AGREEMENT OF LEASE
made as of this 18th day of December 1996, by and between WE'RE ASSOCIATES
COMPANY, a New York general partnership having its principal office at 000
Xxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000, hereinafter referred to as
"Landlord" and CRESCENT PUBLIC COMMUNICATIONS, INC., a New York corporation with
offices located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, hereinafter
referred to as "Tenant".
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the space consisting of a portion of the 1st floor substantially as
shown on the rental plan initialed by the parties and made part hereof as
Exhibit 1 in the building known as 6 Nevada Drive, "C" Building, Lake Success,
New York (the "Building"), as hereinafter referred to as the "demised premises".
The parties agree that for all purposes of this lease the demised premises
consist of 23,275 of rentable square feet. Tenant shall also be permitted to
use, on a non-exclusive basis, in common with other tenants at the Building, the
common facilities of the Building. Such use of such facilities shall be subject
to such reasonable rules, regulations and procedures governing the use thereof
as Landlord shall from time to time promulgate.
TERM
2. The term of this lease (the "Demised Term") shall commence on
February 1, 1997 hereinafter referred to as the "Term Commencement Date", and
shall terminate on January 31, 2007 hereinafter referred to as the "Expiration
Date", unless earlier terminated or extended as provided herein.
Tenant may occupy all or part of the demised premises prior to
the Term Commencement Date, such occupancy shall be deemed to be under all of
the terms, covenants, and conditions of this lease, excluding the covenant to
pay rent for the period from the commencement of said use or occupancy until the
Term Commencement Date.
RENT
3. a. Subject to paragraph b of this Article, Article 8, and Article
9.d. hereof, the annual rental rate payable by Tenant shall be $128,012.50.
Tenant agrees to pay such rent in equal monthly installments each in advance on
the first day of each calendar month during the Demised Term at the office of
Landlord, except that Tenant shall pay the first monthly installment on
execution hereof. Tenant shall pay the rent as above and as hereinafter
provided, without any set off or deduction whatsoever. As used herein, the term
"Lease Year" shall mean each consecutive twelve (12) calendar month period, the
first such period commencing on the Term Commencement Date
1
and ending on the day immediately preceding the first anniversary of the Term
Commencement Date; provided, however, if the Term Commencement Date shall be a
date other than the first day of a calendar month, then the first Lease Year
shall commence on the Term Commencement Date and shall end on the last day of
the month in which the first anniversary of the Term Commencement Date shall
occur.
b. The fixed annual rent set forth in paragraph a of this
Article hereof shall be increased, on each anniversary of the Term Commencement
Date throughout the demised Term (including any renewal period) by an amount
equal to Five Thousand Eight Hundred and Eighteen Dollars and Seventy-Five Cents
($5,818.75). This yearly increase shall include all prior escalations pursuant
to this Article 3.b. and shall be paid to Landlord as additional rent in equal
monthly installments. As an example, the annual rental rate shall be $133,831.25
after the first anniversary of the Term Commencement Date, and $139,650 after
the second anniversary of the Term Commencement Date.
c. If Tenant shall fail to pay when due any installment of
fixed annual rent or any payment of additional rent for a period of twenty (20)
days after such installment or payment shall have become due, Tenant shall pay
interest thereon at the lesser rate of (a) two percent (2%) per annum in excess
of the prime interest rate of Citibank, N.A., as publicly announced from time to
time or, if Citibank, N.A. shall cease to exist or announce such rate, any
similar rate designated by Landlord which is publicly announced from time to
time by any other bank in the City of New York having combined capital and
surplus in excess of One Hundred Million and legally contract to pay, from the
date when such installment or payment shall have become due to the date of the
payment thereof; and such interest shall be deemed additional rent. In addition,
Tenant shall pay to Landlord a one time late fee in the amount of five percent
(5%) of such overdue amount to compensate Landlord for its administrative costs
associated with such failure to timely pay. Such fee shall be deemed additional
rent and shall be payable immediately upon demand. This provision is in addition
to all other rights or remedies available to Landlord for nonpayment of fixed
annual rent or additional rent under this lease and at law and in equity.
USE
4. The Tenant shall use and occupy the demised premises only for
administrative and general offices and the general operation of pay telephones
and associates business and for no other purpose.
LANDLORD'S ALTERATIONS FOR TENANT, SPRINKLER MODIFICATIONS
5. a. Landlord will perform the work and make the installations as set
forth on the Estimate Sheet annexed hereto, which is sometimes hereinafter
referred to as "Landlord's Initial Construction". Tenant shall contribute the
sum of Fifty Thousand ($50,000) Dollars toward Landlord's Initial Construction
("Tenant's Contribution) and the remainder of Landlord's Initial Construction
shall be paid for by Landlord. Tenant's Contribution shall be paid by Tenant to
Landlord as additional rent within five (5) days of the Term Commencement Date.
2
b. If the New York Board of Fire Underwriters or the Insurance
Services Office or any bureau, department or official of the federal, state or
city government require or recommend any changes, modifications, alterations, or
additional sprinkler heads or other equipment be made or supplied to the
existing sprinkler system and/or the sprinkler system to be installed as part of
any work to be performed by Tenant in connection with Tenant's occupancy of the
demised premises, or by reason of Tenant's use of the demised premises or of any
other reason (the "Sprinkler Modifications"), or if any Sprinkler Modifications
become necessary to present the imposition of a penalty or charge against the
full allowance for a sprinkler system in the fire insurance rate set by said
Underwriter, official or by any fire insurance company, Tenant shall, at
Tenant's sole expense, promptly make the Sprinkler Modifications as required,
whether the work involved shall be structural or non-structural in nature.
HEAT, WATER AND UTILITIES
6. The Tenant shall provide, at its sole cost and expense, fuel, heat,
air conditioning, ventilation, water, electricity and other utilities necessary
for the use and occupancy of the demised premises.
PARKING FIELD
7. Tenant shall have the right to use fifty-four (54) parking spaces
for the parking of automobiles of the Tenant, its employees and invitees, in the
parking area shown on the Parking Plan annexed hereto and made a part hereof,
subject to the Rules and Regulations now or hereafter adopted by Landlord.
Tenant shall not use nor permit any of its officers, agents or employees to use
any parking area other than as shown on the Parking Plan.
TAXES, PAYMENT OF ADDITIONAL RENT
8. a. The Tenant shall pay to the Landlord as additional rent a sum
equal to twenty-five (25%) percent of all Taxes with respect to the Building
(based on the ratio of the demised premises area of 23,275 square feet to the
Building Area of 93,100 square feet) during and applicable to the Demised Term.
b. As used in and for the purposes of this Article 8, the
following definition shall apply:
The term "taxes" shall be deemed to include all real estate
taxes and assessments, special or otherwise and sewer rents, upon or with
respect to the Building and the land allocated to it including all parking
areas (hereinafter called the "Real Property"). If, due to any change in the
method of taxation, any franchise, income, profit, sales, rental use and
occupancy, or other tax shall be substituted for, or levied against Landlord
or any owner of the Building or the Real
3
Property in lieu of, any real estate taxes, assessments or sewer rents upon or
with respect to the Real Property, such tax shall be included in the term Taxes
for the purposes of this Article.
c. Tenant shall pay to Landlord as additional rent $5,909.37
per month which is its share of taxes as warranted by Landlord in subparagraph v
of this Article 8. Landlord shall render to Tenant a statement containing a
revised computation of additional rent due under this Article ("Landlord's
Statement") at any time and from time to time as such becomes due. Within twenty
(20) days after the rendition of the Landlord's Statement which shows additional
rent to be payable, Tenant shall pay to Landlord the amount of such additional
rent. On the first day of each month following rendition of each Landlord's
Statement, Tenant shall pay to Landlord, on account of the potential additional
rent, a sum equal to one-twelfth (1/12th) of the annualized additional rent last
paid by Tenant
i. Following each Landlord's Statement, Tenant shall
be debited with any additional rent shown on such Landlord's Statement to be
payable, and credited with the aggregate amount paid by Tenant in accordance
with the provisions of subsection 8.c.i above on account of the potential
additional rent.
ii. The obligations of Landlord and Tenant under the
provisions of this Article 8 with respect to any additional rent for any Lease
Year shall survive the expiration or any sooner termination of the Demised Term.
iii. In the event that Tenant challenges the amount
of additional rent payable pursuant to this Article 8, then, as a condition
precedent to the submission of a dispute as to such amount to judicial review,
and pending the determination of any dispute, Tenant shall promptly pay the
additional rent as demanded by Landlord. After such determination, any
adjustment in the disputed amount shall be made within thirty (30) days.
v. Landlord hereby warrants that the taxes applicable
to the total Building are currently follows:
1. 1996 Town Tax: $53,670.74;
2. 1996/97 School Tax: $171,061.37; and
3. 1996/97 Village Tax: $58,917.60
LANDLORD'S MAINTENANCE OF LANDSCAPING, ROADS, STREETS, PARKING AREA, AND FIRE
INSURANCE ON BUILDING
9. a. Landlord will maintain in good condition the roof of the Building
and all landscaping, curbing, sidewalks, roads (including, without limitation,
the ring-road system servicing the Lake Success Quadrangle), surface drainage
and sanitary waste disposal facilities, water mains, fire hydrants and all other
areas and facilities used in common by the occupants of the Building and Lake
Success Quadrangle and will furnish and maintain necessary outside lighting to
such areas and will generally keep clean and remove snow and sand ice therefrom:
4
b. Landlord will maintain in good condition the parking area
demised to the Tenant herein, and the driveway and loading ramps serving the
demised premises, including snow removal therefrom for the demised premises.
