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EXHIBIT 10.14
LEASE
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ROYAL EXECUTIVE PARK II,
Lessor
and
ENTEX INFORMATION SERVICES, INC.,
Lessee
Premises in the Royal Executive Park,
King Street, Rye Brook, New York
January 20, 1995
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LEASE
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LEASE, dated as of January 20, 1995 between ROYAL EXECUTIVE PARK II, a
New York limited partnership, with an office c/x Xxxxxxx Properties Ltd., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and ENTEX
INFORMATION SERVICES, INC., a Delaware corporation, with an office at 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000 ("Tenant").
ARTICLE ONE
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LEASE OF PREMISES
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Section 1.01. Lease of Premises. (a) Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease, for the term and at
the rent hereinafter stated, the premises referred to in subsection (b) below,
situated on a plot of land (the "Land") designated as Phase II in the Royal
Executive Park, King Street, Rye Brook, New York (such Phase being herein
referred to as the "Executive Park").
(b) The Leased Premises shall be that portion of the ground floor
indicated by crosshatching on the floor plan annexed hereto as Exhibit A and
made a part hereof (the "Leased Premises"), in the building known as 0
Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx (a/k/a Building 6) in the Executive
Park (the "Building"), and all fixtures, equipment, improvements, installations
and appurtenances which at the commencement of or during the term of this Lease
are attached to or used in connection with such space leased by Tenant, but
excluding (i) any personal property or trade fixtures of Tenant and (ii) such
space as may be excluded from the Leased Premises pursuant to any provision of
this Lease.
(c) This Lease includes the right of Tenant to use the Common
Building Facilities (as defined in subsection 1.01(d) below) in common with
other tenants in the Building and/or in the buildings designated on said Site
Plan as Buildings 4 and 5.
(d) The term "Common Building Facilities" shall mean all of the
common facilities in the Building designed and intended for use by all tenants
in the Building or in the portion of the Executive Park (excluding parking
spaces in Phase II designated for single tenant use which do not exceed 329
spaces) designed and intended for use by tenants in the buildings designated as
4,5 , and 6 in the Executive Park, in common with Landlord and each other,
including, but not limited to hallways, lobbies, receiving areas, loading docks,
elevators, stairways, telephone and
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electrical closets, walkways, plazas, courts, service areas, landscaped areas
and all other common and service areas of the Building or the Executive Park
intended for such use.
Section 1.02. Access Drive. The Executive Park shall include rights in
the existing paved access drive running to and from King Street as shown on the
Site Plan, provided, however, that the owner of the Adjoining Premises
(designated as Phase I on the Site Plan) and its successors and assigns, shall
have the right to use that portion of said access drive which runs from east to
west and forms the northerly boundary of Phase I (the "Access Drive") in common
with Tenant and other occupants of Phase I and Phase 11 for ingress and egress
of motor vehicles and pedestrians to and from King Street to the Adjoining
Premises and for the installation of underground utilities. Landlord and/or the
owner of the Adjoining Premises shall also have the right to use the Access
Drive in connection with the extension or widening thereof over and upon the
Adjoining Premises, provided that same shall not materially adversely affect
Tenant's access to the Building. Landlord and/or the owner of the Adjoining
Premises shall have the right to relocate the Access Drive or to substitute
therefor another access drive.
Section 1.03. Cancellation Option. Both Landlord and Tenant shall have
the right to cancel this Lease effective at any time following July 31, 1995 by
delivering not less than sixty (60) days' prior written notice thereof to the
other party. As a condition to the effectiveness of any cancellation notice
delivered by Tenant, Tenant shall not be in monetary default hereunder as of the
date fixed for cancellation and Tenant shall pay to Landlord, simultaneously
with delivery of its cancellation notice (time being of the essence), a
cancellation fee (by good certified or official bank check) equal to Thirty-Five
Thousand Three Hundred Fifty-Six ($356.00) Dollars plus the unamortized amount
of any brokerage commission payable by Landlord in connection with this Lease.
In no event shall Landlord be obligated to pay any cancellation fee to Tenant if
Landlord shall exercise its right to cancel this Lease pursuant to this Section
1.03. If either Landlord or Tenant shall deliver any such cancellation notice,
then this Lease shall be deemed terminated as of the date fixed for lease
termination in such party's cancellation notice (which shall be the last day of
the month) and Tenant shall vacate the Premises on such cancellation date in the
condition required at the Expiration Date hereof, time being of the essence. If
Tenant shall fail to timely vacate the Premises, then the holdover provisions
set forth in this Lease shall apply. If Landlord or Tenant shall cancel this
Lease as aforesaid, then following the date of cancellation neither Landlord nor
Tenant shall have any further rights or obligations hereunder except as to any
obligations relating to the period prior to the dated fixed for cancellation and
except as otherwise provided in this Lease.
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ARTICLE TWO
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TERM
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Section 2.01. Term. The term of this Lease (the "Term") shall commence
on February 1, 1995 (the "Term Commencement Date") and shall terminate on
January 31, 1996 (the "Expiration Date") or on such earlier date on which the
term may expire or be terminated pursuant to the provisions of this Lease or
pursuant to law.
ARTICLE THREE
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CONDITION OF PREMISES
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Section 3.01 Condition of Premises. Tenant has examined the Building
(including the Leased Premises), is familiar with the physical condition thereof
and is leasing the Leased Premises in its "as is" condition. Except as otherwise
provided herein, Landlord has not made and does not make any representations or
warranties as to the physical condition, expenses, operation and maintenance, or
any other matter or thing affecting or related to the Building or the Leased
Premises therein located. Landlord shall have no obligation to perform any work
in the Leased Premises in order to prepare same for Tenant's occupancy, all of
which work shall be installed by Tenant or its contractors, at Tenant's sole
cost and expense, in accordance with the provisions hereof.
ARTICLE FOUR
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RENTAL
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Section 4.01. Annual Rent.
(a) Tenant shall pay to Landlord as rent, at the office of Landlord
at c/x Xxxxxxx Properties Ltd., 1211 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx
00000 or elsewhere as directed from time to time by Landlord's written notice to
Tenant, base rental per annum (the "Annual Rental") in an amount equal to Two
Hundred Twelve Thousand One Hundred ThirtyFive ($212,135.00) Dollars per annum,
payable in equal monthly installments of Seventeen Thousand Six Hundred
Seventy-Seven and 92/100 ($17,677.92) Dollars, for the period commencing on the
Term Commencement Date to and including the Expiration Date hereof.
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(b) The Annual Rental shall be Payable in equal monthly installments, in
advance, on the first day of each and every month. Simultaneously with the
execution hereof, Tenant has delivered to Landlord a check in the amount of
$17,677.92, which payment (subject to collection) represents the monthly Annual
Rental for February, 1995.
ARTICLE FIVE
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SERVICES
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Section 5.01. Standard of Operations; Cafeteria Landlord shall at all
times operate and maintain the Building in accordance with a standard at least
as high as that customarily followed in the operation and maintenance of
comparable office buildings in Westchester County and, without limiting the
foregoing, shall provide the specific facilities, utilities and services set
forth in this Article.
Section 5.02. Heating, Ventilating and Air Conditioning.
(a) Landlord shall provide heating, ventilating and air conditioning
("HVAC") and snow removal consistent with that offered by first class office
buildings in the vicinity, Landlord shall furnish HVAC services in season as
required for Tenant's comfortable use and normal occupancy of the Leased
Premises from 8:00 a.m. to 6:00 p.m., Mondays through Fridays, except holidays
and from 9:00 a.m. to 1:00 p.m. on Saturdays. Holidays shall be New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day,
President's Day and such other days as are locally observed by Tenant. Tenant
shall advise Landlord of its local holiday schedule and any changes thereto.
(b) Landlord shall, upon reasonable advance notice from Tenant (by
4:00 p.m. for evening service and 4:00 p.m. Friday for weekend service), furnish
to Tenant HVAC services at any time or times other than the regular hours
specified above, with any such overtime service furnished to Tenant at an
initial charge of $25.00 per hour, subject to reasonable increases based on
prevailing market charges for overtime HVAC services.
(c) For HVAC and humidity requiring special operating hours or other
conditions which necessitate the use of self-contained units not served by the
Building's chilled water system (the "Special Systems"), Landlord shall furnish
electrical power to Tenant for Tenant's use in installing and operating, at
Tenant's expense, one or more Special Systems. Tenant shall bear any extra
expense incurred by Landlord in furnishing such power from the Building's
systems or in expanding the Building's systems, if necessary, to provide such
electrical power. Each Special System shall require the prior written consent of
Landlord which shall not be unreasonably withheld or delayed.
Section 5.03. Electrical Service. Landlord shall provide an electrical
distribution system and electrical service for the Building at the level of not
less than four xxxxx per square foot.
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Landlord shall cause to be furnished and shall pay for electricity used in
connection with HVAC and the Common Building Facilities as an item included in
Operating Expenses; provided, however, that Tenant shall bear the expense of
electric power used in the Leased Premises, exclusive of electric power used in
connection with HVAC and the Common Building Facilities. The cost of electric
power for Tenant's use shall be $2,272.88 per month, subject to increases (but
not decreases) based upon surveys prepared by Landlord's contractor at Tenant's
expense, which surveys may be updated from time to time, and Tenant shall pay to
Landlord as additional rent together with monthly installments of the Annual
Rental the cost of the electric service so determined.
Section 5.04. Elevators. Landlord shall provide passenger elevators
serving the Building. The passenger elevators shall be available during all
working hours of all working days, and, at all other times, there shall be at
least one passenger elevator available to serve the Building.
Section 5.05. Light Bulbs and Water. Landlord shall furnish and/or
install at its expense
(a) all initial and replacement light bulbs, fluorescent tubes and
ballasts in the Common Building Facilities; and (b) water, including heated
water, to serve the Leased Premises as required for lavatory and drinking
purposes. Landlord shall furnish and/or install all initial light bulbs,
fluorescent tubes and ballasts for the Leased Premises. Landlord shall provide,
at Tenant's expense, replacement light bulbs, fluorescent Tubes and ballasts for
the Leased Premises. Water for special purposes shall be separately metered to
Tenant through meters installed by Landlord at Tenant's expense.
Section 5.06. Building Security. (a) Landlord does not contemplate
retaining security guards to be stationed in the Building. If Tenant requests
Landlord to supply special security services. These services will be billed to
Tenant directly and will not be included in Operating Expenses.
(b) Tenant, at its expense and with the prior written approval of
Landlord, may design and install such safety and security systems or devices,
including without limitation, electronic security devices and auxiliary
emergency electric power supplies, as Tenant may deem appropriate.
Section 5.07. Janitorial Services. (a) Landlord shall provide, at its
expense, the cleaning and janitorial services (the "Janitorial Services") and
window cleaning services set forth in Exhibit B hereto.
ARTICLE SIX
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TENANT PARKING
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Section 6.01. Tenant Parking. (a) Subject to the provisions of Section
6.01(c) Landlord shall provide Tenant with access to not less than 40 parking
spaces to be used in common with other
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tenants at no additional cost to Tenant. The parking spaces shall be available
for use twenty-four (24) hours a day, every day of the year, and shall be
illuminated after dark. Landlord shall monitor and enforce Tenant's parking
rights granted hereby.
(b) If Tenant, its permitted assignees or subtenants and/or their
respective employees, licensees and guests at any time during the Term are not
able to use the parking spaces because of unauthorized use thereof, Landlord
shall take reasonable steps including, if appropriate, the posting of signs, the
distribution of parking stickers and the towing away of unauthorized vehicles,
to end further unauthorized use.
(c) Tenant understands and agrees that the parking spaces provided by
Landlord shall be utilized solely for the parking of passenger vehicles,
exclusive of trucks, vans and service vehicles (except for normal deliveries of
supplies and equipment to Tenant in the regular course of its business), and
that no maintenance or service of vehicles shall be permitted.
(d) No fence or other barrier shall be erected at the parking spaces
designated for Tenant.
(e) Tenant agrees to minimize the traffic impact of the occupancy of
Building by utilizing its best efforts to encourage car pooling, use of public
transportation, and staggered working hours for its employees.
ARTICLE SEVEN
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USE AND ACCESS
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Section 7.01. Use. (a) Tenant, its Affiliates (as defined in Section
16.01) and permitted assignees and subtenants shall have the right to use the
Leased Premises (excluding Tenant's Parking Spaces) for general and executive
office purposes and for all activities normally incidental thereto and for no
other purpose. In no event shall the Leased Premises be used by a tenant or
occupant which is of the following character: telecommunications common carrier,
banks, automated tellers and banking services, newsstands, tobacconists,
markets, grocery stores, bars, saloons, cocktail lounges, pawn shops, employment
agencies, union hiring halls or uses of like character of the foregoing.
(b) Tenant shall not use the Leased Premises for purposes prohibited
or not provided for under this Lease except upon Landlord's prior written
consent. Tenant shall not use the Leased Premises in any manner which would be
incompatible with a first class office park and/or which would have the effect
of materially lowering the rental and/or capital value of the Leased Premises
and/or the Executive Park.
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Section 7.02. Access. Tenant, its Affiliates and permitted subtenants
and their respective employees, licensees and guests, shall have access to the
Leased Premises at all times, twenty-four (24) hours per day, every day of the
year.
