AGREEMENT OF LEASE
made as of this 25th day of November, 1996 by and between WE'RE ASSOCIATES
COMPANY having its principal office at 100 Jericho Quadrangle, Jericho, New York
11753, hereinafter referred to as "Landlord" and INTERDIGITAL COMMUNICATIONS
CORPORATION with offices located at 781 Third Avenue, King of Prussia, PA
19406-2755 hereinafter referred to as "Tenant".
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the space substantially as shown on the rental plan initialed by the
parties and made part hereof as Exhibit 1 (Space A and Space B) and Exhibit 2 in
the building known as Two Huntington Quadrangle, Melville, New York 11747,
Fourth Floor, and Partial Third Floor (the "Building") hereinafter referred to
as the "demised premises".
TERM
2. A. The term of this lease with regard to Space A shall commence on
December 15, 1996 hereinafter referred to as the "Term Commencement Date", and
shall terminate on February 28, 2002 hereinafter referred to as the "Expiration
Date".
B. The term of this lease with regard to Space B shall
commence on January 1, 1997 hereinafter referred to as the "Term Commencement
Date", and shall terminate on February 28, 2002 hereinafter referred to as the
"Expiration Date".
C. The term of this lease with regard to Space C shall
commence on March 1, 1997 hereinafter referred to as the "Term Commencement
Date", and shall terminate on February 28, 2002 hereinafter referred to as the
"Expiration Date".
If on the foregoing date specified for the Term Commencement
Date the demised premises shall not be "substantially completed" in accordance
with Schedule A annexed hereto, then the Term Commencement Date shall be
postponed until the date on which the demised premises shall be "substantially
completed" and the term of this lease (hereinafter referred to as the "Demised
Term") shall be extended so that the Expiration Date shall be Five (5) years
after the last day of the month in which the Term Commencement Date for Space C
occurs. "Substantially completed" as used herein is defined to mean when the
only items to be completed are those which do not interfere with the Tenant's
occupancy and substantially full enjoyment of the demised premises. Should the
Term Commencement Date be a date other than the first day of the month, the
Tenant shall pay a pro rata portion of the rent from such date to the first day
of the following month.
RENT
3. The annual rental rate is as stated in the schedule below and
subject to Article 11 and Schedule "C" of the lease, which Tenant
agrees to pay in equal monthly installments each in advance on the
first day of each calendar month during the Demised Term at the
office of Landlord, except that Tenant shall pay the first monthly
installment on execution hereof. Tenant shall pay the rent as
above and as hereinafter provided, without any set off or
deduction whatsoever.
Space A $ 403,962
Space B 403,962
Space C 403,962
----------
TOTAL $1,211,886
USE
4. The Tenant shall use and occupy the demised premises only for its
executive and administrative offices and as an electronics lab and research and
development facility and other uses consistent with Tenant's current operations,
and for no other purpose.
LANDLORD'S ALTERATION FOR TENANT
5. Landlord, at its expense, not to exceed $739,365.00 ("Landlord's
Contribution), will perform the work and make the installations as set forth in
Schedule A annexed hereto, which is sometimes herein referred to as the
"Landlord's Initial Construction". In calculating the cost of Landlord's Initial
Construction such cost shall include ten (10%) percent of the actual, out of
pocket cost incurred by Landlord for such construction to cover Landlord's
overhead in connection with such construction, plus five (5%) percent of the
aggregate of such actual cost and overhead as Landlord's profit. To the extent
the cost of Landlord's Initial Construction shall exceed Landlord's
Contribution, Tenant shall pay such excess, as hereinafter provided. To the
extent the cost of Landlord's Initial Construction shall be less than Landlord's
Contribution, Landlord shall apply the amount by which such cost shall be less
than Landlord's Contribution against the base annual rent first coming due
hereunder, until such amount shall be exhausted. Prior to the commencement of
the Landlord's Initial Construction, Landlord shall provide Tenant with
Landlord's written determination of the cost (the "Fixed Cost") of Landlord's
Initial Construction, which determination shall be made in good faith in
Landlord's reasonable judgment. If the Fixed Cost shall exceed Landlord's
Contribution, simultaneously upon Tenant's receipt of Landlord's determination,
Tenant shall pay to Landlord an amount equal to seventy-five (75%) percent of
the difference between the Fixed Cost and the amount of Landlord's Contribution.
Within five (5) days after substantial completion of Landlord's Initial
Construction, Tenant shall pay to Landlord an amount equal to the balance of the
difference between the Fixed Cost and the amount of Landlord's Contribution. All
such amounts shall be payable by Tenant, and collectible, as additional rent. If
the actual cost of Landlord's Initial Construction shall exceed the Fixed Cost,
then except to the extent such excess shall be due to delays caused by Tenant,
or by changes to Landlord's Initial Construction made after the date of approval
of the plans for Landlord's Initial Construction hereof, then Landlord shall pay
such excess. In addition to the work described in Schedule A, Landlord shall
also perform certain base Building work as described in Schedule A-A (the "Base
Building Work"). Such work shall be performed at Landlord's sole cost and
expense (without regard to and in addition to Landlord's Contribution). To the
extent that any portion of the Base Building Work shall affect any portion of
the demised premises, such portion shall be substantially completed on or before
the Term Commencement Date as to that portion of the demised premises. Those
portions of the base Building Work not affecting the demised premises shall be
substantially completed within a reasonable time after the execution hereof. All
of Landlord's Initial Construction and the Base Building Work shall be performed
in compliance with all applicable laws (including, without limitation, the
Americans With Disabilities Act of 1990, as amended [the "ADA"]). If any
portions of the common areas of the Building shall not be in compliance with
applicable laws, and to the extent such non-compliance materially adversely
affect Tenant's use and enjoyment of the demised premises for the purposes
contemplated, Landlord shall cause such non-compliance to be remedied promptly
and with due diligence after Landlord shall become aware of such condition.
Tenant shall not alter, demolish or remove Landlord's Initial Construction, or
any part thereof, unless Tenant shall, prior to the commencement thereof, obtain
Landlord's written consent thereto, and pay to Landlord a sum, fixed by
Landlord, for the restoration thereof. Anything contained herein to the contrary
notwithstanding, Tenant shall have the option, to be exercised at any time prior
to the final approval of the plans and specifications for Landlord's Initial
Construction, as provided in Schedule A hereof, to increase the amount of
Landlord's Contribution by as much as $268,860, such that the Landlord's
Contribution may be increased to as much as $1,008,225; provided, however, that
in no event may Tenant increase the amount of Landlord's Contribution to in
excess of the Fixed Cost. If Tenant shall elect to increase the amount of
Landlord's Contribution as aforesaid, Tenant shall send written notice of such
election to Landlord at any time prior to the final approval of the plans and
specifications for Landlord's Initial Construction, as provided in Schedule A
hereof and in such event, (i) the base annual rent payable pursuant to Article 3
hereof shall be increased by an amount equal to 24.33% of the amount by which
the Landlord's Contribution shall be increased, and (ii) the amount of the
security deposit to be held by Landlord pursuant to Article 48 hereof shall be
increased by an amount equal to 60.00% of the amount by which the Landlord's
Contribution shall be increased.
WORKING HOURS
6. (A) Landlord, during the hours of 8:00 A.M. to 6:00 P.M. on weekdays
and on Saturdays from 9:00 A.M. to 1:00 P.M. (Working Hours), excluding legal
holidays, shall furnish the demised premises with heat and air-conditioning
("HVAC") in the respective seasons, and shall at all times furnish elevator
service to the demised premises and provide the demised premises with
electricity for lighting and usual office equipment as per Schedule "C". At any
hours other than the aforementioned, HVAC services will be provided at Tenant's
expense in accordance with subparagraph (B) of this Article.
(B) HVAC service during non-Working Hours shall be available
to Tenant in two categories as follows: (i) regularly scheduled HVAC service
during non-Working Hours ("Regular Overtime HVAC") shall be in accordance with a
schedule, consisting of any number of consecutive non-Working Hours on a daily
basis, as specified by Tenant, which schedule shall remain in effect until
Tenant shall, at its option, notify Landlord of a change in such schedule;
provided, however, that 1) Tenant shall be entitled to request such change not
more frequently than once during any calendar month, 2) Tenant's notification of
such change shall be given to Landlord not later that the twentieth (20th) day
of any calendar month, and 3) each such change shall be effective as of the
first day of the calendar month immediately following the date such notice shall
be given and shall remain in effect until Tenant shall again change such
schedule as hereinbefore provided; and (ii) demand HVAC service during
non-Working Hours ("Demand Overtime HVAC") shall be provided on a demand basis,
upon Tenant's request therefor, which request may be made verbally and shall, in
any event, be communicated to Landlord Monday through Friday (excluding legal
holidays), between the hours of 9:00 am and 5:00 pm, not less than three (3)
hours prior to the time such Demand Overtime HVAC service shall be desired. As
of the Tern Commencement Date, and during the first year of the Demised Term,
the cost of Regular Overtime HVAC Service shall be charged at the rate of $35.00
per hour, and the cost of Demand Overtime HVAC service shall be charged at the
rate of $50.00 per hour. The hourly charge for Regular Overtime HVAC service and
for Demand Overtime HVAC service shall each be subject to increase if and to the
extent the cost incurred by Landlord for electricity and other fuel required in
providing such overtime service shall increase from and after the date hereof.
Regular Overtime HVAC Service charges and Demand Overtime HVAC service charges
shall be payable by Tenant as additional rent within fifteen (15) days after
Landlord shall render a statement therefor.
LANDLORD'S REPAIRS AND MAINTENANCE
7. Landlord, at its expense, will make all repairs to and provide the
maintenance for the demised premises (excluding painting, decorating and
carpeting) and for all public areas and facilities as set forth in Schedule B,
except such repairs (whether structural or otherwise) and maintenance as may be
necessitated by the negligence, improper care or improper use of such premises
and facilities by Tenant, its agents, employees, licensees or invitees, which
will be made by Tenant at Tenant's expense as provided in Article 12 hereof.
WATER AND ELECTRIC SUPPLY
8. A. Landlord, at its expense, shall furnish hot and cold water in
public areas for lavatory purposes and chilled water for drinking purposes.
B. Landlord shall furnish an electrical panel for the demised
premises, together with a submeter therefor. Tenant shall pay Landlord for
electrical service in accordance with Schedule C.
PARKING FIELD
9. Tenant shall have the right to use Two Hundred Sixty Eight (268)
parking spaces, for the parking of automobiles of the Tenant, its employees and
invitees, in the parking area reserved for tenants of the Building (hereinafter
sometimes referred to as "Building Parking Area") subject to the Rules and
Regulations now or hereafter adopted by Landlord. Tenant shall not use nor
permit any of its officers, agents or employees to use any parking area other
than the Building Parking Area, nor use in excess of Tenant's allotted number of
spaces therein.
DIRECTORY
10. Landlord will furnish in the lobby of the Building a directory
which will contain listing(s) requested by the Tenant not to exceed Thirty Five
(35) listings.