c. Landlord shall provide insurance on the Building and
Improvements (Tenant shall insure its personal property pursuant to Article 27
hereof). Such policies shall be issued in the name of Landlord and the mortgagee
as their respective interest might appear. Tenant shall not do anything, permit
anything to be done, in or about the demised premises which shall (i) invalidate
or be in conflict with the provisions of any fire or other insurance policies
covering the Building or any property located therein, or (ii) result in a
refusal by fire insurance companies of good standing to insure the Building or
any such property in amounts reasonably satisfactory to Landlord, or (iii)
subject Landlord to any liability or responsibility for injury to any person or
property located therein at the beginning of the Demised Term or at any time
thereafter. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations, or requirements of the New York Board of Fire Underwriters and the
New York Fire Insurance Rating Organization or any similar body. Tenant shall
pay all costs, expenses, fines, penalties, or damages, which may be imposed upon
Landlord by reason of Tenant's failure to comply with the provisions of this
Article 9 and if by reason of such failure the fire insurance rate shall at the
beginning of this lease or at any time thereafter be higher than it otherwise
would be, then Tenant shall reimburse landlord, as additional rent hereunder,
for that portion of all fire insurance premiums thereafter paid by Landlord
which shall have been charged because of such failure by Tenant, and shall make
such reimbursement upon the first day of the month following such outlay by
Landlord. In any action or proceeding wherein Landlord and Tenant are parties, a
schedule or "make up" of rates applicable to the Building or property located
therein issued by the New York Fire Insurance Rating Organization, or other
similar body fixing such fire insurance rates, shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to the Building or property located therein.
d. Tenant will pay to Landlord as additional rent for the
services described in Article 9(a), (b), and (c) above the sum of $25,602.50 per
year, payable in equal monthly installments of $2,133.54 as additional rent.
e. Landlord shall submit all claims as necessary under the
applicable insurance policy and shall promptly apply all insurance proceeds to
repair and restore the Building.
LANDLORD'S REPAIRS
10. Landlord shall make all structural repairs to the demised premises,
during the term of this lease with the exception of any structural repairs
required as a result of the gross negligence of Tenant, its agents, officers,
employees, patrons, or licensees. Landlord shall make all repairs to and
maintain Building heating, ventilation, and air conditioning system.
5
TENANT'S REPAIRS
11. a. Tenant shall, throughout the Demised Term, take good care of the
demised premises and the fixtures and appurtenances therein and, at Tenant's
sole cost and expense, make all non-structural repairs thereto, and, as
required, non-structural replacements thereof, as and when needed to preserve
the same in good working order and condition, reasonable wear and tear,
obsolescence and damage from the elements, fire or other casualty, excepted.
Tenant shall also repair all damage to the Building caused by the moving of
Tenant's fixtures, furniture or equipment. Any repairs or replacements to be
made by Tenant shall be made with reasonable diligence, in a good and
workmanlike manner and so as not to unreasonably interfere with any other
tenant's use and occupancy of the Building. Notwithstanding the foregoing,
Tenant shall repair promptly at Tenant's sole cost and expense, to the
reasonable satisfaction of Landlord, (i) all damage or injury to any part of the
Building or to the fixtures, equipment and appurtenances thereof, excluding
structural repairs, caused by or resulting from carelessness, omission, neglect,
or improper conduct of Tenant, its agents, employees, invitees, or licensees;
and (ii) all structural repairs required as a result of the gross negligence of
Tenant, its agents, employees, invitees, or licensees.
b. Tenant shall, at its sole cost and expense, clean and
provide the maintenance for the demised premises to Landlord's reasonable
satisfaction, including, without limitation, the removal of Tenant's garbage,
refuse and trash from the demised premises and the Building in accordance with
all applicable laws. Landlord shall not be obligated at any time to clean or
have exterminated any part of the demised premises all of which Tenant shall
cause to be kept clean, free from obnoxious odors and exterminated by Tenant at
its sole cost and expense.
c. Except as provided in Article 24 hereof, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises, or in or to fixtures, appurtenances, or equipment thereof. Subject to
subparagraph e. of Article 9 and except as provided in Article 24, there shall
be no liability upon Landlord for failure of Landlord or others to make any
repairs, alterations, additions or improvements in or to any portion of the
Building or of the demised premises, or in or to the fixtures, appurtenances or
equipment thereof. Any repairs which Tenant may be required to carry out
pursuant to the terms hereof may, at Landlord's option, be made by Landlord at
the expense of Tenant, and the expenses thereof incurred by Landlord shall be
collectible as additional rent after the rendition of a xxxx or statement
therefor.
FLOOR LOADING
12. The emplacement of any equipment which will impose an evenly
distributed floor load in excess of 100 pounds per square foot shall be done
only after written permission is received from the Landlord. Such permission
will be granted only after adequate proof is furnished by a professional
engineer that such floor loading will not endanger the structure.
6
FIXTURES AND INSTALLATIONS
13. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the demised premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall become and remain the property of
Landlord, and shall remain upon and be surrendered with the demised premises
unless Landlord, by notice to Tenant no later than twenty days prior to the date
fixed as the termination of this lease, elects to have them removed by Tenant,
in which event, the same shall be removed from the premises by Tenant forthwith,
at Tenant's expense. Nothing in this Article shall be construed to prevent
Tenant's removal of trade fixtures, but upon removal of any such trade fixtures
from the premises or upon removal of other installations as may be required by
Landlord, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the Building due to such removal. All property
permitted or required to be removed by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Landlord, either be retained as Landlord's property or may be
removed from the premises at Tenant's expense. Tenant shall, at Landlord's
option exercised by written notice to Tenant given no later than thirty (30)
days prior to the Expiration Date, restore the lobby being constructed by Tenant
at Tenant's entrance to the Building to the condition existing as of the date
hereof. All the outside walls of the demised premises including corridor walls
and the outside entrance doors to the demised premises, any balconies, terraces
or roofs adjacent to the demised premises, and any space in the demised premises
used for shafts, stacks, pipes, conduits, ducts or other building facilities,
and the use thereof, as well as access thereto in and through the demised
premises for the purpose of operation, maintenance, decoration and repair, are
expressly reserved to Landlord, and Landlord does not convey any rights to
Tenant therein. Notwithstanding the foregoing, Tenant shall enjoy full right of
access to the demised premises through the public entrances, public corridors
and public areas within the Building.
ALTERATIONS
14. a. Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises costing in excess of $10,000 without
Landlord's prior written consent (which consent shall not be unreasonably
withheld), and then only by contractors or mechanics approved by Landlord and at
such times and in such manner as Landlord may from time to time designate.
Landlord shall have the right to make inspections of any such work being carried
out by Tenant or on Tenant's behalf at any reasonable time during the progress
of such work.
b. All installations or work done by Tenant shall be done in a
good and workmanlike manner and shall at all times comply with:
1. Laws, rules, orders and regulations of
governmental authorities having jurisdiction thereof.
7
2. Rules and regulations of Landlord.
3. Plans and specifications prepared by and at the
expense of Tenant theretofore submitted to Landlord for its prior written
approval in compliance with subparagraph a of this Article. No such
installations or work shall be undertaken, started or begun by Tenant, its
agents, servants or employees, until Landlord has approved such plans and
specifications; and no amendments or additions to such plans and specifications
shall be made without the prior written consent of Landlord, and shall be
subject to Landlord's supervisory fee charge, which shall not exceed 10% of the
cost of such alteration.
Tenant agrees that it will not, either directly
or indirectly, use any contractors and/or labor and/or materials if the use of
such contractors and/or labor and/or materials would or will create any
difficulty with other contractors and/or labor engaged by Tenant or
Landlord or others in the construction, maintenance and/or operation of the
Building or any part thereof. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates
to Landlord and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such workmen's compensation, general liability,
personal and property damage insurance as Landlord may require. At Landlord's
request, Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of mechanic's, liens upon the real property in which the
demised premises are located, for all property in which the demised premises
are located, for all work, labor and services performed and materials
furnished in connection with such work after payment therefore, signed by all
contractors, sub-contractors, materialmen and laborers involved in such work.
Notwithstanding the foregoing, if any mechanic's lien is filed against the
demised premises, or the Building, for work claimed to have been done for, or
materials furnished to Tenant whether or not done pursuant to this Article
the same shall be discharged by Tenant within ten days thereafter, at Tenant's
expense, by filing the bond required by law.
c. Anything contained herein to the contrary notwithstanding,
Tenant shall make no alterations, declarations, installations, additions or
improvements in or to the demised premises which shall in any way affect utility
services or plumbing and electrical lines. Moreover, Landlord shall not be
deemed to have acted unreasonably for withholding consent to any alterations,
decorations, installations, additions or improvements which: (i) involve or
might affect any structural or exterior element of the Building outside the
demised premises or the Building, or (ii) will require unusual expense to
readapt the demised premises to normal office use on the expiration of the
Demised Term or increase the cost of construction or of insurance or taxes on
the Building or of the services called for hereunder unless Tenant first gives
assurances acceptable to Landlord for payment of such increased cost and that
such readoption will be made prior to the Expiration Date without expense to
Landlord.
