EXHIBIT 10.16
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LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE.
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Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Prepared By:
THE LAW OFFICES OF
XXXXXX & XXXX, LLP
000 XXXXXXX XXXXXX
XXXXX 000
XXXXXX XXXX, XXX XXXX 00000
(000) 000-0000
TABLE OF CONTENTS
ARTICLE 1 - DEMISE; TERM . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE 2 - RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE
CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE 4 - USE OF DEMISED PREMISES. . . . . . . . . . . . . . . . . . . . . .7
ARTICLE 5 - POSSESSION AND CONDITION OF DEMISED PREMISES . . . . . . . . . . .8
ARTICLE 6 - UTILITIES, CLEANING, ETC.. . . . . . . . . . . . . . . . . . . . .9
ARTICLE 7 - REPAIR AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 8 - THE WORK; LESSEE'S ALTERATIONS . . . . . . . . . . . . . . . . . 13
ARTICLE 9 - COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 10 - RIGHTS RESERVED TO LESSOR . . . . . . . . . . . . . . . . . . . 14
ARTICLE 11 - INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 12 - DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 13 - CURING DEFAULT'S; FEES AND EXPENSES . . . . . . . . . . . . . . 17
ARTICLE 14 - DEFAULT PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT. . . . . . . . . . . . . 20
ARTICLE 16 - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 17 - MECHANICS AND OTHER LIENS . . . . . . . . . . . . . . . . . . . 22
ARTICLE 18 - CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 19 - COVENANT OF QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . 23
ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL . . . . . . . . . . . . . 23
ARTICLE 21 - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING . . . . . . . . . . . . 24
ARTICLE 23 - RIGHTS CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 24 - CONVEYANCE; LIABILITY OF PARTIES. . . . . . . . . . . . . . . . 25
ARTICLE 25 - CHANGES AND ALTERATIONS BY LESSEE . . . . . . . . . . . . . . . 26
ARTICLE 26 - CERTIFICATE OF LESSEE . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 27 - ASSIGNMENTS, SUBLEASES AND MORTGAGES. . . . . . . . . . . . . . 27
ARTICLE 28 - SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY . . . . . . . . . . . . 30
ARTICLE 30 - RENEWAL TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 31 - FIBER OPTIC NETWORK SERVICES. . . . . . . . . . . . . . . . . 32
ARTICLE 32 - BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 33 - SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 34 - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 35 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 37
LIST OF EXHIBITS TO LEASE
EXHIBIT "A" THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY
EXHIBIT "B" THE FLOOR PLANS OF THE DEMISED PREMISES
EXHIBIT "C" BUILDING RULES AND REGULATIONS
EXHIBIT "D" CLEANING SPECIFICATIONS
EXHIBIT "E" THE PLANS FOR THE WORK
EXHIBIT "F" THE PARTIES FINANCIAL CONTRIBUTIONS FOR THE WORK
EXHIBIT "G" STANDARD REQUIREMENTS FOR ALTERATIONS TO BE PERFORMED BY
LESSEES
AGREEMENT OF LEASE, dated as of March 9, 1998, between CONNECTICUT GENERAL
LIFE INSURANCE COMPANY, having an office at 000 Xxxxxxx Xxxxx Xxxx, X-000,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000 (hereinafter referred to as "Lessor") and
METROMEDIA FIBER SERVICES INC., a Delaware corporation, with offices at 000 Xxxx
00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Lessee");
W I T N E S S E T H
WHEREAS, Lessor is the owner in fee simple absolute of the land and all the
improvements erected thereon and more particularly described in EXHIBIT "A"
annexed hereto (the "Property");
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to hire from
Lessor: (i) a portion of the Fourth (4th) floor in the Building (as hereinafter
defined) located on the Property and which shall be deemed to consist of
approximately Fifteen Thousand, Sixty-One (15,061) rentable square feet
(hereinafter referred to as the "Initial Premises") as more particularly
described on the floor plans annexed hereto as EXHIBIT "B" and made a part
hereof, and (ii) a portion of the Fourth (4th) floor in the Building located on
the Property adjacent to the Initial Premises and which shall be deemed to
consist of approximately Six Thousand, Two Hundred and Seventy-Five (6,275)
rentable square feet (hereinafter referred to as the "Additional Premises") as
more particularly described on the floor plans annexed hereto as EXHIBIT "B-1"
and made a part hereof. The Initial Premises and Additional Premises shall be
deemed to consist of Twenty-One Thousand, Three Hundred and Thirty-Six (21,336)
rentable square feet and are hereinafter sometimes referred to collectively as
the "Demised Premises;"
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to hire from
Lessor all that certain personal property presently located in the Demised
Premises more particularly described on schedule annexed hereto as EXHIBIT "B-2"
and made a part hereof (the "Personal Property") as of the Initial Premises
Commencement Date and Additional Premises Commencement Date, as the case may be;
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions and agreements hereinafter set forth Lessor and Lessee agree as
follows:
ARTICLE 1 - DEMISE; TERM
SECTION 1.01.A. Lessor, in consideration of the rents hereinafter reserved
and of the terms, covenants, conditions and agreements herein contained on the
part of Lessee to be paid, observed and fulfilled, does hereby demise and lease
the Demised Premises to Lessee and Lessee hereby hires the same from Lessor;
subject to all present and future zoning ordinances, laws, regulations,
requirements and orders, including building restrictions and regulations, and
all other present and future ordinances, laws, regulations, requirements and
orders of all departments, boards, bureaus, commission and bodies, of any
municipal, county, state or federal governments now or hereafter having or
acquiring jurisdiction of the Demised Premises; Taxes (as hereinafter defined)
not yet due and payable; all other present and future covenants, easements and
restrictions affecting the Property and the Demised Premises and the revocable
nature of any restriction, easement, agreement, ordinance or right affecting the
Property and the Demised Premises.
B.1. The Initial Premises are Demised and leased unto Lessee, its permitted
successors and assigns, for a term ("Term") commencing on the Initial Premises
Commencement Date (as hereinafter defined) and expiring at noon on the last day
("Expiration Date") of the first full month in which the Fifth (5th) anniversary
of the Initial Premises Commencement Date falls, unless the same shall sooner
terminate pursuant to any of the terms, covenants, conditions or agreements of
this Lease or pursuant to law or be extended pursuant to the provisions of
Article 30 hereof.
2. The Additional Premises are demised and leased unto Lessee, its
permitted successors and assigns, for a term commencing on the Additional
Premises Commencement Date (as hereinafter defined) and expiring at noon on the
Expiration Date, unless the same shall sooner terminate pursuant to any of the
terms, covenants, conditions or agreements of this Lease or pursuant to law or
be extended pursuant to the provisions of Article 30 hereof.
SECTION 1.02.A. As used herein, the term "Initial Premises Commencement
Date" shall mean the date which is the sooner of: (i) the date that the Initial
Premises Work (as hereinafter
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defined) is substantially completed (in accordance with the provisions of
Section 34.02(e) hereof), and (ii) the date which is such number of days prior
to the Initial Premises Commencement Date as shall equal the number of days, if
any, by which commencement or performance of the Initial Premises Work shall
have been delayed by reason of Lessee's Delays (as hereinafter defined).
B. As used herein the term "Additional Premises Commencement Date" shall
mean the date which is the later of: (i) the date that the Additional Premises
Work (as hereinafter defined) is substantially completed (in accordance with the
provisions of Section 34.02(e) hereto, and (ii) the date which is such number of
days prior to the Additional Premises Commencement Date as shall equal the
number of days, if any, by which commencement or performance of the Additional
Premises Work shall have been delayed by reason of Lessee's Delays, or (iii)
September 1, 1998.
SECTION 1.03. Upon determination of the date which is the Initial Premises,
Commencement Date, the Additional Premises Commencement Date, and Expiration
Date, as provided in this Section 6, Lessee, upon the request of Lessor, shall
execute and deliver to Lessor a statement setting forth the Initial Premises
Commencement Date, Additional Premises Commencement Date and Expiration Date,
but the failure of Lessee to execute and deliver such statement shall not
detract from the effectiveness of any of the provisions of this Lease.
ARTICLE 2 - RENT
SECTION 2.01. Lessee shall pay to Lessor, or to such other person as Lessor
may from time to time designate, at the address specified in or pursuant to
Section 2.04, during the Term, fixed rent ("Fixed Rent"), over and above the
other and additional payments to be made by Lessee as hereinafter provided, as
follows:
A. During and in respect of the period from the Initial Premises
Commencement Date to the day preceding the Additional Premises Commencement
Date (both dates inclusive), an amount each year equal to Four Hundred and
Ten Thousand, Four Hundred and Twelve and 24/100 ($410,412.24) Dollars
payable in equal monthly installments of Thirty-Four Thousand, Two Hundred
and One and 02/100 ($34,201.02) Dollars; and
B. During and in respect of the period from the Additional Premises
Commencement Date to the Expiration Date (both dates inclusive), an amount
each year equal to Five Hundred and Eighty-One Thousand, Four Hundred and
Six and 00/100 ($581,406.00) Dollars payable in equal monthly installments
of Forty-Eight Thousand, Four Hundred and Fifty and 50/100 ($48,450.50)
Dollars.
SECTION 2.02. Fixed Rent shall be paid in equal monthly installments on the
first day of each and every month during the Term without any set off or
deduction whatsoever; PROVIDED, HOWEVER, that if Fixed Rent shall be payable for
any period prior to the first day of the first full month during the Term then
such Fixed Rent shall be paid in a proportionate amount for the number of days
in such period and paid as and when the first full monthly installment would be
payable had Lessee not prepaid such amount as provided for in the following
sentence. Notwithstanding the foregoing, Lessee shall pay the first full
monthly installment of Fixed Rent upon execution of this Lease.
SECTION 2.03. If Lessee shall fail to pay as and when due under this Lease
any License Fee or Additional Rent (as hereinafter defined), and such failure
shall not be remedied within the grace period (if any) applicable thereto under
this Lease, Lessor shall have all of the rights and remedies provided in this
Lease as in the case of default in the payment of the Fixed Rent, including any
rights available to Lessor at law or in equity. Except as otherwise
specifically provided in this Lease, the Fixed Rent, License Fee and Additional
Rent shall be paid without notice, demand, credit, abatement, deduction or
setoff of any kind whatsoever. The Fixed Rent, License Fee and Additional Rent
are sometimes referred to collectively herein as "Rent."
SECTION 2.04. Lessee shall pay the Rent to Lessor in lawful money of the
United States of America which shall be legal tender for all debts, public and
private, at the time of payment, at the office of Lessor set forth above, or to
such other person or persons and/or at such other place or places as Lessor may
designate from time to time by notice to Lessee. Such payments may be by check
of Lessee, subject to collection, payable to the order of Lessor or to such
other person or persons as Lessor may designate from time to time by notice to
Lessee; any such payment shall be deemed made upon receipt thereof, subject to
collection.
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SECTION 2.05. Any obligation of Lessee for payment of Rent which shall have
accrued with respect to any period during or prior to the Term shall survive the
expiration or termination of this Lease.
ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES
SECTION 3.01. As used herein:
A. "Lessor's Statement" shall mean an instrument containing a computation
of any Additional Rent payable by Lessee to Lessor pursuant to this Article.
B. "Common Area Maintenance Charges" shall mean all costs and expenses of
whatever kind or nature, whether or not herein specifically mentioned or now
contemplated, which are incurred by Lessor or Lessor's agents in connection with
the use, operation, repair or maintenance of the Building and/or Property,
including, but not limited to the following: (1) premiums and other charges for
insurance which Lessor is required or permitted to maintain hereunder including,
but not limited to, general comprehensive liability insurance covering bodily
injury, personal injury (including death), property damage, public liability,
non-hired automobile insurance, sign insurance, plate glass insurance and any
other insurance incurred by Lessor for the Building and/or Property; (2) costs
and expenses of performing repairs in or to the Building and/or Property and the
sidewalks and curbs adjacent thereto; (3) costs and expenses of performing
repairs, resurfacing of the parking lots and any adjacent facilities; (4) costs
and expenses of landscaping and maintaining the grounds of the Building and/or
Property; (5) costs and expenses of snow and ice removal and/or treatment; (6)
costs and expense of rubbish, garbage and other refuse removal; (7) fees and
disbursements payable to Xxxxxx X. Xxxxxxxx Inc. ("Ashforth") to furnish
management, repair, or other services regarding the Building and/or Property,
except that, in the case of any such person who is affiliated with Lessor, such
fees shall not exceed that which is customary or reasonable in the industry for
similar buildings in Westchester County; (8) fees and disbursements payable to
any person (other than "Ashforth") to furnish management, repair or other
services regarding the Building and/or Property, except that, to the extent that
such fees shall not exceed that which is customary or reasonable in the industry
for similar buildings in Westchester County; (9) cost and expenses of performing
repair and replacement of all structural walls, roofs, and plate glass doors and
windows, if any, which are not expressly made part of the Building, Property or
the Demised Premises; (10) cost of refurbishing the common areas and modernizing
and replacing equipment servicing the common areas, as is necessary, including
but not limited to regular painting of non-tenanted areas at the Building and/or
Property; (11) cost and expense of maintenance and repairs of the structural
elements of the Building and/or Property; (12) costs and expenses of performing
repair, maintenance and replacement of lighting and lighting fixtures to the
common areas; (13) repair, maintenance, and replacement, if necessary, of all or
any part of the sprinkler system installed in any part of the Building and/or
Property; (14) cost of utilities, such as electricity, water and sewer;
depreciation of the capital cost of all machinery, equipment (including on-site
sewage, lighting and power facilities) and vehicles used in connection with the
operation and maintenance of the common areas as determined by Lessor for
federal income tax purposes but utilizing the straight-line method of computing
depreciation and the normal useful lives; (15) costs and expenses of performing
repairs, maintenance and replacements of all heating, ventilating and air
conditioning equipment installed in any part of the Building, including but not
limited to that portion contained within the Demised Premises; (16) cost and
expense of performing repairs, maintenance and replacement, if necessary, of
utility lines, sanitary and storm sewer lines and culverts and drainage
facilities; (17) costs and expenses of providing and maintaining security, if
any; (18) costs and expenses of providing and maintaining traffic control, if
any; (19) labor costs and expenses of full time personnel employed at the
Property in connection with the operation of the Building including and below
the grade of building manager; (20) costs and expenses of providing holiday and
other decorations to the Building and/or Property; (21) costs and expenses of
performing repairs, maintenance and replacements of all elevators and escalators
in any part of the Building and/or Property; (22) cost and expense of providing
and maintaining xxxxxx and matron service at the Building and/or Property, if
any; (23) cost and expense of providing and performing cleaning and related
services; (24) cost and expense of providing window washing; (25) cost and
expense of all supplies; (26) wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting service and
maintenance employees of Lessor; (27) cost and expense of all uniforms and
working clothes for such employees and the cleaning thereof; (28) cost and
expense imposed on Lessor pursuant to law or to any collective bargaining
agreement with respect to such employees; (29) cost and expense of providing and
maintaining worker's compensation insurance, payroll, social security,
unemployment and other taxes now in effect
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or hereinafter imposed with respect to such employees; (30) cost of all sales,
utility and use taxes and other taxes of like import now in effect or
hereinafter imposed; (31) cost and expense of all maintenance and service
contracts for the Building and/or Property; (32) cost of all other normal
operating expenses of repair, operation, and maintenance of the Building and/or
Property; (33) cost and expense of providing and maintaining loading dock and
mail personnel, if any; (34) cost and expense of all professional and consulting
fees, including legal and audit fees and all costs and disbursements incurred in
connection therewith; (35) such cost and expenses shall be subject to Lessor's
overhead and administrative cost of Five (5%) percent; and (36) the cost of any
capital equipment or capital expenditures only to the extent provided for in
Section 3.0l.C. hereof; PROVIDED, HOWEVER, that the following items shall be
excluded from Common Area Maintenance Charges: (1) leasing commissions; (2) cost
of repairs or replacements incurred by reason of fire or other casualty (to the
extent the same is or would have been covered by insurance required to be
maintained by Lessor herein), or caused by the exercise of the right of eminent
domain (to the extent same is covered by any condemnation award) less any cost
incurred by Lessor in obtaining such insurance proceeds or condemnation award;
(3) costs incurred in performing work or furnishing services to or for
individual tenants (including Lessee) at such tenant's expense; (4) debt service
on any mortgages now or hereafter encumbering the Building and/or Property; (5)
the cost of performing or furnishing services for tenants at Lessor's expense,
to the extent that such work or service Lessor is obligated to furnish to or for
tenants at Lessor's expense; (6) the cost of attorneys' fees incurred in
connection with negotiating and drafting leases with tenants, or in connection
with disputes with tenants; (7) costs incurred in the sale or refinancing of the
Building and/or Property; (8) interest or penalties due to Lessor's violations
of law, (9) advertising and promotional expenses; (10) depreciation; and (11)
leasehold improvements made for tenants.
C.1. If Lessor shall purchase any item of capital equipment or make any
capital expenditure intended to result in savings or reductions in the Common
Area Maintenance Charges and which Lessor reasonably believes shall provide
Lessee with the benefit of a savings or reduction in such Common Area
Maintenance Charges based upon the advice of Lessor's consultants, then the
actual costs for same shall be included in the Common Area Maintenance Charges,
to the extent hereinafter set forth. Lessor shall deliver to Lessee, promptly
following Lessee's request, a copy of any concluded studies conducted by Lessor
which show anticipated savings or reductions in such Common Area Maintenance
Charges as a result of any planned capital expenditure or purchase of capital
equipment. The costs of capital equipment or capital expenditures shall be
included in the Common Area Maintenance Charges in the year in which the costs
are incurred and in any subsequent years, on a straight-line basis, to the
extent that such items are amortized over such period of time as reasonably can
be estimated at the time in which such savings or reductions in such Common Area
Maintenance Charges are expected to equal Lessor's costs for such capital
equipment or capital expenditure, with an interest factor equal to two percent
(2%) above the interest rate payable on United States Treasury securities having
a maturity comparable to the period of amortization at the time Lessor incurred
said costs. If Lessor shall lease any such item of capital equipment designed
to result in savings or reductions in any Common Area Maintenance Charges, then
the rentals and other costs paid pursuant to such leasing shall be included in
such Common Area Maintenance Charges for the year in which they were incurred.
2. If Lessor shall purchase any item of capital equipment or make any other
capital expenditure in order to comply with Legal Requirements, Insurance
Requirements or Environmental Laws (as those terms are hereinafter defined) or
reasonably necessary in order to benefit or increase the safety and security of
the Building, Property, or its tenants and/or invitees, then the costs for same
shall be included in Common Area Maintenance Charges for the year in which the
costs are incurred and subsequent years, on a straight-line basis, amortized
over the useful life of such items, with an interest factor equal to two percent
(2%) above the interest rate payable on United States Treasury securities having
a maturity comparable to the useful life of such items at the time Lessor
incurred said costs. If Lessor shall lease any such item of capital equipment
to comply with Legal Requirements, Insurance Requirements, Environmental Laws or
to increase safety and security then, in such event, the rentals and other costs
paid pursuant to such leasing shall be included in Common Area Maintenance
Charges for the year in which they were incurred.
3. If during all or part of any year, including calendar year 1998, (i)
less than ninety-five percent (95%) of the leasable space in the Building is
occupied by tenants or occupants or (ii) Lessor shall furnish any particular
item(s) of work or service (which would constitute a Common Area Maintenance
Charge hereunder) to less than ninety-five percent (95%) of the leasable
portions of the Building or to only a portion of the Property, due to the fact
that less than ninety-five percent (95%) of the leasable portions of the
Building are occupied, or because such item of work or service is not required
or desired by the tenant of such portion, or such tenant is itself obtaining and
providing such item of work or service, or for other reasons, then, for the
purposes
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of computing the Additional Rent payable hereunder, the amount of Common Area
Maintenance Charges or the amount of the expenses attributable to such item as
the case may be, for such period shall be deemed to be increased by an amount
equal to the additional costs and expenses which would reasonably have been
incurred during such period had the Building been at least ninety-five percent
(95%) occupied or had Lessor furnished such item of work or services to such
other portions of the Building or the Property.
X. Xxxxxx shall have the absolute right, at all times during the Term and
any Renewal Term (as hereinafter defined) to increase, reduce, alter or
otherwise modify the way in which it uses, operates, repairs, or maintains the
Building and/or the Property and the cost thereof. Nothing contained herein
shall require Lessor to incur or provide any particular service or charge in
connection with its use, operation, repair or maintenance of the Building and/or
Property, it being agreed and understood that the items described in Section
3.0l.B. are by way of illustration only and shall not obligate Lessor thereto,
except that Lessor shall maintain the Building and Property as a first class
office building located in Westchester County, New York.
E. The term "Taxes" shall mean all such taxes, assessments, use and
occupancy taxes in respect of this Lease and any subleases made hereunder, water
and sewer charges, rates and rents, water and other meter charges and all such
other charges, taxes, levies and sums of every kind or nature whatsoever,
general and special, extraordinary as well as ordinary, whether or not now
within the contemplation of the parties, as shall or may during or in respect of
the Term (or any period prior to the Term for which Fixed Rent is payable) be
assessed, levied, charged or imposed upon or become a lien on the Property,
Building, or Demised Premises, or any part thereof, or anything appurtenant
thereto, or the sidewalks, streets or roadways in front of, adjacent to or
appurtenant to the Property, Building or Demised Premises (and which have a
basis related in any way to the Property, Building, or Demised Premises and/or
the use or manner of use thereof), or which, if imposed on Lessee or in respect
of the Property, Building or Demised Premises and if not paid by Lessee, would
be collectible from Lessor, or which have been so assessed, levied, charged or
imposed prior to the Term (but, in the last-mentioned case, only with respect to
a period falling within the Term); PROVIDED, HOWEVER, that, except if and to the
extent otherwise provided in the succeeding sentence, "Taxes" shall not mean
federal, state or local income taxes, franchise, excise, gift, transfer, capital
stock, estate, succession or inheritance taxes or penalties or interest for late
payment of any tax in respect of which Lessee shall have duly made payment of
Additional Rent as herein provided. If, at any time during the Term, the
methods of taxation prevailing at the commencement of the Term shall be altered
so that, in lieu of or as a substitution in whole or in part for the taxes,
assessments, levies, impositions or charges now or hereafter levied, assessed or
imposed on real estate and the improvements thereon, shall be levied, assessed
or imposed any tax or other charge on or in respect of the Property, Building
and/or Demised Premises or the rents, income or gross receipts of Lessor
therefrom (including any county, town, municipal, state or federal levy), then
such tax or charge shall be deemed a Tax, but only to the extent that such Tax
would be payable if the Property, Building or Demised Premises, or the rent,
income or gross receipts received therefrom, were the only property of Lessor
subject to such Tax, and Lessee shall pay and discharge the same as herein
provided in respect of the payment of Taxes.
F. The term "School Tax Base" shall mean the amount of Taxes as hereinabove
defined, imposed, levied, assessed and/or collected on the Property, for the
1997/1998 School Tax and "Town Tax Base" shall mean the amount of Taxes as
hereinabove defined, imposed, levied, assessed and/or collected on the Property
for the 1998 Town, County and State Tax.
G. The term "School Tax Year" shall mean each period of twelve (12)
consecutive months commencing as of the first day of January of each such
period; and "Town Tax Year" shall mean each period of twelve (12) consecutive
months commencing as of the first day of January of each such period, in which
any part of the term of this Lease shall occur, or such other periods of twelve
(12) months as may be adopted as the fiscal year for real estate tax purposes.
SECTION 3.02.A. Lessee shall pay to Lessor, as Additional Rent, during or
in respect of the period from the Commencement Date to the Expiration Date (both
dates inclusive) for each School Tax Year and Town Tax Year or portion thereof,
its proportionate share ("Lessee's Proportionate Share," as hereinafter defined)
of increases in Taxes which will be imposed, levied, assessed or collected on
the Property, and/or Building of which the Demised Premises are a part, for such
School Tax Year and/or Town Tax Year, as the case may be, over the respective
tax bases regardless of whether such increase results from a higher tax rate
and/or an increase in the assessed valuation of either the Property or Building
or any other tax. Reasonable fees and expenses, if any, incurred in obtaining
any reduction in assessed valuation from the tentative
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assessment to the final assessment shall also be considered an increase in Taxes
for the purpose of this provision. Such payments shall be made by Lessee as
Additional Rent in equal monthly installments during the applicable tax year
together with the payment of Fixed Rent. Copies of tax bills applicable to the
School Tax Base and the Town Tax Base, as the case may be, and to any such
applicable tax year shall be made available by Lessor for inspection by Lessee
during normal business hours. In the event of any reduction in Taxes after
final assessment and with respect to which Lessee has paid its proportionate
share, any such reduction, less fees and expenses incurred to obtain such
reduction shall be refunded in proportionate amounts to Lessee.
B. If Lessor obtains a reduction of either the School Tax Base or Town Tax
Base by final determination of legal proceedings or otherwise, then: (i) the
School Tax Base or Town Tax Base shall be correspondingly revised, (ii) all Tax
payments theretofore paid or payable hereunder shall be recomputed on the basis
of such reduction, (iii) Lessee shall pay to Lessor as Additional Rent, within
thirty (30) days after receipt of a xxxx therefor, any deficiency between the
amount of such Tax payments theretofore computed and the amount thereof due as a
result of such recomputations and (iv) all future Tax payments shall be computed
using the revised School Tax Base and Town Tax Base.
SECTION 3.03.A. Lessee shall pay to Lessor, as Additional Rent, during or
in respect of the period from the Commencement Date to the Expiration Date (both
dates inclusive) for each calendar year or portion thereof, Lessee's
Proportionate Share of the increases in the Common Area Maintenance Charges over
the over the Base Common Area Maintenance Charges (as hereinafter defined).
Such payments shall be made by Lessee as Additional Rent in equal monthly
installments during the applicable calendar year together with the payment of
Fixed Rent.
B. The term "Base Common Area Maintenance Charges" shall mean the Common
Area Maintenance Charges in effect for the calendar year ending December 31,
1998.
