EXHIBIT 10.1
AGREEMENT OF LEASE
BETWEEN
320 EXPRESSWAY ASSOCIATES
AND
ASSESSMENT SOLUTIONS INCORPORATED
TABLE OF CONTENTS
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PAGE
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SPACE.......................................................... 1
TERM........................................................... 1
RENT........................................................... 4
USE............................................................ 5
LANDLORD ALTERATION............................................ 5
SERVICES....................................................... 6
LANDLORD'S REPAIRS AND SERVICES................................ 6
WATER SUPPLY................................................... 6
PARKING FIELD.................................................. 7
DIRECTORY...................................................... 7
TAXES AND OTHER CHARGES........................................ 7
TENANT'S REPAIRS............................................... 9
FIXTURES & INSTALLATIONS....................................... 10
ALTERATIONS.................................................... 11
REQUIREMENTS OF LAW............................................ 14
END OF TERM.................................................... 16
QUIET ENJOYMENT................................................ 17
SIGNS.......................................................... 18
RULES AND REGULATIONS.......................................... 18
RIGHT TO SUBLET OR ASSIGN...................................... 18
LANDLORD'S ACCESS TO PREMISES.................................. 22
SUBORDINATION.................................................. 24
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PROPERTY LOSS, DAMAGE REIMBURSEMENT............................ 25
TENANT'S AND LANDLORD'S INDEMNITY.............................. 26
DESTRUCTION - FIRE OR OTHER CASUALTY........................... 26
INSURANCE...................................................... 28
EMINENT DOMAIN................................................. 30
NONLIABILITY OF LANDLORD....................................... 31
DEFAULT........................................................ 32
TERMINATION ON DEFAULT......................................... 34
DAMAGES........................................................ 35
SUMS DUE LANDLORD.............................................. 37
NO WAIVER...................................................... 37
WAIVER OF TRIAL BY JURY........................................ 38
NOTICES........................................................ 39
INABILITY TO PERFORM........................................... 39
INTERRUPTION OF SERVICE........................................ 40
CONDITIONS OF LANDLORD'S LIABILITY............................. 40
TENANT'S TAKING POSSESSION..................................... 41
SUBSTITUTED PREMISES........................................... 41
ENTIRE AGREEMENT............................................... 41
DEFINITIONS.................................................... 42
PARTNERSHIP TENANT............................................. 42
SUCCESSORS, ASSIGNS, ETC....................................... 43
BROKER......................................................... 43
CAPTIONS....................................................... 44
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NOTICE OF ACCIDENTS............................................ 44
TENANT'S AUTHORITY TO ENTER LEASE.............................. 44
RENEWAL OPTION................................................. 44
RIGHT OF FIRST REFUSAL......................................... 45
SCHEDULE "A"................................................... 48
SCHEDULE "B"................................................... 49
SCHEDULE "C"................................................... 51
SCHEDULE "D"................................................... 52
EXHIBIT 1...................................................... 55
EXHIBIT 2...................................................... 56
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AGREEMENT OF LEASE, made as of this ____ day of __________, 1997, between
320 EXPRESSWAY ASSOCIATES, a partnership, having its principal office at 225
Broadhollow Road, Suite 212 W, CS 5341, Melville, New York 11747-0983
(hereinafter referred to as "Landlord"), and ASSESSMENT SOLUTIONS INCORPORATED,
a ____________ corporation, having its principal place of business at 1300 Walt
Whitman Road, Melville, New York 11747 (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 hires from Landlord
the space substantially as shown on the Rental Plan initialed by the parties and
made part hereof as Exhibit "1" ("Demised Premises" or "Premises") in the
building known as 320 South Service Road, Melville, New York (hereinafter
referred to as the "Building") which the parties agree contains 22,780 square
feet in a Building containing 62,547 square feet which constitutes 36.42%
percent of the area of the Building ("Tenant's Proportionate Share").
TERM
2. The term ("Term" or "Demised Term" or "term") of this lease shall
commence upon execution of this lease (the "Term Commencement Date"). Subject
to postponement by reason of the Concession period (defined below), Tenant's
obligation to pay Rent (as defined in Article 3 hereof) and all items of
additional rent hereunder shall commence on the sooner to occur of (i) Tenant's
taking possession or occupancy of all or any part of the Demised Premises for
the purpose of conducting Tenant's business therein, or (ii) fifteen (15) days
following the date on which Landlord provides Tenant with written notice that
the Demised Premises have been "substantially completed" as defined herein in
accordance with Article 5 hereof (hereinafter referred to as the "Rent
Commencement Date"). The Term of this lease shall expire on the day preceding
the day which is eight (8) years and three (3) months after (i) the Rent
Commencement Date, if such date is the first day of a calendar month, or (ii)
the first day of the first full calendar month following the Rent Commencement
Date, if such date
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is not the first day of a calendar month (hereinafter referred to as the
"Expiration Date"). "Substantially completed" or "substantial completion" as
used herein is defined to mean when Landlord has made the installations set
forth on Schedule A and Exhibit 1 annexed hereto and the only items to be
completed with respect to the Demised Premises are "punch list" items which do
not materially interfere with the Tenant's use and occupancy of the Demised
Premises. The punchlist items shall be reasonably agreed to by Landlord and
Tenant, and shall be completed by Landlord, at Landlord's sole cost and expense,
within thirty (30) days of the date that the Premises are "substantially
completed". If Landlord shall be delayed in such "substantial completion" as a
result of (i) Tenant's failure to furnish plans and specifications which Tenant
shall be required to provide to Landlord pursuant to the terms of this lease;
(ii) Tenant's request for materials, finishes or installations other than
Landlord's standard; (iii) Tenant's changes in said plans or specifications;
(iv) the performance or completion of any work, labor or services by a party
employed by Tenant; or (v) Tenant's failure to approve final plans, working
drawings or reflective ceiling plans; then the Rent Commencement Date hereunder
shall be accelerated by the number of days of such delay and the dates set forth
in the next paragraph shall be extended one (1) day for each day of said delay.
Notwithstanding the foregoing, in the event Landlord has not substantially
completed the Premises on or before the date that is one hundred and fifty (150)
days from the date of this lease, subject to delays by Tenant as set forth
above, the Rent (as hereinafter defined) computed on a per diem basis shall be
abated one day for each day that the Premises are not substantially completed
beyond the date that is one hundred and fifty (150) days from the date of this
lease. Such abatement shall be in addition to the Concession Period as
hereinafter defined. In no event, however, shall the abatement provided for
herein exceed a period of sixty (60) days. In the event the Premises are not
substantially completed within one hundred ninety five (195) days from the date
of this lease, Tenant shall provide Landlord with written notice of Tenant's
intention to terminate this lease. If Landlord fails to substantially complete
the Premises on or before the date that is two hundred and ten (210) days from
the date of this lease, this lease shall terminate as of such date and all sums
paid to Landlord on account herein shall be returned to Tenant within ten (10)
days from the date of such termination.
In the event the final plans are not initialed by Landlord and Tenant on or
before the date that is one (1) week from the date of this lease,, 1997, then
the date set forth in the immediately preceding paragraph shall be extended one
(1) day for each day
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beyond the date that is one (1) week from the date of this lease, until this
lease is signed and the final plans are initialed by Landlord and Tenant.
Subject to all of the terms, covenants and conditions of this lease, except
Tenant's obligation to pay Rent or additional rent, Landlord shall permit Tenant
and its contractors, suppliers and workmen to enter the Premises prior to the
Rent Commencement Date in order for Tenant to perform any alterations and
installations to prepare the Premises for Tenant's occupancy. Tenant shall
indemnify and hold Landlord harmless from any claim, damage, liability or
expense arising out of the foregoing Tenant's work. The scheduling and
coordination of Tenant's contractors and their workmen and mechanics will be
subject to reasonable regulation by Landlord and Landlord's contractor to avoid
unreasonable interferences with labor employed by Landlord or Landlord's
contractor. Any such entry before the Rent Commencement Date shall be subject
to applicable building codes and ordinances.
Provided Tenant shall not be in default of its obligations to pay Rent and
additional rent under the provisions of this lease beyond any applicable notice
and cure periods, Tenant's obligation to pay the Rent reserved under Article 3
hereof (but not Tenant's obligation to pay the additional rent reserved under
this lease) shall be abated for a period of three (3) months from the Rent
Commencement Date (such three (3) month period being herein referred to as the
"Concession Period").
Upon the request of Landlord, Tenant agrees to execute a writing,
prepared and executed by Landlord, setting forth the actual date on which the
Term Commencement Date, the Rent Commencement Date and the Expiration Date took
place or will take place. Notwithstanding anything to the contrary contained
herein, such writing shall be deemed a part of this lease and conclusive
evidence of such dates.
A "Lease Year" shall be comprised of a period of twelve (12)
consecutive months. The first Lease Year shall commence on the Rent
Commencement Date but, notwithstanding the first sentence of this paragraph, if
the Rent Commencement Date is not the first day of a month, then the first Lease
Year shall include the additional period from the Rent Commencement Date to the
end of the then current month. Each succeeding Lease Year shall end on the
anniversary date of the last day of the preceding Lease Year. For example, if
the Rent Commencement Date is January 1, 1996, the first Lease Year would begin
on January 1, 1996 and end on December 31, 1996 and each succeeding Lease Year
would end on December 31st. If, however, the Rent Commencement Date is January
2, 1996, the
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first Lease Year would end on January 31, 1997, the second Lease Year would
commence on February 1, 1997, and each succeeding Lease Year would end on
January 31st. Notwithstanding the foregoing, in the event Tenant shall be
entitled to the Concession Period described above, the Rent Commencement Date
for purposes of determining the beginning and end of the first Lease Year shall
be deemed to be the date on which Tenant shall be required to pay the Rent
reserved under Article 3 after postponement by reason of the Concession Period.
