Real Property
Law of the State of New York, providing for such contingency in the absence of
an express written agreement, and any other law of like import, now or hereafter
in force, shall have no application in such case.
40
ARTICLE XI
ASSIGNMENT AND SUBLETTING
Section 11.01. Tenant shall not assign or mortgage this lease, or
sublet or permit the occupancy by anyone other than Tenant of all or any portion
of the demised premises, except as hereinafter set forth. Subject to the
"recapture of profit" provisions set forth in Section 11.03, Tenant is hereby
granted the right to sublet each or any combination of the following portions
(all or any part of such portion) of the demised premises (a) the office space
in the demised building premises, (b) the demised parking premises and (c) the
demised building premises other than office space, with the written consent of
Landlord, which shall not be unreasonably withheld or delayed, provided that:
(i) There may be no more than three sublets at any one time for the
demised premises;
(ii) The proposed subtenant is a reputable person or entity of good
character and with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with reasonable proof thereof;
(iii) The proposed subtenant shall not be a foreign, United States,
State, municipal or other governmental or quasi-governmental body, agency or
department or any authority or other entity which is affiliated therewith or
controlled thereby nor otherwise be entitled, directly or indirectly, to
diplomatic or sovereign immunity. Such subtenant shall be
41
subject to the service of process in, and the jurisdiction of, the courts
located in the City and State of New York;
(iv) Each such sublease shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this lease, and the
term of any such sublease shall end not later than the expiration of earlier
termination of the term of this lease;
(v) Tenant shall and will remain fully liable for the payment of the
fixed rent, additional rent and other Charges and sums due and to become due
hereunder and for the obligations and performance of all other covenants,
agreements, terms, provisions and conditions in this lease on Tenant's part to
be observed and performed;
(vi) No such sublease shall modify or limit any right or power of
Landlord under this lease or be deemed to constitute a consent on the part of
Landlord to any further sublease, or affect or reduce any obligation of Tenant
hereunder and all such obligations of Tenant shall continue in full force and
effect as obligations of Tenant as principal and not as guarantor or surety, as
though no such subletting had been made;
(vii) Simultaneously with requesting the consent of Landlord, Tenant
shall provide Landlord with a copy of the proposed sublease, and in the event
that Landlord grants its consent, Tenant shall deliver a fully executed copy of
the sublease within five (5) business days after the execution of same.
42
(viii) The use, occupancy, assignment or subletting to any company,
corporation, firm or entity which is a parent or a subsidiary, directly or
indirectly, of the Tenant or into which Tenant may be merged or consolidated or
to which substantially all of its assets may be transferred shall not be deemed
an assignment or subletting requiring the prior written consent of the Landlord;
provided, however, that advance written notice must be given to Landlord of the
proposed entity to be given such use, occupancy, assignment or subletting and
the space to be used and for how long a period, and provided, further, that no
such assignment shall relieve Tenant of its obligations under this lease.
Section 11.02. Tenant hereby collaterally assigns to Landlord all
rents and other sums due or to become due under any sublease, together with the
right to collect and receive such rents and other sums, provided, however, that
so long as no default shall exist under this lease, and no event shall exist
which by lapse of time or service of notice, or both, has or would become a
default under this lease, Tenant shall have the right to collect and receive
such rents and other sums for its own uses and purposes. Upon the occurrence of
a default, and thereafter for so long as such default shall continue, Landlord
shall have absolute title to such rents and other sums and the absolute right to
collect and receive the same and Tenant hereby consents to and irrevocably
authorizes and directs the then subtenant, upon notice and demand from Landlord
of Landlord's right to receive the aforesaid rents and other sums, to pay to
Landlord such rents and other sums due or to become due under the sublease, and
such subtenant shall have the right to rely on such notice and demand and shall
pay to Landlord such rents and other sums without any obligation or right to
determine the actual
43
existence of any default or event claimed by Landlord to be the basis of
Landlord's right to receive such rents and other sums notwithstanding any notice
or claim by Tenant to the contrary, and Tenant shall have no claim or right
against any such subtenant for any such rents and other sums so paid by such
subtenant to Landlord but such payments shall be credited to Tenant's account.
Tenant agrees it will not take any action inconsistent with the assignment of
rents contained in this Section 11.02 or make any other assignment of such rents
and other sums, and that any other assignment shall be void ab initio. Tenant
will from time to time, upon the request of Landlord, execute a separate
instrument confirming such assignment and any other instrument of further
assurance which Landlord may reasonably specify to effectuate the provisions of
this Section 11.02.
Section 11.03. Anything contained in this Article XI to the contrary
notwithstanding, any sublet at a rental in excess ("profit") of the rental per
square foot set forth in Exhibit D applicable for the demised building premises
or the demised parking premises, respectively, for the particular lease year(s)
shall be paid and belong to Landlord. At Landlord's option, such profit shall be
paid to Landlord directly by the sublessee.
ARTICLE XII
SUBORDINATION
44
Section 12.01. Subject to the provisions of this Section 12.01 and
Section 12.03, this lease and the leasehold estate created hereby and any and
all rights herein contained or created hereunder are and shall be subject and
subordinate in all respects whatsoever to the lien of any mortgage or mortgages
or hereafter placed on the fee of the demised premises for the full amount and
principal sums set forth therein and to all renewals, modifications,
consolidations, replacements, substitutions and extensions thereof and to any
and all advances heretofore and hereafter made thereon including, but not
limited to, fees and other disbursements and charges incurred in connection
therewith; provided, however, that any subordination shall not be effective
unless and until such mortgagee executes a document containing "nondisturbance"
provisions in favor of Tenant to the effect that (i) Tenant's use, enjoyment and
peaceful possession (and that of any permitted sublessee) shall not be disturbed
so long as Tenant complies with the terms of this lease, (ii) all of Tenant's
rights under this lease and Landlord's obligations hereunder (including, but not
limited to, the use and application of insurance and condemnation proceeds)
shall be fully honored, and (iii) Tenant shall not be named as a party defendant
in any foreclosure proceeding. Landlord represents and warrants that there
currently are no mortgages on the demised premises. Subject to the provisions of
Section 12.03, the foregoing subordination shall be self-operative and no
further instrument of subordination shall be necessary to effect such
subordination. In confirmation of such subordination (but subject to the
provisions of Section 12.03), however, Tenant shall execute, acknowledge and
deliver promptly and without charge any certificate or further agreement of
subordination that any such fee mortgagee may request, and if Tenant shall fail
45
at any time to execute, acknowledge and deliver the same, the Tenant does hereby
irrevocably make, constitute and appoint Landlord such attorney-in-fact for that
purpose.
