AGREEMENT OF LEASE
BRIARCLIFFE COLLEGE, INC.
and
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ INC.
92,438+/- Square Feet
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
TABLE OF CONTENTS
OMITTED
AGREEMENT OF LEASE
AGREEMENT, made as of this 20th day of December, 1996, by and between
Briarcliffe College, Inc., having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, hereinafter referred to as "Landlord" and
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Inc. with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as "Tenant."
W I T N E S S E T H :
Landlord and Tenant hereby covenant and agree as follows:
PREMISES
1. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
the space substantially as shown on the rental plan initialed by the parties and
made part hereof as Exhibit 1 in the building known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, (the "Building") hereinafter referred to as the
"demised premises." A plan of the Building is annexed hereto as Exhibit 2.
Landlord also grants to Tenant, subject to the terms and conditions hereof, a
non-exclusive right to use the common areas of the Building (including the
loading dock) and land surrounding the Building within which the demised
premises are located, except as modified herein.
TERM
2. The term of this Lease shall commence on "Term Commencement Date" as
defined herein, and shall terminate one hundred twenty three (123) full calendar
months thereafter, hereinafter referred to as the "Expiration Date" unless
earlier terminated as herein provided. The foregoing notwithstanding, if the
Term Commencement Date occurs on other than the first day of a calendar month,
then the Term Commencement Date shall be (i) the number of days in the partial
month 'in which the Term Commencement Date occurs, plus (ii) one hundred twenty
three (123) full calendar months ("Initial Term").
If on the foregoing date specified for the Term Commencement Date the
Landlord shall be unable to deliver possession of the premises to Tenant, then
the Term Commencement Date shall be postponed until the date on which the
demised premises shall be "delivered" and the term of this Lease (hereinafter
referred to as the "Demised Term") shall be extended so that the Expiration Date
shall be one hundred twenty three (123) months after the last day of the month
in which the Term Commencement Date occurs. Tenant has had an opportunity to
examine the Premises and acknowledges that Landlord shall not make any
alterations or improvements thereto except as provided herein.
a. Extended Term. Subject to the terms of Article 47 hereof,
Landlord hereby grants to Tenant the right and option to extend the Term of this
Lease for one (1) period of thirty-six (36) full calendar months (the "Extended
Term"). If Tenant desires to exercise its option to extend the Lease Term,
Tenant shall, at least two hundred seventy (270) calendar days prior to the last
day of the Initial Term, whichever is applicable, give Landlord a written notice
of its exercise of said option. Landlord may within thirty (30) days of receipt
of Tenant's notice to exercise such option for an Extended Term, may give notice
that Landlord desires to use the demised premises for its own operations as a
college (and not to lease to others), in which event the Tenant's right to
extend the term shall be void. The term of this Lease shall expire without any
extension or renewal thereof. If Landlord fails to give such notice within said
thirty (30) day period Tenant's exercise shall be effective upon the expiration
of said thirty (30) day period without such notice being given by Landlord. The
Extended Term shall be on all of the terms and conditions contained herein,
except that the Base Rent shall be as set forth in Paragraph 47 herein.
b. Commencement Date. The Initial Term of this Lease shall
commence sixty (60) days (but no earlier than March 1, 1997) after Tenant's
receipt of written notice that "Substantial Completion" (as defined in Paragraph
2(c)(i) and (ii)) of the Landlord's Work in the demised premises has occurred.
The date on which the Initial Term commences shall be known as the "Term
Commencement Date". The Term Commencement Date and the regular expiration date
of the Initial Term as provided in Paragraph 2 above shall be confirmed by
Landlord and Tenant in writing after the occurrence of the Commencement Date.
Said written confirmation shall be appended to the Lease as Exhibit 3. In the
event Landlord has not given notice of substantial completion on or before
February 15, 1997, Tenant may, provided it has not already taken possession of
the Premises, by giving written notice to Landlord within thirty (30) days of
February 15, 1997, elect to cancel this Lease and any sums paid by Tenant to
Landlord shall be returned to Tenant within fifteen (15) days and thereupon
neither party hereto shall have any further liability to the other. The
provisions of paragraph 37(a) shall not operate to extend or enlarge the date of
February 15, 1997.
c. Substantial Completion. Landlord shall use its best efforts
to substantially complete the Landlord's Work on or before January 31, 1997. For
purposes of the Term Commencement notice, the Landlord's Work shall be deemed
"substantially complete" when:
i. Landlord's Construction Manager shall specify in
writing that the following items shown on Exhibit 4 have been substantially
completed in conformity with the Tenant-approved plans and specifications
therefor annexed hereto as Exhibit 4 (Landlord's Work) and in conformity with
all applicable rules, statutes and codes; (i) Item 1 and 2, (ii) south elevator
from Item 4;
ii. all utilities and south elevator service necessary
for the operation and use of the demised premises have been installed, connected
and are available for use; and
iii. the balance of the items on Exhibit 4 shall be
substantially completed by January 31, 1997.
iv. Upon substantial completion of Subparagraphs (i)
and (ii), Landlord may send notice of substantial completion for purposes of
starting the sixty day period prior to the Term Commencement Date.
d. Installations by Tenant. Upon execution of this Lease, Tenant
may enter upon the demised premises for measurements, cabling, installation of
fixtures and other items of construction not being done by Landlord and to
inspect the progress and quality of Landlord's work. Such entry shall be upon
all the terms and conditions hereof except the payment of rent and additional
rent and shall not be deemed taking of possession such that the term shall
commence as provided in (b) hereof. All insurance required to be obtained by
Tenant and its subcontractors or agents herein shall be obtained and evidence
thereof shall be delivered to Landlord prior to such entry and any work
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performed by Tenant shall not materially interfere with the progress of
Landlord's work or other work of Landlord either in the demised premises or
elsewhere in the Building.
RENT
3. a. The Initial Basic Annual Rental rate is One Million Two
Hundred One Thousand Six Hundred Ninety Four Dollars ($1,201,694.00) subject to
Article 11 of the Lease, which Tenant agrees to pay in equal monthly
installments of $100,141.17 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. The rent is calculated on the basis of $13 per square foot of
rentable space which for purposes of this Lease the parties agree shall be
deemed to be Ninety Two Thousand Four Hundred Thirty Eight Dollars (92,438)
square feet regardless of the actual measurement of the usable square footage of
the demised premises or the Building.
b. If the Tenant shall fail to pay any installment of
Initial Basic Annual Rent, adjusted basic annual rent, fixed rent, or any amount
of additional rent, on or before the tenth (10th) day of the month during which
such payment or installment is due, then the Tenant shall pay to the Landlord,
as additional rent, together with such past due rent, a sum equal to Four ($.04)
Cents for each dollar so overdue in order to defray Landlord's administrative
and other costs in connection with such late payment. The imposition or payment
of such late charge shall not constitute a waiver of and shall be without
prejudice and shall be in addition to any other right or remedy which the
Landlord has under this Lease or at law.
c. Free Rent Period. Notwithstanding anything in this
Lease to the contrary, Initial Basic Annual Rent (but not additional rent) shall
not accrue and Tenant shall not be liable for the payment of any Initial Basic
Annual Rent which would otherwise become due and payable during the period
beginning with the Term Commencement Date and continuing for the first three
full calendar months of the Initial Term (the "Free Rent Period"). In the event
the Initial Term commences on a day other than the first day of the calendar
month, then the amount due from Tenant to Landlord as the monthly installment of
Initial Basic Annual Rent for the fourth full calendar month of the Initial Term
shall be the regular monthly installment of Initial Basic Annual Rent plus the
appropriate pro rata amount of a monthly installment of Initial Basic Annual
Rent attributable to the partial month in which the Term Commencement Date
occurred less credit for any sums of Initial Basic Annual Rent paid upon
execution of this Lease as provided in paragraph 3(a) hereof.
USE
4. a. The Tenant shall use and occupy the demised premises
only for general, executive and administrative offices including, but not
limited to trading in stock securities, trading and investment banking and
financial brokerage activities and for no other purpose. Landlord agrees that it
shall not, during the Term hereof (unless this Lease is terminated prior to the
Term provided in paragraph 2 hereof) and during the Extended Term, if any, lease
any other space in the Building to a stock or financial brokerage, or investment
banking firm, trading, or such other business whose operations is then part of
the business operations of Tenant, without the written consent of Tenant.
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b. Landlord represents that attached hereto as Exhibit 5
is a resolution of the Town Board of the Town of Oyster Bay changing the zoning
district for the property upon which the Building is located and that the
intended use of the Tenant is not in violation thereof.