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RENT
3. The annual minimum rental ("Rent" or "rent") is as follows:
During the first Lease Year, the Rent shall be $499,907.10 payable $107,122.95
for the first month and $35,707.65 for each of the second through twelfth
months.
During the second Lease Year, the Rent shall be $443,162.16, payable in monthly
installments of $36,930.18.
During the third Lease Year, the Rent shall be $458,345.88, payable in monthly
installments of $38,195.49.
During the fourth Lease Year, the Rent shall be $474,061.08, payable in monthly
installments of $39,505.09.
During the fifth Lease Year, the Rent shall be $490,326.36, payable in monthly
installments of $40,860.53.
During the sixth Lease Year, the Rent shall be $507,160.92, payable in monthly
installments of $42,263.41.
During the seventh Lease Year, the Rent shall be $524,584.68, payable in monthly
installments of $43,715.39.
During the eighth Lease Year, the Rent shall be $542,618.16, payable in monthly
installments of $45,218.18.
During the last three months of the term of this lease, the rent shall be
$68,905.44, payable $46,773.58 for the first month and $11,065.93 for each of
the second and third months.
In the event this lease is terminated prior to the Expiration Date pursuant to
Article 24 or 26 herein provided Tenant is not in default under the terms of
this Lease, Tenant shall receive a refund of $35,707.65 per month against the
Rent paid by Tenant for the last two months of the term of this Lease. Tenant
agrees to pay the Rent to Landlord, without notice or demand, in lawful money of
the United States which shall be legal tender in payment of the debts and dues,
public and private, at the time of payment in advance on the first day of each
calendar month during the Demised Term at the office of the Landlord, or at such
other place as Landlord shall designate at least five (5) days prior thereto by
written notice given to Tenant in the manner hereinafter provided in this lease,
except that Tenant shall pay the first monthly
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installment on the execution hereof. Tenant shall pay the Rent as above and as
hereinafter provided, without any set off or deduction whatsoever. Should the
Term Commencement Date be a date other than the first day of a calendar month,
the Tenant shall pay a pro rata portion of the Rent on a per diem basis, based
upon the fourth full calendar month of the first Lease Year, from such date to
and including the last day of that current calendar month, and the first Lease
Year shall include said partial month. The Rent payable for such partial month
shall be in addition to the Rent payable pursuant to the Rent schedule set forth
above.
USE
4. (A) Tenant shall use and occupy the Demised Premises only for
executive and administrative offices related to human resources consulting, and
employment and related investigations and verifications and the sale of such
services, and for no other purpose.
(B) Tenant shall not use or occupy, suffer or permit the Premises, or
any part thereof, to be used in any manner which would in any way, in the
reasonable judgment of Landlord, (i) violate any laws or regulations of public
authorities; (ii) make void or voidable any insurance policy then in force with
respect to the Building; (iii) impair the appearance, character or reputation of
the Building; (iv) discharge objectionable fumes, vapors or odors into the
Building, air-conditioning systems or Building flues or vents in such a manner
as to offend other occupants. The provisions of this Section shall not be
deemed to be limited in any way to or by the provisions of any other Section or
any Rule or Regulation.
(C) Business machines and mechanical equipment in the Premises shall
be placed and maintained by Tenant, at Tenant's expense, in such manner as shall
be sufficient in Landlord's reasonable judgment to absorb vibration and noise
and prevent annoyance or inconvenience to Landlord or any other tenants or
occupants of the Building.
(D) 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.
Landlord represents that, to the best of its knowledge, the Building is zoned
for office use.
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LANDLORD ALTERATION
5. Landlord, at its sole cost and expense, will perform or cause to be
performed the work and the installations, as set forth in Schedule A and Exhibit
1 annexed hereto, by licensed contractors and in accordance with applicable
laws, codes and regulations, which is sometimes hereinafter referred to as the
"Landlord's Initial Construction". Landlord represents that the heating,
ventilating and air conditioning ("HVAC") units to be installed by Landlord
pursuant to Schedule A and Exhibit 1 shall be new HVAC units and Landlord shall
provide Tenant with the make and model number of such HVAC units when such
information is obtained by Landlord. Landlord, at its sole cost and expense,
shall prepare all construction plans and drawings and secure all necessary
permits to complete Landlord's Initial Construction as set forth in Schedule A
and Exhibit 1 annexed hereto. In the event that Tenant requires additional
generators, Landlord, at Tenant's expense, shall secure the necessary permits
and install such generators.
SERVICES
6. Landlord shall provide, at Landlord's expense, an electric meter
which shall measure Tenant's consumption of electricity in the Demised Premises
for all purposes except heating, including, without limitation, lighting, office
equipment, ventilation and air conditioning. Tenant shall make arrangements to
secure electricity for such purposes directly from the utility servicing the
Building and Tenant shall pay the charges for such electricity directly to such
utility in a timely manner. Landlord shall install, at Landlord's expense, a
separate gas meter to measure Tenant's consumption of gas for heating purposes
and shall make arrangements to secure gas directly from the utility servicing
the Building and Tenant shall pay the charges for such gas directly to such
utility in a timely manner.
LANDLORD'S REPAIRS AND SERVICES
7. Landlord, at its expense, will make all the repairs to and provide the
maintenance for the Demised Premises (excluding painting and decorating) and for
all public areas and facilities as set forth in Schedule B, except such repairs
and maintenance as may be necessitated by the negligence, improper care or use
of such premises and facilities by Tenant, its agents, employees, licensees
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or invitees, which will be made by Landlord at Tenant's expense. Landlord shall
make all repairs at reasonable times on reasonable notice to Tenant, except in
the case of emergency repairs, which may be made by Landlord without notice to
Tenant and at any time.
WATER SUPPLY
8. Landlord, at its expense, shall furnish hot and cold or tempered water
for lavatory purposes only.
PARKING FIELD
9. Tenant shall have the right to use one hundred eight (108) parking
spaces, forty (40) of which shall be reserved and designated with lettering
"ASI" for the parking of automobiles of the Tenant, its employees and invitees,
in the parking area designated 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 spaces in
excess of Tenant's allotted number of spaces therein.
DIRECTORY
10. In the event that Landlord erects a building directory, Landlord will
furnish listings requested by Tenant, not to exceed four (4) listings. The
initial listings will be made at Landlord's expense and any subsequent changes
by Tenant shall be made at Tenant's expense. Landlord's acceptance of any name
for listing on the directory will not be deemed, nor will it substitute for,
Landlord's consent, as required by this lease, to any sublease, assignment or
other occupancy of the Premises. At Tenant's sole cost and expense, Landlord
shall install a sign on the left wall of the interior of the Building in
accordance with Exhibit "2" annexed hereto similar in size and style to the
existing tenant's interior sign.
TAXES AND OTHER CHARGES
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11. (A) As used in and for the purposes of this Article 11, the following
definitions shall apply:
(i) "Taxes" shall be the real estate taxes, assessments, special or
otherwise, sewer rents, rates and charges, and any other governmental charges,
general, specific, ordinary or extraordinary, foreseen or unforeseen, levied on
a calendar year or fiscal year basis against the Real Property. If at any time
during the Term the method of taxation prevailing at the date hereof shall be
altered so that there shall be levied, assessed or imposed in lieu of, or as in
addition to, or as a substitute for, the whole or any part of the taxes, levies,
impositions or charges now levied, assessed or imposed on all or any part of the
Real Property (a) a tax, assessment, levy, imposition or charge based upon the
rents received by Landlord, whether or not wholly or partially as a capital levy
or otherwise, or (b) a tax, assessment, levy, imposition or charge measured by
or based in whole or in part upon all or any part of the Real Property and
imposed on Landlord, or (c) a license fee measured by the rent payable by Tenant
to Landlord, or (d) any other tax, levy, imposition, charge or license fee
however described or imposed, then all such taxes, levies, impositions, charges
or license fees or any part thereof, so measured or based, shall be deemed to be
Taxes.
(ii) "Base Year Taxes" shall be the greater of: (a) taxes actually
due and payable in the 1997/98 tax year; or (b) $125,094.00.
(iii) "Escalation Year" shall mean each calendar year which shall
include any part of the Demised Term.
(iv) "Real Property" shall be the land upon which the Building stands
and any part or parts thereof utilized for parking, landscaped areas or
otherwise used in connection with the Building, and the Building and other
improvements appurtenant thereto.
(B) The Tenant shall pay the Landlord increases in Taxes levied against the
Real Property as follows: If the Taxes actually due and payable with respect to
the Real Property in any Escalation Year shall be increased above the Base Year
Taxes, then the Tenant shall pay to the Landlord, as additional rent for such
Escalation Year, a sum equal to Tenant's Proportionate Share of said increase
("Tenant's Tax Payment" or "Tax Payment").
(C) Landlord shall render to Tenant a statement containing a computation of
Tenant's Tax Payment ("Landlord's Statement"). Within twenty (20) days after
the rendition of the Landlord's Statement, Tenant shall pay to Landlord the
amount of Tenant's Tax
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Payment. On the first day of each month following the rendition of each
Landlord's Statement, Tenant shall pay to Landlord, on account of Tenant's next
Tax Payment, a sum equal to one-twelfth (1/12th) of Tenant's last Tax Payment
due hereunder, which sum shall be subject to adjustment for subsequent increases
or decreases in Taxes.
