Surrender of Reduction Premises. (a) On or before 11:59 p.m. (EST) on December 31, 2012 (the “33rd Floor Surrender Date”), Tenant shall vacate and surrender to Landlord possession of the Reduction Premises (i) vacant, broom clean and free from all occupants, subtenants, or other persons or entities claiming rights of possession by, through or under Tenant, and all furniture, equipment, fixtures and other property of Tenant and its employees and anyone claiming by, through or under Tenant, and (ii) with all signage of Tenant in or on the Reduction Premises, including in the elevator lobby thereof removed. In addition, Tenant shall disconnect any tel/data cabling or wiring serving the Reduction Premises and acknowledges and agrees that Landlord or a future tenant may remove or disconnect any such cabling or wiring in or running to the Reduction Premises. If Tenant fails to properly disconnect all such tel/data cabling or wiring serving the Reduction Premises, Landlord shall not be responsible for any disruptions or interruptions to Tenant’s telecommunications services to the Retained Premises (as hereinafter defined) resulting from any such removal or disconnection or other work in or to the Reduction Premises by Landlord or a future tenant. Landlord acknowledges and agrees that, with respect to the Reduction Premises only and without limitation of the provisions of Section 2(f) of this Nineteenth Amendment, Tenant will not have any obligation to remove any other leasehold improvements in the Reduction Premises as of the Effective Date or to repair or restore any damage to the Reduction Premises resulting from Tenant’s removal of property or equipment from the Reduction Premises unless the damage is material and will not be eliminated by the proposed scope of Berkshire’s (as hereinafter defined) demolition work in the Reduction Premises. (b) Effective on the earlier date to occur of (i) May 31, 2013, and (ii) the date Landlord substantially completes the Staircase Removal Work (as hereinafter defined) (the “Effective Reduction Date”) and provided and on the express condition that Tenant, on or before the 33rd Floor Surrender Date, vacates the Reduction Premises in the condition required under this Nineteenth Amendment and delivers the Termination Payment (as hereinafter defined) to Landlord in good and sufficient, immediately available funds, Tenant’s lease of the Reduction Premises shall automatically terminate and be of no further force and effect as if the Effective Reduction Date were the New Expiration Date set forth in the Lease for such Reduction Premises, and, from and after the Effective Reduction Date, Landlord and Tenant shall be released of their respective obligations under the Lease, as amended hereby, in connection with the Reduction Premises only, except those obligations of Landlord and Tenant set forth in the Lease which relate to the period of Tenant’s lease of the Reduction Premises prior to and including the Effective Reduction Date (or any later date to the extent Tenant continues to occupy the Reduction Premises following the Effective Reduction Date) and/or which specifically survive the expiration or earlier termination of the Lease, including, without limitation, indemnification obligations and any year-end reconciliations of Operating Expense Excess and Ownership Taxes attributable to the Reduction Premises. (c) The Lease and all of the parties’ rights and obligations thereunder shall remain in full force and effect with respect to the 26th Floor Premises, the 31st Floor Premises and the 32nd Floor Premises (the “Retained Premises”) through the New Expiration Date (as defined in the Eighteenth Amendment) and from and after the Effective Reduction Date, (1) all references in the Lease to the Premises shall mean and refer to the Retained Premises, (2) the Premises shall be deemed to contain 62,932 rentable square feet, (3) Tenant’s Proportionate Share shall be amended to 3.62%; (4) the floor plan for the Reduction Premises attached to the Eighteenth Amendment as page 4 of 4 of the Exhibit A floor plans shall be deleted from the Lease; and (5) the number of Authorized Parking Permits available to Tenant under the Lease shall be reduced to thirty-one (31) parking permits for the remainder of the Term (d) For purposes of this Nineteenth Amendment, the “Termination Payment” shall be an amount equal to the Base Rent and all Additional Rent, including without limitation, Operating Expense Excess and Ownership Taxes that would have been payable under the Lease for the Reduction Premises for the period commencing on the Effective Reduction Date through May 31, 2013. In order to make timely payment of the Termination Payment on the 33rd Floor Surrender Date, Tenant shall deliver to Landlord the amount of $831,137.50 as the estimated Termination Payment based upon an estimated Effective