TAXES
11. A. If the Taxes which would be assessable to the Landlord in any
escalation year (without taking into consideration any reductions or abatements
granted to the Landlord by the taxing authorities by reason of vacancies or
other hardships or provisions of law) shall be increased above the Tax Base,
then the Tenant shall pay to the Landlord as additional rent for such escalation
year a sum equal to 19.009% of such increases in Taxes (based on the ratio of
the total demised premises area of 67,215 square feet to the Building Area of
353,590 square feet). Tax Base shall be total taxes due for the tax year
1996/1997. Landlord represents that the Building is assessed as a fully
completed Building and that no abatements are currently in effect. To the extent
Landlord shall receive a refund or reduction of Taxes with respect to any
escalation year as to which Tenant shall have paid its share of Tax escalation
pursuant to the provisions of this Article, Tenant shall be entitled to a credit
against the rent next coming due in the amount of 19.009% of such refund, after
deducting therefrom the costs and expenses incurred in connection with obtaining
such refund or reduction.
RENT ADJUSTMENT
B. Each year on the Anniversary Date of the Term
Commencement Date of the Lease the annual rental rate shall increase by Three
and One Half (3.5%) per cent above the annual rental rate for the prior Lease
Year (excluding escalations pursuant to Paragraph 11A or Schedule C) this
increase shall include all prior escalations pursuant to this Paragraph 11B.
[Example: the annual rental rate for the second lease year of the Lease shall be
$1,248,242.58 ($1,211,886 + 3.5% of $1,211,886 for base rent)]. Landlord and
Tenant acknowledge and agree that the rent adjustment provided for in this
paragraph 11(B) is intended to constitute a formula for an agreed rental
adjustment, in lieu of an actual operating expense escalation provision, and
that such adjustment may or may not constitute an actual reimbursement to
Landlord for costs and expenses paid by Landlord with respect to the Building.
Tenant shall have no obligation to contribute any further amounts on account of
Landlord's operating expenses except as expressly provided elsewhere in this
lease.
DEFINITIONS
C. As used in and for the purposes of this Article 11, the
following definitions shall apply:--
(i) The term "Taxes" shall be deemed to include all
real estate taxes and assessments, special or otherwise and sewer rents, upon or
with respect to the Building and the land allocated to it including all parking
areas (hereinafter called the "Real Property"). If, due to any change in the
method of taxation, any franchise, income, profit, sales, rental use and
occupancy, or other tax shall be substituted for, or levied against Landlord or
any owner of the Building or the Real Property in lieu of, any real estate
taxes, assessments or sewer rents upon or with respect to the Real Property,
such tax shall be included in the term Taxes for the purposes of this Article.
(ii) (intentionally deleted)
(iii)(intentionally deleted)
(iv) The term "escalation year" shall mean each
calendar year which shall include any part of the Demised Term.
PROCEDURE FOR INVOICING AND PAYMENT OF ADDITIONAL RENT
D. (i) Landlord shall render to Tenant a statement
containing a computation of additional rent due under this Article on account of
Taxes ("Landlord's Statement") at any time and from time to time as such becomes
due. On the first day of each month following rendition of each Landlord's
Statement, Tenant shall pay to Landlord, on account of the additional rent on
account of Taxes, a sum equal to one-twelfth (1/12th) of the annualized
additional rent shown to be due on such Landlord's Statement.
(ii) Following each Landlord's Statement, Tenant
shall be debited with any additional rent shown on such Landlord's Statement to
be payable, and credited with the aggregate amount paid by Tenant in accordance
with the provisions of subsection 11D(i) above on account of the potential
additional rent.
(iii)The obligations of Landlord and Tenant under the
provisions of this Article 11 with respect to any additional rent for any
Escalation Year shall survive the expiration or any sooner termination of the
Demised Term. (iv) In the event that Tenant challenges the amount of Additional
Rent payable pursuant to this Article 11, then, as a condition precedent to the
submission of a dispute as to such amount to judicial review, and pending the
determination of any dispute, Tenant shall promptly pay the Additional Rent as
demanded by Landlord. After such determination, any adjustment in the disputed
amount shall be made within thirty (30) days.
(v) In the event that Tenant challenges the amount of
Additional Rent payable pursuant to this Article 11 or Schedule C of the Lease,
any audit involved in such challenge must be conducted by an independent person
or entity, the primary business of whom or which is not the conducting of lease
audits.
TENANT'S REPAIRS
12. Tenant shall take good care of the demised premises and, subject to
the provisions of Article 7 hereof, shall make as and when needed as a result of
misuse or neglect by Tenant or Tenant's servants, employees, agents, or
licensees, or as a result of the moving of Tenant's fixtures, furniture or
equipment, all repairs in and about the demised premises necessary to preserve
them in good order and condition, which repairs shall be in quality and class
equal to the original work. Any repairs which Tenant may be required to carry
out pursuant to the terms hereof may, at Landlord's option, be made by Landlord
at the expense of Tenant, and the expenses thereof incurred by Landlord shall be
collectible as additional rent after the rendition of a bill or statement
therefor.
FLOOR LOADING
13. The emplacement of any equipment which will impose an evenly
distributed floor load in excess of 50 pounds per square foot shall be done only
after written permission is received from the Landlord. Such permission will be
granted only after adequate proof is furnished by a professional engineer that
such floor loading will not endanger the structure.
FIXTURES AND INSTALLATIONS
14. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the demised premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall become and remain the property of
Landlord, and shall remain upon and be surrendered with the demised premises
unless Landlord, by notice to Tenant no later than twenty days prior to the date
fixed as the termination of this lease, elects to have them removed by Tenant,
in which event, the same shall be removed from the premises by Tenant forthwith,
at Tenant's expense. Nothing in this Article shall be construed to prevent
Tenant's removal of trade fixtures, but upon removal of any such trade fixtures
from the premises or upon removal of other installations as may be required by
Landlord, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the Building due to such removal. Anything contained
herein to the contrary notwithstanding, Tenant shall have no obligation to
restore or repair, upon the expiration or other termination of this lease, any
damage or deterioration arising from the ordinary wear and tear of the demised
premises, nor shall Tenant be required to repair or patch any walls within the
demised premises that have been damaged by the customary hanging of ordinary
office decorations and artwork throughout the Demised Term. All property
permitted or required to be removed by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Landlord, either be retained as Landlord's property or may be
removed from the premises at Tenant's expense. All the outside walls of the
demised premises including corridor walls and the outside entrance doors to the
demised premises, any balconies, terraces or roofs adjacent to the demised
premises, and any space in the demised premises used for shafts, stacks, pipes,
conduits, ducts or other building facilities, and the use thereof, as well as
access thereto in and through the demised premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to Landlord, and
Landlord does not convey any rights to Tenant therein. Notwithstanding the
foregoing, Tenant shall enjoy full right of access to the demised premises
through the public entrances, public corridors and public areas within the
Building. Landlord shall grant Tenant reasonable access to and through any
existing conduits located throughout the Building, to the extent available and
having the available capacity to accommodate Tenant's requirements without
interfering with any then existing use of such conduits, or to install
additional conduits as may be necessary, for Tenant to install any
telecommunications and electrical equipment and lines required, contemplated or
desired by Tenant. All of the work contemplated by this paragraph shall be
performed in a good and workmanlike manner, in a commercially reasonable fashion
so long as it shall not detract from the physical appearance of the Building and
the grounds associated therewith. Notwithstanding the foregoing none of such
work, cabling or lines may take place or be located within any other tenant's
premises in the Building, except that Tenant shall be permitted to perform core
drilling through ceilings of other tenant's premises, and to run cabling and/or
lines through such spaces so long as such work, and the presence of such cabling
and/or lines, shall not interfere with the use and occupancy of any other
tenant's premises or the operation or maintenance of any other equipment or
improvements located within such ceiling areas.
ALTERATIONS
15. A. After completion of the demised premises, Tenant shall make no
alterations, decorations, installations, additions or improvements in or to the
demised premises without Landlord's prior written consent (which consent shall
not be unreasonably withheld), and then only by contractors or mechanics
approved by Landlord (which approval shall not be unreasonably withheld) and at
such times and in such manner as Landlord may from time to time designate.
Landlord shall have the right to make inspections of any such work being carried
out by Tenant or on Tenant's behalf at any reasonable time during the progress
of such work. Anything contained in this Article 15 to the contrary
notwithstanding, Tenant shall not be required to obtain Landlord"s approval for
and shall be permitted to perform any alterations reasonably and in good faith
estimated to cost less than $10,000.00, and which do not affect the structural
parts, common areas or exterior of the Building, or any of the Building systems
("Permitted Alterations"). Any such Permitted Alterations shall, however be
performed in compliance with the remaining provisions of this Article 15.
B. All installations or work done by Tenant shall be done in a
good and workmanlike manner and shall at all times comply with:
(1) Laws, rules, orders and regulations of
governmental authorities having jurisdiction thereof.
(2) Rules and regulations of Landlord.
(3) Plans and specifications prepared by and at the
expense of Tenant theretofore submitted to Landlord for its prior written
approval; no installations or work shall be undertaken, started or begun by
Tenant, its agents, servants or employees, until Landlord has approved such
plans and specifications; and no amendments or additions to such plans and
specifications shall be made without the prior written consent of Landlord, and,
as to alterations affecting the Building's mechanical or electrical systems, or
which shall require a building permit, shall be subject to Landlord's
supervisory fee charge equal to 5% of the cost of the work.
Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will create any difficulty
with other contractors and/or labor engaged by Tenant or Landlord or others in
the construction, maintenance and/or operation of the Building or any part
thereof. Landlord represents that as of the date hereof, the Building is an
"open" building, i.e., both unionized and non-unionized labor are employed to
perform alterations therein. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates to
Landlord and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such workmen's compensation, general liability,
personal and property damage insurance as Landlord may require. At Landlord's
request, Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of mechanic's liens upon the real property in which the
demised premises are located, for all property in which the demised premises are
located, for all work, labor and services performed and materials furnished in
connection with such work after payment therefore, signed by all contractors,
sub-contractors, materialmen and laborers involved in such work. Notwithstanding
the foregoing, if any mechanic's lien is filed against the demised premises, or
the Building, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this Article the same shall be
discharged by Tenant within ten days thereafter, at Tenant's expense, by filing
the bond required by law.
C. Anything contained herein to the contrary
notwithstanding, Tenant shall make no alterations, decorations, installations,
additions or improvements in or to the demised premises which shall in any way
affect utility services or plumbing and electrical lines. Moreover, Landlord
shall not be deemed to have acted unreasonably for withholding consent to any
alterations, decorations, installations, additions or improvements which: (i)
involve or might affect any structural or exterior element of the Building
outside the demised premises or the Building, or (ii) will require unusual
expense to readapts the demised premises to normal office use on the expiration
of the Demised Term or increase the cost of construction or of insurance or
taxes on the Building or of the services called for hereunder unless Tenant
first gives assurances acceptable to Landlord for payment of such increased cost
and that such readaption will be made prior to the Expiration Date without
expense to Landlord.