Section 12.02. In the event that any holder of any fee mortgage or
anyone claiming from or through any such holder or any purchaser of such
holder's estate in any foreclosure sale shall enter into and lawfully become
possessed of the demised premises or shall otherwise succeed to the rights of
the Landlord under this lease, either through foreclosure of any fee mortgage or
the acquisition of the estate of Landlord thereby mortgaged, Tenant agrees, at
the request of such successor landlord, to attorn to such successor landlord and
recognize successor landlord as its landlord under this lease and to execute,
upon request of such successor landlord, an attornment agreement in form
reasonable satisfactory to such successor landlord.
Section 12.03. Anything contained herein to the contrary
notwithstanding, the parties hereto agree that a precondition to Tenant's
subordinating its leasehold interest hereunder to the lien of any future
mortgage or other superior interest is the obtaining for Tenant of so-called
"recognition and nondisturbance" protections. Accordingly, the parties have
agreed that Tenant shall not be required to subordinate its leasehold interest
hereunder except pursuant to the terms of an agreement containing the
recognition and nondisturbance protections contained or referred to in this
Article XII.
46
ARTICLE XIII
DEFAULT BY TENANT; CONDITIONAL LIMITATION
Section 13.01. Each of the following shall be deemed a default by
the Tenant and a breach of this lease:
(i) If the fixed rent or additional rent or Charges or any other sum
of money payable by Tenant to Landlord under this lease shall not be paid as and
when the same shall become due and payable, or if Tenant shall fail to comply
with the provisions of Article XIX, and such failure to pay or comply shall
continue for a period of five (5) business days following written notice from
Landlord (but no further notice shall be required for the balance of any
12-month period after Landlord sends a second late payment or compliance notice
in any 12-month period), after such payment is due or compliance required;
(ii) If the Tenant shall fail to comply with any term, agreement,
condition or covenant of this lease, other than the payment or compliance set
forth in paragraph (i) above of this Section 13.01, and such failure to comply
shall continue for a period of fifteen (15) business days after written notice
by Landlord to Tenant, provided, however, if compliance cannot reasonably be
effected within such fifteen (15) business day period, it shall not be a default
if Tenant commences such compliance within such fifteen(15) business days period
and diligently pursues and effects such compliance within a reasonable period
thereafter, and otherwise complied with any additional conditions of any grace
period provided for in this lease;
47
(iii) If Tenant shall file under any section or chapter of the
United States Bankruptcy Code, as amended, or under any similar law or statute
of the United States or any State; or Tenant shall be adjudged bankrupt or
insolvent in any such proceedings filed against Tenant; or an involuntary
petition to have Tenant adjudged bankrupt is not dismissed within sixty (60)
days from the filing thereof; or if there is an attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the demised
premises or of Tenant's interest in this lease;
(iv) If a receiver or trustee is appointed for all or a substantial
part of the assets of Tenant and such appointment is not dismissed within thirty
(30) days thereof; or
(v) If Tenant becomes insolvent or makes a general assignment for
the benefit of creditors or enters into a composition with its creditors
generally or shall take any benefit under any insolvency or bankruptcy act, or
if Tenant admits in writing its inability to generally pay its debts as they
become due.
Section 13.02. In any of such events of default, following the
expiration of the grace period, if any, above referred to, and if the said
default shall not have been theretofore cured, Landlord shall have the right
thereafter to terminate and end this lease and the term hereby granted, as well
as all of the right, title and interest of the Tenant hereunder, by giving to
the Tenant a written notice of the termination of this lease, and upon the
expiration of the time fixed in such termination notice, which shall not be less
than three (3) business days after the giving thereof, this lease and the term
hereby granted, as well as all of
48
the right, title and interest of the Tenant hereunder, shall wholly cease and
expire in the same manner, and with the same force and effect (except as to the
Tenant's liability), as if the expiration of time fixed in such notice were the
end of the term herein originally demised; provided, however, that with respect
to a failure to make any payment described in paragraph (i) of this Section
13.01 (but not with respect to Landlord's right to draw down the letter of
credit), Landlord shall not exercise its right of termination until it has given
an additional written notice to Tenant of such failure of payment and at least
thirty (30) days have expired since such payment was originally due; provided,
further, however, that no such additional written notice or additional time
period shall be required if, within the preceding twelve month period, Landlord
has sent two such additional late payment notices, it also being understood that
nothing herein shall preclude Landlord from bringing a nonpayment summary
proceeding or otherwise suing to recover the payment; and Tenant shall then
immediately quit and surrender to Landlord the demised premises, and the
Landlord may enter into or repossess the demised premises, whether by summary
proceedings, action in ejectment or otherwise; and the Tenant hereby waives any
and all rights to redeem this lease, and, following the termination of this
lease, Tenant hereby also waives the service of any further notice demanding
rent, or of intention to re-enter, as provided by the Real Property Actions and
Proceedings Law or by any acts amendatory thereof or supplemental thereto or by
any present or future statute, law or decision. Tenant and any and all persons
claiming rights through Tenant do hereby waive, surrender and relinquish all
right or privilege by present or future law or decision to redeem the demised
premises for the term herein demised after having been
49
lawfully dispossessed or lawfully ejected therefrom by process of law or having
executed a written surrender agreement for the demised premises. Tenant further
waives its right and agrees not to interpose any counterclaim or offset in any
summary proceedings or action in ejectment which may be brought by Landlord
against Tenant unless Tenant's waiver thereof will prevent Tenant from
commencing and prosecuting such counterclaim or offset in a separate action or
proceeding, and Tenant also waives any right to consolidate or seek to stay or
dismiss any such summary proceeding or action in ejectment with or because of
any other action or proceeding commenced by Tenant.