8
REQUIREMENTS OF LAW
15. a. Tenant shall not do, and shall not permit Persons Within
Tenant's Control to do, any act or thing in or upon the demised premises or the
Building which will invalidate or be in conflict with the certificate of
occupancy for the demised premises or the Building or violate any Requirements.
Tenant shall, at Tenant's sole cost and expense, take all action, including
making any required alterations necessary to comply with all Requirements
(including, but not limited to, applicable terms of the Americans With
Disabilities Act of 1990 (the "ADA"), as modified and supplemented from time to
4time) which shall impose any violation, order or duty upon Landlord or Tenant
arising from, or in connection with, the demised premises, Tenant's occupancy,
use or manner of use of the demised premises (including, without limitation, any
occupancy, use or manner of use that constitutes a "place of public
accommodation" under the ADA), or any installations in the demised premises, or
required by reason of a breach of any of Tenant's covenants or agreements under
this lease, whether or not such Requirements shall now be in effect or hereafter
enacted or issued, and whether or not any work required shall be ordinary or
extraordinary or foreseen or unforeseen at the date hereof. Notwithstanding the
preceding sentence, Tenant shall not be obligated to perform any structural
alterations necessary to comply with any Requirements, unless compliance shall
be required by reason of (I) any cause or condition arising out of any
alterations or installations in the demised premises (whether made by Tenant or
by Landlord on behalf of Tenant), or (ii) Tenant's particular use, manner of use
or occupancy on behalf of Tenant of the demised premises, or (iii) any breach of
any of Tenant's covenants or agreements under this lease, or (iv) any wrongful
act or omission by Tenant or Persons Within Tenant's Control, or (v) Tenant's
use or manner of use or occupancy of the demised premises as a "place of public
accommodation" within the meaning of the ADA.
b. Tenant covenants and agrees that Tenant shall, at Tenant's
sole cost and expense, comply at all times with all Requirements governing the
use, generation, storage, treatment and/or disposal of any "Hazardous Materials"
(as defined below), the presence of which results from or in connection with the
act or omission of Tenant or Persons Within Tenant's Control or the breach of
this lease by Tenant or Persons Within Tenant's Control. The term Hazardous
Materials shall mean any biologically or chemically active or other toxic or
hazardous wastes, pollutants or substances, including, without limitation,
asbestos, PCB, petroleum products and by-products, substances defined or listed
as "hazardous substances" or "toxic substances" or similarly identified in or
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. '9601 et seq., and as hazardous wastes under the Resource
Conservation and Recovery Act, 42 U.S.C. '6010 et seq., any chemical substance
or mixture regulated under the Toxic Substance Control Act of 1976, as amended,
15 U.S.C. 2601, et seq., any "toxic pollutant" under the Clean Water Act, 33
U.S.C. '466 et seq., as amended, any hazardous air pollutant under the Clean Air
Act, 42 U.S.C. '7401 et seq., hazardous materials identified in or pursuant to
the Hazardous Materials Transportation Act, 49 U.S.C. '1802, et seq., and any
hazardous or toxic substances or pollutant regulated under any other
Requirements. Tenant shall agree to execute, from tine to time, at Landlord's
request, affidavits, representations and the like concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials in, on, under
or about the demised premises,
9
the Building or the Real Property. Tenant shall indemnify and hold harmless all
Indemnities from and against any loss, cost, damage, liability or expense
(including attorneys' fees and disbursements) arising by reason of any clean up,
removal, remediation, detoxification action or any other activity required or
recommended of any Indemnities by any Governmental Authority by reason of the
presence in or about the Building or the demised premises of any Hazardous
Materials, as a result of or in connection with the act or omission of Tenant or
Persons Within Tenant's Control or the breach of this lease by Tenant or Persons
Within Tenant's Control. However, notwithstanding anything to the contrary
contained in this paragraph, the provisions of this paragraph shall only apply
and be limited to the extent any such failure to comply therewith is caused by
Tenant or Persons Within Tenant's Control, and shall not apply to any violation
which may have existed prior to the execution of this lease. Furthermore,
Landlord covenants and agrees that the Building and/or the demised premises do
not contain levels of asbestos containing materials or any other Hazardous
Materials above or exceeding Requirements. If at any time during the Demised
Term, or any renewals thereof, it is determined that the levels of asbestos
containing materials or any other Hazardous Materials exceed any such
Requirements, Tenant shall have the right and option to terminate this Lease
immediately upon such occurrence, with written notice to Landlord. The foregoing
covenants and indemnity shall survive the expiration or any termination of this
lease.
c. If Tenant shall receive notice of any violation of, or
defaults under, any Requirements, liens or other encumbrances applicable to the
demised premises, Tenant shall give prompt notice thereof to Landlord.
d. If any governmental license or permit shall be required for
the proper and lawful conduct of Tenant's business and if the failure to secure
such license or permit would, in any way, affect Landlord or the Building, then
Tenant, at Tenant's expense, shall promptly procure and thereafter maintain,
submit for inspection by Landlord, and at all times comply with the terms and
conditions of, each such license or permit.
e. Tenant, at Tenant's sole cost and expense and after notice
to Landlord, may contest, by appropriate proceedings prosecuted diligently and
in good faith, the legality or applicability of any Requirement affecting the
demised premises provided that: (a) neither Landlord nor any Indemnitee, shall
be subject to criminal penalties, nor shall the Real Property or any part
thereof be subject to being condemned or vacated, nor shall the certificate of
occupancy for the demised premises or the Building be suspended. or threatened
to be suspended, by reason of non-compliance or by reason of such contest; (b)
before the commencement of such contest, if Landlord or any Indemnities may be
subject to any civil fines or penalties or if Landlord may be liable to any
independent third party as a result of such non-compliance, then Tenant shall]
furnish to Landlord either (I) a bond of a surety company satisfactory to
Landlord, in form and substance reasonably satisfactory to Landlord, and in an
amount at least equal to Landlord's estimate of the sum of (A) the cost of such
compliance, (B) the penalties or fines that may accrue by reason of such
non-compliance (as reasonably estimated by Landlord) and (C) the amount of such
liability to independent third parties, and shall indemnify Landlord (and any
Indemnities) against the cost of such compliance and liability resulting from or
incurred in connection with such contest or
10
non-compliance; or (ii) other security satisfactory in all respects to Landlord;
(c) such non-compliance or contest shall not constitute or result in a violation
(either with the giving of notice or the passage of time or both) of the terms
of any mortgage or superior lease affecting the Building, or if such superior
lease or mortgage conditions such non-compliance or contest upon the taking of
action or furnishing of security by Landlord, such action shall be taken or such
security shall be furnished at the expense of Tenant; and (d) Tenant shall keep
Landlord regularly advised as to the status at such proceedings.
f. For the purposes of this Article, and elsewhere in this
lease, (I) the term "Persons Within Tenant's Control" shall mean and include
Tenant, all of Tenant's respective principals, officers, agents, contractors,
servants, employees, licensees and invitees; (ii) the term "Requirements" shall
mean all present and future laws, ordinances, requirements, orders, directives,
rules and regulations of federal, state, county and city governments and of all
other governmental authorities having or claiming jurisdiction over the Real
Property; (iii) the term 'Indemnities" shall mean Landlord, its trustees,
partners, shareholders, officers, directors, employees, agents and contractors
and the managing agent, if any (and the partners, shareholders, officers,
directors and employees and contractors of such managing agent), of Landlord;
and (iv) the term "Governmental Authority" shall mean The United States of
America, the State of New York, the County of Nassau, the Village of Lake
Success, any political subdivision thereof and any agency, department,
commission, board, bureau or instrumentality of any of the foregoing, now
existing or hereafter created, having jurisdiction over the Building, the Real
Property, or any portion thereof.