SECTION 3.04.A. At any time hereafter and from time to time, Lessor may
furnish to Lessee a Lessor's Statement setting forth (i) Lessor's actual Common
Area Maintenance Charges (or any one or more items thereof) and/or actual Taxes
for a period which shall have expired and/or (ii) Lessor's reasonable estimate
of Common Area Maintenance Charges and/or Taxes for a succeeding period. Within
thirty (30) days next following rendition of each such Lessor's Statement,
Lessee shall pay to Lessor the entire amount, if any, shown on such Lessor's
Statement as being due with respect to any period which shall have expired. In
addition, Lessee shall pay to Lessor, on the first day of each month following
rendition of each such Lessor's Statement, on account of the estimated
Additional Rent thereafter payable, a proportionate sum of the total Additional
Rent shown upon such Lessor's Statement as being Lessor's reasonable estimate
for a succeeding period on an annual basis (it being agreed that Lessor's
estimate shall in any event be deemed reasonable if it is based on actual Common
Area Maintenance Charges (or any one or more items thereto and/or actual Taxes
for a period which shall have expired immediately prior thereto, so that one
month prior to the end of such period, Lessee's Proportionate Share of the
increase shall be paid in full, and Lessee shall continue to pay Additional Rent
on such basis until receipt of a subsequent Lessor's Statement. Such Additional
Rent shall be due and payable at the same time as each monthly installment of
Fixed Rent.
B. A reconciliation shall be made upon each Lessor's Statement as follows:
Lessee shall be debited with any Common Area Maintenance Charges and/or Taxes
payable as shown on such Lessor's Statement, and credited with the aggregate of
the total amount, if any, paid by Lessee in accordance with the provisions of
the preceding paragraph on account of the estimated Additional Rent, for the
period or item in question, and, within thirty (30) days next following
rendition of such Lessor's Statement, Lessee shall pay Lessor the amount of any
net debit balance shown thereon or Lessor shall apply against the next ensuing
installments of Fixed Rent the net credit balance shown thereon.
C. Without limiting the preceding provisions of Section 3.04, it is
understood that Lessor shall furnish a Lessor's Statement, for each calendar
year falling wholly or partially within the Term.
SECTION 3.05.A. Lessor's failure to render Lessor's Statements with respect
to any period shall not prejudice Lessor's fight to render a Lessor's Statement
with respect to that or any subsequent period. The obligations of Lessor and
Lessee under the provisions of this Article with respect to Additional Rent
shall survive the expiration or any sooner termination of the Term.
B. Each Lessor's Statement shall be conclusive and binding upon Lessee
unless within thirty (30) days after receipt of such Lessor's Statement, Lessee
shall notify Lessor that it disputes
Page 6 of 40
the reasonableness or correctness of Lessor's Statement, specifying the respects
in which Lessor's Statement is claimed to be unreasonable or incorrect. Pending
the determination of such dispute by agreement or otherwise, Lessee shall pay
Additional Rent in accordance with the applicable Lessor's Statement, and such
payment will be without prejudice to Lessee's position. If the dispute shall be
finally determined in Lessee's favor by a court of competent jurisdiction,
Lessor shall forthwith pay Lessee the amount of Lessee's overpayment of
Additional Rent resulting from compliance with Lessor's Statement. Lessor, upon
request of Lessee, shall either make available to Lessee such documentation as
may be in Lessor's possession to support a particular Common Area Maintenance
Charge or permit Lessee to examine relevant portions of Lessor's books and
records.
SECTION 3.06. Lessee shall pay and discharge, or cause to be paid and
discharged, the following items, regardless of to whom or how incurred, all
taxes and assessments, if any, which shall or may during the Term be charged,
levied, assessed or imposed upon, or become a lien upon, the personal property
of Lessee used in the operation of the Demised Premises and which if not paid by
Lessee, would be collectible from Lessor.
ARTICLE 4 - USE OF DEMISED PREMISES
SECTION 4.01.A. Subject to the provisions of this Article, Lessee shall
have the right to use the Demised Premises for general and executive office
purposes and for no other purposes (the "Permitted Use").
B. Provided that Lessee complies with all terms, covenants and conditions
of this Lease, Lessor agrees that Lessee shall have the right to install,
maintain, repair, remove and operate the Fiber Optic Network (as hereinafter
defined).
SECTION 4.02. Lessee shall not use or occupy the Demised Premises in any
manner or suffer or permit the Demised Premises or any part thereof to be used
in any manner, or do or suffer or permit anything to be done in the Demised
Premises, or bring anything into the Demised Premises or suffer or permit
anything to be brought into the Demised Premises, which would in any way do any
of the following: (a) violate any of the provisions of the Mortgage (as
hereinafter defined) or Superior Lease (as hereinafter defined); (b) violate any
Legal Requirements, Insurance Requirements or Environmental Laws (as such terms
are hereinafter defined); (c) make void or voidable any insurance policy then in
force with respect to the Demised Premises, Building or Property; (d) make
unobtainable from insurance companies authorized to do business in the State of
New York and rated by Best's Insurance Rating Service with a rating at least
equal to A:XII, at standard rates without any special premium or charge, any
fire or other casualty insurance with extended coverage, or rental, liability or
boiler insurance, or other insurance provided for in Section 11.01 or otherwise
may be required to be furnished by Lessor under the terms of the Mortgage or
Superior Lease with respect to the Demised Premises, Building or Property; (e)
cause physical damage to the Demised Premises, Building or Property, or any part
thereof, (f) constitute a public or private nuisance; (g) substantially impair
the appearance or character of the Demised Premises, Building or Property; (h)
discharge or cause the discharge of objectionable substances, fumes, vapors or
odors from the Demised Premises not otherwise in compliance with Legal
Requirements, Insurance Requirements and Environmental Laws; (i) cause Lessee to
default in the observance and performance of any of its other obligations to be
observed and performed under this Lease; (j) unreasonably interfere with the
effectiveness or accessibility of the utility, mechanical, electrical and other
systems installed or located anywhere at the Demised Premises, Building or
Property or (k) violate any of the Building's Rules and Regulations annexed
hereto as EXHIBIT "C," as same may be amended from time to time. Lessor agrees
that it shall enforce all of the Building's Rules and Regulations in a
nondiscriminatory manner.
SECTION 4.03. If any governmental license or permit shall be required for
the proper and lawful conduct of Lessee's business in the Demised Premises or
any part thereof, then Lessee, at its sole cost and expense, shall duly procure
and thereafter maintain such license or permit and submit the same to inspection
by Lessor. Lessee shall, at all times, comply with the terms and conditions of
each such license or permit, but in no event shall failure to procure and
maintain same by Lessee affect Lessee's obligations hereunder. Lessee shall not
use or occupy the Demised Premises, or suffer or permit anyone to use or occupy
the Demised Premises, in violation of any certificate of occupancy issued for
the Building or Property.
SECTION 4.04. Lessor shall obtain a certificate(s) of occupancy required
for Lessee's occupancy of the Demised Premises upon substantial completion of
Lessor's Work (as that term is hereinafter defined).
Page 7 of 40
SECTION 4.05. Lessee shall not place, or suffer, or permit anyone to place
a load upon any floor of the Building that exceeds the floor load per square
foot that such floor was designed to carry and which is allowed by certificate,
rule, regulation, permit or law, nor shall Lessee overload, or suffer, or permit
anyone to overload any wall, roof, land surface, pavement, landing or equipment
on the Demised Premises. For the purposes of this Lease the floor loads for the
Building are 100 pounds per square foot for the interior column bay and 80
pounds per square foot for the perimeter column bay.
SECTION 4.06. Lessee shall not use, or suffer, or permit anyone to use, on
or across the Demised Premises, Building or Property, any equipment having
caterpillar-type tracks or tires, or any other equipment which would be damaging
to the Demised Premises, Building or Property or any road surface or
blacktopping thereon.
SECTION 4.07.A. Lessee shall not release, discharge or dispose of, or
permit, or suffer any release, discharge or disposal of any Hazardous Material
at the Demised Premises in violation of any Environmental Law. Lessee shall not
permit or suffer the manufacture, generation, storage, transmission or presence
of any Hazardous Material over or upon the Demised Premises in violation of any
Environmental Law.
B. Lessee shall: (i) promptly, upon learning thereof, notify Lessor of any
violation of, or non-compliance with, potential violation of or non-compliance
with, or liability or potential liability under, any Environmental Law
concerning the Demised Premises, (ii) promptly make (and deliver to Lessor
copies to) all reports or notices that Lessee is required to make under any
Environmental Law concerning the Demised Premises and maintain in current status
all permits and licenses required under any Environmental Law concerning the
Demised Premises, (iii) immediately comply with any orders, actions or demands
of any Governmental Authority (as herein defined) with respect to the discharge,
clean-up or removal of Hazardous Materials at or from the Demised Premises due
to a breach of a covenant set forth in Section 4.07.A, (iv) pay when due the
cost of all environmental consultants, laboratory analysis, removal of,
treatment of, or the taking of any remedial action (including abatement and/or
disposal) with respect to, any Hazardous Material on the Demised Premises which
is required by an Environmental Law due to a breach of a covenant set forth in
Section 4.07.A, (v) keep the Demised Premises free of any lien imposed pursuant
to any Environmental Law in respect of a breach of a covenant set forth in
Section 4.07.A, (vi) from time to time, upon the request of Lessor, execute such
affidavits, certificates and statements concerning Lessee's knowledge and belief
concerning the presence of Hazardous Materials on the Demised Premises and (vii)
otherwise comply with all Environmental Laws concerning the Demised Premises.
SECTION 4.08. Lessor shall include Lessee's name on any Building directory
(except for the blue monuments located outside the Building) and on the front
entrance to the Demised Premises. Other than the foregoing, Lessee shall not
place or suffer to be placed or maintain any sign, awning or canopy upon or
outside the Demised Premises or in the Building; nor shall Lessee place any
sign, decoration, lettering or advertising matter of any kind without first
obtaining Lessor's written approval and consent in each instance. In the event
that Lessor gives its consent hereunder, all signs shall be of a size, color and
design as is approved in writing by Lessor and shall be installed where
designated by Lessor and maintained in good condition, repair and appearance at
all times, according to Lessor's standards and the laws of the municipality
having jurisdiction over such signs. If Lessor shall deem it necessary to
remove any sign in order to paint or to make any repairs, alterations or
improvements in or upon the Demised Premises or any part thereof, Lessor shall
have the right to do so, provided the same be removed and replaced at Lessor's
cost and expense unless having been occasioned by fault of Lessee. Lessor shall
have the right, with or without notice to Lessee, to remove any signs (paper or
otherwise) installed by Lessee in violation of this paragraph and to charge
Lessee the cost of such removal without liability to Lessee for such removal.
SECTION 4.09. No property, other than such as might normally be brought
upon or kept in the Demised Premises as incidental to the Permitted Use of the
Demised Premises, will be brought upon or kept in the Demised Premises.
ARTICLE 5 - POSSESSION AND CONDITION OF DEMISED PREMISES
SECTION 5.01. Lessee has inspected the Demised Premises and the state of
title thereto and, subject to Lessor's obligations under Section 8.01, Lessee
accepts the Demised Premises in their "AS IS" state and condition on the
Commencement Date and without any representation or warranty (except as
expressly set forth herein), express or implied, in fact or by law, by Lessor,
Page 8 of 40
and without recourse to Lessor, as to title thereto, the nature, condition or
usability thereof or as to the use or occupancy which may be made thereof.
SECTION 5.02. If delivery of possession to the Demised Premises to Lessee
is delayed by reason of Unavoidable Delays (as hereinafter defined), then this
Lease and the validity thereof shall not be affected thereby and Lessee shall
not be entitled to terminate this Lease, to claim actual or constructive
eviction, partial or total, or to be compensated for loss or injury suffered as
a result thereof, nor shall the same be construed in any way to extend the Term,
PROVIDED, HOWEVER, that, notwithstanding the provisions of Article 1, the
Commencement Date shall be deemed to occur only if and when possession of the
Demised Premises is made available to Lessee.
SECTION 5.03. The provisions of this Article shall be considered an express
provision to the contrary pursuant to New York REAL PROPERTY LAW Section 223-(a)
governing delivery of possession of the Demised Premises and any law providing
for such a contingency in the absence of such express agreement now or hereafter
enacted shall have no application in such case to the extent inconsistent with
this Lease.
ARTICLE 6 - UTILITIES, CLEANING, ETC.
SECTION 6.01.A. During the Term hereof and any Renewal Term, Lessor shall
furnish to Lessee, during Normal Working Hours as hereinafter defined: (a)
necessary elevator facilities; (b) heat to the Demised Premises when reasonably
necessary or otherwise required by law in accordance with the specifications
provided for in this Lease; (c) water for ordinary lavatory and drinking
purposes, but if Lessee uses or consumes water for any other purposes or in
unusual and excessive quantities in Lessor's reasonable judgment, Lessor may
install a water meter at Lessee's expense in good working order and repair to
register such water consumption and Lessee shall pay for water consumed in
excess of ordinary lavatory and drinking purposes as shown on said meter as
Additional Rent as and when bills are rendered; (d) air conditioning and/or
cooling; (e) ventilation; and (f) electricity for Building lighting and normal
Building equipment and other incidental equipment ("Utility Service").
B. The air conditioning and/or cooling system shall be designed to be
capable of maintaining inside conditions of not more than 78 degrees F when
outside conditions are not more than 89 degrees F dry bulb and 74 degrees F wet
bulb and a temperature of 70 degrees F when the outside temperature is 11
degrees F. The design capabilities of the system are based upon and limited to
the following conditions: (i) the occupancy does not exceed one (1) person for
each 000 xxxxxx xxxx xx xxxx; (ii) the total connected electrical load does not
exceed 5 xxxxx per square foot of installed ceiling area for all purposes,
including lighting and power; and (iii) proper use of window blinds to control
sunload. The system shall provide fresh air as per code requirements. If due
to use of the Demised Premises in a number exceeding the aforementioned
occupancy and electrical load criteria, or due to rearrangement of partitioning
after the initial preparation of the Demised Premises, interference with normal
operation of the air conditioning in the Demised Premises results, necessitating
changes in the air conditioning system servicing the Demised Premises, such
changes shall be made by Lessor upon written notice to Lessee and at Lessee's
sole cost and expense. Lessee agrees to keep all windows closed, and to lower
and close window coverings when necessary because of the sun's position whenever
the said air conditioning system is in operation, and Lessee agrees at all times
to cooperate fully with Lessor and to abide by all the regulations and
requirements which Lessor may prescribe for the proper functioning and
protection of the said air conditioning system. Lessor, throughout the Term,
shall have free and unrestricted access to any and all air conditioning
facilities in the Demised Premises.
C. Except as otherwise specifically provided for in this Lease, Lessor
represents that Lessee shall have access (by elevator) to the Demised Premises
Twenty-Four (24) hours a day, Seven (7) days a week.
X. Xxxxxx agrees that Lessee shall have the right to use the existing
supplemental air conditioning units located in the Demised Premises, which shall
be in working order on the Commencement Date. During the Term hereof and any
Renewal Term, Lessor shall furnish to Lessee condenser water ("Condenser Water")
serving not more than Five (5) tons of rated cooling capacity for use in
connection with the Supplemental Units serving the Demised Premises. Lessee
agrees to pay Lessor for all Condenser Water used in connection with the
Supplemental Units at the rate of One Hundred and Twenty-Five and 00/100
($125.00) Dollars per month, per rated ton of connected load (the "Condenser
Water Charge"), PROVIDED, HOWEVER, that in no
Page 9 of 40
event shall Lessor ever be obligated to provide Lessee with more than Five (5)
tons per hour of Condenser Water for use in connection with the Supplemental
Units.
SECTION 6.02. During the Term hereof and any Renewal Term, Lessor shall
furnish to Lessee cleaning services for the Demised Premises in accordance with
the Cleaning Specifications annexed hereto as EXHIBIT "D."
SECTION 6.03.A. If Lessee uses the Demised Premises outside Normal Working
Hours, Lessee agrees to pay to Lessor an overtime charge to cover Lessor's
actual expenses for electricity for lighting and normal Building Equipment (as
hereinafter defined) and other incidental equipment, extra building maintenance,
building employee overtime, furnishing water for lavatories, air cooling, heat,
ventilation, wear and tear, etc. caused by Lessee's overtime use ("Overtime
Services").
B.1. Lessor shall furnish such Overtime Services to Lessee as may be
required provided that (i) Lessee pays to Lessor as Additional Rent special
overtime charges (the "Overtime Charges") therefor, which is presently at the
rate of One Hundred and Seventy-Five and 00/100 ($175.00) Dollars per hour,
along with Lessee's next monthly installment of Fixed Rent if such service shall
have been finished to Lessee prior to the fifteenth (15th) day of the month or
along with the subsequent monthly installment of Fixed Rent if such service
shall have been furnished to Lessee after the fifteenth (15th) day of the month,
(ii) that Lessee's request shall be received by Lessor by not later than 2:00
P.M. on the day for which such required after hours service is requested (and by
not later than 2:00 P.M. on the day preceding any requested before-hours
service), (iii) that Lessor shall not be required to furnish such Overtime
Services to Lessee for more than twenty (20) hours in any one (1) week, and (iv)
the Building HVAC system is not then producing chilled water for future HVAC
use. Notwithstanding anything contained to the contrary in this Article 6,
Lessee shall not be required to pay Overtime Charges for intermittent use of the
Demised Premises outside Normal Working Hours, provided that such use shall not
be on a scale and of a frequency so as to constitute the regular operation of
Lessee's business outside Normal Working Hours. In no event, however, shall
Lessor be obligated to supply heating or air conditioning outside of Normal
Working Hours unless Lessee shall request and pay for the same as provided in
this Article 6.
2. Lessee agrees that the Overtime Charges and Condenser Water Charge may,
from time to time, be increased by Lessor, with not less than thirty (30) days
prior written notice to Lessee, if the rates at which Lessor purchases
electrical energy from the public utility corporation supplying electrical
current to the Building of which the Demised Premises are a part or shall be
increased, or the cost of supplying Condenser Water shall be increased, or any
tax is imposed upon Lessor's receipt from the sale or resale of electrical
energy or Condenser Water by any Federal, State or Municipal Authority, or any
charges incurred or taxes payable by Lessor in connection therewith shall be
increased. The Overtime Charges and Condenser Water Charge shall be increased
by an amount equal to the product of the respective hourly rate times the
percentage increase in the rates at which Lessor purchases electrical energy
from the public utility corporation as aforesaid, or the percentage increase in
the cost of producing Condenser Water, as the case may be.
SECTION 6.04.A. Lessee acknowledges and agrees that Lessor shall furnish
electrical current to Lessee for lighting, electrical appliances and/or office
equipment in the Demised Premises, including electrical current for the
Supplemental Units ("Electric Service") based on the method of including the use
thereof within the Fixed Rent and, accordingly, Lessee agrees that the Fixed
Rent provided for in Article 2 of this Lease has been increased to compensate
Lessor for supplying Electric Service on the basis of Two and 25/100 dollars
($2.25) per square foot per annum for each square foot contained in the Demised
Premises (hereinafter referred to as the "Base Charge") payable in equal monthly
installments commencing on the Commencement Date. By the execution of this
Lease, Lessee acknowledges and agrees that the Base Charge shall not be
contestable by Lessee at a future date and shall only be increased by Lessor at
a future date in accordance with this Section. Lessor will furnish electricity
to Lessee through presently installed electrical facilities, which Lessor
represents to be at least five (5) xxxxx of connected load per square foot of
installed ceiling area for all lighting and power purposes, for Lessee's
reasonable use.
B.1. Lessee shall make no substantial alterations or additions to the
initial lighting, electrical appliances or office equipment without first
obtaining written consent from Lessor (which consent shall not be unreasonably
withheld or delayed) in each instance. Lessor warrants that the electrical
facilities servicing the Demised Premises is in good working order and can
accommodate a normal office installation with associated office machinery and
equipment.
Page 10 of 40
Lessee agrees that at all times its use of Electric Service shall not exceed the
capacity or overload any of the central and appurtenant installations for
Electric Service including, but not limited to all wires, feeders, risers,
electrical boxes, switches, outlets, connections, and cables located in the
Property, Building, or Demised Premises or any other mechanical equipment spaces
located therein. Lessee's use of Electric Service shall not interfere with the
use thereof by other occupants of the Property, or Building and shall be of such
a nature, as determined by Lessor in its reasonable judgment and discretion, so
as not cause permanent damage or injury to the Demised Premises or the Building
of which the Demised Premises are a part, or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations, repairs or
expense, or interfere with or disturb other tenants or occupants.
2. If at any time prior to or during the Term or any Renewal Term of this
Lease, subject to the restrictions contained elsewhere in this Lease: (i) Lessee
installs substantial additional or substituted lighting, electrical appliances,
office equipment or otherwise increases its use of Electric Service in excess of
five (5) xxxxx of connected load per square foot of installed ceiling area for
all purposes, and/or; (ii) subject to the provisions of Article 8 of this Lease,
electrical feeders, risers, wiring or other electrical facilities serving the
Demised Premises shall be installed by Lessor, Lessee or others, on behalf of
Lessee or any person claiming through or under Lessee in addition to the
feeders, risers, wiring or other electrical facilities necessary to serve the
lighting fixtures, electrical appliances, office equipment and electrical
receptacles initially located in the Demised Premises; then the Fixed Rent shall
be increased by an amount determined by the electrical engineer selected by
Lessor who shall certify the amount of the Additional Rent to be increased in
writing to Lessor and Lessee. Following any such determination and
certification by the electrical engineer, this Lease shall automatically be
modified by increasing the Additional Rent by an amount equal to (i) the product
of the Base Charge times the percentage increase in Lessee's use of electrical
current over that for Lessee's initially installed lighting, electrical
appliances and office equipment and/or (ii) the product of the Base Charge times
the percentage increase in the potential additional electrical energy made
available to Lessee annually based upon the estimated capacity of such
additional electrical feeders, risers, wiring or other electrical facilities, as
the case may be. As evidence of such modification, such electrical engineer's
certification shall be delivered by Lessor to Lessee and also appended hereto.
Any such increase shall be effective as of the date of the first use by Lessee
of such additional service and retroactive to such date if necessary. In
addition, Lessee shall pay to Lessor, as Additional Rent, within ten (10) days
of the date of a notice therefor from Lessor, the total actual Cost (as
hereinafter defined) to Lessor of the additional electrical feeders, risers,
wiring, or other electrical facilities serving the Demised Premises.
C. If, at any time or times after the date of this Lease, the rates at
which Lessor purchases electrical energy from the public utility corporation
supplying electrical current to the Building of which the Demised Premises are a
part shall be increased, or any tax is imposed upon Lessor's receipt from the
sale or resale of electrical energy or gas or telephone service to Lessee by any
Federal, State or Municipal Authority, or any charges incurred or taxes payable
by Lessor in connection therewith shall be increased, the Additional Rent shall
be increased by an amount equal to the product of the Base Charge times the
percentage increase in the rates at which Lessor purchases electrical energy
from the public utility corporation as aforesaid, over those rates in effect on
the date of the calculation of the Base Charge. Following any such rate
increase or other charge, this Lease shall automatically be modified by
increasing the Additional Rent for the remainder of the term hereof in
accordance with this Subsection and, as evidence of such modification,
documentation of such rate increase or other charge shall be delivered by Lessor
to Lessee and also appended hereto. Any such increase in the Additional Rent
shall be effective as of the date of any such increase in cost or other charge
to Lessor and shall be retroactive to such date if necessary.
D. Notwithstanding anything contained to the contrary in this Article 6,
Lessor shall have the right, at its option, to conduct a survey of the Demised
Premises by an electrical engineer of Lessor's choosing at any time during the
term of this Lease in order to determine Lessee's actual use of electrical
current therein. In the event that Lessor's survey provided for in the
preceding sentence shall indicate that Lessee's use of electrical current
exceeds five (5) xxxxx of connected load per square foot of installed ceiling
area for all purposes, Lessee, upon receipt of notice from Lessor, shall pay to
Lessor an increase in Fixed Rent equal to an amount determined by multiplying
the Base Charge times the percentage increase in Lessee's use of electrical
current over five (5) xxxxx of connected load per square foot of installed
ceiling area for all purposes. Any such increase shall be payable in accordance
with the terms of this Article 6 and shall be effective as of the date of
Lessee's first increased use of electrical current and shall be retroactive to
such date, if necessary.
Page 11 of 40
SECTION 6.05. Except as otherwise specifically provided for in this Lease,
Lessor reserves the right to temporarily stop, interrupt and/or suspend Utility
Service, and/or Electric Service when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgement of Lessor for as long as may be reasonably required by reason thereof.
The repairs, alterations, replacements or improvements shall be done with a
minimum of inconvenience to Lessee and Lessor shall pursue same with due
diligence.
SECTION 6.06. Except to the extent caused by the negligent or wilful acts
or on omissions of Lessor, its employees, agents or contractors, Lessor shall in
no way be liable for any loss, damage, or expense which Lessee may incur as a
result of the change, at any time, of the character or quality of Electric
Service, or Utility Service or any failure of or defect in Electric Service, or
Utility Service by reason of any public or private utility company then
supplying such service to the Property, Building or the Demised Premises and
Lessee agrees to hold the Lessor harmless and to indemnify it from and against
any loss, liability or damage in connection therewith. This indemnity shall
survive the expiration or other termination of this Lease.
ARTICLE 7 - REPAIR AND MAINTENANCE
SECTION 7.01.A. Subject to the provisions of Section 7.02 hereof, Lessee
shall, during the Term of this Lease and any Renewal Term, at Lessee's sole cost
and expense, take good care of, maintain and make all repairs (other than
structural) in the Demised Premises, and the fixtures and equipment therein and
appurtenances thereto, including but not limited to, the Supplemental Units,
internal doors and entrances, door checks, internal signs, floor covering,
interior walls, columns and partitions; and lighting, heating, hot water,
plumbing and sewerage facilities, sprinkler system and sprinkler heads located
within the Demised Premises and serve only the Demised Premises.
B. If Lessee refuses or neglects to maintain or make repairs or otherwise
fails to perform any of Lessee's repair or maintenance obligations hereunder,
Lessor shall have the right, but shall not be obligated, to make such repairs or
perform on behalf of and for the account of Lessee. All sums so paid by Lessor
in connection with the payment or performance by it or any of the obligations of
Lessee hereunder and all actual and reasonable costs, expenses and disbursements
paid in connection therewith or enforcing or endeavoring to enforce any right
under or in connection with this Lease, or pursuant to law, together with
interest thereon at the minimum legal rate from the respective dates of the
making of such payment, shall constitute Additional Rent payable by Lessee under
this Lease and shall be paid by Lessee to Lessor upon demand by Lessor. The
provisions of this Section shall survive the expiration or other termination of
this Lease.
