Exhibit 10.7
STANDARD FORM OF LOFT LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 1st day of July in the year 2000, between
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Winteringham and ▇▇▇▇ ▇▇▇▇▇▇, as Executors of the
Last Will and Testament of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, deceased, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, having an address for notices
and other communications as set forth in Article 58, party of the first part,
hereinafter referred to as OWNER and Coach, Inc., a Maryland corporation, having
an address for notices and other communications as set forth in Article 58,
party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner the
entire rentable area of the 7th, 8th, 9th, 10th, 11th and 12th floors and,
commencing May 1, 2005, the entire rentable area of the 5th floor, in the
building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in the borough of Manhattan, City of New
York, for the term of 15 years (or until such term shall sooner cease and expire
as hereinafter provided) to commence on the 1st day of July in the year 2000
(and, with respect to the entire rentable area of the 5th floor, the 1st day of
May in the year 2005), and to end on the 30th day of June in the year 2015, both
dates inclusive, at an annual rental rate set forth in Article 44, which Tenant
agrees to pay in lawful money of the United States which shall be legal tender
in payment of all debts and dues, public and private, at the time of payment, in
equal monthly installments in advance on the first day of each month during said
term, at the office of Owner or such other place as Owner may designate, without
any setoff or deduction whatsoever.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder, and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy the demised premises for executive and
general offices, showrooms, warehousing, shipping and light manufacturing, and
uses ancillary to those uses, in connection with Tenant's business and the
business of any other occupant of the demised premises permitted pursuant to
this lease provided such use is in accordance with the certificate of occupancy
for the building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the demised premises of any
nature. Tenant agrees to carry, and will cause Tenant's contractors and
sub-contractors to carry, such worker's compensation, general liability,
personal and property damage insurance as Owner may reasonably require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty (30) days thereafter, at Tenant's
expense, by payment or filing a bond as permitted by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the demised
premises at any time, either by Tenant or by Owner on Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty (20) days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the demised premises by Tenant
prior to the expiration of the lease, at Tenant's expense. Nothing in this
article shall be construed to give Owner title to, or to prevent Tenant's
removal of, trade fixtures, moveable office furniture and equipment, but upon
removal of same from the demised premises or upon removal of other installations
as may be required by Owner, Tenant shall immediately, and at its expense,
repair and restore the demised premises to the condition existing prior to any
such installations, and repair any damage to the demised premises or the
building due to such removal. All property permitted or required to be removed
by Tenant at the end of the term remaining in the demised premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or removed from the demised premises by
Owner, at Tenant's expense.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions
of the building, including, without limitation, the mechanical systems of the
building (but not the air conditioning system). Tenant shall, throughout the
term of this lease, take good care of the demised premises including the
bathrooms and lavatory facilities (if the demised premises encompass the entire
floor of the building), the windows and window frames, and the fixtures and
appurtenances therein, and at Tenant's sole cost and expense promptly make all
repairs thereto and to the building, whether structural or non-structural in
nature, caused by, or resulting from, the carelessness, omission, neglect or
improper conduct of Tenant, Tenant's servants, employees, invitees, or
licensees, and whether or not arising from Tenant's conduct or omission, when
required by other provisions of this lease, including Article 6. Tenant shall
also repair all damage to the building and the demised premises caused by the
moving of Tenant's fixtures, furniture or equipment. All the aforesaid repairs
shall be of quality or class equal to the original work or construction. If
Tenant fails, after 30 days notice, to proceed with due diligence to make
repairs required to be made by Tenant, the same may be made by Owner at the
reasonable expense of Tenant, and the expenses thereof incurred by Owner shall
be collectible, as additional rent, after rendition of a ▇▇▇▇ or statement
therefor. If the demised premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. Tenant shall give
Owner prompt notice of any defective condition in any plumbing, heating system
or electrical lines located in the demised premises and following such notice,
Owner shall remedy the condition with due diligence, but at the expense of
Tenant, if repairs are necessitated by damage or injury attributable to Tenant,
Tenant's servants, agents, employees, invitees or licensees as aforesaid. Except
as specifically provided in Article 9 or elsewhere in this lease, there shall be
no allowance to Tenant for a diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises, or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action for
damages for breach of contract. The provisions of this Article 4 with respect to
the making of repairs shall not apply in the case of fire or other casualty with
regard to which Article 9 hereof shall apply.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the New York State Labor Law or any other applicable law, or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant shall, at Tenant's sole cost
and expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments,
departments, commissions and boards and any direction of any public officer
pursuant to law, and all orders, rules and regulations of the New York Board
of Fire Underwriters, Insurance Services Office, or any similar body which
shall impose any violation, order or duty upon Owner or Tenant with respect
to the demised premises, whether or not arising out of Tenant's use or manner
of use thereof, or, with respect to the building, if arising out of Tenant's
use or manner of use of the demised premises of the building (including the
use permitted under the lease). Except as provided in Article 30 hereof,
nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant shall not do or
permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for
the benefit of Owner. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by, the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
demised premises in a manner which will increase the insurance rate for the
building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of failure to comply with
the foregoing the fire insurance rate shall, at the beginning of this lease
or at any time thereafter, be higher than it otherwise would be, then Tenant
shall reimburse Owner, as additional rent hereunder, for that portion of all
fire insurance premiums thereafter paid by Owner which shall have been
charged because of such failure by Tenant. In any action or proceeding
wherein Owner and tenant are parties, a schedule or "makeup" or rate for the
building or demised premises issued by a body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of
the demised premises exceeding the floor load per square foot area which it
was designed to carry and which is allowed by law. Owner reserves the right
to prescribe to the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's reasonable
judgement, to absorb and prevent vibration noise and annoyance.
Subordination ground:
7. This lease is subject and subordinate to all or underlying leases and to
all mortgages which may now or hereafter affect such leases or the real property
of which the demised premises are a part, and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases and
mortgages. This clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessor or by any
mortgagee, affecting any lease or the real property of which the demised
premises are a part. In confirmation of such subordination, Tenant shall from
time to time execute promptly any certificate that Owner may request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of, or
damage to, any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by, or due to, the negligence of Owner, its agents, servants or
employees: Owner or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to, Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain thereby, and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent, nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorney's fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of any covenant
or condition of this lease, or the carelessness, negligence or improper conduct
of Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and omissions of any
subtenant, and any agent, contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld (and counsel retained
by Tenant's insurance carrier shall be deemed approved by Owner).
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice thereof to Owner 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
by fire or other casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the demised premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent and other items of additional
rent as hereinafter expressly provided shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the demised
premises shall have been repaired and restored by owner (or sooner reoccupied in
part by Tenant then rent shall be apportioned as provided in subsection (b)
above), subject to Owner's 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 Owner shall decide to demolish it or rebuild it, then,
in any of such events, provided Owner terminates all other leases in the
building which Owner is then permitted to terminate pursuant to a provision
similar to this Article, Owner may elect to terminate this lease by written
notice to Tenant, given within ninety (90) days after such fire or casualty, or
thirty (30) days after adjustment of the insurance claim for such fire or
casualty, whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than sixty (60) days after the giving of
such notice, and upon the date specified in such notice 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 demised premises without prejudice however, to Owner'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 Owner shall serve a termination
notice as provided for herein, Owner 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 Owner's control. After any such casualty, tenant shall cooperate
with Owner's restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment, furniture, and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the demised premises
are substantially ready for Tenant's occupancy. (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, including
Owner's obligation to restore under subparagraph (b) above, 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 collectible, and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d) and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefitting from the waiver shall pay such premium within ten (10) days
after written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
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 Owner will not be 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.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant and shall have no claim for
the value of any unexpired term of said lease. Tenant shall have the right to
make an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term, and provided further such
claim does not reduce Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign by operation of law or otherwise, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained or the release of any
guarantor. The consent by Owner to an assignment or underletting shall not in
any wise be construed
to relieve Tenant from obtaining the express consent in writing of Owner to any
further assignment or underletting, by operation of law or otherwise.
Electric Current:
12. Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the building or the
risers or wiring installation, and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will overload such
installations or interfere with the use thereby by other tenants of the
building. The change at any time of the character of electric service will in no
wise make Owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain or the release of any guarantor.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time without
prior notice, and, at other reasonable times on reasonable prior notice (which
may be oral), to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building, or which Owner may elect to perform in the demised premises
after Tenant's failure to make repairs, or perform any work which Tenant is
obligated to perform under this lease, or for the purpose of complying with
laws, regulations and other directions of governmental authorities. Tenant shall
permit Owner to use, maintain and replace pipes and conduits in and through the
demised premises, and to erect new pipes and conduits therein provided, wherever
possible, they are within walls or otherwise concealed. Owner may, during the
progress of any work in the demised premises, take all necessary materials and
equipment into said premises without the same constituting an eviction, nor
shall Tenant be entitled to any abatement of rent while such work is in
progress, nor to any damages by reason of loss or interruption of business or
otherwise. Throughout the term hereof Owner shall have the right to enter the
demised premises at reasonable hours on reasonable prior notice (which may be
oral) for the purpose of showing the same to prospective purchasers or
mortgagees of the building, and during the last (12) months of the term for the
purpose of showing the same to prospective tenants. If Tenant is not present to
open and permit an entry into the demised premises, Owner or Owner's agents may
enter the same whenever such entry may be necessary or permissible by master key
or forcibly, and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected. If during
the last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom, Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation, and such act shall have no
effect on this lease or Tenant's obligation hereunder.
Vault, Vault Space, Area:
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability, nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the demised premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the demised premises and Tenant agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for, and shall procure and maintain, such license or permit.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding,
this lease may be cancelled by Owner by sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised, but shall forthwith quit and surrender the demised premises.
