LIST OF EXHIBITS
A Service Providers
B-1 Underwriting and New Business Processing Services
B-2 Producer Licensing, Contracting and Compensation Services
B-3 Policyowner and Claims Processing Services
B-4 Business Unit Actuarial and Financial Management Services
B-5 Information Services
B-6 Legal, Risk Management and Compliance Services
B-7 Human Resource Services
B-8 Marketing and Sales Promotion Services
B-9 Tax Services
B-10 Reinsurance Management and Administration Services
B-11 Management Services
B-12 Procurement, Supply, Printing, Record, File, Mail, Supply and Real
Estate Management Services
B-13 Corporate Accounting, Finance and Treasury Services
B-14 Pricing, Trading, Performance Reporting and Accounting Services for
Variable Products
C Services Chart
Exhibit A
SERVICE PROVIDERS
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COMPANY CONTACT NOTICE
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ReliaStar Life Insurance Company of New York William Bonneville Principal Legal Counsel
1000 Woodbury Road, Suite 102 ReliaStar Life Insurance Company of New York ReliaStar Life Insurance Company of NY
Woodbury, NY 11797 1000 Woodbury Road, Suite 102 1000 Woodbury Road, Suite 102
Woodbury, NY 11797 Woodbury, NY 11797
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SERVICE PROVIDER CONTACT NOTICE
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Equitable Life Insurance Company of Iowa Keith Gubbay Principal Legal Counsel
909 Locust Street Equitable Life Insurance Company of Iowa Equitable Life Insurance Company of Iowa
Des Moines, IA 50309 909 Locust Street 909 Locust Street
Des Moines, IA 50309 Des Moines, IA 50309
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Golden American Life Insurance Company Keith Gubbay Principal Legal Counsel
1475 Dunwood Drive Golden American Life Insurance Company Golden American Life Insurance Company
West Chester, PA 19380 1475 Dunwood Drive 1475 Dunwood Drive
West Chester, PA 19380 West Chester, PA 19380
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ING Financial Advisers LLC Bess Twyman Principal Legal Counsel
151 Farmington Avenue ING Financial Advisers LLC ING Financial Advisers LLC
Hartford, CT 06156 151 Farmington Avenue 151 Farmington Avenue
Hartford, CT 06156 Hartford, CT 06156
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ING Life Insurance and Annuity Company Keith Gubbay Principal Legal Counsel
151 Farmington Avenue ING Life Insurance and Annuity Company ING Life Insurance and Annuity Company
Hartford, CT 06156 151 Farmington Avenue 151 Farmington Avenue
Hartford, CT 06156 Hartford, CT 06156
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ING North America Insurance Corporation Scott Burton Principal Legal Counsel
5780 Powers Ferry Road, NW ING North America Insurance Corporation ING North America Insurance Corporation
Atlanta, GA 30327 5780 Powers Ferry Road, NW 5780 Powers Ferry Road, NW
Atlanta, GA 30327 Atlanta, GA 30327
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ReliaStar Life Insurance Company Keith Gubbay Principal Legal Counsel
20 Washington Avenue South ReliaStar Life Insurance Company ReliaStar Life Insurance Company
Minneapolis, MN 55401 20 Washington Avenue South 20 Washington Avenue South
Minneapolis, MN 55401 Minneapolis, MN 55401
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Security Connecticut Life Insurance Company Keith Gubbay Principal Legal Counsel
20 Security Drive Security Connecticut Life Insurance Company Security Connecticut Life Insurance Co.
Avon, CT 06001 20 Security Drive 20 Security Drive
Avon, CT 06001 Avon, CT 06001
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Security Life of Denver Insurance Company Keith Gubbay Principal Legal Counsel
1290 Broadway Security Life of Denver Insurance Company Security Life of Denver Insurance Company
Denver, CO 80203 1290 Broadway 1290 Broadway
Denver, CO 80203 Denver, CO 80203
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Southland Life Insurance Company Keith Gubbay Principal Legal Counsel
5780 Powers Ferry Road, NW Southland Life Insurance Company Southland Life Insurance Company
Atlanta, GA 30327 5780 Powers Ferry Road, NW 5780 Powers Ferry Road, NW
Atlanta, GA 30327 Atlanta, GA 30327
Exhibit B-1
Underwriting and New Business Processing Services
Services related to underwriting and new business processes including:
1. Underwriting and risk consulting services.
2. Analysis of underwriting standards.
3. Assistance and advice in the development of appropriate underwriting
standards in accordance with all laws and regulations of the Company's
state.
4. Perform underwriting in accordance with Company guidelines.
5. Provide medical and/or technical support and advice to underwriting.
6. Approve for issue all applications which meet underwriting criteria.
7. Process all approved applications and issue and deliver policies to
policyholders.
8. Financial and other reporting in connection with underwriting and new
business processing.
Exhibit B-2
Producer Licensing, Contracting and Compensation Services
Services related to producer licensing and contracting including:
1. Assist with pre-appointment investigations of producers.
2. Administer producer licenses, and contracts and maintain a computer
database for license and contract status.
3. Assist in development of and administer producer compensation and
commission accounting.
Exhibit B-3
Policyowner and Claims Processing Services
Services related to policyowner and claims processing including:
1. Billing, collection, administration and accounting for premiums,
contract payments and withdrawals, and maintenance of customer and
beneficiary accounts.
2. Customer service including response to customer inquiries by telephone
or letter, administration of changes to customer and beneficiary
accounts.
3. Administration of policy changes.
4. Administration and customer support for claims, annuitizations,
rollovers, contract payouts, distribution of benefits and conservation.
5. Processing claims and/or rendering, medical or technical support and
advice relating to the processing, settlement and payment of claims.
6. Surrender, lapse and maturity processing.
7. Financial and other reporting in connection with premiums, policyowner
and processing services.
Exhibit B-4
Business Unit Actuarial and Financial Management Services
Actuarial and financial management related services including:
1. Actuarial consulting services, including clerical, technical and
product actuarial support and product development support.
2. Preparing actuarial reports, opinions and memoranda and assistance with
asset/liability management and cash flow testing.
3. Conducting product experience studies.
4. Preparing reserve calculations and valuations.
5. Development of new products.
6. Evaluation of product performance versus expectations.
7. Consultation and technical assistance in all matters relating to
corporate financing, cash management, financial analysis and financial
systems and programming.
8. Internal and external management reporting services, including
coordination of annual planning process, preparation and consolidation
of monthly operation results, management and policyholder information
reports (e.g., annual reports), maintenance of reporting systems and
provision of cost account reports and services.
9. Premium accounting.
10. Assisting in development of budgets, business plans and financial
models.
11. Determine and make entries, and prepare books of account including
general ledgers, transaction ledgers and trial balances which will be
reviewed for accuracy by officers of Company.
12. Prepare financial statements and reports, including annual, quarterly
and monthly GAAP and statutory financial statements.
13. Enter data regarding customer records information related to premium or
annuity considerations sent to lockboxes, provided that Company will
verify that all such information is accurate and properly reflected.
14. Arrange bank accounts in the name and control of Company, and
processing receipts and disbursements subject to the direction and
control of Company subject to the provisions of Section 1(d) of the
Agreement.
15. Commission accounting, including calculation of commissions and
generation and delivery of checks.
Exhibit B-5
Information Services
Services related to information management including:
1. Professional, technical, supervisory, programming and clerical support
for information services.
2. Informational and computer services may be in the nature of
applications and programming support, enhancing existing systems,
helping to install new systems.
3. Develop data processing systems strategy.
4. Implement systems strategy.
5. Program computers.
6. Provide data center services, including maintenance and support of
mainframe and distribution process hardware and software.
7. Standard systems for product administration, accounts payable,
accounting and financial reporting, human resource management and
inventory control.
8. Manage data and voice communications systems.
9. Manage local area networks and other desktop software and systems.
10. Provide data security and maintain effective disaster recovery program.
11. Purchase hardware, software and supplies.
Exhibit B-6
Legal, Risk Management and Compliance Services
Services related to legal, risk management and compliance including:
1. Provide counsel, advice and assistance in any matter of law, corporate
governance and governmental relations, including advisory and
consulting services, in connection with the maintenance of corporate
existence, licenses, dealings with regulatory agencies, development of
products, contracts and legal documents, product approvals,
registration and filing of insurance and securities products, handling
of claims and matters involving legal controversy, assist with dispute
resolution, select, retain and manage outside counsel and provide other
legal services as reasonably required or requested.
2. Provide assistance in any matter relating to risk management, including
procurement of fidelity bond insurance, blanket bonds, general
liability insurance, property damage insurance, directors' and
officers' liability insurance, workers compensation, and any other
insurance purchased by the Company.
3. Assist in the development and maintenance of a corporate compliance
program and a state insurance fraud reporting program. Assist in
maintaining appropriate records and systems in connection with the
Company's compliance obligations under applicable state law.
4. Provide assistance with internal audit including review of operational
procedures, performance of compliance tests, and assistance to
independent auditors.
Exhibit B-7
Human Resource Services
Services related to human resource management including:
1. Personnel recruiting and support services.
2. Design and implementation of human resources training.
3. Compensation studies and benefits consulting.
4. Support employee communications.
5. Payroll services.
6. Benefits compensation and design and administration.
7. Employee relations.
Exhibit B-8
Marketing and Sales Promotion Services
Services related to marketing and sales promotion including:
1. Prepare sales promotional items, advertising materials and art work,
design, text and articles relevant to such work, including clerical,
technical and supervisory support and related communications.
2. Support general communications with producers.
3. Conduct formal insurance market research.
4. Develop sales illustrations, advertising materials, and software for
products, in compliance with state laws.
5. Design and implement training programs, including product and industry
developments and legal compliance.
6. Distribute to employees and/or agents underwriting guidelines for the
products, where applicable.
7. Analyze and develop compensation and benefit plans for general agents
and agents.
8. Plan and support of producer conferences.
Exhibit B-9
Tax Services
Services related to tax including:
1. Maintenance of tax compliance, including tax return preparation and
review of financial statement tax provisions.
2. Management of tax and audit appeals, including processing information
requests, protest preparation, and participation in any appeals
conference.
3. Direction of tax research and planning, including research of
compliance issues for consistency, development of tax strategies and
working with new legislative proposals.
4. Administration of tax liens, levies and garnishment of wages of Company
employees and agents
Exhibit B-10
Reinsurance Management and Administration Services
Services related to reinsurance management and administration including:
1. Advise with respect to reinsurance retention limits.
2. Advice and support with respect to negotiation of reinsurance treaties.
3. Advice and support with respect to the management of reinsurer relationships.
Exhibit B-11
Management Services
Services related to general management including:
1. Consultative and advisory services to the Company's senior executive
officers and staff with respect to conduct of the Company's business
operations and the execution of directives and resolutions of the
Company's Board of Directors pertaining to business operations and
functions, including provision of personnel to serve as officers and
directors of Company.