SECTION 7.02.A. Lessor shall not be required to make any repairs or
improvements of any kind upon the Demised Premises except for necessary
structural repairs to the Building or for damage caused by a casualty or
Lessor's negligent or wilful acts or omissions, excluding Lessee's property.
Lessor shall during the Term of this Lease and any Renewal Term, maintain and
repair all common areas and other facilities in or about the Property and/or the
Building, exclusive of doors, door frames, door checks, windows and window
frames. Lessor shall have the right to construct, maintain and operate lighting
and other facilities on all said areas and improvements; to police the same; to
change the area, level, location and arrangement of parking areas and other
facilities; to build multistory parking facilities; to restrict parking by
Lessees, their officers, directors, agents and employees, to enforce parking
charges (by operation of meters and otherwise to the extent required by law);
and to close all or any portion of said areas or facilities to such extent as
may be legally sufficient to prevent a dedication thereof or the accrual of any
right to any person or the public therein; to close temporarily all or any
portion of the parking areas or facilities to discourage non-visitor parking.
Lessor shall operate and maintain the common areas in such manner as Lessor in
its discretion shall determine, and Lessor shall have full right and authority
to employ and discharge all personnel with respect thereto. If Lessor shall
designate an employee or lessee parking area or areas, Lessee and its employees
shall use only such areas for parking and Lessee shall cooperate fully with
Lessor in enforcing this covenant.
B. In the event that Lessor is unable or fails to provide Critical Services
(as hereinafter defined) which it is obligated to provide under this Lease
solely as a result of Lessor's negligence, wilful acts or omissions, and the
loss of such services causes all or part of the Demised Premises to become
unusable or access to the Demised Premises is not reasonably available for more
than five (5) consecutive business days, or if such condition is caused by any
other reason other than as provided for herein and such condition continues for
thirty (30)
Page 12 of 40
consecutive days, and the Demised Premises are in fact not used for the purposes
for which they were leased, during such period, then in such event, Lessee shall
be entitled to a pro rata abatement of Rent commencing with the sixth (6th)
consecutive business day, or the thirty-first (31st) consecutive day that same
are unusable, as the case may be; PROVIDED, HOWEVER, that Lessee shall not be
entitled to any abatement of Rent if such unusability is (a) caused by the
negligence or wilful act or omission of Lessee or any of Lessee's servants,
employees, agents, or licensees; or (b) where such condition arises in
connection with work performed by Lessor at the request of Lessee to make a
decoration, alteration, improvement or addition; or (c) where the repair in
question are those which Lessee is obligated to make or furnish under any of the
provisions of this Lease. The provisions of this paragraph B shall not apply in
the event of a condition caused by fire or other casualty or condemnation as
provided for in Articles 12 and 18, respectively. As used herein, the term
"Critical Services" shall mean: (i) electricity; (ii) heating through the
Buildings heating system but excluding supplemental heating systems installed by
Lessee; (iii) ventilating and air conditioning through the Building's AC System
but excluding any supplemental units; (iv) water (including condenser water);
and/or (v) elevator service to the Demised Premises.
SECTION 7.03. "Repairs" as used herein shall mean all repairs,
replacements, renewals, alterations, additions and betterments. All contracts
between Lessee and others for installations, maintenance, and repairs and
alterations involving the Demised Premises, including maintenance agreements,
shall be subject to the prior written approval of Lessor, not to be unreasonably
withheld or delayed.
SECTION 7.04. Lessor shall not be required to make any repairs or
replacements to the common areas occasioned by the act or negligence of Lessee,
its agents, employees, invitees, customers, licensees, or contractors, except to
the extent that Lessor is reimbursed therefor under any policy of insurance
permitting waiver of liability and containing a waiver of subrogation, except as
otherwise provided in this Article and Article 12 of this Lease.
ARTICLE 8 - THE WORK; LESSEE'S ALTERATIONS
SECTION 8.01. Lessor shall have no obligation whatsoever to perform any
build-out or similar work to Demised Premises, and Lessee agrees to accept same
in "AS IS" physical order and condition on the Commencement Date and without any
representation or warranty, express or implied, in fact or by law, by Lessor,
and without recourse to Lessor, as to title thereto, the nature, condition or
usability thereof or as to the use or occupancy which may be made thereof.
Notwithstanding the foregoing, Lessor agrees to perform the work set forth on
the plans and specifications annexed hereto as EXHIBIT "E" and made a part
hereof (the "Work"). Lessor agrees to perform, at its sole cost and expense,
that portion of the Work more particularly set forth on EXHIBIT "F" annexed
hereto and made a part hereof as Lessor's financial contribution to the Work.
Lessee agrees to pay Lessor for the Cost (as that term is hereinafter defined)
of that portion of the Work set forth on EXHIBIT "F" as Lessee's financial
contribution to the Work ("Lessee's Financial Contribution"). Lessee shall pay
to Lessor as Additional Rent, Lessee Financial Contribution within ten (10)
business after demand therefor.
SECTION 8.02. Following the Commencement Date, Lessee may complete its own
build-out, if any, and fully equip the Demised Premises with all trade and
operating fixtures and equipment, plumbing, lighting and other fixtures and
equipment, furniture, furnishings, floor covering, and any and all other items
necessary for the proper operation of Lessee's business ("Lessee's Work"). All
equipment permanently affixed to the Demised Premises by Lessee shall not be
subject to liens, conditional sales contracts, security agreements or chattel
mortgages. Nothing contained herein shall prohibit Lessee from purchasing
display and other moveable equipment which may be subject to liens, conditional
sales contracts, security agreements or chattel mortgages ("Lessee's Trade
Fixtures"). Lessee shall complete or cause to be completed all of Lessee's Work
required on Lessee's part to be performed in and at the Demised Premises under
this Lease pursuant to Lessor's STANDARD REQUIREMENTS FOR ALTERATIONS TO BE
PERFORMED BY LESSEES' annexed hereto as EXHIBIT "G," as may be amended from time
to time.
SECTION 8.03. Other than as specifically provided for in Section 8.02
hereof, Lessee shall not do any construction, work or alterations to the Demised
Premises, nor shall Lessee install any items other than Lessee's Trade Fixtures
without first: (1) obtaining Lessor's written consent, which consent shall not
be unreasonably withheld or delayed AND (2) complying with all of the terms,
covenants and conditions contained in Lessor's STANDARD REQUIREMENTS FOR
ALTERATIONS TO BE PERFORMED BY LESSEES'.
Page 13 of 40
ARTICLE 9 - COMPLIANCE WITH LAWS
SECTION 9.01. Lessor represents that the Demised Premises, the Building and
Property and all of Lessor's Work will comply with all Legal Requirements,
Environmental Laws and Insurance Requirements as of the Commencement Date.
SECTION 9.02. Throughout the Term of this Lease and all Renewal Terms, if
any, Lessee shall promptly comply with all Legal Requirements, Environmental
Laws and Insurance Requirements whether or not such compliance involves
structural repairs or changes or be required on account of any particular use to
which the Demised Premises, or any part, may be put, and whether or not any such
Legal Requirements, Environmental Laws, or Insurance Requirements be of a kind
not now within the contemplation of the parties hereto. Compliance by Lessee
with Legal Requirements, Environmental Laws, and Insurance Requirements shall be
at Lessee's sole cost and expense. Lessee shall not contest the application or
validity of any such Legal Requirements, Environmental Laws, or Insurance
Requirements without the prior written consent of Lessor in each such instance.
Any repair or change required under this Section shall be deemed a repair for
the purposes of Article 7. With respect to actions necessary to comply with
Legal Requirements, Insurance Requirements and Environmental Laws which, due to
their nature, can only be taken by Lessor, Lessor, at Lessee's expense, will
cooperate with Lessee in facilitating such compliance.
ARTICLE 10 - RIGHTS RESERVED TO LESSOR
SECTION 10.01. Lessee shall permit Lessor, Lessor's's agents, and its
invitees to enter the Demised Premises, or any part thereof, at all reasonable
times and upon reasonable notice to Lessee provided same does not unreasonably
interfere with Lessee's business for the purposes of (a) inspecting the same,
(b) curing Events of Default of Lessee (after ten (10) days' notice to Lessee,
except that no notice shall be required in case of an emergency), (c) showing
the same to mortgagees, appraisers, or prospective lenders, purchasers or
lessees (Lessor shall only show the Demised Premises to prospective lessees in
the last nine (9) months of the Term, as may be extended), (d) observing the
performance by Lessee of its obligations under this Lease, (e) performing any
act or thing which Lessor may be obligated or have the right to do under this
Lease or otherwise, and (f) any other reasonable purpose. Lessor and any
providers of Utility Services or other services shall have the right to maintain
existing utility, mechanical, electrical and other systems and to enter upon the
Demised Premises to make such repairs and alterations therein or in or to the
Demised Premises as may, in the reasonable opinion of Lessor, be deemed
necessary or advisable. Lessor shall not be liable for inconvenience,
annoyance, disturbance or loss of business to Lessee or any sublessee by reason
of making any repairs or the performance of any work, or on account of bringing
materials, tools, supplies and equipment into or through the Demised Premises
during the course thereof and the obligations of Lessee under this Lease shall
not be affected thereby. The rights provided in this Article shall be exercised
so as to minimize interference with the use and occupancy of the Demised
Premises by Lessee. Nothing contained in this Article shall impose, or shall be
construed to impose on Lessor any obligation to maintain the systems referred to
in this Article or the Demised Premises or anything appurtenant thereto, or to
make repairs or alterations thereof or thereto, or to create any liability for
any failure to do so.
SECTION 10.02.A. Without abatement or diminution in rent, Lessor reserves
and shall have the following additional rights: (a) to change the street address
and/or the name of the Building of which the Demised Premises are a part and/or
the Property and/or the locations of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building
and/or Property without liability to Lessee, PROVIDED, HOWEVER, that Lessor
shall take no action which adversely affects Lessee's access to and/or use of
the Demised Premises and/or Building, (b) to approve in (in Lessor's reasonable
judgment) writing all sources furnishing construction work, painting,
decorating, repairing, maintenance and any other work in or about the Demised
Premises, (c) to erect, use and maintain pipes and conduits in and through the
Demised Premises, provided that any such pipes, and conduits are located behind
the walls and in the ceiling of the Demised and do not materially reduce the
usable square footage of the Demised Premises and do not unreasonably interfere
with the operation of Lessee's existing systems and facilities servicing the
Demised Premises; (d) to charge to Lessee any reasonable and actual expense
including overtime cost incurred by Lessor in the event that repairs,
alterations, decorating or other work in the Demised Premises are made or done
after ordinary business hours at Lessee's request, (e) to immediately enter and
alter, renovate, and redecorate the Demised Premises (without reduction or
abatement of rent or incurring any liability to Lessee for compensation), if
during the last six (6) months of the Term or of any Renewal Term Lessee shall
Page 14 of 40
have removed all of Lessee's property therefrom, and (f) grant to anyone the
exclusive right to conduct any particular business or undertaking in the
Building of which the Demised Premises are a part.
X. Xxxxxx may exercise any or all of the foregoing rights hereby reserved
to Lessor without being deemed guilty of an eviction, actual or constructive, or
disturbance or interruption of Lessee's use or possession and without being
liable in any manner toward Lessee and without limitation or abatement of Rent
or other compensation, and such acts shall have no effect on this Lease.
ARTICLE 11 - INSURANCE
SECTION 11.01.A. Lessee shall obtain and keep in full force and effect
during the Term, and during any earlier period of time when Lessee or Lessee's
agents, employees, or contractors may enter the Demised Premises at its own cost
and expense:
(1) commercial general liability insurance (with a contractual
liability endorsement covering the matters set forth in Article 16) having
a combined single limit of not less than Two Million ($2,000,000.00)
Dollars (including umbrella coverage) protecting Lessor, any Lessor's agent
which is acting as a property manager for the Property, the holder of any
Mortgage, or Lessor under any Superior Lease and Lessee as insureds, as
their interests appear (and naming each such person as an insured party or
as an additional insured, as their interests appear) against any and all
claims for bodily injury, death or property damage occurring, during the
Term and during any earlier period of time when Lessee or Lessee's agents,
employees, or contractors may enter the Demised Premises;
(2) insurance (herein sometimes referred to as "Lessee's fire
(casualty) insurance") against loss or damage by any and all risks and
hazards to Lessee's Property (as hereinafter defined) for the full
replacement value thereof (including coverages which are currently
sometimes referred to as "all risk" with coverage written on a replacement
cost basis);
(3) workers' compensation and employees liability insurance in
accordance with the laws of the State of New York and all Governmental
Authorities having jurisdiction over the Demised Premises and/or the
Property; and
(4) Lessee shall insure and keep insured in the name of Lessee, with
the name of Lessor included as an additional insured, as its interests may
appear, at Lessee's expense (i) all internal plate glass in the Demised
Premises; (ii) if there is a steam boiler, steam generator, or any other
combustible device, mechanism or appliance in, on, adjoining or beneath the
Demised Premises, for the exclusive use of the Lessee, Lessee shall insure
and keep the same insured with a broad form boiler insurance in the amount
of at least Five Hundred Thousand ($500,000.00) Dollars. Lessee shall
further insure, at Lessor's request, against any other peril generally
insured against by a business of Lessee's type.
B. Said insurance is to be written in form and substance reasonably
satisfactory to Lessor by an insurance company, licensed to do business in the
State of New York, which shall be rated by Best's Insurance Rating Service with
at least a rating equal to A:XII. Lessee shall procure, maintain and place such
insurance and pay all premiums and charges therefor and upon failure to do so
Lessor may, but shall not be obligated to, procure, maintain and place such
insurance or make such payments, and in such event Lessee agrees to pay the
amount thereof plus interest at the maximum legal rate, to Lessor on demand as
Additional Rent. If Lessee has other locations that it owns or leases, said
policy shall include an aggregate per location endorsement. Lessee shall cause
to be included in all such insurance policies (i) a provision to the effect that
the same will not be canceled or modified except upon not less than thirty (30)
days' prior written notice to the Lessor, and (ii) a provision to the effect
that the naming of any person other than Lessee as an insured shall not obligate
such person to pay any premium. Each such Lessee's fire (casualty) insurance
policy shall contain an agreement by the insurer that the act or omission of one
insured will not invalidate the policy as to any other insured. Not less than
ten (10) days prior to the Commencement Date the original insurance policies or
appropriate certificates and paid receipts therefor (together with a photocopy
of the policy, if Lessor shall so request), shall be deposited with Lessor. Any
renewals or endorsements thereto shall also be deposited with Lessor, not less
than ten (10) days prior to the expiration date of the policy being renewed,
Page 15 of 40
replaced or endorsed, to the end that said insurance shall be in full force and
effect at all times during the Term.
SECTION 11.02. Lessee agrees to use reasonable efforts to include in each
of its insurance policies (insuring the Demised Premises and Lessor's property
therein, against loss occasioned by fire or other casualty) a waiver of the
insurer's right of subrogation against the Lessor, or if such waiver should be
unobtainable or unenforceable, (a) an express agreement that such policy shall
not be invalidated if the insured waives or has waived before the casualty the
right of recovery against any party responsible for a casualty covered by the
policy, or (b) any other form of permission for the release of the other party,
or (c) the inclusion of the Lessor as an additional insured, as its interests
may appear. Lessee, upon request from Lessor from time to time, will furnish
evidence of the nature of the insurance arrangements made concerning the subject
matter of this Section.
SECTION 11.03. As long as both parties' fire (casualty) insurance policies
then in force include the waiver of subrogation or agreement or permission to
release liability referred to in Section 11.02 or name the other party as an
additional insured, each party hereby waives (and agrees to cause any other
permitted occupants of the Demised Premises to execute and deliver to the other
party written instruments waiving) any right of recovery against the other
party, the holder of the Mortgage, or Superior Lease, and any servants,
employees, agents or contractors of the other party, or of any such Lessor's or
holder, or of any such other tenants or occupants, for any loss occasioned by
fire or other casualty, that is an insured risk under Lessee's fire (casualty)
insurance policies. In the event that at any time either party's fire
(casualty) insurance carriers shall not include such or similar provisions in
the other party's fire (casualty) insurance policies, the waivers set forth in
the foregoing sentence shall be deemed of no further force and effect. During
any period when either party fails to maintain such fire (casualty) insurance,
for the purposes of the first sentence of this Section there shall be deemed to
be in effect such fire (casualty) insurance meeting the requirements of such
sentence.
SECTION 11.04. Nothing contained in this Lease shall (i) relieve Lessee of
any liability to Lessor or to its insurance carriers which Lessee may have under
law or the provisions of this Lease in connection with any damage to the Demised
Premises by fire or other casualty; (ii) impose upon Lessor any duty to procure
or maintain any kinds of insurance or any particular amounts or limits of any
such kinds of insurance.
SECTION 11.05. Lessor shall insure the Building with all risk insurance
coverage in such amounts so as to avoid co-insurance and Lessor agrees that such
policies shall contain a waiver of subrogation in favor of Lessee.
ARTICLE 12 - DAMAGE OR DESTRUCTION
SECTION 12.01. If the Demised Premises or any part thereof shall be damaged
by fire or other casualty, Lessee shall give prompt notice thereof to Lessor and
Lessor shall proceed (subject to the provisions of this Article) with reasonable
diligence to repair or cause to be repaired such damage. Except as provided in
Section 12.05, the Fixed Rent shall be abated proportionately to the extent that
the Demised Premises shall have been rendered Untenantable (as hereinafter
defined), such abatement to be from the date of such damage or destruction to
the date the Demised Premises shall no longer be Untenantable.
SECTION 12.02. If the Demised Premises shall be totally damaged or the
whole of the Demised Premises shall be rendered Untenantable by fire or other
casualty, and Lessor has not terminated this Lease pursuant to Section 12.03 and
Lessor has not completed the making of the required repairs and restored and
rebuilt the Demised Premises and/or access thereto within one (1) year from the
date of such damage or destruction to the level of demising walls only, and such
additional time after such date, as shall equal the aggregate period Lessor may
have been delayed in doing so by Unavoidable Delays or adjustment of insurance,
Lessee may serve notice on Lessor of its intention to terminate this Lease and
if within thirty (30) days thereafter, Lessor shall not have substantially
completed the making of the required repairs and restored and rebuilt the
Demised Premises to the level of demising walls, then in such events, this Lease
shall terminate on the expiration of such thirty (30) day period as if such
termination date were the Expiration Date, and the Fixed Rent and Additional
Rent shall be apportioned as of such date of sooner termination and any prepaid
portion of Fixed Rent and Additional Rent for any period after such date shall
be refunded by Lessor to Lessee.
SECTION 12.03.A. If the Demised Premises shall be totally damaged or the
whole of the Demised Premises shall be rendered Untenantable by fire or other
casualty or if the Demised
Page 16 of 40
Premises shall be so damaged by fire or other casualty that substantial
alteration or reconstruction shall, in Lessor's reasonable opinion, be required,
then and in such events Lessor may, at its option, terminate this Lease and the
Term and estate hereby granted by giving Lessee not less than thirty (30) days,
nor more than sixty (60) days, notice of such termination, within ninety (90)
days after the date of such damage. In the event that such notice of
termination shall be given, this Lease and the Term and estate hereby granted
shall terminate as of the date provided in such notice of termination (whether
or not the Term shall have commenced) with the same effect as if that were the
Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned as
of such date of sooner termination, mid any prepaid portion of Fixed Rent and
Additional Rent for any period after such date shall be refunded by Lessor to
Lessee.
B. If the Demised Premises shall be totally damaged or the whole or
substantially all of the Demised Premises shall be rendered untenantable by fire
or other casualty, and Lessor has not terminated this Lease as provided in
Section 12.03.A., Lessor shall notify Lessee, within ninety (90) days after such
fire or other casualty, as to the estimated period of time necessary to complete
the required repairs and restore and rebuild the Demised Premises to the level
of demising walls. If such Lessor's estimate exceeds one (1) year, from the
date of such notice, or if Lessor falls to deliver such notice, then in such
events, Lessee may serve on Lessor, within thirty (30) days of its receipt of
Lessor's notice, or the expiration of the ninety (90) days after such fire or
other casualty, as the case may be (time being of the essence with respect
thereto), notice of its intention to terminate this Lease on a date which shall
be not more than thirty (30) days from the date of Lessee's notice. If Lessee
gives notice of its intention to cancel this Lease as provided herein, then in
such event, this Lease shall terminate on the expiration of such thirty (30) day
period as if such termination date were the Expiration Date, and the Fixed Rent
and Additional Rent shall be apportioned as of such date of sooner termination
and any prepaid portion of Fixed Rent and Additional Rent for any period after
such date shall be refunded by Lessor to Lessee. Lessee's failure to notify
Lessor within the thirty (30) day period shall be deemed a waiver of the right
to terminate this Lease.
SECTION 12.04. Lessor shall not be liable for any inconvenience or
annoyance to Lessee or injury to the business of Lessee resulting in any way
from such damage by fire or other casualty or the repair thereof.
SECTION 12.05. Lessee shall restore all improvements made by Lessee to the
Demised Premises, at Lessee's sole cost and expense. Nothing herein contained
shall relieve Lessee from any liability to the Lessor or to its insurers in
connection with any damage to the Property, Building or Demised Premises by fire
or other casualty if Lessee shall be legally liable in such respect.
Notwithstanding any of the foregoing provisions of this Article, if by reason of
some action or inaction on the part of Lessee or any of its employees, agents,
officers, directors or contractors, Lessor or the holder of the Mortgage or
Superior Lease shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises by fire or other cause, then, without prejudice to any other
remedy which may be available against Lessee, the abatement of Fixed Rent
provided for in this Article shall not be effective to the extent of the
uncollected insurance proceeds.
SECTION 12.06. This Lease shall be considered an express agreement to the
contrary pursuant to New York REAL PROPERTY LAW Section 227 governing any case
of damage to or destruction of the Demised Premises or any part thereof by fire
or other casualty, and any law providing for such a contingency in the absence
of such express agreement, now or hereafter enacted, shall have no application
in such case to the extent inconsistent with this Lease.
SECTION 12.07. Lessee shall, at its own cost and expense, remove all of
Lessee's property from the Demised Premises as Lessor shall require in order to
repair and restore the Demised Premises and Lessor shall not be obligated to
commence repairs or restoration of the Demised Premises until such property has
been removed by Lessee from the damaged portion of the Demised Premises. Should
Lessee neglect, fail, or refuse to remove its aforesaid property within thirty
(30) days after such damage or destruction, the provisions for abatement of
Fixed Rent contained herein shall be suspended and of no force and effect
whatsoever until Lessee has completed such removal. In no event shall the
Lessor be required to repair or replace Lessee's merchandise, trade fixtures,
furniture, furnishings, inventory and equipment.
ARTICLE 13 - CURING DEFAULT'S; FEES AND EXPENSES
SECTION 13.01. If Lessee shall default in the full and prompt performance
of any covenant contained herein and to be performed on Lessee's part, Lessor,
after notice to Lessee in accordance with provisions of this Lease (except that
a lesser notice appropriate to the
Page 17 of 40
circumstances shall be required in case of an emergency), without being under
any obligation to do so and without thereby waiving such default may perform
such covenant for the account and at the expense of Lessee and may enter upon
the Demised Premises for any such purpose and take all action thereon as may be
necessary therefor. All reasonable sums so paid by Lessor in connection with
the payment or performance by it of any of the obligations of Lessee hereunder
and all actual and reasonable costs, expenses and disbursements paid in
connection therewith or enforcing or endeavoring to enforce any right under or
in connection with this Lease, or pursuant to law, together with interest
thereon at the maximum legal rate from the respective dates of the making of
each such payment, shall constitute Additional Rent payable by Lessee under this
Lease and shall be paid by Lessee to Lessor upon demand by Lessor. The
provisions of this Section shall survive the expiration or other termination of
this Lease.