Reduction Date of January 1, 2013, provided, however, such payment shall be subject to reconciliation after the Additional Rent that would have been payable for the Reduction Premises during such period is determined in accordance with the Lease and, upon such determination, either Tenant shall promptly pay any underpayment of the Termination Payment to Landlord within thirty (30) days after receipt of the reconciliation statement from Landlord or Landlord shall promptly refund any overpayment of the Termination Payment to Tenant and such obligations shall survive the termination of the Lease as to the Reduction Premises. Tenant’s obligation to pay the Base Rent and all Additional Rent due under the Lease (including, without limitation, amounts due under the Lease for Operating Expense Excess and Ownership Taxes) as to the Reduction Premises through and including the Effective Reduction Date shall continue in effect, provided, however, Tenant shall, on the first day of the applicable month in which the monthly Base Rent and Additional Rent would otherwise be due following the 33rd Floor Surrender Date, receive a credit from the estimated Termination Payment paid by Tenant in an amount equal to the monthly Base Rent and estimated monthly Additional Rent (on a prorated basis for any partial month) that accrues and would otherwise be payable by Tenant under the Lease for the Reduction Premises during the period following the 33rd Floor Surrender Date through the Effective Reduction Date. (e) Tenant acknowledges that Landlord is entering into a lease amendment with Berkshire Partners LLC (“Berkshire”) to lease the entire Reduction Premises to Berkshire commencing on the Effective Reduction Date and Berkshire has the right to terminate its lease of the Reduction Premises if such Reduction Premises is not delivered to Berkshire with the Staircase Removal Work (as hereinafter defined) substantially completed by an agreed upon outside delivery date (the “Berkshire Termination Date”). Tenant acknowledges that Landlord requires Tenant to surrender possession of the Reduction Premises to Landlord on the 33rd Floor Surrender Date in order for Landlord to access the Reduction Premises, perform such Staircase Removal Work and deliver possession of the Reduction Premises in the condition and within the time period required under the Berkshire lease amendment. In the event Tenant fails to vacate and surrender possession of the Reduction Premises to Landlord on or before the 33rd Floor Surrender Date in the condition required under this Nineteenth Amendment and notwithstanding that the Effective Reduction Date has not occurred, such failure shall, without any notice or cure periods applicable thereto, constitute a holding over in the Reduction Premises and Tenant shall be liable for all amounts due under the Lease on account of such holding over in the Reduction Premises together with all direct and indirect damages suffered by Landlord on account of Tenant’s holding over, including without limitation, if Tenant’s holding over delays Landlord’s substantial completion of the Staircase Removal Work beyond the Berkshire Termination Date, the loss of Berkshire’s lease of the Reduction Premises. (f) Simultaneously with Tenant’s execution and delivery of this Nineteenth Amendment, Tenant shall deliver to Landlord a good and sufficient check payable to Landlord in the amount of $100,000.00 (the “Staircase Removal Payment”) in consideration of Landlord’s agreement to remove the internal staircase connecting the 32nd Floor Premises and the Reduction Premises and install a building standard floor/ceiling deck (exclusive of tenant finishes) between the 32nd Floor Premises and Reduction Premises (the “Staircase Removal Work”). Landlord agrees that, upon delivery of the Staircase Removal Payment to Landlord, Tenant shall be relieved of the obligation under the Lease to perform the Staircase Removal Work and Tenant acknowledges and agrees that Landlord shall have no obligation to account to Tenant for the actual costs paid by Landlord for the Staircase Removal Work and Tenant will not be entitled to any refund of the Staircase Removal Payment if the costs incurred by Landlord to perform the Staircase Removal Work are less than the Staircase Removal Payment. (g) Provided Tenant vacates and surrenders possession of the Reduction Premises in the condition required under this Nineteenth Amendment on or before the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ agrees to promptly commence and diligently pursue performance of the Staircase Removal Work in a good and workmanlike manner and in compliance with all applicable laws, codes and other governmental regulations. Tenant shall cooperate with Landlord and provide Landlord and its agents, employees and contractors with access to the 32nd Floor Premises at reasonable times as