WORKING HOURS
5. Landlord, during the hours of 7:00 a.m. to 10:00 p.m. on
weekdays (Fridays till 6 p.m.) and on Saturdays from 8:00 a.m. to 1:00 p.m.
(June 16 through September 14) and 8:00 a.m. to 5:00 p.m. (September 15 through
June 15) ("Working Hours"), excluding legal holidays when the stock exchange is
closed, shall furnish the demised premises with heat, ventilation and air
conditioning in the respective seasons (pursuant to the specifications annexed
hereto as Exhibit 6) and provide the demised premises with electricity. Tenant
shall have access to the demised premises and electricity at all times
(twenty-four (24) hours per day, seven (7) days per week) and use of the common
areas of the building for ingress and egress through the west entrance thereof,
and land on which the demised premises are located. After hours ingress and
egress shall be through the west entrance of the Building. After hours use of
HVAC system shall be on advance notice (written if more than 24 hours; oral
notice to Landlord if on less than 24 hours notice) and shall provide for a
charge to Tenant of $150.00 per hour for each hour of after hours use of the
HVAC. Electric service for light and outlets shall be at no additional charge
during after hours operations. Landlord shall not be obligated to furnish
elevator service after hours.
LANDLORD'S REPAIRS AND MAINTENANCE
6. Landlord, at its expense, will make all repairs to and
provide the maintenance for all common areas and public areas of the Building
and facilities, except such repairs (whether structural or otherwise) and
maintenance as may be necessitated by the negligence, improper care or use of
such premises and facilities by Tenant, its agents, employees, licensees or
invitees, which will be made by Tenant at Tenant's expense as provided in
Article 11 hereof. Landlord shall repair and maintain all mechanical systems
within the Building including elevators, fire alarms, fire sprinklers, air
conditioning (fan, coil units), plumbing (except for plumbing within the demised
premises) and heat and any structural repairs, including but not limited to the
roof, except those required to be repaired by Tenant hereunder. Notwithstanding
the foregoing, Tenant shall be responsible for the repair of the fire alarm
system, controls and sensors within the demised premises and for any alarm or
sprinkler system installed within the demised premises by Tenant. Landlord shall
maintain landscaping and parking lot, including snow removal from walks and
parking areas.
WATER SUPPLY
7. Landlord, at its expense, shall furnish hot and cold or
tempered water for lavatory, pantry and cleaning purposes and chilled water for
drinking purposes.
PARKING FIELD
8. Tenant at no charge shall have the right to use the parking
area for the parking of automobiles of the Tenant, its employees, agents and any
subtenant authorized by Landlord as provided herein and invitees, in the parking
area reserved for the Building (hereinafter sometimes referred to as "Building
Parking Area") subject to the reasonable 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 the Building Parking Area, nor
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use in excess of Tenant's allotted number of spaces therein. Tenant is hereby
allotted a total of 900 parking spaces on a non-exclusive basis with the other
tenants and occupants of the Building inclusive of thirty-five (35) reserved
spaces all as shown on the sketch annexed hereto as Exhibit 7. Landlord shall
not be responsible for maintaining the availability of the reserved spaces or
removing vehicles improperly parked therein.
DIRECTORY AND SIGNAGE
9. Landlord may furnish in the lobby of the Building a
directory which will contain listing(s) requested by the Tenant not to exceed
one (1) listing(s). There will be a charge for the replacement of listing(s).
Landlord shall permit Tenant to install at Tenant's sole cost and expense a
monument sign near the front of the building and small directional signs
indicating the primary entrance to the demised premises provided such monument
sign is not larger than Landlord's sign for the Building and provided said signs
are installed as shown on Exhibit 8. In the event such signs are not shown on
Exhibit 8, such signs shall be subject to the Landlord's approval who shall
approve or reject the same in its sole and absolute discretion as to whether the
proposed signage is consistent with the signage of the other Tenants or
occupants of the building. Tenant shall be responsible for the cost and expense
of and shall obtain any sign permits required for such signage. Landlord shall
cooperate and execute any applications therefore. Tenant may install signage in
each lobby entrance of the Building indicating the location of the demised
premises and any handicapped entrances therefore.
ADDITIONAL RENT
Taxes
10. a. If the Taxes which would be assessable to the Landlord
in any escalation year (after taking into consideration any reductions or
abatements granted to the Landlord by the taxing authorities by reason of
vacancies or other hardships or provisions of law) shall be increased above the
Tax Base, then the Tenant shall pay to the Landlord as additional rent for such
escalation year a sum equal to 40.79% of such increases in Taxes. Tax Base shall
be total taxes due for the tax year as follows (without regard to any
abatement): General, 1997; School 1996/97. If Landlord shall commence any
proceedings to reduce the assessment for the land and building, Tenant shall
cooperate with Landlord in such proceedings. In the event the Landlord does not
commence such proceedings, Tenant may commence such proceedings at its own cost
and expense, in its own name, or if required, in Landlord's name. Landlord shall
cooperate with Tenant in the prosecution of any such proceedings. Any refund
derived from such proceedings shall be distributed, after the deduction of all
costs, expenses and attorneys fees (the "Net Recovery") between Landlord and
Tenant in proportion to the taxes actually paid for the period covered for such
refund so that Tenant shall receive 40.79% percent of any such Net Recovery
attributable to taxes paid as additional rent in excess of the taxes assessed
for the base year and the Landlord shall receive the balance of the Net Recovery
including any refund attributable to taxes paid as part of Basic Annual Rent.
In the event that the Landlord obtains any tax
exemption for all or a portion of the Premises occupied by Landlord as a
non-profit educational institution or other tax exempt entity, Tenant shall pay
as additional rent, the increase as defined herein, the proportion of taxes
equal to the rentable square feet Tenant occupies pursuant to this Lease
compared to the rentable square footage of the land and Building which is not
eligible for such exemption.
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As an example of the foregoing, if Landlord receives
a tax exemption as a non-profit corporation but such exemption only applies to
the area of the Building Landlord or such other tax exempt entity occupies
(currently the first floor of the Building) and Tenant occupies 80% of the
second floor of the Building, Tenant shall pay 80% of the real estate taxes in
excess of the Tax Base assessed against the Building and the land. In the event
a tax certiorari proceeding results in a refund of taxes paid, Tenant shall
receive the proportion of the refund attributable to the percentage of taxes it
actually paid for such period or periods (net of the cost, expenses and legal
fees of such proceeding).
Rent Adjustment
b. Annually during the Term of the Lease commencing on
the first anniversary of the Term Commencement Date, Basic Annual Rent shall be
increased by two and one-half (2.5%) percent of the Basic Annual Rent in effect
during the preceding year of the Lease.
c. In the event that the number of Rentable Square Feet
in the Premises shall change during the Initial Term, whether through the
exercise of rights to lease First Offer Space or otherwise by mutual agreement
of the parties hereto, then the basic annual rents set forth above shall be
recalculated by multiplying the per-square-foot sum set forth above for the
period in question (adjusted for any adjustment in Basic Annual Rent) by the
revised number of Rentable Square Feet in the Premises, and this Lease shall be
deemed amended to reflect the recalculation.
Electricity
e. The "basic cost" (subject to the escalations as set
forth herein) of electric power required in conjunction with the common areas,
central heating, ventilating and air-conditioning systems shall be the
Landlord's obligation. The Tenant agrees to provide and pay in the amount of
$25,035.30 per month for all electricity supplied to the demised premises at the
rate of $3.25 per rentable square foot of the demised premises. Said sum, as the
same may be adjusted as hereinafter provided, shall be paid on the first of each
month of the Term hereof simultaneously with the rent and shall be deemed
additional rent.
The Tenant shall not install nor caused to be
installed, maintain nor operate in the demised premises any electrical equipment
or fixtures whose total demand load shall exceed authorized load limitations
without making a written request for the Landlord's prior written consent
thereto. The load limitations may be obtained from the Landlord at any time upon
reasonable request therefor. Upon receipt of the Tenant's request to exceed the
authorized load limitation, the Landlord shall retain an electrical or
professional engineer at the Tenant's expense, to inspect the premises and the
proposed equipment and/or fixtures and calculate the demand load. The findings
and calculations shall thereupon be deemed conclusive between the parties except
that Tenant, within thirty (30) days of Landlord's determination that such
installation shall result in an additional electric charge, retain its own
electrical consultant to review Landlord's determination. In the event the
Tenant's consultant does not agree with Landlord's determination, then a third
consultant shall be retained by agreement between Landlord's and Tenant's
consultants (the cost of which shall be borne equally between Landlord and
Tenant) and the determination of the third consultant shall be binding on the
parties hereto. Tenant shall pay to Landlord during the resolution of the
dispute the increased cost of electric requested by Landlord until the
resolution thereof. In the event the resolution results in a lower increase of
electric to Tenant, Tenant shall be given a credit for any overage against the
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next monthly installment of electric. For purposes of this paragraph, the
authorized load limitation shall be 8 ▇▇▇▇▇ per square foot of usable space and
Landlord represents that the premises have sufficient electric service for the
authorized load limitation.