2. Consultation and participation in the Company's strategic planning
process; the development of business goals, objectives and policies;
the development of operational, administrative and quality programs;
preparation of financial and other reports; and the coordination of
such processes, goals, objectives, policies and programs with those of
the holding company.
3. Advice and assistance with respect to maintenance of the Company's
capital and surplus, the development and implementation of financing
strategies and plans and the production of financial reports and
records.
4. Representation of the Company's interests at government affairs and
industry meetings; participation in the deliberation and affairs of
trade associations and promotion of the Company's products and
relationships with the public.
5. Consultative, advisory and administrative services to the Company's
senior executive officers and staff in respect to development,
implementation and administration of human resource programs and
policies, the delivery of communications and information to employees
regarding enterprise plans, objectives and results; and the maintenance
of employee relations, morale and developmental opportunities.
6. Direction and performance of internal audits and arrangement for
independent evaluation of business processes and internal control.
Exhibit B-12
Procurement, Supply, Printing, Record, File, Mail and Real Estate Management
Services
Services related to procurement, supplies, printing, records, files, mail and
real estate management including:
1. Procurement and supply purchasing services, including negotiation of
supply and services purchasing agreements and distribution of supplies.
2. Printing, record, file, mail and supply services including, maintaining
policy files; document control; production and distribution of standard
forms, stationary, business cards and other material; arrangement of
warehouse storage space; supply fulfillment; mail processing, delivery
and shipping; participation in purchasing agreements; retrieval and
production of documents for regulatory examinations and litigation; and
development and administration of record retention programs.
3. Real estate management services.
Exhibit B-13
Corporate Accounting, Finance and Treasury Services
Services related to corporate accounting, finance and treasury including, but
not limited to:
1. Accounts Payable: Making vendor payments, monitoring recurring
payments, processing stop payments, preparation and filing sales and
use tax reports and returns, responding to questions from vendors,
processing travel and expense reports, maintaining check stock and
providing copies of check images to the Companies.
2. Fixed Assets: Accounting for real estate transactions, maintaining the
fixed asset records and processing payments for property taxes.
3. General Ledger: Processing journal entries, processing expense
allocations, establishing and maintaining accounts and cost centers,
processing intercompany transactions and processing the monthly
closing.
4. Financial Reporting: Generating applicable monthly, quarterly and
annual financial statements on statutory, US GAAP, tax and ING (Dutch)
GAAP bases; monitoring changes to statutory, US GAAP, tax and ING GAAP
accounting standards; corresponding and coordinating reporting to
regulatory agencies; coordinating the external audit with the external
auditors; coordinating external examinations with state insurance
departments; preparing and filing RBC calculations, preparing and
filing escheat reports, preparing and filing benefit plan reports, and
preparing other required regulatory filings.
5. Treasury/Cash Management: Maintaining banking relationships, performing
cash management procedures and short-term investment of cash balances,
and processing of wire transfers.
6. Other: Preparing budget and planning reports for finance shared
services, monitoring suspense account reports and other matters as
requested by each Company, and management of external auditor
relations.
7. Consultation and technical assistance in matters related to corporate
financing, cash management, financial analysis, capital and surplus,
specialized financial systems and programming, and development of
budgets, business plans and financial models.
8. Investment accounting services, including interface with Company
investment manager for documentation of investment transactions,
recording financial activity and compliance reporting.
9. Internal and external management reporting services, including
coordination of annual planning process, preparation and consolidation
of monthly operation results, management and policyholder information
reports (e.g., annual reports), maintenance of reporting systems and
provision of cost account reports and services.
Exhibit B-14
Pricing, Trading, Performance Reporting and
Accounting Services for Variable Products
Services related to support of day to day pricing, trading, performance
reporting and accounting operations for variable products, including but not
limited to:
1. Pricing. Collect pricing information (net asset value and ordinary
income / capital gain distributions) from Investment Companies, and
where applicable, calculate the variable account unit value. Provide
pricing information to the applicable administrative systems / business
units and external business partners; pricing calculations for
insurance products shall be reported as required by the prospectus for
each product.
2. Trading. Collect net trade data from administrative systems,
consolidate to a legal entity level per investment option, and submit
to Investment Companies; on a daily basis reconcile the shares / trade
per to Investment Company; provide wire data for the settlement of
trades placed.
3. Accounting. Post to ledger the entries supporting the trades and wires
processed; entries will include any applicable Variable Annuity Account
contract charges; daily reconcile entries posted to ledger / market
value to Variable Annuity Account liability / reserve; provide Variable
Annuity Account data for the Financials and Insurance Company Schedule
D.
4. Investment Company Revenue. Calculate asset based revenue /
sub-accounting fees monthly and post accruals to the ledger; collect
revenue from investment companies in a timely manner; reconcile amounts
received to the estimated calculated, and book actual payments to
ledger.
5. Performance Reporting. Calculate product and investment option level
returns in accordance with SEC and NASD guidelines; provide returns to
ING applications, web sites, marketing, and field.
EXHIBIT 10.(i)
2
AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
This Amendment to Investment Advisory Agreement (this "Amendment")
amends the Investment Advisory Agreement between ING Investment Management LLC
("IIM") and ReliaStar Life Insurance Company of New York ("Client"). This
Amendment is dated as of September 1, 2003.
1. Background. IIM and Client are parties to an Investment Advisory Agreement,
dated as of January 1, 2001, as amended (the "Agreement"), pursuant to which IIM
provides Client with certain investment advisory services. IIM and Client wish
to clarify the limited circumstances under which IIM may have custody of Client
funds or securities under the Agreement. Although the parties do not intend by
this Amendment to address whether or not Original Mortgage Documents (as defined
below) are in fact securities, it is the intention of IIM and Client that,
except as may be otherwise agreed from time to time, IIM will not have actual or
constructive custody of Client funds or securities other than Original Mortgage
Documents.
2. Amendment to Section 3 of the Agreement. Section 3 of the Agreement is hereby
amended to add the following to the end of such Section:
"Notwithstanding anything to the contrary in this Section 3,
except with regard to such Original Mortgage Documents as are
selected by IIM from time to time, and as may otherwise be
agreed between IIM and Client:
(a) IIM shall not maintain physical custody of Client funds
or securities; and
(b) IIM shall not have the power to direct any custodian or
other third party to transfer Client funds or
securities, except in the case of (i) transactions
involving a delivery vs. payment or vice versa, (ii)
free receipts into Client Accounts, (iii) transfers
between Client's own accounts, (iv) transfers to
satisfy margin or collateral calls by brokers or other
counterparties, and (v) other transactions that would
not reasonably be considered to result in actual or
constructive custody of Client funds or securities.
"Original Mortgage Documents" means original (a) mortgage
notes, (b) certificates of participation where more than one
entity has invested in the mortgage via a participation
agreement, and (c) letters of credit, as applicable, that are
provided from time to time by borrowers as additional
security."
3. Amendment to Section 6 of the Agreement. The third sentence of Section 6 of
the Agreement is hereby amended to add the language highlighted in italics
below:
"Except as specially contemplated by Section 3, IIM shall not
maintain custody of Client funds or securities or otherwise
act as custodian for the Account."
4. Amendment to Section 9 of the Agreement. Section 9 of the Agreement is hereby
amended to read as follows:
Section 9. LIMITATION OF LIABILITY - In rendering services
under this Agreement, IIM will not be subject to any liability to
Client or to any other party for any act or omission of IIM except as a
result of IIM's negligence, misconduct or violation of applicable law.
Nothing herein shall in any way constitute a waiver or limitation of
any rights of any party under applicable Federal or State law.
5. Amended Agreement. Except as specifically amended by this Amendment, each and
every term of this Agreement remains in full force and effect.
CLIENT: RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Paula Cludray-Engelke
Name: Paula Cludray-Engelke
Title: Secretary
IIM: ING INVESTMENT MANAGEMENT LLC
By: /s/ Fred C. Smith
Name: Fred C. Smith
Title: Executive Vice President
EXHIBIT 10.(j)
GROUP LONG TERM DISABILITY INCOME
QUOTA SHARE REINSURANCE AGREEMENT
EFFECTIVE NOVEMBER 1, 2002
issued to
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
(hereinafter called the "Insurer")
by
RELIASTAR LIFE INSURANCE COMPANY
(hereinafter called, the "Reinsurer")
This Agreement shall be construed as an honorable undertaking between the
parties with mutual obligations of utmost good faith and fair dealing.
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
GROUP LONG TERM DISABILITY INCOME
QUOTA SHARE REINSURANCE AGREEMENT
EFFECTIVE NOVEMBER 1 2002
INDEX
ARTICLE SUBJECT PAGE
I. BUSINESS COVERED............................................3
II. COMMENCEMENT AND TERMINATION................................3
III. TERRITORY...................................................4
IV. EXCLUSIONS..................................................4
V. QUOTA SHARE PARTICIPATION...................................4
VI. RECAPTURE...................................................5
VII. PREMIUM.....................................................5
VIII. ORIGINAL CONDITIONS.........................................6
IX. CLAIMS......................................................6
X. EXTRA CONTRACTUAL OBLIGATIONS...............................6
XI. REPORTS AND REMITTANCES.....................................6
XII. ERRORS AND OMISSION.........................................7
XIII. ACCESS TO RECORDS...........................................7
XIV. ARBITRATION.................................................7
XV. INSOLVENCY..................................................7
XVI. CONFIDENTIALITY.............................................8
XVII. MISCELLANEOUS...............................................8
Schedule A Insurer Expense Allowance...................................10
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
GROUP LONG TERM DISABILITY INCOME
QUOTA SHARE REINSURANCE AGREEMENT
EFFECTIVE NOVEMBER 1, 2002
ARTICLE I
BUSINESS COVERED
A. This Agreement applies to all business, except as hereinafter
excluded, written and classified by the Insurer as employer group long term
disability, becoming effective between November 1 and December 31, 2002, plus
all employer group long term disability business otherwise effective in 2002 and
first renewing in 2003, with such reinsurance to become effective November 1,
2002, with respect to premium earned and claims incurred on or after that date.
B. The term "Policies", whenever used herein, shall mean all binders.
policies. contracts. certificates and other obligations of insurance, excluding
conversion from such policies.
ARTICLE II
COMMENCEMENT AND TERMINATION
A. This Agreement shall become effective on November 1, 2002. and shall
apply to losses occurring thereafter and shall remain in force for an indefinite
period, but either party shall have the right to cancel on the earlier of
January 1, 2004 or any subsequent anniversary thereafter, by giving at least one
hundred eighty (180) days prior written notice by certified or registered mail.
B. In the event either party cancels in accordance with the paragraph
above, the Reinsurer shall participate in all policies ceded within the terms of
this Agreement written or renewed by the Insurer after receipt of notice of
cancellation but prior to the effective date of termination; the Reinsurer will
also participate in all such policies until the end of any rate guarantee period
applicable to such policies, even if a policy renewal would occur after the
effective date of termination-the termination date of this Agreement for such
policies will be as of the end of the term of the rate guarantee period.