REQUIREMENTS OF LAW
16. (A) Tenant, at Tenant's sole cost and expense, shall comply with
all laws, orders and regulations of Federal, State, County and Municipal
authorities, and with all directions, pursuant to law, of all public officers,
which shall impose any duty upon Landlord or Tenant with respect to the demised
premises or the use or occupation thereof, except that Tenant shall not be
required to make any structural alterations, or alterations to the common areas
of the Building, in order so to comply unless such alterations shall be
necessitated or occasioned, in whole or in part, by the acts, omissions or
negligence of Tenant or any person claiming through or under Tenant or any of
their servants, employees, contractors, agents, visitors or licensees, or by the
use or occupancy or manner of use or occupancy of the demised premises by
Tenant, or any such person nor shall Tenant be required to make any alterations
in order to cause Landlord's Initial Construction to comply with applicable
laws.
FIRE INSURANCE
(B) Tenant shall not do anything, or permit anything to be
done, in or about the demised premises which shall (i) invalidate or be in
conflict with the provisions of any fire or other insurance policies covering
the Building or any property located therein, or (ii) result in a refusal by
fire insurance companies of good standing to insure the Building or any such
property in amounts reasonably satisfactory to Landlord, or (iii) subject
Landlord to any liability or responsibility for injury to any person or property
by reason of any business operation being conducted in the demised premises, or
(iv) cause any increase in the fire insurance rates applicable to the Building
or property located therein at the beginning of the Demised Term or at any time
thereafter. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the New York Board of Fire Underwriters and the
New York Fire Insurance Rating Organization or any similar body.
(C) Tenant shall pay all costs, expenses, fines, penalties or damages, which may
be imposed upon Landlord by reason of Tenant's failure to comply with the
provisions of this Article 16 and if by reason of such failure the fire
insurance rate shall at the beginning of this lease or at any time thereafter,
be higher that it otherwise would be, then Tenant shall reimburse Landlord, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure by Tenant, and shall make such reimbursement upon the first day of the
month following such outlay by Landlord. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make up" of rates applicable to
the Building or property located therein issued by the New York Fire Insurance
Rating Organization, or other similar body fixing such fire insurance rates,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the fire insurance rates then applicable to the Building or
property located therein.
TENANT'S INSURANCE
(D) Tenant will keep in force, at Tenant's expense at all times during
the Demised Term and during such other times as Tenant occupies the demised
premises or any part thereof:
(i) commercial general liability insurance or
comprehensive general liability insurance with broad form endorsement with
respect to the demised premises and the operation of Tenant and any Persons
under Tenant's Control in, on or about the demised premises in which the limits
of coverage shall be not less than Three Million Dollars ($3,000,000) combined
single limit per occurrence;
(ii) statutory workers' compensation coverage and
employers' liability as required by state law;
(iii) business interruption insurance for a period of
not less than one year and such other insurance as Tenant deems necessary to
protect its property and its business against all perils commonly insured
against by prudent tenants;
(iv) such other insurance with respect to the demised
premises and in such amounts as Landlord may from time to time reasonably
require against such other insurable hazards or risks which at the time are
commonly insured against in the case of property similar to the demised premises
and used as provided herein.
The foregoing limits shall be increased from time to time in the event
that Landlord, in its reasonable judgment, shall determine that the amounts of
insurance are inadequate to pay any claims that may be brought under the
foregoing policies. All policies required by this lease shall be written on an
occurrence basis. Such policies are to be written by a company having a general
policy holder's rating of not less than A and a rating in financial size of not
less than XI, as rated in the most current "Best's" insurance reports, and
authorized and licensed to issue such policies in the State of New York. Any
such insurance required of Tenant hereunder may be furnished by Tenant under any
blanket policy carried by it, providing the policy properly allocates the
required limits to the demised premises, or under a separate policy thereof.
Each policy evidencing insurance as required by to carried by Tenant pursuant to
this Article shall contain the following provisions and/or clauses: (i) a
cross-liability clause; (ii) a provision that such policy and the coverage
carried by Landlord shall be excess insurance; (iii) a provision including
Landlord, Landlord's managing agent and other parties (including mortgagees)
designated by Landlord as additional insureds (except with respect to workers'
compensation insurance); (iv) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and representatives which
arises or might arise by reason of any payment under such policy or by reasons
of any act or omission of Landlord, its agents, employees, or representatives;
(v) a severability clause; and (vi) a provision that the insurer will not
cancel, materially change, reduce aggregates or coverage or fail to renew the
coverage provided by such policy without first giving Landlord and all
additional insureds thirty (30) days' prior notice.
A copy of each paid-up policy or certificate of insurance accompanied
by original endorsements signed by the insurance company evidencing the policies
required hereunder, along with evidence of payment and appropriately
authenticated by the insurer or its authorized agent certifying that such policy
has been issued providing the coverage required by this Article, and containing
provisions specified herein, shall be delivered to Landlord not less than
fifteen (15) days prior to the earlier of (x) the Term Commencement Date, or (y)
the date Tenant shall first take possession of the demised premises for any
purpose, and, upon renewals, not less than thirty (30) days prior to the
expiration of such coverage.
If Tenant fails to deliver to Landlord on time any required evidence of
insurance coverage, or fails to carry any insurance required hereunder, or by
law or governmental regulations, then Landlord may (but is not obligated to)
purchase the required coverage on behalf of Tenant, as provided above, in which
event Tenant shall pay to Landlord on demand the cost of such insurance coverage
plus ten percent (10%) of the amount of such cost as a service charge to
Landlord. No such purchase by Landlord shall be deemed a waiver of Tenant's
default and Landlord may pursue its full rights and remedies on account of such
default. As used herein, the term "Persons under Tenant's Control" shall mean
and include Tenant, all of Tenant's respective principals, officers, agents,
contractors, servants, employees, licensees and invitees.
END OF TERM
17. A. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Landlord the demised premises, broom
clean, in good order and condition, ordinary wear excepted, and Tenant shall
remove all of its property, and shall repair all damage to the demised premises
or the Building occasioned by such removal. Any property not removed from the
premises shall be deemed abandoned by Tenant and may be disposed of in any
manner deemed appropriate by the Landlord. Tenant expressly waives, for itself
and for any person claiming through or under Tenant, any rights which Tenant or
any such person may have under the provisions of Section 2201 of the New York
Civil Practice Law and Rules and of any successor law of like import then in
force, in connection with any holdover summary proceedings which Landlord may
institute to enforce the foregoing provisions of this Article. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the term of this lease. If the last day of the term of this
lease or any renewal hereof falls on Sunday or a legal holiday, this lease shall
expire on the business day immediately preceding.
(B) Tenant acknowledges that possession of the demised
premises must be surrendered to Landlord at the expiration or sooner termination
of the term of this lease. Tenant hereby agrees to indemnify and save Landlord
harmless against any and all costs, damages, claims, loss or liability resulting
from delay by Tenant in so surrendering the demised premises, including, without
limitation, any claims made by any succeeding tenant, founded on such delay. The
parties recognize and agree that the damage to landlord resulting from any
failure by Tenant timely to surrender possession of the demised premises as
aforesaid will be extremely substantial, will exceed the amount of monthly rent
theretofore payable hereunder, and will be impossible of accurate measurement.
Tenant therefore agrees that if possession of the demised premises is not
surrendered to landlord on or before the date of the expiration or other
termination of the term of this lease, time being of the essence with respect
thereto, then, in addition to any other remedies and/or damages otherwise
available to Landlord hereunder or at law, Tenant agrees to pay Landlord, for
each month and for each portion of any month during which Tenant holds over in
the demised premises after expiration or other termination of the term of this
lease, a sum equal to two times the rent and additional rent (inclusive of
escalations) that was payable per month under this lease during the last month
of the term thereof. Nothing contained herein shall be construed to constitute
Landlord's consent to Tenant remaining in possession of the demised premises
after the expiration or other termination of the term of this lease. Landlord
shall be entitled to pursue any action necessary to recover immediate possession
of the demised premises notwithstanding Tenant's payment of the aforementioned
sum. The aforesaid provisions of this paragraph shall survive the expiration or
sooner termination of the term of this lease.
QUIET ENJOYMENT
18. Landlord covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the demised premises during the term of this
lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
lease including, but not limited to, Article 23.
SIGNS
19. No signs may be put on or in any window nor on the exterior of the
Building. Any signs or lettering in the public corridors or on the doors must be
submitted to Landlord for approval before installation, which approval shall not
be unreasonably withheld.
RULES AND REGULATIONS
20. Tenant and Tenant's agents, employees, visitors, and licensees
shall faithfully comply with the Rules and Regulations set forth on Schedule D
annexed hereto and made part hereof, and with such further reasonable Rules and
Regulations as Landlord at any time may make and communicate in writing to
Tenant which, in the Landlord's judgment, shall be necessary for the reputation,
safety, care or appearance of the Building and land allocated to it or the
preservation of good order therein, or the operation or maintenance of the
Building, its equipment and such land, or the more useful occupancy or the
comfort of the tenants or others in the Building. Landlord shall not be liable
to Tenant for the violation of any of said Rules and Regulations, or the breach
of any covenant or condition of any lease by any other tenant in the Building.
Rules and Regulations shall be uniformly applied where possible.
ASSIGNMENT AND SUBLETTING
21. (A) Tenant, for itself, its successors, undertenants and assigns,
(all of the foregoing hereinafter referred to as the "Tenant") expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet the demised premises or any part thereof, or license or permit the
demised premises or any part thereof to be used by others, without the prior
written consent of the Landlord in each instance and upon due compliance with
the provisions of this Article 21.
(B) Intentionally Omitted.
(C) Prior to requesting the approval of Landlord to an
assignment or subletting as hereinafter provided, Tenant shall, by notice as
provided in Article 35, advise the Landlord of all the terms, covenants and
conditions of the Tenant's proposed sublease or assignment and shall offer to
the Landlord the option:
(i) to terminate the lease as of the last day of any
calendar month of the term hereof, which day shall be prior to the effective
date of such proposed sublease or assignment, and after Landlord's Acceptance
Period (as such phrase is hereinafter defined), and to vacate and surrender the
demised premises to Landlord; or
(ii) to execute a sublease for the said space with
the Landlord on the same terms and conditions as are contained in the proposed
sublease or assignment.
Landlord shall have fifteen (15) business days after the receipt of such offer
to accept in writing either or neither of such offers (Landlord's Acceptance
Period). Anything contained in this Article 21(C) to the contrary
notwithstanding, if Landlord shall accept either of Tenant's aforesaid offers,
Tenant may revoke such offers by sending written notice to Landlord withdrawing
Tenant's request to assign the lease or sublet the demised premises that was
associated with such offers, which notice must be given by Tenant, if at all,
within ten (10) days after Tenant's receipt of Landlord's acceptance of either
of such offers, whereupon such offer shall be deemed revoked and Tenant shall
not be entitled to assign the lease or sublet the demised premises without again
complying with the provisions of this Article.