END OF TERM
16. a. Upon the expiration or other termination of the Demised Term,
Tenant shall quit and surrender to Landlord the demised premises, broom clean,
in good order and condition, ordinary wear excepted, and Tenant shall remove all
of its property, and shall repair all damage to the demised premises or the
Building occasioned by such removal. Any property not removed from the premises
shall be deemed abandoned by Tenant and may be disposed of in any manner deemed
appropriate by the Landlord. Tenant expressly waives, for itself and for any
person claiming through or under Tenant, any rights which Tenant or any such
person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article. Tenant's obligation to observe
or perform this covenant shall survive the expiration or other termination of
the Demised Term. If the last day of the Demised Term or any removal hereof
falls on Sunday or a legal holiday, this lease shall expire on the business day
immediately preceding.
b. Tenant acknowledges that possession of the demised premises
must be surrendered to Landlord at the expiration or sooner termination of the
Demised Term. Tenant hereby agrees to indemnify and save Landlord harmless
against any and all costs, damages, claims, loss or liability resulting from
delay by Tenant in so surrendering the demised premises, including, without
limitation, any claims made by any succeeding tenant, founded on such delay. The
parties recognize
11
and agree that the damage to landlord resulting from any failure by Tenant
timely to surrender possession of the demised premises as aforesaid will be
extremely substantial, will exceed the amount of monthly rent theretofore
payable hereunder, and will be impossible of accurate measurement. Tenant
therefore agrees that if possession of the demised premises is not surrendered
to landlord on or before the date of the expiration or other termination of the
Demised Term, time being of the essence with respect thereto, then, in addition
to any other remedies and/or damages otherwise available to Landlord hereunder
or at law, Tenant agrees to pay Landlord, for each month and for each portion of
any month during which Tenant holds over in the demised premises after
expiration or other termination of the Demised Term, a sum equal to two (2)
times the rent and additional rent (inclusive of escalations) that was payable
per month under this lease during the last month of the term thereof. Nothing
contained herein shall be construed to constitute Landlord's consent to Tenant
remaining in possession of the demised premises after the expiration or other
termination of the Demised Term. Landlord shall be entitled to pursue any action
necessary to recover immediate possession of the demised premises
notwithstanding Tenant's payment of the aforementioned sum. The aforesaid
provisions of this paragraph shall survive the expiration or sooner termination
of the demised Term.
QUIET ENJOYMENT
17. Landlord covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the demised premises during the Demised Term
without hindrance or molestation by anyone claiming by or through Landlord,
subject, nevertheless, to the terms, covenants and conditions of this lease
including, but not limited to, Article 22.
SIGNS
18. Tenant may place on the outside of the Building a sign in size and
type to be approved by the Landlord which approval shall not be unreasonably
withheld and which sign shall be in conformity with applicable laws ordinances,
and regulations. Tenant shall remove such sign at the expiration or other
termination of this Lease and shall repair any damage resulting from the
installation, maintenance, or removal of the sign. The exterior of the Building
is not a part of the demised premises, and accordingly, Tenant (except pursuant
to this Article) may not place or install anything on the exterior of the
Building.
RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors, and licensees
shall faithfully comply with the Rules and Regulations set forth on Schedule A
annexed hereto and made part hereof, and with such further reasonable Rules and
Regulations as Landlord at any time may make and communicate in writing to
Tenant which, in the Landlord's judgment, shall be necessary for the reputation,
safety, care or appearance of the Building and land allocated to it or the
preservation of
12
good order therein, or the operation or maintenance of the Building, its
equipment and such land, or the more useful occupancy or the comfort of the
tenants or others in the Building. Landlord shall not be liable to Tenant for
the violation of any of said Rules and Regulations, or the breach of any
covenant or condition of any lease by any other tenant in the Building. Rules
and Regulations shall be uniformly applied where possible.
ASSIGNMENT AND SUBLETTING
20. a. Tenant, for itself, its successors, undertenants and assigns,
(all of the foregoing hereinafter referred to as the "Tenant") expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet the demised premises or any part thereof, or license or permit the
demised premises or any part thereof to be used by others, without the prior
written consent of the Landlord in each instance (which consent shall not be
unreasonably withheld or delayed), and otherwise upon due compliance with the
provisions of this Article 20.
b. Prior to requesting the approval of Landlord to an
assignment or subletting as hereinafter provided, Tenant shall, by notice as
provided in Article 34, advise the Landlord of all the terms, covenants and
conditions of the Tenant's proposed sublease or assignment.
c. Upon Tenant's due compliance with the aforesaid provisions
of this Article 20, Landlord agrees not to unreasonably withhold its consent to
an assignment or subletting, provided that the Tenant is not then in default
under this lease and that the proposed assignee or undertenant is financially
responsible, of good reputation and engaged in a business compatible with the
business generally carried on in the Building and that the proposed assignment
or sublease would not be inconsistent with any agreement previously made with
any other tenant, and further provided that such assignee or undertenant shall
execute and deliver to Landlord an assumption agreement wherein it agrees to
perform all the obligations of the Tenant under this lease in form appropriate
for recording.
d. No assignment of this lease or underletting of the demised
premises shall release or discharge the Tenant hereunder from any of its
obligations to be performed under this lease. The consent by Landlord to an
assignment or underletting shall not in any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting.
e. Anything contained in this Article 20 to the contrary
notwithstanding, Tenant, without having to obtain the consent of Landlord, may
assign this lease to any successor by merger, consolidation or sale of all or
substantially all of the assets or stock of Tenant (whether or not Tenant
survives such merger, consolidation or sale) and may sublet the demised
premises, or assign this lease, to any entity that controls, is controlled by,
or is under common control with Tenant, provided that (1) in the case of an
assignment, the net worth of the assignee (in the case of a merger,
consolidation or sale, after giving effect to such merger, consolidation or
sale), is not less than the net worth of the Tenant named herein as of the date
hereof, and (2) a copy of said assignment, in
13
recordable form, containing a full assumption by the assignee of all the
Tenant's obligations hereunder, or said sublease, as the case may be, is
delivered to the Landlord prior to the effective date thereof. Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord regarding the
net worth of such assignee, where applicable.
f. Except as expressly otherwise provided in Section 20.e
hereof, the following shall be deemed an "assignment" of this lease for the
purposes of Article 20:
i. an assignment of a part interest in this lease;
ii. one or more sales or transfers, by operation of
law or otherwise, or creation of new stock or issuance of additional shares of
stock, resulting in a transfer of at least fifty-one (51%) percent of the out-
standing stock of Tenant, if Tenant is a corporation, or of any corporate
subtenant, except that the transfer of the outstanding capital stock of any
corporate tenant, or subtenant, shall be deemed not to include the sale of
such stock by persons or parties, other than those deemed "affiliates" of
Tenant within the meaning of Rule 144 promulgated under the Securities Act
of 1933, as amended, through the "over-the-counter market" or through any
recognized stock exchange;
iii. one or more sales or transfers, by operation of law or
otherwise, resulting in a transfer of at least fifty-one (51%) percent of the
total interests in Tenant, if Tenant is a partnership, or in any partnership
subtenant; or
iv. Tenant's entering into a takeover agreement affecting
this lease.
For the purposes of this Article 20, a modification, amendment or
extension of a sublease shall be deemed a sublease.
g. If Tenant assigns, sells, conveys, transfers, mortgages,
pledges or sublets this lease, the demised premises, or any portion thereof in
violation of this Article 20, or if the demised premises are occupied by anybody
other than Tenant, Landlord may collect rent from any assignee, sublessee or
anyone who claims a right to this Agreement or letting or who occupies the
demised premises, and Landlord shall apply the net amount collected to the
annual rental herein reserved; and no such collection shall be deemed a waiver
by Landlord of the covenants contained in this Article nor an acceptance by
Landlord of any such assignee, sublessee, claimant or occupant as Tenant, nor a
release of Tenant from the further performance by Tenant of the covenants
contained herein.
LANDLORD'S ACCESS TO PREMISES
21. a. Landlord or Landlord's agents shall have the right to enter
and/or pass through the demised premises at all times to examine the same, to
show them to mortgagees, ground lessors, prospective purchasers or lessees or
mortgagees of the Building, and to make such repairs, improvements or additions
as Landlord may deem necessary or desirable and Landlord shall be
14
allowed to take all material into and upon and/or through said demised premises
that may be required therefor. During the one (1) year prior to the expiration
of the Demised Term, or any renewal term, Landlord may exhibit the demised
premises to prospective tenants or purchasers at all reasonable hours and
without unreasonably interfering with Tenant's business. If Tenant shall not be
personally present to open and permit an entry into said premises, at any time,
when for any reason an entry therein shall be necessary or permissible, Landlord
or Landlord's agents may enter the same by a master key, without rendering
Landlord or such agent liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's property). If during
the last month of the Demised Term, Tenant shall have removed all of Tenant's
property therefrom, Landlord may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
b. Landlord shall also have the right at any time to use,
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein, to change the arrangement and/or
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Building, provided,
however, that Landlord shall make no change in the arrangement and/or location
of entrances or passageways or other public parts of the Building which will
adversely affect in any material manner Tenant's use and enjoyment of the
demised premises. Landlord shall also have the right, at any time, to name the
Building, to display appropriate signs and/or lettering on any or all entrances
to the Building, and to change the name, number or designation by which the
Building is commonly known.
c. Neither this lease nor any use by Tenant shall give Tenant
any right or easement to the use of any door or passage or concourse connecting
with any other building or to any public conveniences, and the use of such doors
and passages and concourse and of such conveniences may be regulated and/or
discontinued at any time and from time to time by Landlord without notice to
Tenant.
d. The exercise by Landlord or its agents of any right
reserved to Landlord in this Article shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord, or its agents, or upon any lessor
under any ground or underlying lease, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
e. Anything contained in this Article to the contrary
notwithstanding, any access to the demised premises by Landlord shall be subject
to reasonable prior notice (which may be verbal) except in the event of an
emergency, in which event no notice shall be necessary.