requested by Landlord and subject to reasonable advance coordination with Tenant to perform the Staircase Removal Work. Landlord and Tenant shall cooperate to schedule and perform the Staircase Removal Work at such times and in such manner that does not materially interfere with or disturb Tenant’s business operations in the Premises, provided, however, the foregoing shall not require Landlord to perform the Staircase Removal Work outside of normal business hours for the Building. Landlord shall install a temporary construction barrier or wall in a location of the 32nd Floor Premises reasonably acceptable to Tenant and Landlord shall remove the temporary construction barrier or wall within a reasonable period following completion of the Staircase Removal Work. Landlord shall not be responsible to provide any security in the 32nd Floor Premises during the performance of the Staircase Removal Work and Tenant shall be responsible, at Tenant’s sole cost and expense, to provide any such security desired by Tenant. Landlord shall use reasonable efforts, without liability to Tenant, to substantially complete the Staircase Removal Work within three (3) months following the 33rd Floor Surrender Date and Landlord’s receipt of all necessary permits and approvals for the Staircase Removal Work, subject to delays resulting from force majeure and delays caused by the acts, omissions or negligence of Tenant, including without limitation, Tenant’s failure to provide Landlord with reasonable and timely access to the 32nd Floor Premises to perform the Staircase Removal Work. Tenant hereby releases Landlord from any and all losses, costs, damages, actions, causes of actions, proceedings, liens, fines, penalties, expenses and liabilities (“Claims”) incurred in connection with or arising from the Staircase Removal Work, except to the extent resulting solely from the negligence or willful misconduct of Landlord or its agents, employees or contractors
Appears in 1 contract
Sources: Lease (Cra International, Inc.)
Surrender of Reduction Premises. (ai) On or before 11:59 p.m. (EST) on December 31From and after September 14, 2012 2017 (the “33rd Floor Surrender Reduction Premises Termination Date”), Tenant shall vacate any and surrender to Landlord possession all rights and obligations of the Reduction Premises (i) vacant, broom clean and free from all occupants, subtenants, or other persons or entities claiming rights of possession by, through or under Tenant, and all furniture, equipment, fixtures and other property obligations of Tenant and its employees and anyone claiming by, through or under Tenant, and (ii) with all signage of Tenant in or on the Reduction Premises, including in the elevator lobby thereof removed. In addition, Tenant shall disconnect any tel/data cabling or wiring serving the Reduction Premises and acknowledges and agrees that Landlord or a future tenant may remove or disconnect any such cabling or wiring in or running to the Reduction Premises. If Tenant fails to properly disconnect all such tel/data cabling or wiring serving the Reduction Premises, Landlord shall not be responsible for any disruptions or interruptions to Tenant’s telecommunications services to the Retained Premises (as hereinafter defined) resulting from any such removal or disconnection or other work in or to the Reduction Premises by Landlord or a future tenant. Landlord acknowledges and agrees thatLandlord, with respect to the Reduction Premises only and Premises, including, without limitation limitation, Tenant’s right to possession of the provisions Reduction Premises, shall be terminated; provided, however, that such termination shall under no circumstances or in any way constitute a waiver or termination of Section 2(f) the obligations of this Nineteenth Amendment, Tenant will not which exist or have any obligation accrued up to remove any other leasehold improvements in and including the Reduction Premises as Termination Date and which may accrue or continue to accrue after the Reduction Premises Termination Date to the extent Tenant has failed to satisfy all of its obligations with respect to the Effective Date Reduction Premises. In the event Tenant fails to surrender the Reduction Premises to Landlord on or to repair or restore any damage prior to the Reduction Premises resulting from Tenant’s removal Termination Date in accordance with the terms hereof, then the terms and conditions of property or equipment from Section 30(a) of the Original Lease shall apply in all respects with respect to the Reduction Premises unless without in any way affecting the damage is material and will not be eliminated by obligations of Tenant with respect to the proposed scope of Berkshire’s (as hereinafter defined) demolition work Remaining Premises, including the obligation to pay rent in accordance with the Reduction Premisesterms herein.