(D) Upon Tenant's written request, Landlord shall provide Tenant with a
copy of the tax bill for the Building. Every Landlord's Statement given
pursuant to this Article shall be presumptively true and binding upon Tenant
unless Tenant provides notice, within thirty (30) days after the rendition of
Landlord's Statement, that Tenant disputes the correctness of Landlord's
Statement specifying the particular aspects in which Landlord's Statement is
claimed to be incorrect. Pending the determination of such dispute by agreement
or otherwise, Tenant shall pay Tenant's Tax Payment in accordance with
Landlord's Statement and such payment or acceptance shall be without prejudice
to Tenant's position.
(E) Tenant shall not, without Landlord's prior written consent, institute
or maintain any action, proceeding or application in any court or body or with
any governmental authority for the purpose of changing the Taxes. However, if
Landlord fails to commence such a proceeding thirty (30) days prior to the final
date to file challenges for the tax year in question and Landlord has not
provided to Tenant in writing upon Tenant's written request a reasonable
justification for not doing so prior to such thirtieth (30th) day, and KIII and
KG Corp. - New York I, Inc. ("KG"), a tenant of the Building, has not commenced
such a proceeding pursuant to the provisions of the lease between Landlord and
KG, then Tenant shall be permitted to commence such a proceeding for the tax
year in question at Tenant's sole cost and expense and upon prior notice to
Landlord. In the event Tenant commences such a proceeding as permitted by this
Article, Tenant shall furnish Landlord with copies of all documents delivered
and received by or on behalf of Tenant in connection with said proceeding. In
the event any such action initiated by Landlord, KG or Tenant is successful,
then Tenant shall receive, or have credited against its Rent thereafter due (at
Landlord's option), Tenant's Proportionate Share of any tax refund or credit
obtained thereby to the extent said Taxes were actually paid by Tenant (after
reimbursement to the appropriate party for reasonable legal fees and other
customary out of pocket expenses).
(F) Landlord's failure to render a Landlord's Statement with respect to any
Escalation Year shall not prejudice Landlord's right
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to render a Landlord's Statement with respect to any Escalation Year. The
obligation of Landlord and Tenant under the provisions of this Article with
respect to any additional rent for any Escalation Year shall survive the
expiration or any sooner termination of the Demised Term.
(G) Notwithstanding anything to the contrary contained in this Article 11,
Tenant shall not be required to make, and shall not be liable for, a Tax Payment
for a period of twelve (12) months from the date of this lease.
TENANT'S REPAIRS
12. Tenant shall take good care of the Demised Premises and, subject to
the provisions of Article 7 hereof, Landlord at the expense of Tenant, shall
make as and when needed as a result of misuse or neglect by Tenant or Tenant's
servants, employees, agents or licensees, all repairs in and about the Demised
Premises necessary to preserve them in good order and condition. Except as
provided in Article 24 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 of Demised Premises, or in or to the 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. Notwithstanding the
foregoing, Landlord shall use reasonable efforts not to unreasonably interfere
with the conduct of Tenant's business, provided such reasonable efforts shall
not be deemed to include the use of overtime services.
FIXTURES & INSTALLATIONS
13. 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 be and remain the property of
Landlord (except for purposes of sales tax which shall remain Tenant's
obligation). All trade fixtures, office equipment, furniture, furnishings and
other
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articles of movable personal property owned by Tenant and located within the
Premises (collectively, "Tenant's Property") may be removed from the Premises by
Tenant at any time during the Term. Tenant, before so removing Tenant's
Property, shall establish to Landlord's satisfaction that no structural damage
or change will result from such removal and that Tenant can and promptly will
repair and restore any damage caused by such removal without cost or charge to
Landlord. Any such repair and removal shall itself be deemed an Alteration (as
defined in Article 14 below) within the purview of this lease. Any Tenant's
Property for which Landlord shall have granted any allowance, contribution or
credit to Tenant shall, at Landlord's option, not be so removed. 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.
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ALTERATIONS
14. (A) After completion of the Demised Premises as set forth in Schedule
A and Exhibit 1, Tenant shall make no alterations, decorations, installations,
additions or improvements (hereinafter collectively referred to as
"Alterations") in or to the Demised Premises without Landlord's consent, which
consent shall not be unreasonably withheld or delayed provided Tenant otherwise
complies with the provisions of this Article 14, and then only by contractors or
mechanics reasonably approved by Landlord and at such times and in such manner
as Landlord may from time to time designate. Notwithstanding the foregoing:
(i) Tenant shall be permitted to paint and install wall coverings and floor
coverings and make other similar decorative alterations in the Premises
("Decorative Alterations") without Landlord's prior consent; and (ii) Tenant
shall be permitted to make nonstructural alterations the cost of which do not
exceed $25,000 in the aggregate during the term of this lease without Landlord's
prior consent provided said alterations do not affect the Building service
systems including, without limitation, heating, ventilating, air conditioning,
electrical, plumbing and other mechanical systems, health safety and life safety
systems and partitioning ("Minor Alterations") However, Tenant shall notify
Landlord prior to performing such Decorative Alterations or Minor Alterations.
(B) All Alterations done by Tenant shall at all times comply with (i)
laws, rules, orders and regulations of governmental authorities having
jurisdiction thereof, and (ii) rules and regulations of the Landlord attached as
Schedule D.
(C) With respect to all Alterations, plans and specifications
prepared by and at the expense of Tenant shall be submitted to Landlord for its
prior written approval in accordance with the following requirements:
(i) With respect to any Alterations to be performed by Tenant
pursuant to this lease, Tenant shall, at its expense, furnish Landlord with all
drawings, plans, layouts and specifications for work to be performed by Tenant,
including, without limitation, architectural, plumbing, electrical, mechanical
and heating, ventilating and air conditioning plans (the "Tenant's Plans"). All
of the Tenant's Plans shall: (a) be compatible with the Landlord's building
plans, (b) comply with all applicable laws and the rules, regulations,
requirements and orders of any and all governmental agencies, departments or
bureaus having jurisdiction,
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and (c) be fully detailed, including locations and complete dimensions;
(ii) Tenant's Plans shall be subject to reasonable approval by
Landlord;
(iii) Tenant shall, at Tenant's expense, (a) cause Tenant's Plans to
be filed with the governmental agencies having jurisdiction thereover if
applicable laws, rules and regulations require such filing, (b) obtain when
necessary all governmental permits, licenses and authorizations required for the
work to be done in connection therewith, and (c) obtain all necessary
certificates of occupancy, both temporary and permanent. Landlord shall execute
such documents as may be reasonably required in connection with the foregoing
and Landlord shall otherwise cooperate with Tenant in connection with obtaining
the foregoing, but without any expense to Landlord. Tenant shall make no
amendments or additions to Tenant's Plans without the prior written consent of
Landlord in each instance;
(iv) No work shall commence in the Premises until (a) Tenant has
procured all necessary permits therefor and has delivered copies of same to
Landlord, (b) Tenant has procured a paid builder's risk insurance policy naming
Landlord as an additional insured and has delivered to Landlord a certificate of
insurance evidencing such policy, and (c) Tenant or its contractor has procured
a workmen's compensation insurance policy covering the activities of all persons
working at the Premises naming Landlord as an additional insured and has
delivered to Landlord a certificate of insurance evidencing such policy;
(v) Tenant may use any licensed architect or engineer to prepare its
plans and to file for permits. However, all such plans and permit applications
shall be subject to review, revision and reasonable approval by Landlord or its
architect;
(vi) Tenant, at its expense, shall perform all work, in accordance
with Tenant's Plans and all Alterations, unless Landlord performs same at
Tenant's request, shall be subject to Landlord's supervisory fee charge of 10%
of the cost thereof. In receiving such fee, Landlord assumes no responsibility
for the quality or manner in which such work has been performed; and
(vii) Provided Tenant has notified Landlord of the identity of its
contractors, laborers and materialmen, Tenant agrees that it will not knowingly
or intentionally, 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
14
will create any difficulty with other contractors and/or labor engaged by Tenant
or Landlord or others in the construction, maintenance or operation of the
Building or any part thereof.
(D) Tenant's right to make Alterations shall be subject to the
following additional conditions: (i) the Alterations will not result in a
violation of, or require a change in, any Certificate of Occupancy applicable to
the Premises or the Building; (ii) the outside appearance, character or use of
the Building shall not be affected; (iii) no part of the Building outside of the
Premises shall be physically affected; (iv) the proper functioning of any air-
conditioning, elevator, plumbing, electrical, sanitary, mechanical and other
service or utility system of the Building shall not be affected.
(E) Tenant shall defend, indemnify and save harmless Landlord against
any and all mechanics' and other liens filed in connection with its Alterations,
repairs or installations, including the liens of any conditional sales of, or
chattel mortgages upon, any materials, fixtures or articles so installed in and
constituting part of the Premises and against any loss, cost, liability, claim,
damage and expense, including reasonable counsel fees, penalties and fines
incurred in connection with any such lien, conditional sale or chattel mortgage
or any action or proceeding brought thereon. As a condition precedent to
Landlord's consent to the making by Tenant of Alterations, Tenant agrees to
obtain and deliver to Landlord, written and unconditional waivers of mechanics'
liens for all work, labor and services to be performed and materials to be
furnished, signed by all contractors, subcontractors, materialmen and laborers
to become involved in such work.
(F) Tenant, at its expense, shall procure the satisfaction, bond or
discharge of all such liens within thirty (30) days of the filing of such lien
against the Premises or the Building. If Tenant shall fail to cause such lien
to be discharged within the aforesaid period, then, in addition to any other
right or remedy, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord, and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the maximum rate
permitted by law from the respective dates of Landlord's making of the payments
or incurring
15
of the cost and expense, shall constitute additional rent and shall be paid on
demand.