The first 12 months of the operation of the building
shall be deemed the "Base Year". The average utility rate of electricity for the
Building for the Base Year of electric power shall be deemed the "basic cost".
The Tenant agrees to be responsible for and to pay for, as "additional rent" any
increase in the basic cost of electric power after the "Base Year", as
hereinafter set forth. Tenant shall pay an increase equal to the percentage
increase of electric utility rate over the Basic Cost in the Base Year times
$3.25 per rentable square foot. Such increase shall be added to the initial
charge of $3.25 per rentable square foot and paid as additional rent.
The "additional rent" due to the Landlord shall be
payable within fifteen (15) days upon presentation of Landlord's billing for
same. If the last period of the Lease term does not include a full Lease Year,
then the "additional rent" due, if any, for such period shall be prorated to the
said expiration date and shall be computed upon electric bills issued to the
Landlord up to and including the next to the last month of the term and
projected for the last month of the term. Payment of the final electricity
charge, if any, shall be made simultaneously with the payment of the basic rent
for the last month of the term. Landlord shall furnish Tenant with copies of
bills and other evidence demonstrating the increase in the electric rate upon
request of Tenant.
Definitions
f. As used in and for the purposes of this Article 10,
the following definitions shall apply:
(1) 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 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.
Procedure for Invoicing and Payment of Additional Rent
g. (1) Landlord shall render to Tenant a statement
containing a 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. In the event the Mortgage on the Land and Building requires Landlord to
escrow real estate tax payments, 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. Landlord, upon written request
by Tenant, shall furnish evidence of real estate tax amounts and payments
thereof. Landlord, upon Tenant's request, shall reconcile, on an annual basis,
the amounts paid on behalf of such additional rent and if there is a surplus in
excess of the funds actually expended by Landlord for such items, Landlord shall
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state the amount of such surplus, and, at Landlord's option, refund the surplus,
or allow a credit to Tenant against the next installment of rent equal to the
amount of such surplus. If the Landlord does not have to make real estate tax
escrow payments to its Mortgagee, Landlord shall promptly render a ▇▇▇▇ to
Tenant upon receipt of any applicable tax ▇▇▇▇ for any taxes increased due
pursuant to paragraph 10(a) hereof and Tenant shall pay to Landlord, not later
than twenty (20) days prior to the expiration of the grace period for the
payment of said tax, the amount due.
(2) The obligations of Landlord and
Tenant under the provisions of this Article with respect to any additional rent
for any Escalation Year shall survive the expiration or any sooner termination
of the Demised Term.
(3) In the event that Tenant challenges
the amount of Additional Rent payable pursuant to this Article, 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.
TENANT'S REPAIRS
11. Tenant shall take good care of the demised premises and,
subject to the provisions of Article 6 hereof, shall make as and when needed, or
as a result of misuse or neglect by Tenant or Tenant's servants, employees,
agents, or licensees, or as a result of the moving of Tenant's fixtures,
furniture, or equipment, all non-structural repairs in and about the demised
premises necessary to preserve them in good order and condition, which repairs
shall be in quality and class equal to the original work. Tenant shall be
responsible for any structural repairs to the Building or repairs to the common
areas, if any, if such repair is necessitated by the act or omission of Tenant,
its agents, employees or invitees. Landlord shall repair, replace and maintain
the glass and windows in the demised premises. Tenant shall be responsible for
the repair and maintenance of the bathrooms within the demised premises. Except
as provided in Article 25 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, and no liability upon Landlord for failure
of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building or of the demised premises, or
in or to the fixtures, appurtenances or equipment thereof. Any repairs which
Tenant may be required to carry out pursuant to the terms hereof may, at
Landlord's option, if not made by Tenant within five (5) days after notice
thereof or in the event of an emergency, 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 ▇▇▇▇ or statement therefor.
FLOOR LOADING
12. The emplacement of any equipment which will impose an
evenly distributed floor load in excess of 50 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.
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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, at the end of the
Term hereof, 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 (20) days prior to the date fixed as the termination
of this Lease, elects to have them removed by Tenant, (excluding alterations
which have been installed with the prior consent of Landlord which Tenant shall
not be obligated to remove) 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 or other alterations
or installations installed for and paid for by Tenant, 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
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. 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 except to the extent
reasonably necessary by Tenant for its operation. Tenant shall be able to use
such shafts, stacks, electric and phone closets and other areas of the Building
designated for installations of utilities and services for the Building adjacent
to and under the demised premises including but not limited to the areas
referred to for the installation of the equipment referred to in a letter dated
December 19, 1996 (Revised) from Cameron Engineering, P.C. to Tenant, [initialed
by the parties hereto], provided any installations of Tenant within such areas
shall be identified as Tenant's and plans for the same shall be furnished to
Landlord immediately upon installation thereof. Notwithstanding the foregoing,
Tenant shall enjoy full right of access to the demised premises through the
public entrances, public corridors and public areas and elevators within the
Building.
ALTERATIONS
14. a. Tenant shall make no alterations, decorations,
installations, additions or improvements in or to the demised premises which
affect the structure, roof or exterior of the Building, the mechanical, plumbing
and electrical systems of the Building or work which requires a Certificate of
Completion/Compliance or a new Certificate of Occupancy without Landlord's prior
written consent (which consent shall not be unreasonably withheld or delayed and
shall be deemed granted unless denied in writing within thirty (30) days after
written request for consent is given to Landlord specifying the work to be done,
including all plans and specifications theref or, which writing shall specify
the reasons for the denial), and then only by contractors or mechanics
reasonably approved by Landlord and at such times and in such manner as Landlord
may from time to time designate. Landlord shall approve or disapprove of such
contractor or mechanics within ten (10) days of written request therefor, and in
the absence of any denial, it shall be deemed Landlord has approved such
contractor or mechanic. 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. Notwithstanding the foregoing, Tenant
shall not be required to obtain Landlord's consent for such alterations solely
9
within the demised premises of a non-structural nature which do not effect the
Building's systems or require a Certificate of Completion or Compliance or the
issuance of a new Certificate of Occupancy if the reasonable estimate for the
cost of such alterations does not exceed $25,000.00 (and is not part of a plan
to construct in excess of $25,000.00 of alterations in separate stages over a
six (6) month period). Tenant shall notify Landlord- before commencing any such
work as to the plan and specifications of such alterations and shall furnish
Landlord upon completion of such alteration any changes to the plan to reflect
the "as-built" condition thereof. All such work shall still require the Tenant
to comply with the other requirements of this Article 14.
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.
(2) Reasonable rules and regulations of
Landlord as to the time and manner of such work, entrances to be used by trades
people and contractors, etc.
(3) Plans and specifications prepared by
and at the expense of Tenant theretofore submitted to Landlord for its prior
written approval as provided in paragraph 14(a) hereof; no installations or work
shall be undertaken, started or begun by Tenant, its agents, servants or
employees, until Landlord, if required, has approved such plans and
specifications; and no amendments or material additions to such plans and
specifications shall be made without the prior written consent of Landlord, and
shall be subject to reimbursement for Landlord's reasonable out-of-pocket
expenses for architecture or engineering services, excluding any such charge for
initial Tenant's Work shown on Exhibit 7.
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 reasonably require not to
exceed $1 million/$2 million for liability and $500,000.00 for property damage.