If this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant, as and for liquidated damages, an amount equal to the difference
between the rental reserved hereunder for the unexpired portion of the term
demised and the fair and reasonable rental value of the demised premises for
the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination
and the fair and reasonable rental value of the demised premises for the
period for which such installment was payable shall be discounted to the date
of termination at the rate of four percent (4%) per annum. If the demised
premises or any part thereof be relet by Owner for the unexpired term of said
lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved
upon such reletting shall be deemed to be the fair and reasonable rental
value for the part or the whole of the demised premises so re-let during the
term of the re-letting. Nothing herein contained shall limit or prejudice the
right of the Owner to prove for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in
which, such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease, or if the demised premises becomes vacant or deserted, or if this lease
be rejected under Section 365 of Title 11 of the U.S. Code (Bankruptcy Code); or
if any execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if Tenant shall be in default with respect to any other
lease between Owner and Tenant; or if Tenant shall have failed, after five (5)
days written notice, to redeposit with Owner any portion of the security
deposited hereunder which Owner has applied to the payment of any rent and
additional rent due and payable hereunder, then in any one or more of such
events, upon Owner serving a written 10 days notice with respect to a default in
the payment of rent or additional rent or 30 days notice with respect to any
other default upon Tenant specifying the nature of said default, and upon the
expiration of said 10 or 30 days, as the case may be, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said 30 day period (it being intended that a default in the
payment of rent or additional rent shall not have the benefit of this extension
of the cure period), and if Tenant shall not have diligently commenced during
such default within such 30 day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, then Owner
may serve a written five (5) days notice of cancellation of this lease upon
Tenant, and upon the expiration of said five (5) days this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such five (5) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof, and Tenant shall then quit and
surrender the demised premises to Owner, but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; Owner may without notice, re-enter the
demised premises either by force or otherwise, and dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of the demised premises, and remove their effects and hold the
demised premises as if this lease had not been made, and Tenant hereby waives
the service of notice of intention to re-enter or to institute legal
proceedings to that end. If Tenant shall make default hereunder prior to the
date fixed as the commencement of any renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such an entry, dispossess
and/or expiration, (b) Owner may re-let the demised premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease, and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay to Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the demised premises
or any part or parts thereof shall not release or affect Tenant's
liability for damages. In computing such liquidated damages there shall be added
to the said deficiency such expenses as Owner may incur in connection with
re-letting, such as legal expenses, reasonable attorneys' fees, brokerage,
advertising, and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease, and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgment, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner or Tenant from any other remedy, in law or in equity. Tenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future laws.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under, or by virtue of,
any of the terms or provisions in any article of this lease, after notice if
required, and upon expiration of the applicable grace period, if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease. Owner
may immediately, or at any time thereafter, and without further notice, perform
the obligation of Tenant thereunder. If Owner, in connection with the foregoing,
or in connection with any default by Tenant in the covenant to pay rent
hereunder, makes any expenditures or incurs any obligations for the payment of
money, including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding or in connection with any
other dispute under this lease, and prevails in any such action or proceeding or
dispute, then Tenant will reimburse Owner for such sums so paid or obligations
incurred with interest and costs. The foregoing expenses incurred by reason of
Tenant's default shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Owner within ten (10) days of rendition of any ▇▇▇▇ or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right, at any time, without the same constituting
an eviction and without incurring liability to Tenant therefor, to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building, and
to change the name, number or designation by which the building many be known
(subject to Article 51). There shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenant making any
repairs in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of Owner's
imposition of any controls of the manner of access to the building by Tenant's
social or business visitors, as Owner may deem necessary, for the security of
the building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected, the demised premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or related to the demised
premises or the building, except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" on the date possession is
tendered, and acknowledges that the taking of possession of the demised premises
by Tenant shall be conclusive evidence that the said premises, and the building
of which the same form a part, were in good and satisfactory condition at the
time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant, and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, "broom-clean", in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease, or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday, unless it
be a legal holiday, in which case it shall expire at noon on the preceding
business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent
and additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof, and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
No Waiver:
24. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this lease, or of
any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach, and no provision of this
lease shall be deemed to have been waived by Owner or Tenant unless such waiver
be in writing signed by Owner and Tenant. No payment by Tenant, or receipt by
Owner, of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement of any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Owner may accept
such check or payment without prejudice to Owner's right to recover the balance
of such rent or pursue any other remedy in this lease provided. All checks
tendered to Owner as and for the rent of the demised premises shall be deemed
payments for the account of Tenant. Acceptance by Owner of rent from anyone
other than Tenant shall not be deemed to operate as an attornment to owner by
the payor of such rent, or as a consent by Owner to an assignment or subletting
by Tenant of the demised premises to such payor, or as a modification of the
provisions of this lease. No act or thing done by Owner or Owner's agents during
the term hereby demised shall be deemed an acceptance of a surrender of said
premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Owner. No employee of Owner or Owner's agent shall have any
power to accept the keys of said premises prior to the termination of the lease,
and the delivery of keys to any such agent or employee shall not operate as a
termination of the lease or a surrender of the demised premises.
Waiver of Trial by Jury:
25. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of owner and Tenant, Tenant's use of or occupancy of demised
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession, including a summary proceeding for possession of the
demised premises, Tenant will not interpose any counterclaim, of whatever nature
or description, in any such proceeding, including a counterclaim under Article
4, except for statutory mandatory counterclaims.
Inability to Perform:
26. This Lease and the obligation of Tenant to rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease, or to supply, or is
delayed in supplying, any service expressly or impliedly to be supplied, or is
unable to make, or is delayed in making, any repairs, additions, alterations or
decorations, or is unable to supply, or is delayed in supplying, any equipment,
fixtures or other materials. If Owner is prevented or delayed from doing so be
reason of strike or labor troubles, or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions, or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency, or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
Water Charges:
27. If Tenant requires, uses or consumes water
for any purpose in addition to ordinary lavatory purposes (of which fact Owner
shall be the sole judge) Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation. Throughout the duration of
Tenant's occupancy, Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense. In the event
Tenant fails to maintain the meter and installation equipment in good working
order and repair (of which fact owner shall be the sole judge) Owner may cause
such meter and equipment to be replaced or repaired, and collect the cost
thereof from Tenant as additional rent. Tenant agrees to pay for water consumed,
as shown on said meter as and when bills are rendered, and in the event Tenant
defaults in the making of such payment, Owner may pay such charges and collect
the same from Tenant as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent or levy which now
or hereafter is assessed, imposed or a lien upon the demised premises, or the
realty of which they are a part, pursuant to any law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, the water system or sewage or sewage connection or system. If the
building, the demised premises, or any part thereof, is supplied with water
through a meter through which water is also supplied to other premises, Tenant
shall pay to Owner, as additional rent, $100 per floor (or prorated part) on the
first day of each month. Independently of, and in addition to, any of the
remedies reserved to Owner hereinabove or elsewhere in this lease, Owner may ▇▇▇
for and collect any monies to be paid by Tenant, or paid by Owner, for any of
the reasons or purposes hereinabove set forth.
Sprinklers:
28. Anything elsewhere in this lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system, or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, the location of partitions, trade fixtures, or other contents
of the demised premises, or for any other reason related to Tenant's manner of
use of the demised premises, or if any such sprinkler system installations,
modifications, alterations, additional sprinkler heads or other such equipment,
become necessary to prevent the imposition of a penalty or charge against the
full allowance for a sprinkler system in the fire insurance rate set by said
Exchange or any other body making fire insurance rates, or by any fire insurance
company, Tenant shall, at Tenant's expense, promptly make such sprinkler system
installations, changes, modifications, alterations, and supply additional
sprinkler heads or other equipment as required, whether the work involved shall
be structural or non-structural in nature. Tenant shall pay to Owner as
additional rent the sum of $50 per floor (or prorated part), on the first day of
each month during the term of this lease, as Tenant's portion of the contract
price for sprinkler supervisory service.
Elevators, Heat, Cleaning:
29. As long as Tenant is not in default under any covenants of this lease,
beyond the applicable grace period provided in this lease for the curing of such
defaults, Owner shall: (a) provide necessary passenger elevator facilities on
business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (b)
if freight elevator service is provided, same shall be provided only on regular
business days, Monday through Friday inclusive, and on those days only between
the hours of 8 a.m. and 12 noon and between 1 p.m. and 5 p.m.; (c) furnish heat,
water and other services supplied by Owner to the demised premises, when and as
required by law, on business days from 8 a.m. to 6 p.m. and on Saturdays from 8
a.m. to 1 p.m.; (d) clean the public halls and public portions of the building
which are used in common by all tenants. Tenant shall, at Tenant's expense, keep
the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ person or
persons, or corporations approved by Owner. Owner shall remove Tenant's refuse
and rubbish from the building. Tenant shall, at Tenant's expense, deliver
Tenant's refuse and rubbish to a location within the building designated by
Owner. Owner reserves the right to stop service of the heating, elevator,
plumbing and electric systems, when necessary, by reason of accident or
emergency, or for repairs, alterations, replacements or improvements, which in
the judgment of Owner are desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner may proceed diligently with alterations necessary to
substitute automatic control elevator service without in any way affecting the
obligations of Tenant hereunder.
Captions:
30. The Captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
Definitions:
31. The term "Owner" as used in this lease means only the owner of the fee
or of the leasehold of the building, or the mortgagee in possession for the time
being, of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or the successors in interest, or between
the parties and the purchaser, at any such sale, or the said lessee of the
building, or of the land and building, that the purchaser or the lessee of the
building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so expressed or expressed in monthly
instalments, and "additional rent". "Additional rent" means all sums which shall
be due to Owner from Tenant under this lease, in addition to the annual rental
rate. The term "business days" as used in this lease, shall exclude Saturdays,
Sundays and all days observed by the State or Federal Government as legal
holidays, and those designated as holidays by the applicable building service
union employees service contract, or by the applicable Operating Engineers
contract with respect to HVAC service. Wherever it is expressly provided in this
lease that consent shall not be unreasonably withheld, such consent shall not be
unreasonably delayed.
Adjacent Excavation-Shoring:
32. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, a license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building, of which demised premises form a
part, from injury or damage, and to support the same by proper foundations,
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faith fully, and comply with, the Rules and Regulations
annexed hereto and such other and further reasonable Rules and Regulations as
Owner or Owner's agents may from time to time adopt. Notice of any additional
Rules or Regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rules or Regulations
hereafter made or adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of such Rules or Regulations for
decision to the New York office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties hereto. The right
to dispute the reasonableness of any additional Rules or Regulations upon
Tenant's part shall be deemed waived unless the same shall be asserted by
service of a notice, in writing, upon Owner, within 60 days after the giving of
notice thereof. Nothing in this lease contained shall be construed to impose
upon Owner any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease, as against any other tenant, and
Owner shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees.
Glass:
34. Owner shall replace, at the expense of Ten ant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and in the name of Owner. Bills for the
premiums therefor shall be rendered by Owner to Tenant at such times as Owner
may elect, and shall be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid as, additional rent.
Directory Board Listing:
35. If, at the request of, and as accommodation to, Tenant, Owner shall
place upon the directory board in the lobby of the building, one or more names
of persons or entities other than Tenant, such directory board listing shall not
be construed as the consent by Owner to an assignment or subletting by Tenant to
such persons or entities.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
The Rider attached to this lease is hereby made a part of this lease.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Owner
By: ▇▇▇▇▇▇ Comfort & Sons, Inc.,
Owner's Managing Agent
-------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Coach, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Executive Vice President
& Chief Operating Officer
------------------------------
Rider To Lease Dated July 1, ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Winteringham and ▇▇▇▇ ▇▇▇▇▇▇,
as Executors of the Last Will and Testament of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, deceased,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Owner
and Coach, Inc., Tenant
41. CONFLICTS. In the event of any conflict between any of the provisions
of this Rider and any of the provisions, printed or typewritten, of the printed
portion of this lease, the provisions of this Rider shall control.
42. EXISTING LEASES. (a) Tenant is the present tenant under the following
leases with Owner ("Existing Leases"), in the aggregate covering the demised
premises (other than the 5th floor):
(i) Agreement of Lease dated February 11, 1991 (originally with Tricots St.
Raphael, Inc., and assigned to Tenant pursuant to Agreement to Assign Lease
dated October 31, 1995), amended by First Amendment to Lease dated January, 1996
(covering the entire 7th floor, which under its current terms expires February
28, 2001).