ARTICLE EIGHT
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REPAIRS AND MAINTENANCE
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Section 8.01. Landlord's Obligation to Repair and Maintain. Landlord
shall (except as otherwise provided in Section 8.02 herein) keep and maintain in
good repair and working order and perform necessary maintenance upon the
Building and the Common Building Facilities and all parts thereof (exclusive of
the Leased Premises), including, but not limited to, the roof, parking areas,
elevators, lighting, HVAC (other than supplemental HVAC units which hereafter
may be installed by Tenant), plumbing, floors, corridors, windows, window
frames, common area lobbies and equipment within and serving the Building
(exclusive of the Leased Premises). Landlord shall keep and maintain in good
repair and working order the HVAC system currently serving the Leased Premises
(other than supplemental units, as aforesaid) and existing plumbing therein
unless damaged by reason of Tenant's negligence or wilful misconduct.
Notwithstanding the foregoing, Landlord shall not be obligated to make and
repair or perform any maintenance which Tenant is obligated to make or perform
pursuant to Section 8.02 of this Lease.
Section 8.02. Tenant's Obligations. Tenant shall maintain all of
Tenant's property within the Leased Premises and shall repair any and all damage
to the Building and/or the Leased Premises caused by it, its agents or
employees, except damage by fire or other insured casualty or which may be due
to the negligence of Landlord, its agents or employees. Except as otherwise
provided in Article Eleven or in any other provision of this Lease, upon
termination of this Lease, Tenant shall surrender and deliver up the Leased
Premises in the same condition in which they existed on the Term Commencement
Date, except for ordinary wear and tear, repairs and maintenance assumed by
Landlord, Permitted Alterations (as hereinafter defined), damage arising from
fire or other insured casualty and damage caused by others for whom Tenant is
not responsible.
ARTICLE NINE
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FIRE AND OTHER CASUALTY
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Section 9.01. Damage or Destruction. (a) If the Leased Premises or any
part thereof should be destroyed or damaged by fire or other insured casualty
("insured casualty" meaning fire or other casualty Landlord is required to
insure against pursuant to Article Twenty-Six of this Lease) during the term of
this Lease and such damage or destruction was not caused by the
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negligence or willful misconduct of Tenant, its agents or employees, then
(unless the Lease is terminated by Landlord or Tenant as hereinafter provided)
Landlord shall promptly proceed to reconstruct, restore and repair the Leased
Premises, as the case may be, to a condition substantially equivalent to their
former construction.
Commencing with the date of such damage, provided such damage was not
caused by the negligence or willful misconduct of Tenant, its agents or
employees, the rent provided for herein shall xxxxx pro rata to the extent that,
and for so long as, any portion of the Leased Premises is not reasonably usable
with reasonable ingress and egress and its proportionate number of required
parking spaces, and is not actually used, by Tenant in the ordinary conduct of
its business.
(b) It is agreed that if the Building is totally destroyed by any
cause or is so substantially destroyed that reconstruction would require more
than three (3) months, either Landlord or Tenant may elect to terminate this
Lease by giving the other party written notice of such election within thirty
(30) days after the giving of notice from Landlord hereinafter provided for.
Such termination shall be effective as of the date of such election.
(c) In the event of any casualty, Landlord shall, within twenty (20)
days thereafter, give Tenant written notice of to estimated time required to
repair the same. If Landlord and Tenant shall disagree as to the probable
reconstruction period, the matter shall be determined by an independent
architect reasonably acceptable to both parties, and the thirty (30) day period
for giving of a notice of termination shall commence upon the determination of
such architect that more than three (3) months is required to reconstruct the
Building.
(d) In the event of a casualty, if the reconstruction of the Building
can be completed within three (3) months, Landlord shall commence to restore the
Building within thirty (30) days after the date of the destruction, and complete
the reconstruction within three (3) months, as extended by Excusable Delays, but
in no event later than four (4) months after the date of commencement of the
work. If Landlord fails to commence the reconstruction work within said thirty
(30) day period or complete the reconstruction work within said three (3) month
period, as the case may be, Tenant shall have the option to terminate this Lease
on written notice to Landlord. Nothing contained in this Section 9.01 shall be
deemed to extend the term of this Lease.
Section 9.02. Waiver of Subrogation Rights. The parties hereto hereby
waive any and all rights of recovery, claim, action or cause of action, against
each other, their respective agents, officers and employees, for any loss or
damage in connection with a loss covered by any insurance policies which the
releasor carries with respect to the Leased Premises, the Building, or any
interest or property therein or thereon, whether real, personal or mixed
(whether or not such insurance is required to be carried under this Lease), but
only to the extent that such loss is collectible under such insurance policies,
regardless of the cause or origin of the loss or damage, including negligence of
the parties hereto, their respective agents and employees. Each party agrees to
provide the other with reasonable evidence of its insurance carrier's consent to
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such waiver of subrogation. If at any time in the future the waiver of
subrogation results in increased insurance premiums for either party, the other
party shall reimburse the party incurring the higher premium for the amount of
the increased cost attributable to the waiver of subrogation.
ARTICLE TEN
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LIABILITY
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Section 10.01. Indemnification of the Parties. Subject to the provisions
of section 9.02, Landlord and Tenant each agree to indemnify and save the other
harmless from any and all claims with respect to bodily injury or property
damage, arising from any breach or default on the part of the indemnifying party
in the performance of any covenant or agreement on its part to be performed
pursuant to the terms of this Lease or arising from its negligence or the
negligence of any of its agents or employees, including all costs, counsel fees,
expenses and liabilities incurred in or about any such claim; and if any action
or proceeding is brought against either Landlord or Tenant by reason of any such
claim, the indemnifying party upon notice from the party to be indemnified
covenants to resist or defend such action on proceeding at its expense and the
indemnified party shall cooperate in such defense.
ARTICLE ELEVEN
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ALTERATIONS AND FIXTURES
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Section 11.01. Alterations by Tenant. (a) Tenant may make such Permitted
Alterations (as hereinafter defined) to the Leased Premises as it shall from
time to time elect to make. Tenant shall notify Landlord in writing prior to
making any Permitted Alterations but Landlord's approval thereof shall not be
required if such Permitted Alterations are non-structural in nature, have an
aggregate cost that is less than $10000 and am not visible from the Common
Building Facilities or exterior of the Leased Premises.
The following shall be deemed to be Permitted Alterations:
(i) Erection, demolition or alteration of non-load bearing partitions
and hung ceiling, including lighting fixtures.
(ii) Painting, decorating and installation of wall and floor
coverings.
Except for Permitted Alterations, Tenant shall make no alterations,
installations, additions or improvements in or to the Leased Premises or any
alteration to the mechanical
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systems of the Building or Leased Premises, including, but not limited to the
plumbing and air-conditioning systems of the Building or any part thereof or to
other Building apparatus of other or like nature without Landlords prior written
consent (any such alteration, installation, addition or improvement as to which
Landlord's approval is required being hereinafter referred to as a "Tenant's
Change"). Tenant's relocation of movable modular office partitions shall not be
considered an alteration. Landlord agrees that Landlord will not unreasonably
withhold or delay Landlord's consent to Tenant's Changes provided that such
Tenant's Changes:
(i) do not materially adversely affect the structural elements of the
Building;
(ii) do not materially adversely affect the plumbing, electrical and
HVAC systems of the Building; and
(iii) do not materially adversely affect the outside appearance of the
Building.
(iv) do not materially adversely affect the rental or capital value of
the Building and/or Executive Park.
Landlord may condition Landlord's approval with respect to any Tenant's
Changes on Tenant's agreement to remove such Tenant's Change and restore the
portion of the Leased Premises affected thereby to the condition existing as of
the Term Commencement Date.
(b) Insurance requirements relating to Tenant alterations and
installations are as set forth in Article Twenty-Seven.
(c) All alterations or additions made by Tenant in the Leased
Premises shall be constructed and completed in a good and workmanlike manner at
Tenant's expense by contractors approved by Landlord, such approval not to be
unreasonably withheld or delayed. Tenant shall obtain all necessary governmental
permits, licenses and approvals and shall comply with all Applicable Laws.
Landlord shall. at Tenant cost and expense cooperate with Tenant in connection
with Tenant's procurement of such permits, licenses and approvals and, to the
extent legally required, promptly execute (in Landlord's name) any and all
governmental applications in connection with Tenant's work, provided that in no
event shall Landlord be obligated to make any expenditures by reason of the
foregoing. Tenant shall pay to Landlord, as additional rent for services to be
performed by Landlord in connection with Permitted Alterations and Tenant's
Changes (other than Tenant's initial build-out), Landlord's reasonable charges
therefor not to exceed ten (10%) percent of the total cost of Tenant's Changes.
(d) The quality of any Permitted Alterations or Tenant's Changes
shall be consistent with tenant installations typically found in first class
office parks. Landlord shall have the right to conduct reasonable inspections
(during Building Hours) of any construction undertaken by or on behalf of Tenant
to ensure reasonably satisfactory quality. Tenant shall deliver to Landlord a
complete set of "as-built" plans and specifications promptly following
completion of any Permitted Alterations or Tenant's Changes.
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Section 11.02. Tenant's Property. (a) Tenant, at its expense, may, at
any time and from time to time, install in and remove from the Leased Premises
its trade fixtures, equipment, partitions, walls and wall systems, furniture and
Furnishings, provided such installation or removal is accomplished without
material damage to the Leased Premises or the Building and Tenant promptly
repairs any such damage.
(b) Subject to the provisions of Section 11.01(a) hereof, upon the
expiration of this Lease, Tenant shall remove all of Tenant's property not
permanently affixed to the Building. If Tenant fails to remove any personal
property of Tenant that Tenant may remove upon the termination of this Lease,
any such property not so removed shall, at Landlord's election, become the
property of Landlord or be removed by Landlord at Tenant's expense.
ARTICLE TWELVE
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CONDEMNATION
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Section 12.01. Total Taking. If all or substantially all of the Leased
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose (other than for temporary use or occupancy), the
term of this Lease shall terminate as of the date of vesting of title (the "Date
of the Taking"), and, subject to a pro-ration and apportionment of Annual
Rental, additional rental and other sums due hereunder as of the Date of the
Taking, no further rent shall be due hereunder.
Section 12.02. Partial Taking. If a part of the Leased Premises shall be
so taken, then Landlord shall give Tenant prompt written notice thereof and the
part so taken shall no longer constitute part of the Leased Premises, but this
Lease shall continue in force and effect as to the part not so taken; provided,
however, that Tenant may elect to terminate this Lease (a) if a partial taking
is more than ten percent (10%) of the Leased Premises, and if, in the good faith
judgment of Tenant, the remaining portion of the Leased Premises cannot be
economically and practicably used by Tenant for the conduct of its business as
conducted immediately prior to the taking, or (b) if a partial taking has a
material adverse effect upon the means of access to the Leased Premises, the
entrances or lobbies of the Buildings or the number of parking spaces reasonably
available to Tenant, unless Landlord shall have provided reasonable substitutes
therefor. Tenant shall give notice of any election to terminate to Landlord not
later than sixty (60) days after notice of such taking is given by Landlord to
Tenant, which notice shall describe in reasonable detail the premises subject to
said condemnation. Upon the date specified in Tenant's notice (which shall not
be more than one hundred eighty (180) days after that notice), the term of this
Lease shall terminate and, subject to a proration and apportionment of Annual
Rental, additional rental and other sums due hereunder as of the Date of Taking
and such termination date, as applicable, no further rent shall be due
hereunder. Upon a partial taking and the term of this Lease continuing in force
as to any part of the Leased Premises, the Annual
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Rental or any additional rental shall be reduced proportionately based upon the
part or parts of the Leased Premises so taken and not replaced.
Section 12.03. Claims of Landlord and Tenant. Landlord shall be entitled
to receive the entire award in any proceeding with respect to any taking (other
than for temporary use and occupancy) provided for in this Article without
deduction therefrom for any estate vested in Tenant by this Lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided.
Tenant shall have the right to make a separate claim with the condemning
authority for (a) any moving expenses incurred by Tenant as a result of such
condemnation; (b) the value of any of Tenant's property taken (including any
leasehold improvements made by Tenant); and (c) any other separate claim which
Tenant may hereafter be permitted to make, provided, however, that such separate
claim shall not reduce or adversely affect the amount of Landlord's award. If
Tenant shall not be permitted to make a separate claim in such proceeding,
Landlord shall prosecute all claims in such proceeding on behalf of both
Landlord and Tenant in which event Tenant may, if it so elects and at its
expense, join with Landlord in such proceeding, retain co-counsel, attend
hearings, present arguments and generally participate in the conduct of the
proceeding; provided, however, that if Landlord incurs and additional expense
because of Tenant's exercising its rights under this sentence, Tenant will bear
such additional expense.
Section 12.04. Distribution of the Award. The aggregate amount of all
awards received in any proceeding relating to any taking (other than awards to
Tenant pursuant to Section 12.03 or for temporary use or occupancy) is
hereinafter called the "Award". Regardless of the apportionment of the Award in
such proceeding, and regardless of any termination of this Lease, the Award
shall be held in trust by Landlord or any mortgagee, as their interests may
appear, and distributed in the following order of priority:
(a) If Landlord shall be obligated to repair, alter and restore the
remaining part of the Building or Leased Premises pursuant to Section 12.06, the
amount actually expended by Landlord for such repair, alteration and restoration
shall be paid to Landlord out of the Award.
(b) The balance of the Award shall then be paid to Landlord.
Section 12.05. Temporary Taking of Premises. If all or any part of the
Leased Premises shall be temporarily taken by condemnation or otherwise for any
public or quasi-public use or purpose (unless Tenant shall have elected to
terminate the term of this Lease in accordance with the option provided in the
last sentence of this Section), this Lease shall nevertheless remain in full
force and effect. Tenant shall continue to be responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking; provided, however, that Tenant shall not be liable to the payment of
Annual Rental, additional rental or other sums for the part of the Leased
Premises so temporarily taken. The award for the temporary taking shall be
payable to Landlord, except to the extent such award is intended to cover the
value of Tenant's property taken or the moving costs incurred by Tenant as a
result of such condemnation. In the event of a temporary taking which meets the
requirements of Section 12.02 for a period in excess of
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three months and involves a taking of more than twenty-five percent (25%) of the
Leased Premises, Tenant may terminate the term of this Lease upon notice to
Landlord given within thirty (30) days after written notice to Tenant of such
temporary taking, and this Lease shall terminate as of the date of such taking.
