EXHIBIT 10.3
OFFICE LEASE
ROCHWIL ASSOCIATES
TO
TIMELY INFORMATION CORP.
FOR PREMISES KNOWN AS:
Suites 1153 and ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
ARTICLE 17 SIGNS 13
Section 17.1 -Signs. 13
ARTICLE 18 ACCESS TO PREMISES 14
Section 18.1 -Landlord's Entry on Premises 14
ARTICLE 19 -SUBORDINATION 14
Section 19.1 -Subordination 14
ARTICLE 20 NOTICES 15
Section 20.1 -Notices. 15
ARTICLE 21 -WAIVER 15
Section 21 .1 -Waiver. 15
ARTICLE 22 -PROVISIONS BINDING, ETC 15
Section 22.1 -Provisions Binding. 15
ARTICLE 23 SURRENDER OF PREMISES 16
Section 23.1 -Surrender of Premises. 16
Section 23.2 Holdover. 16
ARTICLE 24 -SECURITY DEPOSIT -INTENTIONALL y DELETED 16
ARTICLE 25 MISCELLANEOUS PROVISIONS 16
Section 25.1 -Consent of Landlord. 16
Section 25.2 Corporate Authority. 16
Section 25.3 Successors. 16
Section 25.4 Brokers. 16
Section 25.5 Riders; Exhibits. 16
Section 25.6 Interpretation of Lease. 17
Section 25.7 Entire Agreement. 17
Section 25.8 Captions; Titles. 17
Section 25.9 Singular and Plural 17
Section 25.10 -Joint and Several Obligations. 17
Section 25.11 -Severability. 17
Section 25.12 Tenant and Landlord. 17
Section 25.13 -Release. 18
Section 25.14 Rules and Regulations 18
EXHIBIT A -FLOOR PLAN OF PREMISES 20
EXHIBIT B -LANDLORD IMPROVEMENTS
EXHIBIT C -TENANT IMPROVEMENTS 22
LEASE
THIS LEASE ("Lease") is made March 12, 1999 by and between ROCHWIL ASSOCIATES,
having an address of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, New York,.] 14624
("Landlord") and TIMELY INFORMATION CORP. .a New York corporation, having an
address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇-▇▇▇. Rochester. New York 14626
("Tenant"). This Lease is granted and accepted upon the terms, covenants and
conditions herein contained, and each of the parties agree to perform and
observe all terms, covenants and conditions hereof to be performed on their
part.
ARTICLE 1. -PREMISES
Section 1 .1 -Description of Leased Premises.
The ▇▇▇▇▇▇ Tower Building ("▇▇▇▇▇▇ Tower") is a portion of a multi-use facility
known hereafter as the "▇▇▇▇▇▇ Complex", situate in the City of Rochester,
County of Monroe and State of New York and which is identified on Exhibit A
attached hereto (the "Building"). Landlord leases to Tenant and Tenant leases
from Landlord square feet of space on the eleventh (11th) floor of the ▇▇▇▇▇▇
Tower, known as Suites 1153 and 115.5 (the "Premises").
Section 1.2 -Option to lease alternate or additional space:
Provided Tenant is not then in default under the terms of this Lease, at any
time prior to the expiration of this Lease Term shall have the option to lease
either (i) additional; or (ii) or alternative space in the ▇▇▇▇▇▇ Tower. Tenant
shall notify Landlord in writing of its election to lease additional or
alternative space.
(a) In the event Tenant elects to lease additional space,
Tenant shall also have the option of surrendering possession of either Suite
1153 or Suite 1155, provided, however, that the total square footage of the
remaining Suite, together with the total square footage of any new leased space
shall exceed the total square footage of the leased premises set forth herein.
Landlord and Tenant shall enter into a Lease Agreement for such additional space
upon terms and conditions to be negotiated prior to execution of such Lease
Agreement. Upon execution of such Lease Agreement by both parties, this Lease
Agreement shall be terminated and of no further force and effect.
(d) Landlord shall be under no obligation to Lease additional or alternative
space to Tenant, and the failure by the parties to reach a satisfactory
agreement as to the terms and conditions of any Lease Agreement for additional
or alternative space shall not give Tenant the right to terminate this Lease
Agreement.
Section 1.3 -Common Areas.
Landlord grants to Tenant the common and non-exclusive right to use those
areas and facilities located outside the Premises and within the Building which
are provided for and designated by Landlord from time to time for the general
use and convenience of Tenant and other occupants in the Building. The use of
such areas and facilities shall be subject to the terms, covenants and
conditions herein contained, including such reasonable rules and regulations as
1.
(b) In the event Tenant elects to Lease alternative space, Tenant shall
surrender possession of Suites 1153 and 1155, provided, however, that the total
square footage of any new leased space shall exceed the total square footage of
the leased premises set forth herein. Landlord and Tenant shall enter into a
Lease Agreement for such alternative space upon terms and conditions to be
negotiated prior to execution of such Lease Agreement. Upon execution of such
Lease Agreement by both parties, this Lease Agreement shall be terminated and of
no further force and effect. (c) It is expressly understood that the option set
forth in this Section 1.2 is exclusive to Tenant hereunder and may not be
assigned or exercised by any other assignee or sublease permitted under the
Lease.
Landlord may establish from time to time upon not less than thirty (30) days
notice, which rules and regulations shall be uniformly enforced.
ARTICLE 2. -TERM.
Section 2.1 -Term.
The Term of this Lease shall commence on April 1. 1999, or the earlier of: (a)
sixty (60) days after notice from Landlord delivering possession of the Premises
to Tenant; (b) sixty (60) days after the date Tenant, its employees, agents or
contractors first enters the Demised Premises; or (c) the date that the Tenant
opens the Demised Premises for business (hereinafter the "Term Commencement
Date"), and shall expire on June 30.2004, unless sooner terminated or extended
as provided in this Lease. The first "Lease Year" is defined to be the period
beginning with the Term Commencement Date and ending on the last day of the
twelfth full calendar month thereafter. Subsequent Lease Years shall be
consecutive periods of twelve (12) full calendar months following the first
Lease Year. All the provisions of this Lease shall apply during the period prior
to the T erm of this Lease.
ARTICLE 3. -RENT.
Section 3.1 -Rent and Payment of Rent.
(e) Tenant covenants to pay to Landlord or Landlord's designated agent
at its office, or at a place and in a manner otherwise designated by Landlord,
as rent for said Premises during the Lease Term, annual minimum guaranteed
rental (hereinafter "Minimum Rent"), payable in advance in equal monthly
installments on the first day of each and every month, without demand and
without offset or deduction, as follows: Lease Year:
Annual Rent:
Monthly Installments:
1 3
4-5
$10,992.00
$11,450.00
$916.00
$954.17
(f) The Minimum Rent for any partial month shall be prorated based on
the number of days in the month in which the Term Commencement Date occurs.
Minimum Rent, Additional Rent and all other charges and/or payments due under
this Lease must be paid in lawful money of the United States of America.
(g) In the event Tenant fails to make any rent payment (including but
not limited to, Minimum Rent, Additional Rent, or construction charges, all as
defined herein), in the full amount when same is due and payable, Tenant agrees
to pay a late fee of two percent (2%) of the unpaid portion of said rent, for
that month, from and after the date on which any such sum shall be due and
payable. Such late fee, together with a late charge of $100.00 for each and
every past due notice to cover the additional administrative expenses in
processing late payments, shall be immediately due and payable to the Landlord.