SUBORDINATION
15
22. a. This lease is subject and subordinate in all respects to all ground
leases and/or underlying leases and to all mortgages which may now or
hereafter be placed on or affect such leases and/or the Real Property of which
the demised premises form a part, or any part or parts of such real property,
and/or Landlord's interest or estate therein, and to each advance made and/or
hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitution therefor. This subparagraph a. shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate that
Landlord and/or any mortgagee and/or the lessor under any ground or underlying
lease and/or their respective successors in interest may request.
b. Without limitation of any of the provisions of this lease,
in the event that any mortgagee or its assigns shall succeed to the interest of
Landlord or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such mortgagee, this
lease shall nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgagee or its assigns and to recognize
such mortgagee or its respective assigns as its Landlord.
c. Tenant shall, at any time and from time to time upon not
less than fifteen (15) days' prior notice by Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), and the dates to which the rent, additional rent and other
charges have been paid in advance, if any, and stating whether or not to the
best knowledge of the signer of such certificate Landlord is in default in
performance of any covenant, agreement, term, provision or condition contained
in this lease and, if so, specifying each such default of which the signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by any prospective purchaser or lessee of said Real
Property or any interest or estate therein, any mortgagee or prospective
mortgagee thereof or any prospective assignee of any mortgage thereof. If, in
connection with obtaining financing or refinancing for the Building and the land
allocated to it, a banking, insurance or other recognized institutional lender
shall request reasonable modifications in this lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created.
d. Landlord shall use its reasonable best efforts to obtain an
agreement (a "Non-Disturbance Agreement") from The Mitsui Trust and Banking
Company Limited, the holder of the mortgage encumbering the Real Property, in
the form annexed hereto as Exhibit 2, in favor of Tenant, providing in substance
that so long as Tenant is not in default under the terms of this lease, the
right of possession of Tenant to the demised premises shall not be affected or
disturbed by such holder in the exercise of any of its rights under the mortgage
or any note secured thereby, and any sale of the Real Property pursuant to the
exercise of any rights and remedies under the mortgage or otherwise shall be
made subject to Tenant's right of possession under this lease. Such efforts
shall include making a written request to each such holder for such
Non-Disturbance
16
Agreement. Landlord shall incur no liability, nor shall this lease or the
obligations of Tenant and Landlord hereunder be affected in any manner, in the
event Landlord shall be unable to obtain a Non-Disturbance Agreement from the
holder of any mortgage in favor of Tenant. Furthermore, Landlord shall not be
required to incur any expense (other than a reasonable processing fee) or pay
any consideration in order to obtain any Non-Disturbance Agreement in favor of
Tenant.
PROPERTY LOSS, DAMAGE, REIMBURSEMENT, INDEMNIFICATION
23. a. Landlord or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise. Landlord
or its agents shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, electrical disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, unless caused by or due to the negligence of
Landlord, its agents, servants or employees; nor shall Landlord or its agents be
liable for any such damage caused by other tenants or persons in the Building or
caused by operations in construction of any private, public or quasi public
work; nor shall Landlord be liable for any latent defect in the demised premises
or in the Building. If at any time any windows of the demised premises are
temporarily closed or darkened incident to or for the purpose of repairs,
replacements, maintenance and/or cleaning in, on, to or about the Building or
any part or parts thereof, Landlord shall not be liable for any damage Tenant
may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall reimburse and
compensate Landlord as additional rent for all expenditures made by, or damages
or fines sustained or incurred by Landlord due to non-performance or
non-compliance with or breach or failure to observe any term, covenant or
condition of this lease upon Tenant's part to be kept, observed, performed or
complied with. Tenant shall give immediate notice to Landlord in case of fire or
accidents in the demised premises or in the Building or of defects therein or in
any fixtures or equipment. Insert 23 b and c
b. Tenant shall indemnify and save harmless Landlord against
and from any and all claims by and on behalf of any person or persons, firm or
firms, corporation or corporations arising from the conduct or management of or
from any work or thing whatsoever done (other than by Landlord or its
contractors or the agents or employees of either) in and on the demised premises
during the Demised Term and during the period of time, if any, prior to the Term
Commencement Date that Tenant may have been given access to the demised premises
for the purpose of making installations, and will further indemnify and save
harmless Landlord against and from any and all claims arising from any condition
of the demised premises due to or arising from any act or omission or negligence
of Tenant or any of its agents, contractors, servants, employees, licensees or
invitees, and against and from all costs, expenses and liabilities incurred in
connection with any such claim or claims or action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon notice from Landlord, agrees that
17
Tenant, at Tenant's expense, will resist or defend such action or proceeding and
will employ counsel therefor reasonably satisfactory to Landlord. Tenant's
liability under this lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of any subtenant.
c. Landlord shall indemnify and save harmless Tenant against
and from any and all claims by and on behalf of any person or persons, firm or
firms, corporation or corporations arising from the conduct or management of or
from any work or thing whatsoever done (other than by Tenant or its contractors
or the agents or employees of either) in and on the demised premises during the
Demised Term and during the period of time, if any, prior to the Term
Commencement Date that Tenant may have been given access to the demised premises
for the purpose of making installations, and will further indemnify and save
harmless Tenant against and from any and all claims arising from any condition
of the demised premises due to or arising from any act or omission or negligence
of Landlord or any of its agents, contractors, servants, employees, licensees or
invitees, and against and from all costs, expenses and liabilities incurred in
connection with any such claim or claims or action or proceeding brought
thereon; and in case any action or proceeding be brought against Tenant by
reason of any such claim, Landlord, upon notice from Tenant, agrees that
Landlord, at Landlord's expense, will resist or defend such action or
proceeding, and will employ counsel therefor reasonably satisfactory to Tenant.
DESTRUCTION-FIRE OR OTHER CASUALTY
24. If the demised premises shall be damaged by fire or other casualty
and if Tenant shall give prompt notice to Landlord of such damage, Landlord, at
Landlord's expense, shall promptly repair such damage. However, Landlord shall
have no obligation to repair any damage to, or to replace, Tenant's personal
property or any other property or effects of Tenant. If the entire demised
premises shall be rendered untenantable by reason of any such damage, the rent
shall xxxxx for the period from the date of such damage to the date when such
damage shall have been repaired, and if only a part of the demised premises
shall be so rendered untenantable, the rent shall xxxxx for such period in the
proportion which the area of the part of the demised premises so rendered
untenantable bears to the total area of the demised premises. However, if prior
to the date when all of such damage shall have been repaired any part of the
demised premises so damaged shall be rendered tenantable and shall be used or
occupied by Tenant or any person or persons claiming through or under Tenant,
then the amount by which the rent shall xxxxx shall be equitably apportioned for
the period from the date of any such use or occupancy to the date when all such
damage shall have been repaired. Tenant hereby expressly waives the provisions
of Section 227 of the New York Real Property Law, and of any successor law of
like import then in force, and Tenant agrees that the provisions of this Article
shall govern and control in lieu thereof. Notwithstanding the foregoing
provisions of this Section, if, prior to or during the Demised Term, (i) the
demised premises shall be totally damaged or rendered wholly untenantable by
fire or other casualty, and if Landlord shall decide not to restore the demised
premises, or (ii) the Building shall be so damaged by fire or other casualty
that, in Landlord's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the demised
premises shall be damaged or rendered untenantable), then, in
18
any of such events, Landlord at Landlord's option, may give to Tenant, within
ninety (90) calendar days after such fire or other casualty, a thirty (30)
calendar days' notice of termination of this lease and, in the event such notice
is given, this lease and the Demised Term shall come to an end and expire
(whether or not said term shall have commenced) upon the expiration of said
thirty (30) calendar days with the same effect as if the date of expiration of
said thirty (30) calendar days were the Expiration Date, the rent shall be
apportioned as of such date and any prepaid portion of rent for any period after
such date shall be refunded by Landlord to Tenant.
SUBROGATION
25. Each of the parties hereto and their successors or assigns hereby
waives any and all rights of action for negligence against the other party
hereto which may hereafter arise for damage to the premises or to property
therein resulting from any fire or other casualty of the kind covered by
standard fire insurance policies with extended coverage, regardless of whether
or not, or in what amounts, such insurance is now or hereafter carried by the
parties hereto, or either of them. The foregoing release and waiver shall be in
force only if both releasors' insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance and also provided
that such a policy can be obtained without additional premiums. Both parties
agree to use their best efforts to obtain and maintain a waiver of subrogation
from their respective carriers if they are insured.
EMINENT DOMAIN
26. a. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only one part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the rent hereunder shall be abated in an amount
thereof apportioned according to the area of the demised premises so condemned
or taken. In the event that only a part of the Building shall be so condemned or
taken, then (a) Landlord (whether or not the demised premises be affected) may,
at its option, terminate this lease and the term and estate hereby granted as of
the date of such vesting of title by notifying Tenant in writing of such
termination within 60 days following the date on which Landlord shall have
received notice of vesting of title, and (b) if such condemnation or taking
shall be of a substantial part of the demised premises or of a substantial part
of the means of access thereto, Tenant shall have the right, by delivery of
notice in writing to Landlord within 60 days following the date on which Tenant
shall have received notice of vesting of title, to terminate this lease and the
term and estate hereby granted as of the date of vesting of title or (c) if
neither Landlord nor Tenant elects to terminate this lease, as aforesaid, this
lease shall be and remain unaffected by such condemnation or taking, except that
the rent shall be abated to the extent, if any, hereinabove provided in this
Article 26. In the event that only a part of the demised premises shall be so
condemned or taken and this lease and the term and estate hereby granted are not
terminated as hereinbefore provided, Landlord will, at its expense, restore the
remaining portion of the demised premises as nearly as practicable to the same
condition as it was in prior to such condemnation or taking.