(ii) Agreement of Lease dated May 11, 1979, amended by Agreement dated May
1, 1981, Extension Agreement dated July 1, 1982, Agreement dated January 1,
1989, and Lease Modification Agreement dated August 3, 1993 (covering the entire
8th, 9th and 10th floors, which under its current terms expires January 31,
2002);
(iii) Agreement of Lease dated September 14, 1994 (covering a portion of
the 11th floor, which under its current terms expires January 31, 2002);
(iv) Agreement of Lease dated July 1, 1982, amended by Agreement dated
January 1, 1989, Lease Modification Agreement dated October 30, 1990, and Lease
Modification Agreement dated August 3, 1993 (covering a portion of the 11th
floor, which under its current terms expires January 31, 2002); and
(v) Agreement of Lease dated August 3, 1993, amended by Lease Modification
Agreement, dated August 16, 1993 (covering the entire 12th floor, which under
its current terms expires January 31, 2002);
(b) Effective on the date the term of this lease commences, the term
of each of the Existing Leases shall be deemed terminated, in the same manner
and with the same effect as if the termination date was the date set forth in
each of the Existing Leases as the expiration date. Notwithstanding any
provision of this lease to the contrary, the additional rent payable under
the Existing Leases shall be payable through January 31, 2002 with respect to
the 8th, 9th, 10th, 11th and 12th floors, and February 28, 2001 with respect
to the 7th floor.
43. AS IS; OWNER'S WORK. (a) Notwithstanding any provision of this lease to
the contrary (except as provided in paragraph (b) of this Article), Tenant shall
continue in possession of the demised premises (including, without limitation,
the 5th floor) "AS IS" on the date of the term of this lease shall commence
(and, with respect to the 5th floor, on May 1, 2005) and Owner shall have no
obligation to furnish, render or supply any work, labor, services, equipment,
materials, decorations, furniture or fixtures to make the demised premises ready
or suitable for Tenant's use or occupancy.
(b) Owner shall, at Owner's expense, in a building standard manner,
using building standard materials, perform the following work ("Owner's
Work") in a first class workmanlike manner, in accordance with EXHIBIT A
attached to this lease ("Owner's Work Description"): furnish and install new
double-hung thermal pane windows throughout the building (which can be opened
in a manner which permits them to be cleaned from inside the demised
premises; such cleaning to be performed by Tenant, at Tenant's expense);
upgrade the mechanical system and cab appearance of the two existing
passenger elevators; convert one freight elevator to a passenger elevator;
and upgrade the main lobby and entrance of the building (including, without
limitation, the installation of a 24-hour access system, which shall be a
card access system or other system reasonably acceptable to Tenant; the
"Access System"; and any card access system shall be compatible with Tenant's
existing ADT - ▇▇▇▇▇ Fargo System. On or before the 90th day following the
commencement of the term of this lease, Owner shall deliver to Tenant for its
approval (which shall not be unreasonably withheld or delayed), plans and
specifications for the design of the windows, the three passenger elevators
and the main lobby and entrance of the building which shall be consistent
with Owner's Work Description ("Owner's Plans"). Tenant shall approve or
disapprove Owner's Plans by notice to Owner within 15 business days following
Owner's delivery of
Owner's Plans (time being of the essence). If Tenant fails to do so, Owner's
Plans shall be deemed approved by Tenant. If Tenant timely disapproves Owner's
Plans, Tenant's notice of disapproval shall give the details of the disapproval
and make suggestions for those items disapproved by Tenant. If Tenant's
suggestions are consistent with Owner's Work Description and shall not increase
the cost of, or time required for, Owner's Work, or affect any other area or
tenant of the building (collectively, the "Criteria"), Owner shall incorporate
Tenant's suggestions into Owner's Plans. If Tenant's suggestions do not meet the
Criteria, Owner shall give notice thereof to Tenant, detailing the aspects in
which they do not meet the Criteria, within 15 business days following Owner's
receipt of Tenant's disapproval (time being of the essence). If Owner fails to
do so, Owner shall be deemed to have approved Tenant's suggestions. If Owner
timely disapproves Tenant's suggestions, the dispute shall be resolved by
arbitration in accordance with Article 63(b), but the arbitrator cannot approve
any of Tenant's suggestions which do not meet the Criteria.
(c) Owner shall use commercially reasonable efforts to substantially
complete Owner's Work within 24 months following the date Owner and Tenant
agree on Owner's Plans (or the date any dispute is resolved by arbitration as
provided in this Article), subject to extension for delays as provided in
Article 27 (which shall include, without limitation, delays due to any act or
omission of Tenant or any of Tenant's employees, agents or contractors).
Owner's Work shall be deemed substantially completed at such time as Owner's
Work is completed but for (i) decorating and touching-up of painting and (ii)
minor or insubstantial details of construction or mechanical adjustment. If
Owner shall fail to substantially complete Owner's Work within the period of
24 months set forth in this paragraph (as extended), this lease shall remain
in full force and effect according to its terms, Owner shall have no
obligation or liability to Tenant, Tenant shall not be entitled to any
damages or rent abatement and Tenant's sole remedy shall be an action for
specific performance.
44. FIXED RENT. The annual fixed rent under this lease (subject to increase
as provided in this lease) shall be as follows:
(i) from July 1, 2000 through February 28, 2001, $1,466,966 per annum
(representing the annual fixed rent under the Existing Leases, as the same may
have been increased);
(ii) from March 1, 2001 through January 31, 2002 (x) $1,230,000 per annum
(represent ing the annual fixed rent under the Existing Leases, as the same may
have been increased, for the 8th through 12th floors), plus (y) $380,000 per
annum for the 7th floor, except that the annual fixed rent for the 7th floor
shall be increased (A) on March 1, 2001, by an amount equal to $380,000
multiplied by the greater of 1 percent or 50% of the percentage increase of the
Index (as defined below) for February 2001 over the Index for June 2000, and (B)
on July 1, 2001, by an amount equal to the annual fixed rent then payable with
respect to the 7th floor multiplied by the greater of .50 percent or 50 percent
of the percentage increase of the Index for June 2001 over the Index for
February 2001;
(iii) from February 1, 2002 through June 30, 2002 (x) the annual fixed rent
then payable with respect to the 7th floor as determined above, plus $1, 900,000
per annum for the 8th through 12th floors, except that the annual fixed rent for
the 8th through 12th floors shall be increased (A) on February 1, 2002, by an
amount equal to $1,900,000 multiplied by the greater of 2.375 percent or 50
percent of the percentage increase of the Index for January 2002 over the Index
for June 2000 and (B) on July 1, 2002, by an amount equal to the annual fixed
rent then payable with respect to the 8th through 12th floors multiplied by the
greater of .625 percent or 50 percent of the percentage increase of the Index
for June 2002 over the Index for January 2002;
(iv) from July 1, 2002 through June 30, 2003 (x) the annual fixed rent then
payable with respect to the 8th through 12th floors as determined above, plus
(y) the annual fixed rent then payable with respect to the 7th floor, which 7th
floor annual fixed rent shall be increased on July 1, 2002 by an amount equal to
the annual fixed rent then payable for the 7th floor multiplied by the greater
of 1.5 percent or 50 percent of the increase of the Index for June 2002 over the
Index for June 2001; and
(v) commencing on July 1, 2003 and on the first day of each July thereafter
during the term (the "Adjustment Date"), the annual fixed rent shall be
increased by an amount equal to the annual fixed rent then payable under this
lease multiplied by the greater of 1.5 percent or 50 percent of the percentage
increase of the Index for the June immediately prior to the Adjustment Date in
question over the Index for the prior June.
(b) In addition to all other rent and additional rent, and all other
increases, under this lease, the annual fixed rent shall be increased by
$360,000 per annum on July 1, 2003, an additional $440,000 per annum on May
1, 2005, and an additional $420,000 per annum on each of July 1, 2006, July
1, 2009, July 1, 2012, and, if the term of this lease is timely extended by
Tenant pursuant to this lease, July 1, 2015, July 1, 2018, July 1, 2021 and
July 1, 2024.
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(c) The term "Index" shall mean the All-Items figures in the Consumer
Price Index-All Urban Consumers (1982-84=100) of the Bureau of Labor
Statistics of the United States Department of Labor for New York, New
York-Northwestern New Jersey. If the Index is discontinued or changed, or the
Index is no longer published for the applicable months, Owner shall designate
a suitable substitute index, adjust the Index to take account of the changes
or change the periods for comparison. As soon as practicable after the
publication of the Index or the determination of a substitute index, Owner
shall determine the new annual fixed rent. Pending such determination, Tenant
shall continue to pay the annual fixed rent then in effect. When the new
annual fixed rent has been determined, Tenant shall promptly pay any increase
to Owner retroactive to the beginning of the period in question.
(d) The following is an illustration of the fixed rent payments
through July 1, 2004, assuming an annual percentage increase of the Index of
1 percent (so that the Index increase is not relevant):
(i) from July 1, 2000 through February 28, 2001, $1,466,966;
(ii) from March 1, 2001 through January 31, 2002 (x) $1,230,000, plus (y)
$380,000, but on March 1, 2001 the 7th floor rent shall be increased to $383,800
($380,000 plus 1% of $380,000 or $3,800) and on July 1, 2001 to $385,719
($383,800 plus .50 percent of $383,800 or $1,919);
(iii) from February 1, 2001 through June 30, 2002 (x) $385, 719, plus (y)
$1,900,000, but on February 1, 2001 the 8th through 12th floors rent shall be
increased to $1,945,125 ($1,900,000 plus 2.375 percent of $1,900,000) and on
July 1, 2002 to $1,957,282.03 ($1,945,125 plus .625 percent of $1,945,125);
(iv) from July 1, 2002 through June 30, 2003 (x) $1,957,282.03 plus (y)
$391,504.79 ($385,719 plus 1.5 percent of $385,719); and
(v) July 1, 2003 through June 30, 2004, $2,348,786.82 plus $35,231.80 (1.5
percent of $2,348,786.82), plus $360,000.
45. REAL ESTATE TAXES. For the purpose of this Article:
(i) The term "Taxes" shall mean (1) the real estate taxes, assessments and
special assessments imposed on the building and/or the land on which the
building is erected (including, without limitation, business improvement
district charges) and (2) any reasonable expenses incurred by Owner in
contesting the same. If at any time during the term of this lease the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of, or
as an addition to, or as a substitute for, the whole or any part of such real
estate taxes, assessments and special assessments now imposed on real estate,
there shall be levied, assessed and imposed (x) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (y) any other additional or
substitute tax, assessment, levy, imposition, fee or charge, then all such
taxes, assessments, levies, impositions, fees or charges shall be deemed to be
included within the term "Taxes" for the purposes hereof (in no event, however,
shall Taxes include any income, estate or inheritance tax of Owner, or any
transfer taxes).
(ii) The term "Base Tax Year" shall mean the Tax Year ending June 30, 2000.
(iii) The term "Base Tax" shall mean the Taxes for the Base Tax Year.
(iv) The term "Tax Year" shall mean the period of 12 calendar months
beginning July 1st.
(v) The term "Tenant's Share" shall mean 50 percent through April 30, 2005,
and 58.333 percent thereafter (subject to increase as provided in this lease;
and for purposes of this Article, Tenant's Share with respect to the 7th floor
shall be 8.333 percent).