Section 12.06. Landlord's Obligation to Restore.
(a) In the event of a taking which taking does not result in the
termination of the Lease, Landlord shall, at its expense and regardless of
whether any Award or Awards shall be sufficient for the purpose, proceed with
due diligence to repair, alter and restore the remaining part of the Leased
Premises substantially to its former condition to the extent feasible. Upon the
expiration of any temporary taking which did not result in a termination of this
Lease, Landlord shall restore the Leased Premises to their former condition as
aforesaid and any Award relating to the cost of such restoration shall be paid
over to Landlord and used for such purpose.
(b) During any period of restoration of the Leased Premises pursuant
to subsection (a) above, the rent provided for herein shall xxxxx pro rata to
the extent that, and for so long as, any portion of the Lease Premises is not
reasonably usable, and is not actually used, by Tenant in the ordinary conduct
of its business.
ARTICLE THIRTEEN
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REMEDIES AND DEFAULTS
---------------------
Section 13.01. Default by Tenant. (a) The term of this Lease is subject
to the limitation that (i) whenever Tenant fails to pay any monthly installment
of the Annual Rental or any additional rental or other sum due Landlord from
Tenant hereunder and such default continues for a period of ten (10) days after
written notice by Landlord, or (ii) whenever Tenant fails to perform or observe
any other covenant, term, provision or condition of this Lease and such default
continues for a period of thirty (30) days after written notice by Landlord
(plus such additional time as may be reasonably required to cure a default
which, despite diligent and continuous effort, cannot by its very nature be
cured within said thirty (30) days) then, in any of such cases Landlord may give
Tenant a notice of intention to terminate this Lease five (5) days after such
notice and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall expire and terminate on that fifth day with
the same effect as if the date of termination were the Expiration Date, but
Tenant shall remain liable for damages as provided herein.
(b) If the notice provided in subparagraph (a) above shall have been
given and the term shall expire as aforesaid, then Landlord or Landlord's agents
and employees may immediately or at any time thereafter re-enter the leased
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or otherwise (other than by force),
without being liable to indictment, prosecution or damages therefor, and may
repossess
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the same, and may remove any persons therefrom, to the end that Landlord may
have, hold and enjoy the Leased Premises again as and of its first estate and
interest therein. In the event of any termination of the term of this Lease
under the provisions of Article Thirteen or in the event of the termination of
the term of this Lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the rent
and any other charge payable by Tenant to Landlord up to the time of such
termination or re-entry, as the case may be, and shall also pay to Landlord
damages as provided in subparagraph (c) below.
(c) Despite any termination of Tenant's rights of possession, Tenant
shall remain liable for the Annual Rental and any additional rental due and to
become due hereunder, and the same shall be paid by Tenant to Landlord on the
regular days stipulated herein for payment of rent; provided that Landlord shall
have the right to alter, change or remodel the improvements within the Building
and to lease or let the Leased Premises, or portions thereof, for such periods
of time and at such rent and for such use and upon such covenants and conditions
as Landlord may elect, applying the net rent or avails of such letting first to
the payment of Landlord's reasonable expenses in dispossessing Tenant and such
costs or expenses as may be necessary in order to enable Landlord to relet the
same; provided further, however, that Tenant shall be entitled to a credit in
the net amount of the rental or additional rental received by Landlord as a
result of reletting (after deducting all reasonable costs incurred by Landlord
in finding a new tenant, Including brokerage fees, agent's commissions,
redecorating costs, attorneys' fees and party other reasonable costs and
expenses incident thereto). Tenant shall remain obligated to pay the amount of
any deficiency in the annual Rental and additional rental obtained on such
reletting, but if the annual rental or any additional rental obtained upon such
reletting is greater than that provided for herein plus Landlord's costs,
Landlord shall be entitled to receive such excess. Landlord shall have the right
to collect from Tenant amounts equal to said deficiencies provided for above by
suits or proceedings brought from time to time on one or more occasions without
Landlord being obligated to wait until the expiration of the term of this Lease.
(d) Whether or not Landlord shall have collected any amounts pursuant
to (c) above, Landlord shall be entitled to recover from Tenant, and Tenant
shall pay to Landlord, on demand, in lieu of any further monthly payments as and
for liquidated and agreed final damages, a sum equal to the amount by which the
rental for the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental value of the
Leased Premises for the same period, both discounted to present worth at an
interest rate per annum equal to the Treasury Xxxx Rate (hereinafter defined)
less the aggregate amount theretofore collected by Landlord pursuant to the
provisions of (c) above for the same period; if, before presentation of proof of
such liquidated damages to any court, commission or tribunal, the Leased
Premises, or any part thereof, shall have been relet by Landlord for the period
which otherwise would have constituted the unexpired portion of the Term, or any
part thereof, the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair and reasonable rental value for the part or the
whole of the Leased Premises so relet during the term of the reletting. For
purposes of the foregoing, the "Treasury Xxxx Rate" shall mean the annual
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rate of interest then payable on U.S. Treasury Bills having a maturity date
corresponding as closely as practicable to the Expiration Date.
(e) If Tenant shall default in the performance of any of Tenant's
obligations hereunder, then Landlord (in addition to the other remethes provided
herein or at law or in equity), without being obligated to and without thereby
waiving such default, shall have the following remethes:
Thirty (30) days after notice to Tenant and Tenant's subsequent failure
to perform or, in the case of any obligation which cannot be performed in thirty
(30) days, to commence to perform within said thirty (30) day period and to
continue thereafter, with due diligence, to complete such performance, Landlord
may perform such obligation, or, in the case of payment due others, make such
payment, as Tenant's agent. The full amount of the cost and expense so incurred
by Landlord or the payment so made, together with the amount of attorneys' fees
in instituting, prosecuting or defending any action or proceeding by reason of
any default of Tenant hereunder shall be paid by Tenant to Landlord with
interest as provided in Section 13.01(e) of this Lease within ten (10) days
after written demand therefor.
(f) The special remedies to which Landlord may resort under this
Section 13.01 are cumulative and are not intended to be inclusive of any other
remethes or means of redress to which Landlord may lawfully be entitled at any
time, and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not provided for herein.
ARTICLE FOURTEEN
----------------
BANKRUPTCY
----------
Section 14.01. Bankruptcy by Tenant. If at any time during the term of
this Lease a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee of all or substantially all of Tenant's
assets is filed against Tenant in any court pursuant to any statute either of
the United States or of any state and Tenant fails to secure a discharge thereof
within one hundred twenty (120) days, or if Tenant voluntarily files a petition
in bankruptcy or makes an assignment for the benefit of creditors or petitions
for or enters into an arrangement with creditors, the term of this Lease, at the
option of Landlord, exercised within thirty (30) days after notice of the
happening of any one or more of such events, shall terminate on such a date as
Landlord shall specify by notice to Tenant, with the same effect as if the date
of termination were the Expiration Date of this Lease, but Tenant shall remain
liable for rent and/or damages and attorneys' fees as provided in Article
Thirteen. However, if a petition for reorganization or for an arrangement is
filed by or against Tenant, Landlord may not terminate the term of this Lease so
long as Tenant is not in default hereunder and, provided this Lease is assumed
or affirmed in such reorganization or arrangement proceeding and all defaults
cured within the time periods provided by law.
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ARTICLE FIFTEEN
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COMPLIANCE WITH LAWS
--------------------
Section 15.01. Tenant's Compliance with Laws. Tenant, at its expense,
shall comply with any valid and applicable laws, rules, orders, ordinances,
regulations and other requirements, present or future (collectively, "Applicable
Laws"), affecting its occupancy of the Leased Premises and/or the Building that
are promulgated by any governmental authority or agency having jurisdiction over
the Leased Premises and/or the Building and with any reasonable requirements of
the insurance companies insuring Landlord against damage, loss or liability for
accidents in or connected with the Building to the extent that the same shall
affect or be applicable to: (i) Tenant's manner of use of the Leased Premises
(as opposed to its mere use thereof as general and executive offices), (ii)
alterations or improvements made by Tenant, or (iii) a breach by Tenant of its
obligations under this Lease. Tenant shall not at any time use or occupy the
Leased Premises so as to violate the certificate of occupancy for the Building.
Nothing herein contained, however, shall be deemed to impose any obligation upon
Tenant to make any structural alterations, installations or repairs unless
necessitated by reason of (A) a particular manner of use by Tenant of the Leased
Premises, (B) alterations or improvements made by Tenant, or (C) a breach by
Tenant of its obligations under this Lease. If by reason of a future change in
Applicable Laws, structural alterations or installations are required with
respect to buildings or premises used for the same or similar purposes and/or in
the same or similar manner as the Building or Leased Premises, as contrasted
with structural alterations or installations required as a result of a change in
use or manner of use of the Building or Leased Premises by Tenant, then, if the
cost of such structural alterations or installations exceeds $500,000.00
Landlord may terminate this Lease upon thirty (30) days prior written notice to
Tenant. If the cost of such structural alterations or installations is
$500,000.00 or less, Landlord shall make such alterations or installations at
its expense, within the time period allowed by Applicable Laws for compliance.
If Landlord elects to terminate this Lease as aforesaid, Tenant shall have do
right to cancel Landlord's election to terminate by notifying Landlord within
sixty (60) days after receipt of landlord's notice that Tenant agrees to pay on
a monthly basis a pro rata share of the amortized value of such structural
alterations or installations over the remaining life of the alterations or
installations, plus interest, per annum, from the date Landlord paid for such
alterations or installations at the Chase Prime as of Landlord's payment date
(the "Applicable Chase Prime"), calculated as follows: divide me cost of do
alterations or installations by useful life and multiply the quotient (the
"Quotient") by the lesser of (x) the number of years remaining in the original
term of the Lease (the "Remaining Original Term") or (y) the number of years of
the useful life (the "Useful Life") of such alterations or installations (such
product is hereinafter referred to as the "Adjusted Cost"). Thereafter,
ascertain the amount necessary to amortize the Adjusted Cost at the Applicable
Chase Prime, per annum, in equal monthly installments (each a "Monthly Payment")
over the Remaining Original Term. Tenant shall pay as additional rent its pro
rata share of the Monthly Payment on the same day of the month the fixed rental
payment is due under this Lease until the Adjusted Cost is paid in full.
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The estimated life (in years) of the alterations or installations shall
be determined in accordance with Internal Revenue Code guidelines or generally
accepted accounting principles, whichever results in the longer estimated life.
If Tenant elects to cancel the termination of the Lease as aforesaid,
Landlord shall make such alterations or installations within the time period
allowed by the Applicable Laws for compliance.
Section 15.02. Landlord's Compliance with Laws. Landlord shall be
responsible for complying with all Applicable Laws affecting the design,
construction and operation of the Building (excluding the Leased Premises) or
relating to the performance by Landlord of any duties or obligations to be
performed by it hereunder. Landlord may, at its expense (and, if necessary, in
the name of but without expense to, Tenant) contest, by appropriate proceedings
diligently prosecuted, the validity, or applicability to the Leased Premises,
any matter it may be required to comply with provided the deferral of compliance
does not subject Tenant to criminal prosecution or deprive Tenant of the
possession, use or the then current manner of use of the Leased Premises and
Landlord agrees to indemnify Tenant against any, loss or expense Tenant may
incur as a result of such deferral of compliance.
ARTICLE XVI
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ASSIGNMENT AND SUBLETTING
-------------------------
Section 16.01. Assignment and Subletting by Tenant.
(a) Except as expressly permitted herein, Tenant, without the prior
written consent of Landlord in each instance, shall not (a) assign its rights or
delegate its duties under this Lease (whether by operation of law, transfers of
interests in Tenant or otherwise), or mortgage or encumber its interest in this
Lease, in whole or in part, (b) sublet, or permit the subletting of, the Leased
Premises or any part thereof, or (c) permit the Leased Premises or any part
thereof to be occupied, or used for desk space, mailing privileges or otherwise,
by any person other than Tenant. Notwithstanding the foregoing, Tenant's
subsidiaries, vendor representatives, auditors, and consultants shall have the
right to use portions of the premises as desk space, not exceeding 3000 square
feet.
(b) The consent by Landlord to any assignment, subletting, occupancy
or use shall not relieve Tenant from its obligation to obtain the express prior
written consent of Landlord to any further assignment, subletting, occupancy or
use. Tenant shall pay to Landlord all reasonable costs, including reasonable
attorneys' fees and disbursements, incurred by Landlord in connection with any
proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Leased Premises or any part thereof. Neither any assignment of
Tenant's interest in this Lease nor any subletting, occupancy or use of the
Leased Premises or any part thereof by any person other than Tenant or its
Affiliates, nor any collection of rental by Landlord from any person other than
Tenant as provided in this Section, nor any application of any such rental by
Landlord, shall relieve or release Tenant of its obligations under this Lease on
Tenant's part to
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be observed and performed, and, subsequent to any assignment, Tenant's liability
hereunder shall continue notwithstanding any subsequent modification or
amendment hereof or the release of any subsequent tenant hereunder from any
liability, to all of which Tenant hereby consents in advance. Tenant shall
strictly enforce the terms and conditions of any assignment or sublease to which
Landlord shall have consented, and shall assign to Landlord any and all rights
it may have against such subtenant or assignee, as the case may be, should
Landlord so request, including the right to commence legal proceedings in
Tenant's name.