(D) Upon Tenant's due compliance with the aforesaid
provisions of this Article 21, and if Landlord shall not accept either of
Tenant's aforesaid offers, Landlord agrees not to unreasonably withhold its
consent to an assignment or subletting, provided that the Tenant is not then in
default under this lease and that the proposed assignee or undertenant is
financially responsible, of good reputation and engaged in a business compatible
with the business generally carried on in the Building and that the proposed
assignment or sublease would not be inconsistent with any agreement previously
made with any other tenant, and further provided that such assignee or
undertenant shall execute and deliver to Landlord an assumption agreement
wherein it agrees to perform all the obligations of the Tenant under this lease
in form appropriate for recording, and provided, in the case of a sublease, that
the annual rental rate under such sublease is not less than the prevailing rate
per square foot at Two Huntington Quadrangle, Melville, New York.
(E) No assignment of this lease or underletting of the
demised premises shall release or discharge the Tenant hereunder from any of its
obligations to be performed under this lease. The consent by Landlord to an
assignment or underletting shall not in any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting.
(F) If Tenant is a corporation, Tenant may assign this lease
to any successor by merger or consolidation, provided that a copy of said
assignment, in recordable form, is delivered to the Landlord containing a full
assumption by the assignee of all the Tenant's obligations hereunder.
LANDLORD'S ACCESS TO PREMISES
22. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the demised premises at all mutually agreeable times, upon
reasonable prior verbal notice (except in an emergency, and then at all times
and without notice), to examine the same, to show them to mortgagees, ground
lessors, prospective purchasers or lessees or mortgagees of the Building, and to
make such repairs, improvements or additions as Landlord may deem necessary or
desirable and Landlord shall be allowed to take all material into and upon
and/or through said demised premises that may be required therefor. During the
year prior to the expiration of the term of this lease, or any renewal term,
Landlord may exhibit the demised premises to prospective tenants or purchasers
at all reasonable hours and without unreasonably interfering with Tenant's
business. If Tenant shall not be personally present to open and permit an entry
into said premises, at any time, when for any reason an entry therein shall be
necessary due to an emergency, Landlord or Landlord's agents may enter the same
by a master key, without rendering Landlord or such agent liable therefor (if
during such entry Landlord or Landlord's agents shall accord reasonable care to
Tenant's property). If during the last month of the Demised Term Tenant shall
have removed all or substantially all of Tenant's property therefrom, Landlord
may immediately enter, alter, renovate or redecorate the demised premises
without limitation or abatement of rent, or incurring liability to Tenant for
any compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder. Tenant acknowledges that Landlord shall have no
obligation to perform any of its repair and maintenance obligations hereunder
except during Landlord's regular working hours, except in the event of an
emergency. If Tenant desires Landlord to perform any such repair and maintenance
obligations at any hours other than Landlord's regular working hours, Landlord
shall use its reasonable efforts to accommodate Tenant's request, provided,
however, that Tenant shall pay to Landlord, as additional rent, any overtime
charges incurred by Landlord as a result thereof, except in the event of an
emergency. Landlord acknowledges that Tenant shall provide Landlord with a
master key for the demised premises, and all of the areas therein, with the
exception of areas deemed by Tenant to be "security sensitive" areas. Landlord
shall have no liability for its failure to perform any repairs to such "security
sensitive" areas by reason of Landlord's inability to gain access thereto, nor
to any other portions of the demised premises to which access is denied. Tenant
acknowledges that in the event of an emergency, Landlord may enter such areas by
any reasonable means necessary without being liable to Tenant by reason of such
access or by reason of any damage caused in obtaining such access.
(B) Landlord shall also have the right at any time to use,
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein, to change the arrangement and/or
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Building, provided,
however, that Landlord shall make no change in the arrangement and/or location
of entrances or passageways or other public parts of the Building which will
adversely affect in any material manner Tenant's use and enjoyment of the
demised premises. Landlord shall also have the right, at any time, but upon
reasonable prior notice, to name the Building, to display appropriate signs
and/or lettering on any or all entrances to the Building, and to change the
name, number or designation by which the Building is commonly known, except that
Landlord agrees that it shall not, at any time during the Demised Term, name the
Building after any entity engaged in the same business as Tenant is engaged as
of the date hereof. Furthermore, Landlord shall use its reasonable efforts to
utilize existing core areas before changing or erecting any new conduits or
pipes within the demised premises.
(C) Neither this lease nor any use by Tenant shall give
Tenant any right or easement to the use of any door or passage or concourse
connecting with any other building or to any public conveniences, and the use of
such doors and passages and concourse and of such conveniences may be regulated
and/or discontinued at any time and from time to time by Landlord without notice
to Tenant, except that Tenant shall at all times be entitled to use the
concourse leading to the Building loading area (subject to temporary
interruptions for required repairs or alterations).
(D) The exercise by Landlord or its agents of any right
reserved to Landlord in this Article shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord, or its agents, or upon any lessor
under any ground or underlying lease, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
Landlord shall use its reasonable efforts to minimize any inconvenience to
tenant in exercising its rights under this Article 22.
SUBORDINATION
23. (A) This lease is subject and subordinate in all respects to all
ground leases and/or underlying leases and to all mortgages which may now or
hereafter be placed on or affect such leases and/or the real property of which
the demised premises form a part, or any part or parts of such real property,
and/or Landlord's interest or estate therein, and to each advance made and/or
hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitution therefor. This Section A shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or the lessor under any ground or underlying
lease and/or their respective successors in interest may request.
(B) Without limitation of any of the provisions of this
lease, in the event that any mortgagee or its assigns shall succeed to the
interest of Landlord or of any successor-Landlord and/or shall have become
lessee under a new ground or underlying lease, then, at the option of such
mortgagee, this lease shall nevertheless continue in full force and effect and
Tenant shall and does hereby agree to attorn to such mortgagee or its assigns
and to recognize such mortgagee or its respective assigns as its Landlord.
(C) Tenant shall, at any time and from time to time upon not
less than five days' prior notice by Landlord, execute, acknowledge and deliver
to Landlord a statement in writing certifying that this lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications), and the
dates to which the rent, additional rent and other charges have been paid in
advance, if any, and stating whether or not to the best knowledge of the signer
of such certificate Landlord is in default in performance of any covenant,
agreement, term, provision or condition contained in this lease and, if so,
specifying each such default of which the signer may have knowledge, it being
intended that any such statement delivered pursuant hereto may be relied upon by
any prospective purchaser or lessee of said real property or any interest or
estate therein, any mortgagee or prospective mortgagee thereof or any
prospective assignee of any mortgage thereof. If, in connection with obtaining
financing or refinancing for the Building and the land allocated to it, a
banking, insurance or other recognized institutional lender shall request
reasonable modifications in this lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereto, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created. Landlord
shall use its reasonable efforts to obtain an agreement (a "Non-Disturbance
Agreement") from the holder of any mortgage now or (within thirty (30) days
after request by Tenant therefor) hereafter encumbering the Real Property, in
the usual form of such holder, in favor of Tenant, providing in substance that
so long as Tenant is not in default under the terms of this lease, the right of
possession of Tenant to the demised premises shall not be affected or disturbed
by such holder in the exercise of any of its rights under the mortgage or any
note secured thereby, and any sale of the Real Property pursuant to the exercise
of any rights and remedies under the mortgage or otherwise shall be made subject
to Tenant's right of possession under this lease. As to the mortgage presently
held by The Mutual Life Insurance Company of New York ("MONY"), in the event
Landlord shall be unable to obtain a Non-Disturbance Agreement from MONY in
favor of Tenant, in the form annexed hereto as Exhibit 3 hereof, on or before
the "Consent Deadline" (as defined in Article 50 hereof), then Tenant may cancel
this lease by sending written notice to Landlord on or before the earlier to
occur of: (i) ten (10) days after the Consent Deadline; or (ii) the date on
which Landlord shall obtain the Non-Disturbance Agreement from MONY in favor of
Tenant. If Tenant shall cancel this lease as herein provided, Landlord shall
refund any monies theretofore paid by Tenant to Landlord hereunder, this lease
shall be deemed canceled and neither party shall have any further liability or
obligation to the other hereunder. As to any mortgages hereafter affecting the
Real Property, the subordination provisions of this Article 23 shall be subject
to and conditioned upon Landlord obtaining a Non-Disturbance Agreement in the
usual form of the holder of such mortgage, in favor of Tenant, within thirty
(30) days after Tenant's request therefor, which request shall be made within
ten (10) business days after Landlord notifies Tenant of any contemplated future
mortgage. If Tenant shall fail to request such Non-Disturbance Agreement within
such ten (10) business day period, then the subordination provisions of this
Article 23 shall be self-operative, and no further writing or agreement shall be
required to confirm the subordination of this lease to such mortgage. If, on the
other hand, Landlord shall be unable to obtain a Non-Disturbance Agreement from
such holder in favor of Tenant, within such thirty (30) day period, then such
mortgage shall be subordinate to this lease. Landlord shall not be required to
incur any expense (other than a reasonable processing fee) or pay any
consideration in order to obtain any Non-Disturbance Agreement in favor of
Tenant. Except as expressly provided herein, Landlord shall incur no liability,
nor shall this lease or the obligations of Tenant hereunder be affected in any
manner, in the event Landlord shall be unable to obtain a Non-Disturbance
Agreement from the holder of any mortgage in favor of Tenant. Furthermore,
Landlord shall not be required to incur an expense (other than a reasonable
processing fee) or pay any consideration in order to obtain any Non-Disturbance
Agreement in favor of Tenant.
PROPERTY LOSS, DAMAGE, REIMBURSEMENT
24. (A) Landlord or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise. Landlord
or its agents shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, electrical disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, unless caused by or due to the negligence of
Landlord, its agents, servants or employees; nor shall Landlord or its agents be
liable for any such damage caused by other tenants or persons in the Building or
caused by operations in construction of any private, public or quasi public
work; nor shall Landlord be liable for any latent defect in the demised premises
or in the Building. If at any time any windows of the demised premises are
temporarily closed or darkened incident to or for the purpose of repairs,
replacements, maintenance and/or cleaning in, on, to or about the Building or
any part or parts thereof, Landlord shall not be liable for any damage Tenant
may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall reimburse and
compensate Landlord as additional rent for all expenditures made by, or damages
or fines sustained or incurred by Landlord due to non-performance or
non-compliance with or breach or failure to observe any term, covenant or
condition of this lease upon Tenant's part to be kept, observed, performed or
complied with. Tenant shall give immediate notice to Landlord in case of fire or
accidents in the demised premises or in the Building or of defects therein or in
any fixtures or equipment.