(G) Nothing in this lease contained shall be construed in any way as
constituting the consent or request of Landlord, expressed or implied, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any material for any improvement, alteration or
repair of the Premises, nor as giving any right or authority to contract for the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanics' liens against the Premises.
REQUIREMENTS OF LAW
15. (A) Tenant, at Tenant's sole cost and expense, shall comply with all
statutes, laws, ordinances, orders, regulations and notices of Federal, State,
County and Municipal authorities, and with all directions, pursuant to law, of
all public officers, which shall impose any duty upon Tenant arising from or
relating to Tenant's use or occupancy or manner of use or occupancy of the
Demised Premises,except that Tenant shall not be required to make any structural
alterations 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 manner of use
or manner of occupancy of the Demised Premises by Tenant, or any such person, in
which case Landlord shall make such alterations at Tenant's expense.
(B) The parties acknowledge that there are certain Federal, State
and local laws, regulations and guidelines now in effect and that additional
laws, regulations and guidelines may hereafter be enacted, relating to or
affecting the Premises, the Building, and the land of which the Premises and the
Building may be a part, concerning the impact on the environment of
construction, land use, the maintenance and operation of structures and the
conduct of business. Tenant will not cause, or permit to be caused, any act or
practice, by negligence, omission, or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said laws, regulations, or guidelines. Any violation of this covenant shall
be an event of default under this lease.
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(C) Tenant shall keep or cause the Premises to be kept free of
Hazardous Materials (hereinafter defined). Without limiting the foregoing,
Tenant shall not cause or permit the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process Hazardous Materials, except in compliance with all applicable
Federal, State and Local laws or regulations, nor shall Tenant cause or permit,
as a result of any intentional or unintentional act or omission on the part of
Tenant or any person or entity claiming through or under Tenant or any of their
employees, contractors, agents, visitors or licensees (collectively, "Related
Parties"), a release of Hazardous Materials onto the Premises or onto any other
property. Tenant shall comply with and ensure compliance by all Related Parties
with all applicable Federal, State and Local laws, ordinances, rules and
regulations affecting the Premises, the Building and the land on which the
Building is situated to the extent same apply to Tenant's use or manner of use
of the Premises, whenever and by whomever triggered, and shall obtain and comply
with, and ensure that all Related Parties obtain and comply with, any and all
approvals, registrations or permits required thereunder. With respect to
Hazardous Substances for which Tenant is responsible hereunder, Tenant shall (i)
conduct and complete all investigations, studies, samplings, and testing, and
all remedial removal and other actions necessary to clean up and remove such
Hazardous Materials, on, from, or affecting the Premises (a) in accordance with
all applicable Federal, State and Local laws, ordinances, rules, regulations,
policies, orders and directives, and (b) to the satisfaction of Landlord, and
(ii) defend, indemnify, and hold harmless Landlord, its employees, agents,
officers, and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of, or in any way
related to, (a) the presence, disposal, release, or threatened release of such
Hazardous Materials which are on, from, or affecting the soil, water,
vegetation, buildings, personal property, persons, animals, or otherwise; (b)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials; (c) any lawsuit
brought or threatened, settlement reached, or government order relating to such
Hazardous Materials; and/or (d) any violation of laws, orders, regulations,
requirements, or demands of government authorities, or any policies or
requirements of Landlord which are based upon or in any way related to such
Hazardous Materials, including, without limitation, attorney and consultant
fees, investigation and laboratory fees, court costs, and litigation expenses.
In the event this lease is terminated, or Tenant is dispossessed, Tenant shall
deliver the Premises to Landlord in the same condition with respect to
17
Hazardous Materials as on the date of Tenant's occupancy of the Premises
including the date of Tenant's early occupancy as provided in Article 2 herein.
For purposes of this paragraph, "Hazardous Materials" includes, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials
defined in the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601, et
seq.), and in the regulations adopted and publications promulgated pursuant
thereto, or any other Federal, State or Local environmental law, ordinance,
rule, or regulation. Landlord represents that, to the best of Landlord's
knowledge, the Premises are not in violation of any applicable environmental
law, ordinance, rule or regulation. Notwithstanding anything to the contrary in
Article 15(B) and 15(C), Tenant shall not be responsible for Hazardous Materials
existing at the Premises prior to the date of Tenant's occupancy of the Premises
(including Tenant's early occupancy as provided in Article 2 herein) or during
the term of this lease if the presence of such Hazardous Materials on the
Premises is the result of any act or omission of Landlord, its agents or
employees.
END OF TERM
16. (A) Upon the expiration or other termination of the Term of this
lease, Tenant shall, at its own expense, quit and surrender to Landlord the
Demised Premises, broom clean, in the same condition as the Demised Premises
were in on the Rent Commencement Date ordinary wear, tear and damage by fire or
other insured casualty excepted, and Tenant shall remove all of its property and
shall pay the cost to 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 retained by Landlord, as its property, or
disposed of in any manner deemed appropriate by the Landlord. Any expense
incurred by Landlord in removing or disposing of such property shall be
reimbursed to Landlord by Tenant on demand. Notwithstanding anything to the
contrary contained herein, upon the expiration or other termination of this
lease, Tenant may, at Tenant's sole cost and expense, remove the uninterrupted
power supply and backup generators installed by Tenant pursuant to Article 2
herein, provided Tenant shall pay the cost to repair all damage to the Demised
Premises or the Building occasioned by such removal. Tenant expressly waives,
for itself and for any person claiming
18
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 or summary proceeding 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. Tenant's obligations under this Article 16 shall survive
the Expiration Date or sooner termination of this lease.
(B) In the event of any holding over by Tenant after the expiration or
termination of this Lease without the consent of Landlord, Tenant shall:
(i) pay as holdover rental for each month of the holdover tenancy an
amount equal to the greater of (a) the fair market rental value of the Premises
for such month (as reasonably determined by Landlord) or (b) one hundred and
fifty (150%) percent during the first thirty (30) days of such holdover and two
hundred (200%) percent during any holdover period thereafter of the Rent payable
by Tenant for the third month prior to the Expiration Date of the term of this
lease, and otherwise observe, fulfill and perform all of its obligations under
this lease, including but not limited to, those pertaining to additional rent,
in accordance with its terms;
(ii) be liable to Landlord for any payment or rent concession which
Landlord may be required to make to any tenant in order to induce such tenant
not to terminate an executed lease covering all or any portion of the Premises
by reason of the holdover over by Tenant; and
(iii) be liable to Landlord for any damages suffered by Landlord as
the result of Tenant's failure to surrender the Premises.
No holding over by Tenant after the Term shall operate to extend the
Term.
The holdover, with respect to all or any part of the Premises, of a
person deriving an interest in the Premises from or through Tenant, including,
but not limited to, an assignee or subtenant, shall be deemed a holdover by
Tenant.
19
Notwithstanding anything in this Article contained to the contrary,
the acceptance of any Rent paid by Tenant pursuant to this Paragraph 16(B),
shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof.
The preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
(C) If at any time during the last month of the Term Tenant shall
have removed all of Tenant's property from the Premises, Landlord may, and
Tenant hereby irrevocably grants to Landlord a license to, immediately enter and
alter, renovate and redecorate the Premises, without elimination, diminution or
abatement of Rent, or incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this lease.
QUIET ENJOYMENT
17. 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 22.
20
SIGNS
18. No signs or lettering of any nature may be put on or in any window or
on the exterior of the Building or elsewhere within the Demised Premises such as
will be visible from the street. No sign or lettering in the public corridors
or on the doors is permitted except Landlord's standard name plaque.
Notwithstanding the foregoing, to the extent permitted by applicable laws and
regulations, Landlord, at Tenant's sole cost and expense, shall secure all
necessary permits and install a sign on the Building in the form annexed as
Exhibit "2", which sign shall be no larger than the existing tenant's sign, and
which shall be similar in style to such tenant's existing sign. Tenant's sign
shall be located on the east facade of the Building. Landlord hereby approves
the style and location of such sign Landlord's approval herein shall not,
however, relieve Tenant of Tenant's obligation to comply with all laws, rules
and regulations. Landlord, at Landlord's sole expense, shall list Tenant's name
on the monument sign outside the Building.
RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors, and licensees shall
faithfully observe and comply with, and shall not permit violation of, 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 Landlord's reasonable
judgment, shall be necessary for the reputation, safety, care and appearance of
the Building and the land allocated to it or the preservation of good order
therein, or the operation or maintenance of the Building, and such land, its
equipment, 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,
in any lease by any other tenant in the Building. Landlord will not amend the
rules and regulations in a manner which would increase Tenant's monetary
obligations under this lease.
RIGHT TO SUBLET OR ASSIGN
20. (A) Tenant covenants that it shall not assign this lease nor sublet
the Demised Premises or any part thereof by operation of
21
law or otherwise, including, without limitation, an assignment or subletting as
defined in (D) below, without the prior written consent of Landlord in each
instance, which consent shall not be unreasonably withheld or delayed by more
than twenty (20) business days provided Tenant timely complies with the
provisions of this Article 20, except on the conditions hereinafter stated.
Tenant may assign this lease or sublet all or a portion of the Demised Premises
with Landlord's written consent, provided:
(i) That such assignment or sublease is for a use which is in
compliance with this lease and the then existing zoning regulations and the
Certificate of Occupancy;
(ii) That, at the time of such assignment or subletting, there is no
material default under the terms of this lease on the Tenant's part;
(iii) That, in the event of an assignment, the assignee shall assume in
writing the performance of all of the terms and obligations of the within lease;
(iv) That a duplicate original of said assignment or sublease shall be
delivered by certified mail to the Landlord at the address herein set forth
within twenty (20) days from the said assignment or sublease and within ninety
(90) days of the date that Tenant first advises Landlord of the name and address
of the proposed subtenant or assignee, as required pursuant to subparagraph (B)
hereof;
(v) Such assignment or subletting shall not, however, release the
within Tenant or any successor tenant or any guarantor from their liability for
the full and faithful performance of all of the terms and conditions of this
lease;
(vi) If this lease be assigned, or if the Demised Premises or any part
thereof be underlet or occupied by anybody other than Tenant, Landlord may after
default by Tenant collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved.