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 work, labor and services performed and
materials furnished in connection with such work after payment therefore, signed
by all contractors and sub-contractors 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 thirty (30) days after notice of such liens is given
to Tenant, at Tenant's expense, by filing the bond required by law or by
satisfaction of such lien.
c. Anything contained herein to the contrary
notwithstanding, Tenant shall make no alterations, decorations, installations,
10
additions or improvements in or to the demised premises which shall in any way
materially and adversely affect utility services or plumbing and electrical
lines, except as part of Tenant's initial work. Moreover, Landlord shall not be
deemed to have acted unreasonably for withholding consent to any alterations,
decorations, installations, additions or improvements which: (i) materially or
adversely 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 readaption will be made prior to the Expiration Date without expense to
Landlord.
d. Notwithstanding the foregoing, Tenant shall
be permitted to complete the improvements and alterations substantially shown on
the plans and specifications annexed hereto as Exhibit 8 within the demised
premises ("Tenant's Work"). Prior to the commencement of Tenant's Work, Tenant
shall comply with all the provisions of this paragraph 14 and in addition
thereto, shall furnish Landlord with a performance and payment bond issued by a
surety licensed to do business in New York State reasonably acceptable to
Landlord, in an amount equal to or greater than the estimated cost to complete
the repairs (said estimate having been made and certified as accurate by
Tenant's architect) naming Landlord as the beneficiary thereof, insuring the
completion of Tenant's work and the payment of all contractors, subcontractors,
materialmen, mechanics, laborers, suppliers, etc. In lieu of such bond, the
following principals of Tenant shall individually, jointly and severally
personally guaranty the payment and completion of such work: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
e. Tenant shall have the right to use elevators
within the Building and loading docks at reasonable specified hours at no charge
to Tenant during the performance of Tenant's work and Tenant's move in provided
that in the case of any passenger elevator, Tenant shall install pads and
protect the interior of the cab.
f. Landlord, in executing any applications for
permits or municipal approvals requested by Tenant, shall sign such applications
within ten (10) days of a written request with such application.
REQUIREMENTS OF LAW
15. a. Tenant, at Tenant's sole cost and expense, shall comply
with all laws, orders and regulations of Federal, State, County and Municipal
authorities, and with all directions, pursuant to law, of all public officers,
which shall impose any duty upon Landlord or Tenant arising out of the manner of
use, occupancy or possession by Tenant of the demised premises. Tenant shall not
be required to make any alterations in order so to comply unless such
alterations shall be necessitated or occasioned, in whole or in part, by the
acts, omissions or negligence of Tenant or any person claiming through or under
Tenant or any of their servants, employees, contractors, agents, visitors or
licensees, or by the manner of use or occupancy of the demised premises by
Tenant (as opposed to the permitted use of the Building for office purposes and
the use clause hereof), or any such person. Such requirements include, but are
not limited to, the handling of hazardous materials.
b. Landlord represents that there are no
violations issued by any municipal, governmental or regulatory agency against
the Building.
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Fire Insurance
c. Tenant shall not do anything or permit
anything to be done, in or about the demised premises which shall (i) invalidate
or be in conflict with the provisions of any standard New York fire or other
insurance policies covering the Building or any property located therein, or
(ii) result in a refusal by fire insurance companies of good standing to insure
the Building or any such property in amounts reasonably satisfactory to
Landlord, or (iii) subject Landlord to any liability or responsibility for
injury to any person or property by reason of any business operation being
conducted in the demised premises, or (iv) cause any increase in the fire
insurance rates applicable to the Building 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 arising out of the manner of use by Tenant of
the demised premises.
d. 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 15 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 than applicable to the
Building or property located therein.
e. Landlord acknowledges that it has no
knowledge that the use of the demised premises for general offices as intended
by Tenant (excluding any equipment intended to be installed by Tenant or the
number of persons occupying the demised premises) will result in any increased
insurance costs, nor will Landlord seek reimbursement for such increased cost
from Tenant on such grounds.
f. Landlord shall comply with all statutes,
rules and regulations concerning the ownership and maintenance of the Building
providing that the cost of any compliance or violation thereof arising out of
the manner of use by Tenant of the demised premises shall be borne by Tenant.
Landlord represents that to the best of its knowledge there are no building
violations issued against the Building as of the date hereof.
INSURANCE
16. Tenant shall, at Tenant's own expense, provide for the
benefit of the Landlord, comprehensive general liability insurance with minimum
limits of $2,000,000/$5,000,000 as to personal injuries or death and $500,000 as
to property damage covering occurrences in and about the demised premises and
areas adjacent thereto. Tenant may provide for umbrella or excess coverage so
12
that the total insurance obtained satisfies the foregoing coverage requirements.
A current certificate and all renewal policies or certificates evidencing such
insurance, together with proper proof of payment of all premiums payable thereon
shall be deposited with the Landlord, it being understood that each such renewal
policy or certificate shall be so deposited at least thirty (30) days prior to
the expiration of the insurance which it is to replace or renew and in default
thereof, Landlord may obtain such insurance and collect the premium thereon as
additional rent. The policy or policies provided for in this Paragraph may be
for the benefit of both Landlord and Tenant and shall name the Landlord as an
additional insured.
CLEANING SERVICES
17. Cleaning of the demised premises shall be the
responsibility of the Tenant. Tenant shall use and pay for such janitorial or
cleaning company as Landlord shall reasonably approve and shall cooperate with
Landlord in using such company. Tenant may use its own employees for such work.
END OF TERM
18. a. Upon the expiration or other termination of the term of
this Lease, 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 term of this Lease. If the last day of
the term of this Lease or any renewal hereof falls on Sunday or a legal holiday,
this Lease shall expire on the business day immediately preceding.
b. Tenant acknowledges that possession of the
demised premises must be surrendered to Landlord at the expiration or sooner
termination of the term of this Lease. The parties recognize 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 term of this Lease, time
being of the essence with respect thereto, then, in lieu of 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 term of this Lease , a sum equal to 150% 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 term of
this Lease. Landlord shall be entitled to pursue any action necessary to recover
13
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 term of this Lease.
QUIET ENJOYMENT
19. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the demised premises during the term of this
Lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
Lease including, but not limited to, Article 24.
SIGNS
20. Except as provided in Article 9 hereof, no signs may be
put on or in any window nor on the exterior of the Building. Any signs or
lettering in the public corridors or on the doors must be submitted to Landlord
for approval before installation, which approval shall not be unreasonably
withheld provided said signs conform to the building standard signage.
RULES AND REGULATIONS
21. Tenant and Tenant's agents, employees, visitors, and
licensees shall faithfully comply with the Rules and Regulations now in effect,
if any, 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 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 provided any rule or regulation shall not materially affect Tenant's
use and occupancy of the Premises. 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 or occupant in the
Building. Rules and Regulations shall be uniformly applied where possible and
shall be effective on not less than thirty (30) days written notice to Tenant.
ASSIGNMENT AND SUBLETTING
22. 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 shall not be
unreasonably withheld and which shall be given or denied within twenty-one (21)
days of written request therefor. If the Landlord denies the request, the denial
shall state the reasons therefor.
b. The Landlord will be deemed to have
reasonably withheld its consent if the Landlord shall find that the proposed
assignee or sublessee is not (i) financially responsible; (ii) of good
14
reputation, or (iii) engaged in an authorized use as set forth in article 4a
hereof, and that the proposed assignment or sublease would not be for any school
or college, and further provided that such assignee shall execute and deliver to
Landlord an Assumption Agreement wherein it agrees to perform all of the
obligations of the Tenant under this Lease in a form appropriate for recording.
The consent by Landlord to an assignment or sublease shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further or subsequent assignment or subleasing. The time in
which Landlord shall act on such request shall run from the receipt by Landlord
of the proposed lease assignment, the proposed Assumption Agreement or sublease,
the two (2) prior years' (if available) financial statements for the proposed
assignee or sublessee and a bank reference together with the name and address of
the proposed assignee's or sublessee's then current landlord. In the event the
Landlord fails to consent to such assignment or sublease and the Tenant
hereunder disputes such refusal, Tenant's sole remedy shall be to commence an
action to enforce the Landlord's obligation to consent hereunder. In no event
will the Landlord be responsible to the Tenant for any money damages as a result
of its failure to consent to any such proposed assignment or sublease except if
a court ultimately finds that Landlord unreasonably withheld its consent to a
sublease or assignment as provided herein, Landlord shall reimburse Tenant for
its reasonable attorney's fees and expenses in connection with such litigation.
Notwithstanding anything contained herein to the contrary, Tenant may assign
this Lease or sublet all or any portion of the demised premises to an affiliate,
subsidiary or to a company acquiring all or substantially all of the common
stock of the Tenant or of its assets, provided in the case of an assignment,
such assignee assumes the obligations hereof. Tenant, without Landlord's
consent, may also grant a license to independent contractor broker-traders
associated with Tenant for, in each instance, up to 1% of the demised premises.
Upon any such assignment pursuant to Article 22, Tenant shall remain liable for
all the terms, covenants and conditions hereof.