In no event shall this provision be deemed to grant Tenant any grace period or
extension of time to pay any rent as invoiced, nor shall it prohibit or bar
Landlord from exercising any of its rights hereunder. Tenant further agrees that
an administrative fee of $50.00 shall be due for each and every dishonored check
tendered by Tenant as payment of any rent. Tenant further agrees that in the
event Tenant tenders to Landlord two (2) or more checks during the Term of this
Lease which are subsequently dishonored, then, in that event, all checks
thereafter submitted by Tenant for the payment of any charge as set forth in
this Lease shall, at Landlord's option, be required to be made in good and
sufficient funds or in a form acceptable to Landlord (i.e., certified check,
cashier's check, bank secretary's check, or bank draft). For purposes of this
Lease, Additional Rent shall be defined as any payment required to be made by
Tenant under the provisions of this Lease, including the Exhibits and any rider
annexed hereto, other than Minimum Rent. Additional Rent shall be due and
payable without demand and without offset or deduction.
Section 3.2 -Rent Credit
Notwithstanding anything combined herein to the contrary, provided Tenant is not
in default of this Lease and no condition exists, which with the giving of
notice, or passage of time would constitute a default of this Lease, and Tenant
opens for business in the Demised ~remises within the time specified in Section
2 of this Lease, Tenant shall not be required to commence Minimum Rent payment,
as set forth herein, until three (3) months after the date the term commences
under the Lease Agreement ("~abatement Period"). Tenant shall, however, from the
Term Commencement Date of this Lease Agreement -be liable for and pay its
proportionate share of Taxes Common Area Maintenance, Marketing Fund expenses
and any and all other charge~ for which Tenant IS liable under the terms and
conditions of this Lease Agreement. Upon the occurrence of a default by Tenant
during the first three (3) months of this Lease Term the Abatement Period shall
be deemed to have fully expired, all future Minimum Rent shall begin to accrue
as of the date of said default and any rents which were otherwise due but for
the provisions of the preceding paragraph, shall immediately be due and payable
as of the date of said default.
ARTICLE 4. -POSSESSION BY TENANT
Section 4.1 -Delivery of Possession
Possession of the Premises shall be delivered to Tenant on the Lease
Commencement Date, provided, however, that:
If for any reason whatsoever, the Landlord is unable to deliver possession of
the Premises on the Lease Commencement Date, (i) Landlord shall not be liable
for any damages caused for failing to deliver possession; (ii) Tenant shall not
have the right to rescind this Lease; and (iii) no such failure shall in any way
effect the validity of this Lease or the obligations of the Tenant hereunder.
Tenant shall not be liable for Minimum Rent or Additional Rent until Landlord
delivers possession of the Premises to Tenant, but such Minimum Rent and
Additional Rent shall become payable on a per diem basis from the date that
possession is delivered to Tenant.
Section 4.2 -Acceptance of Premises
The taking possession of the Premised by the Tenant shall be conclusive evidence
as against the Tenant that said Premises and the ▇▇▇▇▇▇ Tower were in good and
satisfactory condition and fully completed in accordance with the terms of this
Lease at the time such possession was so taken.
ARTICLE 5. -CONSTRUCTION OF IMPROVEMENTS
Section 5.1 -Obligations of Landlord
Landlord agrees to complete the construction set forth in Accordance with the
provisions of this Lease.
Exhibit B, if any, in Section 5.2 Obligations of Tenant.
The Tenant will perform the balance of the construction work necessary to
prepare the Premises for its use, which work shall be as set forth on Exhibit C
(Tenant's Improvements ) and shall include all other items of work not
specifically set out as Landlord's Improvements as set forth in Exhibit B.
Tenant covenants and agrees that any construction work, alterations, additions,
improvements, repairs, installations of fixtures or other equipment, or any
other work, in on or to the Premises shall be performed by contractors and
subcontractors which (i) are bound by and signatory to an applicable collective
bargaining agreement; and (ii)observe area standards for wages and other terms
and conditions of employment, including fringe benefits.
ARTICLE 6 USE; USE RESTRICTIONS
Section 6.1 -Use.
Tenant will use the Premises for general purpose whatsoever office purposes and
for no other
Section 6.2 Use Restrictions.
Tenant's use of the Premises as provided in this Lease shall be in accordance
with the following:
(1) Tenant shall not do, bring or keep anything in or about the Premises or the
~building that with cause a cancellation of any insurance covering the Building,
other Improvements and real property of which the Premises are a part. (2)
Tenant will comply with all regulations, ordinances and laws concerning the
Premises and Tenant's use of the Premises including, without limitation, the
obligation of Tenant's cost and expense to maintain, alter or restore the
Premises as necessary to comply and conform with all regulations, ordinances and
laws relating to the condition, use, or occupancy of the Premises during the
Term. Upon the failure by Tenant to so comply, Landlord may, upon two (2) days
notice, enter the Premises and make any alterations, structural or otherwise,
reasonably necessary to comply with the relevant regulations, ordinances or
laws. Tenant agrees that the cost incurred by Landlord in making said necessary
alterations, structural or otherwise, shall be deemed Additional Rent and shall
be due and owing as Additional Rent for the Premises for the month next
following completion of the alterations. (3) Tenant shall not use the Premises
in any manner that will constitute waste, nuisance or unreasonable annoyance to
other tenants in the Building.
(4) Tenant shall not use the Premises for living quarters, sleeping apartments,
lodging rooms or other residential purposes. (5) Tenant shall not use the
Premises for cooking, or the preparation, manufacture or mixing of anything that
might emit any odor or objectionable noises or lights into or about the
Building, other improvements and land of which the Premises are a part, except
the use of Tenant's kitchen facilities. (6) Tenant shall not do anything on the
Premises that will cause damage to the Building or other improvements, or the
real property of which the Premises are a part. (7) Tenant shall not use,
generate, manufacture, refine, store, treat, transport, keep or dispose of, nor
allow any of its agents, servants, employees or contractors to use, generate,
manufacture, refine, store, treat, transport, keep or dispose of any substance
on or from the Demised Premises or the Shopping Center that is considered a
hazardous substance under any Federal, State or local law. In the event Tenant
violates this Section Tenant shall, at its sole cost and expense, remove such
substance in accordance with applicable law. (8) Tenant shall not operate any
coin or token operated vending machine or similar device for the sale of any
goods, wares, merchandise, food, beverages, or services, without the prior
written consent of Landlord except machines or devices for employees'
convenience, including, but not limited to, pay lockers, pay toilets, scales,
amusement devices or machines for the sale of beverages, foods, candy, tobaccos,
or other commodities.
ARTICLE 7 -MAINTENANCE
Section 7. 1 -Landlord's Maintenance
Except as provided in Section 7.2 and Articles 13 and 14, or unless due to the
negligence or willful misconduct of the Tenant, its agents, servants,
contractors, subcontractors or employees, Landlord shall maintain and repair, or
cause to have maintained or repaired, in good condition, the following: (1) The
structural parts of the Building, which structural parts include the
foundations, bearing and exterior walls, sub flooring and roof; (2) The
electrical, plumbing and sewage systems and fixtures, including, without
limitation, those portions of the systems lying outside the Premises; (3) Window
frames, gutters and downspouts on the Building; and (4) Premises; Heating,
ventilating and air-conditioning systems and fixtures servicing the (5) The
Common Areas of the ▇▇▇▇▇▇ Complex of which the Premises are a part.
Section 7.2 -Tenant's Maintenance
Except as provided in Section 7.1 and Articles 13 and 14, Tenant, at is cost and
expense, shall maintain in good condition all portions of the Premises. Tenant
shall be liable for any damage to the Premises or the Building or other
improvements of which the Premises are a part, resulting from the acts or
omissions of Tenant, its agents or employees, or from Tenant's failure to
perform its obligations under this Section 7.2. Tenant shall promptly, on
demand, reimburse Landlord for the full cost and expense of repair and/or
replacement of all such damage, which cost and expenses shall be due and owing
as Additional Rent for the Premises for the month next following.
ARTICLE 8 -AL TERA TIONS
Section 8.1 -Alterations.
Tenant shall have the right to make interior, non-structural changes not visible
from the exterior of the Building of which the Demised Premises form a part, at
a cost not to exceed $20,000.00, without the prior consent of Landlord provided
Tenant gives Landlord written notice of such work not less than thirty (30) days
prior to its commencement and submits plans for such alterations to Landlord for
Landlord's records only.