(B) Notwithstanding anything contained in this Article 20 to the
contrary, no assignment or underletting shall be made by Tenant in any event,
except with respect to any permitted assignment or subletting under Paragraph
20(C) herein, until Tenant has offered to terminate this lease as of the last
day of any calendar month during the Term hereof and to vacate and surrender the
Demised Premises to Landlord on the date fixed in the notice served by Tenant
upon Landlord (which date shall be prior to the
22
date of such proposed assignment or the commencement date of such proposed
lease). Simultaneously with said offer to terminate this lease, Tenant shall
advise the Landlord, in writing, of the name and address of the proposed
assignee or subtenant, a reasonably detailed statement of the proposed
subtenant/assignee's business, reasonably detailed financial references, and all
the terms, covenants, and conditions of the proposed sublease or assignment.
(C) Tenant may, without the consent of Landlord, assign this lease or
sublet all or any part of the Demised Premises to an affiliated (i.e., a
corporation 20% or more of whose capital stock is owned by the same stockholders
owning 20% or more of Tenant's capital stock), parent or subsidiary corporation
of Tenant or to a corporation to which it sells or assigns all or substantially
all of its assets or stock or with which it may be consolidated or merged,
provided such purchasing, consolidated, merged, affiliated or subsidiary
corporation shall, in writing, assume and agree to perform all of the
obligations of Tenant under this lease and it shall deliver such assumption with
a copy of such assignment to Landlord within ten (10) days thereafter, and
provided further than Tenant shall not be released or discharged from any
liability under this lease by reason of such assignment or sublet.
(D) For purposes of this Article 20, (i) the transfer of a majority
of the issued and outstanding capital stock of any corporate tenant, or of a
corporate subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this lease, or of such sublease, as the case may be; (ii) any
person or legal representative of Tenant, to whom Tenant's interest under this
lease passes by operation of law or otherwise, shall be bound by the provisions
of this Article 20; and (iii) a modification or amendment of a sublease shall be
deemed a sublease. Notwithstanding the foregoing, for purposes of this Article
20, the transfer of the stock of Tenant, its affiliates or subsidiaries through
the over-the-counter market or any recognized national securities exchange shall
not be deemed an assignment or sublease under this Article 20.
(E) Whenever Tenant shall claim under this Article or any other part
of this lease that Landlord has unreasonably withheld or delayed its consent to
some request of Tenant, Tenant shall have no claim for damages by reason of such
alleged withholding or delay, and Tenant's sole remedy thereof shall be a right
to obtain specific performance or injunction but in no event with recovery of
damages.
23
(F) Without affecting any of its other obligations under this lease,
except with respect to any permitted assignment or subletting under Paragraph
20(C), Tenant will pay Landlord as additional rent fifty (50%) percent of any
sums or other economic consideration, which (i) are actually received by Tenant
as a result of an assignment or subletting whether or not referred to as rentals
under the assignment or sublease (after deducting therefrom the reasonable costs
and expenses incurred by Tenant in connection with the assignment or subletting
in question provided such costs were approved by Landlord when it approved the
assignment or sublease); and (ii) exceed in total the sums which Tenant is
obligated to pay Landlord under this lease (prorated to reflect obligations
allocable to that portion of the Demised Premises subject to such assignment or
sublease), it being the express intention of the parties that Tenant shall not
in any manner whatsoever be entitled to any profit by reason of such sublease or
assignment. The failure or inability of the assignee or subtenant to pay rent
pursuant to the assignment or sublease will not relieve Tenant from its
obligations to Landlord under this Paragraph 20(F). Tenant will not amend the
assignment or sublease in such a way as to reduce or delay payment of amounts
which are provided in the assignment or sublease approved by Landlord.
(G) Landlord agrees that it shall not unreasonably withhold or delay
by more than twenty (20) business days (provided Tenant timely complies with the
provision of this Article 20), its consent to a subletting or assignment in
accordance with the terms of this Article 20. In determining reasonableness,
there shall be taken into account the character and reputation of the proposed
subtenant or assignee, the specific nature of the proposed subtenant's or
assignee's business and whether same is in keeping with other tenancies in the
building; the financial standing of the proposed subtenant or assignee; and the
impact of all of the foregoing upon the Building and the other tenants of
Landlord therein. Landlord shall not be deemed to have unreasonably withheld
its consent if it refuses to consent to a subletting or assignment to an
existing tenant in any building in Melville, New York owned by Reckson Operating
Partnership or its affiliates or to a proposed subtenant or assignee with whom
Landlord is negotiating a lease for space in a building owned by Reckson
Operating Partnership or its affiliates in Melville, New York or if at the time
of Tenant's request, Tenant is in default, beyond applicable grace and notice
periods provided herein for the cure thereof, of any of the material terms,
covenants and conditions of this lease to be performed by Tenant. At least
twenty (20) days prior to any proposed subletting or assignment, Tenant shall
submit to Landlord a written notice of the proposed subletting or
24
assignment, which notice shall contain or be accompanied by the following
information:
(i) the name and address of the proposed subtenant or assignee;
(ii) the nature and character of the business of the proposed
subtenant or assignee and its proposed use of the premises to be demised;
(iii) the most recent three (3) years of balance sheets and profit
and loss statements of the proposed subtenant or assignee or other financial
information satisfactory to Landlord; and
(iv) such shall be accompanied by a copy of the proposed sublease or
assignment of lease.
Notwithstanding the foregoing, Tenant agrees that it and anyone holding through
Tenant shall not sublet or assign all or any portion of the Demised Premises to
any subtenant or assignee who will use the Demised Premises or a portion thereof
for any of the following designated uses nor for any other use which is
substantially similar to any one of the following designated uses:
(i) federal, state or local governmental division, department or
agency which generates heavy public traffic, including, without limitation,
court, social security offices, labor department office, drug enforcement
agency, motor vehicle agency, postal service, military recruitment office;
(ii) union or labor organization;
(iii) office for the practice of medicine, dentistry or the
rendering of other health related services;
(iv) chemical or pharmaceutical company provided however, that the
subletting or assignment to such a company which will use the premises only for
executive, general and sales offices and waive the right to conduct any research
and development shall not be prohibited;
(v) insurance claims office, including, but not limited to,
unemployment insurance or worker's compensation insurance, provided however,
that the subletting or assignment to such a company which will use the Premises
only for executive, general and sales offices and waive the right to process
claims shall not be prohibitive; or securities brokerage company.
25
(H) Notwithstanding anything to the contrary contained in this Article
20, in no event shall any assignment or subletting be permitted where the total
sums and other economic consideration required to be paid or given by the
assignee or sublessee, as the case may be, for such assignment or sublease is
less than five (5%) percent below the then current rent, on a per square foot
basis, which Landlord is currently receiving for comparable space in the
Building.
LANDLORD'S ACCESS TO PREMISES
21. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all reasonable times on reasonable
notice, except in an emergency, to examine the same, and to show them to 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. In
exercising the foregoing rights,Landlord shall use reasonable efforts not to
unreasonably interfere with Tenant's business, provided such reasonable efforts
shall not be deemed to include the use of overtime services. During the six (6)
months prior to the expiration of the Term of this lease, or any renewal term,
Landlord may , upon reasonable notice, 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 or permissible, Landlord
or Landlord's agents may enter the same by a master key, or forcibly in the case
of an emergency, 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).
(B) Landlord shall also have the right, at any time, to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, 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
reduce the size of the Demised Premises or adversely affect in any material
manner Tenant's use and enjoyment of the Demised Premises. Landlord shall also
have the right, at any time, to name the Building, including, but not limited
to, the use of appropriate signs and/or lettering on any or all entrances to the
Building, and
26
to change the name, number or designation by which the Building is commonly
known.
(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. Notwithstanding the foregoing, Tenant shall have full and complete
access to the Demised Premises.
(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.
SUBORDINATION
22. (A) This lease and all rights of Tenant hereunder are, and shall be,
subject and subordinate in all respects to all ground leases and/or underlying
leases and to all first mortgages and building loan agreements 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
substitutions 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. Landlord
shall obtain a non-disturbance agreement from its mortgagee on such mortgagee's
standard form, and shall use reasonable efforts to obtain a non-disturbance
agreement from any future mortgagees.
(B) Without limitation of any of the provisions of this lease, in the
event that any mortgagee or its assigns shall succeed
27
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 ten (10) 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 modification) 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 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 thereof, provided that such modifications do not increase the
obligations of Tenant hereunder or adversely affect the leasehold interest
hereby created. If, in connection with such financing, such institutional
lender shall require financial audited information on the Tenant, Tenant shall
promptly comply with such request.
PROPERTY LOSS, DAMAGE REIMBURSEMENT
23. (A) Landlord or its agents shall not be liable for any damages 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, unless
caused by or due to the negligence of Landlord, its agents, servants or
employees. 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
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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 or misconduct 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. If at
any time any windows of the Demised Premises are temporarily closed or darkened
for a reasonable period of time 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 (including, without
limitation, reasonable attorneys' fees) 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.
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TENANT'S AND LANDLORD'S INDEMNITY
(B) Tenant shall indemnify and save harmless Landlord against and from
any and all claims by or 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 other thing whatsoever done (other than by Landlord or its
contractors or the agents or employees of either) in and on the Demised Premises
during any other period of occupancy by Tenant including the Term of this lease
and during the period of time, if any, prior to the specified 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 or Tenant's occupancy thereof due to or arising from any act or
omissions 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.