(b) If the Taxes for any Tax Year shall exceed the Base Tax, Tenant
shall pay for such Tax Year an amount ("Tax Payment") equal to Tenant's Share
of such excess (except that the Tax Payment under this Article shall not
commence until March 1, 2001 with respect to the 7th floor, not until
February 1, 2002 with respect to the 8th through 12th floors and not until
May 1, 2005 with respect to the ▇▇▇ ▇▇▇▇▇). If a Tax Year ends after the
expiration or termination of the term of this lease, the Tax Payment therefor
shall be prorated to correspond to that portion of such Tax Year occurring
within the term of this lease. In addition, the Tax Payment shall be prorated
for the Tax Year in which the payment of additional rent under this Article
commences. If the real estate fiscal tax year of the City of New York shall
be changed during the term of this lease, any Taxes for a real estate fiscal
tax year, a part of which is included within a particular Tax Year and a part
of which is not so included,
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shall be apportioned on the basis of the number of days in the real estate
fiscal tax year included in the particular Tax Year for the purpose of making
the computations under this Article.
(c) The Tax Payment shall be payable by Tenant within 30 days after receipt
of a demand from Owner (but not more than 30 days before the tax is due, subject
to Owner's option set forth in the following sentence), which demand shall be
accompanied by Owner's computation of the Tax Payment (a copy of the relevant
tax bills shall be sent by Owner to Tenant with each such demand).
Notwithstanding the foregoing, at Owner's option, to be exercised at any time
during the term of this lease upon notice to Tenant, Tenant shall pay on the
first day of each month, on account of the Tax Payment for the next Tax Year, an
amount equal to one-twelfth of the Tax Payment for the preceding Tax Year. If
the aggregate payments on account of the Tax Payment in any Tax Year shall
exceed the Tax Payment for that Tax Year, the excess shall, at Owner's option,
either be credited against subsequent payments under this lease or promptly
refunded to Tenant; and if the Tax Payment for any Tax Year shall exceed the
aggregate payments on account of the Tax Payment, the excess shall be promptly
paid by Tenant.
(d) If in any Tax year the building or the land is entitled to any
abatement of or exemption from Taxes (or any assessment or rate which comprises
Taxes) as the result of any work performed or expenditures made by Owner, such
abatement or exemption shall not be taken into account in determining Tenant's
Tax Payment for that Tax Year, but the Tax Payment shall be based on the Taxes
which would have been payable without that abatement or exemption. If Owner
shall receive a refund of the Taxes for any Tax Year, Owner shall pay to Tenant,
Tenant's Share of the net refund (after deducting from such total refund the
reasonable costs and expenses of obtaining same which have not previously been
included in Taxes under this lease); but (i) such payment to Tenant shall not
exceed Tenant's Tax Payment actually paid for such Tax Year and (ii) if Tenant
is then in default in the payment of any fixed rent or additional rent, Owner
shall first apply that refund to the defaulted payments.
46. ELECTRIC ENERGY. (a) Notwithstanding any provision of this lease to the
contrary, Owner shall have no obligation to supply to Tenant or the demised
premises any electric energy. Tenant shall, at Tenant's expense, make all
arrangements for electric energy to be furnished to the demised premises,
including, without limitation, the furnishing, installing and maintaining of all
meters and other components of the electric energy system within or servicing
the demised premises. Owner shall not be liable to Tenant in damages or
otherwise for any failure of Tenant to make arrangements for or to obtain any
electric energy. Tenant shall not be released or excused from the performance of
any of its obligations under this lease for any such failure or for any
interruption or curtailment of any electric energy, and no such failure,
interruption or curtailment shall constitute a constructive or partial eviction,
except that nothing contained in this paragraph shall be deemed to release Owner
from liability resulting from the negligence of Owner or its contractors
(subject, however, to the provisions of this lease, including, without
limitation, Article 61). Tenant shall not overload any electric energy facility.
(b) Tenant shall pay directly to the company, companies or
governmental units supplying electric energy to Tenant promptly as and when
due, all charges for electric energy used by Tenant or in connection with the
demised premises.
(c) Notwithstanding any provision of this lease to the contrary,
Tenant shall, at Tenant's expense, maintain and promptly make all repairs,
ordinary and extraordinary, to all components of the electric energy system
servicing exclusively the demised premises, including, without limitation,
all meters.
(d) Owner shall select the company or companies that supply electric
energy to the building (and to the demised premises), and shall have the
right at any time and from time to time during the term of this lease to
change the company or companies that supply electric energy to the building
(and to the demised premises). Tenant shall cooperate with Owner and the
company or companies that supply electric energy to the building (and to the
demised premises) and, as reasonably necessary, shall allow Owner and such
company or companies reasonable access to the demised premises and Tenant's
electric lines, feeders, risers, wiring, and any other machinery. Owner shall
not be liable or responsible for any loss, damage, or expense that Tenant may
sustain or incur by reason of any change of the company or companies
supplying electric energy to the building (and to the demised premises),
including, without limitation, in connection with the failure, interference
or disruption in the supply of the electric energy furnished to the demised
premises, and no such change, failure, defect, interference or disruption
shall constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent or additional rent, or
relieve Tenant from any of its obligations under this lease.
47. TENANT'S RIGHT OF FIRST OFFER - AVAILABLE SPACE. (a) Provided (i)
Tenant is not then in default under this lease following any required notice and
the expiration of the applicable grace period, (ii) this lease is otherwise in
full force and effect and (iii) Tenant named herein (or an Affiliate or
Successor, as those terms are
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defined in Article 53) is the tenant under this lease and is occupying not less
than 100,000 rentable square feet of the demised premises, if on or before the
date which is 5 years prior to the expiration of the term of this lease (as the
same may have been extended pursuant to Articled 49), any space ("Expansion
Space") in the building shall become, or Owner anticipates that within the next
365 days same shall become, available for leasing (other than in connection with
the first lease entered into by Owner following the date of this lease of any
portions of the 2nd or 3rd floors of the building, which shall not be subject to
Tenant's right under this Article), Owner shall give notice thereof to Tenant,
which notice shall include an offer by Owner to Tenant for Tenant to include the
Expansion Space in the demised premises on all of the terms of this lease
(including, without limitation, the terms set forth in paragraphs (b) and (c) of
this Article) at an initial annual fixed rent set forth in Owner's notice.
Tenant shall have the right, to be exercised by notice to Owner within 10
business days following receipt of Owner's notice (time being of the essence),
to include in the demised premises the Expansion Space on the terms of this
lease and at the initial fixed rent set forth in Owner's notice. During the
initial term of this lease, if Tenant has not than exercised Tenant's right to
extend the term of this lease pursuant to Article 49, there is less than 5 years
remaining in the initial term, and Tenant is then permitted to exercise Tenant's
right to extend the term of this lease pursuant to the provisions of Article 49,
Owner shall give to Tenant the notice required by this Article and Tenant shall
have the right to exercise Tenant's right under this Article so long as Tenant
shall simultaneously with the exercise of Tenant's right under this Article also
exercise Tenant's right to extend the term of this lease pursuant to Article 49
(provided that on the date Tenant exercises Tenant's right Tenant has the right
to extend the term of this lease pursuant to the provisions of Article 49).
Nothing contained in this Article shall be deemed to prohibit Owner from
renewing or extending any lease or making any new lease with any then existing
tenant (or its Affiliate or Successor).
(b) If Tenant shall not timely exercise Tenant's right to include the
Expansion Space in the demised premises, Owner may lease the Expansion Space
to any third party on any terms desired by Owner but if the effective average
annual fixed rent to be charged to said third party (taking into account only
the following terms of the proposed lease: the initial fixed rent; any fixed
increases (not escalations, CPI increases or other increases which cannot
then be calculated) of the initial fixed rent; and any Owner's work,
allowances and free rent period) is less than 90 percent of the average
annual fixed rent set forth in Owner's notice, Owner must first offer the
Expansion Space to Tenant at the effective average annual fixed rent offered
to said third party. If Tenant shall timely exercise Tenant's right to
include the Expansion Space in the demised premises, it shall be included in
the demised premises on the date the Expansion Space is vacant and available,
on the terms of this lease, except that the initial fixed rent shall be as
set forth in Owner's notice, the Base Tax Year shall be the Tax Year then in
progress and Tenant's Share shall increase by the percentage obtained by
dividing the rentable square feet of the Expansion Space (as reasonably
determined by Owner and using a measurement of 22,412 rentable square feet
for a full floor) by 268,944.
(c) Tenant shall accept possession of the Expansion Space included in
the demised premises pursuant to this Article "As Is" (and otherwise on the
terms of this lease) on the date the Expansion Space is included in the
demised premises, and Owner shall have no obligation to furnish, render or
supply any work, labor, services, equipment, materials, decorations,
furniture or fixtures to make that space ready or suitable for Tenant's use
or occupancy, except that Owner shall, at Owner's expense, in a building
standard manner, using building standard materials, in compliance with all
applicable laws, as soon as practicable following the inclusion of the
Expansion Space in the demised premises, remove or, at Owner's option,
encapsulate any asbestos located in the Expansion Space (and the fixed rent
for the Expansion Space shall not commence until same is substantially
complete).
(d) As soon as practicable, Owner and Tenant shall execute,
acknowledge and deliver an amendment of this lease prepared by Owner
confirming the terms on which the Expansion Space is included in the demised
premises.
48. TENANT'S RIGHT OF FIRST OFFER - SALE OF THE BUILDING. (a) Provided (i)
Tenant is not then in default under this lease following any required notice and
the expiration of the applicable grace period, (ii) this lease is otherwise in
full force and effect, and (iii) Tenant named herein (or an Affiliate or
Successor) is the tenant under this lease and is occupying not less than 100,000
rentable square feet of the demised premises, if at any time during the term of
this lease Owner desires to sell the building or all of its interest in the
building (in one transaction or a series of related transactions) to an
unrelated third party, Owner shall give notice thereof to Tenant, which notice
shall include an offer by Owner to Tenant for Tenant to purchase the building
pursuant to the contract of sale delivered by Owner to Tenant with Owner's
notice. Tenant shall have the right, to be exercised by Tenant signing and
returning to Owner four copies of the contract (without change), together with
the 5% deposit required by the contract, within 10 business days following
receipt of Owner's notice (time being of the essence).
(b) If Tenant shall not timely exercise Tenant's right to purchase the
building, Owner may sell the building to any third party on any terms desired
by Owner, but if the purchase price to be
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charged to said third party is less than 90 percent of the purchase price set
forth in the contract delivered to Tenant, Owner must first offer to sell the
building to Tenant at the purchase price offered to said third party (and
otherwise on the terms of the contract first delivered to Tenant). If Tenant
shall timely exercise Tenant's right to purchase the building, Owner shall sell
to Tenant, and Tenant shall purchase from Owner, the building in accordance with
the contract. Any default by Tenant under the contract shall be deemed a default
under this lease and any default by Tenant under this lease shall be deemed a
default by Tenant under the contract, in which event Owner shall have all rights
and remedies of Owner, including, without limitation, the right to terminate
either or both of this lease and the contract (and Tenant shall no longer have
Tenant's rights under this Article or Articles 47, 49 or 51(b)).