ARTICLE 14 - DEFAULT PROVISIONS
SECTION 14.01.A. If any one or more of the following events shall happen
and shall not have been cured within any applicable grace period herein
provided:
(1) if default shall be made in the due and punctual payment of Fixed
Rent or Additional Rent payable by Lessee under this Lease when and as the
same shall become due and payable, and such default shall continue for a
period of five (5) days after written notice thereof from Lessor to Lessee
(provided that no such notice shall be required if, during the period of
one (1) year immediately preceding the date of default, there shall have
been two (2) or more defaults in the due and punctual payment of Fixed Rent
or Additional Rent payable by Lessee under this Lease when and as the same
shall have been due and payable); or
(2) if default shall be made by Lessee in performance of, or
compliance with, any of the covenants, agreements or conditions contained
in this Lease and either (i) in the case of a default or a contingency
which can with due diligence be cured within thirty (30) days, such default
shall continue for a period of thirty (30) days after written notice
thereof from Lessor to Lessee, or (ii) in the case of a default or a
contingency which cannot with due diligence be cured within thirty (30)
days, Lessee shall fail, after written notice thereof from Lessor, to
proceed promptly and with all due diligence to commence to cure the same
and thereafter to prosecute the curing of such default with all due
diligence (it being intended that, in connection with a default which is
not susceptible of being cured with due diligence within thirty (30) days
the time of Lessee within which to cure the same shall be extended for such
period as may be necessary for the curing thereof with all due diligence);
or
(3) if Lessee shall file a voluntary petition seeking an order or
relief under Title 11 of the United States Code or similar law of any
jurisdiction applicable to Lessee, or Lessee shall be adjudicated a debtor,
bankrupt or insolvent, or shall file any petition or answer seeking,
consenting to or acquiescing in any order for relief, reorganization,
arrangement, composition, adjustment, winding-up, liquidation, dissolution
or similar relief with respect to Lessee or its debts under the present or
any future bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall file an answer admitting
or failing to deny the material allegations of a petition against it for
any such relief or shall generally not, or shall be unable to, pay its
debts as they become due or shall admit in writing in any filing with any
court or Governmental Authority its insolvency or its inability to pay its
debts as they become due, or shall make a general assignment for the
benefit of creditors or shall seek or consent or acquiesce in the
appointment of any trustee, receiver, examiner, assignee, sequestrator,
custodian or liquidator or similar official of Lessee or of all or any part
of Lessee's property or if Lessee shall take any action in furtherance of
or authorizing any of the foregoing; or if Lessee shall call a meeting of,
or propose any form of arrangement, composition, extension or adjustment
with its creditors holding a majority in amount of Lessee's outstanding
indebtedness; or
(4) if any case, proceeding or other action shall be commenced or
instituted against Lessee, seeking to adjudicate lessee a bankrupt or
insolvent, or seeking an order for relief against Lessee as debtor, or
reorganization, arrangement, composition, adjustment, winding-up,
liquidation, dissolution or similar relief with respect to Lessee or its
debts under the present or any future bankruptcy act or any other present
or future applicable federal, state or other statute or law, or seeking
appointment of any trustee, receiver, examiner, assignee, sequestrator,
custodian or liquidator or similar official of Lessee or of all or part of
Lessee's property, which either (i) results in the entry of an
Page 18 of 40
order for relief, adjudication of bankruptcy or insolvency or such an
appointment or the issuance or entry of any other order having similar
effect or (ii) remains undismissed for a period of ninety (90) days; or if
any case, proceeding or other action shall be commenced or instituted
against Lessee seeking issuance of a warrant of execution, attachment,
restraint or similar process against Lessee or any of Lessee's property
which results in the taking or occupancy of the Demised Premises or an
attempt to take or occupy the Demised Premises which shall not have been
vacated, discharged, or stayed or bonded pending appeal within ninety (90)
days after the entry thereof; or
(5) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted to the unexpired balance of the
Term would, by operation of law or otherwise, devolve upon or pass to any
person other than Lessee, except as is expressly permitted under Article
27, or if default shall be made by Lessee in the performance of, or
compliance with the covenants, agreements and conditions set forth in
Article 27; or
(6) if Lessee's (other than Lessee herein named) obligations under
this Lease shall have been guaranteed by any person other than Lessee and
such person shall default in observance or performance of any term,
covenant or condition to be observed or performed by such person under the
instrument or agreement containing such guarantee; or
(7) if any financial statement or other information furnished to
Lessor by Lessee in connection with this Lease is materially false or
misleading; or
(8) if Lessee shall default in the observance or performance of any
term, covenant or condition on Lessee's part to be observed or performed
under the provisions of Section 35.09; or
(9) if Lessee is the subject of a Chapter 11 reorganization under the
Bankruptcy Reform Act of 1978 and such reorganization is not confirmed
within eighteen (18) months from the time of filing of a voluntary or
involuntary petition thereunder (it being understood that in such event
Lessee consents to the termination of the automatic stay provisions of
Section 362 of such Act);
then and in any such event (hereinafter sometimes called an "Event of Default")
Lessor may give written notice ("Termination Notice") to Lessee specifying such
Event of Default or Events of Default and stating that this Lease and the Term
shall expire and terminate on the date specified in the Termination Notice,
which shall be at least seven (7) days after the giving of the Termination
Notice, and on the date specified therein this Lease and the Term and all rights
of Lessee under this Lease shall expire and terminate, it being the intention of
the Lessor and Lessee hereby to create conditional limitations, and Lessee shall
remain liable as provided in Article 15 and in accordance with those provisions
of this Lease which are specifically stated herein to survive the expiration or
other termination of this Lease.
B. Notwithstanding the provisions of Section 14.0l.A, if there shall be an
Event of Default at any time or from time to time under the provisions of
subdivision (1) of Section 14.0l.A, Lessor may, in lieu of giving a Termination
Notice, at any time after the occurrence of any such Event of Default and during
the continuance thereof, institute an action for the recovery of the Fixed Rent
and/or Additional Rent in respect of which an Event of Default shall have
occurred and be continuing. Neither the commencement of any such action for the
recovery of Fixed Rent and/or Additional Rent nor the prosecution thereof shall
be deemed a waiver of Lessor's right to give a Termination Notice in respect of
any such Event of Default during the continuance thereof and Lessor may,
notwithstanding the commencement and prosecution of any such action, give a
Termination Notice and terminate this Lease pursuant to Section 14.0l.A at any
time during the continuance of such Event of Default.
C. If, at any time, (i) Lessee shall be comprised of two or more persons,
or (ii) Lessee's obligations under this Lease shall have been guaranteed by any
person other than Lessee, or (iii) Lessee's interest in this Lease shall have
been assigned, the word "Lessee," as used in subdivisions (4), (5) and (9) of
Section 14.0l.A, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Lessee's obligations under this Lease. Any
monies received by Lessor from or on behalf of Lessee during the pendency of any
proceeding of the types referred to in said subdivisions (4), (5) and (9) of
Section 14.0l.A shall be deemed paid as compensation for the use and occupation
of the Demised Premises and the acceptance of any such
Page 19 of 40
compensation by Lessor shall not be deemed an acceptance of rent or a waiver on
the part of Lessor of any rights under Section 14.01.
SECTION 14.02. In the event that this Lease shall be terminated as provided
in this Article, Lessor or Lessor's agents may, immediately, or at any time
thereafter, without further notice, enter upon and re-enter the Demised Premises
and possess and repossess itself thereof, by summary proceedings, ejectment or
otherwise, and have, hold and enjoy the Demised Premises and the right to
receive all income of and from the same. No re-entry by Lessor pursuant to this
Article shall be deemed an acceptance of a surrender of this Lease nor shall it
absolve or discharge Lessee from any liability under this Lease.
SECTION 14.03. In the event that this Lease shall be terminated as provided
in this Article, Lessor may, at any time or from time to time thereafter, relet
the Demised Premises or any part thereof, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions (which may include concessions or
free rent, which shall, however, be amortized over the entire term for the
purpose of determining damages under Article 15) as Lessor may determine, to any
tenant which it may deem suitable and satisfactory and for any use and purpose
it may deem appropriate and may collect and receive the rents therefor. Lessor
shall use commercially reasonable methods in making such reletting. Lessor, at
its option, may make such repairs, alterations, additions, improvements,
decorations and other physical changes in and to the Demised Premises as Lessor
considers advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Lessee of any liability under this Lease
or otherwise affecting any such liability. Lessor shall in no way be
responsible or liable for any failure to relet the Demised Premises, or any part
thereof, or for any failure to collect any rent due upon such reletting. Lessor
shall not in any event be required to pay Lessee (but shall credit Lessee, to
the extent set forth in Article 15, with) any sum received by Lessor on a
reletting of the Demised Premises, or any part thereof, whether or not in excess
of the rent reserved in this Lease.
SECTION 14.04. Lessee, on its own behalf and on behalf of all persons
claiming through or under Lessee including all creditors, does hereby waive any
and all rights and privileges, so far as is permitted by law, which Lessee and
all such persons might otherwise have under any present or future law, to (i)
the service of any notice of intention to re-enter or institute legal
proceedings to that end, excluding service of process, (ii) redeem the Demised
Premises, (iii) re-enter or repossess the Demised Premises, or (iv) restore the
operation of this Lease, after Lessee shall have been dispossessed by a judgment
or by warrant of any court or judge, or after any re-entry by Lessor or after
any expiration or termination of this Lease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Lease. The words "re-enter," "re-entry" and
"re-entered" as used in this Lease shall not be deemed to be restricted to their
technical legal meanings.
SECTION 14.05. In the event the Lessee shall dispute the validity or
amount, or the time or manner of payment of, any Rent claimed by Lessor to be
due from Lessee under this Lease, Lessee shall nevertheless pay the same and
such payment may be without prejudice to Lessee's position if Lessee so requests
at the time of payment. If the dispute shall be finally determined in Lessee's
favor by a court of competent jurisdiction, Lessor shall within a reasonable
period of time not to exceed sixty (60) days pay Lessee the amount of Lessee's
overpayment of such rent. Lessee's failure to observe and perform the
provisions of this Section shall be deemed a default under subdivision (1) of
Section 14.0l.A.
ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT
SECTION 15.01.A. In the event that this Lease be terminated pursuant to
Article 14 as a result of an Event of Default on the part of the Lessee and
whether or not the Demised Premises be relet, Lessor shall be entitled to retain
all monies, if any, paid by Lessee to Lessor, whether as advance Rent or
otherwise, but such monies shall be credited by Lessor against any Rent due at
the time of such termination, or at Lessor's option, against any damages payable
by Lessee, and Lessor shall be entitled to recover from Lessee, and Lessee shall
pay to Lessor the following:
(a) All Rent to the date upon which this Lease and the Term shall have
terminated, and
(b) All expenses reasonably incurred by Lessor in recovering
possession of the Demised Premises (including summary proceedings),
restoring the Demised Premises to good order and condition, maintaining the
Demised Premises in good order and condition
Page 20 of 40
while vacant, altering or otherwise preparing the same for reletting, and
in reletting the Demised Premises (including reasonable and customary
brokerage commissions and legal expenses), the same to be paid by Lessee to
Lessor on demand, and
(c) The amount by which the rent which, but for the termination of
this Lease, would have been payable under this Lease from the date of
termination to the Expiration Date exceeds the rental and other income, if
any, collected by Lessor in respect of the Demised Premises, or any part
thereof, subject nevertheless to the provisions of Section 14.03, said
amount to be due and payable by Lessee to Lessor on the several days on
which the Rent reserved in this Lease would have become due and payable for
the period which otherwise would have constituted the unexpired portion of
the Term (that is to say, upon each of such days Lessee shall pay to Lessor
the amount of deficiency then existing).
B. Whether or not Lessor shall have collected any monthly deficiencies
aforesaid, Lessor shall be entitled to recover from Lessee on demand, as and for
liquidated damages, a lump sum payment equal to the amount by which the Fixed
Rent and Additional Rent payable hereunder for the period which otherwise would
have constituted the unexpired portion of the Term (due account being taken of
amounts, if any, collected under clause [c] of Section 15.0l.A, and conclusively
presuming the Additional Rent to be the same as was payable for the year
immediately preceding such termination or re-entry and thereafter increasing by
three (3%) percent per annum) exceeds the then rental value of the Demised
Premises for the same period both discounted at a rate equal to then applicable
Treasury Rate to present value. If the Demised Premises or any part thereof be
relet by Lessor for the unexpired portion of the Term, or any part thereof,
before presentation of proof of such liquidated damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall be deemed
PRIMA FACIE to be the fair and reasonable rental value for the part or the whole
of the Demised Premises so relet during the term of the reletting. Nothing
herein contained shall limit or prejudice the right of the Lessor to prove for
and obtain as damages by reason of such termination an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved, whether or
not such amount be greater or less than the amount of liquidated damages
referred to above (due account to be taken, however, of the amounts, if any,
collected under this Article 15).
SECTION 15.02. In no event shall Lessee be entitled to receive any excess
of the rental and other income collected by Lessor in respect of the Demised
Premises over the sums payable by Lessee to Lessor hereunder. In no event shall
Lessee be entitled in any suit for the collection of damages pursuant to this
Article to a credit in respect of any such rental and other income, except to
the extent that such rental and other income is allocable to the portion of the
Term in respect of which such suit is brought and is actually received by Lessor
prior to the entry of judgment in such suit.
SECTION 15.03. Separate actions may be maintained by Lessor against Lessee
from time to time to recover any damages which, at the commencement of any such
action, have then or theretofore become due and payable to Lessor under Article
14, without waiting until the end of the Term and without prejudice to Lessor's
right to collect damages thereafter.
ARTICLE 16 - INDEMNIFICATION
SECTION 16.01. Notwithstanding that joint or concurrent liability may be
imposed upon either party by statute, ordinance, rule, regulation, order or
court decision, and notwithstanding any insurance furnished by either party
pursuant hereto or otherwise, Lessee shall and does hereby indemnify and hold
Lessor and its agents, officers, directors, and employees, harmless from and
against any and all loss, liability, fines, suits, claims, obligations, damages,
penalties, demands and actions, and costs and reasonable expenses of any kind or
nature (including architects', engineers' and attorneys' fees) due to or arising
out of any of the following:
(a) any work or thing done in, on or about the Demised Premises,
Building or the Property or any part thereof or any use, possession,
occupation, condition, operation, maintenance, repair or management of the
Demised Premises, Building or the Property or any part thereof, by Lessee
or anyone claiming through or under Lessee or the respective employees,
agents, licensees, contractors, servants or sublessees of Lessee or any
such person;
Page 21 of 40
(b) any act or omission on the part of Lessee or any person claiming
through or under Lessee, or the respective employees, agents, licensees,
invitees, contractors, servants or sublessees of Lessee or any such person;
or
(c) any accident or injury to any person (including death) or damage
to property (including loss of property) occurring in, on, or about the
Demised Premises, Building or the Property or any part thereof, due to the
act or omission by Lessee, its employees, agents, licensees, invitees,
contractors or servants.
The provisions of this Section 16.01 shall survive the expiration or
termination of this Lease. Any sums payable by Lessee to Lessor under this
Section 16.01 shall be due and payable on demand.
SECTION 16.02. Lessor and Lessor's agents, officers, directors, and
employees shall not be liable for any of the following, however caused, other
than by negligent or wilful acts: (a) failure of any Utility Service, (b) damage
to Lessee's property on the Demised Premises caused by or resulting from any
cause whatsoever, including explosion, falling plaster, vermin, smoke, gasoline,
oil, Hazardous Materials, steam, gas, electricity, earthquake, subsidence of
land, hurricane, tornado, flood, wind or similar storms or disturbances or
water, rain, ice or snow which may be upon, or leak or flow from, any street,
road, parking lot, sewer, gas main or subsurface area, or from any part of the
Property, or leakage of gasoline, oil or other substances from pipes, pipelines,
appliances, storage tanks, sewers or plumbing works in or at the Property, or
from any other place, or from the breaking of any electrical wire or the
breaking, bursting or leaking of water or Hazardous Materials from any plumbing
or sprinkler system, or any other pipe or storage tanks in, on, under or about
the Property, (c) interference with light or other incorporeal hereditaments,
and (d) loss by theft or otherwise of Lessee's Property or the property of any
person claiming through or under Lessee. Any employees of Lessor to whom any
property shall be entrusted by or on behalf of Lessee shall be deemed to be
acting as Lessee's agents with respect to such property and neither Lessor nor
Lessor's agents shall be liable for any loss or for damage to any such property
by theft or otherwise. This Section 16.02 shall not be construed as a provision
for indemnification.
SECTION 16.03. Except as otherwise provided for in this Lease, Lessor shall
and does hereby agree to indemnify, defend and hold harmless Lessee and Lessee's
agents from and against any and all loss, liability, fines, suits, claims,
obligations, damages, penalties, demands and actions, and costs and reasonable
expenses of any kind or nature (including architects' and attorneys' fees) due
to or arising out of the negligence or willful misconduct of Lessor, its agents,
officers, directors and employees. In case of any obligation of Lessor to
indemnify Lessee pursuant to this Section, such obligation shall be subject to
and conditioned upon (x) the receipt by Lessor of prompt written notice of the
claim with respect to which indemnification is sought and (y) Lessor's having
had reasonable opportunity to conduct the defense of such claim in such manner
as it deems appropriate, with the full cooperation of Lessee, and using counsel
reasonably acceptable to Lessor.
ARTICLE 17 - MECHANICS AND OTHER LIENS
SECTION 17.01. If any mechanic's, laborer's or materialman's lien shall be
at any time be filed against the Demised Premises, Building or Property, or any
part thereof with respect to any work done, or caused to be done, or labor or
materials furnished, or caused to be furnished, by Lessee or anyone claiming
through or under Lessee (except for Lessor's Work), Lessee, within thirty (30)
days after notice of the filing thereof, shall cause the same to be discharged
of record by payment, deposit, bond, order of a court of competent jurisdiction
or otherwise. If Lessee shall fail to cause such lien to be discharged within
the period aforesaid, then, in addition to any other right or remedy, Lessor
may, but shall not be obligated to, discharge the same by bonding proceedings,
if permitted by law (and if not so permitted, by deposit in court). Any amount
so paid by Lessor, including all reasonable and actual costs and expenses paid
by Lessor in connection therewith, together with interest thereon at the maximum
legal rate from the respective dates of Lessor's so paying any such amount, cost
or expense, shall constitute Additional Rent payable by Lessee under this Lease
and shall be paid by Lessee to Lessor on demand.
ARTICLE 18 - CONDEMNATION
SECTION 18.01. If the whole of the Demised Premises, or such part thereof
as will render the remainder Untenantable, shall be acquired or condemned for
any public or quasi-public use or purpose, this Lease and the Term shall end as
of the date of vesting of title in the
Page 22 of 40
condemning authority with the same effect as if said date were the Expiration
Date. If only a part of the Demised Premises shall be so acquired or condemned
then, except as otherwise provided in this Article, this Lease and the Term
shall continue in force and effect but, from and after the date of the vesting
of title, the Fixed Rent shall be an amount which bears the same ratio to the
Fixed Rent payable immediately prior to such condemnation pursuant to this Lease
as the value of the untaken portion of the Demised Premises (appraised after
taking and repair of any damage to the Demised Premises pursuant to this
Section) bears to the value of the entire Demised Premises immediately before
the taking. The value of the Demised Premises before and after the taking shall
be determined for the purposes of this Section by an independent licensed
appraiser chosen by Lessor. If more than sixty (60%) percent of the total area
of the Building included in the Demised Premises immediately prior to
acquisition or condemnation is so acquired or condemned, or if by reason of such
acquisition or condemnation, Lessee no longer has reasonable means of access to
the Demised Premises, then in such event, either party, may give notice to the
other party within sixty (60) days next following the date upon which Lessee
have received notice of vesting of title, thirty (30) days notice of termination
of this Lease. In the event any such thirty (30) day notice of termination is
given by Lessor or Lessee, this Lease and the Term shall terminate upon the
expiration of said thirty (30) days with the same effect as if that date were
the Expiration Date. If a part of the Demised Premises shall be so acquired or
condemned, and the Term shall not be terminated pursuant to the provisions of
this Section, Lessor, at Lessor's expense, shall restore that part of the
Demised Premises not so acquired or condemned to a self-contained unit. In the
event of any termination of this Lease and the Term pursuant to the provisions
of this Section, the Fixed Rent and Additional Rent shall be apportioned as of
the date of sooner termination and any prepaid portion of the Fixed Rent and
Additional Rent for any period after such date shall be refunded by Lessor to
Lessee, subject to the claims, if any, of Lessor against Lessee hereunder or
otherwise.
SECTION 18.02. In the event of any acquisition or condemnation of all or
part of the Demised Premises for any public or quasi-public use or purpose,
Lessor shall be entitled to receive the entire award for such acquisition or
condemnation, Lessee shall have no claim against Lessor or the condemning
authority for the value of any unexpired portion of the Term and Lessee hereby
expressly assigns to Lessor all of its right, title and interest in and to any
such award, and also agrees to execute any and all further documents that may be
required in order to facilitate the collection thereof by Lessor. Nothing
contained in this Section shall be deemed to prevent Lessee from making a
separate claim in any condemnation proceeding for moving expenses and for the
value of any Lessee's Property which would be removable at the end of the Term
pursuant to the provisions hereof, directly against any Governmental Authority
authorized to exercise the power of eminent domain, provided that applicable
statutes permit such awards and any award to Lessor is not diminished or
adversely affected thereby.
SECTION 18.03. The terms "condemnation" and "acquisition" as used in this
Article shall include any agreement in lieu of or in anticipation of the
exercise of the power of eminent domain between Lessor and/or any Superior
Mortgage and any Governmental Authority authorized to exercise the power of
eminent domain.
ARTICLE 19 - COVENANT OF QUIET ENJOYMENT
SECTION 19.01. If and so long as no Event of Default shall have occurred
and be continuing, Lessor covenants and agrees that Lessee may peaceably and
quietly enjoy the Demised Premises and Lessee's possession of the Demised
Premises will not be disturbed by Lessor, its successors and assigns, subject,
however, to the terms of this Lease (including those set forth in Sections 24.01
and 24.02), the Mortgage, Superior Lease and any and/or all other agreements and
any amendments thereto, to which this Lease is subordinated.
ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL
SECTION 20.01. In the event that Lessor shall commence any summary or other
proceedings or action for non-payment of Rent hereunder, Lessee shall not
interpose any counterclaim of any nature or description in such proceeding or
action, unless such non-interposition would effect a waiver of Lessee's right to
assert such claim against Lessor in a separate action or proceeding. The
parties hereto waive a trial by jury on any and all issues arising in any action
or proceeding between them or their successors under or in any way connected
with this Lease or any of its provisions, any negotiations in connection
therewith, the relationship of Lessor and Lessee, or Lessee's use or occupation
of the Demised Premises, including any claim of injury or any emergency or other
statutory remedy with respect thereto. The provisions of this Article shall
survive the expiration or other termination of this Lease.
Page 23 of 40
ARTICLE 21 - NOTICES
SECTION 21.01.A. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests, consents or other communications
given or required to be given under this Lease shall be effective only if
rendered or given in writing and
(a) If to Lessee, then, at the option of Lessor, (i) addressed to
Lessee's address as set forth in this Lease with a copy thereof to Lessee
at Xxx Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention:
General Counsel, or to such other address as Lessee may designate as its
new address for such purpose by notice given to Lessor in accordance with
the provisions of this Section, or (ii) delivered personally to Lessee, or
(iii) by overnight courier,
(b) If to Lessor, sent by personal delivery or overnight courier,
addressed to Lessor at Lessor's address as set forth in this Lease, with a
copy thereof to Xxxxxx & Xxxx, LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., or to such other
address as Lessor may designate as its new address for such purpose by
notice given to Lessee in accordance with the provisions of this Section.
B. Any such xxxx, statement, notice, demand, request, consent or other
communication shall be deemed to have been rendered or given: (i) on the date
delivered, if delivered to Lessee personally, or by overnight courier and
(ii) on the expiration of five (5) days after mailing, if mailed to Lessor or
Lessee as provided in this Section. Any notice by a party signed by counsel for
such party shall be deemed a notice signed by such party.
ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING
SECTION 22.01. The receipt of full or partial Rent by Lessor with knowledge
of any breach of this Lease by Lessee or of any default on the part of the
Lessee in the observance or performance of any of the provisions or covenants of
this Lease shall not be deemed to be a waiver of any such provision, covenant or
breach of this Lease, PROVIDED, HOWEVER, that acceptance of a payment of Rent
shall be valid PRO TANTO. No waiver or modification by Lessor, unless in
writing, and signed by Lessor, shall discharge or invalidate any provision or
covenant or affect the right of Lessor to enforce the same in the event of any
subsequent breach or default. The failure on the part of Lessor to insist in
any one or more instances upon the strict performance of any of the provisions
or covenants of this Lease, or to enforce any covenant or provision herein
contained or to exercise any right, remedy or election herein contained
consequent upon a breach of any provision of this Lease, shall not affect or
alter this Lease or be construed as a waiver or relinquishment for the future of
such one or more provisions or covenants or of the right to insist upon strict
performance or to exercise such right, remedy or election, but the same shall
continue and remain in full force and effect with respect to any existing or
subsequent breach, act or omission, whether of a similar nature or otherwise.
The receipt by Lessor of any rent or any other sum of money or any other
consideration hereunder paid by Lessee after the termination, in any manner, of
the Term, or after the giving by Lessor of the Termination Notice, shall not
reinstate, continue or extend the Term, or destroy, or in any manner impair the
efficacy of any such Termination Notice, as may have been given hereunder by
Lessor to Lessee prior to the receipt of any such Rent, or other sum of money or
other consideration, unless so agreed to in writing and signed by Lessor.
Neither acceptance of the keys or any other act or thing done by Lessor or any
agent or employee shall be deemed to be an acceptance of a surrender of the
Demised Premises, or any part thereof, excepting only an agreement in writing
signed by Lessor. No payment by Lessee or receipt by Lessor of a lesser amount
than the correct Rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check, as distinguished from any
letter accompanying such check or payment, be deemed to effect or evidence an
accord and satisfaction, and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance or pursue any other remedy in
this Lease provided.
SECTION 22.02. No waiver or modification by Lessee, unless in writing, and
signed by Lessee, shall discharge or invalidate any provision or covenant or
affect the right of Lessee to enforce the same in the event of any subsequent
breach or default. The failure on the part of Lessee to insist in any one or
more instances upon the strict performance of any of the provisions or covenants
of this Lease, or to enforce any covenant or provision herein contained or to
exercise any right, remedy or election herein contained consequent upon a breach
of any provision of this Lease, shall not affect or alter this Lease or be
construed as a waiver or relinquishment for the future of such one or more
provisions or covenants or of the right to insist
Page 24 of 00
xxxx xxxxxx performance or to exercise such right, remedy or election, but the
same shall continue and remain in full force and effect with respect to any
existing or subsequent breach, act or omission, whether of a similar nature or
otherwise.
ARTICLE 23 - RIGHTS CUMULATIVE
SECTION 23.01. Each right and remedy of Lessor shall be cumulative and to
the extent permitted by law, the exercise or beginning of the exercise by Lessor
of any one or more of the rights or remedies of such party shall not preclude
the simultaneous or later exercise by Lessor of any or all other rights or
remedies; PROVIDED, HOWEVER, that this sentence shall not be construed to
entitle Lessor to satisfaction of more than one remedy in respect of a
particular breach. In the event of any breach or threatened breach by Lessee or
any persons claiming through or under Lessee of any of the agreements, terms,
covenants or conditions contained in this Lease, Lessor shall be entitled to
enjoin such breach or threatened breach (if entitled to do so at law or in
equity or by statute or otherwise) and shall have the right to invoke any right
or remedy allowed by law or in equity or by statute or otherwise as if re-entry,
summary proceedings or other specific remedies were not provided for in this
Lease.
ARTICLE 24 - CONVEYANCE; LIABILITY OF PARTIES
SECTION 24.01. The term "Lessor" as used herein shall mean and include only
the owner or owners at the time in question of the Lessor's interest in this
Lease so that in the event of any transfer or transfers (by operation of law or
otherwise) of Lessor's entire interest in this Lease, Lessor herein named (and
in the case of any subsequent transfers or conveyances, the then transferor)
shall be and hereby is automatically freed and relieved, from and after the date
of such transfer or conveyance, of all liability in respect of the performance
of any covenants or obligations on the part of the Lessor contained in this
Lease thereafter to be performed, provided that the transferee shall be deemed
to have assumed and agreed to perform subject to the limitation of this Article
(and without further agreement between or among the parties or their successors
in interest, and/or the transferee) and only during and in respect of the
transferee's period of ownership, all of the terms, covenants and conditions in
this Lease contained on the part of Lessor to be performed, which terms,
covenants, and conditions shall be deemed to "run with the land," it being
intended hereby that the terms, covenants and conditions contained in this Lease
or the part of the Lessor to be performed shall, subject as aforesaid, be
binding on Lessor, its successors and assigns, only during and in respect of
their respective successive periods of ownership.