C. This Agreement remains in effect for any liability incurred on the
underlying insurance prior to termination.
D. Upon termination of this Agreement, all books and records pertaining
to this Agreement will be returned to the Company, at the Company's expense.
ARTICLE III
TERRITORY
The territorial limits of this Agreement shall be policies written in the State
of New York and issued to New York policyholders.
ARTICLE IV
EXCLUSIONS
This Agreement shall not cover groups that: (a) insure less than ten
(10) employees: (b) have a monthly maximum benefit greater than $15.000; (c)
have a rate guarantee period exceeding twenty-four (24) months: (d) have a
percentage of "Blue Collar" employees higher than forty percent (40%) ("Blue
Collar' refers to semiskilled craftspeople, service workers who perform moderate
physical labor, heavy laborers, and hazardous occupations, generally unskilled;
(e) are a voluntary long term disability plan; and (f) are an association or
multiple employer trust.
Notwithstanding the above, groups otherwise excluded may be approved on a
facultative basis by mutual agreement.
ARTICLE V
QUOTA SHARE PARTICIPATION
A. The Insurer shall cede and the Reinsurer shall accept a seventy-five
percent (75%) quota share participation on the Insurer's liability. The risk
retained by the Company on the business covered by this Agreement shall not be
transferred or reinsured by the Insurer elsewhere on any basis without the
agreement of the Reinsurer. The Reinsurer's share of the Insurer's liability of
any one insured person's monthly benefit shall not be more than the applicable
quota share percentage of $15.000 of Gross Monthly Benefit. If the parties agree
to facultatively include groups with a higher Gross Monthly Benefit, then the
quota share percentage for such claims will be one hundred percent (100%) for
amounts over $15.000.
B. "Liability" shall mean the liability which the Insurer retains net
for its own account. Liability shall be based on all loss adjustment expenses
and the Reinsurer shall be liable for its proportionate share of all such
expenses, irrespective of the limit hereunder applying to any one insured
person. "Loss adjustment expenses" will include benefits paid to claimants, all
routine itemized expenses incurred to establish eligibility and all non-routine
expenses or fees paid to external entities following claim approval. Examples of
routine expenses include, but are not limited to, office notes from the
attending physician and payment for completion of attending physician
statements. Examples of nonroutine expenses include, but are not limited to,
Independent Medical Examinations, tuition reimbursements, Social Security
assistance, chronic pain rehabilitation programs, job accommodation equipment,
adaptive devices or other medical and vocational case management tools or
services. Extraordinary expenses are subject to Reinsurer approval, which
approval shall not be unreasonably withheld. For these purposes, an expense will
be deemed to be extraordinary if it is an expense payment amount over
$10.000.00. Expenses will not include salaries of the Insurer's employees or
payment to independent contractors performing similar functions on a routine
basis.
C. "Gross Monthly Benefit" shall mean the monthly benefit payable under
the Insurer's original policies prior to any reduction for other income benefits
that may be payable as a result of disability.
D. "Gross Monthly Premium" shall mean the gross consideration for the
policies reinsured here under and actually received and journalized by the
Insurer.
E. The Insurer represents that it has provided the Reinsurer access to
all of the Insurer's existing written standard underwriting rules, premium
rates, and policy forms applicable to the Policies. The Reinsurer shall not be
bound by any change to the Company's standard policy language, certificate
language, underwriting rules or premium rates that would result in a material
risk increase unless the Insurer notifies the Reinsurer. Upon receipt of such
notice, the Reinsurer shall have the right to accept or exclude the Policies
affected by such change from this Agreement. or the parties may agree to a
reinsurance premium modification for such affected policies. If the Reinsurer
does not respond to the Insurer's notice of a material change, as referenced
above, within fifteen (15) days of receiving such notice, the change will be
deemed to have been accepted without any reinsurance premium modification.
F. The parties acknowledge and agree that the Reinsurer, either
directly or through an intermediary, may provide a variety of consulting
services, including underwriting and case management services. The Reinsurer's
administrative expenses for the services will be paid at cost and will be
provided in accordance with New York Regulation 33, as set forth in the
intercompany services agreement between the parties (Agreement Number 29998).
G. The Insurer's expense allowances are set forth in Schedule A.
ARTICLE VI
RECAPTURE
Following the two year anniversary of this Agreement, the Insurer may
increase the Insurer's retention in increments of not more than fifteen percent
(15%) of the total risk, provided. however, that the quota share percentage may
not be reduced to less then fifty percent (50%). Such recapture shall be made
only on an Anniversary date. Notice of intent to recapture must be given in
writing no less than one hundred twenty (120) days prior to the Anniversary date
on which any recapture would occur. Recapture of in force reinsurance shall not
apply to claims incurred prior to the date of recapture. There is no additional
fee or charge for exercise of the recapture rights set forth in this Article.
ARTICLE VII
PREMIUM
The reinsurance premium payable is based on the applicable quota share
percentage of the Gross Monthly Premium received by the Insurer. The monthly
amounts remitted shall be as set forth in Article XI. and subject to the
expenses and adjustments set forth in that article.
ARTICLE VIII
ORIGINAL CONDITIONS
All amounts ceded hereunder shall be subject to the same gross rates
and to the same clauses, Conditions, and modifications of the Insurer's
policies.
ARTICLE IX
CLAIMS
A. The Insurer shall notify the Reinsurer by way of monthly statements
of each disability claim for which reinsurance is provided hereunder.
B. The Reinsurer shall pay losses in accordance with its proportional
share of its contractual liability and shall follow the claims paying and
settlement decisions of the Insurer, subject always to the limits, terms and
conditions of this Agreement.
ARTICLE X
EXTRA CONTRACTUAL OBLIGATION
The Reinsurer shall not be liable for attorneys fees, court costs,
penalties, interest upon judgments, or any extra-contractual damages of any,
nature or kind, including but not limited to punitive, statutory, compensatory,
or exemplary damages or any damages or penalties of any kind assessed by any
state or federal regulatory body or court of law, provided that the Reinsurer
will pay its share of extracontractual amounts awarded against the Company in
connection with coverage reinsured under this Agreement if the Reinsurer elected
and agreed in writing to support the claim decision resulting in the coverage
dispute, hearing, or litigation in question.
ARTICLE XI
REPORTS AND REMITTANCES
A. Within thirty (30) days after the close of each month, the Insurer
shall provide the Reinsurer with a summary report reflecting the monthly premium
due. This report shall contain the Gross Monthly Premium, including conversion
premium, less losses and loss adjustment expenses. commissions, fees, and the
expenses set forth in Schedule A, resulting in a net balance due either party.
This report shall also include the Insurer group name and number.
B. The Insurer will have the opportunity to review the report and
correct any errors. Undisputed amounts due the Reinsurer shall be remitted
within thirty (30) days of the report. Undisputed amounts due the Insurer shall
be remitted within thirty (30) days following receipt of the report. The parties
will use their best efforts to promptly and reasonably resolve and reconcile any
payment issues, provided that either party retains the right to commence the
arbitration procedures set forth in this Agreement.
ARTICLE XII
ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions made by the Insurer in
connection with this Agreement shall not relieve the Reinsurer from any
liability which would have attached had such delay, error or omission not
occurred, provided always that such delay, error or omission shall be rectified
as soon as possible after discovery by the Insurer's Home Office.
ARTICLE XIII
ACCESS TO RECORDS
Each party shall place at the disposal of the other party at all
reasonable times, and shall have the right to inspect through their designated
representatives, during the term of this Agreement and thereafter, all books,
records and papers of the other party in connection with any reinsurance
hereunder, or the subject matter hereof. In addition, each party will maintain
its books and records pertaining to this Agreement in accordance with New York
Regulation 152, as may be amended from time to time.
ARTICLE XIV
ARBITRATION
Either party (hereinafter called "Claimant") may request arbitration to
resolve any dispute arising out of this Agreement. If the other party
(hereinafter called "Respondent") agrees to arbitration. such arbitration shall
be binding upon both parties. Such dispute shall be submitted to the decision of
a board of arbitration composed of two arbitrators and an umpire, meeting in New
York, unless otherwise agreed. The arbitration shall be conducted and governed
in accordance with New York law.
The members of the board of arbitration shall be active or retired
disinterested officials of insurance or reinsurance companies or agencies other
than the parties or their affiliates. Each party shall appoint its arbitrator,
and the two arbitrators shall choose an umpire before instituting the hearing.
If the Respondent fails to appoint its arbitrator within four (4) weeks after
being requested to do so by the Claimant, the latter shall also appoint the
second arbitrator. If the two arbitrators fail to agree upon the appointment of
an umpire within four (4) weeks after their nominations, each of them shall name
three, of whom the other shall decline two and the decision shall be made by
drawing lots. The decision rendered by a majority of the arbitrators shall be
final and binding on both parties. Judgment upon the award rendered may be
entered in any court of competent jurisdiction.
ARTICLE XV
INSOLVENCY
In the event of the insolvency of the Insurer, all reinsurance made,
ceded, renewed or otherwise becoming effective under this Agreement shall be
payable without diminution because of the insolvency of the Insurer. Such
payments by the Reinsurer shall be made directly to the Insurer or its
liquidator, receiver, or statutory successor. It is agreed, however, that the
liquidator, receiver or statutory successor of the insolvent Insurer shall give
written notice to the Reinsurer of the pendency of a claim against the Insolvent
Insurer on the policy or policies reinsured within a reasonable time after such
claim is filed in the insolvency proceeding and that during the pendency of such
claim the Reinsurer may investigate such claim and interpose. at its own
expense, in the proceeding where such claim is to be adjudicated, any defense or
defenses which it may deem available to the Insurer or its liquidator or
receiver or statutory successor. The expense thus incurred by the Reinsurer
shall be chargeable, subject to court approval, against the insolvent Insurer as
part of the expense of liquidation to the extent of a proportionate share of the
benefit which may accrue to the Insurer solely as a result of the defense
undertaken by the Reinsurer. Where two or more Reinsurers are involved in the
same majority and a majority in interest elects to interpose defense to such
claim, the expense shall be apportioned in accordance with the terms of this
Agreement as though such expense had been incurred by the insolvent Insurer.
ARTICLE XVI
CONFIDENTIALITY
Whereas this Agreement is solely between the Insurer and Reinsurer,
both parties warrant that they will restrict written disclosures as to the
terms, conditions, parties or extent of this Agreement, unless made to financial
auditors, compelled by law, or required by an appropriate governing body, or in
publications such as annual statements.
ARTICLE XVII
MISCELLANEOUS
A. Assignment. Except as provided otherwise in this Agreement, neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party hereto without the prior written consent of the other, which consent shall
not be unreasonably withheld. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns.
B. Entire Agreement. This document constitutes the entire agreement
between the parties hereto and supersedes all prior agreements with respect to
the subject matter hereof, whether oral or written.
C. Amendments. Except as otherwise expressly provided in the Agreement,
any amendment or modification shall not be effective unless and until a written
instrument is executed by both of the parties hereto.