LANDLORD'S ACCESS TO PREMISES
23. a. Upon reasonable prior notice to Tenant, except in cases
of emergency, 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 reasonably necessary and Landlord shall be allowed to take all material
into and upon and/or through said demised premises that may be required theref
or provided Landlord will avoid unnecessary storage of material within the
demised premises which cannot be used within two (2) days. During the year prior
to the expiration of the term of this Lease, 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). Landlord shall repair any damage to Tenant's property or the demised
premises as a result of such entry and shall take reasonable steps to avoid
interference with Tenant's business operations. If during the last month of the
Demised Term Tenant shall have removed all or substantially 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.
15
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 and Landlord shall take reasonable steps to avoid installing
wet pipes over Tenant's computer room and telephone switching equipment. Such
work shall be done to avoid interference with Tenant's business operations
unless such work is of an emergency nature. If any such work involves asbestos
removal or other hazardous substances, it shall be done at night or weekends to
avoid interference with Tenant's business operations, unless such work is of an
emergency nature. Landlord shall accord reasonable care to Tenant's property.
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 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
reasonably regulated and/or discontinued at any time and from time to time by
Landlord upon reasonable prior 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.
SUBORDINATION
24. 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 provided Landlord shall obtain from any such mortgagee or
ground lessor a non- disturbance agreement as provided in subdivision (d)
hereof. This Section (a) shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall execute and deliver promptly any certificate that Landlord and/or any
mortgagee and/or the lessor under any ground or underlying lease and/or their
respective successors in interest may request in accordance with this paragraph.
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, this Lease shall
16
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, decrease Tenant's rights, or materially adversely affect the
leasehold interest hereby created. Landlord, upon fifteen (15) days notice from
Tenant, shall furnish Tenant a certificate, executed by Landlord, certifying
that this Lease is in full force and effect, identifying any modifications
thereto, the date through which rent has been paid and whether the Tenant is in
default of any provisions hereof and if so, specifying each default of which the
signer may have knowledge, it being intended that any such statement delivered
pursuant hereto may be relied upon by any recipient thereof.
d. In the event a mortgage is conveyed to a
mortgagee by the Landlord or a ground lease executed, Landlord shall obtain a
written agreement in recordable form from such mortgagee, lender or ground
lessor providing that the lender, mortgagee or ground lessor, as the case may
be, as long as Tenant performs its obligations under this Lease, shall not
disturb Tenant's peaceful possession of the demised premises for the term of
this Lease, whether by foreclosure or by deed in lieu of foreclosure or
otherwise, and Tenant shall attorn to such new owner or Landlord and such new
owner or landlord shall accept such attornment of Tenant. Tenant agrees to
execute the written agreement and any other documents to accomplish the purpose
of this paragraph. This provision shall inure to the benefit of Tenant and be
binding on any purchaser at foreclosure of such mortgage or under a deed in lieu
of foreclosure.
PROPERTY LOSS, DAMAGE, REIMBURSEMENT
25. 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, unless the foregoing is caused by negligence or intentional acts of
Landlord, its agents, contractors, or employees. Landlord or its agents shall
not be liable for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, electrical
disturbance, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the negligence or intentional acts of
Landlord, its agents, servants, contractors, licensees, invitees or employees;
nor shall Landlord or its agents by liable for any such damage caused by other
tenants or persons in the Building or caused by operations in construction of
17
any private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the demised premises or in the Building except Landlord's
obligation to repair in accordance with this Lease. 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 reasonable and
out-of-pocket 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 after expiration of all applicable
notice and grace periods. 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, however, the failure of Tenant to
timely notify Landlord of such incidents shall not vitiate Landlord's obligation
to repair as provided herein.
Tenant's Indemnity
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, agents or invitees) in and on the demised premises by
Tenant, its agents, employees or invitees or the agents or employees of either
during the term of this Lease 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 or any such claim, Tenant, upon notice from Landlord, agrees
that Tenant, at Tenant's expense, will resist or defend such action or
proceeding. Tenant's liability under this Lease extends to the acts and
omissions of any subtenant, assignee and any agent, contractor, employee,
invitee or licensee of any subtenant. Landlord shall not settle such action
without the consent of Tenant as to any claim which Tenant is required to
indemnify Landlord hereunder.
DESTRUCTION-FIRE OR OTHER CASUALTY
26. If the demised premises shall be damaged by fire or other
casualty, Tenant shall give notice to Landlord of such damage, Landlord, at
Landlord's expense, shall 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 ▇▇▇▇▇ for the
period from the date of such damage to the date when such damage shall have been
repaired (Landlord to give notice to Tenant approximately thirty (30) days prior
to the estimated completion date of the repairs, unless it is estimated to take
less than thirty (30) days to effectuate the repair), and if only a part of the
demised premises shall be so rendered untenantable, the rent shall ▇▇▇▇▇ 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 ▇▇▇▇▇ shall be equitably
18
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. If the
demised premises are partially damaged or rendered partially unusable by fire or
other casualty, the damages thereto shall be repaired by and at the expense of
Landlord and the rent, until such repair shall be substantially completed, shall
be apportioned from the day following the casualty according to the part of the
Premises which is usable. The Landlord shall give notice to Tenant approximately
thirty (30) days prior to the estimated completion date of the repairs, unless
it is estimated to take less than thirty (30) days to effectuate the repair.
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, including the demises
Premises, 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 any of such events, Landlord at Landlord's
option, may give to Tenant, within ninety (90) days after such fire or other
casualty, a thirty (30) day 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) days with the same effect as if the date of expiration of
said thirty (30) 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. Landlord agrees to obtain such
insurance as to provide for the full replacement cost of the Building. In the
event that Landlord notifies Tenant of its intent to restore the Building, such
notice shall state the estimated time to rebuild. If such date is more than one
hundred eighty (180) days from a final settlement with Landlord's insurance
carrier or two hundred seventy (270) days from the date of loss, whichever is
sooner, or if the actual reconstruction is not substantially completed within
270 days of the date of loss, Tenant may elect to cancel this lease by giving
notice thereof within thirty (30) days of Landlord's notice or the expiration of
270 days from the date of the loss as the case may be.
SUBROGATION
27. 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.
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EMINENT DOMAIN
28. 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 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 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 sixty (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
(greater than 15% thereof) 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 sixty (60) days following the date on which Tenant shall have
received notice of vesting of title, to terminate this lease and the term and
estate hereby granted as of the date of vesting of title and if the portion of
the premises taken is greater than 15% of the parking area and if Landlord is
unable to relocate sufficient parking elsewhere on the land owned by Landlord so
that at least 85% of the parking available before the taking is available
elsewhere on the property upon which the Building is located, then Tenant shall
have the right to terminate this Lease, or (c) if neither Landlord nor Tenant
elects to terminate this Lease, as aforesaid, taking, except that the rent shall
be abated to the extent, if any hereinabove provided in this Article. In the
event that only a part of the demised premises shall be so condemned or taken
and this Lease and the term and estate hereby granted are not terminated as
hereinbefore provided, landlord will, at its expense, restore the remaining
portion of the demised premises as nearly as practicable to the same condition
as it was in prior to such condemnation or taking.
b. In the event of a termination in any of the
cases hereinabove provided, this Lease and the term and estate granted shall
expire as of the date of such termination with the same effect as if that were
the date hereinbefore set for the expiration of the term of this Lease, and the
rent hereunder shall be apportioned as of such date.
c. In the event of any condemnation or taking
hereinabove mentioned of all or 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,
alterations and installations owned by Tenant and for moving expenses incurred
by Tenant.
It is expressly understood and agreed that the provisions of this
Article shall not be applicable to any condemnation or taking for governmental
occupancy for a limited period.
CERTIFICATE OF OCCUPANCY
29. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy (temporary or permanent)
issued for the Building or portion thereof of which the demised premises form a
part and shall obtain a Certificate of Occupancy for Tenant's Work, if required,
before occupying the demised premises.
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DEFAULT
30. 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"):
(1) if Tenant shall default in the
payment when due of any installment of rent or in the payment when due of any
additional rent, and such default shall continue for a period of ten (10) days
after notice by Landlord to Tenant of such default; or
(2) 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 twenty (20) 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 twenty (20) days and Tenant shall not commence
within said period of twenty (20) days, or shall not thereafter diligently
prosecute to completion, all steps necessary to remedy such default; or
(3) 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
(4) if, within thirty (30) days after
the commencement of any proceeding against Tenant, whether by the filing of a
petition or otherwise, seeking any reorganizations, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or other present or 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
(5) 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
(6) 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 herein;
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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 ten (10) day 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 ten (10) days were the Expiration Date,
but Tenant shall remain liable for damages as provided in Article 32.