49. TENANT'S RIGHT TO EXTEND. Provided (i) Tenant is not in default under
this lease following any required notice and the expiration of the applicable
grace period on the date Tenant exercises Tenant's right under this Article or
on the date the extended term commences, (ii) this lease is otherwise in full
force and effect, and (iii) Tenant named herein (or an Affiliate or Successor)
is the tenant under this lease and is occupying not less than 100,000 rentable
square feet of the demised premises on the date Tenant exercises Tenant's right
under this Article and the date the extended term commences, Tenant shall have
the right to extend the term of this lease with respect to the entire demised
premises, for a period of 10 years, commencing on July 1, 2015 and ending on
June 30, 2025. The extended period shall be on the terms of this lease, except
that (i) the initial annual fixed rent shall be the higher of (x) the annual
Fair Market Fixed Rent determined pursuant to this Article or (y) the annual
fixed rent then payable under this lease, and (ii) Tenant shall have no further
right or option to extend the term of this lease.
(a) The annual Fair Market Fixed Rent shall be (at the date of its
determination) the annual fixed rent which an unrelated third party would pay
for the demised premises for a 10-year lease commencing July 1, 2015 and
otherwise on the terms of this lease (including, without limitation, the Base
Tax Year, no Owner's work, no Owner's allowance, no rent concession, no
brokerage commissions and no vacancy period). If Tenant timely exercises
Tenant's right under this Article, on or about January 1, 2015, Owner shall
give notice to Tenant of Owner's determination of the annual Fair Market
Fixed Rent. If Tenant disputes Owner's determination, Tenant shall give
notice to Owner of the dispute within 30 days after receipt of Owner's notice
stating Tenant's determination of the Fair Market Fixed Rent (time being of
the essence). If Tenant shall not submit that notice, then the initial annual
fixed rent for the extended period shall be Owner's determination of the Fair
Market Fixed Rent. If Tenant shall submit that notice, Owner and Tenant
shall, within 10 days following Tenant's notice, designate one independent
arbitrator to determine the annual Fair Market Fixed Rent. The arbitrator
must be a person having not less than 15 years' experience as a commercial
leasing broker in the City of New York. If they fail to designate an
arbitrator within 10 days, the arbitrator shall be designated by the
President of the New York City Real Estate Board, Inc. at the request of
either Owner or Tenant. The arbitrator shall determine the Fair Market Fixed
Rent by selecting either the Fair Market Fixed Rent submitted by Owner or the
Fair Market Fixed Rent submitted by Tenant, whichever Fair Market Fixed Rent
the arbitrator determines is closer to the Fair Market Fixed Rent. The
determination of the arbitrator shall be binding and conclusive upon both
Owner and Tenant. The determination of the arbitrator shall be requested
within 30 days. The costs and expenses of the arbitrator shall be paid 50
percent by Owner and 50 percent by Tenant. Each party shall pay the costs and
expenses of its own attorneys and experts and of presenting its evidence. If
the dispute shall not be resolved prior to July 1, 2015, then pending the
resolution of the dispute, Tenant shall pay the annual fixed rent based upon
Owner's determination of the Fair Market Fixed Rent, and within 30 days
following resolution of the dispute any adjustment shall be refunded by Owner
to Tenant retroactive to July 1, 2015. Except for the change, if any, of the
annual fixed rent, no other term of this lease shall change.
(b) Tenant's right under this Article must be exercised by Tenant
giving Owner notice of such exercise on or before June 30, 2013 (time being
of the essence).
(c) If Tenant shall timely exercise Tenant's right under this Article
(i) the term of this lease shall be deemed extended for the extended term
without any other or further document being required, except to confirm the
initial annual fixed rent, and (ii) any reference in this lease to the term
of this lease shall be deemed to include the extended term.
50. TENANT'S USE OF THE ROOF. Subject to and upon all of the terms of this
Article and this lease, and the rules and regulations of the building now or
hereafter in effect, Tenant shall have the nonexclusive right, at its expense
(but without charge by Owner) to use up to 300 square feet of contiguous space
on the roof of the building (the initial location of that space to be mutually
agreed upon by Owner and Tenant) for the installation (and connection to the
demised premises) of satellite dishes, antennae, HVAC equipment and other
equipment used in Tenant's business (which shall include a screen reasonably
acceptable to Owner designed to block those items from view) (collectively, the
"Equipment").
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(a) Prior to installing the Equipment, (i) detailed plans and
specifications for the Equipment and its installation, and an engineer's
report on the affect the installation and operation of the Equipment shall
have on the roof or structural integrity of the building, shall be submitted
to Owner for its approval (which shall not be unreasonably withheld or
delayed) and (ii) a full maintenance contract covering the Equipment, the
portion of the roof and parapet wall affected by the Equipment is, at
Tenant's expense, obtained by Tenant, from a maintenance company approved by
Owner (which shall not be unreasonably withheld or delayed).
(b) Owner may, at its expense, change the location of the Equipment,
provided the new location shall not adversely effect the functioning of the
Equipment.
(c) Tenant's access to the roof shall be in common with all others to
whom Owner gives access to the roof.
(d) Owner, other tenants of the building and all others to whom Owner
grants such right, shall have the right to use the roof (but not the portion
of the roof used by Tenant) and Tenant shall allow unrestricted access to the
roof through the 12th floor portion of the demised premises, but only by way
of stairway B adjacent to the southeast freight elevator. The use of that
stairway from the 12th floor to the roof shall not interfere with the conduct
of Tenant's business in the demised premises and Owner shall repair any
damage to the demised premises caused by Owner or others permitted by Owner
to use that stairway (but not Tenant) as the result of the use of that
stairway. Owner shall provide Tenant with reasonable prior notice (which may
be oral and, if Owner determines that Owner cannot wait a longer period, may
be less than one day's notice) if Owner or others shall need to use that
stairway (but prior notice shall not be required in an emergency).
(e) Tenant shall, at its expense, maintain and make all repairs to the
Equipment, maintain the Equipment in good order and condition, comply with
all laws and requirements of any public authorities and comply with all
requirements of insurance bodies, with respect to the use, furnishing,
installing, maintaining and repair of the Equipment.
(f) Tenant shall, at its expense, obtain and keep in force all permits
and licenses required for the Equipment, and the insurance carried by Tenant
in accordance with this lease shall cover the Equipment.
(g) Tenant shall (i) not overload the roof, (ii) install, mount and
anchor the Equipment in a manner which shall not permit the same to transmit
vibration to the building, (iii) otherwise install, mount and anchor the
Equipment in a manner reasonably satisfactory to Owner and its engineer and
(iv) make such changes as may be reasonably necessary so that the Equipment
shall not interfere with the functioning of any other equipment on the roof
or in the building (and Owner shall require others to do the same if any such
equipment interferes with the functioning of the Equipment).
(h) Owner shall have no obligation, liability or responsibility
whatsoever with respect to the Equipment.
(i) Tenant shall indemnify, defend and hold harmless Owner from and
against any and all claims, actions, proceedings, damages, losses,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees), and shall make all repairs and maintenance to the roof,
parapet and coping, arising out of the use, furnishing, installation,
maintenance and repair of the Equipment.
(j) On or before the expiration of the term of this lease, or the date
Tenant ceases the use of any Equipment, or on the date any public authorities
or insurance bodies require the removal thereof, Tenant shall, at its
expense, remove the Equipment (or the portion which is no longer used), and
repair any damage caused by Tenant, the Equipment or the removal of the
Equipment.
51. NAME OF BUILDING; SIGNAGE; ACCESS; ELEVATORS.
(a) Provided (i) Tenant is not then in default under this lease
following any required notice and the expiration of the applicable grace
period, (ii) this lease is otherwise in full force and effect, and (iii)
Tenant named herein (or an Affiliate or Successor) is the tenant under this
lease and is occupying not less than 100,000 rentable square feet of the
demised premises, (x) the building shall be known as "the Coach Building",
(y) Tenant shall have the exclusive right to place two tasteful signs on the
wall of the building facing ▇▇▇▇ ▇▇▇▇▇▇ identifying the building as "The
Coach Building", and one additional tasteful sign on that wall advertising
Tenant's products, subject to Owner's consent, which consent shall not be
unreasonably withheld or delayed, and (z) there shall be no other signs on
that wall, except for existing sign rights (Owner shall, however, use
commercially reasonable efforts to have such signs removed and not replaced,
but shall not be required to pay a fee or other consideration therefor, and
shall have the "Vantage Press" sign removed not later than promptly following
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the expiration date of the lease with Vantage Press, which expiration date is
February 29, 2004). At Owner's option, Tenant's signs shall be removed from
the building upon the expiration or earlier termination of this lease, and
Tenant shall repair any damage caused by Tenant, the signs or the removal of
the signs.
(b) Owner shall have the right to place third party advertising on the
roof, east wall and balance of the building (other than the wall facing 34th
Street) ("Landlord's Advertising Area"), provided such signs (i) shall not
advertise any goods, or any company which sells primarily goods, which are
competitive with any goods sold by Tenant on the date which is the earlier of
the date Owner gives Tenant notice of any such advertising or the date the
advertising is placed on the building, (ii) are not pornographic, (iii) do
not advertise alcohol, tobacco or firearms and (iv) do not block the windows
of the demised premises or Tenant's views, light or air. If Owner receives or
desires to solicit an offer from an unrelated third party (including, without
limitation, any tenant of the building), other than an advertiser who then
has an advertisement on the building, for the right to place advertising on
any portion of Landlord's Advertising Area, which offer or solicitation is
acceptable to Owner, then provided (i) Tenant is not then in default under
this lease following any required notice and the expiration of the applicable
grace period, (ii) this lease is otherwise in full force and effect, and
(iii) Tenant named herein (or an Affiliate or Successor) is the tenant under
this lease and is occupying not less than 100,000 rentable square feet of the
demised premises, Owner shall give notice thereof to Tenant, which notice
shall include an offer by Owner to Tenant for Tenant to place advertising for
Tenant's products on the space covered by, and on the terms set forth in, the
third party's offer or Owner's solicitation. Tenant shall have the right, to
be exercised by notice to Owner within 10 days following receipt of Owner's
notice (time being of the essence), to license the space covered by said
third party's offer or Owner's solicitation for the advertisement of Tenant's
products on the terms set forth in said third party's offer or Owner's
solicitation (net of any advertising or other commissions or fees not payable
if Tenant exercises Tenant's right). If Tenant shall not timely exercise
Tenant's right, Owner shall have the right to license that space to said
third party on substantially the terms set forth in said third party's offer.
If Tenant shall timely exercise Tenant's right, Tenant shall be deemed to
have licensed the area covered by the thirty party's offer on the terms of
the third party's offer, for the advertisement of Tenant's products, and
Owner and Tenant shall execute a confirmation of the license prepared by
Owner (but Tenant's failure to execute same shall not negate Tenant's rights
or obligations with respect to that license). Any default by Tenant under the
license shall be deemed a default under this lease and any default by Tenant
under this lease shall be deemed a default by Tenant under the license, in
which event Owner shall have all rights and remedies of Owner, including,
without limitation, the right to terminate either or both of this lease and
the license (and Tenant shall no longer have Tenant's rights under this
paragraph or Articles 47, 48, or 49).