Landlord agrees to indemnify and save harmless Tenant against and from any and
all claims, by or on behalf of any person or persons, firm or firms, corporation
or corporations arising from : (i)the conduct or management of or from any work
or other thing whatsoever done (other than by Tenant or its contractors or the
agents or employees of either), in or about the common area of the Building
during the Term (unless such injury, loss, claim or damages is attributable to
the negligence of Tenant or its agents, servants or employees); and (ii) work
performed by Landlord, its agents or employees in or on the Demised Premises
(unless such injury, loss, claim or damage is attributable to the negligence of
Tenant or its agents, servants or employees); and in the event any action or
proceeding is brought against Tenant by reason of such claim, Landlord, upon
notice from Tenant, shall, at Landlord's expense, resist and defend such action
or proceeding and will employ counsel therefor reasonably satisfactory to
Tenant.
DESTRUCTION - FIRE OR OTHER CASUALTY
24. (A) If the Premises or any part thereof shall be damaged by fire or
other casualty and Tenant gives prompt notice thereof to
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Landlord, Landlord shall proceed with reasonable diligence to repair or cause to
be repaired such damage. The Rent and additional rent shall be abated to the
extent that the Premises shall have been rendered untenantable, such abatement
to be from the date of such damage or destruction to the date the Premises shall
be substantially repaired or rebuilt, in proportion which the area of the part
of the Premises so rendered untenantable bears to the total area of the
Premises.
(B) If the Premises shall be substantially damaged or rendered
substantially untenantable by fire or other casualty, and Landlord has not
terminated this lease pursuant to Subsection (C) and Landlord has not completed
the making of the required repairs and restored and rebuilt the Premises and/or
access thereto within nine (9) months from the date of such damage or
destruction, and such additional time after such date (but in no event to exceed
four (4)as shall equal the aggregate period Landlord may have been delayed in
doing so by unavoidable delays or adjustment of insurance, Tenant may serve
notice on Landlord of its intention to terminate this lease, and, if within
thirty (30) days thereafter Landlord shall not have completed the making of the
required repairs and restored and rebuilt the Premises, this lease shall
terminate on the expiration of such thirty (30) day period as if such
termination date were the Expiration Date, and the Rent and additional rent
shall be apportioned as of the date of damage and any prepaid portion of Rent
and additional rent for any period after such date shall be refunded by Landlord
to Tenant.
(C) If the Premises shall be substantially damaged or rendered
substantially untenantable by fire or other casualty or if the Building shall be
so damaged by fire or other casualty that substantial alteration or
reconstruction of the Building shall, in Landlord's opinion, be required
(whether or not the Premises shall have been damaged by such fire or other
casualty), then in any of such events Landlord may, at its option, terminate
this lease and the Term and estate hereby granted, by giving Tenant thirty (30)
days notice of such termination within sixty (60) days after the date of such
damage. In the event that such notice of termination shall be given, this lease
and the Term and estate hereby granted, shall terminate as of the date provided
in such notice of termination (whether or not the Term shall have commenced)
with the same effect as if that were the Expiration Date, and the Rent and
additional rent shall be apportioned as of the date of damage or sooner
termination and any prepaid portion of Rent and additional rent for any period
after such date shall be refunded by Landlord to Tenant.
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(D) Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
by fire or other casualty or the repair thereof, except for such damage or
casualty caused by the negligence or misconduct of Landlord or its agents.
Landlord will not carry insurance of any kind on Tenant's property, and Landlord
shall not be obligated to repair any damage thereto or replace the same.
(E) This lease shall be considered an express agreement governing any case
of damage to or destruction of the Building or any part thereof by fire or other
casualty, and Section 227 of the Real Property Law of the State of New York
providing for such a contingency in the absence of such express agreement, and
any other law of like import now or hereafter enacted, shall have no application
in such case.
INSURANCE
25. (A) Tenant shall not do anything, or suffer or permit anything to be
done, in or about the 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 activity being conducted in the Premises or (iv) cause, by its conduct or
omission or as proscribed by the terms of this lease, any increase in the fire
insurance rates applicable to the Building or equipment or other property
located therein at the beginning of the 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 excluding those rules, orders,
regulations or requirements which would require structural changes to the
Building or the Premises.
(B) If, by reason of any act or omission on the part of Tenant, the
rate of fire insurance with extended coverage on the Building or equipment or
other property of Landlord or any other tenant or occupant of the Building shall
be higher than it otherwise would be, Tenant shall reimburse Landlord and all
such other tenants or occupants, on demand, for the part of the increase
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in premiums for fire insurance and extended coverage paid by Landlord and such
other tenants or occupants because of such act or omission on the part of
Tenant.
(C) In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or make up of insurance rates for
the Building or the Premises, as the case may be, issued by the New York Fire
Insurance Rating Organization or other similar body making rates for fire
insurance and extended coverage for the Premises concerned, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates with extended coverage then applicable to such Premises.
(D) Tenant shall obtain and keep in full force and effect during the
Term, at its own cost and expense, (i) Public Liability Insurance, such
insurance to afford protection in an amount of not less than Three Million
($3,000,000) Dollars for injury or death arising out of any one occurrence, and
Five Hundred Thousand ($500,000) Dollars for damage to property, protecting
Landlord and Tenant as insureds against any and all claims for bodily injury,
death or property damage and (ii) Fire and Extended Coverage Insurance on
Tenant's property, insuring against damage by fire, and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies, to Tenant's property for the full
insurable value thereof, protecting Tenant as insured.
(E) Said insurance is to be written in form and substance reasonably
satisfactory to Landlord by a good and solvent insurance company of recognized
standing, admitted to do business in the State of New York, which shall be
reasonably satisfactory to Landlord. Tenant shall procure, maintain and place
such insurance and pay all premiums and charges therefor and upon failure to do
so Landlord may, but shall not be obligated to, procure, maintain and place such
insurance or make such payments, and in such event the Tenant agrees to pay the
amount thereof, plus interest at the maximum rate permitted by law, to Landlord
on demand and said sum shall be in each instance collectible as additional rent
on the first day of the month following the date of payment by Landlord. Tenant
shall cause to be included in all such insurance policies a provision to the
effect that the same will be non-cancelable except upon twenty (20) days written
notice to Landlord. On the Term Commencement Date the original insurance
policies or appropriate certificates shall be deposited with Landlord. Any
renewals, replacements or endorsements thereto shall also be deposited with
Landlord to the end that said insurance shall be in full force and effect during
the Term.
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(F) Each party agrees to use its best efforts to include in each of
its insurance policies (insuring the Building and Landlord's property therein,
in the case of Landlord, and insuring Tenant's property, in the case of Tenant,
against loss, damage or destruction by fire or other casualty) a waiver of the
insurer's right of subrogation against the other party, or if such waiver should
be unobtainable or unenforceable (i) an express agreement that such policy shall
not be invalidated if the insured waives or has waived before the casualty, the
right of recovery against any party responsible for a casualty covered by the
policy, or (ii) any other form of permission for the release of the other party,
or (iii) the inclusion of the other party as an additional insured, but not a
party to whom any loss shall be payable. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable without additional
charge or at all, the insured party shall so notify the other party promptly
after learning thereof. In such case, if the other party shall agree in writing
to pay the insurer's additional charge therefor, such waiver, agreement or
permission shall be included in the policy, or the other party shall be named as
an additional insured in the policy, but not a party to whom any loss shall be
payable. Each such policy which shall so name a party hereto as an additional
insured shall contain, if obtainable, agreements by the insurer that the policy
will not be cancelled without at least thirty (30) days prior notice to both
insureds and that the act or omission of one insured will not invalidate the
policy as to the other insured. During any period while the foregoing waiver of
right of recovery is in effect, Landlord shall look solely to the proceeds of
such policies to compensate Landlord for any loss occasioned by fire or other
casualty which is an insured risk under such policies.
(G) Landlord shall keep the Building (including Landlord's Initial
Construction) insured against fire and other casualties for its full replacement
value with a reputable insurance company licensed to do business in the state of
New York. Landlord hereby waives (i) any obligation on the part of Tenant to
make repairs to the Premises necessitated or occasioned by fire or other
casualty that is an insured risk under such policies, and (ii) any right of
recovery against Tenant, any other permitted occupant of the Premises, and any
of their servants, employees, agents or contractors, for any loss occasioned by
fire or other casualty that is an insured risk under such policies.
(H) Tenant hereby waives (and agrees to cause any other permitted
occupants of the Premises to execute and deliver to Landlord written instruments
waiving) any right of recovery against Landlord, any other tenants or occupants
of the Building, and any servants, employees, agents or contractors of Landlord
or of any
34
such other tenants or occupants, for any loss occasioned by fire or other
casualty which is an insured risk under such policies required to be maintained
by Tenant hereunder. During any period while the foregoing waiver of right of
recovery is in effect, Tenant, or any other permitted occupant of the Premises,
as the case may be, shall look solely to the proceeds of such policies to
compensate Tenant or such other permitted occupant for any loss occasioned by
fire or other casualty which is an insured risk under such policies.
EMINENT DOMAIN
26. (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 a 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 (i) 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 sixty (60) days following the date on which Landlord shall
have received notice of vesting of title, and (ii) if such condemnation or
taking shall be of a substantial part of the Demised Premises or a substantial
part of the means of access thereto, Tenant shall have the right, by delivery of
notice in writing to Landlord within sixty (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
(iii) 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 26. 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
35
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 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 nonmovable fixtures owned by Tenant and for moving
expenses incurred by Tenant. It is expressly understood and agreed that the
provisions of this Article 26 shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period.