19
b. In the event of a termination in any of the cases
hereinabove provided, this lease and the term and estate granted shall expire as
of the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the Demised Term, and the rent hereunder
shall be apportioned as of such date.
c. In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award, except that the
Tenant may file a claim for any taking of removable fixtures owned by Tenant and
for moving expenses incurred by Tenant.
It is expressly understood and agreed that the provisions of this
Article 26 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
LIABILITY INSURANCE
27. a. Tenant will keep in force, at Tenant's expense at all times
during the Demised Term and during such other times as Tenant occupies the
demised premises or any part thereof:
i. commercial general liability insurance or comprehensive general
liability insurance with broad form endorsement with respect to the demised
premises and the operation of Tenant and any Persons under Tenant's Control in,
on or about the demised premises in which the limits of coverage shall be not
less than Five Million Dollars ($5,000,000) combined single limit per
occurrence;
ii. statutory workers' compensation coverage and employers'
liability as required by state law;
iii. business interruption insurance for a period of not less than
one year and such other insurance as Tenant deems necessary to protect its
property and its business against all perils commonly insured against by prudent
tenants;
iv. such other insurance with respect to the demised premises and
in such amounts as Landlord may from time to time reasonably require against
such other insurable hazards or risks which at the time are commonly insured
against in the case of property similar to the demised premises and used as
provided herein.
b. The foregoing limits shall be increased from time to time in the
event that Landlord, in its reasonable judgment, shall determine that the
amounts of insurance are inadequate
20
to pay any claims that may be brought under the foregoing policies. All policies
required by this lease shall be written on an occurrence basis. Such policies
are to be written by a company having a general policy holder's rating of not
less than A and a rating in financial size of not less than XI, as rated in the
most current "Best's" insurance reports, and authorized and licensed to issue
such policies in the State of New York. Any such insurance required of Tenant
hereunder may be furnished by Tenant under any blanket policy carried by it,
providing the policy properly allocates the required limits to the demised
premises, or under a separate policy thereof. Each policy evidencing insurance
as required to be carried by Tenant pursuant to this Article shall contain the
following provisions and/or clauses: (i) a cross-liability clause; (ii) a
provision that such policy and the coverage carried by Landlord shall be excess
insurance; (iii) a provision including Landlord, Landlord's managing agent and
other parties (including mortgagees) designated by Landlord as additional
insureds with respect to commercial general liability insurance; (iv) a waiver
by the insurer of any right of subrogation against Landlord, its agents,
employees and representatives which arises or might arise by reason of any
payment under such policy or by reasons of any act or omission of Landlord, its
agents, employees, or representatives; (v) a severability clause; and (vi) a
provision that the insurer will not cancel, materially change, reduce aggregates
or coverage or fail to renew the coverage provided by such policy without first
giving Landlord and all additional insureds thirty (30) days' prior written
notice.
c. A copy of each paid-up policy or certificate of insurance
accompanied by original endorsements signed by the insurance company evidencing
the policies required hereunder, along with evidence of payment and
appropriately authenticated by the insurer or its authorized agent certifying
that such policy has been issued providing the coverage required by this
Article, and containing provisions specified herein, shall be delivered to
Landlord not less than fifteen (15) days prior to the earlier of (x) the Term
Commencement Date, or (y) the date Tenant shall first take possession of the
demised premises for any purpose, and, upon renewals, not less than thirty (30)
days prior to the expiration of such coverage.
d. If Tenant fails to deliver to Landlord on time any required
evidence of insurance coverage, or fails to carry any insurance required
hereunder, or by law or governmental regulations, then Landlord may (but is not
obligated to) purchase the required coverage on behalf of Tenant, as provided
above, in which event Tenant shall pay to Landlord on demand the cost of such
insurance coverage plus ten percent (10%) of the amount of such cost as a
service charge to Landlord. No such purchase by Landlord shall be deemed a
waiver of Tenant's default and Landlord may pursue its full rights and remedies
on account of such default.
DEFAULT
28. a. Upon the occurrence at any time prior to or during the
Demised Term, of any one or more of the following events (referred to as "Events
of Default"):
i. if Tenant shall fail to pay when due or within the
applicable grace period any installment of rent or additional rent, and such
default shall continue for a period of five (5) days after notice by Landlord to
Tenant of such default; or
21
ii. if Tenant shall default in the observance or performance
of any term, covenant or condition of this lease on Tenant's part to be observed
or performed (other than the covenants for the payment of rent and additional
rent) and Tenant shall fail to remedy such default within ten (10) days after
notice by Landlord to Tenant of such default, or if such default is of such a
nature that it cannot be completely remedied within said period of ten (10) days
and Tenant shall not commence within said period of ten (10) days, or shall not
thereafter diligently prosecute to completion, all steps necessary to remedy
such default; or
iii. if Tenant or Tenant's guarantor hereunder (if any) shall
file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a
bankrupt or become insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law, or
shall make an assignment for the benefit of creditors or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's property; or
iv. if, within thirty (30) days after the commencement of
any proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
act or other present of future applicable federal, state or other statute or
law, such proceeding shall not have been dismissed, or if, within thirty (30)
days after the appointment of any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, without the consent or acquiescence
of Tenant, such appointment shall not have been vacated or otherwise discharged,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property pursuant to which the demised premises shall be taken or
occupied or attempted to be taken or occupied; or
v. if Tenant shall default in the observance or
performance of any term, covenant or condition on Tenant's part to be observed
or performed under any other lease with Landlord of space in the Building
and such default shall continue beyond any grace period set forth in such other
lease for the remedying of such default; or
vi. if the demised premises shall become vacant, deserted
or abandoned; or
vii. if Tenant's interest in this lease shall devolve upon
or pass to any person, whether by operation of law or otherwise, except as
expressly permitted under Article 20;
then, upon the occurrence, at any time prior to or during the Demised Term, of
any one or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) days' notice of termination of
this lease and, in the event such notice is given, this lease
22
and the Demised Term shall come to an end and expire (whether or not said term
shall have commenced) upon the expiration of said five (5) days with the same
effect as if the date of expiration of said five (5) days were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 29.
b. If, at any time, (I) Tenant shall be comprised of two (2)
or more persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 28.a, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this lease. Any
moneys received by Landlord from or on behalf of Tenant during the pendency of
any proceeding of the types referred to in said subsections (iii) and (iv) shall
be deemed paid as compensation for the use and occupation of the demised
premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of rent or a waiver on the part of Landlord of any rights
under Section 28.a.
REMEDIES
29. a. If Tenant shall fail to pay when due or within the applicable
grace period any installment of rent or additional rent and such default shall
continue for a period of five (5) days after notice by Landlord to Tenant of
such default, or if this lease and the Demised Term shall expire and come to an
end as provided in Article 28:
i. Landlord and its agents and servants may immediately, or at
any time after such default or after the date upon which this lease and the
Demised Term shall expire and come to an end, re-enter the demised premises
or any part thereof, without notice, either by summary proceedings or by any
other applicable action or proceeding, or by force or otherwise (without being
liable to indictment, prosecution or damages therefor), and may repossess the
demised premises and dispossess Tenant and any other persons from the demised
premises and remove any and all of their property and effects from the demised
premises; and
ii. Landlord, at Landlord's option, may relet the whole or any
part or parts of the demised premises from time to time, either in the name
of Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals
and upon such other conditions, which may include concessions and free rent
periods, as Landlord, in its sole discretion, may determine. Landlord shall
have no obligation to relet the demised premises or any part thereof and shall
in no event be liable for refusal or failure to relet the demised premises or
any part thereof, or, in the event of any such reletting, for refusal or failure
to collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this lease or otherwise
to affect any such liability. Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the demised premises as Landlord, in its
sole discretion, considers advisable or necessary in connection with any
such reletting or proposed reletting, without relieving Tenant of any
liability under this lease or otherwise affecting any such liability.
23
b. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the demised premises, or to re-enter or
repossess the demised premises, or to restore the operation of this lease, after
(I) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge, or (ii) any re-entry by Landlord, or (iii) any expiration or
termination of this lease and the Demised Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this lease. In the event of a breach or threatened breach by
Tenant, or any persons claiming through or under Tenant, of any term, covenant
or condition of this lease on Tenant's part to be observed or performed,
Landlord shall have the right to enjoin such breach and the right to invoke any
other remedy allowed by law or in equity as if re-entry, summary proceedings and
other special remedies were not provided in this lease for such breach. The
rights to invoke the remedies hereinbefore set forth are cumulative and shall
not preclude Landlord from invoking any other remedy allowed by law or in
equity.