(c) Subject to the provisions of this lease, provided same is
permitted by law, as soon as the Access System is operational, Tenant shall
have access to the demised premises, 24 hours per day, seven days per week
(Tenant recognizing that the building is not staffed by Owner after Owner's
normal business hours).
(d) The freight elevator which Owner shall convert to a passenger
elevator as part of Owner's Work, shall service only the 5th and the 7th
through 12th floors, inclusive, and the main lobby of the building, so long
as Tenant (or an Affiliate or Successor) occupies all such floors. The two
existing passenger elevators on the date of this lease shall continue to
service all floors in the building (including, without limitation, the
demised premises and the main lobby of the building).
52. ASSIGNMENT AND SUBLEASING. If Tenant shall at any time during the term
of this lease desire to assign this lease or sublet all or any portion of the
demised premises, Tenant shall give notice thereof to Owner, which notice shall
be accompanied by (i) a copy of the proposed assignment or sublease and a term
sheet setting forth all of the material terms of the assignment or sublease
(which Tenant shall certify as being agreed upon by the parties), the effective
or commencement date of which shall be at least 30 days after the giving of such
notice, (ii) a statement setting forth in reasonable detail the identity of the
proposed assignee or subtenant, the nature of its business and its proposed use
of the demised premises, and (iii) current financial information with respect to
the proposed assignee or subtenant, including, without limitation, its most
recent financial report (if available). Tenant's notice shall be deemed an offer
from Tenant to Owner whereby Owner may, at its option, terminate this lease if
the proposed transaction is an assignment of this lease or a sublet of all or
substantially all of the demised premises (for any term), terminate this lease
with respect to the space to be sublet if the proposed transaction is a sublease
of less than substantially all of the demised premises for all or substantially
all of the remaining term of this lease, or terminate this lease with respect to
the space to be sublet for the term of the sublease if the proposed transaction
is a sublease of less than substantially all of the demised premises for less
than substantially all of the remaining term of this lease. The options may be
exercised by Owner by notice to Tenant at any time within 30 days after such
notice has been given by Tenant to Owner, and during such 30-day period Tenant
shall not assign this lease or sublet such space to any person.
(a) If Owner exercises the option to terminate this lease pursuant to
paragraph (a) of this Article, then this lease shall expire on the date that
the assignment or sublease was to be effective or
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commence, as the case may be, Tenant (and all other occupants) shall vacate
the demised premises on or before that date, and the fixed rent and
additional rent shall be paid and apportioned to that date.
(b) If Owner exercises the option to terminate this lease in part
pursuant to paragraph (a) of this Article then (i) this lease shall expire
with respect to that part of the demised premises on the date that the
proposed sublease was to commence, (ii) from and after that date the fixed
rent and all additional rent shall be adjusted, based upon the proportion
that the rentable area of the demised premises remaining bears to the total
rentable area of the demised premises, (iii) Tenant shall pay to Owner, upon
demand, the costs incurred by Owner to physically separate that part of the
demised premises from the balance of the demised premises and in complying
with any laws and requirements of any public authorities relating to the
separation, and (iv) if the sublease was for less than substantially all of
the remaining term of this lease, on the date the sublease was to expire that
space shall again be deemed included in the demised premises pursuant to the
terms of this lease in its then "AS IS" condition.
(c) If Owner does not exercise any option pursuant to paragraph (a) of
this Article, provided Tenant is not then in default under this lease
following any required notice and the expiration of any applicable cure
period, Owner's consent (which must be in writing and in form reasonably
satisfactory to Owner) to the proposed assignment or sublease shall not be
unreasonably withheld or delayed, provided that:
(i) Tenant shall have complied with the provisions of paragraph (a) of this
Article, and Owner shall not have exercised any option under said paragraph (a)
of this Article within the time permitted therefor;
(ii) In Owner's reasonable judgment the proposed assignee or subtenant is
engaged in a business and the demised premises will be used in a manner which
(x) is in keeping with the then standards of the building, (y) is limited to the
uses set forth in Article 2, and (z) will not violate any negative covenant as
to use contained in any other lease of space in the building;
(iii) The proposed assignee or subtenant is reputable, of good character
and has sufficient financial worth considering the responsibility involved, and
Owner has been furnished with reasonable proof thereof; and is not any of the
following: employment or travel agency (or offices therefor); government or
quasi-government or agency or department thereof or owned in whole or in part by
a government or quasi-government or agency or department thereof (or offices
therefor); foreign airline; charity, not-for-profit organization or other
organization dependent in whole or in part on charitable contributions (or
offices therefor); or any person or entity who shall create, in Owner's
reasonable opinion, any excessive traffic or use of the building services;
(iv) Neither (x) the proposed assignee or subtenant nor (y) any person
which, directly or indirectly, controls, is controlled by, or is under common
control with, the proposed assignee or subtenant or any person who controls the
proposed assignee or sublessee, is then an occupant of any part of the building,
if Owner then has available, or reasonably anticipates having available within
60 days, space in the building of approximately the same rentable square feet as
the proposed subleased space;
(v) The proposed assignee or subtenant is not a person with whom Owner is
then negotiating (or with whom Owner has within the prior 60-day period
negotiated) the lease of space in the building;
(vi) The sublease or assignment shall be in substantially the form
furnished to Owner pursuant to paragraph (a) of this Article, and shall comply
with the applicable provisions of this Article;
(vii) The rent and other material terms of the sublease or assignment are
substantially the same as those contained in the term sheet furnished to Owner
pursuant to paragraph (a) of this Article;
(viii) Tenant shall reimburse Owner on demand for any reasonable costs that
may be incurred by Owner in connection with said assignment or sublease,
including, without limitation, reasonable legal costs incurred in connection
with the granting of any requested consent, all such costs not to exceed an
aggregate of $2,500 per consent;
(ix) Any sublease shall be for a term ending not later than one day prior
to the fixed expiration date of this lease, and shall provide that (x) it is
subject and subordinate to this lease and to the matters to which this lease is
or shall be subordinate, and (y) in the event of termination, re-entry or
dispossess by Owner under this lease, Owner may, at its option, take over all of
the right, title and interest of Tenant, as sublessor, under the sublease, and
the subtenant shall, at Owner's option, attorn to Owner pursuant to the then
executory provisions of the sublease, except that Owner shall not be (1) liable
for any previous act or omission of Tenant under the sublease, (2) subject to
any offset, not expressly provided in the sublease, which theretofore accrued to
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the subtenant against Tenant, or (3) bound by any previous modification of the
sublease or by any previous prepayment of more than one month's rent;
(x) Tenant shall not have advertised or publicized in any way the
availability of the demised premises without prior notice to Owner, nor shall
any advertisement or publication state the proposed rental; and
(xi) No more than three occupants (including Tenant) shall occupy any floor
which is a part of the demised premises.
(d) Each assignment or subletting pursuant to this Article shall be
subject to all of the terms of this lease. Notwithstanding any such
subletting or assignment and/or acceptance of rent or additional rent by
Owner from any subtenant or assignee, Tenant shall remain fully liable for
(and any assignee shall assume the obligation for) the payment of the fixed
rent and additional rent due and to become due under this lease and for the
performance of all Tenant's obligations under this lease. All acts and
omissions of any subtenant or assignee or anyone claiming under or through
any subtenant or assignee which shall be in violation of any of the
obligations of this lease shall be deemed to be a violation by Tenant. Tenant
further agrees that notwithstanding any such subletting or assignment, no
further subletting or assignment by Tenant or any person claiming through or
under Tenant shall be made except upon compliance with and subject to the
provisions of this Article (but Owner shall have the unrestricted right to
deny its consent or approval to any assignment or sublease by a subtenant).
If Owner shall decline to give its consent to any proposed assignment or
sublease, or if Owner shall exercise an option under paragraph (a) of this
Article, Tenant shall indemnify, defend and hold harmless Owner against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Owner by the proposed assignee or subtenant or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
(e) If Owner shall give its consent to any assignment or sublease,
Tenant shall in consideration therefor, pay to Owner, as additional rent (as
and when paid to Tenant):
(i) in the case of an assignment, an amount equal to 50 percent of all sums
and other consideration paid to Tenant by the assignee for or by reason of such
assignment, less the aggregate amount of any brokerage commissions paid to an
unrelated third party, reasonable attorneys' fees, and other reasonable costs
paid by Tenant in connection with the assignment; and
(ii) in the case of a sublease, 50 percent of any rents, additional charges
or other consideration paid under the sublease to Tenant by the subtenant which
is in excess of the fixed rent and additional rent accruing during the term of
the sublease allocable to the subleased premises, less any brokerage commissions
paid to an unrelated third party, reasonable attorneys fees, and other
reasonable costs paid by Tenant in connection with the sublease.
53. CERTAIN ASSIGNMENTS AND SUBLEASES. Notwithstanding any provision of
this lease to the contrary, provided that (a) Tenant is not then in default
under this lease following the giving of any required notice and the expiration
of the applicable cure period, (b) Tenant shall give Owner not less than 15 days
prior notice of the assignment or sublease, enclosing with the notice the
proposed form of all documents relating to the assignment or sublease,
including, without limitation, an assignment or sublease (with an assumption by
the assignee), a reasonably detailed description of the assignee or subtenant
and its principals, and reasonably detailed financial information covering the
assignee or subtenant, (c) the business conducted in the demised premises prior
to the assignment or sublease shall be continued in substantially the same
manner after the assignment or sublease (and otherwise in accordance with this
lease, including, without limitation, this Article and Article 2), (d) there
shall be no more than three occupants (including Tenant) on any floor, (e) the
transaction shall be for a business purpose and not merely for the assignment of
this lease, and (f) (unless the assignee is a wholly-owned subsidiary of Tenant)
the net worth of any assignee shall be not less than 80% of the net worth of the
assignor (on the date of this lease or the transaction in question, whichever is
greater) and Tenant shall provide Owner with reasonable proof thereof, Owner's
consent shall not be required (and Owner shall not have the right to terminate
this lease, in whole or in part, pursuant to paragraph (a) of Article 52) for an
assignment or sublease by Tenant to any entity ("Affiliate") controlling, under
common control with or controlled by Tenant or an assignment of this lease to an
entity ("Successor") succeeding to Tenant's business pursuant to a merger,
consolidation or sale of all or substantially all of Tenant's stock or assets.
The term "control" shall mean the direct or indirect ownership of more than 50%
of all classes of capital stock (or other ownership interests) and the ability
to manage the business of Tenant.
54. SALE OF STOCK, PARTNERSHIP INTERESTS OR OTHER INTERESTS. Subject to the
provisions of this lease, if Tenant shall be a corporation, partnership or other
entity (the shares, partnership interests or other ownership
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interests of which are not publicly traded), any transfer of voting stock,
partnership interests or other interests resulting in the person or persons who
shall have controlled the corporation, partnership or other entity immediately
before the transfer ceasing to control same, except as the result of transfers
by inheritance or a registered public offering of such interests, shall be
deemed to be an assignment of this lease as to which Owner's consent shall be
required as provided in this lease.