SECTION 24.02. In the event of a breach by Lessor of any provisions,
covenants or obligations of this Lease to be performed by Lessor, the monetary
liability of Lessor in relation to any such breach shall be limited to the
equity of Lessor in the Demised Premises, and Lessee shall look only to Lessor's
equity in the Demised Premises for the performance and observance of the terms,
covenants, conditions and obligations of this Lease to be performed or observed
by Lessor and for the satisfaction of Lessee's remedies for the collection of
any award, judgment or other judicial process requiring the payment of money by
Lessor in the event of a default in the full and prompt payment and performance
of any Lessor's obligations hereunder and in no event shall any of the partners
constituting Lessor (the "Partners"), nor the partners, shareholders, officers
or directors of Lessor or the Partners shall be liable for the performance of
Lessor's obligations under this Lease, nor shall any of the Partners assets be
liable to any levy, execution, restraint, award, claim of any kind whatsoever
arising out of, or in any way related to this Lease.
SECTION 24.03. The term "Lessee" as used in this Lease shall mean and
include Lessee named herein and, during and in respect of their respective
successive periods of ownership, each subsequent owner or owners of the
leasehold estate created by this Lease. For all purposes of this Lease and
without affecting the rights of, and obligations between, Lessee herein named
and any transferee, notwithstanding any transfer (by operation or law or
otherwise) of title to the leasehold estate created by this Lease by Lessee
herein named or by any subsequent owner of such estate and notwithstanding the
assumption by any transferee of the obligations of the Lessee hereunder, Lessee
herein named, as between Lessor and Lessee herein named, shall remain primarily
liable as primary obligor and not as a surety, for the full and prompt payment
and performance of Lessee's obligations hereunder and, without limiting the
generality of the foregoing or of Article 28, shall remain fully and directly
responsible and liable to Lessor for all acts and omissions on the part of any
transferee subsequent to it in violation of any obligation of this Lease.
Page 25 of 40
ARTICLE 25 - CHANGES AND ALTERATIONS BY LESSEE
SECTION 25.01.A. Lessee shall have no right to make any alteration, change,
additions or improvement, structural or otherwise (an "Alteration"), to the
Demised Premises or any appurtenances thereto without the prior written consent
of Lessor in each instance, which consent shall not be unreasonably withheld.
B. If Lessor shall grant its consent to the making of an Alteration, then
the same shall (i) be performed at the sole cost and expense of Lessee, (ii) be
performed in a good and workmanlike manner, and in compliance with all
applicable Legal Requirements (including existing zoning requirements),
Insurance Requirements and Environmental Laws, (iii) be consistent with the use
of the Demised Premises provided for herein, (iv) not in any way render the
Demised Premises other than a complete, self containing operating unit, (v) in
the case of a structural alteration, be performed in accordance with plans and
specifications approved prior to the commencement of any work by the appropriate
Governmental Authorities and by Lessor, (vi) be of such nature so as not to
lessen the fair market value of the Demised Premises, and (vii) be performed
under the supervision of a licensed architect approved by Lessor and in
accordance with Lessor's STANDARD REQUIREMENTS FOR ALTERATIONS TO BE PERFORMED
BY LESSEES', as may be amended from time to time.
SECTION 25.02.A. Any and all Alterations made in accordance with
Section 25.01 shall immediately become the property of Lessor, PROVIDED,
HOWEVER, that if, in accordance with the provisions of Sections 25.02.B and
29.02, Lessee shall have the option to and shall remove its trade fixtures,
provided that same are not affixed to or such removal would otherwise damage the
Demised Premises, then the same shall cease to be property of the Lessor upon
removal.
B. Unless Lessor shall otherwise expressly indicate in writing at the time
of granting its consent to the making of a proposed Alteration, Lessee shall, as
and when provided in Section 29.02, restore the affected portion of the Demised
Premises to the state or condition thereof existing prior to the making of such
Alteration.
C. Any and all contractors to be involved in performing work shall be
subject to Lessor's prior approval, which shall not be unreasonably withheld.
D. Prior to commencing any work at the Demised Premises, Lessee shall
furnish Lessor with evidence reasonably satisfactory to Lessor of such insurance
as Lessor may require and such insurance shall be in full force and effect
during such work and will cover, by endorsement or otherwise, the risk during
the course of such work.
E. In the event of any Alteration as provided for in this Article, the Rent
payable hereunder shall not be reduced or abated in any manner whatsoever,
except as specifically provided for in Article 3 hereof.
F. No Alterations shall involve the removal of any fixtures, equipment or
other property in the Demised Premises which are not Lessee's property, unless
Lessor's prior written consent is first obtained and unless such fixtures,
equipment or other property shall be promptly replaced, at Lessee's expense and
free of superior title, liens and claims, with fixtures, equipment or other
property (as the case may be) of like utility and at least equal value (which
replaced fixtures, equipment or other property shall thereupon become the
property of Lessor), unless Lessor shall otherwise expressly consent in writing.
SECTION 25.03. Notwithstanding anything herein to the contrary, Lessor
(which term shall mean Lessor and/or Lessor's affiliated general contractor)
shall have the right to bid on any and all Alterations pursuant to Article 25 of
this Lease. In the event that Lessor is not the successful bidder, then in such
event, Lessor (which term shall mean Lessor and/or Lessor's affiliated general
contractor) shall be entitled to a general supervisory fee of Five (5%) percent
to supervise all such Alterations.
ARTICLE 26 - CERTIFICATE OF LESSEE
SECTION 26.01. Lessee agrees at any time and from time to time, within
twenty (20) days after receiving written request by Lessor, to execute,
acknowledge and deliver a statement certifying (i) the Commencement Date and/or
Rent Commencement Date hereunder, (ii) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the Lease is in full
force and effect as modified and stating the modifications), (iii) the dates to
which the Fixed Rent and Additional Rent have been paid, and (iv) whether or not
to the knowledge of
Page 26 of 40
the signer of such statement (a) Lessor is in default in keeping, observing or
performing any term, covenant, agreement, provision, condition or limitation
contained in this Lease and, if in default, specifying each such default,
(b) either party is holding any funds under this Lease in which the other has an
interest (and, if so, specifying the party holding such funds and the nature and
amount thereof), and (c) there is any amount then due and payable to Lessee by
Lessor, it being intended that any such statement delivered pursuant to this
Section may be relied upon by Lessor, any mortgagee, superior lessor or any
person who may and does become a mortgagee, superior lessee, any person who may
and does become a purchaser or assignee of Lessor's interest in this Lease or
the mortgagee's interest in any mortgage or the Lessor's interest in the
Superior Lease.
ARTICLE 27 - ASSIGNMENTS, SUBLEASES AND MORTGAGES
SECTION 27.01.A. Except as otherwise specifically provided in this Article,
neither this Lease, nor the Term and estate hereby granted, nor any part
thereof, nor the interest of Lessee in any sublease or the rental thereunder,
shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by
Lessee or Lessee's legal representatives or successors in interest, by operation
of law or otherwise, and neither the Demised Premises, nor any part thereof, nor
any Lessee's Property, shall be encumbered in any manner by reason of any act or
omission on the part of Lessee or anyone claiming under or through Lessee, or
shall be sublet or be used or occupied or permitted to be used or occupied or
utilized for desk or storage space by anyone other than Lessee or for any
purpose other than as specifically permitted by this Lease, without the prior
written consent of Lessor in each case, which consent may be withheld for any
reason whatsoever. If Lessee is other than a public company, a transfer
(including any issuance of stock) of an aggregate of fifty (50%) percent or more
stock, partnership interest or other equity interest in Lessee by any party or
parties in interest shall be deemed an assignment of this Lease.
B. If Lessee is a corporation, upon at least thirty (30) days prior notice
to Lessor, this Lease in its entirety may be assigned without Lessor's consent
to a corporation into which Lessee merges or consolidates, or which controls, is
controlled by or under common control with Lessee, so long as the Demised
Premises continue to be used for the use described in Article 4 of this Lease;
the transfer is not principally for the purpose of transferring the leasehold
estate created hereby; the net worth of the assignee is at least equal to or in
excess of the net worth of Lessee at the time of execution of this Lease and
immediately prior to such assignment or the assignee can otherwise secure and
guaranty the payment to Lessor of all rent and any other amounts due from Lessee
pursuant to this Lease in a manner reasonably satisfactory to Lessor; the
assignee assumes by documents satisfactory to Lessor all of Lessee's obligations
to be performed under this Lease, and; provided such assignment shall be subject
to all of the other terms and conditions of this Lease.
SECTION 27.02. If this Lease be assigned, whether or not in violation of
the provisions of this Lease, Lessor may collect rent from the assignee, and
Lessor shall be entitled to receive, as Additional, Rent, all the excess
consideration paid to Lessee in connection with such assignment as shall for any
period exceed the aggregate of the Rents payable under this Lease (the "Excess
Consideration"). Such Excess Consideration shall be reduced by the reasonable
cost of tenant improvements, rent concessions, and brokerage commissions
reasonably incurred by Lessee for such assignment, and the net amount thereof
shall be paid to Lessor either: (i) in a lump sum, (ii) or allocated to such
period on a straight line basis over the term of such assignment if paid in
installments, as the case may be, promptly after receipt thereof by Lessee. The
provisions of the preceding sentence shall be in full force and effect
notwithstanding that Lessee has sought the protection of any provisions of the
bankruptcy law (as hereinafter defined) or if a petition has been filed against
Lessee under such bankruptcy law. If the Demised Premises or any part thereof
be sublet or be used or occupied by anybody other than Lessee, whether or not in
violation of this Lease, Lessor may, after default by Lessee and expiration of
Lessee's time to cure such default, if any, collect rent from the sublessee or
occupant. In either event, Lessor may apply the net amount collected to the
rents herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 27.01,
or the acceptance of the assignee, sublessee or occupant as tenant, or a release
of Lessee from the further performance by Lessee of Lessee's obligations under
this Lease. The consent by Lessor to an assignment, mortgaging or subletting
pursuant to any provision of this Lease shall not in any way be considered to
relieve Lessee from obtaining the express consent of Lessor for any other or
further assignment, mortgaging or subletting. References in this Lease to use
or occupancy by anyone other than Lessee shall not be construed as limited to
sublessees and those claiming under or through sublessees but as including also
licensees and others claiming under or through Lessee, immediately or remotely.
The listing of any name other than that of Lessee on any door of the Demised
Premises or on any sign on the Demised Premises, or
Page 27 of 40
otherwise, shall not operate to vest in the person so named any right or
interest in this Lease or in the Demised Premises, or be deemed to constitute,
or serve as a substitute for, any prior consent of Lessor required under this
Article, and it is understood that any such listing shall constitute a privilege
extended by Lessor which shall be revocable at Lessor's will by notice to
Lessee. Lessee agrees to pay to Lessor any reasonable counsel fees incurred by
Lessor in connection with any proposed assignment of Lessee's interest in this
Lease or any proposed subletting of the Demised Premises or any part thereof.
Neither any assignment of Lessee's interest in this Lease nor any subletting,
occupancy or use of the Demised Premises or any part thereof by any person other
than Lessee as provided in this Article, nor any application of any such rent as
provided in this Article shall, under any circumstances, relieve Lessee herein
named of its obligations fully to observe and perform the terms, covenants and
conditions of this Lease on Lessee's part to be observed and performed.
SECTION 27.03.A. Notwithstanding anything contained in Sections 27.01 and
27.02, in the event that, at any time or from time to time during the Term,
Lessee desires to sublet all or any part of the Demised Premises, Lessee shall
notify Lessor of such desire and shall: (i) submit to Lessor in writing the name
and address of the proposed subtenant, a reasonably detailed statement of the
proposed subtenant's business, reasonably detailed financial references for the
proposed subtenant and any other information reasonably requested by Lessor, and
(ii) submit to Lessor a copy of the proposed sublease.
B. If a proposed assignment or sublease requires Lessor's consent, then
upon receipt of such notice Lessor shall thereupon have the option and right,
exercisable within ten (10) days of receipt of such notice from Lessee, to
terminate this Lease effective as of a date specified by Lessor in such notice
which date shall not be later than thirty (30) days after the date of Lessor's
notice. Notwithstanding the foregoing, Lessor shall not have the right to
terminate this Lease in connection with a collateral assignment of the Lease
which Lessor has consented to.
C. If within fifteen (15) days after Lessee shall have requested the
consent of Lessor to any assignment or subletting under this Article, and shall
have submitted all items required hereby, Lessor does not exercise its option to
terminate this Lease, the term of the proposed assignment or sublease may
commence upon Lessor's consent, which consent may not be unreasonably withheld,
it being agreed that if within such fifteen (15) day period Lessor does not
advise Lessee that such consent is not granted, such consent shall be deemed
granted by Lessor. Lessor, however, shall not in any event be obligated to
consent to the proposed sublease or the commencement of the term unless: (i) in
the reasonable judgment of Lessor the proposed subtenant is of a character and
financial worth such as is in keeping with the standards of Lessor in those
respects for the Demised Premises, and the nature of the proposed subtenant's
business and its reputation are in keeping with the character of the Demised
Premises and the use thereof, (ii) the purpose for which the proposed subtenant
intends to use the portion of the Demised Premises sublet to it are uses
expressly permitted by and not expressly prohibited by this Lease; (iii) the
proposed sublease shall prohibit any further assignment or subletting, except in
accordance with the terms of this Lease; (iv) no Event of Default shall have
occurred and be continuing and (v) Lessee shall reimburse Lessor for all
reasonable costs that may be incurred by Lessor in connection with any sublease
or assignment, including the costs of making investigations as to the
acceptability of a proposed subtenant or assignee and legal costs incurred in
connection with the granting of any requested consent.
D. With respect to each and every subletting authorized by the provisions
of this Article it is further agreed and understood between Lessor and Lessee
that: (i) the subletting shall be, and each such sublease shall expressly
provide that is, subject and subordinate at all times and in all respects, to
this Lease, (ii) no subletting shall be for a term ending later than one day
prior to the Expiration Date originally provided for herein and that part, if
any, of the proposed term of any sublease which shall extend beyond a date one
day prior to the Expiration Date originally provided for herein (or any sooner
date of the expiration of the term or termination of this Lease) is hereby
deemed to be a nullity, (iii) there shall be delivered to Lessor, within ten
(10) days after the commencement of the term of the proposed sublease, notice of
such commencement and a fully executed copy of the proposed sublease (unless
previously submitted) and (iv) Lessee shall pay to Lessor, as Additional Rent,
all of the rents, additional charges and other consideration arising from such
subletting as shall for any period exceed the aggregate of the Rents payable
under this Lease for the subleased space of the same period less the brokerage
commissions and attorneys' fees and disbursements reasonably incurred by Lessee
for such subletting, allocated to such period on a straight line basis over the
term of such subletting.
E. Anything herein contained to the contrary notwithstanding: (i) Lessee
shall not advertise but may list its space for subletting or assignment, and may
list its space at a rental rate
Page 28 of 40
lower than the rental rate then being paid by Lessee to Lessor only with respect
to subletting (but not assignment) and (ii) No assignment or subletting shall be
made to any person or entity which shall at that time otherwise be a tenant,
sub-tenant or other occupant of any part of the Property or which shall within
the prior six (6) months have been negotiating with Lessor to become such a
tenant, sub-tenant or occupant of the Property, unless such person or entity
desires the Demised Premises solely for expansion purposes and not for
relocating its business and Lessor has no space available to satisfy such person
or entity's needs.
ARTICLE 28 - SUBORDINATION
SECTION 28.01. Subject to the provisions of Section 28.02, this Lease, and
all rights of Lessee hereunder, are and shall be subject and subordinate in all
respects to (a) all present and future ground leases, overriding leases and
underlying leases and/or grants of term of the Property, the Building, the
Building Equipment and/or any appurtenance thereto of which Lessor has notified
Lessee (collectively, the "Superior Lease"), (b) all mortgages and building loan
agreements, including leasehold mortgages, deeds of trust, and building loan
agreements, which may now or hereafter affect the Property, the Building, the
Building Equipment and/or any appurtenance thereto, of which Lessor has notified
Lessee (collectively, the "Mortgage"), whether or not the Mortgage shall also
cover other land and/or buildings, and (c) each and every advance made or
hereafter to be made under the Mortgage and to all renewals, modifications,
replacements, substitutions and extensions of any Superior Lease and the
Mortgage and spreaders and consolidations of the Mortgage. The provisions of
this Section shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Lessee shall promptly
execute and deliver, at its own cost and expense, an instrument in recordable
form to evidence such subordination. If, in connection with the obtaining,
continuing or renewing of financing for which the Demised Premises or the
interest of the lessee under the Superior Lease represents collateral in whole
or in part, a bank, insurance company or other lender shall request reasonable
modifications of this Lease as a condition of such financing, Lessee will not
unreasonably withhold or delay its consent thereto, provided that such
modifications do not increase the monetary obligations of Lessee under this
Lease or materially increase the other obligations of Lessee hereunder or
materially and adversely affect the rights of Lessee under this Lease.
Notwithstanding the foregoing, Lessor represents that as of the date hereof, the
Property and Building are not encumbered by a Superior Lease or Mortgage.
SECTION 28.02. The subordination provided in Section 28.01 shall be
effective as between Lessee herein named and any lessor under a future Superior
Lease, or any holder of a future Mortgage, as the case may be, only if such
lessor or holder delivers to Lessee an agreement providing in substance, that if
and so long as no Event of Default shall have occurred and be continuing, this
Lease shall continue upon its then executory terms and conditions and possession
of the Demised Premises held by Lessee herein named will not be disturbed by
such person in the event of a default under the underlying lease or the
Mortgage, as the case may be. The foregoing provisions of this Section shall
endure to the benefit of Lessee herein named and shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the termination of the
Superior Lease, or the foreclosure (including judgment of foreclosure and sale)
of the Mortgage.
SECTION 28.03. If at any time prior to the expiration of the Term, the
holder of the Mortgage shall become the owner of the Demised Premises as a
result of foreclosure of its mortgage or by reason of an assignment of the
lessee's interest under any such lease or conveyance of the Demised Premises,
Lessee agrees, at the election and upon demand of any owner of the Demised
Premises, or of the holder of any Mortgage or Superior Lease (including a
leasehold mortgage) in possession of the Demised Premises, to attorn, from time
to time, to any such owner, or lessee, upon the then executory terms and
conditions of this Lease, provided that such owner, holder or lessee, as the
case may be, shall then be entitled to possession of the Demised Premises. No
such owner, holder or lessee shall be liable for any previous acts or omission
of Lessor under this Lease (except that this provision shall not be construed to
relieve such person from any obligation thereafter to be performed), nor shall
such owner, holder or Lessee be subject to any offset which shall have
theretofore accrued to Lessee against Lessor, or be bound by any previous
modification of this Lease, not expressly provided for in this Lease, entered
into after the date of the Mortgage, or Superior Lease, or by any previous
prepayment of more than one month's Fixed Rent. The foregoing provisions of
this Section shall enure to the benefit of any such owner, holder or lessee,
shall apply notwithstanding that, as a matter of law, this Lease may terminate
upon the termination of the Superior Lease, or the foreclosure (including
judgment of foreclosure and sale) of the Mortgage, shall be self-operative upon
any such demand, and no further instrument shall be required to give effect to
said provisions. Lessee, however, upon demand of any such owner, holder or
lessee, agrees to execute, from time
Page 29 of 40
to time, instruments in confirmation of the foregoing provisions of this
Section, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section shall be construed
to impair any right otherwise exercisable by any such owner, holder or lessee.
ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY
SECTION 29.01. On the last day of the Term or on the earlier termination of
the Term, Lessee shall peaceably and quietly leave, surrender and deliver the
Demised Premises to Lessor, together with (a) all alterations, changes,
additions and improvements, which may have been made upon the Demised Premises,
and (b) except for Lessee's Property, all fixtures and articles of personal
property of any kind or nature which Lessee may have installed or affixed on,
in, or to the Demised Premises for use in connection with the operation and
maintenance of the Demised Premises (whether or not said property be deemed to
be fixtures), all of the foregoing to be surrendered in good, substantial and
sufficient repair, order and condition, reasonable use, wear and tear, and
damage by fire or other casualty, excepted, and free of occupants and
sublessees.
SECTION 29.02. On or prior to the Expiration Date or any earlier
termination of this Lease, Lessee shall remove Lessee's Property, and any items
referred to in clauses (a) or (b) of Section 29.01, which Lessor shall request
Lessee to remove (unless Lessor shall have waived such right as to any item
referred to in clause (a) of Section 29.01 at the time of the granting of
consent with respect thereto under Article 25), and Lessee shall pay or cause to
be paid the cost of repairing or remedying any damage caused thereby, provided
that no item of Lessee's Property may be removed if its removal would impair the
integrity (structural or otherwise) of the Building or Building Equipment. All
property not so removed shall be deemed abandoned and may either be retained by
Lessor as its property or disposed of, without accountability, at Lessee's sole
cost, expense and risk, in such manner as Lessor may see fit.
SECTION 29.03. If the Demised Premises are not surrendered in accordance
with the provisions of this Article upon the expiration or termination of this
Lease, Lessor shall have all rights given at law or in equity, in the case of
holdovers, to remove Lessee and anyone claiming through or under Lessee. In any
event, Lessee shall and does hereby indemnify Lessor against all loss or
liability arising from delay by Lessee in so surrendering the Demised Premises,
including any claims made by and succeeding lessees founded on such delay.
Lessee expressly waives, for itself and for any person claiming through or under
Lessee (including creditors), any rights which Lessee or any such person may
have under the provisions of any law in connection with any holdover summary
proceedings which Lessor may institute to enforce the provisions of this
Article. Lessee's obligations under this Article shall survive the expiration
or termination of this Lease.
SECTION 29.04. Lessee acknowledges the extreme importance to Lessor that
possession of the Demised Premises be surrendered at the expiration or sooner
termination of this Lease. In the event that Lessee fails to vacate the Demised
Premises at the expiration or sooner termination of this Lease, Lessee shall be
obligated to pay Lessor damages in an amount equal to twice the amount of annual
Fixed Rent and Additional Rent provided for on the day preceding the Expiration
Date for such period of time that Lessee holds over on a per diem basis.
ARTICLE 30 - RENEWAL TERM
SECTION 30.01. Lessee named herein, shall have the right, at its option, to
extend this Lease for a term ("Renewal Term") of five (5) years (to commence on
the Expiration Date originally provided for herein and to end at noon on the
Fifth (5th) Anniversary of such Expiration Date originally provided for herein)
by giving Lessor notice of such election at any time but not less than Nine (9)
months prior to the Expiration Date originally provided for herein (time being
of the essence with respect thereto), and upon the giving of such notice this
Lease thereupon shall, subject to the provisions of Section 30.02, be
automatically extended for the Renewal Term with the same force and effect as if
the Renewal Term had been originally included in the Term, without the execution
of any further instrument.
SECTION 30.02. Any notice of election to exercise the option to extend as
hereinbefore provided must be in writing and sent to Lessor as provided in
Article 21. Neither the option granted to Lessee in this Article to extend the
Term, nor the exercise of such option by Lessee, named herein shall prevent
Lessor from exercising any option or right granted or reserved to Lessor in this
Lease to terminate this Lease, and the effective exercise of any such right of
termination by Lessor shall terminate any such renewal or extension and any
right of Lessee to
Page 30 of 40
any such renewal or extension, whether or not Lessee shall have exercised any
such option to extend the Term. Any such option or right on the part of Lessor
to terminate this Lease pursuant to the provisions hereof shall continue during
any Renewal Term.
SECTION 30.03. All of the terms, covenants and conditions of this Lease
shall continue in full force and effect during the Renewal Term except that
(i) the Fixed Rent for the Renewal Term shall be as provided in Section 30.04
(all other rent and charges payable by Lessee remaining unaffected), and
(b) there shall be no further privilege of extension of this Lease beyond the
Renewal Term.
SECTION 30.04.A. During the Renewal Term, Lessee shall pay to Lessor annual
Fixed Rent, at the same times and in the same manner as in the Term originally
provided for, at the annual rate equal to the annual fair rental value of the
Demised Premises (with deduction for the cash value of free rent and leasehold
improvements), which renewing, non-equity tenants are then receiving in
connection with a lease for comparable space in a building of the same age,
quality, size, location, services, amenities, quality of construction and
appearance to that of the Building on the date of the commencement of the
Renewal Term with a term equal to the Renewal Term and otherwise containing the
same provisions as this Lease contains, as determined by agreement between
Lessor and Lessee. If, prior to the commencement of the Renewal Term, Lessor
and Lessee are unable to agree on the amount of the annual Fixed Rent during the
Renewal Term, then in such event, the determination of such annual fair rental
value shall be made by arbitration pursuant to the provisions of
Section 30.04.B. hereof. If the Renewal Term shall commence prior to
determination of the amount of annual Fixed Rent payable during the Renewal
Term, either by agreement or by decision of the arbitrators, Lessee, in the
meantime, shall pay the monthly installments of Fixed Rent at the annual rate
payable under this Lease for the year ending on the Expiration Date originally
provided for herein. If monthly installments of the amount agreed upon by
Lessor and Lessee, or found by the arbitrators, shall be greater than such
amount, then Lessee, forthwith after such agreement or arbitrator's decision,
shall pay to Lessor, for the period from the commencement of the Renewal Term to
the last day of the calendar month in which the agreement or the arbitrators'
decision takes effect, the difference between the monthly installments actually
paid and the monthly installments which should have been paid in accordance with
such agreement or arbitrators' decision, together with interest at the prime
rate plus two (2%) percent from the respective due dates of each monthly
installment to the date of payment pursuant to this paragraph; and, thereafter,
Lessee shall pay the monthly installments at the new rate. In no event shall
the annual Fixed Rent during the Renewal Term be less than the annual Fixed Rent
payable immediately prior to the Renewal Term.
B.(1) In the event that Lessor and Lessee are unable to agree on the amount
of the annual Fixed Rent during the Renewal Term, then either Lessor or Lessee
(hereinafter referred to as the "Initiating Party") may give the other party
(hereinafter called the "Responding Party") a notice designating the name and
address of the arbitrator designated by the Initiating Party to act on its
behalf in the arbitration process hereinafter described (the "Review Notice").