(b) Effective on the earlier date to occur of (i) May 31, 2013, and (ii) the date Landlord substantially completes the Staircase Removal Work (as hereinafter defined) (the “Effective Reduction Date”) Tenant acknowledges and provided and on the express condition that Tenantagrees that, on or before the 33rd Floor Surrender Date, vacates prior to the Reduction Premises in Termination Date, Tenant shall surrender the condition required under this Nineteenth Amendment and delivers the Termination Payment (as hereinafter defined) Reduction Premises to Landlord in good and sufficient, immediately available funds, Tenant’s lease accordance with the terms of Section 30(b) of the Reduction Premises shall automatically terminate and be of no further force and effect as if the Effective Reduction Date were the New Expiration Date set forth in the Lease for such Reduction Premises, and, from and after the Effective Reduction Date, Landlord and Tenant shall be released of their respective obligations under the Lease, as amended hereby, in connection with the Reduction Premises only, except those obligations of Landlord and Tenant set forth in the Lease which relate to the period of Tenant’s lease of the Reduction Premises prior to and including the Effective Reduction Date (or any later date to the extent Tenant continues to occupy the Reduction Premises following the Effective Reduction Date) and/or which specifically survive the expiration or earlier termination of the Original Lease, including, without limitation, indemnification obligations and any year-end reconciliations performing the following repair work: (i) replace the burnt out T5 light bulbs, (ii) repair one (1) column pierced by a forklift, (iii) replace three (3) bottom panels of Operating Expense Excess and Ownership Taxes attributable the dock door to the Reduction Premises.
, (civ) The Lease and all remove the striping on the floor of the parties’ rights and obligations thereunder shall remain in full force and effect with respect to the 26th Floor Premises, the 31st Floor Premises and the 32nd Floor Premises (the “Retained Premises”) through the New Expiration Date (as defined in the Eighteenth Amendment) and from and after the Effective Reduction Date, (1) all references in the Lease to the Premises shall mean and refer to the Retained Premises, (2) the Premises shall be deemed to contain 62,932 rentable square feet, (3) Tenant’s Proportionate Share shall be amended to 3.62%; (4) the floor plan for the Reduction Premises attached to the Eighteenth Amendment as page 4 warehouse portion of 4 of the Exhibit A floor plans shall be deleted from the Lease; and (5) the number of Authorized Parking Permits available to Tenant under the Lease shall be reduced to thirty-one (31) parking permits for the remainder of the Term
(d) For purposes of this Nineteenth Amendment, the “Termination Payment” shall be an amount equal to the Base Rent and all Additional Rent, including without limitation, Operating Expense Excess and Ownership Taxes that would have been payable under the Lease for the Reduction Premises for the period commencing on the Effective Reduction Date through May 31, 2013. In order to make timely payment of the Termination Payment on the 33rd Floor Surrender Date, Tenant shall deliver to Landlord the amount of $831,137.50 as the estimated Termination Payment based upon an estimated Effective Reduction Date of January 1, 2013, provided, however, such payment shall be subject to reconciliation after the Additional Rent that would have been payable for the Reduction Premises during such period is determined in accordance with the Lease and, upon such determination, either Tenant shall promptly pay any underpayment of the Termination Payment to Landlord within thirty (30) days after receipt of the reconciliation statement from Landlord or Landlord shall promptly refund any overpayment of the Termination Payment to Tenant and such obligations shall survive the termination of the Lease as to the Reduction Premises. Tenant’s obligation to pay the Base Rent and all Additional Rent due under the Lease (including, without limitation, amounts due under the Lease for Operating Expense Excess and Ownership Taxes) as to the Reduction Premises through and including the Effective Reduction Date shall continue in effect, provided, however, Tenant shall, on the first day of the applicable month in which the monthly Base Rent and Additional Rent would otherwise be due following the 33rd Floor Surrender Date, receive a credit from the estimated Termination Payment paid by Tenant in an amount equal to the monthly Base Rent and estimated monthly Additional Rent (on a prorated basis for any partial month) that accrues and would otherwise be payable by Tenant under the Lease for the Reduction Premises during the period following the 33rd Floor Surrender Date through the Effective Reduction Date.