55. TENANT'S WORK. Subject to the provisions of this Article, Article 3,
all other provisions of this lease, and the rules and regulations of the
building now or hereafter in effect, Owner's consent to the performance by
Tenant of work ("Tenant's Work") consisting of nonstructural alterations to the
demised premises in accordance with Tenant's Plans (as defined below) shall not
be unreasonably withheld or delayed, provided that (i) Tenant is not then in
default under this lease following any required notice and the expiration of any
applicable cure period, (ii) Tenant's Work is not structural (except that Tenant
shall have the right, subject to and in accordance with all of the provisions of
this lease, including, without limitation, the obligation to remove same if
requested by Owner, to install internal stairs between the contiguous full
floors constituting the demised premises), (iii) the outside appearance of the
building shall not be affected, (iv) Tenant's Work shall not affect any
structural part of the building (except as provided in clause (ii) of this
paragraph (a)), (v) no part of the building outside of the demised premises
shall be affected, (vi) the mechanical, electrical, plumbing and other service
and utility systems of the building shall not be materially and adversely
affected, and (vii) Tenant's Work shall comply with the applicable provisions of
this lease and law. Notwithstanding the foregoing, Owner's consent shall not be
required for decorative work within the demised premises such as painting,
carpeting and wall covering, provided that the foregoing provisions of clauses
(i) through (vii) of this paragraph are satisfied, prior notice of the work in
reasonable detail is provided to Owner, and the work shall not require the
filing of plans. Any Tenant's Work which is required to be performed by Tenant
pursuant to any provision of this lease which is structural or which affects any
mechanical, electrical, plumbing or other service or utility system of the
building shall be performed in accordance with this Article and all other
applicable provisions of this lease, or may, at Owner's option, be performed by
Owner at Tenant's expense (in which event, Tenant shall pay Owner in
installments, in advances, as the work progresses).
(a) Prior to the commencement of any Tenant's Work requiring Owner's
consent, Tenant shall submit to Owner for its approval five sets of complete
plans, drawings and specifications, suitable for filing if filing is required
("Tenant's Plans"), including, without limitation, all mechanical,
electrical, air conditioning and other utility systems and facilities, for
Tenant's Work, prepared by an architect and/or engineer duly licensed in the
State of New York. Within 10 days following Owner's receipt of Tenant's
Plans, Owner shall review or cause the same to be reviewed and shall
thereupon return to Tenant four sets of Tenant's Plans with Owner's approval
(which shall not be unreasonably withheld or delayed) or disapproval noted
thereon, and if same shall be disapproved in any respect Owner shall state in
reasonable detail the reasons for such disapproval. If Owner shall not
approve Tenant's Plans, Tenant shall, within 10 days of receipt thereof,
cause its architect or engineer to make such changes to Tenant's Plans as
Owner shall require and shall thereupon resubmit the same to Owner for its
approval. To the extent required pursuant to any mortgage affecting the
building, Tenant's Plans shall also be subject to the prior approval of the
holder of such mortgage. Following the approval of Tenant's Plans, the same
shall be final and shall not be materially changed by Tenant without the
prior approval of Owner, which shall not unreasonably be withheld or delayed
(and such mortgagee, if required), except as may be required by law. Tenant
shall give prior notice to Owner of any changes required by law and shall
furnish Owner (and such mortgagee, if required) with copies of all such
required changes in Tenant's Plans. Owner's approval of Tenant's Plans or of
any revisions shall not constitute an opinion or agreement by Owner that the
same are structurally sufficient or the Tenant's Plans are in compliance with
law, nor shall such approval impose any present or future liability on Owner
or waive any of Owner's rights under this lease. Owner's approval of Tenant's
Plans shall be conditioned upon Tenant employing licensed persons and firms
and labor for the performance of Tenant's Work so as not to cause any
jurisdictional or other labor disputes in the building. In any event, all
contractors Tenant proposes to employ shall be subject to Owner's prior
approval, which will not be unreasonably withheld or delayed. Such approval
shall be requested by Tenant prior to the commencement of any Tenant's Work.
(b) Promptly following Owner's approval of Tenant's Plans (if such
approval is required pursuant to this Article), Tenant shall secure or cause
to be secured, at Tenant's expense, all necessary approvals of Tenant's Plans
from all governmental authorities having jurisdiction and all permits and
licenses necessary to perform Tenant's Work. Prior to the commencement of any
Tenant's Work, Tenant shall furnish Owner with (i) copies of Tenant's Plans
as approved by such governmental authorities and copies of such permits and
licenses, and (ii) if required by a mortgagee of the building, security
reasonably acceptable to said mortgagee to secure the performance by Tenant
of all of its obligations relating to the performance of and payment for
Tenant's Work.
(c) Following compliance by Tenant with its obligations under the
foregoing provisions of this Article, Tenant shall promptly commence or cause
to be commenced Tenant's Work and shall
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complete or cause the same to be completed with reasonable diligence, in a
first-class, workmanlike manner in accordance with the approved Tenant's
Plans, all licenses and permits, this lease, all applicable laws, ordinances
and regulations of all governmental and insurance authorities and all
applicable requirements of the Board of Fire Underwriters. All of Tenant's
Work shall be performed in a manner so as to minimize inconvenience or
disturbance to other tenants or contractors in the building. Any heavy
demolition work, core drilling or other slab penetrations to be performed by
Tenant as part of Tenant's Work shall be performed on business days before
8:00 A.M. or after 6:00 P.M. Tenant shall cause all construction work to be
performed in a reasonable manner and shall comply with Owner's work
regulations for the building (including, without limitation, the payment of
charges for services and the review of Tenant's Plans).
(d) Tenant shall pay its contractors, laborers, subcontractors,
materialmen and suppliers in accordance with their respective agreements with
Tenant, shall not cause or suffer any liens, mortgages, chattel liens, or
other title retention or security agreements to be placed on the demised
premises, any leasehold improvements therein or the building. Nothing
contained in this Article or elsewhere in this lease shall be construed in
any way as constituting any consent or authorization to Tenant to subject the
land or the building or any part of the land or the building or any leasehold
improvements or other personal property of Owner or the interest or estate of
Owner or of the lessor under any underlying lease to any lien or charge in
respect of Tenant's Work. All contracts or agreements made by Tenant with any
third party for the furnishing of any labor or materials in connection with
Tenant's Work (or any other work or alterations by Tenant) shall expressly
provide that the contractor or materialman shall look solely to Tenant for
the payment of any labor or materials furnished to the demised premises
pursuant to such contract or agreement and that neither Owner nor the lessor
under any underlying lease shall have any responsibility or liability for the
payment thereof.
(e) Promptly following the completion of Tenant's Work, Tenant shall
(i) obtain and submit to Owner copies of all final governmental and fire
underwriters' approvals or certificates evidencing the completion thereof in
compliance with all governmental and fire underwriters' requirements, and
(ii) deliver to Owner the general contractor's affidavit to the effect that
(x) all work and materials have been completed and/or installed in accordance
with Tenant's Plans, or such changes thereto which Owner may have previously
approved, and (y) all laborers, materialmen and subcontractors employed by
the general contractor have been paid in full, which affidavit shall be
accompanied by lien releases from all such parties performing work costing
$25,000 or more and/or such other data reasonably establishing payment or
satisfaction of all other obligations in respect of Tenant's Work.
(f) Nothing contained in this Article shall limit the provisions of
Article 3 or any other provisions of this lease, except as specifically set
forth in this Article. The provisions of this Article are in addition to the
provisions contained in Article 3 and elsewhere in this lease.
(g) Notwithstanding the provisions of Article 3, Tenant shall not be
required to remove from the demised premises (i) normal office installations,
other than bathrooms, kitchens, raised flooring, stairs and other
installations the removal of which involves a material cost, (ii) any
installations in the demised premises existing on the date of this lease or
(iii) any installation which Owner, in Owner's written consent to any
Tenant's Work, expressly agrees need not be removed, in response to Tenant's
specific written request.
56. NONDISTURBANCE AGREEMENTS. Notwithstanding any provision of this lease
to the contrary, (a) if Owner shall not obtain from the present mortgagee a
nondisturbance agreement in favor of Tenant in form and substance acceptable to
the present mortgagee within 180 days following the date of this lease, Tenant
shall have the right, by notice to Owner within five days following the end of
that 180-day period (time being of the essence), to cancel this lease, in which
event this lease shall be cancelled without further obligation or liability of
either Owner or Tenant to the other and the Existing Leases shall remain in full
force and effect according to their respective terms (otherwise, this lease
shall continue in full force and effect according to its terms), and (b)
notwithstanding the provisions of this Article, Owner shall obtain from any
future mortgagee or overlandlord a nondisturbance agreement in favor of Tenant
in form and substance acceptable to the mortgagee or overlandlord in question.
Owner represents to Tenant that on the date of this lease there is no ▇▇▇▇▇▇▇▇▇
and the only mortgage is held by Apple Bank for Savings.
57. INSURANCE. Tenant, at its expense, shall maintain at all times during
the term of this lease and at all times when Tenant is in possession of the
demised premises (and cause its subtenants or any other occupant of any portion
of the demised premises by, through or under Tenant to maintain) (i) public
liability insurance in respect of the demised premises and the conduct or
operation of Tenant's business therein, with Owner and Owner's managing agent,
if any, as additional insureds, with a combined single limit (annually and per
occurrence) of not less than $5,000,000 (with a deductable not exceeding
$500,000) and (ii) insurance (with a deductible not exceeding $500,000) covering
all of Tenant's property, including, without limitation, Tenant's furniture,
fixtures, machinery, equipment and other personal property and any property of
third parties located in
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the demised premises ("Tenant's Property") against all risks and perils for
physical loss and damage, including, without limitation, additional expense
coverage, in an amount equal to the full replacement value of Tenant's Property
(as increased from time to time), the policy for which shall, if obtainable (and
subject to the payment of any additional premium by Owner as provided in Article
9), contain a clause providing that the release or waiver referred to in Article
9 shall not invalidate the insurance.
(a) Tenant shall deliver to Owner such policies or certificates of
such policies (in form reasonably acceptable to Owner) prior to the
commencement of the term of this lease (and with respect to any insurance
required by Owner pursuant to Article 3, prior to the commencement of any
alteration). Tenant shall procure and pay for renewals of such insurance from
time to time before the expiration thereof, and Tenant shall deliver to Owner
and any additional insureds such renewal policy or certificate at least 30
days before the expiration of any existing policy. All such policies (and all
insurance required by Owner pursuant to Article 3) shall name as additional
insureds Owner, Owner's managing agent and Owner's mortgagees, if required by
said mortgagees, shall be issued by companies reasonably satisfactory to
Owner and all such policies shall contain a provision whereby the same cannot
be canceled or modified unless Owner and any additional insureds are given at
least 30 days' prior written notice of such cancellation or modification,
including, without limitation, any cancellation resulting from the
non-payment of premiums. Owner shall have the right at any time and from time
to time, but not more frequently than once every two years, to require Tenant
to increase the amount of the insurance maintained by Tenant under this
Article, as reasonably determined by Owner, provided that such amount shall
not exceed the amount which is comparable to the amount then generally
required of tenants in similar space in similar buildings in the general
vicinity of the building.