(c) If Landlord shall recover or come into possession of the Leased
Premises before the Expiration Date, Landlord shall have the right, at its
option, to take over any and all subleases or sublettings of the Leased Premises
or any part thereof made by Tenant and to succeed to all the rights of said
subleases and sublettings or such of them as it may elect to take over. Tenant
hereby expressly assigns and transfers to Landlord such of the subleases and
sublettings as Landlord may elect to take over at the time of such recovery of
possession, such assignment and transfer not to be effective until the
termination of this Lease or re-entry by Landlord hereunder (or if Landlord
shall, otherwise succeed to Tenant's estate in the Leased Premises), at which
time Tenant shall upon request of Landlord, execute, acknowledge and deliver to
Landlord such further assignments and transfers as may be necessary to vest in
Landlord the then existing subleases and sublettings. Every subletting hereunder
is subject to the condition and by its acceptance of and entry into a sublease,
each subtenant thereunder shall be deemed conclusively to have thereby agreed
from and after the termination of this Lease or re-entry by Landlord hereunder
(or if Landlord shall otherwise succeed to Tenant's estate in the Leased
Premises), that such subtenant shall waive any right to surrender possession or
to terminate the sublease and, at Landlord's election, such subtenant shall be
bound to Landlord for the balance of the term of such sublease and shall attorn
to and recognize Landlord, as its landlord, under all of the then executory
terms of such sublease. Each subtenant or licensee of Tenant shall be deemed
automatically upon and as a condition of occupying or using the Leased Premises
or any part thereof, to have given a waiver of subrogation of the type described
in and to the extent and upon the conditions set forth in Article XXVI hereof.
(d) If Tenant is a corporation, Tenant may, without Landlord's
consent, assign its interest in this Lease (i) to any corporation which is a
successor to Tenant either by merger or consolidation, (ii) to a purchaser of
all or substantially all of Tenant's assets (provided such purchaser shall have
also assumed substantially all of Tenant's liabilities), or (iii) to a
corporation or other entity which shall (1) control, (2) be under the control
of, or (3) be under common control with, Tenant the term "control" as used
herein stall be deemed to mean ownership of more than fifty (50%) percent of the
outstanding voting stock of a corporation, or other majority equity and control
interest, if not a corporation). Tenant may also sublease to, or permit the use
of all or any portion of the Leased Premises by, an entity described in clause
(iii) (any such entity is referred to herein as an "Affiliate") without
Landlord's consent. As conditions to any such assignment or subletting, (a)
Tenant shall not be in default in the performance of any of its obligations
under this Lease, (b) prior to such subletting Tenant shall furnish Landlord
with the name of any such related corporation, together with a certification of
Tenant and such other proof as Landlord may reasonably request that such
assignee or sublessee is a related corporation
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of Tenant, (c) in the reasonable judgment of Landlord the proposed subtenant
shall be of a character in keeping with the standards of Landlord for the
Building (d) such subtenant or assignee shall not be a "telecommunications
common carrier". In the event of any assignment or subletting described above,
(a) any such assignee, subtenant or occupant shall continue to use the Leased
Premises for the conduct of the purposes permitted hereby, (b) the principal
purpose of such assignment or sublease shall not be the acquisition of Tenant's
interest in this Lease (except if such assignment or sublease is made pursuant
to clause (iii) and is made for a valid intracorporate business purpose and is
not made to circumvent the provisions of this Article), and (c) any such
assignee shall have a net worth and annual income and cash flow, determined in
accordance with generally accepted accounting principles, consistently applied,
after giving effect to such assignment, equal to or greater than Tenant's net
worth and annual income and cash flow, as so determined, on the date of such
assignment. Tenant shall, within ten (10) business days after execution thereof,
deliver to Landlord (a) duplicate original instrument of assignment (or
sublease) in form and substance reasonably satisfactory to Landlord, duly
executed by Tenant (and the subtenant), and (b) an instrument in form and
substance reasonably satisfactory to Landlord, duly executed by the assignee, in
which such assignee shall assume observance and performance of, and agree to be
personally bound by, all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; provided, however, that in no event
shall such assignment relieve or release Tenant from any of its obligations
hereunder. Except as set forth above, either a transfer of a controlling
interest in the shares of Tenant (if Tenant is a corporation or trust) or a
transfer of a majority of the total interest in Tenant if Tenant is a
partnership) at any one time or over a period of time through a series of
transfers, shall be deemed an assignment of this Lease and shall be subject to
all of the provisions of this Article, including, without limitation, the
requirement that Tenant obtain Landlord's prior consent thereto. The transfer of
shares of Tenant (if Tenant is a corporation or trust), for purposes of this
Article, shall not include any sale of shares effected through the
"over-the-counter market" or through any recognized stock exchange.
(e) Except as to sublettings or assignments made pursuant to Section
(d) above, prior to any proposed subletting or assignment, Tenant shall submit a
statement to Landlord (an "Assignment/Sublease Statement") containing the
following information: (a) the name and address of the proposed subtenant or
assignee, (b) a description of the portion of the Leased Premises to be sublet,
(c) the terms and conditions of the proposed subletting including the rent
payable or the proposed assignment, including the consideration payable
therefor, (d) the nature and character of the business of the proposed subtenant
or assignee including financial statements supporting the creditworthiness of
the proposed subtenant or assignee, and (e) any other information that Landlord
may reasonably request. A complete copy of the proposed assignment or sublease
to be executed by Tenant and the assignee or subtenant shall accompany Tenant's
Assignment/Sublease Statement.
(f) Landlord may, by notice to Tenant ("Landlord's Notice"), given
within fifteen (15) days after its receipt of an Assignment/Sublease Statement
wherein Tenant shall propose to sublet all or any portion of the Leased
Premises, require Tenant to sublease the proposed sublease space to Landlord or
its nominee on the terms set forth in Section (g) below. If Tenant shall propose
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to assign this Lease or sublease substantially all of the Leased Premises for
substantially the then balance of the term of this Lease, Landlord also may, by
Landlord's Notice, terminate this Lease as of the date which is two (2) months
following Landlord's receipt of the Assignment/Sublease Statement as though such
date was the Expiration Date set forth in this Lease. If Landlord fails to so
exercise either of such options, it shall not unreasonably withhold or delay its
consent to the proposed assignment or sublease by Tenant, as provided below, but
such consent shall be deemed of no effect if such assignment or sublease is not
consummated by Tenant and the assignee or subtenant, as the case may be,
executing and delivering the assignment or sublease which accompanied Tenant's
Assignment/Sublease Statement within one hundred twenty (120) days after such
consent is given. The portion of the Leased Premises to which any proposed
subletting is to be applicable is hereinafter referred to as the "Space".
(g) If Landlord requires Tenant to execute a sublease ("Sublease")
pursuant to Section (f), then the Sublease shall be upon the same terms as this
Lease, except for such terms thereof as are inapplicable and except that: (1)
the term of the Sublease shall be the term specified in Tenant's
Assignment/Sublease Statement; (2) the fixed annual rent for the Sublease shall
be the lesser of (a) the product of the rate per RSF (net of any credits Tenant
may be receiving in respect thereof pursuant to this Lease or otherwise) Tenant
is then paying Landlord hereunder and the RSF contained in the Space and (b) the
fixed annual rent set forth in Tenant's Assignment/Sublease Statement; (3)
"Tenant's Share" shall be determined by multiplying Tenant's Stare under this
Lease by a fraction, the numerator of which is the RSF contained in the Space
(including any common corridor allowances attributable to the Space), and the
denominator of which is 94,016; (4) for purposes of determining additional rent
under the Sublease, the "Base Year" shall be the later of (i) the Base Year
under this Lease, or (ii) the Base Year as set forth in the assignment or
sublease which accompanies the Tenant's Assignment/Sublease Statement; (5) the
subtenant under the Sublease shall have the unrestricted right to assign the
Sublease or any interest therein, to further sublet all or any part of the Space
and/or to make any alterations, decorations, additions or improvements in and to
the Space (all or any part of which may be removed, at Landlord's option, at any
time, provided Landlord repairs all damage caused by such removal); (6) Tenant,
as sublandlord under the Sublease, shall, at its expense (if and only if,
Tenant, as sublandlord under its proposed Sublease, was required to perform the
following work): (a) erect all partitions required to separate the Space from
the remainder of the Leased Premises and (b) to the extent necessitated by the
Sublease, install all doors required for independent access from the Space to
the elevators, lavatories and staircases on the applicable floor and install all
equipment and facilities required to comply with all Applicable Laws and to
enable Landlord to maintain and service the Space and permit the Space to be
used as an independent unit; (7) the Sublease shall provide that the termination
of all or any portion of this Lease by merger is not thereby intended, and (8)
at the expiration of the Sublease, the Space shall, subject to subdivision (5).
be returned to Tenant as then existing.
(h) If Landlord fails to execute its options set forth in Section (f)
above, then, within such fifteen (15) day period, Landlord shall not
unreasonably withhold its consent to an assignment of this Lease in its entirety
or to any subletting of the Leased Premises, provided that:
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(i) the Leased Premises and this Lease shall not, without Landlord's
prior consent, have been published or otherwise publicly advertised for
subletting at a rental rate less than the prevailing rental rate at which
Landlord is then offering to lease space in the Building;
(ii) no Event of Default shall have occurred and be continuing;
(iii) the proposed subtenant or assignee shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Leased Premises in a manner in keeping with Landlord's then current standards in
such respects of tenancies in the Building;
(iv) the proposed subtenant or assignee shall not be an occupant of
the Executive Park, if Landlord has or within nine (9) months thereafter expects
to have suitable space available in the executive Park and the proposed
subtenant or assignee shall not be a person or entity with whom Landlord is then
negotiating or discussing to lease space in the Building;
(v) the character of the business to be conducted or the proposed use
of the Leased Premises by the proposed subtenant or assignee shall not (a) be
likely to increase substantially Landlord's operating expenses beyond those
which would be incurred for use by Tenant or for use in accordance with the
standards of use of other tenancies in the Building; (b) substantially increase
the burden on existing cleaning services over the burden prior to such proposed
subletting or assignment; (c) violate any provision or restrictions herein
relating to the use or occupancy of the Leased Premises or (d) involve the
presence in the Leased Premises, as occupant or user, of a governmental agency;
(vi) the sublease shall be expressly subject to all of the terms,
covenants, conditions and obligations on Tenant's part to be observed and
performed under this Lease and the further condition and restriction that this
Lease shall not be assigned, encumbered or otherwise transferred in whole or in
part, or any part thereof suffered or permitted to be used or occupied by
others, without the prior written consent of Landlord in each instance;
(vii) the subtenant or assignee, as the case may be, shall agree to
assume all of the obligations of Tenant under this Lease for the balance of the
term, with regard to an assignment, or for the term of the subletting, with
regard to a sublease;
(viii) Tenant shall reimburse Landlord on demand for all reasonable out
of pocket cons that may be incurred by Landlord in connection with said
sublease, including, without limitation, reasonable attorneys' fees and
disbursements;
(ix) the proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be subject
to the service of process in, and the jurisdiction of the courts of, the State
of New York;
(x) the proposed subtenant or assignee shall not be a
"telecommunications common carrier", and
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(xi) the proposed subtenant or assignee shall not contemplate using
the Leased Premises in any manner which would be incompatible with a first class
office park and/or which would have the effect of materially lowering the rental
and/or capital value of the Leased Premises and/or the Executive Park.
(i) If Landlord shall fail to exercise its options set forth in
Section (f) above and shall object to any proposed assignment or subletting,
then Landlord shall provide Tenant with its reason(s) for so objecting within
such fifteen (15) day period following Landlord's receipt of Tenant's
Assignment/Sublease Statement.
(j) Tenant shall pay to Landlord, as additional rent, as and when
payable to Tenant one hundred (100%) percent of the following: (i) with respect
to any sublease, all of any rent or other consideration paid to Tenant by any
subtenant in excess of the pro rata portion of the then Annual Rent and
additional rent payable for such space, and, (ii) with respect to an assignment,
all consideration payable to Tenant, directly or indirectly, by any assignee,
plus any other amount received by Tenant from or in connection with such
subletting or assignment of this Lease, including, in either case, but not
limited to, sums paid for the sale, rental or contribution of Tenant's fixtures,
leasehold improvements, equipment, furniture or other personal property
("Tenant's Property") less, in the event of a sale (or contribution) of Tenant's
Property, the then unamortized or undepreciated cost thereof determined on the
basis of a ten (10) year useful life (as certified to Landlord by Tenant's
independent certified accountants) ("Sublease Profit" or "Assignment Proceeds,"
as the case may be). Tenant shall be entitled to deduct from the total amount of
Sublease Profit or Assignment Proceeds, as the case may be, payable to it, the
reasonable out-of-pocket expenses incurred by Tenant in making such sublease or
assignment, such as reasonable brokers' fees, reasonable attorneys' fees, and
advertising fees paid to unrelated third parties, non-decorative improvement or
alteration costs to prepare the space for such sublease or assignment and, in
connection with any assignment, payments required to be made by Tenant in
connection with the assignment of this Lease pursuant to Article 31-B of the Tax
Law of the State of New York or any real property transfer tax of the United
States or The State of New York (other than any income tax) and the costs of
obtaining any accountant's certification, as required above. If the
consideration payable to Tenant for any assignment shall be payable in
installments, then the expenses specified herein shall be amortized over the
period during which such installments shall be payable.