TENANT'S INDEMNITY
(B) Tenant shall indemnify and save harmless Landlord
against and from any and all claims by and on behalf of any person or persons,
firm or firms, corporation or corporations arising from the conduct or
management of or from any work or thing whatsoever done (other than by Landlord
or its contractors or the agents or employees of either) in and on the demised
premises during the term of this lease and during the period of time, if any,
prior to the Term Commencement Date that Tenant may have been given access to
the demised premises for the purpose of making installations, and will further
indemnify and save harmless Landlord against and from any and all claims arising
from any condition of the demised premises due to or arising from any act or
omission or negligence of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees, and against and from all costs, expenses and
liabilities incurred in connection with any such claim or claims or action or
proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
agrees that Tenant, at Tenant's expense, will resist or defend such action or
proceeding and will employ counsel therefor reasonably satisfactory to Landlord.
Tenant's liability under this lease extends to the acts and omissions of any
subtenant, and any agent, contractor, employee, invitee or licensee of any
subtenant.
DESTRUCTION-FIRE OR OTHER CASUALTY
25. If the demised premises shall be damaged by fire or other casualty
and if Tenant shall give prompt notice to Landlord of such damage, Landlord, at
Landlord's expense, shall repair such damage. However, Landlord shall have no
obligation to repair any damage to, or to replace, Tenant's personal property or
any other property or effects of Tenant. If the entire demised premises shall be
rendered untenantable by reason of any such damage, the rent shall abate for the
period from the date of such damage to the date when such damage shall have been
repaired, and if only a part of the demised premises shall be so rendered
untenantable, the rent shall abate for such period in the proportion which the
area of the part of the demised premises so rendered untenantable bears to the
total area of the demised premises. However, if prior to the date when all of
such damage shall have been repaired any part of the demised premises so damaged
shall be rendered tenantable and shall be used or occupied by Tenant or any
person or persons claiming through or under Tenant, then the amount by which the
rent shall abate shall be equitably apportioned for the period from the date of
any such use or occupancy to the date when all such damage shall have been
repaired. Tenant hereby expressly waives the provisions of Section 227 of the
New York Real Property Law, and of any successor law of like import then in
force, and Tenant agrees that the provisions of this Article shall govern and
control in lieu thereof. Notwithstanding the foregoing provisions of this
Section, if, prior to or during the Demised Term, (i) the demised premises shall
be totally damaged or rendered wholly untenantable by fire or other casualty,
and if Landlord shall decide not to restore the demised premises, or (ii) the
Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, substantial alteration, demolition, or reconstruction of the Building
shall be required (whether or not the demised premises shall be damaged or
rendered untenantable), then, in any of such events, Landlord at Landlord's
option, may give to Tenant, within sixty (60) days after such fire or other
casualty, a thirty (30) days' notice of termination of this lease. Landlord
shall notify Tenant (the "Casualty Notice") in writing within sixty (60) days of
the occurrence of such damage as to whether the damage is susceptible of
complete repair within one hundred eighty (180) days after the occurrence. If
the Casualty Notice will indicate that such repair and restoration will require
in excess of one hundred eighty (180) days, then such notification shall state
the estimated period required to repair or restore such damage (the "Estimated
Repair/Restoration Period"). If such damage to the demised premises or any
portion thereof shall render all or substantially all of the demised premises
untenantable for the normal operation of Tenant's business, and either (i) the
Estimated Repair/Restoration Period is in excess of one hundred eighty (180)
days after the occurrence of such casualty, or (ii) Landlord fails to provide
the Casualty Notice within five (5) business days after Landlord's receipt of
notice from Tenant that Landlord has failed to provide the Casualty Notice
within sixty (60) days of the occurrence of such damage, then in either event
Tenant may, by written notice to Landlord given within seventy-five (75) days
after the date of such casualty, terminate this lease as of the date of
occurrence of such damage. If the Casualty Notice shall indicate that the
Estimated Repair/Restoration Period shall be not more than one hundred eighty
(180) days, or if the Casualty Notice shall indicate that the Estimated
Repair/Restoration Period shall be more than one hundred eighty (180) days and
Tenant does not elect to terminate this lease as hereinabove provided (subject
in either case to delays caused by any of the reasons set forth in Article 36(A)
hereof) and if Landlord fails to repair or restore such damage within such
period, then Tenant shall have a further option to terminate this lease, by
giving written notice to Landlord within ten (10) days after the expiration of
the Estimated Repair/Restoration Period. If either party elects to terminate
this lease as herein provided, the Demised Term shall expire upon the thirtieth
(30th) day after such notice is given, and Tenant shall vacate the demised
premises and surrender the same to Landlord, as if such date were the Expiration
Date, the rent shall be apportioned as of such date, and any prepaid portion of
rent for any period after such date shall be refunded by Landlord to Tenant. In
the event that any damage or destruction by fire or other casualty shall render
all or substantially all of the demised premises untenantable for the normal
operation of Tenant's business, and if neither party shall elect to terminate
this lease as hereinabove provided, and if Landlord shall then have available
any space in Buildings owned by Landlord and located within the Town of Melville
that shall be suitable for the temporary relocation of Tenant's business
operations that are located within the demised premises pending the repair and
restoration of the demised premises, Landlord shall so notify Tenant of such
fact and Tenant shall have the option, exercisable upon written notice from
Tenant to Landlord given within five (5) business days after Tenant's receipt of
Landlord's notice, to elect to occupy such other space until the restoration and
repair of the demised premises. Such occupancy shall be upon all of the terms,
covenants and conditions contained in this lease (including, without limitation,
provisions regarding base annual rent and additional rent), except that
appropriate adjustments shall be made on a square foot basis in the event the
rentable area of such temporary space shall be smaller or greater than the
rentable area of the demised premises, and except further that Landlord shall
not be required to perform any alterations in order to prepare such temporary
space for Tenant's occupancy. Tenant shall vacate, quit and surrender the
temporary space, in accordance with the provisions of Article 17 hereof, within
twenty (20) days after receipt of notice from Landlord that restoration and
repair of the demised premises has been substantially completed.
SUBROGATION
26. Each of the parties hereto and their successors or assigns hereby
waives any and all rights of action for negligence against the other party
hereto which may hereafter arise for damage to the premises or to property
therein resulting from any fire or other casualty of the kind covered by
standard fire insurance policies with extended coverage, regardless of whether
or not, or in what amounts, such insurance is now or hereafter carried by the
parties hereto, or either of them. The foregoing release and waiver shall be in
force only if both releasors' insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance and also provided
that such a policy can be obtained without additional premiums. Both parties
agree to use their best efforts to obtain and maintain a waiver of subrogation
from their respective carriers if they are insured.
EMINENT DOMAIN
27. (A) In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only one part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the rent hereunder shall be abated in an amount
thereof apportioned according to the area of the demised premises so condemned
or taken. In the event that only a part of the Building shall be so condemned or
taken, then (a) Landlord (whether or not the demised premises be affected) may,
at its option, terminate this lease and the term and estate hereby granted as of
the date of such vesting of title by notifying Tenant in writing of such
termination within 60 days following the date on which Landlord shall have
received notice of vesting of title, and (b) if such condemnation or taking
shall be of a substantial part of the demised premises or of a substantial part
of the means of access thereto, Tenant shall have the right, by delivery of
notice in writing to Landlord within 60 days following the date on which Tenant
shall have received notice of vesting of title, to terminate this lease and the
term and estate hereby granted as of the date of vesting of title or (c) if
neither Landlord nor Tenant elects to terminate this lease, as aforesaid, this
lease shall be and remain unaffected by such condemnation or taking, except that
the rent shall be abated to the extent, if any ,hereinabove provided in this
Article 27. In the event that only a part of the demised premises shall be so
condemned or taken and this lease and the term and estate hereby granted are not
terminated as hereinbefore provided, Landlord will, at its expense, restore the
remaining portion of the demised premises as nearly as practicable to the same
condition as it was in prior to such condemnation or taking.
(B) In the event of a termination in any of the cases
hereinabove provided, this lease and the term and estate granted shall expire as
of the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the term of this lease, and the rent
hereunder shall be apportioned as of such date.
(C) In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award, except that the
Tenant may file a claim for any taking of removable fixtures owned by Tenant and
for moving expenses incurred by Tenant. Nothing contained herein shall prohibit
Tenant from pursuing any other remedies against the taking authority in a
separate proceeding so long as the amount of Landlord's award shall not be
diminished thereby.
It is expressly understood and agreed that the provisions of
this Article 27 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
CERTIFICATE OF OCCUPANCY
28. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy (temporary or permanent) issued for
the Building or portion thereof of which the demised premises form a part. If at
any time during the Demised Term, there shall be any violations of law posted or
filed against the Building, and if such violations shall not have been caused by
Tenant, or by Persons Within Tenant's Control, and if such violations shall
materially adversely affect Tenant's use and enjoyment of the demised premises
for the purposes contemplated in Article 4 hereof, Landlord shall, at Landlord's
sole cost and expense, cure such violations with due diligence. If Landlord
shall fail to commence to cure such violations within forty-five (45) days after
Landlord becomes aware of same, or shall thereafter fail to diligently prosecute
such cure to completion, Tenant's sole remedy shall be to cancel this lease by
sending written notice to Landlord.
DEFAULT
29. A. Upon the occurrence at any time prior to or during the Demised
Term, of any one or more of the following events (referred to as "Events of
Default"):
(i) if Tenant shall default in the payment when due
of any installment of rent or in the payment when due of any additional rent,
and such default shall continue for a period of ten (10) days after notice by
Landlord to Tenant of such default; or
(ii) if Tenant shall default in the observance or
performance of any term, covenant or condition of this lease on Tenant's part to
be observed or performed (other than the covenants for the payment of rent and
additional rent) and Tenant shall fail to remedy such default within twenty (20)
days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot be completely remedied within said period of
twenty (20) days and Tenant shall not commence within said period of twenty (20)
days, or shall not thereafter diligently prosecute to completion, all steps
necessary to remedy such default; or
(iii) if Tenant or Tenant's guarantor hereunder (if
any) shall file a voluntary petition in bankruptcy or insolvency, or shall be
adjudicated a bankrupt or become insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or any other present or future applicable federal, state or other statute or
law, or shall make an assignment for the benefit of creditors or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or any part of Tenant's property; or
(iv) if, within thirty (30) days after the
commencement of any proceeding against Tenant, whether by the filing of a
petition or otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or other present or future applicable federal,
state or other statute or law, such proceeding shall not have been dismissed, or
if, within thirty (30) days after the appointment of any trustee, receiver or
liquidator of Tenant, or of all or any part of Tenant's property, without the
consent or acquiescence of Tenant, such appointment shall not have been vacated
or otherwise discharged, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property pursuant to which the demised
premises shall be taken or occupied or attempted to be taken or occupied; or
(v) if Tenant shall default in the observance or
performance of any term, covenant or condition on Tenant's part to be observed
or performed under any other lease with Landlord of space in the Building and
such default shall continue beyond any grace period set forth in such other
lease for the remedying of such default; or
(vi) if the demised premises shall become vacant,
deserted or abandoned; or
(vii) if Tenant's interest in this lease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 21;
then, upon the occurrence, at any time prior to or during the Demised Term, of
any one or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) days' notice of termination of
this lease and, in the event such notice is given, this lease and the Demised
Term shall come to an end and expire (whether or not said term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 31.