Any other alterations, additions or improvements in, or to the Demised Premises,
of any kind or nature whatever, desired by the Tenant may be done by the Tenant,
at its own cost and expense, only upon satisfaction of the following terms and
conditions:
(1) The Tenant shall first notify the Landlord, in writing, specifying
in detail the alterations or additions contemplated;
(2) Such notice shall be accompanied bya plan, blueprint or diagram
showing such proposed alterations or additions;
(3) The Landlord shall, within a reasonable time, indicate in writing
its approval or disapproval of said contemplated alterations or additions and
may require prior to such approval or disapproval additional specifications
and/or data. Landlord's consent may be granted or withheld in Landlord's sole
discretion. If the cost of any alterations or additions exceeds Twenty Thousand
Dollars ($20,000.00), then Tenant shall furnish Landlord with a bond
indemnifying Landlord against any and all claims, losses or damages resulting
from the failure of the Tenant, its agents, servants, employees or independent
contractors to fully complete said alterations or additions in accordance with
said plan or blueprint, or to fully pay therefore, or to remove or bond any and
all mechanic's liens filed against the Demised Premises or the Building, for
claims for work done or materials furnished, it being understood that Tenant's
failure to remove or bond any such lien within ten (10) days after notice of
filing thereof shall in and of itself constitute damage to the Landlord in the
amount of said lien and any expenses it may be put to in removing the same,
including attorneys' fees. Such policy and such bond shall be in a recognized
insurance company or surety company authorized to do business in the State
wherein the property is located. Any alterations made (except Tenant's
equipment, furniture, merchandise and other moveable property which shall be
removed without damage to the Premises) shall remain on and be surrendered with
the Premises on expiration or termination of the Term, except that Landlord may
elect, within thirty (30) days before expiration of the Term, to require Tenant
to remove any alterations that Tenant has made to the Premises. If Landlord so
elects, Tenant, at its sole cost and expense, shall restore the Premises to the
condition designated by Landlord in its election, before the last day of the
Term, or within fifteen (15) days after notice of election is given, whichever
is later.
Tenant covenants and agrees that any alterations, additions, improvements,
repairs, installations of fixtures or other equipment, or any other work, in on
or to the Premises shall be performed by contractors and subcontractors which
(i) are bound by and signatory to an applicable collective bargaining agreement;
and (ii) observe area standards for wages and other terms and conditions of
employment, including fringe benefits.
ARTICLE 9 MECHANIC'S LIENS
Section 9.1 Mechanic's Liens
Tenant shall pay all costs for construction done by it or caused to be done by
it on the Premises as permitted by this Lease. Tenant shall keep the Building,
other improvements and real property of which the Premises are a part, free and
clear of all mechanic's liens resulting from construction done by or for Tenant.
Notwithstanding the foregoing, if any mechanic's lien is filed against the
Premises, or the improvements or the Building of which the Premises form a part,
for work claimed to have been done for, or materials claimed to have been
furnished to Tenant, it shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's expense, by filing the bond required by law and, in the
event Tenant fails to satisfy or discharge the same as above provided, Landlord
may, at its option, undertake to do so. Any costs or expenses incurred by
Landlord pursuant to this Article 9 shall be repaid to Landlord on demand as
Additional Rent.
ARTICLE 10 -UTILITIES AND SERVICES
Section 1 .1 -Landlord
Landlord shall furnish or cause to be furnished to the Premises reasonable
quantities of water, electricity, heat and air conditioning as reasonably
required for Tenant's use. Tenant shall pay to Landlord in monthly installments,
as Additional Rent, Its share of the cost of such utilities. Notwithstanding the
foregoing to the contrary, Tenant shall be assigned a check meter for the
Premises, and Tenant's share of electric shall be based upon such check meter.
Landlord shall not be liable to any extent to Tenant in damages or otherwise if
anyone or more of the utilities or services Landlord is obligated to furnish, or
cause to be furnished, to the Premises IS impaired, interrupted, terminated or
varied because of any reason whatsoever, including, but not limited to,
failures, improvements, installations, "power surges", nor shall any such
impairment, interruption, termination or variance in any way release Tenant form
the performance of any of its obligations under this Lease, except in the event
such condition is the result of the negligence or willful misconduct of
Landlord, its agents or employees.
Janitorial Services
Landlord shall provide the following janitorial services:
(1) In the Premises:
(a)
(b) Daily Service: spot vacuum, empty waste, clean ashtrays; Weekly Service:
vacuum carpets and dust furniture;
(c) Semi-annual Service: wash windows inside and out.
(2) In the Common Areas:
(a)
Daily Service: vacuum carpets, sanitize restrooms, dust, mop tile
floors, clean all sinks and mirrors; Janitorial services shall include only
ordinary dusting and cleaning and shall not including shampooing of carpets or
rugs, cleaning of draperies or furniture or other unusual services. Landlord
shall replace fluorescent lighting tubes and electric light bulbs when required.
(3) Semi-annual Service: wash windows inside and out.
ARTICLE 11 -WAIVER OF SUBROGATION AND INDEMNITY.
Section 11.1 -Waiver of Subrogation
Landlord hereby releases Tenant, and Tenant hereby releases Landlord, except
as to deductible amounts, to the extent of their respective fire, with extended
coverage endorsement, insurance policies from all claims for loss or damage to
the property of the other, whether or not caused by the act or negligence of the
other. If, at any time, the insurance carrier of either party refuses to write
(and if no other responsible insurance carrier will write) insurance policies
which consent to or permit such release of liability, then such party shall
notify the other party, and upon the giving of such notice, this Section 11 of
this Lease shall be void and of no effect.
Section 11.2 -Indemnity.
The Tenant agrees to and shall indemnify, hold harmless and defend the Landlord
of and from any damage or liability including cost or expense to which
Landlord may be put by reason of any injury or damage to person or property by
virtue of Tenant's use, occupancy, management, operation, possession and/or
control of the Premises or any portion thereof. However, nothing in this Lease
shall be deemed to relieve Landlord of liability for its negligence or willful
misconduct or the negligence or willful misconduct of its agents or employees in
the operation and maintenance of the Common Areas.
ARTICLE 12 -INSURANCE
Section 12. 1 -General Liability and Property Damage Insurance.
The Tenant, at its sole cost and expense, shall obtain occurrence form policies
of commercial general liability and property damage insurance which, up to the
maximum liability amounts thereof, but in no event less than the amounts
hereinafter designated, insure the Tenant, the Landlord, Landlord's management
company and its agents (and such other person(s) designated by the Landlord,
having an insurable interest) against liability for injury to persons and/or
property (and death) of any person or persons in or about the Premises or
occurring outside of the Premises but within the ▇▇▇▇▇▇ Complex where such
injury and/or damage results from the act or omission of the Tenant, or its
agents, servants, employees or contractors or arises out of Tenant's use of the
Demised Premises for the following periods set forth below:
(1) From the earlier of the date that Landlord delivers possession of
the Premises to the Tenant or the date that Tenant, its agents, employees or
contractor(s) first enter the Premises, until such time as construction of the
Premises is completed and Tenant is open for business, an All Risk/Builder's
Risk Completed Value form policy shall be in effect insuring Tenant, the
Landlord, Landlord's management company and its agents (and such other person(s)
designated by the Landlord, having an insurable interest) in an amount not less
than the full value of Tenant's leasehold improvements; and
(2) From the earlier of the date that Landlord delivers possession of
the Premises to the Tenant or that the date that Tenant, its agents, employees
or contractor(s) first enter the Premises and throughout the remainder of the
Term of this Lease (including any renewals thereof) an occurrence form policy or
policies of commercial general liability insurance (including coverage
endorsements for premises and operations, products and completed operations,
contractual liability, independent contractors, liquor legal liability, if
applicable, personal injury and broad form property damage and such other types
of coverage which may be required by Landlord from time to time ). The combined
single limit of such insurance shall not be less than Three Million Dollars
($3,000,000.00) for bodily injury, death or property damage to one or more
persons per occurrence. The insurance required by this Section shall be primary
insurance and the insurer shall be liable for the full amount of any loss up to
and including the total limit of liability as set forth in the declarations page
without any right of contribution from any other insurance coverage held by
Landlord regardless of whether Landlord's coverage states that it is primary
coverage. During the Term, Tenant shall maintain in full force on all of its
trade fixtures and equipment in the Premises a policy or policies of fire
insurance insuring Landlord and Tenant with standard extended coverage
endorsements, to the extent of at least eighty percent (80%) of their insurable
value, which shall contain the proper co-insurance provisions to prevent Tenant
from being a co-insurer. Tenant shall self-insure for any deductible amounts and
any amounts in excess of Tenant's coverage. While this Lease is in effect, the
proceeds from any such policy or policies shall be used for the repair or
replacement of the items so insured. Tenant shall not obtain any separate
insurance policies which provide coverage concurrent in form or contribution to
that required in subsection 12.1(1) or (2) above unless the Landlord, its
management company and agents (and such other person(s) designated by Landlord
having an insurable interest) are also named as additional insured on such
policies. Tenant shall submit to Landlord evidence of the insurance coverages
required pursuant to this Article 12 prior to the date Tenant, or any of its
agents, servants, employees or contractors enter onto the Premises. All
insurance required to be secured by Tenant in accordance with this Article 12
shall be obtained from insurance carriers licensed to do business in New York
State possessing a rating of A or higher from the A.M. Best Company.