Section 13.03. In the event of a cancellation or termination of this
lease by the issuance of a warrant of dispossess or judgment of ejectment based
upon an uncured default of Tenant, Tenant shall, nevertheless, remain liable to
the Landlord in a sum equal to the fixed rent, additional rent (including
Tenant's share of Real Estate Taxes), Charges and other sums provided in this
lease to be paid by Tenant, for the balance of the term herein originally
demised, together with such reasonable costs and reasonable expenses as Landlord
may incur for reasonable legal expenses, reasonable attorneys' fees, including
those incident to the recovery of possession, brokerage fees and expenses of
putting the demised premises in good order, or for preparing the same for
rerental; and the Landlord may, without notice, repair or alter or redecorate
the demised premises in such reasonable manner as the Landlord may deem
necessary or advisable and/or let or relet the demised premises, any and all
parts thereof or included as part of a letting of all or part of the Property,
for a term or terms which may, at Landlord's option, be less than or exceed the
remainder of the said original term, in
50
the Landlord's name, or as the agent of the Tenant , and may grant concessions
or free rent without thereby in any way affecting Tenant's liability for the
fixed rent, additional rent (including Tenant's share of Real Estate Taxes),
Charges and other sums provided in this lease to be paid by Tenant, for the
period of such concession or free rent; provided, however, that if the new rent
is higher during the remaining period of the original stated term of this lease,
Tenant shall receive a credit for such rental difference as an offset (but not
any affirmative receovery against Landlord) up to the aggregate amount of
Tenant's liability to Landlord; provided, further, however, that, Landlord shall
have no obligation to seek to let or relet the demised premises.
Section 13.04. Should any rent so collected by Landlord, after the
payments aforesaid in Section 12.03, be insufficient fully to pay to the
Landlord a sum equal to the fixed rent, additional rent (including Tenant's
share of Real Estate Taxes), Charges and other sums of money payable by Tenant
under this lease ("deficiency"), the balance of such deficiency shall be paid by
Tenant on the rent days specified in this lease; that is, upon each of such rent
days, the Tenant shall pay to the Landlord the amount of the deficiency then
existing; and the Tenant hereby agrees to be and remain liable for any such
deficiency. The right of Landlord to recover from Tenant the amount of such
deficiency, or, if there shall be no reletting, a sum equal to the amount of
fixed rent, additional rent (including Tenant's share of Real Estate Taxes),
Charges and any other sum of money payable by Tenant under this lease, shall
survive the issuance of any warrant of dispossess, ejection judgment or other
termination of this lease; and the Tenant hereby expressly waives any defense
that might be predicated upon the
51
issuance of such warrant of dispossess, ejection judgment or other termination
or cancellation of the lease term. As an alternative to Landlord being entitled
to collect the deficiency on each of the rent days specified in this lease,
Landlord may elect to require Tenant to pay to Landlord, as damages in a lump
sum, the amount by which (a) the sum of the fixed rent, additional rent
(including Tenant's share of Real Estate Taxes), Charges and other sums payable
by Tenant under this lease that would have (as reasonably estimated) accrued for
the balance of the demised original lease term, exceeds (b) the aggregate fair
market rental value (including additional rent and other sums a tenant would pay
as reasonably estimated) of the demised premises for the same period, both
discounted to present worth at a rate equal to the prime rate in effect on the
date of the termination of this lease as reported in the eastern edition of The
Wall Street Journal.
Section 13.05. A suit or suits for the recovery of such deficiency
or damages, or for a sum equal to any installment or installments of fixed rent,
additional rent, Charges and other sums of money payable by Tenant under this
lease, may be brought by the Landlord, from time to time, at its election, and
nothing herein contained shall be deemed to require the Landlord to wait until
the date whereon this lease, or the term hereof, would have expired by
limitation, had there been no such default by the Tenant or no such termination
or cancellation.
Section 13.06. The acceptance of performance by a party, including
the acceptance of rent by Landlord, with knowledge of any breach or default in
the performance of the agreements, conditions, covenants, obligations or terms
of this lease by the other, shall
52
not be deemed to be a waiver of any provision of this lease or of any right to
take action on account of any such breach or default with the exception of the
non-payment of rent so accepted prior to the date of cancellation or termination
fixed by Landlord's notice.
Section 13.07. No act or thing done by Landlord or its agents or
employees shall be deemed an acceptance of a surrender of the demised premises
in the absence of a writing signed by Landlord accepting such surrender.
Section 13.08. The failure of a party after notice to enforce any
agreement, condition, covenant, obligation or term of this lease, by reason of
its breach by the other, shall not be deemed to void or affect the right of such
party to enforce the same agreement, condition, covenant, obligation or term on
the occasion of a continuing or a subsequent default or breach.
ARTICLE XIV
REMEDIES OF LANDLORD; REMEDIES OF TENANT
Section 14.01. In the event that Tenant shall default in the
performance of any of the agreements, conditions, covenants or terms in this
lease contained, which default remains uncured after notice given as provided
for in Article XIII hereof, Landlord may (but shall not be obligation to) upon
three (3) days' further written notice (or such shorter time if an emergency),
or at any time thereafter, perform the same for the account of Tenant. Landlord
shall have the right to enter (by force, if an emergency only, or otherwise) the
said
53
demised premises for the purpose of correcting or remedying such default and to
remain therein until the same shall have been corrected or remedied.
Section 14.02. Whenever Landlord shall incur any expense by reason
of the performance of any of the terms, covenants or conditions of this Lease on
the Tenant's part to be performed, by reason of the default of Tenant in
performing the same, the cost or expense incurred by Landlord shall be and be
deemed to be additional rent and shall be forthwith due and payable to Landlord
with the next succeeding monthly installment of fixed rent due hereunder
(together with interest from the date the cost or expense is incurred at an
amount equal to two (2%) percent over the then prime rate of interest as
reported in the eastern edition of The Wall Street Journal).
Section 14.03. No performance by Landlord of any of the obligations
on Tenant's part to be performed under this lease shall be or be deemed to be a
waiver of the Tenant's default in failure to perform the same or affect
Landlord's right to terminate this lease by reason of such default nor shall the
performance thereof by Landlord release or relieve Tenant from any obligations
on its part to be performed under this lease unless Tenant reimburses Landlord
for same, provided that such reimbursement is timely made before the expiration
of the grace period for cure and it is a default which can be cured by such
reimbursement..
Section 14.04. In the event of a breach, or threatened breach, by
either party of any of the agreements, conditions, covenants or terms of this
lease, the non-breaching party
54
shall have the right of injunction to restrain the same, and the right to invoke
any remedy allowed by law, or in equity, as if specific remedies, indemnity or
reimbursement were not herein provided for.
Section 14.05. The rights and remedies given to the parties in this
lease are distinct, separate and cumulative rights and remedies, and no one of
them, whether or not exercised by either party, shall be deemed to be in
exclusion of any of the others.