B. If, at any time, (i) Tenant shall be comprised of two (2)
or more persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 29A, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this lease. Any
moneys received by Landlord from or on behalf of Tenant during the pendency of
any proceeding of the types referred to in said subsections (iii) and (iv) shall
be deemed paid as compensation for the use and occupation of the demised
premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of rent or a waiver on the part of Landlord of any rights
under Section 29A.
REMEDIES
30. A. If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default, or if this lease and the Demised Term shall expire and
come to an end as provided in Article 29:
(i) Landlord and its agents and servants may
immediately, or at any time after such default or after the date upon which this
lease and the Demised Term shall expire and come to an end, re-enter the demised
premises or any part thereof, without notice, either by summary proceedings or
by any other applicable action or proceeding, (without being liable to
indictment, prosecution or damages therefor), and may repossess the demised
premises and dispossess Tenant and any other persons from the demised premises
and remove any and all of their property and effects from the demised premises;
and
(ii) Landlord, at Landlord's option, may relet the
whole or any part or parts of the demised premises from time to time, either in
the name of Landlord or otherwise, to such tenant or tenants, for such term or
terms ending before, on or after the Expiration Date, at such rental or rentals
and upon such other conditions, which may include concessions and free rent
periods, as Landlord, in its sole discretion, may determine. Landlord shall have
no obligation to relet the demised premises or any part thereof and shall in no
event be liable for refusal or failure to relet the demised premises or any part
thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this lease or otherwise
to affect any such liability. Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the demised premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this lease or otherwise affecting any such liability.
B. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the demised premises, or to re-enter or
repossess the demised premises, or to restore the operation of this lease, after
(i) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge, or (ii) any other re-entry by Landlord permitted hereunder by lawful
process, or (iii) any expiration or termination of this lease and the Demised
Term. In the event of a breach or threatened breach by Tenant, or any persons
claiming through or under Tenant, of any term, covenant or condition of this
lease on Tenant's part to be observed or performed, Landlord shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law or in equity as if re-entry, summary proceedings and other special remedies
were not provided in this lease for such breach. The rights to invoke the
remedies hereinbefore set forth are cumulative and shall not preclude Landlord
from invoking any other remedy allowed at law or in equity.
DAMAGES
31. A. If this lease and the Demised Term shall expire and come to an
end as provided in Article 29 or by or under any summary proceeding or any other
action or proceeding, or if Landlord shall re-enter the demised premises as
provided in Article 30 or by or under any summary proceeding or any other action
or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all rent, additional
rent and other charges payable under this lease by Tenant to Landlord to the
date upon which this lease and the Demised Term shall have expired and come to
an end or to the date of re-entry upon the demised premises by Landlord, as the
case may be; and
(ii) Tenant shall also be liable for and shall pay to
Landlord, as damages, any deficiency (referred to as "Deficiency") between the
rent and additional rent reserved in this lease for the period which otherwise
would have constituted the unexpired portion of the Demised Term and the net
amount, if any, of rents collected under any reletting effected pursuant to the
provisions of Section 30A for any part of such period (first deducting from the
rents collected under any such reletting all of Landlord's expenses in
connection with the termination of this lease or Landlord's re-entry upon the
demised premises and such reletting including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
alteration costs and other expenses of preparing the demised premises for such
reletting). Any such Deficiency shall be paid in monthly installments by Tenant
on the days specified in this lease for payment of installments of rent.
Landlord shall be entitled to recover from Tenant each monthly Deficiency as the
same shall arise, and no suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
(iii)At any time after the Demised Term shall have
expired and come to an end or Landlord shall have re-entered upon the demised
premises, as the case may be, whether or not Landlord shall have collected any
monthly Deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, as and for liquidated and
agreed final damages, a sum equal to the amount by which the rent and additional
rent reserved in this lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term exceeds the then fair and
reasonable rental value of the demised premises for the same period, both
discounted to present worth at the rate of four (4%) per cent per annum. If,
before presentation of proof of such liquidated damages to any court, commission
or tribunal, the demised premises, or any part thereof, shall have been relet by
Landlord for the period which otherwise would have constituted the unexpired
portion of the Demised Term, or any part thereof, the amount of rent reserved
upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the demised premises so relet during
the term of the reletting.
B. If the demised premises, or any part thereof, shall be
relet together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
equitably apportioned for the purposes of this Article 31. Tenant shall in no
event be entitled to any rents collected or payable under any reletting, whether
or not such rents shall exceed the rent reserved in this lease. Solely for the
purposes of this Article, the term rent as used in Section 31A shall mean the
rent in effect immediately prior to the date upon which this lease and the
Demised Term shall have expired and come to an end, or the date of re-entry upon
the demised premises by Landlord, as the case may be, plus any additional rent
payable pursuant to the provisions of Article 11 for the escalation year (as
defined in Article 11) immediately preceding such event. Nothing contained in
Articles 29 and 30 or this Article shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in Section 31A.
FEES AND EXPENSES
32. If Tenant shall default in the performance of any covenant on
Tenant's part to be performed in this lease contained, Landlord may immediately,
or at any time thereafter, without notice, perform the same for the account of
Tenant. If Landlord at any time is compelled to pay or elects to pay any sum of
money, or do any act which will require the payment of any sum of money, by
reason of the failure of Tenant to comply with any provision hereof, or, if
Landlord is compelled to or does incur any expense including reasonable
attorneys' fees, instituting, prosecuting and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, the sum or
sums so paid by Landlord with all interest, costs and damages, shall be deemed
to be additional rent hereunder and shall be due from Tenant to Landlord on the
first day of the month following the incurring of such respective expenses, or
at Landlord's option on the first day of any subsequent month. In the event that
Landlord shall institute any such action or proceeding by reason of a default by
Tenant hereunder, and Tenant shall thereafter cure such default before judgment
is entered in such action or proceeding, the sum of $500 shall immediately
become due and payable from Tenant to Landlord as and for liquidated damages on
account of Landlord's attorneys' fees and other costs and expenses in connection
therewith (said sum not to be deemed to be, or construed as, a limitation on
Landlord's right to obtain reasonable attorneys' fees in a greater amount where
such default is not so cured). Any sum of money (other than rent) accruing from
Tenant to Landlord pursuant to any provision of this lease, including but not
limited to the provisions of Schedule A, whether prior to or after the Term
Commencement Date, may, at Landlord's option, be deemed additional rent, and
Landlord shall have the same remedies for Tenant's failure to pay any item of
additional rent when due as for Tenant's failure to pay any installment of rent
when due. Tenant's obligations under this Article shall survive the expiration
or sooner termination of the Demised Term.
NO WAIVER
33. A. No act or thing done by Landlord or Landlord's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said demised
premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of said demised premises prior to the
termination of this lease. The delivery of keys to any employee of Landlord or
of Landlord's agents shall not operate as a termination of this lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord underlet the demised premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this lease, or any of the Rules and Regulations annexed
hereto and made a part hereof, or hereafter adopted by Landlord, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this lease
shall not be deemed a waiver of such breach. The failure of Landlord to enforce
any of the Rules and Regulations annexed hereto and made a part hereof, or
hereafter adopted, against Tenant and/or any other tenant in the Building shall
not be deemed a waiver of any such Rules and Regulations. No provision of this
lease shall be deemed to have been waived by Landlord, unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent then owing nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this lease provided.
B. Landlord's failure to render a Landlord's Statement with
respect to any escalation year per Article 11 shall not prejudice Landlord's
right to render a Landlord's Statement with respect to any subsequent escalation
year. The obligations of Landlord and Tenant under the provisions of Article 11
with respect to any additional rent for any escalation year shall survive the
expiration or any sooner termination of the Demised Term.
WAIVER OF TRIAL BY JURY
34. To the extent such waiver is permitted by law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
Landlord or Tenant against the other on any matter whatsoever arising out of or
in any way connected with this lease, the relationship of landlord and tenant,
the use or occupancy of the demised premises by Tenant or any person claiming
through or under Tenant, any claim of injury or damage, and any emergency or
other statutory remedy, but not in any action brought by a third party against
Landlord and/or Tenant, unless such waiver shall be enforceable against, or
consented to by, such third party. The provisions of the foregoing sentence
shall survive the expiration or any sooner termination of the Demised Term. If
Landlord commences any summary proceeding for nonpayment of rent or otherwise to
recover possession of the demised premises, Tenant agrees not to interpose any
counterclaim of any nature or description in any such proceeding.
BILLS AND NOTICES
35. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications given or required
to be given under this lease shall be effective only if rendered or given in
writing, sent by registered or certified mail (return receipt requested
optional), overnight mail, messenger service or facsimile during the hours of
9:00 A.M. to 5:00 P.M. addressed (A) to Tenant (i) at Tenant's address set forth
in this lease, Attention: Corporate Counsel, if mailed prior to Tenant's taking
possession of the demised premises, or (ii) at Tenant's address set forth in
this lease, attention: Corporate Counsel, with a copy also sent to the Building,
attention: Facility Manager, if mailed subsequent to Tenant's taking possession
of the demised premises, or (iii) at any place where Tenant or any agent or
employee of Tenant may be found if mailed subsequent to Tenant's vacating,
deserting, abandoning or surrendering the demised premises, or (B) to Landlord
at Landlord's address set forth in this lease, or (C) addressed to such other
address as either Landlord or Tenant may designate as its new address for such
purpose by notice given to the other in accordance with the provisions of this
Article. Any such bill, statement, notice, demand, request or other
communication shall be deemed to have been rendered or given on the date when it
shall have been mailed as provided in this Article.
INABILITY TO PERFORM
36. A. If, by reason of strikes or other labor disputes, fires or other
casualty (or reasonable delays in adjustment of insurance), accidents, orders or
regulations of any Federal, State, County or Municipal authority, or any other
cause beyond Landlord's reasonable control, whether or not such other cause
shall be similar in nature to those hereinbefore enumerated, Landlord is unable
to furnish or is delayed in furnishing any utility or service required to be
furnished by Landlord under the provisions of this lease or any collateral
instrument, or is unable to perform or make or is delayed in performing or
making any installations, decorations, repairs, alterations, additions or
improvements, whether or not required to be performed or made under this lease
or under any collateral instrument, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this lease or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction, in whole or in part, or impose any liability upon
Landlord or its agents by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business, or otherwise, nor shall any such
delay or inability to perform on the part of Landlord in any way affect this
lease and the obligation of Tenant to pay rent hereunder and to perform all of
the other covenants and agreements to be performed by Tenant hereunder.