Certificates of such insurance, including all required endorsements, shall be
furnished to the Landlord. All such policies of insurance required of Tenant
pursuant to this Article 12 shall, in addition to Tenant, name Landlord,
Landlord's management company and agents (and such other person(s) designated by
the Landlord that have an insurable interest) as additional insured and loss
payees as their interests may appear. Each policy shall have attached thereto:
(i) an endorsement that such policy shall not be canceled or amended without at
least thirty (30) days prior written notice to Landlord and each additional
insured and (ii) an endorsement confirming that Landlord's interest there under
shall not be invalidated by any act or neglect of Tenant. Should Tenant fail to
procure such insurance and/or deliver the policy or policies or certificates
therefore to the Landlord at least ten (10) days prior to the commencement date
of the Term hereunder or ten (10) days prior to the expiration of any policy so
delivered to the Landlord, the Landlord may, at its option obtain such insurance
or any of same and the premium or premiums therefore shall be deemed to be
Additional Rent and shall be paid by Tenant on the next rent payment day.
During the Term, Landlord shall maintain in full force on the Building and
leasehold improvements therein a policy or policies of fire insurance. Tenant
shall, at the inception of the Term, document to the Landlord, in writing, the
value of its leasehold improvements, it being understood that in the event of
casualty, Tenant shall be responsible for any loss to the leasehold improvements
in excess of the amount stated. In addition, Landlord shall maintain in full
force a policy or policies of public liability and property damage insurance
against liability for injury to persons and/or property (and death) of any
person or persons in or about the Common Area. Tenant may provide the insurance
required by this Article 12 under a blanket insurance policy provided Tenant's
blanket policy coverage is primary coverage and not subject to contribution from
any Landlord policy.
ARTICLE 13 -DAMAGE AND DESTRUCTION
If the Demised Premises or the Building, or any portion of either thereof, shall
be damaged during the Term by fire or any other casualty insurable under the
standard fire and extended coverage insurance policies, but are not wholly
untreatable, the Landlord shall repair and/or rebuild the same as promptly as
possible provided that the proceeds from insurance policies are made available
to Landlord. The Landlord shall not be required to repair or rebuild any of
Tenant's trade fixtures and equipment required to be insured by Tenant under
this Article 13 nor Tenant's signs. Such repairs and/or replacements are to be
made by Tenant. In such event the Lease shall not terminate but shall remain in
full force and effect and a proportionate reduction in the Minimum Rent shall be
made for the time required to make such repairs, except that there shall be no
reduction (i) during any period that the Tenant can use and occupy the Premises
without substantial inconvenience or (ii) during any period in which said
repairs are delayed at the request of or by reason of any act on the part of the
Tenant, which prevents or delays the repair of said Premises by Landlord.
Landlord's obligation to repair shall be subject to any delays from labor
troubles, material shortages, insurance claim negotiations, or any other causes,
whether similar or dissimilar to the foregoing, beyond Landlord's control.
Section 13.2 Landlord's Right To Terminate.
If the Premises are rendered wholly untenantable by fire or any other casualty
or if the Premises or the Building should be damaged or destroyed by fire or
other casualty to the extent of fifty percent (50%) or more of the monetary
value of either thereof, whether the Premises themselves be damaged or not, or
so that fifty percent (50%) or more of the floor space contained in either
thereof shall be rendered untreatable, then in any such event the Landlord may,
at its option, terminate this Lease or elect to repair or rebuild the same. If,
as a result of any damage either to the Premises or to the Building, the
Landlord determines to demolish or rebuild the Premises or the Building, then in
any such event the Landlord may also terminate this Lease. In any of the
foregoing instances the Landlord shall notify the Tenant as to its election,
within ninety (90) days after the casualty in question. If the Landlord elects
to terminate this Lease, then the same shall terminate three (3) days after such
notice is given and the Tenant shall immediately vacate the Premises and
surrender the same to the Landlord, paying rent to the time of said vacation and
surrender, subject to a proportionate abatement from the time of said damage. If
the Landlord does not elect to terminate this Lease, the Landlord shall repair
and/or rebuild the Premises as promptly as possible, subject to any delay from
causes beyond its reasonable control and to Landlord's receipt of insurance
proceeds, and the Term shall continue without interruption and this Lease shall
remain in full force and effect, subject to equitable abatement in the Minimum
Rent from the time of said damage or destruction until Landlord has completed
its repairs or restoration.
Section 13.3
If any part of or all of the ▇▇▇▇▇▇ Complex, Building or Common Areas are
damaged by fire or other casualty or are taken by condemnation or appropriation
to such an extent that the ▇▇▇▇▇▇ Complex cannot, in the sole judgment of
Landlord, be operated as a multi-use facility, then the Landlord may cancel this
Lease, although the Premises are not themselves damaged or appropriated. Written
notice of said cancellation shall be given Tenant within ninety (90) days after
such damage or after such appropriation becomes effective and Tenant shall
immediately surrender possession, paying Minimum Rent to the time of said
surrender, subject to equitable abatement in Minimum Rent from the time of
damage to the Demised Premises.
Section 13.4 Loss During Later Part of Term.
If destruction of the Premises or the ▇▇▇▇▇▇ Complex and other improvements in
which the Premises are located, occurs during the last three (3) years of the
Term, Landlord may terminate this Lease by giving notice to Tenant not more than
sixty (60) days after the destruction.
ARTICLE 14 CONDEMNATION
Section 14.1 -Parties' Right and Obligation
If, during the Term or during the period time between the execution of this
Lease and the di3te the Term commences, there is any taking of all or any part
of the ▇▇▇▇▇▇ Complex, other improvements or real property of which the Premises
are a part, or any interest in this Lease by condemnation, or if there is a
voluntary conveyance by Landlord in lieu thereof, the rights and obligations of
the parties hereto shall be determined pursuant to this Article 14.
Section 14.2 Total Taking.
If the fee of the entire ▇▇▇▇▇▇ Complex, other improvements or real property of
which the Premises are a part and the land underlying the same is condemned or
appropriated by any apparent competent authority, then and in that event the
Term of this Lease shall cease and terminate on the date possession is to be
given to the condemning authority unless an earlier date is set by Landlord.
Section 14.3 Partial Taking.