(2) If the Initiating Party gives a Review Notice, then within twenty (20)
days after giving of such Review Notice, the Responding Party shall give notice
to Initiating Party specifying in such notice the name and address of the
arbitrator designated by the Responding Party to act on its behalf. In the
event the Responding Party shall fail to give such notice within such twenty
(20) day period, then the appointment of such arbitrator shall be made in the
same manner as hereinafter provided for the appointment of a third arbitrator in
a case where two arbitrators are appointed hereunder and the parties are unable
to agree to such appointment. The two arbitrators so chosen shall meet within
thirty (30) days after the second arbitrator is appointed and shall exchange
sealed envelopes each containing such arbitrators written determination of the
fair market rent of the Demised Premises based on the criteria set forth in
Section 30.04.A. The fair market rent specified by Lessor's arbitrator shall be
called the "Lessor's Submitted Value" and the fair market rent specified by
Lessee's arbitrator shall be called the "Lessee's Submitted Value." Copies of
such written determinations shall promptly be sent to both Lessor and Lessee.
Any failure of either such arbitrator to meet and exchange such determinations
shall be acceptance of the other party's arbitrator's determination as to fair
market rent, if, and only if, such failure persists for five (5) days after
notice to whom such arbitrator is acting, and, provided that such five (5) day
period shall be extended by reason of any Unavoidable Delay. If the higher
determination of the fair market rent for the Demised Premises is not more than
one hundred and five (105%) percent of the lower determination of the fair
market rent, then the fair market rent for such space shall be deemed to be the
average of the two determinations. If, however, the higher determination is
more than one hundred and five (105%) percent of the lower determination, then
within ten (10) days of the date the arbitrators submitted their respective fair
market rent determinations, the two arbitrators shall appoint a third
arbitrator. In the event of
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their being unable to agree upon such appointment within ten (10) days after the
exchange of the sealed envelopes, the third arbitrator shall be selected by the
parties themselves if they can agree thereon within a further period of 10 days.
If the parties do not so agree, then either party, on behalf of both and on
notice to the other, may request such an appointment by the American Arbitration
Association (or any successor organization) in accordance with its rules then
prevailing or if the American Arbitration Association (or any successor
organization) shall fail to appoint said third arbitrator within fifteen (15)
days after such request is made, then either party may apply for such
appointment, on notice to the other, to the President of the Westchester County
Bar Association (who may consult with the Chairman of the Real Property Law
Committee of the Westchester County Bar Association). Within ten (10) days
after the appointment of such third arbitrator, the Lessor's arbitrator shall
submit Lessor's Submitted Value to such third arbitrator and the Lessee's
arbitrator shall submit Lessee's Submitted Value to such third arbitrator. Such
third arbitrator shall, within thirty (30) days after the end of such fifteen
(15) day period, make his own determination of the fair market rent of the
Demised Premises using the criteria set forth in Section 30.04.A. hereof, and
send copies of his determination promptly to both Lessor and Lessee specifying
whether Lessor's Submitted Value or Lessee's Submitted Value was closer to the
determination by such third arbitrator of the fair market rent of the Demised
Premises. Whichever of Lessor's Submitted Value or Lessee's Submitted Value
shall be closer to the determination by such third arbitrator shall conclusively
be deemed to be the fair market rent of the Demised Premises.
(3) In no event shall the arbitrators enlarge upon, or alter or amend, this
Lease or Lessor's or Lessee's rights as provided in this Lease, it being
understood that the sole issue for determination by the arbitrators shall be the
single issue of fact of the annual fair rental value of the Demised Premises as
provided in paragraph A of this Section 30.01.
(4) Except as otherwise provided in the following sentence, the fees and
expenses of an arbitration proceeding shall be borne by the parties equally.
The fees of respective counsel engaged by the parties the fees and expenses of
expert witnesses and other witnesses called and the cost of transcripts shall be
borne by the parties engaging such counsel or, calling such witness or ordering
such transcripts.
SECTION 30.05. The rights provided to Lessee to extend this Lease as
provided in Section 30.01 is conditioned in all respects upon (i) there being no
Event of Default in the observance or performance of any term, covenant,
condition or agreement of Lessee's part to be observed or performed under this
Lease both at the time the notice of exercise is given and immediately prior to
commencement of the Renewal Term, and (ii) there being no sublease in effect
(other than subleases with related corporations) with respect to the Demised
Premises or any part thereof during the two (2) year period immediately
preceding the Expiration Date originally provided for herein. Any termination,
cancellation or surrender of this Lease shall terminate any right of extension
hereunder for the Renewal Term.
ARTICLE 31 - FIBER OPTIC NETWORK SERVICES
SECTION 31.01. From and after the Commencement Date, Lessor agrees that
Lessee shall have the right, subject to the rights of other lessees, and
Lessor's reasonable consent, which shall not be unreasonably withheld,
conditioned or delayed, to install, maintain, repair, remove and operate in the
Demised Premises and penetrate the Building in a location reasonably designated
by Lessor and utilize existing Building conduits and risers for the installation
and maintenance of fiber optic cables, PROVIDED, HOWEVER, that such fiber optic
cables do not exceed four (4) inches in diameter, in connection with Lessee's
fiber optic network (the "Fiber Optic Network") for the Term of this Lease or
any Renewal Term. Lessee shall notify Lessor of its intention to install, use
and maintain the Fiber Optic Network in accordance with the provisions of this
Lease.
SECTION 31.02. If Lessor shall grant its consent to the installation, use
or maintenance of the Fiber Optic Network, then the same shall (i) be installed
and maintained at the sole cost and expense of Lessee, (ii) be installed and
maintained in a good and workmanlike manner, in a location reasonably designated
by Lessor, and in compliance with all applicable Legal Requirements (including
existing zoning requirements), Insurance Requirements and Environmental Laws,
(iii) be consistent with the use of the Demised Premises provided for herein,
(iv) be performed in accordance with plans and specifications approved prior to
the commencement of any work by the appropriate Governmental Authorities and by
Lessor, which approval by Lessor will not be unreasonably withheld, conditioned
or delayed, (v) be of such nature so as not to lessen the fair market value of
the Building or Property, and (vi) be performed under the supervision of a
licensed architect reasonably approved by Lessor and in accordance
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with Lessor's STANDARD REQUIREMENTS FOR ALTERATIONS TO BE PERFORMED BY LESSEES,
as may be reasonably amended from time to time.
SECTION 31.03.A. Unless Lessor shall otherwise expressly indicate in
writing at the time of granting its consent to the installation of the Fiber
Optic Network, Lessee shall, on or before the expiration or sooner termination
of this Lease as and when provided in Section 29.02, remove the Fiber Optic
Network and restore the affected portion of the Demised Premises and Building to
the state or condition thereof existing prior to the installation of the Fiber
Optic Network.
B. Any and all contractors to be involved in performing work shall be
subject to Lessor's prior approval, which shall not be unreasonably withheld,
conditioned or delayed.
C. Prior to installing the Fiber Optic Network, Lessee shall furnish Lessor
with evidence reasonably satisfactory to Lessor of such insurance as Lessor may
require and such insurance shall be in full force and effect during such
installation and will cover, by endorsement or otherwise, the risk during the
course of such installation.
SECTION 31.04. All of the terms, covenants and conditions of this Lease
shall continue in full force and effect.
SECTION 31.05. The right of Lessee to install, use or maintain the Fiber
Optic Network as provided in Section 31.01 is conditioned in all respects upon
there being no material Event of Default in the observance or performance of any
term, covenant, condition or agreement on Lessee's part to be observed or
performed under this Lease both at the time the notice is given. Any
termination, cancellation or surrender of this Lease shall terminate Lessee's
right to install, use or maintain the Fiber Optic Network.
ARTICLE 32 - BROKERS
SECTION 32.01. The parties represent that in connection with this Lease it
dealt with no broker other than Austin Corporate Properties, Inc. and
Insignia/ESG (the "Brokers"), nor has either party had any correspondence or
other communication in connection with this Lease with any other person who is a
broker, and that so far as the parties are aware the Brokers are the only
brokers who negotiated this Lease. Each party hereby indemnifies the other
party and holds it harmless from any and all loss, cost, liability, claim,
damage, or expense (including court costs and attorneys' fees) arising out of
any inaccuracy of the above representation. Lessor agrees to pay the Brokers
all commissions due for their services pursuant to a separate written agreement.
ARTICLE 33 - SECURITY DEPOSIT
SECTION 33.01.A. Lessee shall deposit with Lessor, upon execution of this
Lease, the sum of One Hundred and Thirty-Six Thousand, Eight Hundred and Four
and 00/100 ($136,804.00) Dollars either in cash or by Letter of Credit as
provided in Section 33.02 as security for the faithful performance and
observance by Lessee of the terms, provisions, conditions and covenants of this
Lease (the "Security Deposit"). Lessee agrees that, in the event that Lessee
defaults, beyond all applicable grace and cure periods after notice, in respect
of any terms, provisions, conditions and covenants of this Lease (including the
payment of Rent), Lessor may use, apply or retain the whole or any part of the
cash security so deposited or may notify the Issuing Bank (as such term is
defined in Section 33.02) and thereupon receive all of the monies represented by
the said Letter of Credit and use, apply, or retain the whole or any part of
such proceeds, as the case may be, to the extent required for the payment of
Rent, or any other sums as to which Lessee is in default, or for any sum that
Lessor may expend or may be required to expend by reason of Lessee's default, in
respect of the terms, provisions, conditions and covenants of this Lease
(including any damages or deficiency accrued before or after summary proceedings
or other re-entry by Lessor). In the event that Lessor applies or retains any
portion or all of such cash security or proceeds of such Letter of Credit, as
the case may be, Lessee shall forthwith restore the amount so retained or
applied.
B. In the event that the Security Deposit hereunder is in cash, Lessor
agrees to maintain such cash in an interest bearing account with the interest to
be added as additional security, except that Lessor shall be entitled to an
administrative fee of One (1%) percent per annum to administer the account.
Page 33 of 40
SECTION 33.02. In lieu of a cash deposit, Lessee may deliver to Lessor a
clean, irrevocable and unconditional Letter of Credit issued by and drawn upon
any commercial bank reasonably acceptable to Lessor (the "Issuing Bank") with
offices for banking purposes in the City of New York, which Letter of Credit
shall have a term of not less than one year, be in a form and content reasonably
satisfactory to Lessor, be for the account of Lessor and be in the amount of One
Hundred and Thirty-Six Thousand, Eight Hundred and Four and 00/100 ($136,804.00)
Dollars, subject to reduction as provided for herein. The Letter of Credit
shall provide that:
A. the Issuing Bank shall pay to Lessor an amount up to the face
amount of the Letter of Credit upon presentation of only the Letter of
Credit, a sight draft in the amount to be drawn and an affidavit of
default;
B. the Letter of Credit shall be deemed to be automatically renewed,
without amendment, for consecutive periods of one year during the Term of
this Lease, unless the Issuing Bank sends written notice ("Non-Renewal
Notice") to Lessor by certified or registered mail, return receipt
requested, not less than thirty (30) days next preceding the then
expiration date of the Letter of Credit that it elects not to renew such
Letter of Credit;
X. Xxxxxx, after receipt of the Non-Renewal Notice, shall have the
right, exercisable by a sight draft only, to receive the moneys represented
by the Letter of Credit (which moneys shall be held by Lessor as a cash
deposit pursuant to the terms of this Article 33 pending replacement of
such Letter of Credit); and
D. Upon Lessor's sale of the Property, or Lessor's interest therein,
or a leasing of the Property, the Letter of Credit shall be transferable by
Lessor as provided in Section 33.04.
SECTION 33.03. In the event of a sale of the Property, or Lessor's interest
therein, or of a leasing of the Property, Lessor shall transfer the cash
security or Letter of Credit, as the case may be, deposited hereunder to the
vendee or lessee, and Lessor shall thereupon be released by Lessee from all
liability for the return of such cash security or Letter of Credit to a new
lessor, provided that such new lessor assumes all of Lessor's obligations with
respect to such cash security or Letter of Credit. Lessee shall execute such
documents as may be necessary to accomplish such transfer or assignment of the
Letter of Credit.
SECTION 33.04. Lessee covenants that it will not assign or encumber, or
attempt to assign or encumber the monies or Letter of Credit deposited hereunder
as security, and that neither Lessor nor its successors and/or assigns shall be
bound by any such assignment, or attempted encumbrance.
SECTION 33.05. In the event that Lessee shall fully and faithfully comply
with all of the terms, provisions, conditions and covenants of this Lease, and
provided further, that no Event of Default shall have occurred and be
continuing, the Security Deposit shall be returned to Lessee within thirty (30)
days after Lessee delivers possession of the Demised Premises to Lessor as
provided for in this Lease.
ARTICLE 34 - DEFINITIONS
SECTION 34.01. For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) "Additional Rent" shall mean all sums of money, other than Fixed
Rent, as shall become due from and payable by Lessee hereunder.
(b) "Building" shall mean the building, structures and improvements,
and related facilities, including paved areas and all parking lots adjacent
and/or appurtenant thereto (other than "Building Equipment," as such term
is herein defined) known as The Gateway and located at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, now or hereafter erected, constructed
or situated on the land underlying or appurtenant to the Building or any
part thereof, together with all alterations, additions and improvements
thereto and all restorations and replacements thereof.
(c) "Building Equipment" shall mean all machinery, systems, apparatus,
facilities, equipment and fixtures of every kind whatsoever now or
hereafter belonging, attached to and used exclusively (whether or not same
constitute fixtures), or procured
Page 34 of 40
for exclusive use, in connection with the operation or maintenance of the
Building and/or Property, including water, sewer and gas connections, all
heating, electrical, lighting, and power equipment, engines, furnaces,
boilers, pumps, tanks, dynamos, motors, generators, conduits, plumbing,
cleaning, fire prevention, refrigeration, ventilating, air cooling, air
conditioning equipment and apparatus, cranes, elevators, escalators, ducts
and compressors and any and all replacements thereof and additions thereto;
but excluding, however, (i) Lessee's Property, (ii) property of any
sublessee which sublessee may be authorized to remove from the Building
upon and subject to the terms and conditions of its sublease and this
Lease, (iii) property of contractors servicing the Building, and
(v) improvements for water, gas, and electricity and other similar
equipment or improvements owned by any public utility company or any
governmental agency or body.
(d) "Cost" shall mean that Lessor will perform all such services on a
"cost plus" basis, whereby Cost shall include, but not be limited to, the
reasonable cost of sub-contractors, material, equipment rental,
transportation and delivery items, permits, fees, taxes, insurance's,
debris removal, demolition, safety protection, labor, supervision, project
management, purchasing, expediting and material handling, and shall also
include a contingency, based on the complexity of the work to be performed,
of up to five percent (5%) of the total of all such items otherwise
included within such definition (hereinafter collectively referred to as
the "Trades"). In addition, with respect to Lessor's Work as provided for
in Article 8 of this Lease or Alterations as provided for in Article 25 of
this Lease, Cost shall also include Lessor's fee for acting as general
contractor which shall be equal to: (i) Eighteen and Eighty Hundredths
(18.80%) of the total cost of the Trades, if such cost does not exceed One
Hundred Thousand and 00/100 ($100,000.00) Dollars; (ii) Sixteen and Sixty-
Three Hundredths (16.63%) Percent of the total cost of the Trades, if such costs
are between One Hundred, Thousand and One and 00/100 ($100,001.00) Dollars and
Three Hundred and Ninety Nine Thousand, Nine Hundred and Ninety-Nine and 99/100
($399,999.99) Dollars; or (iii) Fifteen and Fifty-Six Hundredths (15.56%)
Percent of the total cost of the Trades, if such costs are in excess of Four
Hundred Thousand and 00/100 ($400,000.00) Dollars, PROVIDED, HOWEVER, that with
respect to decorating only, such fee shall be applicable to labor and costs of
installation, but shall not be applicable to the cost of furniture, art and
similar items otherwise included therein. Lessee agrees that the same shall be
collectible as Additional Rent pursuant to the Lease, and in default of payment
thereof Lessor shall, in addition to all other remedies, have the same rights as
in the event of default of payment of rent.
(e) "Environmental Laws" shall mean any and all federal, state, local,
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or requirements of any Governmental Authority regulating, relating
to or imposing liability or standards of conduct concerning environmental
conditions at the Demised Premises, Building or Property as now or may at
any time hereafter be in effect, including but not limited to and without
limiting the generality of the foregoing, The Clean Water Act also known as
the Federal Water Pollution Control Act, 88 U.S.C. Sections 1251 ET SEQ.,
the Toxic Substance Control Act, 15 U.S.C. Sections 2601 ET SEQ., the Clean
Air Act, 42 U.S.C. Sections 7401 ET SEQ., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 186 ET SEQ., the Safe
Drinking Water Act, 42 U.S.C. Sections 300f ET SEQ., the Surface Mining
Control and Reclamation Act, Section 1201 ET SEQ., 80 U.S.C. Section 1201
ET SEQ., the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Sections 9601 ET SEQ., the Superfund
Amendment and Reauthorization Act of 1986 ("XXXX"), Public Law 99-499, 100
Stat. Section 1818, the Emergency Planning and Community Right to Know Act,
42 U.S.C. Sections 1101 ET SEQ., the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. Sections 6901 ET SEQ., and the Occupational Safety and
Health Act as amended ("OSHA"), 29 U.S.C. Section 655 and Section 657,
together with any amendments thereto, regulations promulgated thereunder
and all substitutions thereof.
(f) "Hazardous Material" shall mean (i) Any hazardous, toxic or
dangerous waste, substance or material defined as such in (or for the
purpose of) CERCLA, XXXX, BCRA, or any other Environmental Law as now or at
any time hereafter in effect; (ii) any other waste, substance or material
that exhibits any of the characteristics enumerated in 40 C.F.R. Sections
261.20 through 261.24, inclusive, and those extremely hazardous substances
listed under Section 902 of XXXX that are present in threshold planning or
reportable quantities as defined under XXXX and toxic or hazardous chemical
substances that are present in quantities that exceed exposure standards as
those terms are defined under Sections 6 and 8 of OSHA and 29 C.F.R. Part
1910; (iii) any asbestos or
Page 35 of 40
asbestos containing substances whether or not the same are defined as
hazardous, toxic, dangerous waste, a dangerous substance or dangerous
material in any Environmental Law, (iv) "Red Label" flammable materials;
(v) all laboratory waste and by-products; and (vi) all biohazardous
materials.
(g) "Insurance Requirements" shall mean the rules, regulations, orders
and other requirements of any insurance rating or regulatory organization
having jurisdiction of, and which are applicable to, the Demised Premises
and of any liability, casualty, or other insurance policy which either
Lessor or Lessee is required hereunder to maintain or may maintain
hereunder.
(h) "Legal Requirements" shall mean the requirements of every statute,
law, ordinance, regulation, rule requirement, order or directive, now or
hereafter made by any federal, state or local government or any department,
political subdivision, bureau, agency, office or officer thereof, or any
other governmental authority having jurisdiction (a "Governmental
Authority") with respect to and applicable to (i) the Demised Premises and
appurtenances thereto, and/or (ii) the condition, equipment, maintenance,
use or occupation of the Demised Premises, including the making of an
alteration or addition in or to any structure upon, connected with or
appurtenant to the Demised Premises.
(i) "Lessee's Delays" shall mean any and all delays caused by or
attributable to any action or failure or refusal of Lessee to perform a
duty of, Lessee or any person claiming through or under Lessee, or any
agent, servant, employee, director, shareholder, contractor or invitee of
Lessee or any such person.
(j) "Lessee's Property" shall mean all articles of personal property
and fixtures and other property, which have been installed or affixed on,
in or to, or brought into, the Demised Premises, at the expense of Lessee
or any permitted sublessee of Lessee or other permitted occupant of the
Demised Premises and without any credit or allowance by Lessor, which are
not replacements or any property of Lessor (whether any such replacement is
made at Lessee's expense or otherwise), and which do not constitute
alterations, changes, additions, or improvements to the Demised Premises or
any appurtenances thereto.
(k) "Lessee's Proportionate Share" shall mean a fraction the numerator
of which is equal to the rentable square footage that Lessee occupies in
the Demised Premises, and the denominator of which is equal to the total
rentable square footage of the Building as it presently exists or may
hereinafter be increased or enlarged. As of the date hereof, the total
rentable square footage of the Building shall be deemed to be Five Hundred
and Twenty-Two Thousand, Nine Hundred and Twenty (522,928). During the
period from the Initial Premises Commencement Date to the day preceding the
Additional Premises Commencement Date Lessee's Proportionate Share shall be
deemed to be Two and Eighty-Eight Hundredths (2.88%) percent. During the
period from the Additional Premises Commencement Date to the Expiration
Date (both dates inclusive) Lessee's Proportionate Share shall be deemed to
be Four and Eight Hundredths (4.08%) percent. Lessee and Lessor agree that
Lessee's Proportionate Share is not based upon any particular method of
measuring the Demised Premises and/or the Building and represents an agreed
upon percentage which shall not be contestable by Lessee at a future date.
(l) "Lessor's Agents" shall be deemed to include agents, servants,
employees, directors, officers, shareholders and contractors of Lessor.
(m) "Normal Working Hours" shall mean only those between the hours of
8:00 A.M. and 6:00 P.M., Monday through Friday, exclusive of New Years Day,
the day designated as the legal holiday for the celebration of President
Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and
Christmas Day, and all other holidays set forth in the contract between
Lessor and its Building employees as a holiday.
(n) "Unavoidable Delays" shall mean any and all delays beyond Lessor's
reasonable control, including Lessee's Delays, governmental restrictions,
governmental preemption, strikes, labor disputes, lockouts, shortages of
labor and materials, enemy action, civil commotions, riot, insurrection and
fire, other casualty and other acts of God.
(o) "Untenantable" shall mean actual inability to use space in the
Demised Premises for the purposes permitted by Section 4.01.
Page 36 of 40
SECTION 34.02. For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The terms "include," "including," and "such as" shall be construed
as if followed by the phrase "without being limited to."
(b) Whenever this Lease provides that Lessee shall pay Lessor interest
at the "maximum legal rate" then interest shall be payable at the highest
rate of interest permitted at the relevant time by applicable law to be
paid by Lessee without impairing the validity or enforceability of this
Lease and without incurring any civil or criminal penalty.
(c) The term "obligations of this Lease" and words of similar import,
shall mean the covenants to pay Fixed Rent and Additional Rent and all of
the other covenants and conditions contained in this Lease. Any provision
in this Lease that one party or the other or both shall do or not do or
shall cause or permit or not cause or permit a particular act, condition or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term "repair" shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working
order and condition.
(e) Reference to "substantially complete" and words of similar import
shall be deemed to mean, with regard to construction work, completion but
for such minor details of work, the non-completion of which would not
materially interfere with the utility of the affected space and if a
certificate is issued by an independent architect or engineer stating that
the work is substantially complete, then such determination shall be
conclusive and binding upon the parties to this Lease.
(f) Reference to "termination of this Lease" includes expiration or
earlier termination of the Term or cancellation of this Lease pursuant to
any of the provisions of this Lease or to law. Upon the termination of
this Lease, the Term and estate hereby granted by this Lease shall end at
noon on the date of termination as if such date were the date of expiration
of the Term and neither party shall have any further liability or
obligation to the other after such termination (i) except as shall be
expressly provided for in this Lease, and (ii) except for such obligations
as by their nature or under the circumstances can only be, or by the
provisions of this Lease, may be, performed after such termination, and, in
any event, unless expressly otherwise provided in this Lease, any liability
for a payment which shall have accrued to or with respect to any period
ending at the time of termination shall survive the termination of this
Lease.
ARTICLE 35 - MISCELLANEOUS
SECTION 35.01. This Lease shall be governed in all respects by the laws of
the State of New York applicable to leases made and to be performed wholly
therein.
SECTION 35.02. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, single or plural, as the identity of
the person or persons or entity or entities in question may require. The term
"person" shall be deemed to include individuals, corporations, partnerships,
joint ventures, firms, associations and other entities.
SECTION 35.03. All provisions of this Lease shall be deemed and construed
to be "conditions" as well as "covenants," as though the words specifically
expressing or importing covenants and conditions were used in each separate
provision hereof.
SECTION 35.04. If any provision of this Lease or application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
SECTION 35.05. The article headings in this Lease are inserted only as a
matter of convenience and reference and are not to be given any effect
whatsoever in construing this Lease.
SECTION 35.06. This Lease contains the entire agreement between the parties
regarding the Demised Premises and shall not be modified in any manner except by
an instrument in writing
Page 37 of 40
executed by the parties or their respective successors in interest. No waiver
or modification by either party or any provision or covenant of this Lease shall
be deemed to have been made unless such waiver is expressed in writing and
signed by the party against whom such waiver or modification is sought.
SECTION 35.07. Lessee agrees with Lessor that Lessee will not record this
Lease or any memorandum of this Lease without the prior written consent of
Lessor.
SECTION 35.08. The covenants, agreements, terms, provisions and conditions
contained in this Lease shall apply to and inure to the benefit of and be
binding upon Lessor and Lessee and their respective successors and assigns,
except as otherwise provided for herein.
SECTION 35.09. Upon request of Lessor at any time and from time to time,
Lessee and any such person shall submit to Lessor true, correct, current and
complete publicly available financial statements of Lessee and its affiliates,
if any.
SECTION 35.10. Solely for the purposes of a proceeding under the present or
future federal bankruptcy act or any other present or future applicable federal,
state or other statute or law (a "bankruptcy law"), the following terms and
conditions have been agreed upon by Lessor and Lessee:
(a) In the event of a default by Lessee under this Lease continuing
after the filing of a voluntary or involuntary petition (a "pre-petition
default") under any bankruptcy law, a period exceeding thirty (30) days for
curing such default shall in no event be deemed reasonable.
(b) In order to be deemed adequate assurance by Lessee for the cure of
any pre-petition default, Lessee, or the trustee, as the case may be, must
(i) deposit with a banking institution selected by Lessor securities, in
negotiable form, issued by the United States of America, with a fair market
value, at all relevant times, equal to twice the amount of Rent due or the
cost, as estimated by Lessor of curing the pre-petition default, as the
case may be, or (ii) grant to Lessor a security interest or lien which
shall be superior to any and all claims and liens, on any of Lessee's
property that is valued at liquidation at twice the amount of such Rent or
cost.