INTERRUPTION OF SERVICE
B. Landlord reserves the right to stop the services of the
air conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements which in
the judgment of Landlord are desirable or necessary, until such repairs,
alterations, replacements or improvements shall have been completed. The
exercise of such rights by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
CONDITIONS OF LANDLORD'S LIABILITY
37. A. Tenant shall not be entitled to claim a constructive eviction
from the demised premises unless Tenant shall have first notified Landlord of
the condition or conditions giving rise thereto, and if the complaints be
justified, unless Landlord shall have failed to remedy such conditions within a
reasonable time after receipt of such notice. Except as provided in Article 25
hereof, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from Landlord, Tenant or others making any
repairs, alterations, additions or improvements in or to any portion of the
Building or the demised premises, or in or to fixtures, appurtenances, or
equipment thereof, and no liability upon Landlord for failure of Landlord or
others to make any repairs, alterations, additions or improvements in or to any
portion of the Building or of the demised premises, or in or to the fixtures,
appurtenances or equipment thereof.
B. Except as otherwise expressly provided in this lease, if
Landlord shall be unable to give possession of the demised premises on any date
specified for the commencement of the term by reason of the fact that the
demised premises have not been sufficiently completed to make same ready for
occupancy, or for any other reason, Landlord shall not be subject to any
liability for the failure to give possession on said date, nor shall such
failure in any way affect the validity of this lease or the obligations of
Tenant hereunder. The provisions of this Article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
TENANT'S TAKING POSSESSION
38. A. Tenant by entering into occupancy of the premises shall be
conclusively deemed to have agreed that Landlord up to the time of such
occupancy has performed all of its obligations hereunder and that the premises
were in satisfactory condition as of the date of such occupancy, unless within
ten (10) days after such date Tenant shall give written notice to Landlord
specifying the respects in which the same were not in such condition.
B. If Tenant shall use or occupy all or any part of the
demised premises for the conduct of business prior to the Term Commencement
Date, such use or occupancy shall be deemed to be under all of the terms,
covenants and conditions of this lease, including the covenant to pay rent for
the period from the commencement of said use or occupancy to the Term
Commencement Date.
ENTIRE AGREEMENT
39. This lease contains the entire agreement between the parties and
all prior negotiations and agreements are merged herein. Neither Landlord nor
Landlord's agent or representative has made any representation, or statement, or
promise, upon which Tenant has relied regarding any matter or thing relating to
the Building, the land allocated to it, (including the parking area) or the
demised premises, or any other matter whatsoever, except as is expressly set
forth in this lease, including, but without limiting the generality of the
foregoing, any statement, representation or promise as to the fitness of the
demised premises for any particular use, the services to be rendered to the
demised premises or the prospective amount of any item of additional rent. No
oral or written statement, representation or promise whatsoever with respect to
the foregoing or any other matter made by Landlord, its agents or any broker,
whether contained in an affidavit, information circular, or otherwise shall be
binding upon the Landlord unless expressly set forth in this lease. No rights,
easements or licenses are or shall be acquired by Tenant by implication or
otherwise unless expressly set forth in this lease. This lease may not be
changed, modified or discharged, in whole or in part, orally, and no executory
agreement shall be effective to change, modify or discharge, in whole or in
part, this lease or any obligations under this lease, unless such agreement is
set forth in a written instrument executed by the party against whom enforcement
of the change, modification or discharge is sought. All references in this lease
to the consent or approval of Landlord shall be deemed to mean the written
consent of Landlord, or the written approval of Landlord, as the case may be,
and no consent or approval of Landlord shall be effective for any purpose unless
such consent or approval is set forth in a written instrument executed by
Landlord.
DEFINITIONS
40. The term "Landlord" as used in this lease means only the owner, or
the mortgagee in possession, for the time being of the land and Building (or the
owner of a lease of the Building or of the land and Building) of which the
demised premises form a part, so that in the event of any sale or other transfer
of said land and Building or of said lease, or in the event of a lease of the
Building, or of the land and Building, the said Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed as a covenant running with the
land without further agreement between the parties or their successors in
interest, or between the parties and the purchaser or other transferee at any
such sale, or the said lessee of the Building, or of the land and Building,
provided that the purchaser, transferee or the lessee of the Building assumes
and agrees to carry out any and all covenants and obligations of Landlord
hereunder. The words "re-enter", "re-entry" and "re-entered" as used in this
lease are not restricted to their technical legal meanings. The term "business
days" as used in this lease shall exclude Saturdays, (except such portion
thereof as is covered by specific hours in Article 6 hereof), Sundays and all
days observed by the State and Federal Government as legal holidays.
The terms "person" and "persons" as used in this lease shall
be deemed to include natural persons, firms, corporations, associations and any
other private or public entities, whether any of the foregoing are acting on
their own behalf or in a representative capacity.
PARTNERSHIP TENANT
41. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as co-partners of a partnership ) pursuant to Article
21 (any such partnership and such persons being referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications of this lease which may hereafter be made and by any
notices, demands, requests or other communications which may hereafter be given,
by Partnership Tenant or by any of the parties comprising Partnership Tenant,
and (c) any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
lease on Tenant's part to be observed and performed, and (e) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (d) of this Section).
SUCCESSORS, ASSIGNS, ETC.
42. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, administrators, successors, and, except as
otherwise provided in this lease, their respective assigns.
APPLICATION OF INSURANCE PROCEEDS, WAIVER OF SUBROGATION
43. In any case in which Tenant shall be obligated under any provisions
of this lease to pay to Landlord any loss, cost, damage, liability or expense
suffered or incurred by Landlord, Landlord shall allow to Tenant as an offset
against the amount thereof the net proceeds of any insurance collected by
Landlord for or on account of such loss, cost, damage liability or expense,
provided that the allowance of such offset does not invalidate or prejudice the
policy or policies under which such proceeds were payable. In any case in which
Landlord shall be obligated under any provisions of this lease to pay to Tenant
any loss, cost, damage, liability or expense suffered or incurred by Tenant,
Tenant shall allow to Landlord as an offset against the amount thereof the net
proceeds of any insurance collected by Tenant for or on account of such loss,
cost damage, liability or expense, provided that the allowance of such offset
does not invalidate or prejudice the policy or policies under which such
proceeds were payable.
CAPTIONS AND INDEX
44. The captions and the index at the beginning of the lease, if any,
are included only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this lease nor the intent of any
provisions thereof.
RECOVERY FROM LANDLORD
45. A. Tenant shall look solely to the estate and property of Landlord
in the land and building of which the demised premises are a part, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by Landlord with respect to any of the terms, covenants and/or
conditions of the lease to be observed and/or performed by Landlord, and no
other property or assets of such Landlord shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies. Landlord
represents that it owns fee title to the Real Property.
B. With respect to any provision of this lease which
provides for Landlord's approval and/or consent, Tenant, in no event, shall be
entitled to make, nor shall Tenant make any claim, and Tenant hereby waives any
claim, for money damages; nor shall Tenant claim any money damages by way of
set-off, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed any such consent
or approval.
BROKER
46. Tenant represents and warrants to Landlord that Koll Management is
the sole broker who brought the demised premises to Tenant's attention and with
whom Tenant has negotiated in bringing about this lease.
RENEWAL OPTION
47. The Tenant shall have the right, to be exercised as hereinafter
provided, to extend the term of this lease for one (1) successive period of five
(5) years upon the following terms and conditions:-
A. That at the time of the exercise of such right the Tenant
shall not be in default in the performance of any of the terms, covenants or
conditions herein contained with respect to a matter as to which notice of
default has been given hereunder and which has not been remedied within the time
limited in this lease.
B. That at the time of the exercise of such right and at the
time of the commencement of any extended period: (i) The Tenant shall not have
assigned this lease (except per subsection 21(F) RE: merger, etc.); (ii) the
Tenant shall not have underlet any portion of the demised premises; and (iii)
the Tenant named in this lease shall be the sole Tenant and occupant of the
demised premises.
C. That the extension shall be upon the same terms,
covenants and conditions as in this lease provided, except that (i) there will
be no further privilege of extension for the term of this lease beyond the
period referred to above; (ii) during the extension period the annual rental
payable by Tenant to Landlord shall be the amount set forth in Article 3 of this
lease as cumulatively increased pursuant to Article 11.B. of this lease
throughout the Initial Term thereof ("The Cumulatively Adjusted Additional Base
Rent") and the Cumulatively Adjusted Base Rent shall be further increased in
accordance with said Article 11.B. on the first day of the renewal term and on
each anniversary thereof during the renewal term; and (iii) during the extension
period, the base year for determining additional rent under the escalation
clause, Article 11 and Schedule C, shall remain unchanged and continue to be the
base year established at the commencement of the term of this lease.
D. Notwithstanding anything in this Article contained to the
contrary, the Tenant shall not be entitled to any extension, if at the time of
the commencement of the extended period the Tenant shall be in default under any
of the terms, covenants or conditions of this lease with respect to a matter as
to which notice of default has been given hereunder and which has not been
remedied within the time limited in this lease, or if this lease shall have
terminated prior to the commencement of said period.
E. The Tenant shall exercise its right to the extension of
the term of this lease by notifying the Landlord of the Tenant's election to
exercise such right at least one (1) year prior to the expiration of the term of
this lease. Upon the giving of this notice, this lease shall be deemed extended
for the specified period, subject to the provisions of this Article, without
execution of any further instrument.
SECURITY
48. Tenant has deposited with Landlord the sum of $443,619 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of 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 sum as to which Tenant is in default.
In the event that Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed at the end of this lease and after
delivery of entire possession of the demised premises to Landlord. In the event
of a sale of the land and Building or leasing of the Building, Landlord shall
have the right to transfer the security to the vendee or lessee and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security. Tenant covenants that it will not assign or encumber or attempt to
assign or encumber the moneys deposited here as security and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. Said Security may be
in the form of an irrevocable letter of credit in form, and from a financial
institution, reasonably acceptable to Landlord. Landlord shall deposit the
security deposit held hereunder in an interest bearing account or instrument(s)
mutually agreeable to Landlord and Tenant and shall disburse said interest to
Tenant (less an administrative fee equal to 1% of said security per annum)
annually during the Demised Term on or about each anniversary of the Term
Commencement Date upon Tenant's request therefor. Tenant acknowledges and agrees
that it shall not be entitled to any interest on the security deposit if it
shall elect to deliver a letter of credit as security as herein provided.
Provided that (i) as of the applicable anniversary of the Term Commencement
Date, Tenant shall not be in default, after the expiration of any applicable
notice and cure period, under any of the terms, provisions, covenants and
conditions of this Lease, and (ii) Landlord shall not have theretofore used or
applied any portion of the security deposit, as provided herein, then, as of the
first (1st) anniversary of the Term Commencement Date, and as of each
anniversary of the Term Commencement Date thereafter through and including the
fourth (4th) anniversary of the Term Commencement Date (but not thereafter), the
amount of the security deposit required hereunder shall be reduced by an amount
equal to twenty (20%) of the original amount deposited by Tenant hereunder
(after giving effect to any adjustments to such original amount as provided in
Article 5 hereof). If, at any time, Landlord shall use or apply any portion of
the security deposit, as provided herein, Tenant's rights to further reduce the
amount of the security deposit in accordance with the provisions of this Article
shall be null and void and of no further force or effect.