D. Waiver. The waiver by either party hereto of any provisions of this
Agreement on any one or more occasions shall not be construed to constitute a
waiver of that or any other provision on any other occasion.
E. Survival. The representations, warranties, covenants and obligations
contained herein shall survive the execution of the Agreement and the
performances hereunder.
F. Governing Law. This Agreement shall be governed by the laws of the
State of New York without regard to principals of conflicts of laws.
G. Severability. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof. Any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
H. Exhibits and Schedules. The exhibits and schedules hereto. including
any agreed upon amendments hereto. shall be deemed a part of this Agreement as
fully and effectively as if set forth in the bode of this Agreement.
I. Counterparts. This Agreement may be executed in separate
counterparts. each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
In witness of the above, the parties hereto have caused this Agreement
to be executed, in duplicate, as of the dates indicated.
RELIASTAR LIFE INSURANCE RELIASTAR LIFE INSURANCE
COMPANY COMPANY OF NEW YORK
By: /s/ Barbara Barhorst By: /s/ Gerald T. Bannach
Its: Vice President Its: Vice President
Date: January 21, 2003 Date: January 21, 2003
SCHEDULE A
Insurer Expenses By Group
Annual Premium (in thousands) Expense Allowance
Less than 25.000 26.80%
25,000 - 30,000 24.90%
30.000 - 37,500 23.90%
37,500 - 45.000 23.50%
45.000 - 60,000 23.10%
60,000 - 75.000 23.10%
75,000 - 90,000 22.80%
90,000 - 128,910 22.10%
128,910 -185,870 21.00%
185,870 - 242,830 19.89%
242.830 - 328.270 19.02%
328,270 - 456.430 18.05%
456,430 - 648.670 17.14%
648.670 - 850,000 16.33%
850,000 - 1,150,000 15.61%
1,150,000 - 1.500,000 14.95%
1,500,000 & above 14.38%
The Insurer's Expense Allowance will be increased for each group to reflect the
commissions paid or payable for each such group.
EXHIBIT 10.(k)
THE TILLES INVESTMENT COMPANY
LANDLORD
WITH
THE NORTH ATLANTIC LIFE INSURANCE COMPANY OF AMERICA
TENANT
AGREEMENT OF LEASE
TABLE OF CONTENTS
ARTICLE PAGE
I DEMISE 1
II TERM 2
III BASIC RENT - ADDITIONAL RENT 4
IV UTILITIES AND SERVICES 6
V LANDLORD'S WORK, REPAIR AND MAINTENANCE 8
VI CHANGES AND ALTERATIONS - SURRENDER OF
DEMISED PREMISES 10
VII COMPLIANCE WITH ORDERS, ORDINANCES, ETC. 12
VIII MECHANIC'S LIENS 13
IX INSPECTION OF DEMISED PREMISES BY LANDLORD 14
X RIGHT TO PERFORM COVENANTS 15
XI DAMAGE OR DESTRUCTION 16
XII CONDEMNATION 19
XIII BANKRUPTCY OR OTHE DEFAULT 22
XIV CUMULATIVE REMEDIES - NO WAIVER 31
XV SUBORDINATION 32
XVI QUIET ENJOYMENT 33
XVII NOTICES 34
XVIII DEFINITION OF CERTAIN TERMS, ETC. 35
XIX INVALIDITY OF PARTICULAR PROVISIONS 36
XX COVENANTS TO BIND AND BENEFIT RESPECTIVE
PARTIES 37
XXI INSURANCE 38
XXII USE, ASSIGNMENT OR SUBLETTING 39
XXIII RULES AND REGULATIONS 41
XXIV LANDLORD'S LIABILITY 42
XXV ENTIRE AGREEMENT 43
XXVI CERTIFICATES 44
XXVII SECURITY 45
XXVIII BROKER 46
XXIX SIGNS 47
XXX HOLDING OVER 48
XXXI OPTION TO RENEW 49
XXXII ADDITIONAL SPACE 51
EXHIBITS
Demised Premises "A"
Building Site Plan "B"
Work Letter "C"
Cleaning Specifications "D" & "D-1"
Rules & Regulations "E"
THIS INDENTURE OF LEASE made the 11th day of August, 1995, by and
between THE TILLES INVESTMENT COMPANY, with offices at 7600 Jericho Turnpike,
Woodbury, New York 11797, hereinafter referred to as the "LANDLORD" and THE
NORTH ATLANTIC LIFE INSURANCE COMPANY OF AMERICA, with offices at 2 Robbins
Lane, Jericho, New York 11753 hereinafter referred to as the "TENANT"
W I T N E S S E T H
WHEREAS, the LANDLORD is the owner in fee of the premises hereinafter
demised NOW, THEREFORE, LANDLORD and TENANT covenant and agree as
follow:
ARTICLE I
DEMISE
Section 1.1 The LANDLORD, for and in consideration of the rents,
covenants and agreements hereinafter reserved and contained herein, hereby
leases and TENANT does hereby take and hire, upon and subject to the covenants
and conditions hereinafter expressed which the TENANT agrees to keep and
perform, the premises shown on the floor plans annexed hereto as Exhibit "A"
(consisting of 23,000 square fee rentable on the first floor and 6,250 square
feet rentable on the lower level) hereinafter called the "Demised Premises" in
the building as shown o the Plan annexed hereto and marked Exhibit "B", situated
at 1000 Woodbury Road, Woodbury, New York 11797, together with the right to use,
in common with other tenants of the LANDLORD in this and other buildings, the
parking area shown on Exhibit "B" (hereinafter called "parking area") for the
parking of automobiles of employees, customers, invitees or the parking of
automobiles of employees, customers, invitees or licensees of the TENANT and
other tenants of the LANDLORD. LANDLORD shall provide four (4) spaces in the
executive parking lot.
ARTICLE II
TERM
Section 2.1 The basic term of this lease (hereinafter referred to as
the "Term") shall commence upon the date the LANDLORD gives notice to the TENANT
that the LANDLORD has substantially completed the work set forth on the Work
Letter attached hereto as Exhibit "C". The term "substantially completed" as
used herein shall be deemed to mean so complete as to allow the TENANT to enter
the Demised Premises and conduct its normal business operations therein even
though there may be minor items of decoration or construction to be completed.
At the time of the commencement of the lease the LANDLORD shall have received a
temporary or permanent Certificate of Occupancy for the Demised Premises (unless
any work to be done therein, by the TENANT shall prevent the issuance of either
such Certificate of Occupancy) and the air conditioning, heating, plumbing and
electrical systems in the Demised Premises and the elevator in the building
shall be in working order and the said Demised Premises shall be free of debris.
LANDLORD shall complete all "punchlist" items within thirty (30) days of TENANT
providing said list to the LANDLORD.
Section 2.2 The term of this lease shall be for ten (10)
years and two (2) months. The term "lease year" as
used herein or "year" as used herein, shall mean a
twelve
(12) month period. The first lease year shall commence on the date of the term
hereof, but if such date of commencement shall be a date other than the first
day of a month, the first lease year shall commence on the first day of the
month following the month in which the term of the lease commences. Each
succeeding lease year during the term hereof shall commence on the anniversary
date of the first lease year.
Section 2.3 Immediately following the determination of the commencement
date of the term of this lease, the LANDLORD and the TENANT, at the request of
either party, shall execute an agreement in recordable form, setting forth both
the dates of the commencement of the term of this lease and the date of the
termination hereof.
Section 2.4 The parties expect that the term of this lease shall
commence for the lower level on or about the 21st day of August, 1995 and for
the first floor space on or about the 25th day of August, 1995, and end on the
31st day of October, 2005. Notwithstanding anything contained to the contrary
herein, in no event shall the Annual Basic Rent as noted in Section 3.1 commence
prior to the 1st day of September, 1995. In the event, however, that the
LANDLORD is unable to substantially complete the work set forth on Exhibit "C"
by reason of strikes, inability to obtain materials, governmental regulations,
acts of God or other matters beyond LANDLORD'S control then and in that event
the provisions of Section "2.1" shall control the commencement of the term
hereof.
ARTICLE III
BASIC RENT - ADDITIONAL RENT
Section 3.1 Commencing two (2) months after the lease commencement date
(which for purposes of this Section 3.1 only shall be no earlier than September
1, 1995), the TENANT shall pay to the LANDLORD an Annual Basic Rent to THE
TILLES INVSTMENT COMPANY at P.O Box 9020, Hicksville, New York 11802-9020 in
equal monthly installments in advance of or on the first day of each month
without notice and demand and without abatement, deduction or set-off of any
amount whatsoever based on the following schedule:
TERM ANNUAL RENT MONTHLY RENT
Lease Year 1 $629,000.00 $52,416.67
Lease Year 2 $632,437.50 $52,703.13
Lease Year 3 $635,875.00 $52,989.58
Lease Year 4 $639,312.50 $53,276.04
Lease Year 5 $642,750.00 $53,562.50
Lease Year 6 $646,187.50 $53,848.96
Lease Year 7 $666,875.00 $55,572.92
Lease Year 8 $687,562.50 $57,296.88
Lease Year 9 $708,250.00 $59,020.83
Lease Year 10 $728,937.50 $60,744.79
The fractional rent, if any, from the rent commencement date (as above provided)
to the date of the first day of the following month shall be paid by the TENANT
to the LANDLORD within five (5) days after the rent commencement date. The
LANDLORD acknowledges receipt of $157,250.01 representing the rent for the first
three (3) full months for which rent is due hereunder.
Section 3.2 In the event that LANDLORD or any major tenant of the
building should contest any taxes or assessments levied against the building,
the TENANT agrees to cooperate but is not obligated to contribute o any expenses
incurred by the LANDLORD in any such proceeding or action.
Section 3.3 Rent and Additional Rent shall be payable in lawful money
of the United States to the LANDLORD at P.O. Box 9020, Hicksville, New York
11802-9020, or at such other place as the LANDLORD may from time to time
designate, in advance, without notice, demand, offset or deduction except as
specifically set forth herein. In the event any payment of Basic Rent or
Additional Rent shall not be made to LANDLORD within ten days of the due date
thereof there shall be added to the amount a sum equal to five percent of the
unpaid items to help to defray LANDLORD'S additional costs for additional
bookkeeping and other costs in connection therewith.
ARTICLE IV
UTILITIES AND SERVICES
Section 4.1 Throughout the term of this lease LANDLORD shall supply and
pay for the electricity in the Demised Premises and for the common areas for
normal lighting. The TENANT shall use no electricity equipment in the Demised
Premises other than normal typewriters, personal computers, photocopiers,
telecopiers, postage meter, microwave, refrigerator and other normal small
office business machines. If the TENANT introduces equipment onto the premises
other than other normal small office business machines, TENANT shall reimburse
LANDLORD for the cost of the electricity necessary for same.
Notwithstanding the above, LANDLORD shall install a submeter (the
"Submeter") to measure al electricity consumed in the computer room, including,
but not limited to, electricity used for lighting, computers and special air
conditioning in the computer room. LANDLORD shall read the Submeter at the end
of each lease year and shall multiply the number of kilowatt hours showed on
such Submeter to be consumed during such lease year by the average cost per
kilowatt hour for electricity paid by LANDLORD for the building, of which the
Demised Premises are a part, for such lease year (the "Annual Computer Room
Electric Cost"). As used herein, the term "Computer Room Electric Allowance"
shall mean the product of multiplying the number of useable square feet in the
computer room by $3.00. The term "Excess Computer Room Electric Costs for any
lease year promptly following the end of each lease year, submit a detailed
statement to TENANT setting forth the Excess Computer Room Electric Costs, if
any. TENANT, upon receipt of such statement, shall promptly pay to LANDLORD, as
additional rent, the Excess by TENANT on account thereof. Following the delivery
of each statement setting forth the Excess Computer Room Excess Costs for first
day of each month thereafter 1/12 of the Excess Computer Room Electric Costs for
the preceding lease year on account of the Excess Computer Room Electric Costs
for such current lease year, TENANT shall promptly pay to LANDLORD the amount by
which the Excess Computer Room Electric Costs exceed the amount of Excess
Computer Room Electric Costs for such lease year, LANDLORD shall refund such
excess to TENANT or credit such excess against the next rents due under this
lease.
Section 4.2 LANDLORD shall supply, at LANDLORD'S own cost and expense,
water to the building of which the Demised Premises form a part for normal
office building consumption.
Section 4.3 The LANDLORD covenants to provide and pay for heat,
air-conditioning, elevator service and electricity between the hours of 8:00
A.M. and 6:00 P.M., Monday through Friday and Saturday between the hours of 8:00
A.M. to 1:00 P.M. However, if one of the days above is a "Holiday", the above
services shall not be in question. The term "Holiday", the above services shall
not be in operation. The term "Holidays" shall mean New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas,
and such other Holidays as may from time to time be nationally recognized.
Section 4.4 The LANDLORD covenants to provide and pay for cleaning
services by LANDLORD'S cleaner as per the Cleaning Specifications attached
hereto and made a part hereof as Exhibit "D" for the first floor Demised
Premises and as per Exhibit "D" for the first floor Demised Premises and as per
Exhibit "D-1" for the lower level Demised Premises.
Section 4.5 LANDLORD agrees that TENANT'S move into or out of the
Building may take place on Saturdays, Sundays and Holidays, and that during the
period while TENANT is in the process of moving into the Building, LANDLORD, at
TENANT'S expense, shall furnish a Supervisor from LANDLORD'S staff during the
move-in period. TENANT may move into or out of the building Monday through
Friday between the hours of 9 a.m. and 4 p.m. without a supervisor from LANDLORD
staff. Should a supervisor be required, LANDLORD shall provide same at a cost of
$25.00 per hour. TENANT agrees to give at least seven days' prior written notice
TO LAND LORD of the date of any such move, ad the time thereof and TENANT shall
use the loading areas and service elevator designated by LANDLORD for such
moving and deliveries, and to otherwise abide by the Rules established by
LANDLORD as respect deliveries to or moving into or out of the Demised Premises.
TENANT shall supply at TENANT'S cost and expense protective coverings to protect
the floors and walls of the Building when moving into or out of the Demised
Premises or when receiving or sending any bulky or heavy materials.
ARTICLE V
LANDLORD' WORK, REPAIR AND MAINTENANCE
Section 5.1 The LANDLORD agrees at its own cost and expense to do the
Work Letter and Plans attached hereto, as Exhibit "C".
Section 5.2 TENANT may have its workmen commence work in the Demised
Premises prior to the substantial completion of LANDLORD'S work, provided that
such workmen do not in any manner interfere with or impede LANDLORD'S workers.
In the event that TENANT'S workers shall interfere with or impede LANDLORD'S
workers, then upon notice from LANDLORD, TENANT will immediately remove its
workers from the Demised Premises. TENANT'S entry into the Demised Premises for
the purpose of making TENANT'S rights under the lease, nor shall the same be
deemed an acceptance of the work to be done by the LANDLORD hereunder.
Section 5.3 The TENANT covenants throughout the term of this lease, at
the TENANT'S sole cost and expense to take good care of the interior of the
Demised Premises and keep the same in good order and condition and to make all
repairs therein except as provided in Section "5.4" and "5.5" hereof.
Section 5.4 The LANDLORD covenants throughout the term of this lease,
at the LANDLORD'S sole cost and expense, to make all structural repairs to the
building in which the Demised Premises are located and shall also maintain and
keep in good repair the building's sanitary, electrical, heating and other
systems servicing or located, in or passing through the Demised Premises, other
than
(i) To any systems, facilities and equipment
installed on behalf of the TENANT
after the initial installation by LANDLORD; and
(ii) To any of the improvements to the interior of
the Demised Premises undertaken
and completed by the TENANT; and
(iii) Any repairs which are necessitated by any act or omission of the TENANT,
its agents, servants, employees or invitees, which repair TENANT shall make at
its own cost and expense. Section 5.5 LANDLORD shall provide a one year
guarantee on all work originally installed by the LANDLORD as per the plan
attached. LANDLORD shall provide a one year warranty on the air conditionally
unit(s) installed in TENANT'S computer room (or longer, if a longer warranty is
provided for by manufacturer). TENANT shall maintain a service contract on the
air conditioning unit(s) located within TENANT'S computer room. Section 5.6
Except as expressly provided ownership in this lease, there
shall be no allowance to the TENANT or diminution of rent and no liability on
the part of the LANDLORD by reason of inconvenience, annoyance or injury to
business arising from the making of any repairs, alterations, additions or
improvements in or to any portion of the building, on the Demised Premises, in
the parking area, or in and to the fixtures, appurtenances and equipment
thereof. The LANDLORD agrees to do any work to be done by it in such a manner as
not to unreasonably interfere with the TENANT'S use of the Demised Premises.
Notwithstanding the above, in the event that the heat or the air conditioning
for TENANT'S Demised Premises shall be out of service for a period exceeding
fifteen (15) days, the TENANT shall be entitled to an abatement of all rent
charges until such time as the repair to the heat or the air conditioning unit
is complete. LANDLORD represents that they will use all reasonable commercial
efforts to restore the heat or the air conditioning.
ARTICLE VI
CHANGES AND ALTERATIONS - SURRENDER OF DEMISED PREMISES
Section 6.1 The TENANT shall have the right, at any time and from time to time,
during the term of this lease to make such nonstructural changes and alterations
to the Demised Premises as the TENANT shall deem necessary or desirable.
However, all changes and alterations must be made with the written consent of
the LANDLORD which shall not be unreasonably withheld or delayed and any
alterations affecting HVAC and electrical work, including lighting, must be done
by the LANDLORD at TENANT'S sole cost and expense. LANDLORD represents that said
costs shall be commercially competitive.
Section 6.2 The TENANT agrees not to place any signs on the roof or on
or about the inside or outside of the building in which the Demised Premises are
situated, except for signs inside of the Demised Premises which may not be seen
from the outside.
Section 6.3 All improvements and alterations made or installed by or on
behalf of the TENANT, shall immediately upon completion of installation thereof
be and become the property of the LANDLORD without payment therefore by the
LANDLORD.
Section 6.4 The TENANT shall, upon the expiration or earlier
termination of this lease, surrender to the LANDLORD the Demised Premises,
together with all alterations and replacement thereto, in good order and
condition, except for reasonable wear and tear or damage by fire or casualty.
If the TENANT shall make any alterations or changes or additions to the
Demised Premises, after the commencement of the term of this lease, and
LANDLORD'S permission to make such alterations or changes or additions, the
TENANT will remove the same prior to the expiration of the term hereof at
TENANT'S sole cost and expense and TENANT will, at its own cost and expense,
restore the premises to the condition which they were in just prior to the
commencement of the term hereof, normal wear and tear and damage by fire
excepted.
Section 6.5 In connection with any alterations to the Demises Premises
done by TENANT including decorating, prior to any work being commenced, TENANT
shall supply to LANDLORD; (i) liability insurance from the Contractor doing the
work in an amount not less than Three Million Dollars, naming LANDLORD as an
additionally named insured; (ii) evidence that all workers doing work in the
Demised Premises are covered by Workmen's Compensation Insurance; (iii) an
agreement from TENANT'S contractor to remove all debris from the premises shown
on Exhibit "B: after 6:00 P.M. at the end of each day's work. In the event
TENANT'S contractor shall fail to remove debris on a daily basis, as hereinafter
provided, LANDLORD may order said contractors off the premises and refuse them
access to the Building thereafter.
ARTICLE
COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
Section 7.1 The TENANT covenants throughout the term of this lease and
any renewals hereof, at the TENANT'S sole cost and expense, to comply with all
laws and ordinances and the orders and requirements of all federal, state and
municipal governments and appropriate department, commissions, boards and
officers thereof, which may be applicable to the TENANT being an insurance
company or to its particular manner of use or occupancy of the Demised Premises.
Section 7.2 The TENANT shall have the right to contest by appropriate
legal proceedings, in the name of the TENANT or the LANDLORD or both, but
without cost or expense to the LANDLORD, the validity of any law, ordinance,
order or requirement of the nature referred to in Section "7.1" hereof. Provided
such noncompliance does not subject the LANDLORD to any criminal liability for
failure so to comply therewith, the TENANT may postpone compliance therewith
until the final determination of any proceedings, provided that all such
proceedings shall be prosecuted with all due diligence and dispatch, and if any
lien or charge is incurred by reason of noncompliance, the TENANT may
nevertheless make the content aforesaid and delay compliance as aforesaid,
provided that the TENANT indemnifies the LANDLORD against any loss or injury by
reason of such noncompliance or delay therein.
Section 7.3 LANDLORD covenants and agrees that at the time of the
commencement of the term of this lease the Demised Premises shall comply with
all laws, ordinances and regulations applicable thereto.
ARTICLE VIII
MECHANIC'S LIENS
Section 8.1 The TENANT covenants not to suffer or permit any mechanic's
liens to be filed against the fee interest of the LANDLORD nor against TENANT'S
leasehold interest in the Demised Premises by reason of work, labor, services or
materials supplied or claimed to have been supplied to the TENANT or any
contractor, subcontractor or any other party or person acting at the request of
the TENANT, or anyone holding the Demised Premises or any part thereof through
or under the TENANT. TENANT agrees that in the event any mechanic's lien shall
be filed against the fee interest of the LANDLORD or against the TENANT'S
leasehold interest the TENANT shall, within thirty (30) days after receiving
notice of the filing thereof, cause the same to be discharged of record by
payment, deposit, bond or order of a court of competent jurisdiction or
otherwise.
If TENANT shall fail to cause such lien to be discharged or bonded
within the period aforesaid, then in addition to any other right or remedy
LANDLORD may but shall not be obligated to, discharge the same by paying the
amount claimed to be due, by procuring the discharge of such lien by deposit by
bonding proceedings, and in any such event, LANDLORD shall be entitled, if
LANDLORD so elects, to compel the prosecution of any section for the foreclosure
of such lien by the lienor and to pay the amount o the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by LANDLORD and
all reasonable costs and expenses incurred by LANDLORD or the fee owner in
connection therewith, including but not limited to premiums on any bonds filed
and attorney's fees, shall constitute Additional Rental payable by TENANT under
this lease and shall be paid by TENANT to LANDLORD within ten days of demand
therefore.
ARTICLE IX
INSPECTION OF DEMISED PREMISES BY LANDLORD
Section 9.1 The TENANT agrees to permit the LANDLORD and the authorized
representatives of the LANDLORD to enter the Demised Premises at all reasonable
times during TENANT'S usual business h ours for the purpose of inspecting the
same. Except in the case of an emergency, LANDLORD shall use reasonable
commercial efforts w hen making any necessary repairs to the Demised Premises
not to unduly disrupt TENANT'S normal business operations.
Section 9.2 The LANDLORD is hereby given the right during TENANT'S
usual business hours to enter the Demised Premises to exhibit the same for the
purpose of sale or mortgage and, during the last six (6) months of the initial
term or at anytime if the TENANT defaults in any of the terms, covenants and
conditions of this lease, to exhibit the same to prospective tenants for the
purposes of renting.
Section 9.3 With regard to Sections 9.1 and 9.2, LANDLORD shall
endeavor to give reasonable notice to TENANT of LANDLORDS intention to inspect
the premises or to make repairs.
ARTICLE X
RIGHT TO PERFORM COVENANTS
Section 10.1 The TENANT covenants and agrees that if the TENANT shall
at any time fail to make any payment or perform any other act on its part to be
made or performed under this lease, the LANDLORD, after the expiration of any
time limitation set forth in this lease (Except in cases of emergency) may, but
shall not be obligated to, make such payment or perform such other act to the
extent the LANDLORD may deem desirable, and in connection therewith to pay
reasonable expenses and employ counsel. All sums so paid by the LANDLORD and all
reasonable expenses in connection therewith shall be deemed additional rent
hereunder and be payable to the LANDLORD on the first day of the next month and
the LANDLORD shall have the same rights and remedies for the nonpayment thereof
as in the case of default in the payment of the basic rent reserved hereunder.
ARTICLE XI
DAMAGE OR DESTRUCTION
Section 11.1 A. If the Demised Premises or any part thereof shall be
damaged by fire or other casualty, TENANT shall give immediate notice thereof to
LANDLORD and this lease shall continue in full force and effect except as
hereinafter set forth.
B. If the Demised Premises are partially damaged or rendered
partially unusable b y fire or other casualty, the damages thereto shall be
repaired by and at the expense of LANDLORD to the extent that said damages
include those installations originally installed by LANDLORD.
C. If the Demised Premises are totally damaged or rendered
wholly unusable by fire or other casualty, then the LANDLORD shall have the
right to elect not to restore the same as hereinafter provided.
D. If the Demised Premises are rendered wholly unusable or
(whether or not the Demised Premises are damaged in whole or in part) if the
building shall be so damaged that LANDLORD shall decide to demolish it or not to
rebuild it then, in any such events, LANDLORD may elect to terminate this lease
or rebuild by written notice to TENANT given within ninety (90) days after such
fire or casualty specifying a date for the expiration of the lease or
rebuilding, which date shall not be more than sixty (60) days after the giving
of such notice. Upon the date specified in a notice of termination the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and TENANT shall forthwith
quit, surrender and vacate the premises without prejudice however, to LANDLORD'S
rights and remedies against TENANT under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by TENANT which were on account of any period subsequent
to such date shall be returned to TENANT. Unless LANDLORD shall serve a
termination notice as provided for herein, LANDLORD shall make the repairs and
restorations under the conditions of "B" and "C" hereof, with all reasonable
expedition subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond LANDLORD'S control.
Notwithstanding anything contained to the contrary herein, if after six
(6) months from the date that the Desired Premises are rendered w holly or
substantially usable, the Demised Premises are not restored so TENANT may resume
its normal business operations, TENANT shall have the option to cancel this
lease agreement by giving the LANDLORD thirty (30) days prior written notice of
TENANT'S intention to do so. If LANDLORD feels that the restoration shall be
complete within the thirty (30)-day period, LANDLORD shall respond in writing
that same shall occur and provided LANDLORD substantially completes same within
such period, TENANT'S notification to LANDLORD shall e null and void and of no
further force and effect.
E. Nothing contained hereinabove shall relieve TENANT from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectable and to the extent permitted by law,
LANDLORD and TENANT each hereby releases and waives all right of recovery
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. LANDLORD and TENANT'S insurance policies shall contain
a clause providing that such a release or waiver shall not invalidate the
insurance and also, provided that such policy can be obtained without additional
premiums. In the event that there are additional premiums for such waiver of
subrogation, the party in whose favor such waiver is intended shall have the
option to either pay the additional premium or waive the condition that the
other's policy contains the same. TENANT acknowledges that LANDLORD will not
carry insurance on TENANT'S furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by TENANT and agrees that
LANDLORD will not e obligated to repair any damage thereto or replace the same.
F. TENANT hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
Section 11.2 The TENANT shall not knowingly do or permit to be done any
act or thing upon the Demised Premises, which will invalidate or be in conflict
with fire insurance policies covering the building of which Demised Premises
form a part, and fixtures and property therein. The TENANT shall at its expense
comply with all rules, orders regulations or requirements of the New York Board
of Fire Underwriters, or any other similar body, which may be applicable to the
TENANT'S use and occupancy of the Demised Premises, provided that the necessity
of such compliance results from the TENANT being an insurance company or to its
particular manner of use and occupancy of the Demised Premises by the TENANT,
and shall not do, or permit anything to be done, in or upon the Demised Premises
in a manner which shall increase the rate of fire insurance on the building of
which the Demised Premises form a part, or on the property located therein, over
that in effect when the lease commenced, unless the TENANT shall reimburse the
LANDLORD, as additional rent hereunder, for that part of all insurance premiums
thereafter paid by the LANDLORD, which shall have been charged because of such
failure or use by the TENANT, and shall make such reimbursement upon the first
day of the month following receipt of notice of such outlay by the LANDLORD and
evidence of the payment thereof.
Section 11.3 Notwithstanding anything to the contrary contained in this
lease, during any period after damage or destruction and until the premises have
been restored, the TENANT shall be entitled to an abatement of rent and
additional rent for the unusable portion of the Demised Premises, on a square
foot basis.
ARTICLE XII
CONDEMNATION
Section 12.1 If the whole of the Demised Premises shall be taken for
any public or quasi-public use by any lawful power or authority by exercise of
the right of condemnation or eminent domain, or by agreement between LANDLORD
and those having the authority to exercise such right (hereinafter called
"Taking"), the term of this lease and all rights of TENANT hereunder, except as
hereinafter provided, shall cease and expire as of the date of vesting of title
as a result of the Taking and the rent or additional rent paid for a period
after such date shall be refunded to TENANT upon demand.
Section 12.2 In the event of a Taking of less than the whole of the
Demised Premises, or the whole or part of the parking area, this lease shall
cease and expire in respect of the portion of the Demised Premises and/or the
parking area taken upon vesting of title as a result of the Taking, and, if the
Taking results in the portion of the Demised Premises or parking remaining after
the Taking being inadequate, in the judgment of TENANT, for the efficient,
economical operation of the TENANT'S business conducted at such time in the
Demised Premises, TENANT may elect to terminate this lease by giving notice to
LANDLORD of such election not more than forty-five (45) days after the actual
Taking by the condemning authority, stating the date of termination, which date
of termination shall be not more than thirty (30) days after the date on which
such notice to LANDLORD is given, and upon the date specified in such notice to
LANDLORD, this lease and the term hereof shall cease and expire. If TENANT does
not elect to terminate this lease aforesaid:
(i) The new rent payable under this lease shall be
the product of the basic rent
payable under this lease multiplied by a fraction, the numerator of which is the
net rentable are of the Demised Premises remaining after the Taking, and the
denominator of which is the net rentable are of the Demised Premises immediately
preceding the Taking, and
(ii) The net award for the Taking shall be paid to
and first used by LANDLORD,
subject to the rights of mortgage, to restore the portion of the Demised
Premises and the building remaining after the Taking to substantially the same
condition and tenantability (hereinafter called the "Pre-Taking Condition") as
existed immediately preceding the date of the Taking.
Section 12.3 In the event of a Taking of less than the whole of the
Demised Premises which occurs during the period of two (2) years next preceding
the date of expiration of the term of this lease, LANDLORD or TENANT may elect
to terminate this lease by giving notice to the other party to this lease of
such election, not more than forty-five (45) days after the actual Taking by the
condemning authority, stating the ate of termination, which date of termination
shall be not more than thirty (30) days after the date on which such notice of
termination is given, and upon the date specified in such notice, this lease and
the term hereof shall cease and expire and all rent and additional rent paid
under this lease for a period after such date of termination shall be refunded
to TENANT upon demand. On or before such date of termination, TENANT shall
vacate the Demised Premises, and any of TENANT'S property remaining in the
Demised Premises subsequent to such date of termination shall be deemed
abandoned by TENANT and shall become the property of LANDLORD.
Section 12.4 In the event of a Taking of the Demised Premises or any
part thereof, and whether or not this lease is terminated, TENANT shall have no
claim against LANDLORD or the condemning authority for the valued of the
unexpired term of this lease, but:
(i) TENANT may interpose and prosecute in any
proceedings in respect of the
Taking, independent of any claim of LANDLORD, a claim for the
reasonable value of TENANT'S fixtures and (ii) A
claim for TENANT'S moving expenses.
ARTICLE XIII
BANKRUPTCY OR OTHER DEFAULT
Section 13.1 A. Events of Bankruptcy. The following shall
be Events of Bankruptcy under this lease:
(i) TENANT'S becoming insolvent, as the term is
defined in Title 11 of the United
States Code, entitled Bankruptcy, 11. U.S.C. Sec. 101 et seq. (the
"Bankruptcy Code") or under the insolvency laws of New York State;
(ii) The appointment of a Receiver of Custodian for
any or shall of TENANT'S
property or assets, which is not dismissed within sixty (60) days of filling;
(iii) The filling of a voluntary petition under the
provisions of the Bankruptcy
Code or Insolvency Laws:
(iv) The filling of an involuntary petition against
TENANT as the subject debtor
under the Bankruptcy Code or Insolvency Laws, which is either not dismissed
within sixty days of filing, or results in the issuance of an order for relief
against the debtor, whichever is later; or,
(v) TENANT'S making or consenting to an assignment
for the benefit of creditors of
a common law composition of creditors.
B. Landlord's Remedies.
(i) Termination of Lease. Upon the occurrence of an
Event of Bankruptcy, LANDLORD
shall have the right to terminate this lease by giving thirty days prior written
notice to TENANT, provided, however, that this Section "13.1 (B) (i)" shall have
no effect which a case in which TENANT is the subject debtor under the
Bankruptcy Code is pending, unless TENANT or its Trustee in Bankruptcy is unable
to comply with the provisions of Sections "13.1 (B) (v)" and "13.1 (B) (vi)"
below. If TENANT or its Trustee is unable to comply with Sections "13.1 (B) (v)"
and 13.1 (B) (vi)" below, this lease shall automatically cease and terminate,
and TENANT shall be immediately obligated to quit the premises upon the giving
of notice pursuant to this Section "13.1 (B) (i)". Any other notice to quit, or
notice of LANDLORD'S intention to re-enter is hereby expressly waived. If
LANDLORD elects to terminate this lease, everything contained in this lease on
the part prejudice, subject however, to the right of LANDLORD to recover from
TENANT all rent and any other sums accrued up to the time of termination or
recovery of possessions by LANDLORD, whichever is later, and any other monetary
damages or loss of reserved rent sustained by LANDLORD.
(ii) Suit for Possession. Upon termination of this
lease pursuant to Section "13.1
(B) (i)", the premises may be relet by LANDLORD for such rent and upon such
terms as are not unreasonable under the circumstances, and if the full rental
reserved under this lease (and any of the costs, expenses, or damages indicated
below) shall not be realized by LANDLORD, TENANT shall be liable for all damages
sustained by LANDLORD, including, without limitation, deficiency in rent,
reasonable attorney's fees, brokerage fees, and expenses of placing the premises
in the first class rentable condition. LANDLORD, in putting the premises in good
order or preparing the same for re-rental may, at LANDLORD'S option, make such
alterations, repairs, or replacements in the premises as LANDLORD, in LANDLORD'S
sole judgment, considers advisable and necessary for the purpose of reletting
the premises, and the making of such alterations, repairs, or replacements shall
not operate or be construed to release TENANT from liability hereunder as
aforesaid. LANDLORD shall in no event be liable in any way whatsoever for
failure to relet the premises, or in the event that the premises are relet, for
failure to collect the rent thereof under such reletting, and in no event shall
TENANT be entitled to receive any excess, if any, of such net rent collected
over the sums payable by TENANT to LANDLORD hereunder.
(iv) Monetary Damages. Any damage or loss of rent
sustained by LANDLORD as a
result of an Event of Bankruptcy may be recovered by LANDLORD, at LANDLORD'S
option, at the time of the reletting, or in separate actions, from time to time,
as said damage shall have been made more easily ascertainable by successive
relettings, or, in a single proceeding deferred until the expiration of the term
of this lease (in which event TENANT hereby agrees that the cause of action
shall not be deemed to have accrued until the date of expiration of said term)
or in a single proceedings prior of the term of this lease, in which event
TENANT agrees to pay LANDLORD the difference between the present value of the
rent reserved under this lease on the date of breach, discounted at eight
percent per annum, and the fair market rental value of the Demised Premises on
the date of breach. In the event TENANT become the subject debtor in a case
under the Bankruptcy Code the provisions of this Section "13.1 (B) (iv)" may be
limited by the limitations of damage provisions o the Bankruptcy Code.
(v) Assumption or Assignment by Trustee. In the event
TENANT become the subject
debtor in a case pending under the Bankruptcy Code, LANDLORD'S right to
terminate this lease pursuant to this Section "13.1" shall be subject to the
rights of the Trustee in Bankruptcy to assume or assign this lease. The Trustee
shall not have the right to assume or assign this lease unless the Trustee: (a)
promptly cures all defaults under this lease, (b) promptly compensates LANDLORD
for monetary damages incurred as a result of such default, and (c) provides
adequate assurance of future performance.
(vi) Adequate Assurance of Future Performance.
LANDLORD and TENANT hereby agree in
advance that adequate assurance of future performance, as used in Section "13.1
(B) (v)" above, shall mean that all of the following minimum criteria must be
met:
(a) The Trustee must pay to LANDLORD, at the time the
next payment of rent is then
due under this lease, in addition to such payment of rent, an amount equal to
the next three month's rent due under this lease, said amount to be held by
LANDLORD in escrow until either the Trustee or TENANT defaults in its payment of
rent or other obligations under this lease (whereupon LANDLORD shall have the
right to draw such escrow funds) or until the expiration of this lease
(whereupon the funds shall be returned to the Trustee or TENANT);
(b) The TENANT or Trustee must agree to pay to the
LANDLORD, at any time the
LANDLORD is authorized to and does draw on the funds escrowed pursuant to
Section "13.1 (B) (vi) (a)" above, the amount necessary to restore such escrow
amount to the original level required by said provision;
(c) TENANT must pay its estimated pro-rata share of
the cost of all services
provided by LANDLORD (whether directly or through agents or contractors, and
whether or not the cost of such service is to be passed through to TENANT) in
advance of the performance or provision of such services;
(d) The Trustee must agree that TENANT'S business
shall be conducted in a first
class manner, and that no liquidating sales, auctions, or other non-first class
business operations shall be conducted on the premises;
(e) The Trustee must agree that the use of the
premises as stated in this lease
will remain unchanged;
(f) The Trustee must agree that the assumption or
assignment of this lease will
not violate or affect the rights of other tenants of the LANDLORD.
(vii) Failure to Provide Adequate Assurance. In the
event TENANT is unable to: (a) cure its defaults; or
(b) reimburse LANDLORD for its monetary damages; or
(c) pay the rent due under this lease, on time (or
within five days of the due
date); or,
(d) meet the criteria and obligations imposed by
Section "13.1 (B) (vi)" above;
then TENANT agrees in advance that it has not met its burden to provide adequate
assurance of future performance, and this lease may be terminated by LANDLORD in
accordance with Section "13.1 (B) (i)" above.
Section 13.2 Default of TENANT
A. Events of Default. The following shall be Events of
Default under this lease. (i) TENANT'S failure to pay
any monthly installment of Basic Annual Rent or
Additional Rent, the amount of which has been ascertained, within ten days after
notice of such failure from LANDLORD.
(ii) TENANT'S failure to make any other payment
required under this lease if such
failure shall continue beyond ten days after LANDLORD'S notice that the same has
not been paid.
(iii) TENANT'S violation or failure to perform
any of the other terms, conditions,
covenants or agreements herein made by TENANT if such violation or failure
continues for a period of five days if it affects other tenants of the building,
and twenty (20) days in all other events, after LANDLORD'S written notice
thereof to TENANT, provided that no such notice shall be required if TENANT has
received three (3) similar notices shall be required if TENANT has received
three (3) similar notices within ninety days of such violation or failure.
(iv) In the event of any violation or failure to
perform a covenant as contemplated
in Section "13.2 (A) (iii)", and if such covenant cannot be performed within the
said five day or twenty day period, whichever the case may be, then and in that
event, providing TENANT has promptly commenced to cure such violation and is
diligently proceeding with the cure the time within which TENANT may cure the
same shall be extended to such reasonable time as may be necessary to cure the
same with all due diligence.
B. If an Event of Default as hereinabove specified in Section
"13.2 (A) (i), (ii) or (iii)" shall occur, and shall not be cured within the
time period specified in LANDLORD'S notice, or as to a default provided for in
Section "13.2 (A) (iii)" if the same shall recur more than three times within
ninety days of LANDLORD'S last notice of same or if TENANT has commenced a cure
but fails to diligently proceed with same after five (5) days notice from
LANDLORD then:
(i) LANDLORD may give TENANT a five day notice of its
intention to end the term of
this lease, and thereupon, at the expiration of said five day period, this lease
shall expire as fully and completely as if the day were the date herein
originally fixed for the expiration of the term, and Tenant shall then quit and
surrender the premises to LANDLORD but TENANT shall continue to remain liable as
hereinafter provided; or
(ii) LANDLORD, without prejudice to any other right
or remedy of LANDLORD, held
hereunder or by operation of law, and notwithstanding any waiver of any breach
of a condition or Event of Default hereunder, may, at its option and without
further notice, re-enter the Demises Premises of dispossess TENANT and any legal
representative or successor of TENANT or other occupant of the premises by
summary proceedings or other appropriate suit, action or proceeding and remove
his, her of its effects and hold the Demised Premises as if this lease had not
been made; and TENANT hereby expressly waives the service of notice of intention
to re-enter or to institute legal proceedings to that end.
Section 13.3 Notwithstanding such default, re-entry, expiration and/or
dispossession by summary proceedings or otherwise, as provided Section "13.2"
above, TENANT shall continue liable during the full period which would otherwise
have constituted the balance of the term hereof, and shall pay as liquidated
damages at the same time as the Basic Annual Rent and Additional Rent and other
charges become payable under the terms hereof, a sum equivalent to the Basic
Annual Rent and Additional Rent and other charges reserved herein (less only the
net proceeds of reletting as hereinafter provided), and LANDLORD may rent the
Demised Premises either in the name of LANDLORD or otherwise, reserving the
right to rent the Demised Premises for a term or terms which may be less than or
exceed the period which would otherwise have been the balance of the term of
this lease without releasing the original TENANT from any liability, applying
any monies collected, first to the expense of resuming or obtaining possession,
next to restoring the premises to a rentable condition, and then to the payment
of any brokerage commissions and legal fees in connection with the reletting of
the Demises Premises and then to the payment of the Basic Annual Rent,
Additional Rent and other charges due and to grow due to LANDLORD hereunder,
together with reasonable legal fees of LANDLORD therefore.
Section 13.4 LANDLORD and TENANT do hereby mutually waive trial by jury
in any action, proceeding or counterclaim brought by either LANDLORD or TENANT
against the other with regard to any matters whatsoever arising out of or in any
way connected with this lease, the relationship of LANDLORD and TENANT, and
TENANT'S use or occupancy of the Demised Premises, provided such waiver is not
prohibited brought by either hereto against the other, directly or indirectly,
arising are located and all motions in any such action shall be made in such
County.
Section 13.5 TENANT hereby agrees that in any action or summary
proceeding brought by LANDLORD for the recovery of Basic Annual Rent or
Additional Rent, it will not interpose any non-mandatory counter-claim or
set-off nor will TENANT seek to consolidate or join for trial any such action or
proceeding with any other action or proceeding.
Section 13.6 If TENANT shall default in the observance or performance
of any term or covenant on TENANT'S part to be observed or performed under by
virtue of any of the terms or provisions in this article of this lease, LANDLORD
may immediately or at any time thereafter and without notice perform the same
for the account of TENANT, and if LANDLORD makes an expenditures or incurs any
obligations for the payment of money in connection therewith including, but not
limited to, attorneys' fees in instituting, prosecuting or defending any action
or proceeding such sums paid or obligations incurred with interest and costs
shall be deemed to be additional rent hereunder and the sum shall be due
immediately upon LANDLORD incurring same and may be included as an item of
additional rent in any summary proceeding instituted by the LANDLORD.