REMEDIES
31. a. If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default, or if this Lease and the Demised Term shall expire and
come to an end as provided in Article 30:
(1) 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, on notice to Tenant provided that service
of a notice of petition in a summary proceeding shall be sufficient notice
thereof, either by summary proceedings or by any other application action or
proceeding (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
(2) 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 by 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.
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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 at law or
in equity.
DAMAGES
32. a. If this Lease and the Demised Term shall expire and
come to an end as provided in Article 30 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 31 or by or under any summary proceeding or any
other action or proceeding, then, in any of said events:
(1) 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
(2) 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 31(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
(3) 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
23
discounted to present worth at the rate of four (4%) percent 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 to 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.
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
32(a) shall mean the rent in effect immediately prior to the date upon which
this Lease and the Demised Term shall have expired and come to an end, or the
date of re-entry upon the demised premises by Landlord, as the case may be, plus
any additional rent payable pursuant to the provisions of Article 10.
Immediately preceding such event. Nothing contained in Articles 30 and 31 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 32(a).
FEES AND EXPENSES
33. If Tenant shall default after any applicable notice and
grace periods 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 and if Landlord is successful, the sum
or sums so paid by Landlord including reasonable attorney's fees 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 more than three
(3) times in any twelve (12) month period or more than five (5) times during the
term hereof, and Tenant shall thereafter cure such default before judgment is
entered in such action or proceeding, the sum of $1,000.00 shall immediately
become due and payable from Tenant 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.
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NO WAIVER
34. a. No act or thing done by Landlord or Landlord's agents
during the term hereby demised shall be deemed an acceptance of a surrender of
said demised premises, and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power 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, an 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 or Tenant
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 hereto,
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 or Tenant, unless
such waiver be in writing signed by Landlord or Tenant, as the case may be. 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.
b. Landlord's failure to render a Landlord's
Statement with respect to any escalation year per Article 10 shall not prejudice
Landlord's right to render a Landlord's Statement with respect to any subsequent
escalation year. The obligations of Landlord and Tenant under the provisions of
Article 10 with respect to any additional rent for any escalation year shall
survive the expiration or any sooner termination of the Demised Term.
WAIVER OF TRIAL BY JURY
35. 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
mandatory counterclaims. Nothing herein shall preclude Tenant from commencing a
plenary action to adjudicate such claim.
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BILLS AND NOTICES
36. 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), overnight mail, messenger service or facsimile with regular mail
during the hours of 9:00 a.m. to 5:00 p.m. addressed (A) to Tenant (i) at
Tenant's address set forth in this Lease if mailed prior to Tenant's taking
possession of the demised premises, or (ii) at the Building if mailed subsequent
to Tenant's taking possession of the demised premises, or (iii) at any place
where Tenant or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or surrendering the
demised premises, or (B) to Landlord at Landlord's address set forth in this
Lease, 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 ▇▇▇▇, 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
37. a. Subject to the Landlord's obligation pursuant to
Section 2(b) hereof, 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 Landlord under the provisions of this Lease or any collateral
instrument, or is unable to perform or make or is delayed in performing or
making any installations, decorations, repairs, alterations, additions or
improvements, whether or not required to be performed or made under this Lease
or under any collateral instrument, or is unable to fulfill or is delayed in
fulfilling any of Landlord's other obligations under this Lease or any
collateral instrument, no such inability or delay shall constitute an actual or
constructive eviction, in whole or in part, or 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. If the
Landlord fails to take reasonable steps within three (3) days of notice of such
interruption of service, Tenant may undertake to restore such services and shall
submit to Landlord any reasonable out-of-pocket expenses for such restoration
and may take a credit for such expenses against the next monthly installment of
rent or additional rent.
b. If by reason beyond, the control of Tenant
or its agents, strike 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
the reasonable control of Tenant, its agents and employees, Tenant is delayed in
performing or fulfilling any of Tenant's covenants or obligations hereunder
(other than the obligation to pay rent or additional rent and maintain insurance
as required hereunder), such inability or delay shall not be the basis of a
default hereunder and Tenant's time to perform such covenants shall be extended
a reasonable time for such circumstances.
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Interruption of Service
c. Landlord reserves the right to stop the
services of the air conditioning, elevator, 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 reasonably necessary, until such repairs,
alterations, replacements or improvements shall have been completed. Landlord
shall give Tenant reasonable notice of all scheduled interruptions or shutdowns
which shall include a reasonable good faith estimate of the duration thereof.
Landlord shall in good faith limit to the extent possible interruptions to
Tenant's business' operations. If the Landlord fails to take reasonable steps
within three (3) days of notice of such interruption of service, Tenant may
undertake to restore such services and shall submit to Landlord any reasonable
out-of-pocket expenses for such restoration and may take a credit for such
expenses against the next monthly installment of rent or additional rent. If
such interruption continues for more than ten (10) days and if the premises are
rendered untenantable and Tenant is not conducting business operations in the
demised premises, Tenant shall receive a rent abatement for each additional day
of such service interruption commencing on the 1st day thereof.
CONDITIONS OF LANDLORD'S LIABILITY
38. 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 given 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. Landlord represents to Tenant that Landlord
is the owner of the Land and the Building.
TENANT'S TAKING POSSESSION
39. a. Tenant by taking possession of the premises and
commencing the Tenant's Work therein shall be conclusively deemed to have agreed
that Landlord up to the time of such possession has performed all of its
obligations hereunder and that the premises were in satisfactory condition as of
the date of such possession, unless within ninety (90) days after such date (or
within thirty (30) days of discovery of a latent defect) Tenant shall give
written notice to Landlord specifying the respects in which the same were not in
such condition.
b. If Tenant shall use or occupy all or any
part of the demised premises for the conduct of business prior to the Term
Commencement Date, such use or occupancy shall be deemed to be under all of the
terms, covenants and conditions of this Lease and if such occupancy is more than
thirty (30) days before the Term Commencement Date, then also including the
covenant to pay rent for the period from the commencement of said use or
occupancy to the Term Commencement Date.
ENTIRE AGREEMENT
40. 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 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
27
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, which shall not be unreasonably withheld or delayed 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
41. 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 Building, the said Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder after the date of transfer and provided that the new owner or
landlord assumes the Landlord's obligation 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 "reentered" as used in this Lease are not restricted to their
technical legal meanings. The term "business days" as used in this Lease shall
exclude Saturdays, (except such portion thereof as is covered by specific hours
in Article 5 hereof), 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.
SUCCESSORS, ASSIGNS, ETC.
42. 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.
28
APPLICATION OF INSURANCE PROCEEDS, WAIVER OF SUBROGATION
43. In any case in which Tenant shall be obligated under any
provision 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 provision 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
44. 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
45. 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 provided
that the Landlord is also the fee owner of the land and the Building.
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. Tenant's sole remedy shall be to seek a judgment enforcing
Landlord's obligations to give such approval or consent. In the event Tenant is
successful in such litigation and it is determined that Landlord unreasonably
withheld or delayed its consent, then Landlord shall reimburse Tenant for its
reasonable attorney's fees and expenses in such litigation.
BROKER
46. Landlord and Tenant represent and warrant to each other
that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc. is the sole broker who brought the demised premises
to Tenant's attention and with whom Tenant has negotiated in bringing about this
Lease. Landlord agrees to pay a commission to such broker pursuant to a separate
agreement.
29
RENEWAL OPTION
47. The Tenant shall have the right, to be exercised as
hereinbefore provided, to extend the term of this Lease for one (1) successive
period of three (3) years upon the following terms and conditions:
a. That at the time of the exercise of such
right, the Tenant shall not be in default in the performance of any of the
material terms, covenants or conditions herein contained with respect to a
matter as to which notice of default has been given hereunder and which has not
been remedied within the time limited in this Lease.
b. That the extension shall be upon the same
terms, covenants and conditions as in this Lease provided, except that (i) there
will be no further privilege of extension for the term of this Lease beyond the
period referred to above; (ii) during the extension period the annual rental
payable by Tenant to Landlord shall be the amount set forth in Article 3 of this
Lease as cumulatively increased pursuant to Article 10 of this Lease throughout
the Initial Term thereof ("The Cumulatively Adjusted Additional Base Rent") and
the Cumulatively Adjusted Base Rent shall be further increased in accordance
with said Article 10 on the first day of the renewal term and on each
anniversary thereof during the renewal term; and (iii) during the extension
period, the base year for determining additional rent under the escalation
clause, Article 10 shall remain unchanged and continue to be the base year
established at the commencement of the term of this Lease.
c. Notwithstanding anything in this Article
contained to the contrary, the Tenant shall not be entitled to any extension, if
at the time of the commencement of the extended period the Tenant shall be in
default under any of the material terms, covenants or conditions of this Lease
with respect to a matter as to which notice of default has been given hereunder
and which has not been remedied within the time limited in this Lease, or if
this Lease shall have terminated prior to the commencement of said period.
d. The Tenant shall exercise its right to the
extension of the term of this Lease by notifying the Landlord of the Tenant's
election to exercise such right as provided in Article 2(a) hereof. Upon the
giving of this notice, this Lease shall be deemed extended for the specified
period, subject to the provisions of this Article, without execution of any
further instrument.