DAMAGES
30. a. If this lease and the Demised Term shall expire and come to an
end as provided in Article 28 or by or under any summary proceeding or any other
action or proceeding, or if Landlord shall re-enter the demised premises as
provided in Article 29 or by or under any summary proceeding or any other action
or proceeding, then, in any of said events:
i. Tenant shall pay to Landlord all rent, additional rent and
other charges payable under this lease by Tenant to Landlord to the date upon
which this lease and the Demised Term shall have expired and come to an end or
to the date of re-entry upon the demised premises by Landlord, as the case may
be; and
ii. Tenant shall also be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the rent and
additional rent reserved in this lease for the period which otherwise
would have constituted the unexpired portion of the Demised Term and the net
amount, if any, of rents collected under any reletting effected pursuant to the
provisions of Section 29.a for any part of such period (first deducting from
the rents collected under any such reletting all of Landlord's expenses in
connection with the termination of this lease or Landlord's re-entry upon the
demised premises and such reletting including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
alteration costs and other expenses of preparing the demised premises for such
reletting). Any such Deficiency shall be paid in monthly installments by Tenant
on the days specified in this lease for payment of installments of rent.
Landlord shall be entitled to recover from Tenant each monthly Deficiency as the
same shall arise, and no suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
24
iii. At any time after the Demised Term shall have expired and
come to an end or Landlord shall have re-entered upon the demised premises, as
the case may be, whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, as and for liquidated and agreed
final damages, a sum equal to the amount by which the rent and additional rent
reserved in this lease for the period which otherwise would have constituted
the unexpired portion of the Demised Term exceeds the then fair and reasonable
rental value of the demised premises for the same period, both discounted to
present worth at the rate of four (4%) per cent per annum. If, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the demised premises, or any part thereof, shall have been relet by
Landlord for the period which otherwise would have constituted the unexpired
portion of the Demised Term, or any part thereof, the amount of rent reserved
upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the demised premises so relet during
the term of the reletting.
b. If the demised premises, or any part thereof, shall be
relet together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
equitably apportioned for the purposes of this Article 30. Tenant shall in no
event be entitled to any rents collected or payable under any reletting, whether
or not such rents shall exceed the rent reserved in this lease. Solely for the
purposes of this Article, the term rent as used in Section 30.a shall mean the
rent in effect immediately prior to the date upon which this lease and the
Demised Term shall have expired and come to an end, or the date of re-entry upon
the demised premises by Landlord, as the case may be, plus any additional rent
payable pursuant to the provisions of Articles 8 & 9 for the Lease Year
immediately preceding such event. Nothing contained in Articles 28 and 29 or
this Article shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any statute or
rule of law, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in Section 30.a.
FEES AND EXPENSES
31. a. If Tenant shall default in the performance of any covenant on
Tenant's part to be performed in this lease contained, Landlord may immediately,
or at any time thereafter, without notice, perform the same for the account of
Tenant. If Landlord at any time is compelled to pay or elects to pay any sum of
money, or do any act which will require the payment of any sum of money, by
reason of the failure of Tenant to comply with any provision hereof, or, if
Landlord is compelled to or does incur any expense including reasonable
attorneys' fees, instituting, prosecuting and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, the sum or
sums so paid by Landlord with all interest, costs and damages, shall be deemed
to be additional rent hereunder and shall be due from Tenant to Landlord on the
first day of the month following the incurring of such respective expenses, or
at Landlord's option on the first day of any subsequent month. In the event that
Landlord shall institute any such action or proceeding by reason of a default by
Tenant. hereunder, and Tenant shall thereafter cure such default before judgment
is entered in such action or proceeding, the sum of $500 shall immediately
become due and payable from Tenant
25
to Landlord as and for liquidated damages on account of Landlord's attorneys'
fees and other costs and expenses in connection therewith (said sum not to be
deemed to be, or construed as, a limitation on Landlord's right to obtain
reasonable attorneys' fees in a greater amount where such default is not so
cured). Any sum of money (other than rent) accruing from Tenant to Landlord
pursuant to any provision of this lease, whether prior to or after the Term
Commencement Date, may, at Landlord's option, be deemed additional rent, and
Landlord shall have the same remedies for Tenant's failure to pay any item of
additional rent when due as for Tenant's failure to pay any installment of rent
when due. Tenant's obligations under this Article shall survive the expiration
or sooner termination of the Demised Term.
b. If any legal action or proceeding is brought by either
party against the other pertaining to or arising out of this lease, the final
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
NO WAIVER
32. a. No act or thing done by Landlord or Landlord's agents during the
Demised Term hereby demised shall be deemed an acceptance of a surrender of said
demised premises, and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of said demised premises prior to
the termination of this lease. The delivery of keys to any employee of Landlord
or of Landlord's agents shall not operate as a termination of this lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord underlet the demised premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this lease, or any of the Rules and Regulations annexed
hereto and made a part hereof, or hereafter adopted by Landlord, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this lease
shall not be deemed a waiver of such breach. The failure of Landlord to enforce
any of the Rules and Regulations annexed hereto and made a part hereof, or
hereafter adopted against Tenant and/or any other tenant in the Building shall
not be deemed a waiver of any such Rules and Regulations. No provision of this
lease shall be deemed to have been waived by Landlord, unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent then owing nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this lease provided.
26
b. Landlord's failure to render a Landlord's Statement with
respect to any Lease Year per Articles 8 & 9 shall not prejudice Landlord's
right to render a Landlord's Statement with respect to any subsequent Lease
Year. The obligations of Landlord and Tenant under the provisions of Articles 8
& 9 with respect to any additional rent for any Lease Year shall survive the
expiration or any sooner termination of the Demised Term.
WAIVER OF TRIAL BY JURY
33. To the extent such waiver is permitted by law, Landlord and Tenant
hereby waive trial by jury in any action, proceeding or counterclaim brought by
Landlord or Tenant against the other on any matter whatsoever arising out of or
in any way connected with this lease, the relationship of landlord and tenant,
the use or occupancy of the demised premises by Tenant or any person claiming
through or under Tenant, any claim of injury or damage, and any emergency or
other statutory remedy. The provisions of the foregoing sentence shall survive
the expiration or any sooner termination of the Demised Term. If Landlord
commences any summary proceeding for nonpayment of rent or otherwise to recover
possession of the demised premises, Tenant agrees not to interpose any
counterclaim of any nature or description in any such proceeding except for
compulsory counterclaims.
BILLS AND NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications given or required
to be given under this lease shall be effective only if rendered or given in
writing, sent by registered or certified mail (return receipt requested
optional), addressed (A) to Tenant (I) at Tenant's address set forth in this
lease if mailed prior to Tenant's taking possession of the demised premises, or
(ii) at the Building if mailed subsequent to Tenant's taking possession of the
demised premises with a copy to AMNEX, Inc., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000-0000 Attention: V.P. Legal, or (iii) at any place where
Tenant or any agent or employee of Tenant may be found if mailed subsequent to
Tenant's vacating, deserting, abandoning or surrendering the demised premises,
or (B) to Landlord at Landlord's address set forth in this lease, or (C)
addressed to such other address as either Landlord or Tenant may designate as
its new address for such purpose by notice given to the other in accordance with
the provisions of this Article. Any such xxxx, statement, notice, demand,
request or other communication shall be deemed to have been rendered or given on
the date when it shall have been mailed as provided in this Article.
INABILITY TO PERFORM; INTERRUPTION OF SERVICE
35. a. If, by reason of strikes or other labor disputes, fires or other
casualty (or reasonable delays in adjustment of insurance), accidents, orders or
regulations of any Federal, State, County or Municipal authority, or any other
cause beyond Landlord's reasonable control, whether or not such other cause
shall be similar in nature to those hereinbefore enumerated, Landlord is unable
to furnish or is delayed in furnishing any utility or service required to be
furnished by
27
Landlord under the provisions of this lease or any collateral instrument, or is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions or improvements,
whether or not required to be performed or made under this lease or under any
collateral instrument, or is unable to fulfill or is delayed in fulfilling any
of Landlord's other obligations under this lease or any collateral instrument,
except as set forth in Article 24, no such inability or delay shall constitute
an actual or constructive eviction, in whole or in part, or impose any liability
upon Landlord or its agents by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise, nor shall any
such delay or inability to perform on the part of Landlord in any way affect
this lease and the obligation of Tenant to pay rent hereunder and to perform all
of the other covenants and agreements to be performed by Tenant hereunder.
Notwithstanding any provision to the contrary, Tenant's continuing obligation
under this subparagraph a. of Article 35 to pay rent and to perform all of the
other covenants and agreements of this lease agreement shall terminate in the
event the Landlord's inability to furnish any utility or service or delay in
furnishing any utility or service, or inability to perform or make any repairs
or delay in performing or making any repairs, continues for a period of one
year.
b. Landlord reserves the right to stop the services of the air
conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements which in
the judgment of Landlord are desirable or necessary, until such repairs,
alterations, replacements or improvements shall have been completed. In the
event that Landlord is unable to complete the repairs, replacement and
improvement within a reasonable amount of time which in no event shall be less
than five (5) days, and further provided that the repair, alteration or
improvement is significantly harming or hindering Tenant's use of the demised
premises, Tenant shall be entitled to an abatement of the pro-rata share of the
annual rental rate adjusted for the percentage of the Premises not useable by
Tenant until the repairs, alterations, replacement or improvement is completed.
The exercise of such rights by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise, except as otherwise stated in this Article.