(e) Tenant acknowledges that Landlord is entering into a lease amendment with Berkshire Partners LLC (“Berkshire”) to lease the entire Reduction Premises to Berkshire commencing on the Effective Reduction Date and Berkshire has the right to terminate its lease of the Reduction Premises if such Reduction Premises is not delivered to Berkshire with the Staircase Removal Work (as hereinafter defined) substantially completed by an agreed upon outside delivery date (the “Berkshire Termination Date”). Tenant acknowledges that Landlord requires Tenant to surrender possession of the Reduction Premises to Landlord on the 33rd Floor Surrender Date in order for Landlord to access the Reduction Premises, perform such Staircase Removal Work and deliver possession (v) remove the racking systems and grind down the bolts in the floor of the Reduction Premises in the condition and within the time period required under the Berkshire lease amendmentPremises. In the event Tenant fails shall fail to vacate surrender the Reduction Premises as provided herein, Landlord shall have, in addition to all rights and surrender possession remedies available to Landlord under the Lease, at law or in equity, the right, but not the obligation, to perform said work on Tenant’s behalf and at Tenant’s sole cost and expense. In such event, the total cost of performing said repair work shall be paid by Tenant to Landlord immediately upon demand or, at Landlord’s option, Landlord may reduce the amount of the Moving Allowance (hereinafter defined) by the amount it cost to perform said repair work.
(iii) In furtherance of the foregoing, Landlord and Tenant acknowledge Landlord inspected the Reduction Premises on or about August 4, 2017. Landlord reserves the right, on or prior to Reduction Premises Termination Date, to perform a final walkthrough of the Reduction Premises to Landlord on or before the 33rd Floor Surrender Date in the condition required under this Nineteenth Amendment and notwithstanding that the Effective Reduction Date has not occurred, such failure shall, without any notice or cure periods applicable thereto, constitute a holding over in for purposes of inspecting the Reduction Premises and Tenant shall be liable for all amounts due under the Lease on account of such holding over in the Reduction Premises together with all direct and indirect any damages suffered by Landlord on account of which are Tenant’s holding over, including without limitation, if Tenant’s holding over delays Landlord’s substantial completion of the Staircase Removal Work beyond the Berkshire Termination Date, the loss of Berkshire’s lease of the Reduction Premises.
(f) Simultaneously with Tenant’s execution and delivery of this Nineteenth Amendment, Tenant shall deliver responsibility to Landlord a good and sufficient check payable to Landlord in the amount of $100,000.00 (the “Staircase Removal Payment”) in consideration of Landlord’s agreement to remove the internal staircase connecting the 32nd Floor Premises and the Reduction Premises and install a building standard floor/ceiling deck (exclusive of tenant finishes) between the 32nd Floor Premises and Reduction Premises (the “Staircase Removal Work”). Landlord agrees that, upon delivery of the Staircase Removal Payment to Landlord, Tenant shall be relieved of the obligation under the Lease to perform the Staircase Removal Work and Tenant acknowledges and agrees that Landlord shall have no obligation to account to Tenant for the actual costs paid by Landlord for the Staircase Removal Work and Tenant will not be entitled to any refund of the Staircase Removal Payment if the costs incurred by Landlord to perform the Staircase Removal Work are less than the Staircase Removal Payment.
(g) Provided Tenant vacates and surrenders possession of the Reduction Premises in the condition required under this Nineteenth Amendment on or before the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ agrees to promptly commence and diligently pursue performance of the Staircase Removal Work in a good and workmanlike manner and in compliance with all applicable laws, codes and other governmental regulations. Tenant shall cooperate with Landlord and provide Landlord and its agents, employees and contractors with access to the 32nd Floor Premises at reasonable times as requested by Landlord and subject to reasonable advance coordination with Tenant to perform the Staircase Removal Work. Landlord and Tenant shall cooperate to schedule and perform the Staircase Removal Work at such times and in such manner that does not materially interfere with or disturb Tenant’s business operations in the Premises, provided, however, the foregoing shall not require Landlord to perform the Staircase Removal Work outside of normal business hours for the Building. Landlord shall install a temporary construction barrier or wall in a location of the 32nd Floor Premises reasonably acceptable to Tenant and Landlord shall remove the temporary construction barrier or wall within a reasonable period following completion of the Staircase Removal Work. Landlord shall not be responsible to provide any security in the 32nd Floor Premises during the performance of the Staircase Removal Work and Tenant shall be responsiblerepair, at Tenant’s sole cost and expense, to provide any such security desired by Tenant. Landlord shall use reasonable effortsin accordance with the terms of the Lease and this Amendment, without liability to Tenantincluding, to substantially complete the Staircase Removal Work within three (3) months following the 33rd Floor Surrender Date and Landlord’s receipt of all necessary permits and approvals for the Staircase Removal Work, subject to delays resulting from force majeure and delays caused by the acts, omissions or negligence of Tenant, including without limitation, Tenant’s items outlined in Section 1(b)(ii) herein. Landlord requires that such damage shall be cured by Tenant prior to the Reduction Premises Termination Date and any such failure to provide cure such damage or surrender the Reduction Premises in accordance with the terms of the Lease shall be an Event of Default under the Lease not subject to cure and Landlord with reasonable and timely access shall be entitled to the 32nd Floor Premises to perform the Staircase Removal Work. Tenant hereby releases Landlord from exercise any and all losses, costs, damages, actions, causes of actions, proceedings, liens, fines, penalties, expenses and liabilities (“Claims”) incurred in connection with rights thereunder or arising from the Staircase Removal Work, except to the extent resulting solely from the negligence or willful misconduct of Landlord or its agents, employees or contractorsat law.