Section 14.06. If Landlord shall breach, or fail to perform or
observe, Landlord's obligations with respect to the use and application of
insurance or condemnation proceeds, or with respect to Article V, and if
Landlord shall not cure such breach or failure within twenty (20) days after
notice from Tenant specifying such breach or failure (or, if such breach or
failure shall reasonably take more than twenty (20) days to cure, and Landlord
shall not have commenced the same within the twenty (20) days and diligently
prosecuted the same to completion), Tenant may, at Tenant's option, without
waiving any claim for damages for breach of agreement, at any time thereafter
cure such breach or failure for the account of Landlord and any amount paid or
contractual liability incurred by Tenant in so doing shall be deemed paid or
incurred for the account of Landlord and Landlord agrees to reimburse Tenant
therefor (together with interest thereon at two (2%) percent above the prime
rate as reported int he eastern edition of The Wall Street Journal) and save
Tenant harmless therefrom; provided that Tenant may cure any such breach or
failure as aforesaid prior to the expiration of said waiting period, without
notice to Landlord if an emergency situation exists, or after
55
notice to Landlord, if the curing of such breach or failure prior to the
expiration of said waiting period is reasonably necessary to protect the demised
premises or Tenant's interest therein or to prevent injury or damage to persons
or property. Any amount not reimbursed by Landlord following final judgment may
be applied by Tenant as a credit against any and all of Tenant's next payments
due hereunder.
ARTICLE XV
CONDEMNATION
Section 15.01. If, during the term of this lease, the whole of the
demised premises, or such portion thereof as will make the demised premises, in
Landlord's and Tenant's business judgment reasonably exercised with respect to
Tenant's ability to properly operate Tenant's business at the demised premises
in substantially the same manner as in the past, inadequate and unsuitable for
the purposes herein leased (whether because of loss of square footage "under
roof"; parking, ingress and egress, access from nearby streets or otherwise), be
condemned by any government agency or other legally constituted authority
authorized to condemn, then the term of this lease shall cease and expire at the
date when possession thereof is taken by said condemnor in or by said
condemnation proceeding or by purchase in lieu of condemnation, and the fixed
rent, additional rent, Charges and other sums payable by Tenant under this lease
shall be accounted for and apportioned as between Landlord and Tenant as of that
date.
56
Section 15.02. If only a part of the demised premises shall be
condemned or purchased in lieu of condemnation and the remaining portion of the
demised premises shall be adequate and suitable for use by Tenant for its
business purpose as determined by Landlord and Tenant in their business judgment
reasonably exercised with respect to Tenant's ability to properly operate
Tenant's business at the demised premises in substantially the same manner as in
the past, then this lease shall continue in full force and effect except that
(i) the fixed rent on and after possession is taken or purchased by the
condemnor shall be diminished (A) by the product of (x) the square feet floor
area of the demised building premises so condemned or purchased, multiplied by
(y) the dollar amount per square foot for the applicable lease year as set forth
in Exhibit "D," plus (B) by the product of (x) the square feet of the usable
parking area of the demised parking premises so condemned or purchased,
multiplied by (y) the dollar amount per square foot for the applicable lease
year as set forth in Exhibit "D," and (ii) Tenant's proportionate share of Real
Estate Taxes and other applicable Charges in respect of the land and building in
which the demised building premises are located, shall be reduced to the
percentage that the square feet floor area of the demised building premises
remaining after such condemnation or purchase bears to the total square feet
floor area of the building in which such demised building premises are located
remaining after such condemnation or purchase.
Section 15.03. In the event of any condemnation or purchase in lieu
of condemnation of all or part of the demised premises, Landlord shall be
entitled to receive the entire award of such condemnation or purchase price of
such purchase in lieu of
57
condemnation, including any award or purchase price attributable to the value of
the estate vested by this lease in Tenant. Tenant hereby expressly assigns to
Landlord any and all right, title and interest of Tenant now or hereafter
arising in or to any such award or purchase price and expressly agrees that
Tenant shall be entitled to receive no part of such award or purchase price,
except for (i) fixtures, (ii) unamortized portion of leasehold improvements
based on an original cost of $1,500,000 and amortized straight line over twenty
(20) years beginning July 1, 1997, (iii) moving expenses, (iv) loss of business
and (v) other matters which would not reduce Landlord's award.
Section 15.04. In the event of a partial condemnation pursuant to
which this lease is not cancelled, all condemnation (or purchase in lieu of
condemnation) proceeds received shall be used by Landlord, to the extent
necessary, to restore the demised premises to a structural whole with
appropriate architectural conformity, given the circumstances.
ARTICLE XVI
ESTOPPEL CERTIFICATE
Section 16.01. Each party agrees at any time and from time to time
upon not less than five (5) business days' prior notice from the other party to
execute, acknowledge and deliver to the requesting party a statement in writing
certifying that this lease is unmodified and in full force and effect (of if
there have been modifications that the same is in full force and effect as
modified and stating the modifications), and the dates up to which the fixed
rent, additional rent, Charges and other sums required to be paid by Tenant
under this lease have been paid, and stating whether to the best of knowledge of
the signer the Tenant or Landlord
58
is in default in keeping, observing or performing any term, covenant, agreement,
provision, condition or limitation contained in this lease (without taking into
account any grace period) and, if in default, specifying each such default, it
being intended that any such statement delivered pursuant to this Article may be
relied upon by the other party or any prospective purchaser of the fee or
mortgagee thereof or any assignee of any mortgagee upon the fee of the demised
premises.
ARTICLE XVII
QUIET ENJOYMENT
Section 17.01. Tenant, so long as not in default hereunder, beyond
any applicable grace or cure period, shall peaceably and quietly have, hold and
enjoy the demised premises without any manner of suit, trouble or hindrance of
and from Landlord or any person claiming by, through or under Landlord, subject
to any right of eminent domain and the other provisions of this lease,
including, without limitation, ARTICLES I and XII.
ARTICLE XVIII
SURRENDER
Section 18.01. Tenant shall on the last day of the term hereby
granted, or upon the sooner termination of the said term, surrender to Landlord
the demised premises, and all buildings, alterations, replacements and changes,
with all equipment in, or appurtenances
59
thereto, except Tenant shall remove all movable trade fixtures installed by
Tenant and other personal property situated on the demised premises that is not
owned by Landlord and any damage caused by such removal shall be borne by
Tenant. The demised premises shall be left broom clean with no rubbish, and in
good order, condition and state of repair no worse than on the date hereof,
reasonable wear and tear excepted; provided further, that Tenant may leave
intact any changes and alterations made pursuant to Article VII. Tenant shall
hold Landlord harmless from all damages resulting from Tenant's failure to
surrender the demised premises as required by this Section, including, without
limitation, claims made by a succeeding lessee or loss of rent by Landlord
resulting from Tenant's failure to surrender the demised premises.