NONLIABILITY OF LANDLORD
27. (A) If Landlord or a successor in interest is an individual (which
term as used herein includes aggregates of individuals, such as joint ventures,
general or limited partnerships or associations), such individual shall be under
no personal liability with respect to any of the provisions of this lease, and
if such individual hereto is in breach or default with respect to its
obligations under this lease, Tenant shall look solely to the equity of such
individual in the land and Building of which the Demised Premises form a part
for the satisfaction of Tenant's remedies and in no event shall Tenant attempt
to secure any personal judgment against any such individual or any partner,
employee or agent of Landlord by reason of such default by Landlord.
(B) The word "Landlord" as used herein means only the owner of the
landlord's interest for the time being in the land and Building (or the owners
of a lease of the Building or of the land and Building) of which the Premises
form a part, and in the event of any sale of the Building and land of which the
Demised Premises form a part, 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 without further agreement between the parties or between
the parties and the purchaser of the Premises, that such purchaser has assumed
and agreed to carry out any and all covenants and obligations of Landlord
hereunder.
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DEFAULT
28. (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 fifteen (15) 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 fifteen (15)
days and Tenant shall not commence within said period of fifteen (15) days, or
shall not thereafter diligently prosecute to completion, all steps necessary to
remedy such default; or
(iii) If Tenant 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 code 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 ninety (90) 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
code or any other present or future applicable federal, state or other statute
or law, such proceedings shall not have been dismissed, or if, within sixty (60)
days after the appointment or any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, such appointment shall not have been
vacated or otherwise discharged, or if any execution or attachment shall be
issued
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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 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 20;
then, upon the occurrence, at anytime 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 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 30.
(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 28(A), shall be deemed to mean any one or more of the
persons primarily or secondarily liable for Tenant's obligations under this
lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in said subsections (iii)
and (iv) shall be deemed paid as compensation for the use and occupation of the
Demised Premises and the acceptance of 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 28(A).
TERMINATION ON DEFAULT
29. (A) If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any
38
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 28:
(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, or by force or other means provided such force
or other means are lawful (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 shall use reasonable efforts to 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 re-entry by Landlord, or (iii) any expiration or termination of this
lease and the Demised Term,
39
whether such dispossess, re-entry, expiration or termination shall be by
operation of law or pursuant to the provisions of this lease. 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 proceeding 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
30. (A) If this lease and the Demised Term shall expire and come to an
end as provided in Article 28 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 29 or by or under any summary proceedings 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 29(A) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's reasonable expenses in
connection with the termination of this lease or Landlord's re-entry upon the
Demised Premises and with such reletting including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, reasonable attorneys'
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
40
month shall prejudice Landlord's rights 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. In no event shall Tenant be required to pay
duplicate damages under the provisions of Sections 30(A)(ii) and 30(A)(iii).
(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 30. 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 30(A) 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 28 and 29 of this lease 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 30(A).
SUMS DUE LANDLORD
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31. If Tenant shall default in the performance of any covenants on
Tenant's part to be performed under this lease, Landlord may immediately, or at
anytime thereafter, without notice, and without thereby waiving such default,
perform the same for the account of Tenant and at the expense 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 elects to 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. Any sum of money
(other than rent) accruing from Tenant to Landlord pursuant to any provisions of
this lease, including, but not limited to, the provisions of Schedule C, 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. In any
case in which the Rent or additional rent is not paid within ten (10) days of
the day when same is due, Tenant shall pay a late charge equal to 8-1/2 cents
for each dollar so due. This late payment charge is intended to compensate
Landlord for its additional administrative costs resulting from Tenant's failure
to pay in a timely manner and has been agreed upon by Landlord and Tenant as a
reasonable estimate of the additional administrative costs that will be incurred
by Landlord as a result of Tenant's failure as the actual cost in each instance
is extremely difficult, if not impossible, to determine. This late payment
charge will constitute liquidated damages and will be paid to Landlord together
with such unpaid amounts. The payment of this late payment charge will not
constitute a waiver by Landlord of any default by Tenant under this lease.
NO WAIVER
32. 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
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to accept the keys of the 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 Tenant shall at any time desire 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, except where such loss or damage is caused by the
negligence of Landlord or its agents . The failure of Landlord to seek redress
for violation of, or to insist upon the strict performance of, any covenants or
conditions 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 wavier 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 then the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or any letter accompanying any check or payment of
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.
WAIVER OF TRIAL BY JURY
33. 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. The provisions of the foregoing sentence shall survive
the expiration or any sooner
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termination of the Demised Term. If Landlord commences any summary proceeding
for nonpayment, Tenant agrees not to interpose any counterclaim of whatever
nature or description in any such proceeding or to consolidate such proceeding
with any other proceeding.
Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the Demised Premises, by reason of the violation by Tenant of any
of the covenants and conditions of this lease or otherwise.
NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications (other than
bills, statements or notices given in the regular course of business) given or
required to be given under this lease shall be effective only if rendered or
given in writing, sent by regular, registered or certified mail (return receipt
requested), addressed (A) to Tenant (i) at Tenant's address set forth in this
lease if mailed prior to Tenant's taking possession of the Demised Premises, or
(ii) at the Building 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, Attention: Chief Financial Officer,
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 bills, statements,
notices, demands, requests or other communications shall be deemed to have been
rendered or given on the date when it shall have been mailed as provided in this
Article. A copy of any bills, statements, notices, demands, requests or other
communications sent to Tenant (other than bills, statements or notices given in
the regular course of business) shall also be sent, as a courtesy only, to
Frances R. Zujkowski, Esq., Koerner Silberberg & Weiner, LLP, 112 Madison
Avenue, Third Floor, New York, New York 10016-7424.
INABILITY TO PERFORM
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35. (A) If, by reason of strikes or other labor disputes, fire or other
casualty, 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 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.
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 for a reasonable period of time when
necessary by reason of accident or emergency, or for repairs, alterations or
replacements, which, in the judgment of Landlord are desirable or necessary,
until such repairs, alterations or replacements 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
(C) (i) In addition to the requirements for constructive eviction
imposed by law, Tenant shall not be entitled to claim a constructive eviction
from the Demised Premises unless
45
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.
(ii) Subject to the provisions of Articles 2 and 5 of 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
Premises have not been sufficiently completed to make the Premises 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.
TENANT'S TAKING POSSESSION
(D) (i) Except for punchlist items as set forth in Article 2 hereof,
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
the such date Tenant shall have given written notice to Landlord specifying the
respects in which the same were not in such condition.
(ii) 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, subject
to the three (3) month rent abatement as provided in Article 2 herein.
SUBSTITUTED PREMISES
36. [INTENTIONALLY OMITTED.]
ENTIREMENT AGREEMENT
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37. This lease (including the Schedules and Exhibits annexed hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged herein. Tenant hereby acknowledges that neither Landlord
nor Landlord's agent or representative has made any representations or
statements, or promises, 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
38. 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 or Federal Government as legal holidays. The terms
"person" and "persons" as used in this lease shall be deemed to include natural
persons, firms, corporations, partnerships, associations and any other private
or public entities, whether any of the foregoing are acting on their behalf or
in a representative capacity. The various terms which are defined in other
Articles of
47
this lease or are defined in Schedules or Exhibits annexed hereto, shall have
the meanings specified in such other Articles, Exhibits and Schedules for all
purposes of this lease and all agreements supplemental thereto, unless the
context clearly indicates the contrary.
PARTNERSHIP TENANT
39. If Tenant is a partnership (or is comprised of two (2)or more persons,
individually or 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 or as co-partners of a partnership) pursuant to Article 20 (any
such partnership and such persons are 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 and 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.
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40. The terms, 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.
BROKER
41. Landlord and Tenant represent that this lease was brought about by
Sutton & Edwards, Inc. as broker and all negotiations with respect to this lease
were conducted exclusively with said broker. Landlord and Tenant agree that if
any claim is made for commissions by any other broker through or on account of
any acts of Landlord or Tenant, Landlord or Tenant will hold each other free and
harmless from any and all liabilities and expenses in connection therewith,
including the respective party's reasonable attorney's fees. Landlord agrees to
pay Sutton & Edwards, Inc. a commission pursuant to separate agreement.
49
CAPTIONS
42. The captions in this lease 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.
NOTICE OF ACCIDENTS
43. Landlord and Tenant shall give each other notice, promptly after such
party learns thereof, of (i) any accident in or about the Premises, (ii) all
fires and other casualties within the Premises, (iii) all damages to or defects
in the Premises, including the fixtures, equipment and appurtenances thereof for
the repair of which Landlord might be responsible, and (iv) all damage to or
defects in any parts or appurtenances of the Building's sanitary, electrical,
heating, ventilating, air-conditioning and other systems located in or passing
through the Premises or any part thereof.
TENANT'S AUTHORITY TO ENTER LEASE
44. In the event that the Tenant hereunder is a corporation, Tenant
represents that the officer or officers executing this lease have the requisite
authority to do so. Landlord represents that the officer or officers executing
this lease have the requisite authority to do so.
RENEWAL OPTION
45. The Tenant shall have the right to be exercised as hereinafter
provided, to extend the term of this lease for one period of five (5) years (the
"Renewal Term") upon the following terms and conditions:
(A) That at the time of the exercise of such right and at the commencement
of the Renewal Term, Tenant shall not be in default beyond applicable notice and
cure periods provided herein for the cure thereof in the performance of any of
the terms, covenants or conditions which Tenant is required to perform under
this lease.
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(B) That Tenant shall notify Landlord in writing that Tenant intends to
exercise this option at least twelve (12) months prior to the termination of the
initial term set forth in Article 2 of this lease.