If the fee of a substantial part but less than all of the ▇▇▇▇▇▇ Complex, other
improvements or real property of which the Premises are a part and the land
underlying the same is so condemned or appropr!ated, and if the remainder of the
Premises can reasonably be used for substantially the same purposes and in
substantially the same manner, except for the amount of floor space, as the
Premises prior to such condemnation or appropriation, then this Lease shall
continue in full force and effect without change, with respect to the remaining
portion of the Premises, except that Minimum Rent shall be equitably adjusted.
The foregoing notwithstanding, the Landlord at its option, may notify Tenant of
its desire to terminate this Lease, such termination to be effective on date set
by Landlord. If this Lease shall so continue, the Landlord shall, at its own
cost and expense, with reasonable promptness, repair and/or rebuild the
remaining portion of the Premises; provided, however, that the Landlord shall in
no event be required to expend for such work an amount in excess of the amount
of money received by said Landlord for the taking of the portion of the Premises
condemned. The amount of money received by Landlord shall mean that part of the
award in condemnation which is free and clear to Landlord of any demand by
mortgage, mortgages or other secured parties for the value of the diminished
fee. If, during the performance of any such work, the business of the Tenant is
substantially interrupted, Minimum Rent shall be equitably adjusted until such
work is completed. If the part of the Premises not condemned cannot be used for
substantially the same purposes and in substantially the same manner, except for
the amount of space, as the Premises prior to such condemnation, the Landlord
and the Tenant shall each have the option to terminate this Lease by written
notice to the other within ninety (90) days after the date of taking. If any
such notice be given, the Lease shall terminate at the end of the month in which
occurs the thirtieth (30th) day after the giving of such notice. The foregoing
notwithstanding, the Landlord, at its option, may notify Tenant of its desire to
terminate this Lease, such termination to be effective on date set by Landlord.
Section 14.4 -Proceeds of Condemnation.
In the event of any condemnation or taking as aforesaid, whether whole or
partial, the Tenant shall not be entitled to any part of the award paid for such
condemnation and Landlord is to receive the full amount of such award, the
Tenant hereby expressly waiving any right or claim to any part thereof;
provided, however, Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant, in Tenant's own right, on account
of any and all damage to Tenant's business by reason of the condemnation and for
or on account of any cost or loss to which Tenant might be put in the loss or
removal of Tenant's merchandise, furniture, fixtures and such leasehold
improvements and equipment to which title has not vested in Landlord pursuant to
the terms of this Lease. In the event of any termination of the Lease under this
Article, Minimum Rent shall be prorated to the date of vacation of the Premises.
Tenant agrees to promptly execute any and all instruments as may be required to
effectuate the provisions of this Article.
ARTICLE 15 -ASSIGNMENT AND SUBLETTING
Section 15.1 -Assignment and Subletting.
Tenant shall not assign or sublet all or any portion of its interest in the
Premises without Landlord's prior written consent. Notwithstanding Landlord's
prior written consent to any assignment or sublease by Tenant, Tenant herein
shall continue to remain liable under all terms, covenants and conditions of
this Lease and may be joined in any suit to enforce the provisions of this
Lease.
ARTICLE 16 DEFAULT
Section 16.1 -Events of Default.
For purposes of the Lease herein, the term "default" constitutes the violation
of any term, condition, covenant or obligation of Tenant under this Lease.
Section 16.2 -Landlord's Remedies.
If the Tenant shall at any time be in default continuing after ten (10) days
written notice thereof in the payment of any Minimum Rent, Additional Rent, and/
or any other payments required of Tenant hereunder, or any part thereof; or if
Tenant should be in default of any of the other covenants or conditions of this
Lease to be kept, observed and performed by Tenant, continuing after thirty (30)
days written notice thereof, or such shorter period of time as may be specified
elsewhere in this Lease, or if any such non-monetary default is of a nature that
cannot be cured within said thirty (30) day period, and Tenant does not commence
and diligently pursue curing of said default within said thirty (30) days; or if
Tenant shall vacate or abandon the Premises during the Term hereof, or fail to
take possession of the Premises and actively operate its business therein; or if
this leasehold interest shall be levied on or taken or attempted to be taken by
execution, attachment or other process of law, or if any execution of attachment
shall be issued against Tenant, or any of Tenant's property in the Premises,
whereby the Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant, or if this Lease shall by operation of
law devolve upon or pass to any person or persons other than the Tenant except
as may be permitted in this Lease, then in any of said cases, the Landlord may:
(1) At its option, upon written notice to Tenant, terminate this Lease,
and this Lease and the Term thereof shall automatically cease and terminate as
of the date of such notice;
(2) Enter into the Premises, remove Tenant's property and effects as
elsewhere in the Lease provided, take and hold possession thereof, without such
entry and possession terminating this Lease or releasing Tenant in whole or in
part from Tenant's obligations to pay rent and all its other obligations
hereunder for the full Term;
(3) Require that upon any termination of this Lease whether by lapse of
time, the exercise of any option by Landlord to terminate the same or in any
other manner whatsoever, or upon any termination of Tenant's right to possession
without termination of this Lease, the Tenant shall at once surrender possession
of said Premises to the Landlord and immediately vacate the same, and remove all
effects there from, except such as may not be removed under other provisions of
this Lease. If Tenant fails to do so Landlord may forthwith re-enter said
Premises, with or without process of law, and repossess itself thereof as in its
former estate and expel and remove Tenant and any other persons and property
therefrom using such force as may be necessary, without being deemed guilty of
trespass, eviction or forcible entry, without thereby waiving Landlord's rights
to rent or any other rights given Landlord under this Lease or at law or in
equity;
(4) If the Tenant shall not remove all effects from said Premises as in
this Lease provided, Landlord, at its option, may remove any or all of said
effects in any manner that Landlord shall choose and store same without
liability for loss thereof, and Tenant will pay the Landlord, on demand, any and
all expenses incurred in such removal and storage of said effects for any length
of time during which the same shall be in possession of Landlord or in storage,
or Landlord may at its option, without notice, sell any or all of said effects
in such manner and for such price as the Landlord may deem best and apply the
proceeds of such sale upon any amounts due under this Lease from the Tenant to
the Landlord, including the expenses of removal and sale;
(5) Collect from Tenant any other loss or damage Landlord may sustain
by reason of any breach and any diminished value of said Premises resulting from
said breach;
(6) In the event of a breach, or threatened breach by Tenant of any of
the covenants or provisions of this Lease, have the right to enjoin any such
breach or threatened breach;
(7) Declare the entire rental for the balance of the Term or the entire
Term including the Minimum Rent and all Additional Rentals herein provided for,
immediately due and payable at once. Notwithstanding the foregoing, in the event
Landlord obtains judgment hereunder Tenant shall only be required to pay said
judgment in monthly installments upon the rental payment dates as set forth in
this Lease Agreement unless Tenant defaults in making said payments, in which
event the entire judgment shall, at the option of Landlord, then be immediately
due and payable;
(8) In the event of termination of th1s Lease, before the expiration
date thereof originally fixed, by reason of any provision of this Lease relating
to earlier termination, by reason of the Landlord's exercising any option to
terminate, by reason of any default, neglect or omission on the part of the
Tenant, or if the Landlord shall enter or re-enter upon the Premises, or if the
Tenant shall be ejected, dispossessed or removed there from by summary
proceedings or in any other manner, whether or not specifically enumerated in
this Lease, or if the Premises become vacant, deserted or abandoned, the
Landlord at any time may re-let the Premises, or any part or parts thereof,
either in the name of or for the account of Landlord or Tenant, for such Minimum
Rent and Additional Rent (hereinafter for purposes of this Article "Rents" or
"Rental") and for such Lease Term and upon such terms as Landlord may see fit,
which Lease Term may, at Landlord's option, extend beyond the balance of the
Term of this Lease. Landlord shall not be required to accept any tenant offered
by Tenant nor to observe any instruction given by Tenant about such re-Ietting.