Appears in 1 contract
Sources: Lease Agreement (Pfsweb Inc)
Surrender of Reduction Premises. (ai) On or before 11:59 p.m. (EST) on December After March 31, 2012 2014 (the “33rd Floor Surrender Reduction Premises Termination Date”), Tenant shall vacate any and surrender to Landlord possession all rights and obligations of the Reduction Premises (i) vacant, broom clean and free from all occupants, subtenants, or other persons or entities claiming rights of possession by, through or under Tenant, and all furniture, equipment, fixtures and other property obligations of Tenant and its employees and anyone claiming by, through or under Tenant, and (ii) with all signage of Tenant in or on the Reduction Premises, including in the elevator lobby thereof removed. In addition, Tenant shall disconnect any tel/data cabling or wiring serving the Reduction Premises and acknowledges and agrees that Landlord or a future tenant may remove or disconnect any such cabling or wiring in or running to the Reduction Premises. If Tenant fails to properly disconnect all such tel/data cabling or wiring serving the Reduction Premises, Landlord shall not be responsible for any disruptions or interruptions to Tenant’s telecommunications services to the Retained Premises (as hereinafter defined) resulting from any such removal or disconnection or other work in or to the Reduction Premises by Landlord or a future tenant. Landlord acknowledges and agrees thatLandlord, with respect to the Reduction Premises only and without limitation of the provisions of Section 2(f) of this Nineteenth Amendment, Tenant will not have any obligation to remove any other leasehold improvements in the Reduction Premises as of the Effective Date or to repair or restore any damage to the Reduction Premises resulting from Tenant’s removal of property or equipment from the Reduction Premises unless the damage is material and will not be eliminated by the proposed scope of Berkshire’s (as hereinafter defined) demolition work in the Reduction Premises.
(b) Effective on the earlier date to occur of (i) May 31, 2013, and (ii) the date Landlord substantially completes the Staircase Removal Work (as hereinafter defined) (the “Effective Reduction Date”) and provided and on the express condition that Tenant, on or before the 33rd Floor Surrender Date, vacates the Reduction Premises in the condition required under this Nineteenth Amendment and delivers the Termination Payment (as hereinafter defined) to Landlord in good and sufficient, immediately available funds, Tenant’s lease of the Reduction Premises shall automatically terminate and be of no further force and effect as if the Effective Reduction Date were the New Expiration Date set forth in the Lease for such Reduction Premises, and, from and after the Effective Reduction Date, Landlord and Tenant shall be released of their respective obligations under the Lease, as amended hereby, in connection with the Reduction Premises only, except those obligations of Landlord and Tenant set forth in the Lease which relate to the period of Tenant’s lease of the Reduction Premises prior to and including the Effective Reduction Date (or any later date to the extent Tenant continues to occupy the Reduction Premises following the Effective Reduction Date) and/or which specifically survive the expiration or earlier termination of the Lease, including, without limitation, indemnification Tenant’s right to possession of the Reduction Premises, shall be terminated; provided, however, that such termination shall under no circumstances or in any way constitute a waiver or termination of the obligations of Tenant which exist or have accrued up to and any year-end reconciliations including the Reduction Premises Termination Date and which may accrue or continue to accrue after the Reduction Premises Termination Date to the extent Tenant has failed to satisfy all of Operating Expense Excess and Ownership Taxes attributable its obligations with respect to the Reduction Premises.