(c) In order to be deemed adequate assurance by Lessee, with respect
to the payment of Rent due after the filing of a voluntary or involuntary
petition under any bankruptcy law, Lessee must (i) deposit with a banking
institution selected by Lessor securities in negotiable form, issued by the
United States of America, with a fair market value, at all relevant times,
of not less than six (6) months' Rent, or (ii) grant a security interest or
lien, which shall be superior to any and all claims and liens, in any of
Lessee's property that is valued at liquidation at not less than six (6)
months' Rent.
SECTION 35.11. Lessee represents and warrants: (i) that it is a corporation
duly organized and in good standing under the laws of the State of New York,
(ii) that it has all requisite authority to execute and to enter into this Lease
and that the execution of this Lease will not constitute a violation of any
internal by-law, agreement or other rule of governance, and (iii) that the
individual executing this Lease on behalf of Lessee is so authorized and Lessee
shall supply Lessor with a verified resolution or similar written documentation
evidencing such authority upon or prior to Lessee's execution of this Lease.
SECTION 35.12. Lessor represents and warrants that the individual executing
this Lease on behalf of Lessor is so authorized and Lessor shall supply Lessee
with a verified resolution or
Page 38 of 40
similar written documentation evidencing such authority upon or prior to
Lessor's execution of this Lease.
IN WITNESS WHEREOF, the parties to this Lease have executed the same on the
day and in the year first above written.
CONNECTICUT LIFE INSURANCE COMPANY (Lessor)
By: CIGNA INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxx L.S.
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
METROMEDIA FIBER NETWORK SERVICES, INC. (Lessee)
By: /s/ Xxxxxx Xxxxxxxxxxx L.S.
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: President
Page 39 of 40
STATE OF CONNECTICUT )
) SS.:
COUNTY OF HARTFORD )
On the 9th day of February, 1998, before me personally came Xxxxx X.
Xxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Hartford, Connecticut; that he is the Managing Director of CIGNA
INVESTMENTS, INC., a Connecticut corporation described in and which executed the
foregoing instrument; that he signed his name thereto on behalf of the
Corporation described therein by order of its board of directors and on behalf
of CONNECTICUT GENERAL LIFE INSURANCE COMPANY who authorized same pursuant to a
resolution of its board of directors dated June 11, 1985.
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Notary Public XXXXX X. XXXXXXX
NOTARY PUBLIC
STATE OF CONNECTICUT
MY COMMISSION EXPIRES JAN. 31, 0000
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF NEW YORK )
On the 25th day of February, 1998, before me personally came XXXXXX
XXXXXXXXXXX, to me known, who being by me duly sworn, did depose and say that he
resides in Greenwich, Connecticut; that he is the President of METROMEDIA FIBER
NETWORK SERVICES, INC., a New York corporation described in and which executed
the foregoing instrument; that he signed his name thereto on behalf of the
corporation by order of its board of directors.
/s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Notary Public XXXXXX XXXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires Mar. 1, l999
Page 40 of 40
==============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
==============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
==============================================================================
EXHIBIT "A"
THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY
==============================================================================
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY
ALL THAT certain plot, piece or parcel of land situate, lying and being in
the City of White Plains, County of Westchester and State of New York, known and
designated as Delivery Parcel No. 1, on a certain map entitled "CENTRAL RENEWAL
PROJECT, N.Y. R-37, DISPOSITION PARCELS NOS. 9, 10, 18, 19, WHITE PLAINS URBAN
RENEWAL AGENCY, WHITE PLAINS, NEW YORK", prepared by Xxxxx X. Xxxxxx, Surveyor
on March 26, 1984 and filed in the Westchester County Clerk's Office, Division
of Land Records on June 5, 1984 as Map No. 21580, which parcel is more
particularly bounded and described as follows:
BEGINNING at a point on the northerly side of Main Street at the westerly
end of a curve having a radius of 20.00 feet, connecting to the westerly side of
North Lexington Avenue with the said northerly side of Main Street;
THENCE along the northerly side of Xxxx Xxxxxx, Xxxxx 00 degrees, 03
minutes 34 seconds West 288.907 feet to the easterly end of a curve having a
radius of 5.00 feet, connecting to the easterly side of Bank Street with the
northerly side of Main Street;
THENCE westerly and northerly on said curve to the right having a radius of
5.00 feet, a distance of 7.854 feet to the easterly side of Bank Street;
THENCE along the easterly side of Bank Street, North 5 degrees, 56 minutes
and 26 seconds West 203.564 feet to the southerly end of a curve having a radius
of 5.00 feet, connecting the southerly side of Xxxxxxxx Avenue with the easterly
side of Bank Street;
THENCE northerly and easterly on said curve to the right having a radius of
5.00 feet, a distance of 7.929 feet to the southerly side of Xxxxxxxx Avenue;
THENCE along the southerly side of Xxxxxxxx Avenue, North 84 degrees, 55
minutes and 13 seconds East 277.676 feet to the westerly end of a curve having a
radius of 20.00 feet, connecting the westerly side of North Lexington Avenue
with the southerly side of Xxxxxxxx Avenue;
THENCE easterly and southerly on said curve to right having a radius of
20.00 feet, a distance of 29.761 feet to westerly side of North Lexington
Avenue;
THENCE along the westerly side of North Lexington Avenue, South 9 degrees,
49 minutes and 13 seconds East 169.783 feet to the northerly end of a curve
having a radius of 20.00 feet, connecting the northerly side of Main Street with
the westerly side of North Lexington Avenue;
THENCE southerly and westerly on said curve to the right having a radius of
20.00 feet, a distance of 32.77 feet to the northerly side of Main Street and
the point and place of BEGINNING.
EXHIBIT "A" Page 1 of 2
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
DESCRIPTION OF
OPEN PARKING LOT
(XXXXXX AVENUE)
City of White Plains
Westchester County, New York
All that certain plot, piece or parcel of land, situate, lying and being in the
City of White Plains, County of Westchester and State of New York being a
portion of lands shown on a certain map entitled "Central Renewal Project
Disposition Parcel Nos. 9, 10, 18, 19". Said map being filed in the Westchester
County Clerk's Office, Division of Land Records as Map No. 21580. Said parcel
being more particularly bounded and described as follows:
BEGINNING at the northerly terminus of a curve connecting the westerly side of
North Lexington Avenue with the northerly side of Xxxxxxxx Avenue, as shown and
delineated on Filed Maps Nos. 15553 and 21580;
THENCE southerly and westerly on a curve to the right having a radius of 20.000
feet and a central angle of 94DEG. 53' 55" for 33.126 feet to a point on the
northerly side of Xxxxxxxx Avenue;
THENCE westerly along the northerly side of Xxxxxxxx Xxxxxx Xxxxx 00XXX.
55' 13" West 255.596 feet to the easterly terminus of a curve connecting the
northerly side of Xxxxxxxx Avenue with the easterly side of Xxxxxx Avenue;
THENCE westerly and northerly on a curve to the right having a radius of 35.000
feet and a central angle of 90DEG. 00' 00" for 54.978 feet to a point on the
easterly side of Xxxxxx Avenue;
THENCE northerly along the easterly side of Xxxxxx Avenue North 5DEG. 04' 47"
West 50.00 feet, and North 6DEG. 37' 25" West 134.669 feet to the northwesterly
corner of the parcel herein described;
THENCE easterly along the southerly side of New Street a right-of-way easement
designated as Easement "A" on Filed Map Xx. 00000 Xxxxx 00XXX. 29' 20" East
279.155 feet and on a curve to the right having a radius of 20.000 feet and a
central angle of 85DEG. 57' 50" for 30.007 feet to a point on the westerly side
of North Lexington Avenue;
THENCE southerly along the westerly side of North Lexington Avenue South 9DEG.
32' 00" Xxxx 00.000 xxxx xxx Xxxxx 0XXX. 58' 42" East 96.440 feet, to the
point or place of beginning.
Said parcel being subject to an easement for right of way purposes established
and delineated in accordance with direction and description by the White Plains
Urban Renewal Agency. Said easement being more particularly bounded and
described as follows:
BEGINNING at a point on the easterly side of Xxxxxx Avenue, said point being
distant from the southerly terminus of a curve having a radius of 20.000 feet
connecting the easterly side of Xxxxxx Avenue with the southerly side of Water
Street as follows.
South 7DEG. 51' 00" Xxxx 00.000 xxxx, xxx
Xxxxx 0XXX. 37' 25" East 198.884 feet,
said point of beginning also being the northwesterly corner of the easement
herein described;
THENCE running easterly along the southerly side of Xxx Xxxxxx Xxxxx 00XXX.
29' 20" East 39.803 feet to a point of curvature where the radius of said
curve, having a radius of 20.000 feet, bears South 5DEG. 30' 40" East to the
center;
THENCE generally in a southerly direction through the before described parcel,
the following courses and distances:
on a curve to the left having a radius of 20.000 feet and a central
angle of 86DEG. 32' 43" for 30.210 feet;
South 2DEG. 03' 23" East 103.334 feet;
South 5DEG. 03' 48" East 72.778 feet, and
on a curve to the left having a radius of 25.000 feet and a central
angle of 90DEG. 01' 00" for 39.277 feet;
to the northerly side of Xxxxxxxx Avenue;
THENCE westerly along the northerly side of Xxxxxxxx Xxxxxx Xxxxx 00XXX.
55' 13" West 0.881 feet to the easterly terminus of a curve connecting the
northerly side of Xxxxxxxx Avenue with the easterly side of Xxxxxx Avenue;
THENCE westerly and northerly on a curve to the right having a radius of 35.000
feet and a central angle of 90DEG. 00' 00" for 54.978 feet to a point on the
easterly side of Xxxxxx Avenue;
THENCE northerly along the easterly side of Xxxxxx Avenue as follows:
North 5DEG. 04' 47" West 50.000 feet, and
North 6DEG. 37' 25" West 134.669 feet,
to the point or place of beginning.
EXHIBIT "A" Page 2 of 2
===============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
===============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
===============================================================================
EXHIBIT "B"
THE FLOOR PLANS OF THE DEMISED PREMISES
===============================================================================
[FLOOR PLAN
OF
THE GATEWAY BUILDING]
===============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
===============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
===============================================================================
EXHIBIT "B-1"
THE FLOOR PLANS OF THE ADDITIONAL PREMISES
===============================================================================
[THE FLOOR PLANS
OF
THE ADDITIONAL PREMISES]
===============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
===============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
===============================================================================
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
===============================================================================
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
BUILDING RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Lessee or used for any purpose other than for ingress or 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
Lessor. There shall not be used in any space, or in the public hall of the
Building, either by any Lessee 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 purpose 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 Lessee who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and no Lessee shall sweep or throw or permit to be swept
or thrown from the Demised 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 Lessee shall not use, keep or permit to be used or kept any
foul or 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 Lessor or other occupants of the Building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Lessees 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 Lessor.
5. No Lessee shall xxxx, 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 Lessor, and as Lessor may direct. No Lessee 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 material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
6. No additional locks or bolts of any kind shall be placed upon any of the
doors or window by any Lessee, nor shall any changes be made in existing locks
or mechanisms thereof. Each Lessee must, upon the termination of its tenancy,
restore to Lessor all keys of offices and toilet rooms, either furnished to, or
otherwise procured by, such Lessee, and in the event of the loss of any keys, so
furnished, such Lessee shall pay to Lessor the cost thereof.
7. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the Demised Premises
and/or Building only on the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by Lessor. Lessor
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 of the Lease or which these Rules and Regulations are a part.
8. Canvasing, soliciting and peddling in the Building is prohibited and
each Lessee shall cooperate to prevent the same.
9. Lessor 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 Lessee. Lessor will
furnish passes to persons for whom any Lessee requests same in writing. Each
Lessee shall be responsible for all persons for whom he requests such pass and
shall be liable to Lessor for all acts of such persons.
10. Lessor shall have the right to prohibit any advertising by any Lessee
which in Lessor's opinion, tends to impair the reputation of the Building or its
desirability as a Building of offices, and upon written notice from Lessor,
Lessee shall refrain from or discontinue such advertising.
11. Lessee shall not bring or permit to be brought or kept in or on the
Demised Premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any
EXHIBIT "C" Page 1 of 2
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
odors of cooking or other processes, or any unusual or other objectionable odors
to permeate in or emanate from the Demised Premises.
12. If the Building contains central air conditioning and ventilation,
Lessee agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Lessor with respect to such services.
13. Lessee shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the Demised Premises and/or the Building
without Lessor's prior written consent. If such safe, machinery, equipment,
bulky matter or fixtures requires special handling, all work in connection
therewith shall comply with all Legal Requirements, Insurance Requirements
and/or Environmental Laws and shall be done during such hours as Lessor may
designate.
EXHIBIT "C" Page 2 of 2
============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
============================================================================
EXHIBIT "D"
CLEANING SPECIFICATIONS
============================================================================
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
CLEANING SPECIFICATIONS
1. The Lessor shall perform the following General Office Cleaning
services between the hours of 6:00 p.m. and 7:00 a.m., Monday through Friday of
each week and said cleaning shall not be rescheduled by Lessee's overtime or
extraordinary use of the Building or Demised Premises.
a. Empty all wastepaper baskets, damp wipe ashtrays and receptacles.
b. Sweep and/or dustmop all hard surfaced flooring with mops so treated
as to preserve the sheen and appearance of such flooring.
c. Carpet sweep all areas requiring same. Said areas to be vacuumed
clean twice weekly, conduct spot cleaning where necessary.
d. Deposit all wastepaper from baskets in plastic bags (to be supplied by
Contractor), placing same in locations as shall be designated convenient for the
remove thereof. Lessor shall not be responsible for the removal of large boxes,
wooden pallets or abnormal amounts of waste paper.
e. Hand dust all desks, chairs, worktables, office furniture and
equipment, window xxxxx and moldings, filing cabinets, bookcases, open shelving
and all other forms of office furniture and fixtures within normal arms reach,
and vacuum upholstered furniture where necessary.
f. Damp dust and wipe clean all glass tops and all desks and tables,
removing all finger marks and smudges from same.
g. Wipe clean of finger marks and maintain all brass and other bright
work.
h. Wash and clean tops of all water coolers and fountains and floors and
wall areas surrounding them.
i. Hand dust all doors and other ventilation louvers located within
normal arms reach.
j. Dust clean interior of all wastepaper baskets and disposal cans.
k. Dust and sweep all open closet flooring.
l. Lift and dust under all telephones and other such lightweight desk
appurtenances, dusting and replacing same in their proper locations. Telephones
will be sanitized once a month.
m. Whisk brush all fabric covered furniture.
n. Instruct all employees to notify their supervisor, who in turn shall
notify the proper designated representative of the building, of any irregularity
found in any office during the general office cleaning.
o. After cleaning, all electric lamps are to be extinguished, office
windows closed, office doors securely locked and the Demised Premises to be left
in a neat and orderly condition.
p. Do high dusting once per month.
2. The Lessor shall perform the following Xxxxxx Services and Janitorial
Maintenance Services in the manner and with the scheduling as set forth in the
following:
a. Scour wash all public lavatory flooring, using the proper coefficient
of disinfectant for same.
b. Thoroughly wash, scour clean and disinfect all basins, bowls and
urinals located in all public lavatories.
c. Damp dust and wipe clean all mirrors, powder shelves and enameled
surfaces located in all public lavatories.
EXHIBIT "D" Page 1 of 2
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
d. Wipe clean of finger marks and maintain in a constant state of uniform
brightness, all brass and other bright work located in all public lavatories.
e. Damp wipe clean all soap dispensers, receptacles, partitions, stalls
and tiled work within normal arms reach in all public lavatories. Said areas to
be washed down at least once during the course of each weekly period.
f. Empty and clean all paper towel and sanitary disposal receptacles in
all public lavatories, depositing waste from same in designated locations.
g. Refill all toilet tissue, hand soap and towel dispensers located in
all public lavatories.
h. Wash all terrazzo lobby flooring. Same to be machine scrubbed a
minimum of once during the course of each monthly period.
i. Hand dust all lobby marble, stone work and fixtures within normal arms
reach.
j. Dustmop and/or vacuum all public corridors as situated throughout the
entire Building.
k. Thoroughly wash, wax and machine polish and/or refinish all public
corridors as situated throughout the entire building; twice during the course of
each weekly period. (Full floor lessees responsible for floor maintenance of
their entire floor; building is not responsible for the maintenance of any
elevator corridors or aisles).
l. Thoroughly wash, wax and machine polish and/or refinish all flooring
as situated within the elevator cabs.
m. Hand dust and clean all vertical surfaces located within the elevator
cabs.
n. Dust clean exterior of overhead lighting fixtures. Wash clean both
inside and outside all of the lighting fixtures, fluorescent and incandescent,
situated in the core space of the Building; once during the course of each
yearly period.
o. Dust clean all overhead pipes, ventilating louvers, air conditioning
louvers and dusts, high moldings and other high areas and surfaces situated on
all floors of the Building and not reached during the regularly scheduled tours
of nightly cleaning; twice during the course of each yearly period.
p. Damp mop all stairways and landings, dusting down all handrails,
stairway doors and frames, fire hoses, standpipe nozzles and racks located in
two sets of stairways; once during the course of each weekly period.
q. Clean and polish saddles and entrance hardware in public areas once a
month.
r. All of the foregoing xxxxxx and janitorial maintenance services are to
be rendered nightly, from Monday through Friday of each week, between the hours
of 6:00 p.m. and 7:00 a.m., unless otherwise scheduled.
s. Police parking areas of the Building as required.
3. Interior and exterior window cleaning shall be performed once every
four months (three times a year).
4. No cleaning services shall be rendered on any legal holiday or union
holiday, including but not limited to the following: President's Day, Columbus
Day, Election Day, Veterans Day, Good Friday, Xxxxxx Xxxxxx Xxxx Day, July 4th,
Labor Day, Thanksgiving, Christmas and New Year's Day.
EXHIBIT "D" Page 2 of 2
============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
============================================================================
EXHIBIT "F"
THE PARTIES FINANCIAL CONTRIBUTIONS FOR THE WORK
============================================================================
[Letterhead of Xxxxxx X. Xxxxxxxx, Inc.
Stamford Square
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
000 000-0000 Fax: 000 000-0000]
MEMO
TO: Xxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxx
FROM: Xxxxx X. Xxxxxx, RPA
RE: Metro Media Drawings - Revised for clarification
The Gateway Building
DATE: February 23, 1998
As per our conversation, I have broken out the scope of work from the drawings
provided by Xxxx Xxxxxxxxx and have clarified who is responsible for paying for
such work. The information requested is as follows:
ARCHITECTURAL
A1 Clean existing wallcovering in reception area, Xxxx 000, Xxxxx Xxxx. Xxxx
000, Large Conf. Xxxx 000 xxx Xxxxxx Xxxx 000. TENANT EXPENSE
A2 Modify existing millwork counter at end of open area as required for copy
machine in Room 404 - RE: M3. TENANT EXPENSE
A3 Patch all existing ceiling tiles as required. LANDLORD EXPENSE
A4 Patch all damage sheetrock as required. LANDLORD EXPENSE
A5 Patch all damaged wallcovering as required. TENANT EXPENSE
A6 Remove existing V.C.T. floor flash patch, and replace with new carpet in
Room 412. TENANT EXPENSE
A7 Repair all blinds as required. LANDLORD EXPENSE
A8 Relocate wall mounted form display fixture from office Room 412 to pantry
Room 414. TENANT EXPENSE
A9 Furnish and install missing hat shelves and hang rods in all coat closet -
Re: M1. TENANT EXPENSE
A10 Furnish and install missing shelves in closet - RE: M2. TENANT EXPENSE
A11 Furnish and install missing wood shelves in Room 424 - RE: M4. TENANT
EXPENSE
A12 Remove low portion in open area and patch floor, wall, and ceiling as
required. LANDLORD EXPENSE
A13 Build new office Room 423 with matching construction of wood door, door
number 35 frames, 2X glass windows and wood frames, header/valance, aud
wood base, provide new light switch and modify existing circuits as
required. LANDLORD EXPENSE
A14 Paint entire premises. LANDLORD EXPENSE
A15 Replace all existing carpet. LANDLORD EXPENSE
A16 Relocate fire extinguisher for new layout. TENANT EXPENSE
Xxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxx
Page 2
February 23, 1998
A17 Furnish and install new door and frame with new hardware to match existing.
REMOVED FROM SCOPE BY METROMEDIA
A18 Remove existing door and frame including adjacent wall nip patch smooth
where wall is removed. REMOVED FROM SCOPE BY METROMEDIA
A19 Where demolished walls leave breaks in the ceiling plane, replace with new
tiles and ceiling components. Extend and rework grids as required to
continue existing ceiling pattern. LANDLORD EXPENSE
A20 All closets to receive same floor finish as adjacent area and paint P-1.
LANDLORD EXPENSE
ELECTRICAL
El Remove all floor outlets as required and patch smooth. LANDLORD EXPENSE
E2 Furnish and install power and required for furniture, copier fax, etc.
TENANT EXPENSE
E3 Relamp all light fixtures and make operable as required. LANDLORD EXPENSE
E4 Remove extra exit light in open area 406. LANDLORD EXPENSE
E5 Repair electrified roll down screen and make operable. TENANT EXPENSE
E6 Contractor shall trace existing branch circuit wiring in existing electric
panel and verify availabilities of existing spare circuits. Connect new
required circuits to spares, and/or provide new panel box as required.
TENANT EXPENSE
E7 Remove/Relocate light switches and modify circuits as required due to
removal of existing partition. LANDLORD EXPENSE
E8 Patch, repair and refinish all damaged walls, floor convector and ceiling
due to work done by electrician. LANDLORD SHALL PATCH AND REPAIR WHERE
NECESSARY FROM DEMOLITION. TENANT TO PATCH AND REPAIR DUE TO ANY NOW
CIRCUITS.
E9 Coordinate all core drill work, and shut down with landlord for schedule
and approval. TENANT EXPENSE
E10 Provide circuits as required for all workstations to receive minimum of
four (4) duplex receptacles. TENANT EXPENSE
MECHANICAL
M1 Clean, service and make operable the supplemental a/c unit in computer
room 402. LANDLORD EXPENSE
M2 Relocate thermostat as required for new layout. TENANT EXPENSE
M3 Repair all leaks as required. LANDLORD EXPENSE
SPRINKLER & PLUMBING
SP1 Add, relocate, and/or remove sprinkler heads as required to comply with
applicable building code. LANDLORD EXPENSE
SP1 Remove and cap off all exposed plumbing left by removal of pantry and sink.
LANDLORD EXPENSE
Xxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxx
Page 3
February 23, 1998
NOTES
- Voice/data cable run shall be at the tenant's expense.
- Removal of existing telephone/computer system/security system in Room 402
and 403. TENANT EXPENSE
- Duplex and voice/date receptacles on furniture partition install outlets
and power harness provided by other. TENANT EXPENSE
- Overhead task light, furnished by other, installed by electrician
contractor. TENANT EXPENSE
Should you have any questions, please feel free to call me.
cc: Xxxx Xxxxxx
============================================================================
LEASE AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LESSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LESSEE
============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
============================================================================
EXHIBIT "G"
STANDARD REQUIREMENTS FOR ALTERATIONS
TO BE PERFORMED BY LESSEES
============================================================================
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
STANDARD REQUIREMENTS FOR
ALTERATIONS TO BE PERFORMED BY LESSEES
For purposes of these STANDARD REQUIREMENTS FOR ALTERATIONS TO BE PERFORMED
BY LESSEES, Lessee's Alterations, as that term is defined in Article 8 of the
Lease, and Lessee's construction, work and alterations as contemplated in
Article 25 of the Lease are hereinafter sometimes collectively referred to as
the "Alterations." Whenever in this Exhibit G Lessor's approval or consent must
be sought and obtained prior to the performance of any Alterations, such
approval or consent shall not be unreasonably withheld or delayed.
SECTION 1. All Lessee's Alterations shall be performed in accordance with
all Governmental Authority, Legal Requirements, Insurance Requirements and
Environmental Laws (as those terms are defined in the Lease) and other agencies
having jurisdiction and with the over-all design and construction standards of
the Building, Building Equipment and Demised Premises. All Lessee's Alterations
shall be built in accordance with the provisions hereof, the Lease, and the
Final Plans (as hereinafter defined).
SECTION 2. All architectural and engineering plans and specifications for
the Demised Premises shall be prepared by a licensed architect employed by
Lessee at its sole cost and expense and shall describe all the work which under
this Lease is to be performed by Lessee and showing in sufficient detail the
location of all utilities, partitions, bathrooms, offices, storage and/or locker
facilities and any other matters which may affect the construction work to be
performed by Lessee in the Demised Premises and/or Building. Lessor shall make
available plans and specifications for the Building and Building Equipment, if
requested by Lessee or his architect and the actual cost thereof shall be born
by Lessee.
SECTION 3. It shall be the sole responsibility of Lessee and/or Lessee's
agent to file all drawings, plans and specifications, pay all fees and obtain
all permits and applications from all Governmental Authority having
jurisdiction, and to obtain a Certificate of Occupancy, Certificate of
Compliance and all other "sign offs" and approvals required to enable Lessee to
occupy the Demised Premises for the purposes provided for in its Lease. Lessor,
at its sole cost and expense, shall be responsible for all violations in other
parts of the Building which prevent Lessee from obtaining the Certificate of
Occupancy, Certificate of Compliance and all other "sign offs" and approval to
enable Lessee to occupy the Demised Premises
SECTION 4. Simultaneously with any request for consent to make Lessee's
Alterations as defined in Article 8 of the Lease or alterations to the Demised
Premises pursuant to Article 25 of the Lease, Lessee, at its sole cost and
expense shall cause Lessee's architect to prepare and deliver to Lessor for
Lessor's approval two (2) sets of preliminary plans for Lessee's Alterations,
prepared in strict accordance with the provisions contained herein, initialed by
Lessee. Lessor shall notify Lessee of the matters, if any, in which the
preliminary plans fail to conform to the standards established for the Property,
Building, Building Equipment and/or Demised Premises, or otherwise fail to meet
with the Lessor's approval. Lessee shall promptly upon receipt of any such
notice or notices from Lessor cause the preliminary plans to be revised in such
manner as is requisite to obtaining Lessor's approval and shall resubmit said
revised preliminary plans initialed by Lessee as aforesaid for Lessor's approval
within Thirty (30) days of said notice. When Lessor shall determine that the
preliminary plans are satisfactory to Lessor, Lessor shall cause one set thereof
to be initialed on behalf of Lessor, thereby evidencing the approval thereof by
the Lessor, and shall return such set so initialed to Lessee. The preliminary
plans or revised preliminary plans, as the case may be, so approved by Lessor
are hereinafter referred to as the "Preliminary Plans." If such Preliminary
Plans are not approved by Lessor within Fifteen (15) days after submission to
Lessor, Lessor shall advise Lessee of such disapproval and Lessee's architect
shall revise said plans at Lessee's cost and expense, and such plans shall be
deemed approved by both Lessee and Lessor.