In any such case, Landlord may make such repairs, alterations and additions in
or to the Premises and redecorate the same as it sees fit. Tenant shall pay
Landlord any deficiency between Rents hereby reserved and covenanted to be paid
and the net amount of the Rents collected on such re-Letting, for the balance of
the Term of this Lease, as well as any expenses incurred by Landlord in such
re-Letting, including, but not limited to attorneys' fees, brokers' fees, the
expense of repairing, altering and adding to and redecorating the Premises, and
otherwise preparing the same for re-rental. All such costs, other than the
Rental, unless accelerated, shall be paid by Tenant upon demand by Landlord. Any
deficiency in Rental shall be paid in monthly installments, unless Landlord has
declared the entire Rental for the balance of the Term due, as elsewhere in this
Lease provided. For the purpose of determining the deficiency in Rent, the Rent
reserved shall be deemed to be the Minimum Rent and all Additional Rents herein
provided for. Any suit brought to collect the amount of the deficiency for
anyone or more months shall not preclude any subsequent suit or suits to collect
the deficiency for any subsequent months. Landlord shall in no event be liable
in any way whatsoever for failure to re-let the Premises or in the event that
the Premises are re-let, for failure to collect the Rent thereof under such
re-letting.
Section 16.3 -Waiver of Service.
Except for any notice of default required in this Article 16, the Tenant
expressly waives the service of any further notice of intention to terminate
Tenant's right of possession of said Premises or to re-enter said Premises and
waives the service of any demand for payment of Rent Of for possession and
waives the service of any and every other further notice or demand prescribed by
any statute, law or ordinance and agrees that the simple breach of any of the
covenants of this Lease shall, of itself, without the service of any notice or
demand whatever, at Landlord's option, constitute a forcible detained by the
Tenant of said Premises within the meaning of the statutes of the State of New
York. Tenant hereby expressly waives any and all rights of redemption granted by
or under any present or future laws, in the event of eviction or dispossession
of Tenant by Landlord under any provisions of this Lease. No receipt of monies
by the Landlord from or for the account of Tenant or from anyone in possession
or occupancy of the Premises after the termination in any way of this Lease or
after the giving of any notice shall reinstate, continue or extend the Term of
this Lease or affect any notice given to the Tenant prior to the receipt of such
money, it being agreed that after the service of notice or the commencement of a
suit, or after final judgment for possession of said Premises, the Landlord may
receive and collect any rent or other amounts due. Landlord and such payment
shall not waive or affect said notice, said suit or said judgment.
Section 16.4
-Waiver of Trial The Landlord, Tenant and any Guarantor(s) do hereby knowingly,
voluntarily and intentionally waive the right to a trial by jury of any and all
issues either now or hereinafter provided by law in any action or proceeding
between the parties hereto, or their successors, arising directly or indirectly
out of or in any way connected with this Lease or any of its provisions, the
Tenant's use or occupancy of said Premises and/or any claim for personal injury
or property damage including, without limitation, any action to rescind or
cancel this lease, and any claim or defense asserting that this Lease was
fraudulently induced or is otherwise void or void able. It is intended that said
waiver shall apply to any and all defenses, rights and/or counterclaims in any
action or proceeding at law or in equity. This waiver is a material inducement
for Landlord and Tenant to enter into this Lease.
Section 16.5 Landlord's Rights Cumulated
Any and all rights and remedies which Landlord may have under this Lease and
at law or in equity, shall be cumulative and shall not be deemed inconsistent
with each other, and any two or more or all of said rights and remedies may be
exercised at the same time or at different times and from time to time without
waiver thereof of any right or remedy provided or reserved to Landlord.
Section 16.6 -Attorneys' Fees-"
In the event either party shall bring legal action hereunder against the other
party, the prevailing party shall be entitled to recover from the other party
all reasonable expenses incurred, including reasonable attorney's fees.
Additionally, the Landlord shall be entitled to recover from the Tenant all
reasonable expenses incurred, including reasonable attorney's fees, in
connection with Landlord preserving and protecting its statutory rights in the
event of a filing pursuant to Title 11 of the United States Code, 11 U.S.C.
ss.101 et seq.
Section 16.7 -Tenant's Claims Barren
Any claim, demand, right or, defense by Tenant that arises out of this Lease or
the negotiations that preceded this Lease shall be barred unless Tenant has
given Landlord written notice of such claim, demand, right or, defense within
eighteen (18) months after the date of the inaction, omission, event, or action
that gave rise to such claim, demand, right, or defense.
If any of the aforesaid provisions or any other provision of this Lease shall be
partially or totally unenforceable or declared invalid, void or voidable, said
provision shall be deemed eliminated and of no force and effect and the balance
of this Lease shall continue in full force and effect. If any notice is required
by law to be given such notice shall be given.
ARTICLE 17 -SIGNS
Section 17.1 -Signs,
Landlord, at its sole cost, shall place, construct and maintain a directory or
bulletin board in any lobby of the Building in which the Premises are located,
exclusively for the display of the names of tenants in the Building and their
respective suite and/or space numbers. Tenant shall be entitled to display its
trade name in the directory or bulletin board and to delineate the various
departments and their locations without additional cost to Tenant.
Landlord has the sole right to determine the type of directory or bulletin
board, and the content of the display of the names of tenants (including,
without limitation, size of letters, color and whether affixed or painted).
Tenant shall not have the right to place, construct or maintain on the glass
panes or supports of the windows of the Premises, the doors or the exterior
walls or roof of the Building in which the Premises are located or any interior
portions of the Premises that may be visible from the exterior of the Premises,
any signs, advertisements, names insignia, trademarks, descriptive material or
any other similar item. Landlord, at Tenant's cost, may remove any item placed,
constructed or maintained that does not comply with the provisions of this
Article 17.
ARTICLE 18 -ACCESS TO PREMISES
Section 18.1 -Landlord's Entry on Premises.
Landlord shall have access to the Premises at all reasonable times and, in case
of emergency or entries mandated by legal authority, at any time, for any of the
following purposes:
(1) To determine whether the Premises are in good condition and whether
Tenant is complying with its obligations under this Lease;
(2) To do any necessary maintenance and to make any restoration that
Landlord has the right or obligation to perform to the Premises or the Building
and other improvements in which the Premises are located;
(3) To serve, post or keep posted any notices required or allowed under
the provisions of this Lease;
(4) To show the Premises to prospective brokers, agents, buyers,
tenants, purchaser or mortgage, at any time during the Term; and
(5) To shore the foundations, footings and walls of the Premises or the
Building in which the Premises are located and to erect scaffolding and
protective barriers around or about the Premises, but not so as to prevent entry
to the Premises, and to do any other act or thing necessary for the safety or
preservation of the Premises or the Building and other improvements in which the
Premises are located, if any excavation or other construction is undertaken or
is about to be undertaken on any adjacent property or nearby street. Landlord's
rights under this Article 18 extend to the owner of the adjacent property on
which excavation or construction is to take place and the adjacent property
owner's authorized representatives. Landlord shall not be liable in any manner
for an inconvenience, disturbance, loss of business, nuisance or other damage
arising out of Landlord's entry on the Premises as provided in this Article 18,
but Landlord shall take reasonable steps to minimize the inconvenience to Tenant
resulting from its entry upon the Premises as permitted hereunder. Tenant shall
not be entitled to any abatement or reduction of Minimum Rent if Landlord
exercises any rights reserved in this Article 18.
ARTICLE 19 -SUBORDINATION
Section 19.1 -Subordination.