CONDITIONS OF LANDLORD'S LIABILITY
36. a. Tenant shall not be entitled to claim a constructive eviction
from the demised premises unless Tenant shall have first notified Landlord of
the condition or conditions giving rise thereto, and if the complaints be
justified, unless Landlord shall have failed to remedy such conditions within a
reasonable time after receipt of such notice.
b. If Landlord shall be unable to give possession of the
demised premises on any date specified for the commencement of the term by
reason of the fact that the demised premises have not been sufficiently
completed to make same ready for occupancy, or for any other reason, Landlord
shall not be subject to any liability for the failure to give possession on said
date, nor shall
28
such failure in any way affect the validity of this lease or the obligations of
Tenant hereunder except that the Term Commencement Date shall be the date on
which Landlord gives possession of the demised premises to Tenant. The
provisions of this Article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
TENANT'S TAKING POSSESSION
37. Tenant by entering into occupancy of the premises shall be
conclusively deemed to have agreed that Landlord up to the time of such
occupancy has performed all of its obligations hereunder and that the premises
were in satisfactory condition as of the date of such occupancy, unless within
ten (l0) days after such date Tenant shall give written notice to Landlord
specifying the respects in which the same were not in such condition.
ENTIRE AGREEMENT
38. This lease contains the entire agreement between the parties and
all prior negotiations and agreements are merged herein. Neither Landlord nor
Landlord's agent or representative has made any representation, or statement, or
promise, upon which Tenant has relied regarding any matter or thing relating to
the Building, the land allocated to it, (including the Building Parking Area and
the Building C Parking Area) or the demised premises, or any other matter
whatsoever, except as is expressly set forth in this lease, including, but
without limiting the generality of the foregoing, any statement, representation
or promise as to the fitness of the demised premises for any particular use, the
services to be rendered to the demised premises or the prospective amount of any
item of additional rent. No oral or written statement, representation or promise
whatsoever with respect to the foregoing or any other matter made by Landlord,
its agents or any broker, whether contained in an affidavit, information
circular, or otherwise shall be binding upon the Landlord unless expressly set
forth in this lease. No rights, easements or licenses are or shall be acquired
by Tenant by implication or otherwise unless expressly set forth in this lease.
This lease may not be changed, modified or discharged, in whole or in part,
orally, and no executory agreement shall be effective to change, modify or
discharge, in whole or in part, this lease or any obligations under this lease,
unless such agreement is set forth in a written instrument executed by the party
against whom enforcement of the change, modification or discharge is sought. All
references in this lease to the consent or approval of Landlord shall be deemed
to mean the written consent of Landlord, or the written approval of Landlord, as
the case may be, and no consent or approval of Landlord shall be effective for
any purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
DEFINITIONS
39. The term "landlord" as used in this lease means only the owner, or
the mortgagee in possession, for the time being of the land and Building (or the
owner of a lease of the Building or of the land and Building) of which the
demised premises form a part, so that in the event of any sale or other transfer
of said land and Building or of said lease, or in the event of a lease of the
Building, or of the land and Xxxxxxxx,
00
the said Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder, and it shall be deemed and
construed as a covenant running with the land without further agreement between
the parties or their successors in interest, or between the parties and the
purchaser or other transferee at any such sale, or the said lessee of the
Building, or of the land and Building, provided that the purchaser, transferee
or the lessee of the Building assumes and agrees to carry out any and all
covenants and obligations of Landlord hereunder. The words "re-enter",
"re-entry" and "re-entered" as used in this lease are not restricted to their
technical legal meanings. The term "business days" as used in this lease shall
exclude Saturdays, Sundays and all days observed by the State and Federal
Government as legal holidays.
The terms "person" and "persons" as used in this lease shall be
deemed to include natural persons, firms, corporations, associations and any
other private or public entities, whether any of the foregoing are acting on
their own behalf or in a representative capacity.
PARTNERSHIP TENANT
40. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually and as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as co-partners of a partnership) pursuant to Article
20 (any such partnership and such person, being referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any modifications of this lease which may hereafter be made and by any
notices, demand, requests or other communications which may hereafter be given,
by Partnership Tenant or by any of the parties comprising Partnership Tenant,
and (c) any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
lease on Tenant's part to be observed and performed, and (e) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (d) of this Section).
SUCCESSORS, ASSIGNS, ETC.
41. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, administrators, successors, and, except as
otherwise provided in this lease, their respective assigns.
30
APPLICATION OF INSURANCE PROCEEDS, WAIVER OF SUBROGATION
42. In any case in which Tenant shall be obligated under any provisions
of this lease to pay to Landlord any loss, cost, damage, liability or expense
suffered or incurred by Landlord, Landlord shall allow to Tenant as an offset
against the amount thereof the net proceeds of any insurance collected by
Landlord for or on account of such loss, cost, damage liability or expense,
provided that the allowance of such offset does not invalidate or prejudice the
policy or policies under which such proceeds were payable. In any case in which
Landlord shall be obligated under any provisions of this lease to pay to Tenant
any loss, cost, damage, liability or expense suffered or incurred by Tenant,
Tenant shall allow to Landlord as an offset against the amount thereof the net
proceeds of any insurance collected by Tenant for or on account of such loss,
cost damage, liability or expense, provided that the allowance of such offset
does not invalidate or prejudice the policy or policies under which such
proceeds were payable.
CAPTIONS AND INDEX
43. The captions and the index at the beginning of the lease, if any,
are included only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this lease nor the intent of any
provisions thereof.
RECOVERY FROM LANDLORD
44. a. Tenant shall look solely to the estate and property of Landlord
in the land and building of which the demised premises are a part, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by Landlord with respect to any of the terms, covenants and/or
conditions of the lease to be observed and/or performed by Landlord, and no
other property or assets of such Landlord shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies.
b. With respect to any provision of this lease which provides
for Landlord's approval and/or consent, Tenant, in no event, shall be entitled
to make, nor shall Tenant make any claim, and Tenant hereby waives any claim,
for money damages; nor shall Tenant claim any money damages by way of set-off,
counterclaim or defense, based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unreasonably delayed any such consent or
approval.
BROKER
45. Tenant represents and warrants to Landlord that Island Realty is
the sole broker who brought the demised premises to Tenant's attention and with
whom Tenant has negotiated in bringing about this lease. Tenant agrees to
indemnify, defend and save Landlord harmless of, from and against any and all
claims (and all expenses and fees, including attorneys fees, related thereto)
for commissions or compensation made by any other broker or entity, arising out
of or relating to the breach by Tenant of the foregoing representation. As, if
and when this lease shall be fully executed and unconditionally delivered by
both Landlord and Tenant, Landlord agrees to pay any commission that may be due
the above-named broker in connection with this lease in accordance with a
separate agreement between Landlord and said broker.
31
MORTGAGEE'S CONSENT
46. Landlord and Tenant hereby acknowledge that this lease is subject
to Landlord's obtaining the written approval of Mitsui to this lease. Landlord
agrees to submit a copy of this lease to Mitsui for Mitsui's written approval
promptly after the execution hereof. The failure of Landlord to obtain Mitsui's
approval to this Lease shall not result in any liability from Landlord to
Tenant, or give rise to any claim in favor of Tenant against Landlord by reason
thereof. In the event that Mitsui's written approval to this Agreement is not
obtained on or before the date that is twenty (20) days after the date hereof,
then this Agreement shall automatically terminate and shall be deemed null and
void ab initio, and neither party shall have any further rights or obligations
hereunder.
NET LEASE
47. Except as may be otherwise expressly provided herein, it is the
intention, understanding, and agreement of Landlord and Tenant that this lease
is, and shall constitute a Net Net Net lease, and that Landlord shall receive
its base rent and all other additional rent without setoff deduction, or offset
for any charges or expenses incurred in the ownership, operation, maintenance or
repair of the demised premises.
SECURITY
48. Tenant has deposited with Landlord the sum of $50,000 for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, Landlord
may use, apply or retain the whole or any part of the security so deposited to
the extent required for the payment of any sum as to which Tenant is in default.
Landlord shall deposit Tenant's security in an interest bearing account. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant as follows: (a) $5,000 on the first anniversary of the Term
Commencement Date; (b) $5,000 on the second anniversary of the Term Commencement
Date; (c) $5,000 on the third anniversary of the Term Commencement Date; (d)
$5,000 on the fourth anniversary of the Term Commencement Date; and the
remaining $30,000 and all accrued interest after the date fixed at the end of
this lease and after delivery of entire possession of the demised premises to
Landlord. In the event of a sale of the land and Building or leasing of the
Building, Landlord shall have the right to transfer the security to the vendee
or lessee and Landlord shall thereupon be released by Tenant from all liability
for the return of such security. Tenant covenants that it will not assign or
encumber or attempt to assign or encumber the moneys deposited here as security
and that neither Landlord nor its successors or assigns shall be bound by any
such assignment, encumbrance, attempted assignment or attempted encumbrance.
32
IN WITNESS WHEREOF
Landlord and Tenant have respectively signed and sealed this lease as of the day
and year first written above.
Witness for Landlord: WE'RE ASSOCIATES COMPANY
BY:/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
(Print Name)
Witness for Tenant: CRESCENT PUBLIC COMMUNICATIONS, INC.
By: /s/ A.M. Xxxxxxx
A. M. Xxxxxxx
(Print Name)
President
(Title)
33