(C) That the Renewal Term shall be upon the same terms, covenants and
conditions as in this lease provided, except that (a) there shall be no further
option to extend this lease beyond the one (1) Renewal Term referred to above;
(b) the Premises shall be delivered in its then "as is" condition; and (c) the
Rent to be paid by Tenant during the Renewal Term shall be as follows:
During the first year of the Renewal Term, the Rent shall be the then fair
market annual minimum rent being received by Landlord for comparable space in
the Building, but in no event less than the Rent required to be paid by Tenant
during the first month of the last year of the Term of this lease annualized.
Said sum shall be payable in equal monthly installments.
During each of the second through fifth years of the Renewal Term, the Rent
shall be increased by three and one-half (3 1/2%) percent per annum over the
Rent payable for the prior year. Said sums shall be payable in equal monthly
installments.
"Fair market annual minimum rent" shall mean the rate Landlord generally
receives or that is received for comparable space in the Building. Fair market
annual minimum rent shall not mean "net effective rent to Landlord". In
determining fair market annual minimum rent, no adjustment shall be made in
consideration of and Tenant shall not be entitled to a credit for Tenant
improvements, brokerage commissions, rent concessions and other concessions
which Landlord may typically offer to other tenants.
This Renewal Option is personal to Assessment Solutions, Inc. and is non-
transferable by operation of law or otherwise, except as permitted under Article
20(C) herein.
RIGHT OF FIRST REFUSAL
46. Tenant shall have the right ("First Offer Right") to lease any space
that becomes available for lease in the Building during the first twelve (12)
months of the term of this Lease (each an "Additional Space"). In the event
that Landlord proposes to lease any Additional Space, Landlord shall notify
Tenant of the space to be offered (a "First Offer Notice"). Within five (5)
business days after receipt of the First Offer Notice by Tenant,
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Tenant may elect by notice to Landlord, to lease the Additional Space on the
date that is ten (10) days after delivery of the Additional Space to Tenant in
its "as is" condition. The Additional Space will be added to the Premises
(collectively, "Combined Premises") under this lease on the same terms and
conditions as the Premises pursuant to a lease modification agreement, except
that Tenant's "Proportionate Share" shall be equal to a fraction, the numerator
of which shall be the total number of rentable square feet contained in the
Combined Premises, as then constituted, and the denominator of which shall be
the total rentable square footage in the Building. Should Tenant fail to
exercise this right within the time and in the manner required above, or waive
such right in writing, Landlord may lease the Additional Space to a third party
without further obligations to Tenant including the obligation to notify Tenant
of additional space that may become available during such initial twelve (12)
month period.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
Witness for Landlord: 320 EXPRESSWAY ASSOCIATES
__________________________ By:_______________________
Witness for Tenant: ASSESSMENT SOLUTIONS
INCORPORATED
__________________________ By:_______________________
52
STATE OF NEW YORK )
) ss.:
COUNTY OF )
On this day of , 1995, before me personally came
to me known, who being by me duly sworn, did depose and say that he resides at
, that he is the of Assessment Solutions Incorporated, the
corporation described in and which executed the foregoing instrument as
"Tenant"; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
_______________________________
Notary Public
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SCHEDULE "A"
(See Attached)
54
SCHEDULE "B"
LANDLORD'S CLEANING SERVICES AND MAINTENANCE OF PREMISES
(to be performed on all business days except those which are union holidays for
the employees performing cleaning services and maintenance in the Building and
grounds or those days in which the Building is closed)
I. CLEANING SERVICES - PUBLIC SPACES:
A. Floor of entrance lobby and public corridors will be vacuumed or swept and
washed nightly and waxed as necessary.
B. Entranceway glass and metal work will be washed and rubbed down daily.
C. Wall surfaces will be kept in polished condition.
D. Lighting fixtures will be cleaned and polished annually. Bulbs will be
replaced as needed.
E. Exterior surfaces and all windows of the building will be cleaned
quarterly.
II. CLEANING SERVICES - TENANT SPACES:
A. Floors will be swept and spot cleaned nightly. Carpets will be swept daily
with carpet sweeper and vacuumed weekly.
B. Office equipment, telephones, etc. will be dusted nightly.
C. Normal office waste in receptacles and ashtrays will be emptied nightly.
D. Interior surface of windows and sills will be washed and blinds dusted
quarterly.
E. There shall be regularly scheduled visits by a qualified exterminator.
F. Restrooms, the locker room, shower and kitchen will be washed and
disinfected once a day. The floors will be mopped as many times as required.
All brightwork and mirrors will be kept in
55
polished condition. Dispensers will be continuously checked and receptacles
continuously emptied.
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III. EXTERIOR SERVICES:
A. Parking fields will be regularly swept, cleared of snow in excess of two
inches, and generally maintained so as to be well drained, properly surfaced and
striped.
B. All landscaping, gardening, exterior lighting and irrigation systems will
have regular care and servicing.
IV. EQUIPMENT SERVICE:
A. All air-conditioning and heating equipment will be regularly serviced and
maintained.
B. Plumbing and electrical facilities, doors, hinges and locks will be
repaired as necessary.
V. EXTRA CLEANING SERVICES
Tenant shall pay to Landlord, on demand, Landlord's charges for (a) cleaning
work in the Premises required because of (i) misuse or neglect on the part of
Tenant or its employees or visitors, (ii) use of portions of the Premises for
preparation, serving or consumption of food or beverages, or other special
purposes requiring greater or more difficult cleaning work than office areas;
(iii) unusual quantity of interior glass surfaces; (iv) non-building standard
materials or finishes installed by Tenant or at its request; (v) increases in
frequency or scope in any item set forth in Schedule B as shall have been
requested by Tenant; and (b) removal from the Premises and Building of (i) so
much of any refuse and rubbish of Tenant as shall exceed that normally
accumulated in the routine of ordinary business office activity and (ii) all of
the refuse and rubbish of any eating facility requiring special handling (wet
garbage).
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SCHEDULE "C"
1. Landlord shall have full and unrestricted access to all air-
conditioning and heating equipment, and to all other utility installations
servicing the Building and the Demised Premises. Landlord reserves the right
temporarily to interrupt, curtail, stop or suspend air-conditioning and heating
service, and all other utilities, or other services, because of Landlord's
inability to obtain, or difficulty or delay in obtaining, labor or materials
necessary therefor, or in order to comply with governmental restrictions in
connection therewith, or for any other cause beyond Landlord's reasonable
control. No diminution or abatement of Rent, additional rent, or other
compensation shall be granted to Tenant, nor shall this Lease or any of the
obligations of Tenant hereunder be affected or reduced by reason of such
interruptions, stoppages or curtailments, the causes of which are hereinabove
enumerated, nor shall the same give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction from the
Demised Premises, unless such interruptions, stoppages or curtailments have been
due to the arbitrary, willful or negligent act, or failure to act, of Landlord
or its agents.
2. Telephone and service shall be the responsibility of Tenant. Tenant
shall make all arrangements for telephone service with the company supplying
said service, including the deposit requirement for the furnishing of service.
Landlord shall not be responsible for any delays occasioned by failure of the
telephone company to furnish service.
3. At Landlord's option, it shall furnish and install all lighting tubes,
bulbs and ballasts used in the Premises and Tenant shall pay Landlord's
reasonable charges therefor, on demand, as additional rent.
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SCHEDULE "D"
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the Demised Premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the public
hall of the building, either by any Tenant or by jobbers or others in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Tenant shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the building, and the
Tenant shall not use, keep or permit to be used or kept any noxious gas or
substance in the Demised Premises, or permit or suffer the Demised Premises to
be occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be kept in or about the Building. Smoking or
carrying lighted cigars or cigarettes in the elevators of the Building is
prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of the Landlord.
5. Except as otherwise provided in Paragraph 18 herein, no sign,
advertisement, notice or other lettering and/or window treatment shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the Demised Premises or the Building or on the inside of the Demised
Premises if the same is visible from the outside of the Demised Premises without
the prior written consent of the Landlord. In the event of the violation of the
foregoing by any Tenant, Landlord may remove same without any liability, and may
charge the expense incurred by such removal to Tenant or Tenants violating this
rule. Interior signs on doors and
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directory tables shall be inscribed, painted or affixed for each Tenant by
Landlord at the expense of such Tenant, and shall be of a size, color and style
acceptable to Landlord.
6. No Tenant shall mark, paint, drill into, or in any way deface any part
of the Demised Premises or the Building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. No tenant shall lay linoleum
or other similar floor covering so that the same shall come in direct contact
with the floor of the Demised Premises and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other water soluble material, the
use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or in the mechanisms thereof. Each Tenant must, upon the termination of
his tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant, and in the event of
the loss of any keys, so furnished, such Tenant shall pay to Landlord the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises only
through the service entrances and corridors, and only during hours and in a
manner approved by Landlord. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of these Rules and Regulations or the lease of which these
Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Landlord reserves the right to exclude from the building between the
hours of 6:00 P.M. and 8:00 A.M. and at all hours on Sundays and legal holidays,
all persons who do not present a pass to the building signed by Landlord.
Landlord will furnish passes to persons for whom any Tenant requires same in
writing. Each Tenant shall be responsible for all persons for whom he requires
such a pass and shall be liable to Landlord for all acts of such persons.
11. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office
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building, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
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12. Tenant shall not bring or permit to be brought or kept in or on the
Premises, any inflammable, combustible, hazardous or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors, to permeate in or
emanate from the Premises.
13. Tenant agrees to keep all entry doors closed at all times and to abide
by all rules and regulations issued by the Landlord with respect to such
services.
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