This Lease and all rights of Tenant hereunder are subject and subordinate to any
mortgages, deeds of trust, deeds to secure debt, ground rents and to all
renewals, modifications, consolidations, replacements and extensions of any of
the foregoing or of substitutions therefore or any other forms or methods of
financing or refinancing which may now or hereafter affect the real property or
leasehold estates of which the Premises form a part whether now in use or not
and any instruments executed for said purposes or hereafter executed by the
owners of the fee or leasehold, if Landlord is not the owner of the fee. Tenant
agrees upon demand to execute, acknowledge and deliver to the owners of the fee
or leasehold estate, without expense to them, any instruments that may be
necessary to confirm this subordination of this Lease and of all of the rights
herein contained to the lien or liens created by any such instruments. If the
Tenant shall fail at any time to execute and deliver any such subordination
instruments upon request the mortgagors in any such new mortgage or mortgages or
the obligors in any form of refinancing as provided above, in addition to any
other remedies available to them in consequence of said default may execute,
acknowledge and deliver such subordination instruments as the attorney-in-fact
of the Tenant and in the Tenant's name, place and stead; said Tenant hereby
makes, constitutes and irrevocably appoints said mortgagors or obligors as its
attorney-in-fact for that purpose. It is further agreed that any secured lender
as aforesaid may, at its option, elect to make this Lease superior to its
mortgage, deed to secure debt, or other instrument referred to herein, by
written notice thereof to the Tenant. Upon request of Tenant, Landlord agrees to
request of any mortgage that it enter into a Subordination, Non-Disturbance and
Adornment Agreement with Tenant. Tenant agrees to execute said Agreement in the
form required by such mortgage.
ARTICLE 20 -NOTICES
Section 20.1 -Notices,
Unless otherwise expressly in this Lease provided, any notice or communication
which Landlord may desire or be required to give to Tenant, including any notice
of termination, shall be deemed sufficiently given or rendered if sent by
Registered Mail or Certified Mail, Return Receipt Requested, or nationally
recognized overnight carrier to Tenant at the address as shown on the Lease or
at such other address as the Tenant may designate in writing from time to time.
Any notice by Tenant to Landlord must be sent by Registered or Certified Mail,
Return Receipt Requested or nationally recognized overnight carrier addressed to
Landlord, Attention: General Counsel, at the address as shown on the Lease or at
such other address as the Landlord may designate in writing from time to time.
The time of the rendition or giving of such notice shall be deemed to be the
time when same is received by the party to whom the notice is sent or the time
such party refuses to receive the notice.
ARTICLE 21 -WAIVER
Section 21.1 -Waiver.
No waiver of any condition or legal right or remedy shall be implied by the
failure of the Landlord to declare Tenant and/or any Guarantor in default nor
for any other reason, and no waiver of any condition or covenant shall be valid
unless it be in writing signed by an authorized officer or partner of the
Landlord, and no waiver by the Landlord in respect to one tenant shall
constitute a waiver in favor of any other tenant, nor shall the waiver of a
breach of any condition be claimed or pleaded to excuse a future breach of the
same condition or covenant or any other condition or covenant. No act or conduct
of Landlord, including, without limitation, the acceptance of the keys to the
Premises, shall constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the Term. Only a notice from Landlord to Tenant
shall constitute acceptance of the surrender of the Premises and accomplish a
termination of this Lease.
ARTICLE 22 -PROVISIONS BINDING, ETC
Section 22.1 -Provisions Binding The conditions, covenants and agreements
contained in this Lease to be kept and performed by the parties hereto, shall be
binding upon and inure to the benefit of said respective parties, their legal
representatives, successors and assigns. This Article shall not be construed to
permit any assignment or subletting, except as otherwise permitted in this
Lease. The term "Landlord" as used in this Lease means only the owner for the
time being of the land and Building (or the owner of a lease of the Building),
so that in the event of any sale or sales of said land and Building or of said
lease, or in the event of a lease of said Building, the said Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, at any such sale, or the said tenant of the Building,
that the purchaser or tenant of the Building as of the date of such purchase or
lease has assumed and agreed to carry out any and all covenants and obligations
of Landlord hereunder.
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ARTICLE 23 -SURRENDER OF PREMISES
Section 23.1 -Surrender of Premises.
On the expiration or earlier termination of the Lease Term, Tenant shall quit
and surrender the Premises, broom clean, in good condition and repair
(reasonable wear and tear, and damage by fire excepted), together with
alterations, additions and improvements including, but not limited to,
carpeting, lighting fixtures, and sign box, if any, that may have been made in,
to, or on the premises, except movable furniture or unattached movable trade
fixtures. On or before the end of the Lease Term, Tenant shall remove all its
property from the Premises and all property not removed shall be deemed
abandoned by T enant (but nothing herein contained shall be deemed to eliminate
the right of Landlord to have Tenant restore the Premises and remove any
alterations, fixtures, equipment, etc., all at Tenant's sole cost and expense).
If the Premises are not surrendered at the end of the Lease Term, Tenant shall
indemnify Landlord and/or its management company against any loss or liability
resulting from delay by Tenant in surrendering the Premises, including, without
limitation, any claims made by any succeeding Tenant founded on the delay.
Section 23.2 -Holdover, If Tenant should remain in possession of the Premises
after the expiration of the Lease Term, then in addition to the indemnification
of Landlord and/or its management company by Tenant required in Article 11.2,
the Tenant holding over shall be deemed to be a Tenant at sufferance only, upon
the same terms and conditions as specified in this Lease, unless different terms
and conditions are imposed by Landlord prior to or at any time and from time to
time after the expiration of this Lease, and further provided that unless
Landlord and Tenant are engaged in bona fide negotiations to extend or renew the
terms of the Lease, the Minimum Rent for such period shall be an amount equal to
double the Minimum Rent for the last year of the expired Term, but Tenant shall
nevertheless be considered a Tenant at sufferance only.
ARTICLE 24 -SECURITY DEPOSIT -Intentionally Deleted
ARTICLE 25 -MISCELLANEOUS PROVISIONS.
Action 25.1 -Consent of Landlord.
Whenever consent or approval of Landlord is required under this Lease, Landlord
may withhold such consent or approval in its sole and absolute discretion.
Section 25.2 Corporate Authority
If Tenant is a corporation, upon execution of this Lease, Tenant shall deliver
to Landlord a certified copy of a resolution of its board of directors
authorizing the execution of this Lease on behalf of Tenant. Tenant represents,
warrants and covenants that it is, upon the date of execution, and throughout
the term of this Lease, authorized to do business and good standing in the State
of New York. Tenant agrees to furnish to Landlord, upon request, evidence of
authority for entering into this Lease.
Section 25.3 -Successor
Except as specifically provided otherwise herein, this Lease shall be binding on
and inure to the benefit of the parties and their successors and assigns.
Section 25.4 -Broker
Each party represents and warrants that it has not had any dealing with any
realtor, broker, or agent, in connection with the negotiation of this Lease and
agrees to indemnify and to hold the other party harmless from any cost, expense
or liability for any compensation, commission, or charges claimed by any
realtor, broker, or agent withwhom it has dealt action
25.5 Riders: Exhibits-
Any rider and/or exhibit attached hereto shall be deemed incorporated herein and
made a part hereof. In the event that any provision contained in said rider
and/or exhibit is inconsistent with the printed provisions of this Lease, the
provisions contained in said rider and/or exhibit shall supersede the printed
provisions of the Lease.
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Section 25.6 Interpretation of Lease.
Although the printed provisions of this Lease were drafted by Landlord, the
terms of this Lease were fully negotiated by the parties and shall not be
construed for or against Landlord or Tenant, but this Lease shall be interpreted
in accordance with the general meaning of the language herein contained in an
effort to reach the intended result. This Lease shall be governed exclusively by
the provisions hereof and by the laws of the State of New York. The parties
further agree, that for purposes of litigation arising between the parties,
hereto, that the venue for any action shall be laid in the County of Monroe and
State of New York or such other location as Landlord may determine.
Section 25.7 -Entire Agreement.