(c) The Lease and all of the parties’ rights and obligations thereunder shall remain in full force and effect with respect to the 26th Floor Premises, the 31st Floor Premises and the 32nd Floor Premises (the “Retained Premises”) through the New Expiration Date (as defined in the Eighteenth Amendment) and from and after the Effective Reduction Date, (1) all references in the Lease to the Premises shall mean and refer to the Retained Premises, (2) the Premises shall be deemed to contain 62,932 rentable square feet, (3) Tenant’s Proportionate Share shall be amended to 3.62%; (4) the floor plan for the Reduction Premises attached to the Eighteenth Amendment as page 4 of 4 of the Exhibit A floor plans shall be deleted from the Lease; and (5) the number of Authorized Parking Permits available to Tenant under the Lease shall be reduced to thirty-one (31) parking permits for the remainder of the Term
(d) For purposes of this Nineteenth Amendment, the “Termination Payment” shall be an amount equal to the Base Rent and all Additional Rent, including without limitation, Operating Expense Excess and Ownership Taxes that would have been payable under the Lease for the Reduction Premises for the period commencing on the Effective Reduction Date through May 31, 2013. In order to make timely payment of the Termination Payment on the 33rd Floor Surrender Date, Tenant shall deliver to Landlord the amount of $831,137.50 as the estimated Termination Payment based upon an estimated Effective Reduction Date of January 1, 2013, provided, however, such payment shall be subject to reconciliation after the Additional Rent that would have been payable for the Reduction Premises during such period is determined in accordance with the Lease and, upon such determination, either Tenant shall promptly pay any underpayment of the Termination Payment to Landlord within thirty (30) days after receipt of the reconciliation statement from Landlord or Landlord shall promptly refund any overpayment of the Termination Payment to Tenant and such obligations shall survive the termination of the Lease as to the Reduction Premises. Tenant’s obligation to pay the Base Rent and all Additional Rent due under the Lease (including, without limitation, amounts due under the Lease for Operating Expense Excess and Ownership Taxes) as to the Reduction Premises through and including the Effective Reduction Date shall continue in effect, provided, however, Tenant shall, on the first day of the applicable month in which the monthly Base Rent and Additional Rent would otherwise be due following the 33rd Floor Surrender Date, receive a credit from the estimated Termination Payment paid by Tenant in an amount equal to the monthly Base Rent and estimated monthly Additional Rent (on a prorated basis for any partial month) that accrues and would otherwise be payable by Tenant under the Lease for the Reduction Premises during the period following the 33rd Floor Surrender Date through the Effective Reduction Date.
(e) Tenant acknowledges that Landlord is entering into a lease amendment with Berkshire Partners LLC (“Berkshire”) to lease the entire Reduction Premises to Berkshire commencing on the Effective Reduction Date and Berkshire has the right to terminate its lease of the Reduction Premises if such Reduction Premises is not delivered to Berkshire with the Staircase Removal Work (as hereinafter defined) substantially completed by an agreed upon outside delivery date (the “Berkshire Termination Date”). Tenant acknowledges that Landlord requires Tenant to surrender possession of the Reduction Premises to Landlord on the 33rd Floor Surrender Date in order for Landlord to access the Reduction Premises, perform such Staircase Removal Work and deliver possession of the Reduction Premises in the condition and within the time period required under the Berkshire lease amendment. In the event Tenant fails to vacate and surrender possession of the Reduction Premises to Landlord on or before the 33rd Floor Surrender Date in the condition required under this Nineteenth Amendment and notwithstanding that the Effective Reduction Date has not occurred, such failure shall, without any notice or cure periods applicable thereto, constitute a holding over in prior to the Reduction Premises Termination Date in accordance with the terms hereof, then the terms and conditions of Section13 (Holdover) of the Original Lease shall apply in all respects with respect to the Reduction Premises without in any way affecting the obligations of Tenant with respect to the Remaining Premises, including the obligation to pay rent in accordance with the terms herein.