Section 18.02. Any trade fixtures or personal property belonging to
Tenant if not removed at or before such expiration or sooner termination of this
lease and if Landlord so elects, shall be deemed abandoned and become the
property of Landlord without any payment or offset therefor. If Landlord shall
not so elect, Landlord may remove such fixtures or property from the demised
premises and store them at Tenant's risk and expense, or dispose of them in any
manner without liability or accounting to Tenant, and Tenant waives all claims
against Landlord resulting from Landlord's retention or disposition of such
fixtures or property. Tenant shall repair and restore, and save Landlord
harmless from, all damage to the demised premises caused by such removal,
whether by Tenant or by Landlord (except for Landlord's willful or grossly
negligent acts or those of its employees, agents or contractors).
60
Section 18.03. If Tenant remains in possession of the demised
premises beyond the expiration or sooner termination of this lease, with the
express or implied consent of Landlord, such holding over shall be construed to
be a tenancy from month-to-month only, and such month-to-month tenancy shall be
subject to the other agreements, covenants, conditions, and obligations herein
contained, including that Tenant shall pay as monthly rent the sum of (i) the
amount it paid or was required to pay as monthly installments of fixed rent
during the month which immediately preceded the end of the lease term, plus (ii)
an amount equal to multiplying the amount set forth in clause (i) by twenty-five
(25%) percent; and all additional rent, Charges and all other sums which Tenant
is required to pay under this lease shall continue to be a liability of and
timely paid by Tenant.
Section 18.04. Nothing in this Article shall be construed as
constituting permission by Landlord for Tenant to retain possession of the
demised premises or any part thereof after the expiration or sooner termination
of this lease.
ARTICLE XIX
SECURITY DEPOSIT; LETTER OF CREDIT
Section 19.01. As security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this lease,
Tenant, simultaneous with the execution and delivery of this lease, shall
deposit with Landlord the sum of Three Hundred Ninety-Two Thousand Four Hundred
Ninety and 50/100 ($392,490.50) Dollars in cash; not later than June 1, 2002,
such additional sum sufficient to bring such security deposit to Four Hundred
Thirty Five Thousand Six Hundred Sixty and no/100 ($435,660) Dollars; not later
61
than June 1, 2007, such additional sum sufficient to bring such security deposit
to Four Hundred Eighty Four Thousand Nine Hundred Eighty-Eight and 83/100
($484,988.83) Dollars; and not later than June 1, 2012, such additional sum
sufficient to bring such security deposit to Five Hundred Forty Nine Thousand
Six Hundred Nine and 24/100 ($549,609.24) Dollars; or, at the option of Tenant
which may be exercised at any time during the term of this lease, deliver to
Landlord an unconditional, clean and irrevocable stand-by letter of credit in
the aforesaid respective amounts on or before the respective dates aforesaid.
Any letter of credit shall be substantially in the form annexed hereto as
Exhibit "E" and shall be issued in favor of Landlord as beneficiary by a branch
of a bank which is chartered in the State of New York or is a national bank,
which branch issuing the letter of credit shall be in the City of New York, and
which bank and branch thereof is reasonably acceptable to Landlord. The letter
of credit shall be issued for a duration of at least one year. Tenant shall
cause such letter of credit to be renewed or a replacement letter of credit
issued during the term of this lease at least thirty (30) days prior to the
stated expiration date of the then outstanding letter of credit and deliver the
original thereof to Landlord. In the event that not less than thirty (30) days
before the stated expiration date of the then outstanding letter of credit
Tenant has not furnished Lessor with a renewal or replacement letter of credit
complying with the provisions of this Article (or the cash equivalent), Landlord
may, immediately and without giving notice to Tenant, draw upon the letter of
credit for the entire amount of such letter of credit, and hold and dispose of
such amount as security pursuant to the provisions of this Article. The letter
of credit shall provide for payment against Landlord's draft, at sight, at one
time or from time
62
to time up to an aggregate amount equal to the then face amount of the letter of
credit accompanied by a statement signed by an officer of Landlord substantially
as follows: "The amount of this drawing US$__________ under The Chase Manhattan
Bank, New York [or name of other bank] letter of credit number _____ represents
funds due us as balance properly and legally due by Petroleum Heat and Power
Co., Inc."
Section 19.02. If such security is cash, Landlord shall be required
to maintain such security in a separate interest bearing account or, at Tenant's
election upon reasonable advance written notice to Landlord, to have such
security invested in Treasury bills or bank money market accounts or
certificates of deposit, provided that such cash equivalent instruments shall
have maturity dates not exceeding thirty (30) days. The interest, except as
otherwise specifically required by the laws of the State of New York, shall be
accumulated and become part of the security to be applied or returned to Tenant,
as the case may be, pursuant to the provisions of this Article (and applied to
required increases in security), provided, however, that Landlord shall pay over
to Tenant such interest annually at Tenant's request. Landlord shall be entitled
to pay to itself annually from the interest earned on such cash or cash
equivalent security an administrative fee of $2,000.
Section 19.03. Upon the occurrence of an event of default under this
lease, Landlord may use, apply or retain the whole or any part of the security
so deposited to the extent required for the payment of any fixed rent,
additional rent, Charges or any other sum payable by Tenant under this lease as
to which Tenant is in default or for any sum which
63
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency referred to in Article
XIII, whether such damages or deficiency accrue before or after legal
proceedings to recover possession or other re-entry by Landlord or for any other
purpose set forth herein.
Section 19.04. In the event the security or any part thereof is
drawn upon and applied pursuant to Section 19.03, Tenant shall within five (5)
business days after written demand by Landlord deposit with Landlord as security
a sum in cash or by letter of credit (in the same form as the most recent issued
or renewed letter of credit) equal to the amount so drawn upon and applied. In
the event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security (together with
accrued interest, less administration fee, on the security, if deposited in
cash), to the extent not applied, shall be returned to Tenant at the expiration
date of this lease, provided, however, that possession of the demised premises
is delivered to Landlord in accordance with the provisions of Article XVIII of
this lease.
Section 19.05. In the event of a sale or assignment by Landlord of
the demised premises or of all or any part of the Property including the demised
premises, Landlord shall have the right to transfer the security to the vendee
or assignee and after such transfer, upon notice to Tenant of the name and
address of the new landlord, Landlord thereupon shall be deemed released by
Tenant from all liability for the return of such security; and Tenant shall
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look solely to the new landlord for the return of said security; and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new landlord. Tenant further agrees and covenants that
it will not assign or encumber or attempt to assign or encumber the cash or
letter of credit deposited or required to be deposited under this lease herein
as security and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
ARTICLE XX
MISCELLANEOUS PROVISIONS
Section 20.01. Hazardous Materials.