SECURITY
48. Intentionally Omitted.
RIGHT OF FIRST REFUSAL
49. a. Tenant shall have a right of first refusal to lease the
entire remaining portion of the second floor of the Building (but not less than
the entire amount, 22,000 square feet +/-) that may be or becomes available in
the Building whether the same shall become available due to the offering for
lease of previously unleased space or by the vacating by a tenant of previously
leased space or otherwise. Any such space shall be known as "First Offer Space".
Notwithstanding the foregoing, no vacant space in the Building will be deemed
available if either Landlord or Briarcliffe College Inc. requires the space for
30
its operation. Tenant's right to lease First Offer Space shall be on all of the
same terms and conditions set forth in this Lease including, but not limited to,
the then current Annual Basic Rent as adjusted pursuant to Article 10 hereof on
a square foot basis for the amount of rentable square feet in the First Offer
Space assuming a loss factor of 10%. The parties agree that the rentable square
footage of the First Offer Space is approximately 22,000 square feet.
Notwithstanding the foregoing, no vacant space in the Building shall be treated
as eligible First Offer Space if such space is needed by Landlord for its
operations in the Building at the time when such space first become vacant or
such space is contractually committed to another tenant in the Building and such
tenant acquires such space at the time when it first become vacant. In addition,
Tenant's right to acquire First Offer Space shall expire on the last calendar
day of the right of Tenant to elect to renew the term hereof as provided in
Article 2(a) hereof.
b. Landlord's Notice of Availability. As soon
as Landlord decides to market or otherwise lease out all of the First Offer
Space, Landlord shall so inform Tenant in writing. Landlord's notice shall state
Landlord's best good faith estimate of the date on which the term of this Lease
will commence as to the First Offer Space.
c. If Tenant intends to acquire the First Offer
Space, Tenant shall, within thirty (30) days after receipt of Landlord's notice
of availability of such First Offer Space, give Landlord written notice that
Tenant intends to exercise its right to lease the subject First Offer Space.
Said notice shall be effective as of the date of the giving of such notice.
Failure of Tenant to timely respond to Landlord's notice of availability shall
terminate the rights as to said First Offer Space with no further obligation on
either party as to First Offer Space.
d. Term of First Offer Space. If Tenant
exercises its right to lease First Offer Space, then the term of this lease as
to any First Offer Space shall commence on the date on which Landlord delivers
the First Offer Space to Tenant free of any other tenants in an "as is"
condition and the term of such space shall end on the expiration or earlier
termination of the term of this Lease. The description of the demised premises
set forth herein on Exhibit 1 shall be deemed for all purposes to then include
the First Offer Space. Tenant shall accept such space in its "as is" condition
and any improvements by the Tenant therein shall be governed by Article 14
hereof.
HAZARDOUS MATERIALS
50. a. Tenant will not use or permit to be used in the
Premises anything that may be dangerous to life or limb, nor in any manner
deface or injure the Premises or in any part thereof; nor permit any
objectionable noise or odor to escape or be emitted from the Premises or do
anything or permit anything to be done upon the Premises that creates a
nuisance. Tenant agrees it shall not, under any circumstances, cause or permit
any hazardous substance to be used, generated, handled, possessed or stored
within the Building or any parts or part thereof or on any portion of the
Premises or the Building within which the Premises are located, except with
respect to those materials which, in reasonable quantities, are customarily
required in the maintenance and operation of office operations, and then only in
compliance with all applicable laws and regulations regarding the handling and
storage of such materials. Tenant acknowledges that it has received and read a
copy of a report entitled Phase I Site Assessment, Building 35, Grumman
Aerospace Corporation, Bethpage, New York, dated March 29, 1996, and Landlord
represents that to the best of its knowledge it has no knowledge of any
environmental condition or hazardous material located at the Building and
parking lot except as set forth in said report, if any.
31
b. Landlord will not use or permit to be used
in the Premises anything that may be dangerous to life or limb, nor in any
manner deface or injure the Premises or in any part thereof; nor permit any
objectionable noise or odor to escape or be emitted from the Premises or do
anything or permit anything to be done upon the Premises that creates a
nuisance. Landlord agrees it shall not, under any circumstances, cause or permit
any hazardous substance to be used, generated, handled, possessed or stored
within the Building or any parts or part thereof or on any portion of the
Premises or the Building within which the Premises are located, except with
respect to those materials which, in reasonable quantities, are customarily
required in the maintenance and operation of office operations, and then only in
compliance with all applicable laws and regulations regarding the handling and
storage of such materials.
c. Tenant shall indemnify, defend and hold
Landlord and its agents, employees, successors and assigns free and harmless
from any claims, damages, losses or liabilities arising from or in connection
with any breach of the warranties, representations or covenants of Tenant set
forth in this Article, whether such claims, damages, losses or liabilities arise
during or after the term of this Lease except for claims, damages, losses or
liabilities arising from hazardous substances brought into the Premises by
Landlord, its employees, invitees or other tenant or occupant of the Building,
or Landlord's predecessors in title.
d. Landlord shall indemnify, defend and hold
Tenant and its agents, employees, successors and assigns free and harmless from
any claims, damages, losses or liabilities arising from or in connection with
any breach of the warranties, representations or covenants of Landlord set forth
in this Article, whether such claims, damages, losses or liabilities arise
during or after the term of this Lease except for claims, damages, losses or
liabilities arising from hazardous substances brought into the Premises by
Tenant, its employees or invitees.
e. If, during the construction of Tenant's
Work, the presence of asbestos is discovered in the demised Premises solely in
the conduits or risers which become exposed during the construction, Landlord
shall reimburse Tenant for its actual additional out-of-pocket cost to remove or
encapsulate such asbestos, provided Tenant gives notice of such condition to
Landlord before incurring any expense therefore, and the estimated cost
therefore and the removal or encapsulation of such asbestos is required by
government rule, statute or regulation. Landlord, within five (5) days of such
notice, may elect to remove or encapsulate such asbestos at its own cost and
expense.
WASTE REMOVAL
51. Landlord shall supply the Building and Tenant with
sufficient dumpsters for the disposal and removal of customary and reasonable
waste produced in the demised premises by the normal generation of office waste.
At the request of Landlord, Tenant shall participate in any reasonable recycling
program instituted within the Building including the segregation and/or
separation of paper and other waste.
COMMON AREAS
52. Tenant acknowledges that the demised premises and the
Building within which it is located are designated non-smoking areas. Tenant
shall not allow its employees, agents or invitees to congregate in the Building
32
or the lobbies thereof in order to smoke, nor shall Tenant allow its employees,
agents or invitees to consume food or beverages outside of the demised premises
in the common areas of the Building.
In the event Landlord and/or Briarcliffe College Inc.
maintains a cafeteria within the Building, Tenant's employees may use the
cafeteria services for the purchase and on site consumption of food and
beverages (but not for the consumption of employee provided food or beverages)
during the normal operating hours of the cafeteria. The right to use the
cafeteria shall be deemed a revocable license and shall not be deemed an
appurtenant right, easement or grant under this Lease. Tenant's employees shall
observe all rules and regulations in connection with the use of the cafeteria
including, but not limited to, the disposal of any waste, removal or disposal of
trays, plates, plastic ▇▇▇▇, cups, etc. In the event Briarcliffe College Inc.
revokes the license to use the cafeteria, Tenant shall not be entitled to any
abatement in rent nor shall such revocation be deemed any constructive eviction
or breach of this Lease by the Landlord. Nothing herein shall obligate Landlord
and/or Briarcliffe College Inc. to continue cafeteria operations. Tenant may
operate its own cafeteria in the demised premises provided Tenant complies with
all municipal rules regulations and permits for the operation of such facility
and obtains Landlord's consent therefor which Landlord may refuse solely if the
Landlord's cafeteria is available for the use of Tenant's employees. Tenant may
install in the demised Premises, without Landlord's consent a lunchroom, vending
machines, refrigerators and microwave ovens for the use of its own employees and
invitees. The foregoing shall not preclude Tenant from takeout and prepared food
deliveries being delivered to the demised premises.