SECTION 5. Within Thirty (30) days after Lessor's approval of Lessee's
Preliminary Plans, Lessee, at its sole cost and expense, shall cause to be
prepared and delivered to Lessor four (4) complete sets of drawings and
specifications showing Lessee's Alterations, prepared in conformity with
Preliminary Plans, and such drawings and specifications shall have been
initialed by Lessee, evidencing Lessee's approval thereof. Lessor shall notify
Lessee of the matters, if any, in which said drawings and specifications fail to
conform to the Preliminary Plans and/or standards established for the Building,
Building Equipment and/or Demised Premises. Lessee shall promptly upon receipt
of such notice from Lessor cause said drawings and specifications to be revised
in such manner as is requisite to obtaining Lessor's approval and shall resubmit
revised drawings and specifications initialed by Lessee as aforesaid for
Lessor's approval within Thirty (30) days of said notice. When Lessor shall
determine that the drawings and specifications or revised drawings and
specifications, as the case may be, conform to the Preliminary Plans and are
satisfactory to Lessor, Lessor shall cause the plans and specifications to be
initialed on behalf of Lessor, thereby evidencing the approval thereof by
Lessor, and shall return two (2)
EXHIBIT "G" Page 1 of 5
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
sets initialed by Lessor to Lessee and such drawings and specifications shall be
deemed approved by both Lessee and Lessor (the "Final Plans"). Prior to
commencement of Lessee's Alterations, Lessee shall furnish to Lessor in writing,
a complete schedule for all of Lessee's Alterations in the Demised Premises
planned at the time of submission.
SECTION 6. Lessee shall reimburse Lessor promptly on demand therefor, for
any and all reasonable and architectural, engineering and construction fees,
costs and expenses (including costs and expenses incurred by or to an affiliate
of, or entity related to Lessor) incurred by Lessor in connection with
(i) Lessor's review and/or approval of Lessee's Preliminary Plans and/or Final
Plans or (ii) Lessor's inspection of Lessee's Alterations to determine whether
same are being performed in accordance with the Final Plans, the provisions of
any Mortgage, and all Legal Requirements, Insurance Requirements and
Environmental Laws, excluding Lessor's Work as defined in the Lease. Such
reimbursable costs and expenses shall include the fees of any architect or
engineer employed by Lessor or any mortgagee, or superior lessor for such
purposes.
SECTION 7.1A. Until completion and final acceptance of the Lessee's
Alterations, the Lessee and/or Lessee's contractors, subcontractors and/or
materialmen involved in the performance of Lessee's Alterations, shall each, at
their sole cost and expense, furnish and maintain the following insurance:
(a) commercial general liability insurance, including contractual
liability, completed operations insurance, covering the Demised Premises and
Lessor's interest therein against "all risks" on an occurrence basis having a
combined single limit of not less than Two Million ($2,000,000.00) Dollars,
protecting Lessor, any Lessor's agent which is acting as a property manager for
the purpose of furnishing services at the Demised Premises, the holder of any
Mortgage and Superior Lease and Lessee as insureds (and naming each such person
as an insured party or as an additional insured) against any and all claims for
bodily injury, death or property damage occurring, during the period of Lessee's
Alterations and during any period of time when Lessee or Lessee's agents,
employees, or contractors, subcontractors and/or materialmen may enter the
Demised Premises to perform work, in or upon the Demised Premises, Building and
Property;
(b) insurance (herein sometimes referred to as "Lessee's fire (casualty)
insurance") against loss or damage by any and all risks and hazards to Lessee's
Property (as hereinafter defined) for the full replacement value thereof
(including coverages which are currently sometimes referred to as "all risk"
with coverage written on a replacement cost basis);
(c) workers' compensation and employees liability insurance in accordance
with the laws of the State of New York and all other Governmental Authorities
having jurisdiction over the Alterations being performed; and
(d) comprehensive automobile liability insurance, including all owned,
non-owned and hired vehicles, with limits of liability not less than:
(i) $2,000,000.00 single limits coverage for bodily injury, including
death; and
(ii) $500,000.00 single limits coverage for property damage.
B. Prior to the commencement or any Lessee's Alterations, Lessee's
contractors, subcontractors and/or materialmen, shall each furnish to Lessor an
original or duplicate original policies, or certificates of insurance in
triplicate, evidencing coverage for all of the items described above. Each of
the foregoing insurance policies shall (i) be written in form and substance
reasonably satisfactory to Lessor by an insurance company, licensed to do
business in the State of New York, which shall be rated by Best's Insurance
Rating Service with at least a rating equal to A:IX, (ii) include a provision to
the effect that the same will not be canceled or modified except upon thirty
(30) days prior written notice to the Lessor, (iii) provide that any renewals or
endorsements thereto shall also be deposited with Lessor, not less than thirty
(30) days prior to the expiration date of the policy being renewed, replaced or
endorsed, to the end that said insurance shall be in full force and effect at
all times during Lessee's Alterations, and (iv) contain the following clauses
(with all blanks shown being filled in with the required and relevant
information): "Includes Contractual Coverage for liability assumed under
contract with _____________ dated _________, 199_," and "XC & U" exclusion
deleted.
C. Notwithstanding the providing to Lessor of the insurance policies
hereintofore described, and in addition thereto it is further agreed as follows:
(1) Lessee's contractors, subcontractors and/or materialmen shall be solely
responsible and liable for and shall fully protect, defend, indemnity and save
harmless the Lessor from and against all claims, suits, judgments and damages
brought, recovered or exacted against the Lessor or against any person or
EXHIBIT "G" Page 2 of 5
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
persons (including the employees of the contractors, subcontractors and/or
materialmen but not limited thereto) or for any claim for any injury or damage
to property (including property of the contractors, subcontractors and/or
materialmen but not limited thereto) or the property of any other person or
company occasioned by or arising out of our resulting from the performance of
the Lessee's Alterations provided for in the agreement or occurring in
connection therewith on the part of the contractors, subcontractors and/or
materialmen, their agents, servants, employees, vendors, or any other person
having anything whatsoever to do in connection with the Lessee's Alterations of
the contractors, subcontractors and/or materialmen, whether such injuries
(including death) or damages be based upon or attributable to the acts or
omissions, whether intentional or otherwise, of the Lessor, its officers,
directors, agents, servants, employees or otherwise, or participation or
omission in the wrong by the Lessor, its officers, directors, agents, servants,
employees or otherwise, or upon any alleged breach of any law, ordinance or
regulation or of any statutory duty or obligation on the part of the Lessor
relating to any Lessee's Alterations to be performed hereunder, including, but
not limited to and without limiting the generality of the foregoing, all
Governmental Authority, Legal Requirements, Insurance Requirements and/or
Environmental Laws, and the contractors, subcontractors and/or materialmen agree
to assume on behalf of the Lessor, its officers, directors, agents, servants,
employees or otherwise, the defense of any action at law or in equity which may
be brought against the Lessor, its officers, directors, agents, servants,
employees or otherwise, upon any such claim and to pay all costs and expenses of
whatever nature resulting therefrom and in connection therewith and to pay on
behalf of the Lessor, its officers, directors, agents, servants, employees or
otherwise, upon their demand the amount of any judgment that may be recovered or
entered against the Lessor, its officers, directors, agents, servants, employees
or otherwise, in any such action, including reasonable attorneys' fees and
disbursements.
(2) The obligation of the contractors, subcontractors and/or materialmen to
indemnify and save harmless the Lessor, its officers, directors, agents,
servants, employees or otherwise, as hereinabove set forth is absolute and not
dependent upon any question of negligence on the part of the Lessor, its
officers, directors, agents, servants, employees or otherwise, or the
contractors, subcontractors and/or materialmen, their respective agents,
servants, employees, vendors, or any other person or company having anything
whatsoever to do in connection with the Lessee's Alterations or the contractors,
subcontractors and/or materialmen. The approval by the Lessor of the methods of
doing the Lessee's Alterations or failure of the Lessor to call attention to
improper or inadequate methods or to require a change in methods or to direct
the contractors, subcontractors and/or materialmen to take any particular
precautions or to refrain from doing any particular thing shall not excuse the
contractors, subcontractors and/or materialmen in case of any such injury to
person (including death) or damage to property.
(3) The Lessor and contractors, subcontractors and/or materialmen, to the
extent they are insured, waive any right of recovery they may have against the
other for loss or damage to property.
(4) The Lessor shall not be liable for any loss or damage no matter how
caused to any tools, machinery, equipment materials or supplies of the
contractors, subcontractors and/or materialmen.
(5) The contractors, subcontractors and/or materialmen shall obtain from
their respective insurance carriers, an endorsement waiving the insurance
carrier's right of subrogation against the Lessor.
(6) In the event the contractors, subcontractors and/or materialmen sublets
all or part of the Lessee's Alterations, such subcontractor shall be bound by
the same terms and conditions as outlined herein.
SECTION 8. It is agreed that Lessee assumes the entire responsibility and
liability due to Lessee's acts or omissions whether intentional or otherwise,
including statutory or common law for any and all injuries or death of any or
all persons, including Lessee's contractor and subcontractors, employees and for
any and all damages to property of third parties and Lessor caused by or
resulting from or arising out of, any act or omission on the part of Lessee,
Lessee's contractors, subcontractors and/or materialmen, their respective
agents, servants, employees, vendors, or any other person or company having
anything whatsoever to do in connection with the performance of the Lessee's
Alterations thereunder and with respect to this Lessee's Alterations agrees to
indemnify and save harmless Lessor, and any Mortgagee, or the holder of any
Superior Lease, and any of the other lessees in the Property, from and against
all losses and/or expense, including legal fees and expenses which they may
suffer or pay as the result of claims or lawsuits due to, because of or arising
out of any and all such injuries or death and/or damage, whether real or alleged
and Lessee and Lessee's contractors, subcontractors and/or materialmen shall
assume and defend at their own expense all such claims or lawsuits. The Lessee
agrees to insure this assumed liability in its Comprehensive General Liability
Policy and the original of the policy that Lessee will present to Lessor shall
so indicate this contractual coverage.
SECTION 9. Lessee's Alterations shall be coordinated with any other work
being done or to be performed by Lessor, including Lessor's Alterations and any
other lessees in the Building so that Lessee's
EXHIBIT "G" Page 3 of 5
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Alterations will not interfere with or delay the completion of any other such
construction in the Building. Lessor or its agents, shall have access to
Demised Premises at all times to supervise and/or inspect Lessee's Alterations.
If the scheduling of any of Lessor's Work shall require the immediate
installation of any of Lessee's Alterations, Lessor shall notify Lessee in
writing requesting that said Lessee's Alterations be installed. If said work is
not completed within a reasonable length of time from date of Lessor's
notification, Lessor shall notify Lessee in writing of his failure regarding
same and Lessor at its option shall cause said work to be installed. Lessee
shall reimburse Lessor on demand, for all costs of planning and performing such
work together with interest thereon at the maximum legal rate.
SECTION 10. Lessor shall not be obligated to perform any Lessee's
Alterations for Lessee without written authorization for same together with
payment in advance for such Lessee's Alterations, except as otherwise provided
for in the Lease.
SECTION 11. Unless specifically waived in writing by Lessor, Lessee,
and/or its contractors, subcontractors and/or materialmen shall furnish a bond
in an amount equal to One Hundred and Ten (110%) percent of the cost of the
alterations, naming Lessor as co-obligees and covering payment and performance
of the Lessee's Alterations as well as labor and material payments in connection
therewith. Said bond shall be with a surety company and in a form acceptable to
Lessor, and the original thereof shall be delivered to Lessor prior to
commencement of Lessee's Alterations.
SECTION 12. Lessee shall submit to Lessor for approval plans for all roof
penetrations and roof structures, if any, which are to be installed by Lessee.
Roof structures shall not be more than three (3) feet in overall height,
measured from the top of the dunnage steel mounted on stub up to the top most
point of the structure. All such roof opening and structures shall be located
in areas as directed by Lessor. Repairs for patching required for Lessee's
Alterations, including the cutting of roof penetrations, installations of
necessary curbs and flashing shall be performed by Lessor's roofer acting as
Lessee's own agent and contractor at Lessee's sole expense. The Lessee's
Alterations shall be done in such a manner that Lessor's roofing guarantee and
the work performed by others will not be affected. All HVAC units shall be
painted a color which has been previously approved in writing by Lessor's
architect.
SECTION 13. Lessee furnished items, fixtures and/or equipment that is to
be mounted on or hung from the Demised Premises and/or Building must be approved
in advance by Lessor. Lessee shall notify Lessor of the loads involved and, if
they exceed design load of the Demised Premises and/or Building, Lessee, shall
either modify the loads or pay all expenses involved, including architectural
and engineering costs and fees, in the modification of the Demised Premises
and/or Building to accommodate the excessive load.
SECTION 14. Lessee shall permit Lessor or his agent to install and
maintain in the ceiling space and/or under the concrete slab electrical, water
or other line and/or ducts that may be required to service others in the
Building.
SECTION 15. It shall be Lessee's responsibility to cause each of Lessee's
contractors, subcontractors and/or materialmen to maintain continuous protection
of adjacent premises in such a manner as to prevent any damage to Lessee's
Alterations or adjacent property and improvements by reason of the performance
of Lessee's Alterations. Each contractor, subcontractor and/or materialmen
shall properly protect Lessee's Alterations with lights, guard rails and
barricades and shall secure all parts of Lessee's Alterations against accident,
storm and any other hazard.
SECTION 16. Lessee's contractors, subcontractors and/or materialmen
performing Lessee's Alterations shall be required to remove and dispose of, at
least once a week and more frequently as Lessor may direct, all debris and
rubbish caused by or resulting from the construction of the Lessee's
Alterations, and upon completion of the Lessee's Alterations, remove all
temporary structures, surplus materials, debris and rubbish of whatever kind
remaining on the Demised Premises, Property or Building. If at any time
Lessee's contractors, subcontractors and/or materialmen shall neglect, refuse,
or fail to remove any such debris, rubbish, surplus materials, or temporary
structures within two (2) days from and after notice to Lessee from Lessor with
respect thereof, Lessor may cause the same to be removed and charge the cost
thereof to Lessee, which cost shall be paid to Lessor upon demand therefor, as
Additional Rent.
SECTION 17. Lessee's contractors, subcontractors and/or materialmen
participating in Lessee's Alterations shall guarantee that the portion thereof
for which he is responsible will be free from any defects in workmanship and
materials for a period of not less than one (1) year from date of completion
thereof. Lessee shall also require that any such contractors, subcontractors
and/or materialmen performing such Lessee's Alterations shall be responsible for
the placement or repair without additional charge to Lessor of any and all
Lessee's Alterations done or furnished by or through such contractors,
subcontractors and/or materialmen which shall become defective within one (1)
year after completion of
EXHIBIT "G" Page 4 of 5
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Lessee's Alterations. The correction of such Lessee's Alterations shall include
without additional charge to Lessor all additional expenses and damages in
connection with such removal, replacement of, or any part of the Lessee's
Alterations or any part of the Property or Building or Demised Premises which
may be damaged or disturbed thereby. All warranties or guarantees as to
materials or workmanship or with respect to Lessee's Alterations shall be
contained in the contract or subcontract which shall be so written that such
guarantees or warranties shall inure to the benefit of both Lessor and Lessee as
their respective interests may appear, and can be directly enforced by either.
Lessee covenants to give to Lessor any assignment or other assurance necessary
to effect such right to direct enforcement.
SECTION 18. Upon completion of Lessee's Alterations, Lessee's contractors,
subcontractors and/or materialmen shall provide Lessor, without cost with one
(1) set of transparent "as built" plans and one (1) CADD disk of the "as built"
plans.
SECTION 19. Any approval or consent by Lessor shall in no way obligate
Lessor in any manner whatsoever in respect to the finished product designed
and/or constructed by Lessee. Any deficiency in design or construction,
although same had prior approval of Lessor, shall be solely the responsibility
of Lessee.
SECTION 20. All items of Lessee's Alterations, labor and materials, not
specifically set forth herein and designated as Lessor's Work shall be furnished
and installed by Lessee.
SECTION 21. Any reference to trade names herein are used to indicate type
and quality and do not preclude the use of products produced by other
manufacturers of equivalent nature, unless so noted, as approved by Lessor.
SECTION 22. If any dispute, interpretation or difference between Lessor
and Lessee arises out of any matter mentioned in these Standard Requirements,
Lessor's Work, Lessee's Alterations or any matter mentioned in this Exhibit, the
same shall be submitted in writing to Lessor and Lessee's architects, who shall
determine the dispute or difference within ten (10) days. Said arbitrator's
determination or award shall be final and binding and conclusive upon the
parties. Any award or determination rendered in accordance with this provision
shall be controlling and decisive of any question, matter or dispute thereafter
arising under this Lease if, and to the extent that, such question, matter or
dispute thereafter arising involves the same issues.
SECTION 23. All HVAC design criteria for the Demised Premises shall be
designed so that no effect upon the air conditioning of the Building will be
generated. Calculations attendant to Lessee's HVAC systems must be submitted to
Lessor's architect for prior written approval preceding any installation
thereof.
EXHIBIT "G" Page 5 of 5
============================================================================
PARKING AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LICENSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LICENSEE.
============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Prepared By:
THE LAW OFFICES OF
XXXXXX & XXXX, LLP
000 XXXXXXX XXXXXX
XXXXX 000
XXXXXX XXXX, XXX XXXX 00000
(000) 000-0000
THIS PARKING AGREEMENT made this 9th day of March, 1998 by and between
CONNECTICUT GENERAL LIFE INSURANCE COMPANY having its office and principal place
of business at 000 Xxxxxxx Xxxxx Xxxx, X-000, Xxxxxxxx, Xxxxxxxxxxx 00000-0000
hereinafter referred to as the Licensor, and METROMEDIA FIBER NETWORK SERVICES,
INC., with offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, hereinafter referred to as the Licensee.
W I T N E S S E T H
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained, it is mutually agreed as follows:
SECTION 1.01.A. From and after the Commencement Date (as that term is
defined in the Lease, Licensor does hereby grant unto Licensee the privilege of
Thirty (30) parking spaces ("Initial Available Parking Spaces"), in an area to
be designated by Licensor within the parking garage commonly known as and
located at 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 (the "Parking
Garage"), for a period to be coterminous with the Term of that certain Lease
between Licensor, as Lessor and Licensee, as Lessee (the "Lease") for a portion
of the premises known as the Gateway and located at Xxx Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000 (the "Property") at the rates specified herein.
B. From and after the Additional Premises Commencement Date (as that term
is defined in the Lease, Licensor does hereby grant unto Licensee the privilege
of Twelve (12) additional parking spaces ("Additional Available Parking
Spaces"), in an area to be designated by Licensor within the Parking Garage, for
a period to be coterminous with the Term of the Lease at the rates specified
herein.
C. Licensee acknowledges that in the event it does not require and/or take
all of the Initial Available Parking Spaces as of the Commencement Date of the
Lease, or the Additional Available Parking Spaces as of the Additional Premises
Rent Commencement Date, as the case may be, then in such events, Lessee hereby
releases and waives its rights to those parking spaces (the "Non-Essential
Parking Spaces"). Subject to availability, Licensor hereby agrees that Licensee
shall have the right to all or a portion of the Non-Essential Parking Spaces as
it shall request, on a month to month basis, at the rates herein specified.
Notwithstanding the foregoing, the privilege to hire all or a portion of the
Non-Essential Parking Spaces, shall at all times be subject to Licensor's right
to recapture said Non-Essential Parking Spaces on thirty (30) days written
notice to Licensee and shall in no way be construed as guaranty that such
Non-Essential Parking Spaces will be available to Licensee for its use during
the term of the Lease.
SECTION 1.02. Subject to availability, Licensor hereby agrees that
Licensee shall have the right to Ten (10) additional parking spaces (the
"Additional Parking Spaces") as it shall request, on a month-to-month basis, at
the rates herein specified. Notwithstanding the foregoing, the privilege to
hire the Additional Parking Spaces granted herein, shall at all times be subject
to Licensor's right to recapture said Additional Parking Spaces on thirty (30)
days written notice to Licensee and shall in no way be construed as guaranty
that such Additional Parking Spaces will be available to Licensee for its use
during the term of the Lease.
SECTION 2.01. Licensee agrees to pay the Licensor and Licensor agrees to
accept the monthly sum of Sixty-Five Dollars ($65.00) for each non-reserved
parking space and Seventy-Five Dollars ($75.00) for each reserved parking space,
both plus tax, for each parking space that Licensee hires. Payments shall be
made in advance at the office of Licensor on the first day of each and every
month during the period that this Parking Agreement shall remain in full force
and effect.
SECTION 3.01. This Parking Agreement and the license and privilege hereby
granted shall apply only to those duly registered and operating private
passenger motor vehicle(s) owned and operated by Licensee or Licensee's
employees as more particularly set forth on EXHIBIT "A" annexed hereto and shall
not be transferable to any other person or used for any other purpose other than
as herein provided. Licensee, its employees, officers, directors, invitees, and
contractors shall at all times during the term of this Parking Agreement, obtain
and keep in full force and effect for each motor vehicle in the Parking Garage,
liability insurance in accordance with the laws of the State of New York.
SECTION 4.01. Upon failure of Licensee to promptly pay any and all charges
due hereunder, or to comply with all rules and regulations regarding the use of
the Parking Garage which may be promulgated by Licensor, from time to time, this
Parking Agreement shall, upon notice from Licensor, terminate and become null
and void and of no further force or effect. Licensor may
Page 1 of 3
thereafter, if necessary, remove Licensee's motor vehicle(s) from the Parking
Garage without accountability, at Licensee's sole cost, expense and risk, in
such manner as Licensor sees fit.
SECTION 5.01. Licensor and Licensor's agents, officers, directors,
employees, independent contractors and invitees shall not be liable for any
damage, theft, fire, loss or destruction of any motor vehicle(s) owned by
Licensee or its employees, licensees, invitees and independent contractors or
any appurtenances thereto or the contents thereof, other than by Licensor's
negligence or wilful acts, caused by or resulting from any cause whatsoever,
including explosion, falling plaster, vermin, smoke, gasoline, oil, Hazardous
Materials (as that term is defined in the Lease), steam, gas, electricity,
earthquake, subsidence of land, hurricane, tornado, flood, wind or similar
storms or disturbances or water, rain, ice or snow which may be upon, or leak or
flow from, any street, road, parking lot, sewer, gas main or subsurface area, or
from any part of the Parking Garage, or leakage of gasoline, oil or other
substances from pipes, pipelines, appliances, storage tanks, sewers or plumbing
works in or at the Parking Garage, or from any other place, or from the breaking
of any electrical wire or the breaking, bursting or leaking of water or
Hazardous Materials from any plumbing or sprinkler system or any other pipe or
storage tanks in, on, under or about the Parking Garage.
SECTION 6.01. Licensor shall have no obligation to patrol, guard or
protect any motor vehicle(s) parked at the Parking Garage pursuant to this
Parking Agreement and shall not be deemed to have custody and/or care of
Licensee's motor vehicle(s) which at all times shall be deemed to remain with
Licensee.
SECTION 7.01. Except for the negligent acts or omissions of Licensor, its
agents, officers, directors, employees, independent contractors and invitees,
Licensee shall indemnify, defend and hold harmless, Licensor, its agents,
officers, directors, employees, independent contractors and invitees, against
and from any and all liability, claims, suits, demands, judgments, costs,
interest and expense (including reasonable attorney's fees and reasonable
disbursements) arising from any injury to or death of, any person or persons or
damage to or from any injury to or death of, any person or persons or damage to
property (including loss thereof) related to (a) Licensee's use of the Parking
Garage or the storage of motor vehicle(s) thereon, (b) any condition created by
or on behalf of Licensee in or about the Parking Garage, (c) any condition of
the Parking Garage due to, or resulting from any default by Licensee in the
performance of its obligations under this Parking Agreement or (d) any act,
omission or negligence of the Licensee or its agents, officers, directors,
employees, independent contractors or invitees. In the event any action or
proceeding shall be brought against Licensor by reason of any one or more
thereof, upon notice from Licensor, Licensee shall resist such action or
proceeding at Licensee's expense by counsel selected by Licensee and reasonably
satisfactory to Licensor.
SECTION 8.01. In the event Licensee ceases to be a tenant or occupant of
the Property, then in such event, this Parking Agreement shall automatically
terminate as of the date that Licensee ceases to be such tenant or occupant of
the Property.
SECTION 9.01. Licensee acknowledges that the monthly amount charged
pursuant to the terms and conditions of this Parking Agreement provided for in
Section 2 hereof is based on the current monthly rate of Seventy-Five ($75.00)
Dollars for each reserved space and Sixty-Five ($65.00) Dollars for each
non-reserved space. Licensee agrees that such rates may, from time to time, be
increased by Licensor, with not less than thirty (30) days prior written notice
to Licensee, and such increased amount shall be paid by Licensee, and shall be
the greater of: (a) the then current rate increased by an annual adjustment in
an amount equal to the consumer price index increase for Westchester County
during the prior year provided herein, or (b) the then current fair market value
for the monthly rental of parking spaces as determined by comparison to similar
facilities in the downtown White Plains business district.
Page 2 of 3
IN WITNESS WHEREOF, Licensor and Licensee have respectively signed and
sealed this Parking Agreement as of the day and year first above written.
CONNECTICUT LIFE INSURANCE COMPANY (Licensor)
By: Cigna Investments, Inc.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
METROMEDIA FIBER NETWORK SERVICES, INC. (Licensee)
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: President
Page 3 of 3
============================================================================
PARKING AGREEMENT BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
AS LICENSOR,
AND
METROMEDIA FIBER NETWORK SERVICES, INC.,
AS LICENSEE
============================================================================
Premises:
THE GATEWAY
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
============================================================================
EXHIBIT "A"
THE LIST OF MOTOR VEHICLES
============================================================================