EXPANSION OPTION
49. Upon the condition that no Event of Default shall have occurred and
be continuing, both at the time of giving of any notice hereinafter mentioned
and at the effective date thereof, Tenant shall have the option (the "Additional
Space Option") to lease the area in the Building consisting of the balance of
the rentable area of the third (3rd) floor of the south wing of the Building
(the "Additional Space"), subject to and upon the following terms and
conditions:
(A) Tenant acknowledges that Landlord intends to seek a tenant
for the Additional Space. Tenant agrees that upon receipt of written notice from
Landlord (the " Bona Fide Offer Notice"), that Landlord has identified a bona
fide tenant for the Additional Space, Tenant must exercise its Additional Space
Option, if at all, by sending the Additional Space Option Notice to Landlord not
later than ten (10) business days after Tenant's receipt of the Bona Fide Offer
Notice, TIME BEING OF THE ESSENCE WITH RESPECT THERETO. If Tenant shall fail to
send the Additional Space Option Notice in a timely manner, the Additional Space
Option shall be null and void and of no further force or effect, and Tenant
shall have no further option to lease the Additional Space.
(B) Upon receipt of the Additional Space Option Notice,
effective as of the date that the Additional Space Work (as hereinafter defined)
shall be substantially completed, of which date Landlord shall provide Tenant
with not less than ten (10) days' prior written notice (the "Additional Space
Commencement Date"), this lease shall be deemed automatically amended to
incorporate the Additional Space into the demised premises. The Additional Space
shall be leased to Tenant pursuant to all of the same terms and conditions as
are applicable to the original demised premises, including base years for
escalations under Article 11 hereof, except that: (i) the base annual rent
payable with respect to the Additional Space shall be the then payable base
annual rent per rentable square foot as is applicable to the original demised
premises; (ii) Tenant's proportionate share, for the purpose of Article 11
hereof, shall be increased proportionally to reflect the rentable square footage
of the Additional Space; (iii) during the extension period, the annual rental
amounts set forth in Article 47 hereof shall be increased proportionally to
reflect the rentable square footage of the Additional Space; (iv) the number of
parking spaces in the Building Parking Area and the number of directory listings
to which Tenant shall be entitled shall be increased proportionally to reflect
the rentable square footage of the Additional Space; (v) Landlord shall prepare
the Additional Space for Tenant's occupancy in accordance with the provisions of
Article 5 and Schedule A hereof (the "Additional Space Work"), except that the
amount of Landlord's Contribution with respect to the Additional Space Work
shall be equal to the product obtained by multiplying (x) "LC Factor" (as herein
defined), by (y) the number of rentable square feet contained in the Additional
Space, by (z) the number of calendar months from the Additional Space
Commencement Date until the Expiration Date of the initial term of this lease;
and (vi) if the Expiration Date of the then current term of this lease shall be
less than two years after the Additional Space Commencement Date, the Demised
Term shall be extended to be the second anniversary of the Additional Space
Commencement Date. As used herein, the term "LC Factor" shall mean an amount
equal to the product obtained by dividing the amount of the Landlord's
Contribution, as finally determined, payable in connection with Landlord's
Initial Construction, by 67,215, and then dividing the resulting product by 60.
(C) If Tenant timely sends the Additional Space Option Notice
in accordance with the terms of this Article, the parties shall promptly enter
into a lease modification agreement for the Additional Space, incorporating the
terms and conditions set forth in this Article, and such other terms and
conditions that are consistent with the terms and conditions contained in this
lease, but either party's failure to execute and deliver such agreement shall
not affect Landlord's and Tenant's rights and obligations hereunder.
(D) Anything contained in this Article 49 to the contrary
notwithstanding, Tenant acknowledges and agrees that Tenant's rights under this
Article 49 are subject and subordinate to the rights of Interim Services, Inc.
("Interim") under a certain lease between Landlord and Interim covering other
space in the Building, and which lease provides, inter alia, that Interim shall
have an option to lease the Additional Space, which option shall be superior to
Tenant's Additional Space Option set forth herein. If Interim shall elect to
lease the Additional Space, Tenant's Additional Space Option contained herein
shall be null and void and of no further force or effect, and Tenant shall have
no further right or option to lease the Additional Space, nor shall Landlord
have any liability to Tenant by reason of Tenant's inability to lease the
Additional Space.
MORTGAGEE'S CONSENT
50. This lease, and Landlord's and Tenant's rights and obligations
hereunder, shall be subject to and conditioned upon Landlord obtaining from
MONY, MONY's consent to this lease (the "Consent"). Landlord shall send Tenant
written notice of such Consent promptly upon Landlord's obtaining same. If
Landlord shall be unable to obtain such Consent on or before a date (the
"Consent Deadline"), which is not later than ten (10) business days after the
date hereof, then either party may cancel this lease by sending written notice
thereof to the other, given not later than the date by which the Consent shall
be obtained (time being of the essence with respect thereto), whereupon this
lease shall be terminated and of no further force or effect without any further
liability of either party hereunder.
ROOFTOP USE
51. Upon the condition that no Event of Default shall have occurred and
be continuing, subject to the following provisions of this Article, Landlord
grants Tenant the right, in common with Landlord and other tenants of the
Building, to install, operate and maintain, at Tenant's expense and risk, a roof
top antenna for Tenant's communications and network (the "Rooftop Equipment"),
as more fully described in Exhibit 3 annexed hereto, at a location on the roof
of the Building to be determined by Landlord (the "Rooftop Premises"):
(A) Tenant shall submit to Landlord for its approval, a full
set of engineering plans and specifications for the proposed Rooftop Equipment
installation, such approval not to be unreasonably withheld, conditioned or
delayed;
(B) Tenant shall make all required conduit or cable
connections between Tenant's equipment in the demised premises and the Rooftop
Equipment, subject to approval of such connections by Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed;
(C) Any Rooftop Equipment installed by Tenant shall be erected
so as not to interfere with the operation of any previously erected antenna(e)
or other equipment at the Building; Tenant shall, from time to time throughout
the Demised Term, make such reasonable modifications and alterations to the
Rooftop Equipment as may be reasonably requested by Landlord in order to
accommodate the installation, use and maintenance of such other antenna(e) or
other equipment on the roof of the Building as Landlord may permit to be
hereafter installed and used at the Building for the benefit of Landlord or any
other tenants of the Building so as to permit all of such equipment to be
operated without interference;
(D) Tenant, its employees, agents and contractors shall, at
all reasonable times, have the right to enter or leave the Rooftop Premises for
the purpose of maintaining, repairing, servicing and replacing the Rooftop
Equipment;
(E) Tenant shall obtain all necessary municipal, state and
federal permits and authorizations required to maintain and operate the Rooftop
Equipment and pay any charges levied by government agencies which are the result
of Tenant having the Rooftop Equipment. Landlord agrees to fully cooperate with
Tenant in obtaining all such permits and authorizations, at no cost or expense
to Landlord;
(F) Tenant agrees to maintain the Rooftop Equipment and
Rooftop Premises in a good state of repair and to save Landlord harmless from
any claims, liability or expenses resulting from the erection, maintenance,
existence or removal of the Rooftop Equipment, provided that such loss, costs or
damages are not due, in whole or in part, to the negligence or willful
misconduct of Landlord, its agents, employees or contractors;
(G) At the conclusion of the Demised Term, Tenant shall, at
Landlord's option, remove the Rooftop Equipment and surrender and restore the
Rooftop Premises to Landlord in substantially as good condition as when entered,
except for loss or damages resulting from casualty, condemnation, act of God or
ordinary wear and tear;
(H) The liability insurance to be carried by Tenant pursuant
to the provisions of this lease shall include coverage for Tenant's activity on
the Rooftop Premises; and
(I) Tenant shall, upon Landlord's request, and at Tenant's
sole cost, temporarily relocate the Rooftop Equipment as may be reasonably
required in connection with Landlord's maintenance and repair of the roof of the
Building.
(G) Anything contained in this Article 51 to the contrary
notwithstanding, Landlord shall permit Tenant to erect the Rooftop Equipment
notwithstanding that Tenant may not have received Zoning Board approval with
respect thereto ("ZBA") from the Town of Huntington. If, at any time during the
Demised Term, Landlord or Tenant shall be notified by the Town of Huntington
that ZBA shall be required for the continued operation of the Rooftop Equipment,
Landlord shall use its reasonable efforts to obtain ZBA. If, within six (6)
months after Landlord"s or Tenant"s receipt of such notice, Landlord shall not
have obtained either the ZBA or evidence reasonably acceptable to Tenant that
the ZBA shall not be required, Tenant may cancel this lease by sending written
notice to Landlord not later than (x) ten (10) business days after the
expiration of said six (6) month period, or (y) the date ZBA or such evidence
shall be obtained. Tenant"s cancellation notice shall specify the effective date
of such cancellation (the "Early Cancellation Date"), which date shall be the
last day of any calendar month occurring not sooner than ninety (90) days after
such notice is given, and shall be accompanied by a certified, bank or official
check, payable to Landlord, in an amount equal to the sum of (i) the unamortized
cost, as of the Early Cancellation Date, of Landlord"s Initial Construction paid
for by Landlord, (ii) the unamortized cost, as of the Early Cancellation Date,
of the brokerage commission being paid to Tenant in connection with this lease,
and (iii) an amount equal to three (3) months" rent and additional rent payable
hereunder as of the date of Tenant"s cancellation notice. The cost of Landlord"s
Initial Construction and the amount of the brokerage commission shall each be
amortized on a straight-line basis over the initial term of this lease, except
that if the Early Cancellation Date shall occur during the renewal term hereof,
then the brokerage commission payable by Landlord and attributable to such
renewal term shall be amortized on a straight-line basis over such renewal term.
Upon Tenant"s giving the cancellation notice as provided herein, Tenant shall
continue to be liable to pay rent and additional rent hereunder through and
including the Early Cancellation Date, Tenant shall vacate, quit and surrender
the demised premises on or before the Early Cancellation Date as if the Early
Cancellation Date were the Expiration Date provided for herein, and neither
party shall have any further liability hereunder as of the Early Cancellation
Date.
IN WITNESS WHEREOF
Landlord and Tenant have respectively signed and sealed this lease as of the day
and year first written above.
Witness for Landlord: WE'RE ASSOCIATES COMPANY
/s/Bennett Rechler BY: /s/Tony Fromer
Operating Partner
Witness for Tenant: INTERDIGITAL COMMUNICATIONS
CORPORATION
/s/s/ BY: G Lomp, VP
-----------------------------
(Signature)
GARY LOMP
--------------------------
(Print Name)
VP & GM
---------------------------
(Title)