(a) Tenant shall keep the demised premises free of Hazardous
Materials (as hereinafter defined), except as is typical for Tenant's then use
which initially shall include, without limitation, the maintenance of vehicles
with the attendant storing and using of oil, greases, solvents, etc., and the
storing of waste materials derived therefrom, and it is understood that trucks
and vehicles stored and/or parked on or in the demised premises may have fuel
oil in such truck or vehicle, but Tenant shall be in all respects responsible
for compliance with all laws and regulations pertaining to such fuel oil,
greases, solvents, etc. and the storing of such waste materials as a Hazardous
Material and for the indemnification of Landlord and Landlord's representatives
with respect thereto as further provided in this paragraph (a). Without limiting
the foregoing, Tenant shall not cause or permit the demised premises or any part
thereof to be used to generate, manufacture, refine, produce or process
65
Hazardous Materials, nor shall Tenant cause or permit, as a result of any
intentional or unintentional act or omission on the part of Tenant or any
permitted subtenants or contractors or other invitees, in each case, of Tenant,
a release of Hazardous Materials in or onto the demised premises. Tenant shall
comply with, and ensure compliance by any permitted subtenant or contractors or
other invitees of Tenant with, all applicable federal, state and local laws,
ordinances, rules and regulations relating to Hazardous Materials, by whomever
triggered, and shall obtain and comply with, and ensure that all permitted
subtenants or contractors or other invitees of Tenant comply with, any and all
approvals, registrations or permits required thereunder. In addition, Tenant
shall comply with and ensure compliance by all permitted subtenants or
contractors or other invitees of Tenant with, all federal, state and local laws
and regulations applicable to the demised premises dealing with asbestos.
(b) Tenant hereby covenants and agrees that Tenant shall defend,
indemnify, and hold harmless Landlord and Landlord's representatives from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs, or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, including, without limitation, reasonable attorneys'
and experts' fees, arising out of, or in any way related to (i) the presence,
disposal, release, or threatened release of any Hazardous Materials on, in or
from the demised premises, (ii) any personal injury (including, without
limitation, wrongful death) or property damage (real or personal) arising out of
or related to such Hazardous Materials; (iii) any lawsuit brought or threatened,
settlement reached, or government order relating to such Hazardous Materials,
and/or (iv) any violation of laws, orders, regulations, requirements
66
or demands of governmental authorities, which are based upon or in any way
related to such Hazardous Materials, including, without limitation, attorney and
expert fees, investigation and laboratory fees, court costs, and litigation
expenses. The foregoing covenant by Tenant to indemnify and hold harmless
Landlord and its representatives shall not apply if Tenant establishes that
neither it nor its invitees, contractors or permitted sublessees introduced or
caused the presence, disposal, release or threatened release of such Hazardous
Materials on, in or from the demised premises.
(c) For the purpose of this Section 20.01, the term "Hazardous
Materials" shall mean (i) any solid or liquid wastes (including hazardous
wastes), hazardous air pollutants, hazardous substances (including asbestos,
polychlorinated biphenyls and petroleum), hazardous chemical substances and
mixtures, toxic substances, pollutants and contaminants, as such terms are
defined in the National Environmental Policy Act (42 U.S.C. ss. 4231 et seq.),
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. Sections 9601 et seq.), as amended by the Superfund Amendments
and Reauthorization Act of 1986 ("CERCLA"), the Resource Conservation and
Recovery Act (42 U.S.C. ss. 6901 et seq.), as amended by the Hazardous and Solid
Waste Amendments of 1984, the Hazardous Materials Transportation Act, the Toxic
Substances Control Act, the Clean Water Act (33 U.S.C. ss. 1321 et seq.), the
Clean Air Act, the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.), Article 30 of the New York State Labor Law, and/or in any regulations
promulgated pursuant thereto, and/or in any other applicable federal, state or
local
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law, rule, regulation or ordinance governing hazardous or toxic substances and
(ii) any substance, water or material which has been determined by any federal,
state or local government authority to be capable of posing a risk of injury to
health, safety or property, including, but not limited to, all of those
materials, wastes and substances designated as hazardous or toxic by the United
States Environmental Protection Agency, the United States Department of Labor,
the United States Department of Transportation and/or any other federal, state
or local governmental agency now or hereafter authorized to regulate materials
and substances in the environment.
(d) The provisions of this Section 20.01 shall be in addition to any
and all other obligations and liabilities Tenant may have to Landlord at common
law, and shall survive the termination of this lease.
Section 20.02. Waiver of Trial by Jury; Waiver of Counterclaims. It
is mutually agreed by and between Landlord and Tenant that the respective
parties shall and they hereby do waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this lease,
Tenant's use or occupancy of the demised premises, and/or (except to the extent
the law of New York proscribes such waiver) any claim of injury or damage to
person or property. Tenant waives the right to interpose any offset or
counterclaim in any summary proceeding or any other action instituted by
Landlord arising out of this lease except a compulsory counterclaim (i.e., a
counterclaim which if not asserted in such proceeding or action by Landlord
would be precluded from being asserted as a claim in any other action or
68
proceeding), and Tenant waives the right to apply for a consolidation or stay of
such summary proceeding or other action by Landlord based on any action or
proceeding commenced by Tenant.
Section 20.03. Headings and Marginal Notes. The headings and
marginal notes are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope or intent of this lease or any
provision thereof nor in any way affect this lease.
Section 20.04. No Merger of Estates. There shall be no merger of
this lease or of the leasehold estate hereby created with any other estate in
the demised premises or Property by reason of the fact that the same person
acquires or holds, directly or indirectly, this lease or the leasehold estate
hereby created or any interest herein or in such leasehold estate as well as any
other estate in the demised premises or any interest in such other estate.
Section 20.05. No Money Claims. Wherever in this Lease Landlord's
consent or approval is required, if Landlord shall not give such consent or
approval, Tenant in no event shall be entitled to make, nor shall Tenant make,
any claim, and Tenant hereby waives any such claim, for monetary damages (nor
shall Tenant claim any monetary damages by way of set-off, counterclaim or
defense), based upon the assertion by Tenant that Landlord unreasonably withheld
or unduly delayed its consent or approval.
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Section 20.06. Adjacent Excavation; Shoring. If an excavation or
other substructure work shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as shall be necessary to
preserve the outer walls of the demised premises from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of fixed rent, additional
rent, charges or other sums required to be paid by Tenant under this lease.