This Lease contains and embraces the entire and only agreement between the
parties hereto and is intended as a final expression of their agreement and as a
complete and exclusive statement of the terms thereof; all negotiations,
considerations and representations between the parties having been incorporated
herein. No oral statements nor prior written matter extrinsic to this Lease
shall have any force or effect. Tenant acknowledges and agrees that neither
Landlord nor any representative of Landlord nor any broker has made any
representations, understandings, agreements, warranties, promises to or
agreement with Tenant relating to the Premises, or the Building or ▇▇▇▇▇▇
Complex or with respect to past, present or future tenancies, rents, expenses,
operations or any other matter which is not contained in the express terms of
this Lease. Tenant acknowledges and agrees that Tenant's execution and delivery
of this Lease is based upon Tenant's independent investigation and analysis of
the business potential and expenses represented by this Lease, and Tenant
expressly waives any and all claims or defenses by Tenant against the
enforcement of this Lease which are based upon allegations of representations,
projections, estimates, understandings or agreements by Landlord or Landlord's
representatives that are not contained in the express terms of this Lease.
Section 16.7 of this Lease shall not be construed to modify any of the
provisions of this Section 25.7.
Section 25.8 -Captions: Titles.
The captions and/or titles are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
Lease nor in any way affect this Lease.
Section 25.9 Singular and Plural.
When required by the context of this Lease, the singular shall include the
plural.
Section 25.10 -Point and Sever I Obligations.
If two or more individuals, corporations, partnerships or other persons (or any
combination of two or more thereof) shall sign this Lease as Tenant, the
liability of each such individual, corporation, partnership or other persons to
pay the Rent and perform all other obligations hereunder shall be deemed to be
joint and several, and all notices, payments and agreements given or made by,
with or to anyone of such individuals, corporations, partnerships or other
persons shall be deemed to have been given or made by, with or to all of them.
In like manner, if Tenant shall be a partnership or other person, the members of
which are, by virtue of any applicable law or regulation, subject to personal
liability, the liability of each such member shall be joint and several.
Section 25.11 -Sever ability.
The unenforceability, invalidity or illegality of any provision of this Lease
shall not render the other provisions of this Lease unenforceable, invalid or
illegal. Section 25.12 Tenant and Landlord. The term "Tenant" shall include
servants, employees, agents, visitors, invitees, licensees, successors and/or
assigns of Tenant. The term "Landlord" shall include successors and/or assigns
of Landlord.
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Section 25.13 -Release
Upon execution of the Lease Extension Agreement, the Tenant hereby releases
the Landlord, its agents, representatives, officers and affiliates from any
claims, causes of action or the like, including, but not limited to, claims
based upon theories of breach of contract, negligent misrepresentation and/or
fraudulent inducement arising from the beginning of time to the date of this
Agreement.
Section 25.14 -Rules and Regulations
The Landlord reserves the right to adopt and promulgate, from time to time.
rules and regulations, and to amend and supplement the same, applicable to the
occupancy of the Building and to the parking space and common facilities
hereinbefore referred to. Notice of such rules, regulations and amendments and
supplements thereto, if any, shall be given to the Tenant. Wherever the terms
rules or regulations are referred to in this Lease, such terms shall be deemed
to mean reasonable rules and regulations which are enforced in a
non-discriminatory manner(1) The rights of Tenant in the entrances, corridors,
elevators and escalators of the Building are limited to ingress to and egress
from the Tenant's Premises for the Tenant and its employees, licensees and
invitees, and no Tenant shall use, or permit the use of the entrances,
corridors, escalators or elevators for any other purpose. Tenant shall not
invite to the Tenant's Premises, or permit the visit of, person in such numbers
or under such conditions as to interfere with the use and enjoyment of any of
the plazas, entrances, corridors, escalators, elevators and other facilities of
the Building by other tenants. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purposes by the Tenant, its
employees, licensees or invitees.
Tenant shall not encumber or obstruct, or permit the encumbrance or obstruction
of any of the sidewalks, plazas, entrances, corridors, escalators, elevators,
fire exits or stairways in and about the Building. Landlord reserves the right
to control and operate the public portions of the Building and the public
facilities, as well as facilities furnished for the common use of the Tenant, in
such reasonable manner as it deems best for the benefit of the Tenant generally.
(2) The cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other tenants,
caused by Tenant or its employees, licensees or invitees, shall be paid by
Tenant. (3) Landlord may refuse admission to the ▇▇▇▇▇▇ Complex and/or the
Building of which the Premises form a part outside of ordinary business hours to
any person not properly identified, and may require all persons admitted to or
leaving the Building outside of ordinary business hours to register. Any of
Tenant's employees, agents and visitors may be permitted to enter and leave the
Building outside of ordinary business hours whenever appropriate arrangements
have been previously made between Landlord and Tenant with respect thereto.
Tenant shall be responsible for all persons for whom it requests such permission
and shall be liable to Landlord for all acts of such persons. Any person whose
presence in the Building at any time shall, in the reasonable judgment of
Landlord, be prejudicial to the safety, character, reputation or interest of the
Building or its tenants may be denied access to the Building or may be ejected
therefrom. In case of invasion, riot, public excitement or other commotion,
Landlord may prevent all access to the Building during the continuance of the
same, by closing the doors or otherwise, for the safety of the tenants and
protection of property in the Building. Landlord shall in no way be liable to
Tenant for damages or loss arising from the admissions, exclusion or ejection of
any person to or from the Tenant's Premises or the Building under the provisions
of this Section 25.14. (4) No person or contractor shall be employed to do
janitor work, window washing, cleaning, decorating or repair in the Premises,
except by Landlord or with Landlord's prior written consent which consent shall
not be unreasonably withheld or delayed. Tenant will not clean, nor require,
permit, suffer or allow any window in the Premises to be cleaned from the
outside in violation of Section 202 of the New York Labor Law.
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.(5) Tenant shall place no objects or projections of any type on the Building
exterior. No projections over or around the windows shall be installed by
Tenant, and only such window blinds, curtains, shades or similar equipment as
are supplied or permitted by Landlord shall be used in Tenant's Premises.
(6)Tenant shall not overload the floors in the Premises. Tenant must obtain from
Landlord prior written approval as to size, maximum weight, routing and location
of business machines, safes and heavy objects, which approval shall not be
unreasonably withheld or delayed. Furniture and other large articles may be
brought into the Building only at times and in the manner reasonably designated
by Landlord. (7) Tenant shall not use, nor allow to be used by contractors,
vendors, suppliers or others in the delivery or receipt of merchandise,
equipment, furniture, fixtures or any other delivery of whatsoever nature, any
hand trucks, except those equipped with rubber tires and side guards.
(8) All entrance doors in Tenant's Premises shall be left locked when Tenant's
Premises are not in use. Tenant assumes fully responsibility for protecting its
Premises from theft, robbery and pilferage. If Tenant requires telegraphic,
telephonic, burglar alarm or similar services, Tenant shall obtain and comply
with Landlord's reasonable instructions in their installation.
(9) No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other tenants in
the Building shall be made or permitted by Tenant, and no cooking shall be done
in Tenant's Premises, except as expressly approved by Landlord. Nothing which
would impair or interfere with any of the building services or the proper and
economic heating, cooling, cleaning or other servicing of the Building or the
Premises, nor the use or enjoyment by any other tenant of any other premises
shall be done or permitted, brought into or kept in Tenant's Premises, nor shall
Tenant install any ventilating, air conditioning, electrical or other equipment
of any kind which, in the judgment of Landlord might cause any such impairment
or interference. Tenant shall not bring nor allow to be brought into the
Building any dangerous, inflammable, combustible or explosive object or
material.(10) Tenant shall not discharge, nor allow to be discharged into the
waste lines, vents or flues of the Building any acids, vapors or other materials
which may damage the same. The water and wash closets, and other plumbing
fixtures in or serving the Tenant's Premises shall not be used for any purpose
other than the purpose for which they were designated or constructed, and no
sweepings, rubbish, rags, acids or other foreign substances shall be deposited
therein. All damages resulting from any misuse of the fixtures by Tenant, its
employees, licensees or invitees shall be borne by the Tenant
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
ROCHWIL ASSOCIA TES
BY: ROCTER PROPER, INC.
General Partner
By
Title:
TENANT:
TIMELY INFORMATION CORP .
By:
Title: