Lease and development agreement



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ARTICLE 26. MISCELLANEOUS

Section 26.1 Limitation on Representations.


Except as may be expressly set forth in this Agreement, the Lessee acknowledges that it has not relied upon any representation or statement of the Port Authority or any of its Commissioners, officers, employees or agents as to the condition of the Premises or the suitability thereof for the operations permitted on the Premises by this Agreement. The Lessee also acknowledges that prior to the execution of this Agreement it was given access to the Premises to conduct such tests as it thought appropriate to determine the Environmental Condition of the Premises, and the Lessee hereby agrees to take the Premises in their “as is” condition.

Section 26.2 Signs.


Except with the prior approval of the Port Authority, the Lessee shall not erect, maintain or display any signs, lettering, advertising, posters, displays or similar devices on the exterior of the Premises or the Building or elsewhere at the Airport. The Lessee may, without prior Port Authority consent, install signs, lettering, advertising, posters, displays or similar devices in the interior portions of the Building. Any signs, lettering, advertising, posters, displays or similar devices erected, maintained or displayed anywhere on the exterior of the Premises or the Building pursuant to the provisions of this Article shall conform to such standards with respect to design, material, lettering and size as have been approved by the Port Authority. The Lessee shall keep all exterior signs, lettering, advertising, posters, displays or similar devices at all times in a clean, first-class condition and appearance and shall perform all required maintenance, repairs and replacements thereto and thereof.

Section 26.3 OFAC Compliance.

(a) The Lessee hereby represents and warrants to the Port Authority that the Lessee is not, and shall not become, a person or entity with whom the Port Authority is restricted from doing business under the regulations of the Office of Foreign Asset Control (“OFAC”) of the United States Department of the Treasury (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including, but not limited to, the September 24, 2001 Executive Order on Terrorist Financing Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit or Support Terrorism), or other governmental action and is not engaging, and shall not engage, in any dealings or transactions or be otherwise associated with such persons or entities. Lessee acknowledges that the Port Authority is entering into this Agreement in reliance on the foregoing representations and warranties and that such representations and warranties are a material element of the consideration inducing the Port Authority to enter into and execute this Agreement. In the event of any breach of any of the foregoing representations and warranties by Lessee, the Port Authority shall have the right, in addition to any and all other remedies provided under this Agreement or at law or in equity, to immediately terminate this Agreement upon written notice to Lessee. Lessee further acknowledges that there shall be no cure for such a breach. In the event of any such termination by the Port Authority, Lessee shall, immediately on receipt of the Port Authority’s termination notice, cease all use of and operations permitted under this Agreement and surrender possession of the Premises to the Port Authority without the Port Authority being required to resort to any other legal process. Termination on the afore-described basis shall be deemed a termination for cause.

(b) The Lessee shall indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, losses, risks, liabilities and expenses (including, without limitation, attorney’s fees and disbursements) arising out of, relating to, or in connection with the Lessee’s breach of any of its representations and warranties made under this paragraph. Upon the request of the Port Authority, the Lessee shall at its own expense defend any suit based upon any such claim or demand (even if such suit, claim or demand is groundless, false or fraudulent) and in handling such it shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provision of any statutes respecting suits against the Port Authority.

(c) Survival. The provisions of this Section shall survive the expiration or earlier termination of the Term.

Section 26.4 Nonliability of Individuals.


No Commissioner, officer, agent or employee of the Port Authority or member, shareholder, constituent owner, officer, agent or employee of the Lessee, to the extent any of the foregoing are natural persons, shall be charged personally with any liability or held personally liable under any term or provision of this Agreement or because of acts or omissions of any such individual or because of any breach or attempted or alleged breach of any of the provisions of this Agreement, it being understood that all such liability, if any, shall be that of the Port Authority, on the one hand, and the Lessee and its owners and/or constituent entities that are not natural persons, on the other.

Section 26.5 Force Majeure.


(a) Definitions.

Force Majeure” or “causes or conditions beyond its control”, or words of similar import, shall mean acts of God, the elements, weather conditions, tides, earthquakes, settlement, fire, acts of any Governmental Authority (other than the Port Authority with respect to obligations to be performed by it under this Agreement), war, shortage of labor or materials, acts or omissions of third parties for which the Port Authority or the Lessee, as the case may be, is not responsible, injunctions, labor troubles or disputes of every kind (including those affecting the Port Authority or the Lessee, or its or their contractors, suppliers or subcontractors) or any other conditions or circumstances, whether similar to or different from the foregoing (it being agreed that the foregoing enumeration shall not limit or be characteristic of such conditions or circumstances) which are beyond the control of the Port Authority or the Lessee, as the case may be, and which could not be prevented or remedied by reasonable effort and at reasonable expense. Notwithstanding the foregoing, in no event shall lack of financial resources required in any circumstances constitute Force Majeure or causes or conditions beyond the control of either party hereto.

(b) No Liability for Force Majeure Delays.

Neither party to this Agreement shall be liable for any failure, delay or interruption in performing its obligations hereunder due to Force Majeure unless the failure, delay or interruption shall result from failure on the part of such party to use reasonable care to prevent or reasonable efforts to remedy or end such failure, delay or interruption.

(c) No Default as a Result of Force Majeure.

If the Lessee shall be delayed in performing any of its obligations under this Agreement (other than monetary obligations) by reason of Force Majeure, the time for the performance of the obligation in question shall be extended by the period of delay resulting from Force Majeure and the Lessee shall not be in default under this Agreement by reason of such delay in the performance by it of such obligation.

(d) Application of this Section.