Section 20.07. No Light, Air or View Easement. Tenant recognizes and
agrees that no easement for light, air or view is included in this demise, and
that any diminution or shutting out of light, air or view by any structure
presently or hereafter erected on lands adjacent to the demised premises
(whether or not owned by Landlord) shall in no way affect this Lease or impose
any liability on Landlord.
Section 20.08. Governing Law. This agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New York
applicable to a contract made in and to be performed wholly within the State of
New York.
Section 20.09. Successors. The agreements, terms, covenants,
obligations and conditions of this lease shall bind and inure to the benefit of
Landlord and Tenant, their respective successors by operation of law and any
successor to Landlord's fee ownership of the Property or any part thereof which
includes the demised premises.
70
Section 20.10. Notices. Notice wherever provided for herein shall be
in writing and be given by certified or registered mail, return receipt
requested, or by hand delivery, or by next business day recognized courier
service at the address herein specified of the party to which such notice is to
be given, unless a different address has been furnished by such party to the
party giving such notice, in which case the latter address shall be used, and
shall be deemed to have been given (i) on the third business day following such
certified or registered, return receipt requested, mailing in a postage prepaid
proper wrapper, or (ii) on the date of delivery if hand delivered or sent by
courier service.
Any and all notices required to be given to the Landlord under the
terms of this lease shall, until further designation, be given to Landlord at
the address as set forth at the head of this lease, with a copy to Richenthal,
Abrams & Moss, 122 East 42nd Street, New York, N.Y. 10168, Attention: Arthur
Richenthal, Esq. Any and all notices required to be given to the Tenant under
the terms of this lease shall, until further designation, be given to Tenant at
its address as set forth at the head of this lease, Attn: Joseph P. Cavanaugh,
Senior VicePresident. Any part shall have the right from time to time at any
time, upon at least five (5) business days prior written notice delivered
pursuant to the terms hereof, to change its respective address and to specify
any other address within the United States of America, provided said new address
is not a post office box.
Section 20.11. Recording of Lease. Tenant and Landlord will join in
an execution of a memorandum of lease in proper form for recordation in the
proper office or
71
offices wherein the demised premises are situated, setting forth the existence
and term of this lease, in form attached hereto as Exhibit "F". Upon request by
Landlord, Tenant shall execute a discharge of memorandum of lease which shall be
held, in escrow, by the attorney for Landlord, pursuant to an escrow agreement
mutually and reasonably satisfactory to the parties hereto.
Section 20.12. Merger Provision. This lease covers the entire
agreement and understanding between the parties hereto concerning the demised
premises, and no verbal agreements or implied covenants shall be held to vary
the provisions hereof, notwithstanding any statute, law or custom to the
contrary. All understandings, negotiations and agreements heretofore made
between the parties hereto are merged in this lease, which alone fully and
completely expresses the agreement between Landlord and Tenant and any executory
agreement hereafter made shall be ineffective to change, modify, waive,
discharge or effect an abandonment of this lease or any provision thereof, in
whole or in part, unless such executory agreement is in writing and signed by an
authorized person of the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
Section 20.13. Right to Erect Signs. Tenant shall not place or
install any sign or like contrivance on or to any window or on or to the front,
rear or roof of the demised building premises or on the demised parking
premises, without obtaining Landlord's prior consent, which consent shall not be
unreasonably withheld or delayed. Should Tenant wish to request Landlord's
consent of a particular sign, Tenant shall deliver to Landlord reasonably
72
detailed plans and specifications therefor, together with a request for
approval. Prior to installation of any such sign, Tenant shall obtain all
applicable government approvals, and after installation shall comply with all
the laws, orders, rules and regulations of any governmental authority and/or
insurance body, having jurisdiction over such sign(s). Tenant's indemnification
of Landlord and Landlord's representatives pursuant to Section 4.06 of this
lease shall extend to any injury to, or death of persons, or damage to property
resulting from the erection, maintenance and removal of the signs, and insurance
coverage for such signs or like contrivances shall be included in the
comprehensive general liability policy required to be effectuated by Tenant
pursuant to this lease. Notwithstanding the foregoing, Landlord hereby agrees
that Tenant may erect signs identifying the Tenant, at the locations at the
front and sides of the demised building premises where signs were previously
erected as evidenced by any sign frames still affixed to the demised building
premises; provided that such signs do not exceed the dimensions of the existing
sign frames, and Tenant complies with all other provisions of this Section.
Tenant shall be responsible for and repair any damage to the demised premises
occasioned by the installation of such signs, and shall be responsible for and
required to remove such signs at the expiration or sooner termination of this
lease and for any repair of damage caused to the demised premises by such
removal
Section 20.14. Invalid Provisions Shall Not Affect Tenant's
Continued Liability. If any term or provision of this lease or the application
thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this lease, or the application of such term or
provisions to persons or circumstances, other than those as to
73
which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this lease shall be valid and be enforced to the fullest
extent permitted by law.
Section 20.15. Covenant to Execute Instruments. Landlord and Tenant
agree to execute and deliver any instruments in writing necessary to carry out
any provision contained in this lease and will do so promptly whenever the
occasion shall arise and a request for such instrument is made.
Section 20.16. Brokerage. Landlord and Tenant each represent and
warrant to the other that they have had no conversations or negotiations with
any broker, finder or similar person concerning the consummation of this lease
or the leasing of the demised premises to Tenant other than representatives of
Greiner-Maltz Company, Inc., Sholom & Zuckerbrot Realty Corp. and Edward S.
Gordon (the "Brokers"). Landlord shall indemnify, defend and does hereby hold
Tenant harmless against any claim (including reasonable attorneys' fees incurred
in the defense thereof) for any commission with respect to this lease due
Brokers, except for any agreement made by Tenant to pay any fee or commission to
Sholom & Zuckerbrot Realty Corp or Edward S. Gordon. Landlord and Tenant each
hereby indemnifies, defends and holds the other harmless from and against all
loss, cost, liability, claim, damage and expense (including, without limitation,
court costs and reasonable attorneys' fees) incurred in connection with or
arising out of any conversations, negotiations or actions had by Landlord or
Tenant, as the case may be, or anyone acting on behalf of Landlord or Tenant, as
the case may be, with any broker, finder or similar person other than
74
the Brokers in connection with this lease. The provisions of this Section are
not intended to and shall not be deemed an admission of liability by Landlord or
Tenant to the Brokers and shall not afford the Brokers any third-party
beneficiary right.
Section 20.17. No Partnership. It is expressly understood that
Landlord and Tenant are not partners or joint venturers, and neither Landlord
nor Tenant has any right, title or interest in the business of the other, and
neither Landlord nor Tenant has any right to represent or bind the other in any
respect whatsoever, and that nothing herein contained shall be deemed, held or
construed as making Landlord or Tenant a partner, joint venturer or associate of
the other, or as rendering Landlord liable for any debts, liabilities, or
obligation incurred by Tenant, it being expressly understood that the
relationship between the parties hereto is, and shall at all times remain, that
of Landlord and Tenant.
Section 20.18. Definition of Landlord. The term "Landlord" as used
in this lease means only the owner or the mortgagee in possession for the time
being of the demised premises so that, in the event of any sale or sales of the
demised premises, the Landlord shall be and hereby is entirely relieved of all
covenants and obligations of Landlord hereunder (including, without limitation,
any covenant of quiet enjoyment) and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale of the demised premises,
that the purchaser has assumed and agreed to fully carry out any and all
covenants and obligations of Landlord hereunder and fully honor all rights of
Tenant hereunder.
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Section 20.19. Standard of Reasonableness. Wherever reference is
made in this lease to the approval, review, consent or satisfaction of Landlord,
such approval, review, consent or satisfaction shall be subject to the standard
of reasonableness and shall not be unreasonably delayed or withheld.
Section 20.20. No Personal Liability of Landlord. Tenant shall look
solely to the estate and property of Landlord in the Property for the
satisfaction of any remedy by Tenant for the collection of any judgment or money
from Landlord in the event of any default or breach by Landlord in any of the
terms, covenants and conditions of this lease, to be observed and/or performed
by Landlord, and no other property or assets of Landlord shall be subject to
levy, execution or other enforcement procedures for the satisfaction of Tenant's
remedies. Landlord shall not have, and no employee, officer, director, agent of
shareholder of Landlord shall have, any personal liability whatsoever under this
lease or arising out of the landlord-tenant relationship of the parties, and
such exculpation of personal liability is a material and special inducement for
Landlord to enter into this lease and such relationship.
Section 20.21. Lease Not Binding Unless Fully Executed. Submission
by Landlord of the within lease for execution by Tenant shall confer no rights
nor impose any obligation on either party unless and until both Landlord and
Tenant shall have executed this lease and duplicate originals thereof shall have
been delivered to the respective parties.
Section 20.22. Survival of Obligations. In addition to the damages
or deficiency for which Tenant shall remain liable after the termination of this
lease, as provided
76
in Article XIII, there shall survive the stated expiration date or sooner
termination of this lease, those provisions, obligations and liabilities of and
under this lease which by their express terms or reasonable tenor are intended
to so survive, including any liabilities accrued but unpaid before such stated
expiration date or sooner termination of this lease, and the provisions of this
lease for defense and indemnification.
Section 20.23. Due Authorization. Tenant and Landlord each represent
and warrant to the other that: (i) the consummation of the transaction hereby
contemplated and the performance of this lease will not result in any breach or
violation of, or constitute a default under any contract to which it is a party;
and (ii) the execution and delivery of this lease has been duly authorized by
the Board of Directors of each party and, upon such execution and delivery, this
lease will be binding and enforceable against such party in accordance with its
terms. Tenant and Landlord shall on or before the execution and delivery of this
lease provide the other party with a certified resolution of its Board of
Directors approving this lease and authorizing its execution and delivery by the
person signing on its behalf.
Section 20.24. Waiver of Automatic Stay. Tenant agrees that in the
event Tenant shall (a) file with any bankruptcy court of competent jurisdiction,
or be the subject of, any petition under Title 11 of the U.S. Code; as amended
(Bankruptcy Code"), (b) be the subject of any order for relief issued under the
Bankruptcy Code, (c) file or be the subject of any petition seeking, or be the
subject of any order, judgment, decree entered by any court of competent
jurisdiction approving a petition filed against it for, any reorganization,
77
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency or other relief for debtors, or (d) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator or liquidator, the Landlord shall thereupon be entitled and Tenant
hereby irrevocably consents to immediate and unconditional relief from any
automatic stay imposed by Section 362 of the Bankruptcy Code, or otherwise, on
or against the exercise of the rights and remedies otherwise available to
Landlord under this lease and as otherwise provided by law, and Tenant hereby
irrevocably waivers any right to object to such relief and will not contest any
motion by Landlord seeking relief from the automatic stay, and Tenant will
cooperate with Landlord in any manner requested by Landlord in its efforts to
obtain relief from any such stay or other prohibition. Tenant further hereby
irrevocably waives any right to seek an extension of time within which to assume
or reject this lease in any proceeding under the Bankruptcy Code.
Section 20.25. Jurisdiction and Venue. Any action or proceeding with
respect to or relating to this lease or the use and occupancy of the demised
premises or any part thereof by Tenant may be brought in the courts of the State
of New York, New York or Queens County, or of the United States of America for
the Southern or Eastern District of New York, and by the execution and delivery
of this lease, the Tenant and Landlord each hereby irrevocably and
unconditionally accepts for itself and in respect of its property, and consents
and submits to the jurisdiction of the aforesaid courts. Tenant and Landlord
hereby irrevocably and unconditionally waive any objection to the laying of
venue or based on the
78
grounds of forum non conveniens, which it may now or hereafter have to the
bringing or maintaining of any such action or proceeding in the jurisdiction
of the aforesaid courts.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be duly executed and delivered, on the day and year first above written.
ATTEST: CAPITOL DISTRIBUTORS CORP.
By: /s/ Lawrence Michaels
- ---------------------------- ------------------------------------
Lawrence Michaels,
Vice President
ATTEST: PETROLEUM HEAT AND POWER CO., INC.
By: /s/ Justin McCarthy
- ---------------------------- ------------------------------------
79
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of February, 1997, before me personally came
LAWRENCE MICHAELS, to me known, who, being by me duly sworn, did depose and say
that he resides at 150 East 77th Street, New York, New York; that he is the Vice
President of CAPITOL DISTRIBUTORS CORP., the corporation described in, and which
executed, the foregoing instrument by order of the board of directors of said
corporation and that he signed his name thereto in the name of and on behalf of
said corporation by like order.
-------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ________ day of February, 1997, before me personally came
__________________________ to me known, who, being by me duly sworn, did depose
and say that he resides at__________________________________; that he is the
______________ of PETROLEUM HEAT AND POWER CO., INC., the corporation described
in, and which executed, the foregoing instrument by order of the board of
directors of said corporation and that he signed his name thereto in the name of
and on behalf of said corporation by like order.
-------------------------------
Notary Public