Section 13.7 In the event of any default by the TENANT hereunder and
the LANDLORD shall commence any action or other proceeding against the TENANT in
which the LANDLORD shall be successful, or which shall be settled by the payment
of a sum of money to the LANDLORD by the TENANT, the TENANT agrees to reimburses
the LANDLORD for reasonable attorneys' fees in connection with such action or
proceeding.
ARTICLE XIV
CUMULATIVE REMEDIES - NO WAIVER
Section 14.1 The specific remedies to which the LANDLORD or the TENANT
may resort under the terms of this lease are cumulative and are not intended to
be exclusive of any other remedies or means or redress of which they may be
lawfully entitled in case of any breach or threatened breach by either of them
of any provision of this lease. The failure of the LANDLORD to insist in any one
or more cases upon the strict performance of any of the covenants of this lease,
or to exercise any option herein contained, shall not be construed as a waiver
or relinquishment for the future of such covenant or option. A receipt by the
LANDLORD of rent with knowledge of the breach of any covenant thereof shall not
be deemed a waiver of such breach, and no waiver, change, modification or
discharge by either party hereto of any provision in this lease shall be deemed
to have been made or shall be effective unless expressed in writing and signed
by both the LANDLORD and the TENANT. In addition to the other remedies in this
lease provided, the LANDLORD shall be entitled to restraint by injunction of any
violation, or attempted or threatened violation, of any of the covenants,
conditions or provisions of this lease or to a decree compelling performance of
any such covenants, conditions or provisions.
ARTICLE XV
SUBORDINATION
Section 15.1 It is hereby expressly agreed that this lease and all
rights of the TENANT hereunder shall be subject and subordinate at all times to
any mortgages and any renewals, replacements, extensions of modifications
thereof which may now be or shall hereafter become liens on the Demised Premises
or the land and building of which the same form a part. The TENANT agrees that
at any time upon five (5) days, written notice the TENANT will execute and
deliver such agreement shall not affect the subordination provided for
hereunder.
Section 15.2 This lease is specifically made subordinate to a mortgage
given to Connecticut General Life Insurance Company and notwithstanding whether
or not any formal subordination agreement is executed, this lease shall at all
time be subordinate to any replacements, extensions, modifications or
consolidations thereof.
ARTICLE XVI
QUIET ENJOYMENT
Section 16.1 The LANDLORD covenants ad agrees that the TENANT, upon
paying the basic rent and all other charges herein provided and observing and
keeping the covenants, agreements and conditions of this lease on its part to be
kept, shall and may peaceably and quietly hold, occupy and enjoy the Demised
Premises during the term of this lease.
ARTICLE XVII
NOTICES
Section 17.1 All notices, demands and requests which may or are
required to be given by either party to the other shall be in writing. All
notices, demands and requests by the LANDLORD to the TENANT shall be deemed to
have been properly given if sent by United States registered or certified mail,
postage prepaid or overnight carrier, such as Federal Express, addressed to the
TENANT at the Demised Premises or Temporary Demised Premises, or at such other
place as the TENANT may from time to time designate in written notice to the
LANDLORD. All notices, demands and requests by the TENANT to the LANDLORD shall
be deemed to have been properly given if sent by United States registered or
certified mail, or overnight carrier such as Federal Express, postage prepaid,
addressed to the LANDLORD at the address first above written, or at such other
place as the LANDLORD may from time to time designate in a written notice to the
TENANT. Notices to the TENANT may be given by the attorney for the LANDLORD with
the same force and effect as if given by the LANDLORD. Notices, demands or
requests which shall be served upon LANDLORD or TENANT in the manner aforesaid
shall be deemed to have been served or given for all purposes under this Lease
at the time such notice, demand or requests shall be received or returned by
Post Office or by an overnight carrier, such as Federal Express, as having been
"refused" or "undeliverable".
ARTICLE XVIII
DEFINITION OF CERTAIN TERMS, ETC.
Section 18.1 The captions of this lease are for convenience and
reference and in no way define, limit or describe the scope or intention of this
lease or in any way affect this lease.
Section 18.2 The term "TENANT" as referred to hereunder shall refer to
this TENANT and any successor or assignee of this TENANT.
Section 18.3 The term "LANDLORD" as used hereunder shall mean only the
owner for the time being of the land and building of which the Demised Premises
form a part, so that in the event of any sale or sales, or in the event of a
lease of said land and building this LANDLORD shall be and hereby is entirely
free and relieved of all covenants and obligations thereafter accruing
hereunder, of LANDLORD hereunder and it shall be deemed and construed without
further agreement between the parties, of their successors in interest, that the
purchaser or lessee of the building has agreed to carry out all of the terms and
covenants and obligations of the LANDLORD hereunder.
ARTICLE XIX
INVALIDITY OF PARTICULAR PROVISIONS
Section 19.1 If any term or provision of this lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such term of
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this lease be valid and be enforced to the fullest extent permitted
by law.
ARTICLE XX
COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES
Section 20.1 It is further covenanted and agreed by and between the
parties hereto that the covenants and agreements herein contained shall bind and
inure to the benefit of the LANDLORD, its successors and assigns, and the
TENANT, its successors and assigns, subject to the provisions of this lease.
ARTICLE XXI
INSURANCE
Section 21.1 TENANT shall at all times during the term hereby carry
Public Liability Insurance for the Demised Premises naming LANDLORD as an
additional insured with limits of $3,000,000.00 for injury to persons and
$250,000.00 for property damage.
Section 21.2 Prior to taking possession, TENANT shall deliver to the
LANDLORD a certificate of the insurance company licensed to do business in the
State of New York with a Bests rating of A, certifying that the aforesaid
liability policy is in full force and effect. A certificate evidencing the
renewal of such liability insurance policy shall be delivered to the LANDLORD at
least twenty (20) days before the expiration thereof and each such renewal
certificate shall include the LANDLORD as an additional insured. TENANT may
carry aforesaid insurance as a part of a blanket policy provided, however, that
a certificate thereof naming the LANDLORD as an additional insured is delivered
to the LANDLORD as aforesaid. Such policy of insurance or certificate shall also
provide that said insurance may not be canceled unless ten (10) days' notice is
given to the LANDLORD prior to such cancellation and that the insurance as to
the interest of the LANDLORD shall not be invalidated by any act or neglect of
the TENANT.
Section 21.3 TENANT shall prior to doing any work in the Demised
Premises obtain any and all permits necessary therefore and will provide
Worker's Compensation Insurance and Liability Insurance in the limits provided
for in Section "21.1" hereof.
ARTICLE XXII
USE, ASSIGNMENT OF SUBLETTING
Section 22.1 The TENANT agrees to use the premises for general offices
and for no other purpose. TENANT shall not permit occupancy of the Demised
PREMISES which in the aggregate exceeds one person for every two hundred square
feet of rentable area.
Section 22.2 Unless LANDLORD shall have given its consent hereto, this
lease may not be assigned nor may the Demised Premises be sublet in whole or in
part. Such approval will not be unreasonably withheld or delayed. In determining
the reasonableness, the LANDLORD shall take into consideration the use to which
the sub-tenant will put the space and the nature of the sub-tenant's business in
order to maintain the integrity of the building as a whole.
Section 22.3 Notwithstanding anything hereunto the contrary, if TENANT
desires to assign the lease or sublet all or part of the Demised Premises other
than an assignment or subletting pursuant to Section 22.7 hereof, LANDLORD shall
have the right to recapture the Demised Premises in the event TENANT desires to
assign this lease or sublet the entire Demised Premises or recapture such
portion of the Demised Premises as TENANT shall desire to sublet. If TENANT
shall desire to assign this lease or sublet all or part of the Demised Premises,
TENANT shall notify LANDLORD to this effect in writing and if TENANT desires
only to sublet a part of the Demised Premises, it shall notify LANDLORD of the
portion of the Demised Premises it wishes to sublet. LANDLORD shall, within 60
days of receipt of such notice, notify TENANT as to whether or not LANDLORD
desires to recapture the Demised Premises or, in the case of a proposed
subletting of part of the Demised Premises, such portion of the Demised Premises
as TENANT desires to sublease. In the event that LANDLORD shall elect to
recapture the Demised Premises or such portion thereof as TENANT desires to
sublet, it shall be deemed that the Demised Premises, or such portion thereof,
as the case may be, is recaptured by the LANDLORD on the 30th day following
LANDLORD'S notice to TENANT of the exercise of its right to recapture. TENANT,
prior to the expiration of such 30 day period, shall remove all of TENANT'S
fixtures and personal property from the space being recaptured by LANDLORD. In
the event of a recapture of part the Demised Premises, the rent under this lease
shall be reduced pro rata based on the rentable square footage of the Demised
Premises prior to such recapture. If LANDLORD shall elect not to recapture the
Demised Premises or such portion thereof as TENANT shall desire to sublet or
LANDLORD fails to respond to respond to such notice within said 60 day period,
then TENANT, subject to LANDLORD'S consent, not to be unreasonably withheld or
delayed, may assign this lease or sublet the Demised Premises or the portion
thereof it proposed to sublet in such notice subject to Section 22.4.
Section 22.4 In the event that TENANT shall assign this lease and shall
receive any consideration therefore in excess of Basic Annual Rent and
Additional Rents therein, one-half of such consideration shall be paid to the
LANDLORD as additional rent. In the event TENANT shall sublet any of the space
demised hereunder and the rent and/or additional rent reserved under any such
sublease shall be in excess of the rent provided for hereunder, TENANT shall pay
to the LANDLORD, as additional rent, as and when same is collected, one-half the
difference between the rent and additional rent reserved herein and the rent and
additional rent reserved in such sublease.
Section 22.5 In the event that any sub-tenant should hold over in the
premises beyond the expiration of the term of this lease, the TENANT hereunder
shall be responsible to the LANDLORD for all Basic Annual Rent and Additional
Rent until the premises are delivered to the LANDLORD in the condition provided
for in this lease.
Section 22.6 TENANT shall pay LANDLORD'S reasonable legal fees with
reference to approving any assignment and assumption agreement.
Section 22.7 Anything herein contained to the contrary notwithstanding,
but without releasing TENANT fro its obligations for full performance hereunder,
TENANT shall have the right, without consent of LANDLORD, but with prior written
notice to LANDLORD, to assign or sublet all or any part of the Demised Premises
to one or more controlled or subsidiary companies, or to a parent company
(existing or future), and TENANT shall have the right to permit the Demised
Premises or any part thereof to be used by any controlled subsidiary or
affiliated and/or parent companies, provided that a duplicate original of the
assignment or sublease shall permit only such use and occupancy as is permitted
under this lease.
Further, TENANT may assign this lease in its entirety without the
consent of LANDLORD, but with prior written notice to LANDLORD, to any successor
corporation (by consolidation or merger or sale of substantially all of its
assets) provided the assets and consolidated net worth of such successor
corporati |