ARTICLE SEVENTEEN
-----------------
LANDLORD'S ACCESS
-----------------
Section 17.01. Landlord's Right to Use Certain Facilities. Tenant shall
permit Landlord to install, use and maintain additional utility and other pipes,
ducts, lines, flues and conduits in and through the Leased Premises and serving
other portions of the Building and/or the Leased Premises, provided that such
installations are concealed within the permanent walls, floors,
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columns and ceilings of the Leased Premises and in the shafts provided in the
Leased Premises for such installations, do not damage the appearance, reduce the
floor area of the Leased Premises or affect Tenant's layout, and provided
further, that the installation work is performed without substantial
interference with Tenant's use of the Leased Premises. Any damage to the Leased
Premises resulting from Landlord's exercise of the foregoing rights shall be
repaired by Landlord, at Landlord's expense.
Section 17.02. Landlord's Access to Premises. Landlord, and Landlord's
employees, agents and contractors, shall have the right to enter and pass
through the Leased Premises or any part or parts thereof (a) during non-business
hours and during business hours upon reasonable prior notice to Tenant: (i) to
examine the Leased Premises and to show them to underlying or ground lessees or
mortgagees and to prospective purchasers, mortgagees, or insurers, and (ii) for
cleaning and maintenance and making such repairs or changes in or to the Leased
Premises or in or to the Building or the Common Building Facilities as may be
provided for or permitted by this Lease or as may be mutually agreed upon by the
parties or as Landlord may be required to make by laws and requirements of
public authorities; provided, however, that the foregoing shall be done upon
prior notice to Tenant, in a manner so as to reduce interference with Tenant's
business operations and, if requested by Tenant, accompanied by a designated
representative of Tenant; (b) after business hours to perform janitorial
services; and (c) in emergencies. Tenant may designate one or more areas in the
Leased Premises as secure areas, and Landlord shall have no access thereto
without being accompanied by a designated representative of Tenant or, in the
case of emergencies, by members of the Fire or Police Department.
Notwithstanding anything to the contrary contained herein, Landlord and its
agents shall have the right to show the Leased Premises to prospective tenants
throughout the term hereof at any time without notice to Tenant. Additionally,
Landlord shall have the right to construct a demising wall separating the Leased
Premises from adjacent space, during normal business hours.
ARTICLE EIGHTEEN
----------------
NAME OF BUILDING; SIGNS
-----------------------
Section 18.01. Landlord's Right to Designate Building Name. Landlord
shall have the right to designate, and thereafter change, the name of Building 6
to any name it so desires.
Section 18.02. Signs Identifying the Building. Landlord shall provide
and maintain a directory at the entrance of the Executive Park and allow Tenant,
at no charge, to list the name of Tenant or Affiliate and any subtenant or
assignee of Tenant on such directory. The size and prominence of the aforesaid
listings of Tenant or Affiliate on said directory shall be commensurate with the
amount of space occupied by Tenant in the Executive Park in relation to other
tenants listed.
Section 18.03. Limitations on Other Signs. Tenant shall neither install
any signs and/or graphics and shall not permit the Building to be identified by
the name of another company, or permit any other company to erect any signs
and/or graphic outside or in the Common Building
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Facilities of the Building, without first obtaining Landlord's written consent,
which consent shall not be unreasonably withheld or delayed provided such signs
and/or graphics (i) shall not adversely affect on the character or dignity of
the Building, and (ii) conform with the design, style, colors and materials
which are utilized by Landlord throughout the Executive Park.
ARTICLE NINETEEN
----------------
QUIET ENJOYMENT
---------------
Section 19.01. Landlord's Covenant of Quiet Enjoyment. Landlord
covenants and agrees, provided Tenant performs the terms, conditions and
covenants of this Lease, to take all necessary steps to secure and to maintain
for the benefit of Tenant the quiet and peaceful possession of the Leased
Premises and the Common Building Facilities, for the term of this Lease, without
hindrance, claim or molestation by Landlord or any other person.
ARTICLE TWENTY
--------------
NON-WAIVER
----------
Section 20.01. No Waiver Implied. Failure by either party to complain of
any action, nonaction or default of the other party shall not constitute a
waiver of any aggrieved party's rights hereunder. Waiver by either party of any
right for any default of the other party shall not constitute a waiver of any
right for either a subsequent default of the same obligation or for any other
default, past, present or future.
ARTICLE TWENTY-ONE
------------------
NOTICES
-------
Section 21.01. Notices to Landlord or Tenant. Any notice or
communication to Landlord or Tenant which is required or permitted to be given
under this Lease shall be effectively given only if in writing and mailed by
United States Certified Mail, postage prepaid, return receipt requested,
addressed as follows:
If to Tenant, as follows:
Entex Information Services, Inc.
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0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxx Xxxxx
If to Landlord, addressed as follows:
Royal Executive Park
c/x Xxxxxxx Properties Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Property Management
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party shall have the right to change the address to which notices shall
thereafter be sent by giving notice to the other parry as aforesaid.
ARTICLE TWENTY-TWO
------------------
PARTIAL INVALIDITY
------------------
Section 22.01. Severability Clause. If any term, covenant, condition or
provision of this Lease, or the application thereof to any person or
circumstance, shall ever be held to be invalid or unenforceable, then in each
such event the remainder of this Lease or the application of such term,
covenant, condition or provision to any other person of any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each term, covenant, condition and provision hereof shall
remain valid and enforceable to the fullest extent permitted by law.
ARTICLE TWENTY-THREE
--------------------
BROKERAGE
---------
Section 23.01. Brokerage. Landlord and Tenant mutually represent to each
other that the only broker with whom they have dealt with respect to this Lease
is The Xxxxxxxxx Company and
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Landlord agrees to pay all commissions that may be owing to such broker.
Landlord agrees to indemnify Tenant and hold it harmless against any claims for
commissions that may be asserted in connection with this Lease based upon acts
of Landlord, and Tenant agrees to indemnify Landlord and hold it harmless
against any claims for commissions that may be asserted in connection with this
Lease based upon acts of Tenant, provided, however, in no event shall Tenant be
liable to Landlord or otherwise for payment of commissions that may be owing to
the broker named above.
ARTICLE TWENTY-FOUR
LANDLORD'S REPRESENTATIONS AND
WAIVERS AND TENANT'S REPRESENTATIONS
Section 24.01. Landlord's Representations. Landlord represents and
warrants to Tenant that (i) Landlord has the right and lawful authority to enter
into this Lease for the term hereof, (ii) the execution, delivery and
performance of this Lease by Landlord do not and will not contravene the
provisions of Landlord's partnership agreement or any law, governmental rule,
regulation or order as in effect on the date hereof and applicable to Landlord,
or result in a violation of, or constitute a default under, any indenture,
contract, agreement, or other instrument to which it is a party, (iii) Landlord
is the owner of the Leased Premises in fee simple, (iv) the Land is presently
zoned to permit use of the Leased Premises as "offices", and (v) the elevators,
HVAC, electrical, plumbing and mechanical systems in the Building are in good
working order and the roof is free from leaks.
Section 24.02. Waivers. Notwithstanding any provision contained in this
Lease to the contrary, Landlord hereby expressly waives any Landlord's lien it
now has or may hereafter obtain and any and all rights granted by or under any
present or future laws to levy or distrain for rent, in arrears, in advance, or
both, upon any or all towers, antennas, machinery, equipment, fixtures,
furniture and other personal property or fixtures of Tenant or any assignee or
subtenant of Tenant in the Leased Premises.
Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Leased Premises or to have
a continuance of this Lease for the term hereby demised after being dispossessed
or ejected therefrom by process of law or under the terms of this Lease or after
the termination of this Lease as herein provided.
Section 24.03. Tenant's Representations. Tenant represents and warrants
to Landlord that (i) Tenant has the right and lawful authority to enter into
this Lease for the term hereof, (ii) the execution, delivery and performance of
this Lease by Tenant do not and will not contravene the provisions of Tenant's
articles of incorporation or any law, governmental rule, regulation or
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order as in effect on the date hereof and applicable to Tenant, or result in a
violation of, or constitute a default under any indenture, contract, agreement,
or other instrument to which it is a party.
ARTICLE TWENTY-FIVE
-------------------
SUBORDINATION; NON-DISTURBANCE
------------------------------
Section 25.01. Subordination. Landlord may, from time to time, grant
mortgages or security interests or enter into ground leases covering its estate
in the Land and the Building to a lender or lenders (herein, collectively
referred to as a "Mortgage"). Tenant agrees that this Lease shall be subject and
subordinate to any Mortgage now or hereafter encumbering the Land and/or
Building, including any modifications, extensions or renewals thereof and
advances thereunder from time to time in effect. Upon the request of Landlord
and at no expense to Tenant, Tenant agrees to execute a subordination agreement
comprehending the provisions of this Article and otherwise in form reasonably
acceptable to Landlord.
Section 25.02. Investor's Approval. This Lease shall not become
effective unless JMB Realty Corp. shall approve the execution and delivery of
this Lease by Landlord. This Lease shall be null and void if such approval shall
not have been obtained within fifteen (15) business days after the date of
execution of the Lease.
ARTICLE TWENTY-SIX
------------------
INSURANCE
---------
Section 26.01. Landlord's Insurance. (a) Landlord shall maintain at all
times during the term of this Lease:
(i) standard all-risk fire and casualty insurance, covering the
Building in amounts at least equal to eighty percent (80%) of the replacement
cost of the Building at the time in question, but in no event less than such
coverage as is required to avoid co-insurance provisions;
(ii) comprehensive public liability insurance against all claims of
personal injury, death and property damage occurring in the Common Building
Facilities in the Executive Park, with minimum limits of $5,000,000 for injury
to or death of one or more persons in any one occurrence and $1,000,000 for
damage to or destruction of property in any one occurrence; and
(iii) workers compensation insurance in statutory limits and employer's
liability insurance with a limit of $100,000 per employee.
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Section 26.02. Tenant's Insurance. Tenant covenants and agrees to
provide at its expense on or before the Commencement Date and to keep in force,
during the: Term naming Landlord and Tenant as insured parties:
(i) comprehensive general liability insurance including, but not
limited to, premises operations, blanket contractual insurance, broad form
property damage, independent contractor's coverage and personal injury coverage,
protecting Landlord and Tenant against any liability whatsoever, occasioned by
any occurrence on or about the Leased Premises or any appurtenances thereto.
Such policy is to be written by insurance companies licensed to do business in
the State of New York and satisfactory to Landlord, and shall be in a form and
in such limits as Landlord may reasonably require with minimum limits of
liability thereunder of not less than $5,000,000 per occurrence for bodily or
personal injury (including death) and in the amount of $1,000,000 per occurrence
in respect of property damage.
(ii) standard all-risk fire and casualty insurance covering Tenant's
contents in the Building.
Such insurance may be carried under blanket policies covering the Leased
Premises and other locations of Tenant, if any, provided that each such policy
shall in all respects comply with this Article and shall specify that the
portion of the total coverage of such policy that is allocated to the Leased
Premises is in the amounts required to be carried by Tenant and thereafter, at
least 15 days prior to the effective date of any such policy, Tenant agrees to
deliver to Landlord either a duplicate original of the aforesaid policies or a
certificate evidencing such insurance. Said certificates shall contain an
endorsement that such insurance may not be canceled except upon 30 days' prior
notice to Landlord. Such certificates shall also have the indemnity clause set
forth herein typed on the certificates evidencing that the "hold harmless"
clause has been insured. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder
entitling Landlord to exercise any or all of the remethes provided in this Lease
in the event of Tenant's default.
"Tenant shall pay on behalf of and indemnify, defend and save
Landlord harmless from and against any loss, liability, cost and
expense, including reasonable attorneys' fees, (except for those
expenses arising out of Landlord's provision of the services
which Landlord is obligated to provide pursuant to Article Five
of the Agreement of Lease between (Landlord] and [Tenant] dated
_________, 1992 (the "Lease") arising from the use or occupation
of the Leased Premises by Tenant or anyone in the Leased Premises
with Tenant's permission and or from any breach of the Lease by
Tenant"
Section 26.03. Waiver of Subrogation. (a) Tenant agrees that it will, at
its sole cost and expense, include in its fire insurance Policies appropriate
clauses pursuant to which the insurance companies (i) waive all right of
subrogation against Landlord regarding any tenant space in the Building with
respect to losses payable under such policies and (ii) agree that such policies
shall not be invalidated should the insured waive in writing prior to a loss any
or all right of recovery against any party for losses covered by such policies.
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(b) Landlord hereby waives any and all rights of recovery which it
might otherwise have against Tenant, its servants, agents and employees, for
loss or damage occurring to the Building and the fixtures, appurtenances and
equipment therein, to the extent the same is covered by Landlord's insurance
(which, for purposes of this Section (b), shall be deemed to be the coverages
which Landlord is required to carry hereunder), notwithstanding that such loss
or damage may result from the negligence or fault of Tenant, its servants,
agents or employees. Tenant hereby waives any and all right of recovery which it
might otherwise have against Landlord, its servants, and employees, and against
any such tenant in the Building who shall have executed a similar waiver as set
forth herein for the loss or damage to, Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the provisions hereof
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or employees, or such other tenant and the
servants, agents or employees thereof.
Section 26.04. Compliance with Terms. Tenant shall not do or permit to
be done any act or thing upon the Leased Premises which will invalidate or be in
conflict with the policies covering the Building, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Building to an amount higher than it otherwise would be (but the foregoing shall
not prevent Tenant from utilizing the Leased Premises as general and executive
offices); and Tenant shall neither do nor permit to be done any act or thing
upon the Leased Premises which shall or might subject Landlord to any liability
or responsibility for injury to any person or persons or to property by reason
of any business or operation being carried on within the Leased Premises; but
nothing in this Section shall prevent Tenant's use of the Leased Premises for
the purposes stated in Article Seven hereof.