TENANT'S ENTRANCE TO BUILDING
53. Tenant's primary entrance to the demised premises shall be
at the west end of the Building. Tenant shall have access to other entrances of
the Building (only during normal working hours), but its primary (though
nonexclusive) entrance shall be at the west end of the Building. Appropriate
signage, at Tenant's expense, shall notify its employees, agents, invitees and
others visiting the demised premises to use such entrance for ingress and egress
to the Building.
TENANT INSTALLATIONS
54. At its sole cost and expense, Tenant shall be allowed to
install a microwave dish or other similar antenna on the roof provided Tenant,
at its cost and expense prior to such installation, shall obtain all necessary
permits and pay all fees and expenses and obtain any necessary certificates
after such completion. Landlord agrees to cooperate in signing any applications
or consents for such permits or approvals. Such alteration shall be made
pursuant to Article 14 hereof and Tenant shall be responsible for any damage,
repair or maintenance to the roof membrane or roofing system from the
installation and/or maintenance of the antenna on the roof. Tenant shall submit
plans for the location, installation and specification as to the weight and
location, placement and installation of any guy wires or other supports. Such
installation shall be subject to the Landlord's consent which will not be
unreasonably withheld. Tenant shall reimburse Landlord for any reasonable costs
and expenses Landlord incurs in having Landlord's own architect/engineer review
the plans, specification and installation of the microwave dish antenna on the
Building.
Subject to Tenant, at its sole cost and expense,
obtaining all necessary permits and approvals, Tenant shall be allowed to
install additional air conditioning equipment on the roof. Such alteration shall
33
be made pursuant to Article 14 hereof and Tenant shall be responsible for any
damage, repair or maintenance to the roof membrane or roofing system from the
installation and/or maintenance of the additional air conditioning equipment on
the roof. Tenant shall submit plans for the location, installation and
specification as to the weight and location, placement and installation of any
dunnage or other supports. Landlord shall provide access for Tenant's connection
to water tower or supply for such installation. Such installation shall be
subject to the Landlord's consent which will not be unreasonably withheld.
Tenant shall reimburse Landlord for any reasonable costs and expenses Landlord
incurs in having Landlord's own architect/engineer review the plans,
specification and installation of additional air conditioning equipment on the
Building.
MEMORANDUM OF LEASE
55. Landlord and Tenant agree to execute a Memorandum of Lease
duly acknowledged for recording to be recorded at the option of either party in
the office of the Clerk of Nassau County setting forth the names and addresses
of the parties, the term and the legal description of the Building and the
demised premises.
CURB CUT CONSTRUCTION
56. In the event the Town of Oyster Bay or County of Nassau
does not extend Cherry Avenue adjacent to the land upon which the Building is
situated on or before December 31, 1997, Tenant, at its sole cost and expense,
shall apply for such approvals as are necessary to construct a curb cut in
▇▇▇▇▇▇▇ Avenue for an additional means of ingress and egress to the parking
areas and Tenant shall use reasonable and diligent efforts to obtain the same.
Landlord shall cooperate and sign any required application or consent. The
parties acknowledge that there is no assurance that such approval may be
granted. If granted, Landlord shall, at Tenant's cost and expense, construct the
necessary apron and drive to form such curb cut to the parking area.
CONSTRUCTION OF ADDITIONAL EXITS
57. Landlord shall, upon written request from Tenant, made
within two (2) years from the date hereof, make application to the Town of
Oyster Bay for the construction, by Tenant and at Tenant's sole cost and
expense, of up to three additional exterior exits as additional means of egress
for Tenant's employees from the demised premises as shown on Exhibit 8. Tenant
shall promptly reimburse Landlord for all reasonable costs and expenses incurred
in connection with the application including any appeals from a denial therefrom
including engineering, environmental, architectural and legal up to a maximum,
in the aggregate, of $15,000. The exits shall be designed and Landlord shall
obtain bid from a contractor reasonably acceptable to Tenant for the cost of
such exits as approved (excluding the reasonable expenses referred to in the
preceding sentence) of not more than up to $180,000. In the event the Landlord
has not obtained approval for the construction of such exits within twelve (12)
months from the date of Tenant's request, which date may be extended for up to
one hundred eighty (180) days if the Town of Oyster Bay has taken no action with
respect to the application or any appeal has not been decided by the end of said
twelve (12) month period, Tenant may elect to cancel this Lease by notice given
within thirty (30) days of the expiration of such period, said notice shall set
forth the termination date of this Lease, and upon such date the term of this
Lease shall expire as if said date was the expiration date of the initial term
hereof. If the Tenant fails to request Landlord to make such application within
two (2) years of the date hereof, Tenant waives its right to have Landlord make
such application and waives any right to cancel or terminate this Lease pursuant
to this paragraph of the Lease. If the Tenant fails to timely give notice of its
34
election to cancel upon the expiration of the twelve (12) month period, as same
be extended pursuant to the provisions of this paragraph 57, in the event
Landlord has not obtained approval of the application, Tenant waives its right
to have Landlord make such application and waives any right to cancel or
terminate this Lease pursuant to this paragraph of the Lease. Nothing herein
shall compel Tenant to construct said exits in the event the approval from the
Town of Oyster Bay is timely received, however, upon the timely approval of such
application Tenant's right to cancel or terminate this Lease pursuant to this
paragraph shall cease and no longer be valid whether or not Tenant constructs
said exits. If Tenant does construct such exits, Tenant shall comply with the
provisions of Article 14 hereof and shall construct such alterations at its sole
cost and expense.
35
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this Lease as of the day and year first above written.
Witness for Landlord: BRIARCLIFFE COLLEGE, INC.
/s/ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_____________________________ By:_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Witness for Tenant:: Gaines, Berland, Inc.
/s/ /s/
____________________________ By:_________________________________
Solely as to Paragraph 14(d) hereof:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
36
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
by any Tenant or used for any purpose other than ingress and egress to and from
the demised premises.
2. The Landlord may refuse admission to the Building outside
of ordinary business hours to any person not known to the watchman in charge or
not having a pass issued by the Landlord or Tenant or not properly identified,
and may require all persons admitted to or leaving the Building outside of
ordinary business hours to register. Any person whose presence in the Building
at any time shall, in the Landlord's judgment, be prejudicial to the safety,
character, reputation and interest of the Building or of its tenants may be
denied access to the Building or may be ejected therefrom. The Landlord may
require any person leaving the Building with any package or other object to
exhibit a pass from the tenant from whose premises the package or object is
being removed, but the establishment and enforcement of such requirements shall
not impose any responsibility on the Landlord for the protection of any tenant
against the removal of property from the premises of the tenant. Landlord shall,
in no way, be liable to any tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the demised premises
or the Building under the provision of this Rule.
3. The windows and doors that reflect or admit light and air
into demised premises, or other public places in the Building shall not be
covered or obstructed by any Tenant, nor shall any bottles, parcels, or other
articles be placed on the window ▇▇▇▇▇.
4. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags or substances shall be thrown
therein. All damages resulting from any misuse of the fixtures shall be borne by
the Tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
5. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any instrument, radio, talking machine, unmusical noise, whistling, singing, or
in any other way.
6. No Tenant, nor any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the demised premises
any inflammable, combustible or explosive fluid, chemical or substance, or cause
or permit any unusual or objectionable odors to be produced upon or permeate
from the demised premises.
7. All removals, or the carrying in or out of any safes,
freight, furniture, or bulky matter of any description must take place during
such hours and in a manner reasonably approved by the Landlord. No hand trucks
or dollies may be used in the Building unless equipped with rubber tires and
side guards. The Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight which
violates any provision of the lease of which these Rules and Regulations are a
part.
8. All Machinery shall be placed by the Tenant in the demised
premises in approved setting to absorb or prevent any vibration, noise or
annoyance.
9. No bicycles, vehicles, animals or birds of any kind shall
be brought into or kept in or about the demised premises.
2
LIST OF EXHIBITS
Demised Premises
----------------
Site Plan
Term Commencement Date
Landlord's Work
Zoning Resolution
BYAC Specification
Parking Sketch
Tenant's Work