The provisions of this Section shall apply to each and every obligation (other than monetary obligations) of each of the parties hereto under this Agreement, whether or not reference to Force Majeure or conditions beyond the control of the party in question is set forth in the provision of this Agreement which gives rise to such obligation. The fact that references to Force Majeure or conditions beyond the control of a party hereto may be included in only certain of the provisions of this Agreement shall not be construed as making the provisions of this Section inapplicable to those provisions of this Agreement which do not contain such references. Notwithstanding the foregoing, however, and notwithstanding anything else in this Agreement, Force Majeure shall not constitute a defense or excuse with respect to the Events of Default numbered (1) through (11) in Section 17.1 hereof.


Section 26.6 Quiet Enjoyment.


The Lessee, so long as it pays all Rentals hereunder and performs all of the covenants, conditions and provisions of this Agreement on its part to be performed, shall and may peacefully and quietly have, hold and enjoy the Premises throughout the term of the letting hereunder.

Section 26.7 No Subordination.


The interest of the Port Authority in the Premises and in this Agreement, as the same may be modified, amended or renewed, shall not be subject or subordinate to (x) any Mortgage now or hereafter existing, (y) any other liens or encumbrances hereafter affecting the Lessee’s interest in this Agreement and the leasehold estate created hereby or (z) any Sublease or any mortgages, liens or encumbrances now or hereafter placed on any Subtenant’s interest in the Premises.

Section 26.8 Relationship of the Parties.


This Agreement does not constitute the Lessee the agent or representative of the Port Authority for any purpose whatsoever. Neither a partnership nor any joint venture is hereby created.

Section 26.9 Severability.


If any term or provision of this Agreement or the application thereof to any Person or circumstances shall to any extent be held invalid and unenforceable, the remainder of this Agreement, or the application of such term or 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 Agreement shall be valid and shall be enforced to the extent permitted by law.

Section 26.10 Remedies to be Non-Exclusive.


All remedies provided in this Agreement shall be deemed cumulative and additional and not in lieu of or exclusive of each other or of any other remedy available to the Port Authority or the Lessee at law or in equity, and the exercise of any remedy, or the existence herein of other remedies or indemnities, shall not prevent the exercise of any other remedy.

Section 26.11 Construction and Application of Terms.


(a) Headings.

The use of article, section and paragraph headings and a table of contents, and the organization of the various provisions of this Agreement thereunder, are for convenience of reference only and in no way define, limit or describe the scope or intent of any provision hereof.

(b) Ambiguities.

Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applicable to the interpretation of this Agreement or any amendments, addendums or supplements hereto or any exhibits or schedules hereto.

(c) Survival.

The fact that certain of the terms and provisions hereunder are expressly stated to survive the expiration or termination of the letting hereunder shall not mean that those provisions hereunder which are not expressly stated to survive shall terminate or expire on the expiration or termination of the letting hereunder and do not survive such termination or expiration.

(d) Gender and Number.

Wherever in this Agreement a third person singular neuter pronoun or adjective is used, referring to the Lessee or Port Authority, the same shall be taken and understood to refer to the Lessee or the Port Authority, regardless of the actual gender or number thereof.

(e) Time Designations.

All designations of time herein contained shall refer to the time-system then officially in effect in the municipality wherein the Premises are located.

(f) Exhibits and Schedules.

The provisions and obligations contained in any Exhibits or Schedules attached hereto shall have the same force and effect as if herein set forth in full.

(g) Governing Law.

This Agreement and any claim, controversy or dispute arising under or related to this Agreement and the letting hereunder shall be governed by, and be construed in accordance with, the laws of the State of New York applicable to contracts made, and to be performed solely within, such state, without regard to choice of law principles.

(h) Successors and Assigns.

The covenants, agreements, terms, provisions and conditions contained in this Agreement shall be binding upon and inure to the benefit of the Port Authority and the Lessee and their respective successors and permitted assigns, except as otherwise expressly set forth herein.


Section 26.12 Memorandum of Lease.


Simultaneously with the execution of this Agreement, the Port Authority and the Lessee shall execute a Memorandum of Lease in the form attached as Exhibit H, which shall be recorded in the Office of the City Register of the City of New York.

Section 26.13 Entire Agreement.


(a) Entire Agreement.

This Agreement consists of the following: Articles 1-26, inclusive, Schedules 1 through _, and Exhibits A through _. This Agreement, together with the attachments hereto, contains all of the promises, agreements, conditions, inducements and understandings between the Port Authority and the Lessee concerning the Premises, and there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them other than as expressly set forth herein and therein or as may be expressly contained in any enforceable written agreements or instruments executed simultaneously herewith by the parties hereto.

(b) Modifications to be in Writing.

No covenant, agreement, term or condition of this Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by the Lessee and the Port Authority.

(c) No Waiver.

No failure by the Port Authority to insist upon the strict performance of any agreement, covenant, term or condition of this Agreement or to exercise any right or remedy consequent upon the breach or default of any agreement, covenant, term, or condition of this Agreement, and no extension, supplement or amendment or this Agreement during or after such breach or default, unless expressly stated to be a waiver, and no acceptance by the Port Authority of any Rental after or during the continuance of any such breach or default, shall constitute the waiver of such breach or default. No waiver of any default shall affect or alter this Agreement, but each and every agreement, covenant, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent default thereof.

(d) Counterparts.

This Agreement may be simultaneously executed in two or more counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have executed these presents as of the day and year first above written.

ATTEST:


THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY

_______________________________
Secretary

_______________________________
(name)
(title)






ATTEST:


[LESSEE]

_______________________________
(name)
(title)

By

_______________________________


(name)
(title)








Port Authority Use Only:

Approval as to Terms:

Approval as to Form:









1 If applicable.

2 To be determined after Lessee submits financial statements for most recent two years.

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