Section 26.05. Excess Rates. If, as a result of any act or omission by
Tenant or violation of this Lease, the rate of fire insurance applicable to the
Building shall be increased to an amount higher than it otherwise would be,
Tenant shall reimburse Landlord for all increases of Landlord's fire insurance
premiums so caused; such reimbursement to be additional rent payable within 5
days of demand therefor by Landlord. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rates for the
Building or the Leased Premises issued by the body making fire insurance rates
for the Leased Premises, shall be presumptive evidence of the facts stated
therein including the items and charges taken into consideration in fixing the
fire insurance rate then applicable to the Leased Premises.
Section 26.06. Windows. Notwithstanding any other clause of this lease,
Landlord or its agents shall not be liable for any damage which Tenant may
sustain, if at any time any window of the Leased Premises is broken, or
temporarily or permanently closed, darkened or bricked upon for any reason
whatsoever, except only Landlord's arbitrary acts if the result is permanent,
and Tenant shall not be entitled to any compensation therefor or abatement of
rent or to any release from any of Tenant's obligations under this Lease, nor
shall the same constitute an eviction or constructive eviction.
Section 26.07. Fines and Penalties. Notwithstanding any other clause of
this Lease, Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord,
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by reason of any breach, violation or nonperformance by Tenant, or its agents,
servants or employees, of any covenant or provision of this Lease, or by reason
of damage to persons or property caused by moving property or or for Tenant in
or out of the Building, or by the installation or removal of furniture or other
property of or for Tenant, or by reason of or arising out of carelessness,
negligence or improper conduct of Tenant, or its agents, servants or employees,
in the use or occupancy of the Leased Premises. Tenant shall have the right, at
Tenant's own cost and expense, to participate in the defense of any action or
proceeding brought against Landlord for expenses, damages or fines incurred or
suffered by Landlord for which Tenant is liable.
Section 26.08. Notice of Casualty. Tenant shall give Landlord notice in
case of fire or accidents in the Leased Premises promptly after Tenant is aware
of such event.
Section 26.09. Landlord's Liability. Landlord or its agents shall not be
liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow or
leaks from any part of the Building, or from the pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other of whatsoever nature, unless any of the foregoing shall
be caused by or due to the negligence of Landlord, its agents, servants or
employees.
Section 26.10. Construction Insurance. Prior to commencement of any
installations or alterations by Tenant, Tenant shall furnish to Landlord
certificates of insurance evidencing the existence of:
(a) Workers compensation covering all persons employed for such work.
(b) Employer's liability including bodily injury caused by disease
with a limit of $100,000 per employee.
(c) Comprehensive general liability insurance including but not
limited to completed operations coverage, products liability, contractual
coverage, broad from property damage, independent contractor's coverage and
personal injury coverage naming Landlord, its officers, agents, directors,
employees, representatives, consultants, and/or partners and owners, including
but not limited to any managing agent, and Tenant as insured, with coverage of
at least $5,000,000 combined single limit.
Such insurance shall be placed with solvent and responsible companies
satisfactory to Landlord and licensed to do business in the State of New York,
and the policies shall provide that they may not be canceled without 30 days
prior notice in writing to Landlord.
(d) Tenant shall require all contractors engaged or employed by
Tenant to indemnify and hold Tenant, Landlord, Landlord's consultants, including
but not limited to any managing agent, harmless in accordance with the following
clause:
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"The contractor hereby agrees to the fullest extent permitted by
law to assume the entire responsibility and liability for and
defense of and to pay and indemnify Landlord, Tenant and managing
agent against any loss, cost, expense, liability or damage and
will hold each of them harmless from and pay any loss, cost,
expense, liability or damage (including, without limitation,
judgments, attorney's fees, court costs, and the cost of
appellate proceedings), which Landlord and/or Tenant and/or
managing agent incurs because of injury to or death of any person
on account of damage to property, including loss of use thereof,
or any other claim arising out of, in connection with, or as a
consequence of the performance of the work by the contractor
and/or any acts or omissions of the contractor any of its
officers, directors, employees, agents, sub-contractors or anyone
directly or indirectly employed by the contractor or anyone for
whose acts the contractor may be liable as it relates to the
scope of this Contract, whether such injuries to person or damage
to property are due or claimed to be due to any negligence of
Landlord and/or Tenant and/or managing agent its or their
employees or agents or any other person."
ARTICLE TWENTY-SEVEN
--------------------
RULES AND REGULATIONS
---------------------
Section 27.01. General: This Lease Controls in Event of Conflict. Tenant
shall comply with Landlord's Rules and Regulations which are annexed hereto as
Exhibit C, and such reasonable changes therein (whether by modification,
elimination, addition or waiver) as Landlord at any time or times hereafter may
make, which (i) shall be necessary or desirable for the reputation, safety, care
or appearance of the Building or the preservation of good order therein or the
operation or maintenance of the Building or the equipment thereof or the comfort
of tenants or others in the Building and (ii) do not reasonably interfere with
or materially adversely affect the conduct of Tenant's business in the Leased
Premises; provided, however, that in the case of any conflict or inconsistency
between the provision of this Lease and any of such Rules or Regulations, as
changed, the provisions of this Lease shall control. Landlord shall give
reasonable notice to Tenant, communicated in writing, of any changes in the
Rules and Regulations made in accordance with this Section and Tenant shall be
entitled to a reasonable opportunity to respond thereto. The Rules and
Regulations, as changed in accordance with this Section from time to time, are
hereinafter called the "Rules and Regulations."
Section 27.02. Standards Applicable to Landlord. Landlord shall (a) not
discriminate against Tenant in enforcing the Rules and Regulations; (b) not
unreasonably withhold or delay its consent from Tenant for any approval required
under the Rules and Regulations; and (c) exercise its judgment in good faith in
any instance providing for the exercise of its judgment in the Rules and
Regulations.
Section 27.03. Landlord's Enforcement. Landlord shall use its best
efforts to secure compliance by all tenants and other occupants with the Rules
and Regulations, but Landlord may permit
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reasonable waivers with respect to other parties so long as such waivers do not
materially adversely affect Tenant and provided further that Landlord grants
Tenant similar waivers.
ARTICLE TWENTY-EIGHT
--------------------
MISCELLANEOUS
-------------
Section 28.01. Certain Miscellaneous Provisions. This Lease (including
the Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. This Lease may not be
changed, modified, terminated or discharged, in whole or in part, except by a
writing, executed by the party against whom enforcement of the change,
modification, termination or discharge is to be sought. The Article and Section
headings or titles in this Lease are inserted for convenience only and are not
to be given any effect in its construction. Wherever appropriate in this Lease,
personal pronouns shall be deemed to include the other genders and the singular
to include the plural. The covenants and agreements contained herein shall inure
to and be binding upon Landlord, its successors and assigns, and, Tenant, its
successors and assigns. The term "Landlord" means only the owner for the time
being of the Building, so that in the event of any sale or other transfer of the
Executive Park or any part thereof including the Building, Landlord shall be
released of all covenants and obligations of Landlord hereunder with respect to
the Executive Park or portion thereof sold or transferred accruing after such
sale or transfer. Neither the submission of this Lease form to Tenant nor the
execution of this Lease by Tenant shall constitute an offer by Landlord to
Tenant to lease the space herein described as the Leased Premises or otherwise.
This Lease shall not be or become binding upon Landlord to any extent or for any
purpose unless and until it is executed by Landlord and a fully executed
duplicate original thereof is delivered to Tenant or Tenant's counsel.
Section 28.02. Estoppel Certificate. At any time and from time to time
within five (5) days after written demand therefor, Tenant shall execute,
acknowledge and deliver to Landlord, without charge, a statement addressed to
Landlord (and/or such other persons or pants as Landlord shall require),
certifying that to the best knowledge of Tenant, this Lease is in full force and
effect and is unmodified (or, if there have been modifications, specifying same)
and setting forth the dates to which the rentals and other charges payable
hereunder have been paid and stating that Landlord is not in default in the
performance of any of the covenants or agreements on its part to be performed
hereunder (or, if that is not the case, specifying each particular in which
Tenant alleges that Landlord is in default) and certifying as to such other
items in respect of this Lease as Landlord may reasonably require.
Section 28.03. Governing Law. This Lease shall be governed in all
aspects by the laws of the State of New York.
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Section 28.04. Holdover. In the event Tenant shall hold over after
termination of the Lease by lapse of time or otherwise, Tenant shall pay as rent
for the holdover period an amount equal to one and one-half times the monthly
Annual Rental set forth in Section 4.01 of this Lease, pro rated on a daily
basis. If Landlord gives notice to Tenant of Landlord's election thereof, such
holding over shall constitute renewal of this Lease for a period from month to
month at a rent equal to one and one-half times the Annual Rental set forth in
Section 4.01 of this Lease, but if Landlord does not so elect, acceptance by
Landlord of all rent after such termination shall not constitute a renewal of
the Lease. This provision shall not be deemed to waive Landlord's right of
re-entry or any other right hereunder or at law. This Section shall survive the
termination or any cancellation of the Lease or the Term thereof.
Section 28.05. Late Fee. If Tenant shall fail to pay any installment of
Annual Rental when first due hereunder (irrespective of any grace period as may
be applicable thereto) and (i) if such failure to pay shall continue for more
than ten (10) days after such payment was first due, then Tenant shall be
required to pay Landlord, upon demand, a late charge of $.05 for each 51.00
which remains so unpaid and (ii) if such failure to pay shall continue for more
than twenty (20) days after such payment was first due, then, in addition to
Landlord's right to collect the late charge described in clause (i) above,
interest at a rate per annum equal to the lesser of (a) three (3%) percent over
the Chase Manhattan Bank prime rate, or (b) the maximum rate of interest that
then may be charged to parties of the same legal capacity as Tenant, shall
accrue from and after the date on which any such sum was first due and payable
hereunder, and such late charge and accrued interest shall be deemed additional
rent hereunder and shall be paid to Landlord upon demand. Nothing in this
Section shall be intended to violate any applicable law, code or regulation and
in all instances all such charges shall be automatically reduced to any maximum
applicable legal rate or charge. The provisions of this Section are in addition
to all other
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remethes available to Landlord for nonpayment of Annual Rental.
THIS LEASE is hereby executed and delivered effective as of the date and
year first above written.
LANDLORD:
ROYAL EXECUTIVE PARK II, a New York
limited partnership
By: JMB Income Properties, LTD.-XI,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, general partner
By: /s/ signature illegible
Name: illegible
Title: SVP
TENANT:
ENTEX INFORMATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Manager, Enterprise Facilities
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EXHIBIT A
[IMAGE NOT SHOWN]
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EXHIBIT "B"
CLEANING SPECIFICATIONS
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TENANT SPECIFICATIONS
A. NIGHTLY SERVICES: FIVE (5) PER WEEK, MONDAY THROUGH FRIDAY, EXCLUDING
ALL LEGAL HOLIDAYS.
1. Empty and clean all wastebaskets and remove trash to pre-designated area
on premises, This includes trash relocation to compactors behind
Buildings #3 & 5. Small plastic trash liners not included.
2. Empty and wipe clean all ashtrays.
3. Dust furniture, files, fixtures, telephones, window xxxxx and other
surfaces up to 60" high.
4. Spot clean all interior partition glass doors, remove fingerprints and
smudges.
5. Remove fingermarks and smudges from all doors, door frames and light
switch areas.
6. Secure all windows and doors upon completion of cleaning.
7. Extinguish all but the designated night lights to remain on in the
building.
8. Report any faulty equipment to supervisors, who will in turn, report
such items to tenants representative.
FLOOR CARE
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1. Sweep and/or dust mop non-carpeted areas five (5) times per week.
2. Damp mop non-carpeted areas five (5) times per week.
3. Vacuum all carpeting five (5) times per week. Spot-clean as necessary.
B. PERIODIC SERVICES
1. Office areas-high dusting every four (4) months.
2. Dust and wipe clean all closet shelving when empty quarterly.
3. Dust all picture frames, charts, graphs, etc., monthly.
4. Dust and damp wipe as necessary ventilating, air conditioning outlets
and return air grills.
5. Dust venetian blinds quarterly.
F-1
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EXHIBIT "C"
RULES AND REGULATIONS
---------------------
1. The sidewalks, driveways entrances passages, courts, esplanade
areas and plazas, shall not be obstructed of encumbered by Tenant or used for
any purpose other than ingress and egress to and from the Leased premises and
Tenant shall not permit any of its employees, agents or invitees to park
automotive or other vehicles in any areas other than the designated parking
spaces leased to the Tenant and referred to in this Lease as Tenant's Parking
Spaces.
2. All deliveries to and pick-ups from the Buildings shall be made
at the entrances designated by the Landlord therefor.
3. All sweepings, rubbish and other refuse shall be deposited by
Tenant in the appropriate receptacles provided by Landlord in the locations
designated for the storage of such refuse on the Leased Premises.
4. Tenant shall use its best efforts to assist the Landlord in
keeping the Common Building Facilities in a clean and orderly condition so as to
maintain a proper appearance to the Buildings and the surrounding areas. (This
shall not be deemed to impose on Tenant the obligation to clean or maintain the
Common Building Facilities.)
5. In case of any renewal under this Lease by Tenant of part but not
all of one or both of the Buildings, Tenant shall comply with such additional
rules and regulations as Landlord may impose for the orderly administration of
such Buildings.
39
FIRST AMENDMENT OF LEASE
THIS AGREEMENT (the "Amendment") made as of the 18th day of October,
1995, between ROYAL EXECUTIVE PARK II, a New York limited partnership, having an
office c/x Xxxxxxx Properties Ltd., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Landlord") and ENTEX INFORMATION SERVICES, INC., a Delaware
corporation, having an office at 0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx
00000 ("Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease, dated as of January 20, 1995 (the
"Lease"), Landlord did demise and let to Tenant, and Tenant did hire and take
from Landlord, certain premises consisting of a portion of the ground floor
located in Building 6 of Phase II in Royal Executive Park, Rye Brook, New York
(the "Building");
WHEREAS, Landlord and Tenant desire to modify, amend and supplement the
Lease on the terms, covenants and conditions more particularly set forth herein.
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) paid
by Tenant to Landlord and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Unless otherwise provided to the contrary, capitalized terms used
herein shall have the meanings ascribed to such terms in the Lease.
2. The Term of the Lease is hereby extended from January 31, 1996 until
December 31, 1998. Accordingly, the Expiration Date of the Lease shall be
December 31, 1998.
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3. Tenant shall continue to pay Annual Rental at the rate specified in
Section 4.01 of the Lease through December 31, 1995. Tenant shall pay Annual
Rental in an amount equal to Two Hundred Six Thousand Seventy-Four ($206,074.00)
Dollars per annum, payable in equal monthly installments of Seventeen Thousand
One Hundred Seventy-Two and 83/100 ($17,172.83) Dollars, for the period
commencing January 1, 1996 through and including the Expiration Date.
4. The following shall be added as Section 4.02 of the Lease:
"Section 4.02. Rent Escalation.
(a) For purposes of this Section, the following definitions shall apply:
(i) The term "Operating Year" shall mean: (1) the period
commencing on January 1, 1996 and ending on December 31, 1996, and (2) each
successive period of twelve (12) months, and (3) the period of twelve (12)
months or less commencing with January 1st immediately preceding the Expiration
Date and ending on the Expiration Date. Escalation additional rent payable
pursuant to this Section 4.02 shall be appropriately apportioned for any partial
Operating Years comprising less than one (1) full year.
(ii) The term "Base Year" shall mean, with regard to Operating
Expenses and Taxes, the calendar year 1995.
(iii) The term "Landlord's Expenses" shall mean the sum of (A)
"Operating Expenses" as defined in Exhibit "A" annexed hereto plus (B) "Taxes"
as hereinafter defined.
(iv) Landlord's "Expense Statement" shall mean a reasonably
detailed statement of Landlord's Expenses certified by Landlord in sufficient
detail to enable Tenant's accountants to compute additional rent payable
hereunder.
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(v) The term "Tax Premises" shall mean Phase II of Royal
Executive Park excluding the Access Drive, together with the improvements
thereon, including without limitation Buildings 4, 5 and 6.
(vi) The term "Taxes" shall mean one-third of all real estate
taxes and assessments (but not interest and/or penalties for late payment)
levied and assessed against the Tax Premises and to the extent allocable to
Phase II, the Access Drive and the Drainage Basin, as shown on Landlord's tax
bills for the respective period, but such term shall not include any income,
franchise, transfer, inheritance, capital stock or any other tax unless a tax
upon rent or some other tax shall be substituted in whole or in part for the
present general real estate taxes, in which event such tax shall constitute a
Tax but only to the extent to which such tax shall be substituted for said real
estate taxes.
(vii) The term "Drainage Basin" shall mean the drainage retention
basin servicing Royal Executive Park.
(viii) Any assessments imposed by public authorities for
improvements included in Taxes which may be paid in installments shall be deemed
payable in the maximum number of installments permitted by law and only such
installment(s) as are payable within any real estate fiscal tax year shall be
included in Taxes for such tax year for the purposes of this Lease.
If any assessment for improvements includable in Taxes is not payable in
installments, the estimated useful life (in years) of the improvement for which
the assessment is levied shall be determined in accordance with (i) Internal
Revenue Code guidelines or (ii) generally accepted accounting principles
whichever results in the longer useful life, and Tenant shall pay as its share
of that portion of the assessment allocable to the Leased Premises (in
accordance with generally
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accepted accounting principles) a pro-rata amount determined by (a) dividing (1)
the amount of the assessment by (2) the number of years of such useful life: and
(b) multiplying the quotient by the lesser of (1) the number of years remaining
in the term of the Lease (including the number of years of any renewal option
exercised by Tenant) or (2) the number of years of such useful life.
(ix) The term "Tenant's Share" shall mean 13.47%.
(b) Tenant shall pay as additional rent for each Operating Year,
Tenant's Share of the excess, if any, in the Landlord's Expenses for said
Operating Year over Landlord's Expenses for the Base Year. In the event that the
Executive Park is 95% or more fully occupied, Landlord's Expenses shall be
actual costs of operation. In the event of lower occupancy, Operating Expenses
shall be determined by adjustment to the level that they would have been at 95%
occupancy. Such additional rental shall be payable by Tenant to Landlord as
follows:
(i) The additional rent for Operating Expenses for the first
Operating Year shall be payable on the first day of each month commencing on
January 1, 1996 and ending December 31, 1996 in a monthly installment equal to
1/12th of the additional rent hereunder for Landlord's Expenses reasonably
estimated by Landlord to be payable by Tenant to Landlord for the first
Operating Year. If the actual amount of additional rent paid by Tenant for the
first Operating Year is ultimately determined to be less than or in excess of
the actual amount therefor due from Tenant hereunder, then within thirty (30)
days after the date on which Landlord delivers its Expense Statement for the
respective Operating Year Tenant shall pay to Landlord the amount of such
shortfall, if any, or Landlord shall credit such excess, if any, to future
payments of Annual Rental and/or additional rent required to be paid by Tenant
under this Lease.
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(ii) Commencing with the second Operating Year, the additional
rent for Landlord's Expenses shall be payable on the first day of each month
during each Operating Year in an amount equal to 1/12th of the additional rent
hereunder for Landlord's Expenses estimated by Landlord to be payable by Tenant
to Landlord for the current Operating Year. Such estimated payments shall be
reconciled to actual payments in the same manner as set forth in Section
4.02(b)(i).
(iii) Landlord shall deliver its Expense Statement to Tenant
within ninety (90) days after the end of each Operating Year, provided, however,
Landlord shall not lose its right to collect the additional rent for Landlord's
Expenses for the respective Operating Year if Landlord fails to submit an
Expense Statement within the time specified herein. The payment of any
additional rental by Tenant shall not preclude it from questioning the
correctness of any Expense Statement. In the event Tenant objects to the Expense
Statement, Tenant shall give Landlord a specific statement of its objections
within one hundred twenty (120) days from the date Landlord delivers the Expense
Statement to Tenant. If Tenant does not object to an Expense Statement within
said one hundred twenty (120) day period, Tenant may not thereafter object to
said Expense Statement.
Landlord will make available to Tenant and its advisors (upon
reasonable notice during normal business hours) all relevant books and records
pertaining to Landlord's Expenses, provided, however, that if Tenant shall audit
Landlord's books and records utilizing a third-party auditor, then such auditor
shall not be compensated by Tenant on a contingency fee basis. In the event
Tenant objects to the Expense Statement, Tenant shall give Landlord a specific
statement of its objections within ninety (90) days from the date Landlord makes
such books and
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records available to Tenant. If Tenant does not provide such statement to
Landlord within said ninety (90) day period (provided Landlord shall have timely
made its books and records available to Tenant as aforesaid), Tenant may not
thereafter object to said Expense Statement. In the event Tenant shall dispute
Landlord's Expense Statement and the parties cannot resolve their differences
within thirty (30) days thereafter, Tenant may request a certification of the
Expense Statement by Landlord's certified public accountant. Such certification
by an accountant shall be binding upon Landlord and Tenant unless Tenant
demonstrates same to be in error. Pending delivery of such certified statement
by Landlord's accountant, Tenant may not withhold payment of the amount in
dispute.
(c) Notwithstanding anything in this Section 4.02 to the contrary, it is
understood and agreed that if Landlord shall receive a refund of any portion of
Taxes in respect of which Tenant shall have paid additional rental under this
Section, then and under such circumstances Tenant shall be entitled to a credit
against future payments of additional rental under this Section in an amount
equal to a pro rata share of such refund, after first deducting from such total
refund all reasonable fees, costs and expenses incurred by Landlord in
collecting same.
(d) If, upon the expiration of the term of the Lease, any credit to
which Tenant might be entitled pursuant to this Section shall not then have been
used as a credit, then, subsequent to Tenant properly vacating the Leased
Premises and provided that Tenant is not in default hereunder, Tenant shall be
entitled to a payment equal to the amount of any such remaining credit within
thirty (30) days of said lease expiration. Tenant's obligation hereunder to pay
additional rent for any Operating Year shall survive the expiration or
termination of the term of this Lease. In the event that the additional rent to
be paid by Tenant under this Section for the final
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Operating Year has not been determined upon the last day of the Lease term,
Tenant covenants to pay to Landlord the additional rent required to be paid
pursuant to this Section for the final Operating Year upon a determination being
made by Landlord of the actual amount of additional rent required to be paid by
Tenant pursuant to this Section. Notwithstanding the foregoing, Tenant's
obligation to pay additional rent shall not extend to that period of the
Operating Year after termination of this Lease."
5. Section 1.03 of the Lease is hereby deleted in its entirety.
6. The last sentence of Section 5.03 of the Lease is hereby deleted and
the following shall be substituted in its place and stead:
"The cost of electric power for Tenant's use shall be $2,272.88 per
month subject to increases or decreases based upon surveys as provided below.
Such amount shall be paid by Tenant as additional rent hereunder together with
monthly installments of Annual Rent. If either party shall request a survey of
Tenant's electrical consumption, then Landlord and Tenant jointly shall select
an independent third party whose fees shall be paid by Tenant for purposes of
conducting such survey, and the monthly electrical charge shall be prospectively
adjusted if indicated by such survey. Tenant's electricity cost shall be based
upon the Landlord's then current average cost per kilowatt hour charged by the
local utility company, without any administrative charge to Tenant."
7. Supplementing Section 5.07 of the Lease, Landlord, as part of its
Janitorial Services, will (i) supply the restrooms servicing the Leased Premises
with toilet tissue and soap, and (ii) remove ice, snow and litter from the
walks, driveways and parking areas of the Executive Park. Additionally, Landlord
will maintain the Building's access security system,
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provided, however, that Tenant, at its cost and expense, will maintain the
security system servicing the Leased Premises.
8. In supplementing Section 7.01 of the Lease, Tenant may occupy the
Leased Premises for offices, sales, display, storage, service, repair and use of
Tenant's products and equipment, engineering, training of Tenant's customers and
employees, and all other uses incidental and related thereto.
9. Notwithstanding anything to the contrary contained in Section 11.01
of the Lease, Landlord's approval shall not be required for Permitted
Alterations that are non-structural in nature and do not affect Building systems
if the aggregate cost thereof does not exceed $25,000. Additionally, the
percentage specified in Section 1 1.01 (c) of the Lease is hereby reduced from
ten (10%) percent to five (5%) percent.
10. Notwithstanding anything to the contrary contained in Section
11.02(b) of the Lease, Tenant will not be required to repaint any portion of the
Leased Premises upon the expiration of the Lease unless repainting is
necessitated by Tenant's abnormal wear and tear.
11. Section 13.01(a) of the Lease is hereby amended to add the words
"receipt of" after the words "ten (10) days after" in line four thereof and
"thirty (30) days after" in line six thereof. Notices delivered pursuant to
Article 21 of the Lease shall be deemed to have been received by a party three
(3) business days following the date such notice shall have been mailed by the
sending party.
12. The third sentence of Section 15.01 of the Lease beginning with the
words "If by reason of a future change in Applicable Laws" and all succeeding
sentences of such Section are hereby deleted in their entirety.
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13. In addition to the forty (40) nonexclusive parking spaces provided
to Tenant pursuant to Section 6.01(a) of the Lease, Landlord shall provide
Tenant with eight (8) reserved spaces which will be designated "Entex"
throughout the Lease Term.
14. The phrase "on the date of such assignment" set forth at the end of
the first full sentence on page 19 of the Lease shall be deleted and "on the
date hereof" shall be substituted in its place and stead.
15. The reference to one hundred (100%) percent set forth in Section
16.01(j) of the Lease shall be deleted and "fifty (50%) percent" shall be
substituted in its place and stead.
16. Supplementing Section 17.02 of the Lease, if Landlord shall require
access to the Leased Premises for repairs, construction or otherwise, then
Landlord shall use reasonable efforts to minimize interference with Tenant's use
of the Leased Premises and its ability to conduct business therein.
17. Supplementing Article 25 of the Lease, Landlord shall use reasonable
efforts to secure customary non-disturbance protection in favor of Tenant in
connection with any refinancing of the Building.
18. Landlord shall keep in full force and effect throughout the Lease
Term a policy of insurance against loss or damage by fire and such other risks
and hazards (including burglary and theft) as are insurable under standard forms
of "all risk" insurance policies, with extended coverage, covering the Building
for at least ninety (90%) percent of the replacement value thereof, exclusive of
foundations and any tenant alterations. Effective as of the date hereof and
thereafter throughout the Lease Term, the liability and property damage
insurance policy which Tenant is required to obtain pursuant to Section 26.02 of
the Lease shall cover (in addition to
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the risks described therein) all risk of direct physical loss or damage,
including but not limited to, water leakage, overflow and sewer and drain
build-up. Simultaneously with the execution and delivery of this Amendment,
Tenant shall deliver a certificate of insurance to Landlord evidencing such
additional coverage.