(ii) Tenant acknowledges and agrees that, on or prior to the Reduction Premises Termination Date, Tenant shall surrender the Reduction Premises to Landlord in accordance with the terms of Section 21 (Surrender) of the Original Lease.
(iii) In furtherance of the foregoing, Landlord and Tenant shall be liable for all amounts due under the Lease on account of such holding over in the Reduction Premises together with all direct and indirect damages suffered by Landlord on account of Tenant’s holding over, including without limitation, if Tenant’s holding over delays Landlord’s substantial completion of the Staircase Removal Work beyond the Berkshire Termination Date, the loss of Berkshire’s lease perform a walkthroughs of the Reduction Premises.
(f) Simultaneously with Tenant’s execution and delivery , as contemplated by the Lease, for purposes of this Nineteenth Amendment, Tenant shall deliver to Landlord a good and sufficient check payable to Landlord in the amount of $100,000.00 (the “Staircase Removal Payment”) in consideration of Landlord’s agreement to remove the internal staircase connecting the 32nd Floor Premises and inspecting the Reduction Premises and install a building standard floor/ceiling deck (exclusive of tenant finishes) between the 32nd Floor Premises and Reduction Premises (the “Staircase Removal Work”). Landlord agrees that, upon delivery of the Staircase Removal Payment to Landlord, Tenant shall be relieved of the obligation under the Lease to perform the Staircase Removal Work and Tenant acknowledges and agrees that Landlord shall have no obligation to account to Tenant for the actual costs paid by Landlord for the Staircase Removal Work and Tenant will not be entitled to any refund of the Staircase Removal Payment if the costs incurred by Landlord to perform the Staircase Removal Work damages which are less than the Staircase Removal Payment.
(g) Provided Tenant vacates and surrenders possession of the Reduction Premises in the condition required under this Nineteenth Amendment on or before the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ agrees to promptly commence and diligently pursue performance of the Staircase Removal Work in a good and workmanlike manner and in compliance with all applicable laws, codes and other governmental regulations. Tenant shall cooperate with Landlord and provide Landlord and its agents, employees and contractors with access to the 32nd Floor Premises at reasonable times as requested by Landlord and subject to reasonable advance coordination with Tenant to perform the Staircase Removal Work. Landlord and Tenant shall cooperate to schedule and perform the Staircase Removal Work at such times and in such manner that does not materially interfere with or disturb Tenant’s business operations in the Premises, provided, however, the foregoing shall not require Landlord responsibility to perform the Staircase Removal Work outside of normal business hours for the Building. Landlord shall install a temporary construction barrier or wall in a location of the 32nd Floor Premises reasonably acceptable to Tenant and Landlord shall remove the temporary construction barrier or wall within a reasonable period following completion of the Staircase Removal Work. Landlord shall not be responsible to provide any security in the 32nd Floor Premises during the performance of the Staircase Removal Work and Tenant shall be responsiblerepair, at Tenant’s sole cost and expense, in accordance with the terms of the Lease and this Amendment. Landlord requires that such damage shall be cured by Tenant prior to provide the Reduction Premises Termination Date and any such security desired by Tenant. failure to cure such damage or surrender the Reduction Premises in accordance with the terms of the Lease shall be an Event of Default under the Lease not subject to cure and Landlord shall use reasonable efforts, without liability be entitled to Tenant, to substantially complete the Staircase Removal Work within three (3) months following the 33rd Floor Surrender Date and Landlord’s receipt of all necessary permits and approvals for the Staircase Removal Work, subject to delays resulting from force majeure and delays caused by the acts, omissions or negligence of Tenant, including without limitation, Tenant’s failure to provide Landlord with reasonable and timely access to the 32nd Floor Premises to perform the Staircase Removal Work. Tenant hereby releases Landlord from exercise any and all losses, costs, damages, actions, causes of actions, proceedings, liens, fines, penalties, expenses and liabilities (“Claims”) incurred in connection with rights thereunder or arising from the Staircase Removal Work, except to the extent resulting solely from the negligence or willful misconduct of Landlord or its agents, employees or contractorsat law.
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Sources: Lease (R F Industries LTD)