19. Landlord and Tenant hereby covenant that they will not release or
discharge any hazardous or toxic materials in or around the Building, provided,
however, that the foregoing shall not restrict either party from using and
storing normal office building cleaning materials or hiring licensed
exterminators for the purpose of rodent or pest control. Additionally, Landlord
may store hydrocarbons at the Building such as gasoline, oil and diesel fuel so
long as the storage thereof complies with applicable law.
20. Provided Tenant shall not be in monetary default under the Sublease
or Non-Disturbance Agreement (as such terms are hereinafter defined) at the time
Tenant delivers its Exercise Notice or on the Renewal Commencement Date (as such
terms are hereinafter defined), Tenant shall have the option (the "Option") to
extend the term of the Lease for the period commencing on the first day next
succeeding the Expiration Date (the "Renewal Commencement Date") through and
including May 30, 2002 (the "Renewal Term") upon the same terms, conditions and
provisions as are provided for in the Lease (including without limitation
payment of Rent Escalations pursuant to Section 4.02) except that:
(x) the Annual Rental during the Renewal Term shall equal the sum
of (A) the Annual Rental payable during the last twelve (12) months of the
original Term plus (B) ninety-five (95%) percent of the amount by which (x) the
then-current market rental rate for five-year leases of space comparable to the
Leased Premises (less the amount payable per rentable square
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foot under Section 4.02 for the last twelve (12) months of the original Term)
multiplied by the rentable area then included in the Leased Premises exceeds (y)
the amount payable under (A) of this paragraph. The fair market rental rate for
a five (5) year lease shall be utilized for purposes of determining the Annual
Rental during the Renewal Term notwithstanding the fact that the Renewal Term
shall comprise fewer than five (5) years. In the event that Landlord and Tenant
cannot agree upon the market rental rate to determined the Annual Rental for the
Renewal Term on or before the ninetieth (90th) day prior to the commencement of
the Renewal Term, such market rental rate shall be determined by a real estate
appraiser with not less than ten (10) years' experience in the Westchester
leasing market and mutually acceptable to Landlord and Tenant, provided, that if
a mutually acceptable appraiser cannot be selected by the parties, then the
selection of a real estate appraiser (complying with the experiential
requirements above) shall be made by the American Arbitration Association. The
cost of such appraiser's services and any arbitration fees shall be shared
equally by Landlord and Tenant. The real estate appraiser shall be directed to
not consider in determining the "then-current market rental rate" any rent
concessions, build-out allowances, work letter expenses and any other expenses
Landlord would have to make by reason of market conditions if a new tenant were
to lease the Leased Premises instead of Tenant For example, if the "then-current
market rental rate" were $35.00 per rentable square foot, such $35.00 per
rentable square foot figure would be utilized for purposes of determining the
Annual Rental during the Renewal Term notwithstanding that then prevailing
market conditions would require Landlord to provide a new tenant of the Leased
Premises with a six month rent concession, $30.00 per rentable square foot work
letter or other
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such incentives. For the purposes of this paragraph only, the area of the Leased
Premises is 12,122 rentable square feet.
(y) the Expiration Date shall mean May 30, 2002; and
(z) Tenant shall have no further options under this
paragraph.
The Option may be exercised only by Tenant giving notice (the "Exercise
Notice") to Landlord of Tenant's exercise of said Option, not later than one (1)
year prior to the Expiration Date. Upon Tenant's giving of the Exercise Notice,
the term of this Lease shall be extended automatically upon the terms and
conditions herein specified without the execution of an extension agreement or
other instrument. If this Lease case shall be terminated before the commencement
of the Renewal Term, Tenant's option to extend the term of this Lease, or its
exercise thereof, or the Renewal Term or lease created by any such exercise,
shall be rendered null and void. If Tenant shall not give Landlord the Exercise
Notice at the time set forth above and in the manner prescribed by Article XXI
of the Lease, then the Option shall terminate and be deemed waived by Tenant.
Time is of the essence as to the date for the giving of the Exercise Notice.
21. Tenant acknowledges that it currently occupies the Leased Premises
pursuant to the Lease and represents to Landlord that it has thoroughly
inspected and examined the Leased Premises and is fully familiar with the
physical condition and state of repair thereof. Tenant does hereby agree to
accept the Leased Premises in its existing condition and state of repair,
subject to any and all defects therein, latent or otherwise, "AS IS", and
Landlord shall have no obligation of any kind to or in respect thereof, except
as elsewhere in the Lease otherwise expressly provided.
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22. Notwithstanding anything to the contrary contained in the Lease,
Tenant shall be obligated to comply with the requirements of any handicapped
laws and regulations applicable to the Leased Premises, including without
limitation, the so-called Americans with Disabilities Act and the regulations
promulgated thereunder.
23. Tenant represents and warrants that it has not dealt with any broker
in connection with this Amendment other than The Xxxxxxxxx Company (the
"Broker") and Tenant does hereby indemnify and agree to hold Landlord harmless
from and against any and all liability, loss, claim, damage, cost or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
arising out of or in connection with claims for commission made against Landlord
by any broker, finder or like agent who claims to have dealt with Tenant in
connection with the execution and delivery of this Amendment (other than
Broker). Landlord represents and warrants to Tenant that Landlord has not dealt
with any broker in connection with this Amendment (other than Broker). Landlord
shall indemnify and hold Tenant harmless from and against any and all liability,
loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Tenant resulting from a
misrepresentation contained in the preceding sentence. Landlord shall pay Broker
any commission payable in connection with this Amendment pursuant to separate
agreement. This provision shall survive the cancellation or expiration of the
Lease.
24. Reference is hereby made to that certain Amended Sublease, dated
December 31, 1993 between JWP, Inc. and Tenant covering the entire second (2nd)
floor of the Building (the "Sublease") and that certain Landlord's Consent and
Non-Disturbance and Attornment Agreement, dated December 31, 1993, among JWP,
Inc., Landlord and Tenant (the "Non-
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Disturbance Agreement"). Any monetary default by Tenant under the Sublease
and/or Non-Disturbance Agreement shall constitute a material default under the
Lease and any monetary default by Tenant under the Lease shall constitute a
material default under the Sublease and Non-Disturbance Agreement.
25. Except as expressly modified, amended and supplemented by this
Amendment, all of the terms, covenants and conditions of the Lease shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
Landlord:
ROYAL EXECUTIVE PARK II,
a New York limited partnership
By: JMB Income Properties, LTD.-XI,
a limited partnership, general partner
By: JMB Realty Corporation, a Delaware
Corporation, general partner
/s/ By: signature illegible
Name: name illegible
Title: Vice President
TENANT:
ENTEX INFORMATION SERVICES, INC.
/s/ By: Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President, Finance
Chief Financial Officer
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EXHIBIT "A"
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OPERATING EXPENSES
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"Operating Expenses" as used in Section 4.02 shall mean the direct
operating costs specified below in Category A actually incurred by Landlord for
a given Operating Year, (a) to the extent properly allocable (in accordance with
generally accepted accounting principles consistently applied) to the operation,
repair and maintenance of the Building and (b) to the direct operating costs
specified below in Category A actually incurred by Landlord for a given Base or
Operating Year that are properly allocable (in accordance with generally
accepted accounting principles consistently applied) to the operation, repair
and maintenance of the Common Building Facilities, the drainage retention basin
servicing Royal Executive Park (the "Drainage Basin") and the Access Drive. It
is agreed that any cost allocable to the items specified below in Category B
shall be excluded from Operating Expenses.
The Building's pro-rata share of the aforesaid direct operating costs
allocable to the operation, repair and maintenance of (x) the Common Building
Facilities shall be determined by multiplying said allocable costs by a
fraction, the numerator of which shall be the aggregate gross rentable area of
the Building and the denominator of which shall be the aggregate gross rentable
area of all buildings now or hereafter erected on the Land, and (y) the Drainage
Basin and the Access Drive shall be determined by multiplying said allocable
costs by (i) a fraction, the numerator of which shall be the number of acres of
land within Phase II and the denominator of which shall be the number of acres
of land within the entire Royal Executive Park, excluding the Drainage Basin or
the Access Drive as the case may be, and by multiplying the product thereof by
(ii) a further fraction, the numerator of which shall be the aggregate gross
rentable area of the Buildings and the denominator of which shall be the
aggregate gross rentable area of all buildings now or hereafter erected within
Phase II.
A. Items Included in Operating Expenses:
(1) salaries, wages and all other expenses incurred for the employment
of Building staff excluding those staff members above the grade of Building
Manager and/or equally held positions;
(2) the cost of materials and supplies used in the operation, repair and
maintenance of the Building, the Common Building Facilities, the Drainage Basin
and the Access Drive;
(3) the cost of replacements for tools and equipment used in the
operation, repair and maintenance of the Building, the Common Building
Facilities, the Drainage Basin and the Access Drive, it being agreed that such
equipment shall not include elevators or any items of a capital nature, except
as provided in subparagraph A(15);
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(4) amounts charged to Landlord by independent contractors for services
(including full or part-time labor), materials and supplies furnished in
connection with the operation, repair and maintenance of any part of the
Building, the Common Building Facilities, the Drainage Basin and the Access
Drive, and the heating, air conditioning, ventilating, plumbing, electrical and
elevator systems of the Building;
(5) amounts paid by Landlord, or charged to Landlord by independent
contractors, for window cleaning and janitorial, rubbish removal and xxxxxx
services;
(6) water charges and sewer rents;
(7) the cost of repainting or otherwise redecorating any part of Common
Building Facilities;
(8) seasonal decorations for the lobby and other public portions of the
Common Building Facilities;
(9) the cost of telephone service, postage, office supplies, maintenance
and repair of office equipment and similar charges related to operation of the
building manager's office;
(10) the cost of licenses, permits and similar fees and charges related
to the operation, repair and maintenance of the Building, Common Building
Facilities and the Drainage Basin;
(11) premiums for insurance obtained by Landlord covering the Building,
Drainage Basin, Common Building Facilities and Access Drive;
(12) fees for the management of the Building, not exceeding those fees
customarily charged for comparable buildings and excluding any leasing
commissions or compensations;
(13) charges (including applicable taxes) for electricity, steam and
other utilities required in the operation of the Building and other Common
Building Facilities.
(14) lease payments for rented equipment used by Landlord to provide
services which would otherwise be provided by an independent contractor and the
cost of which services would be an item included as an Operating Expense;
provided that in no event shall the annual cost of such lease payments and
direct services included in Operating Expenses exceed, in the aggregate, the
cost that would have been charged by an independent contractor for such
services;
(15) the amount of annual amortization taken by Landlord (calculated by
the straight-line method and based on the estimated number of years of the
actual useful life of the equipment or of the useful life thereof established in
accordance with Internal Revenue Code guidelines) for any replacement equipment
purchased by Landlord to provide services and the cost of which services would
be an item included as an Operating Expense; and
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(16) If any capital improvement is made or any item of capital equipment
is leased during any Operating Year either (i) in compliance with a legal
requirement, whether or not such requirement is valid or mandatory, or a
requirement of any applicable insurance policies, or (ii) for the purpose of
reducing Operating Expenses (as, for example, a labor-saving improvement), then
the cost of such improvement (or rental thereof) shall be included in Operating
Expenses for the Operating Year in which such improvement was made (or such
rental payment obligation incurred); provided however, to the extent the cost of
such improvement is required to be capitalized for federal income tax purposes,
such cost shall be amortized over the shortest useful life of such improvement
permitted pursuant to the Internal Revenue Code of 1986, as amended, and the
annual amortization thereof, together with interest thereon at a rate equal to
two (2%) percent over the then prime rate being charged by Chemical Bank, N.A.,
shall be deemed an Operating Expense in each of the Operating Years during which
such cost of the improvement is amortized.
B. Items Excluded from Operating Expenses:
(1) the cost of any work or service performed for any tenant (including
Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facilities, athletic or
recreational club, unless such facility is an amenity for Tenant;
(3) salaries of officers and executives of Landlord above the grade of
building manager;
(4) the cost of any items for which Landlord is reimbursed by any tenant
or by insurance of otherwise;
(5) the cost of any repairs, alterations, additions, changes,
replacements and other items which are made in order to prepare for a new
tenant's occupancy (and the cost of correcting defects in any such work) or
which under generally accepted accounting principles are properly classified as
capital expenditures (except costs referred to in subparagraphs A(15) and A(16)
(which shall be deemed to include a) any costs of correcting defects in the:
Building equipment if such defects are noted within one (1) year after the Term
Commencement Date, (b) the costs of correcting any deficiencies in Landlord's
Work within six (6) months after the Term Commencement Date or (c) the cost of
correcting structural defects in the construction of the Building, Common
Building Facilities and Drainage Basin);
(6) the cost of any, work or service performed for any tenant of the
Buildings (other than Tenant) to a materially greater extent or in a materially
more favorable manner than that furnished generally to the tenants and other
occupants (including Tenant);
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(7) the cost of any work or service performed for any facility other
than the Leased Premises, Common Building Facilities, and Drainage Basin;
(8) the cost any additions to the Buildings;
(9) the cost of any repair in accordance with Articles Nine and Twelve
of the Lease;
(10) interest on debt or amortization payments on any mortgage and
rental under any ground lease or other underlying lease and legal expenses
incurred in connection with such mortgages or ground or underlying lease;
(11) any real estate brokerage commissions or other cost incurred in
procuring tenants or in Landlord disposing of its interest in Royal Executive
Park;
(12) any advertising expenses;
(13) charges (including applicable taxes) for electricity, steam and
other utilities for which Landlord receives reimbursement from any tenant; and
(14) franchise, transfer, inheritance, capital stock or income taxes of
Landlord;