(b) Owner, at its expense, shall maintain insurance covering the
building against loss or damage by fire and such other risks as Owner shall
determine, in such amounts, with such companies and with such deductibles as
Owner shall determine. The policy shall, if obtainable (and subject to the
payment of any additional premium by Tenant as provided in Article 9),
contain a clause providing that the release or waiver referred to in Article
9 shall not invalidate the insurance.
(c) Any reference in this lease to Tenant's contractors shall include,
without limitation, all contractors, subcontractors, materialmen and others
performing any work in the demised premises for Tenant (other than Tenant's
employees), whether retained directly by Tenant or by any contractor.
58. NOTICES. (a) All notices and other communications under this lease
(other than invoices for fixed rent or additional rent) must be in writing and
shall be deemed to have been properly given if delivered by hand or sent by (i)
registered or certified mail, postage prepaid, return receipt requested, (ii)
reputable overnight delivery service, or (iii) telecopy, as follows: if to
Owner: c/o ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:
none), and c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The ▇▇▇▇▇▇ Foundation, ▇▇▇▇▇▇ House, ▇▇▇▇ ▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy in the
same manner to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. (fax: ▇▇▇-▇▇▇-▇▇▇▇) and ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq. (fax: ▇▇▇-▇▇▇-▇▇▇▇); and if to Tenant: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: General Counsel (fax: ▇▇▇-▇▇▇-▇▇▇▇), with a
copy in the same manner to: ▇▇▇▇ ▇▇▇ Corporation, Three First National Plaza, 70
West Madison, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: General Counsel (fax:
▇▇▇-▇▇▇-▇▇▇▇) and Phillips, Lytle, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇. Crystal,
Esq. (fax: ▇▇▇-▇▇▇-▇▇▇▇).
(b) Any party may, by notice given in accordance with this Article,
designate different addresses and recipients for notices and other
communications. Notices and other communications shall be deemed given on the
date the same is received as evidenced by a receipt or an acknowledgment of
receipt (and the failure of a party to accept a communication shall be deemed
receipt).
59. ESTOPPEL CERTIFICATES. Owner and Tenant shall, at any time and from
time to time, as requested by the other, upon not less than 10 days' prior
notice, execute and deliver to the other or any other party designated by it, a
statement certifying: (a) that this lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); (b) the dates to which the
rent and additional rent have been paid; (c) whether or not, to the best of its
knowledge, the other is in default in the performance of any of its obligations
under this lease, and, if so, specifying each such default of which it shall
have knowledge; (d) whether or not, to the best of its knowledge, any event has
occurred which with the giving of notice or the passage of time, or both, would
constitute such a default and, if so, specifying each such event; and (e) any
other matter relating to this lease reasonably requested by that party. Any such
statement delivered pursuant to this Article shall be deemed a representation to
be relied upon by the requesting party and by others with whom it may be dealing
and who are disclosed to the certifying party, regardless of independent
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investigation. Notwithstanding the foregoing, Tenant shall not request a
statement under this Article more often than once in each calendar year.
60. BROKER. Tenant shall indemnify, defend and hold harmless Owner, Newmark
& Company Real Estate, Inc. ("Owner's Broker"), as Owner's broker, ▇▇▇▇▇▇
Comfort & Sons, Inc. ("Owner's Managing Agent"), as Owner's Managing Agent, and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co. Inc. and ▇▇▇▇▇▇▇▇ Realty Group, Inc. (collectively, "Owner's
Consultants"), as Owner's consultants, against and from any claims for any
brokerage commissions or other compensation which are made by any broker,
consultant or other person (excluding Owner's Broker, Owner's Managing Agent and
Owner's Consultants) claiming to have dealt with Tenant (or claiming to have
dealt with Tenant, and any or all of Owner, Owner's Broker, Owner's Managing
Agent or Owner's Consultants) in connection with this lease, and all costs,
expenses and liabilities in connection therewith, including, without limitation,
attorneys' fees and expenses. Owner shall indemnify, defend and hold harmless
Tenant against and from any claims for any brokerage commissions or other
compensation which are made by any broker, consultant or other person
(including, without limitation, Owner's Broker, Owner's Managing Agent and
Owner's Consultants, but excluding any broker, consultant or other person
covered by Tenant's indemnity) claiming to have dealt only with Owner, Owner's
Broker, Owner's Managing Agent or Owner's Consultants in connection with this
lease, and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses.
61. NO OWNER LIABILITY. Owner, its partners, members, officers, directors
and principals, disclosed or undisclosed, shall have no personal liability under
this lease. Tenant shall look only to Owner's interest in the land and the
building for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Owner in
the event of any default by Owner under this lease, and no other property or
assets of Owner or its partners, members, officers, directors or principals,
disclosed or undisclosed, shall be subject to lien, levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this lease, the relationship of Owner and Tenant under this lease or
Tenant's use or occupancy of the demised premises. If Tenant shall acquire a
lien on such other property or assets by judgment or otherwise, Tenant shall
promptly release such lien by executing and delivering to Owner any instrument,
prepared by Owner, required for such lien to be released.
62. DEFAULTS.
(a) As used in this lease, the term "default" shall mean a default
under this lease following any required notice and the expiration of the
applicable grace period.
(b) If Tenant is in arrears in the payment of rent or additional rent,
Tenant waives Tenant's right, if any, to designate the items against which
any payments made by Tenant are to be credited, and Tenant agrees that Owner
may apply any payments made by Tenant to any items Owner sees fit,
irrespective of and notwithstanding any designation or request by Tenant as
to the items against which any such payments shall be credited.
(c) In addition to any other remedies Owner may have under this lease,
Tenant shall pay to Owner interest at the lower of (i) 3% per annum above the
Prime Rate published in the Wall Street Journal (or, if no longer published,
then Owner shall substitute a similar rate) or (ii) the highest rate
permitted by law, on any rent or additional rent paid more than ten days
after the same is due, which interest shall be paid for the period commencing
on the date such rent or additional rent was first due and ending on the date
the same is paid.
(d) If the demised premises are not surrendered and vacated as and at
the time required by this lease (time being of the essence), Tenant shall be
liable to Owner for (i) all losses, costs, liabilities and damages which
Owner may incur by reason thereof, including, without limitation, reasonable
attorneys' fees, and Tenant shall indemnify, defend and hold harmless Owner
against all claims made by any succeeding tenants against Owner or otherwise
arising out of or resulting from the failure of Tenant timely to surrender
and vacate the demised premises in accordance with the provisions of this
lease, and (ii) per diem use and occupancy in respect of the demised premises
equal to two times the fixed rent and additional rent payable under this
lease for the last year of the term of this lease (which amount Owner and
Tenant presently agree is the minimum to which Owner would be entitled, is
presently contemplated by them as being fair and reasonable under such
circumstances and is not a penalty). In no event, however, shall this
paragraph be construed as permitting Tenant to hold over in possession of the
demised premises after the expiration or termination of the term of this
lease. Notwithstanding any provision of this paragraph to the contrary, if
Owner and Tenant are actively engaged in bona fide negotia tions with regard
to an extension of this lease after the date which is 180 days prior to the
expiration date of the term of this lease, then the provisions of this
paragraph shall not apply for a period of 180 days following the date either
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Owner or Tenant gives notice to the other that such negotiations have been
terminated. Nothing herein shall obligate Owner or Tenant to negotiate for an
extension of this lease.
(e) The losing party shall promptly reimburse the prevailing party for
any attorneys' fees and court costs incurred by the prevailing party in
connection with any action, proceeding or dispute under this lease between
Owner and Tenant.
63. OWNER'S CONSENT. If Tenant shall request Owner's approval or consent
and Owner shall fail or refuse to give such consent or approval, Tenant shall
not be entitled to any damages for any withholding or delay of such approval or
consent by Owner, it being intended that Tenant's sole remedy shall be an action
for injunction or specific performance.
(b) If (i) Tenant shall request Owner's consent or approval in
connection with any matter under this lease, (ii) Owner denies its consent or
approval, and (iii) within 30 days following Owner's denial of consent or
approval Tenant shall give notice to Owner that Owner's denial was
unreasonable (which notice shall set forth the respects in which such denial
was unreasonable), then either party may apply to the New York office of the
American Arbitration Association to appoint an individual to determine
whether Owner unreasonably withheld Owner's consent or approval. The
individual must be a person who has experience in commercial real estate in
New York for at least the past 15 years. The application shall request that
such decision be made within 30 days. If the American Arbitration Association
or the appointed individual fails or refuses to act within the required time
period, either party may apply to the President of the Real Estate Board of
New York, Inc. for such determination. To the extent the same are relevant to
the decision of such individual, the provisions of this lease shall apply. If
such individual determines that Owner unreasonably denied its consent or
approval, then Owner shall be deemed to have given its consent or approval
but Owner shall not be liable or responsible for, and such individual shall
not award, any costs, expenses, damages or losses whatsoever in connection
with or arising out of Owner's denial of consent or approval. The
determination of such individual shall be binding and conclusive on Owner and
Tenant. All fees, cost and expenses of the foregoing shall be paid by the
parties equally, but each party shall be responsible for its own attorney's
and witness fees.
(c) In any instance under this lease when Owner's consent or approval
is required, Owner shall (i) not unreasonably withhold, delay or condition
Owner's consent or approval, subject, however, to the terms of this lease,
and (ii) respond to Tenant within 10 business days (unless a different time
period is set forth in this lease) and, if Owner fails to respond within that
time period, Owner shall be deemed to have given Owner's consent or approval.
64. CERTAIN RESTRICTIONS. In addition to any other restrictions set forth
in this lease, except as otherwise provided in this lease, Tenant shall not (a)
use any other area outside the demised premises within or adjacent to the
building for the sale or display of any merchandise, for solicitations or
demonstrations or for any other business, occupation, undertaking or activity
(subject to Tenant's rights with respect to signs and the roof as expressly set
forth in this lease), (b) store any trash or garbage in any area other than
inside the demised premises (and Tenant shall, at Tenant's sole cost and
expense, attend to the daily disposal of trash), (c) suffer, permit or commit
any waste or any nuisance or other act or thing in the demised premises which
may disturb any other tenant or occupant in the building or permit any activity
within or from the demised premises which, in Owner's reasonable judgment, is
obscene, pornographic or lewd, (d) permit music or any other sounds in the
demised premises to be heard outside of the demised premises, (e) use or permit
or suffer the use of any machines or equipment in the demised premises which
cause vibration or noise that may be transmitted to or heard outside of the
demised premises, (f) permit odors or fumes beyond the demised premises, (g) to
the extent possible, permit its customers or delivery men to loiter immediately
outside the demised premises or the building, (h) except as specifically set
forth in this lease, place or install, or permit or suffer to be placed or
installed, on the glass of any window or door of the demised premises, any sign,
decoration, lettering, advertising matter, display (which can be seen from
outside the demised premises), shade or blind or other thing of any kind, (i)
park trucks or other delivery vehicles so as to interfere with the use of any
driveways, walks or entrances, (j) place or install, or permit or suffer to be
placed, installed or maintained, any awning, canopy, banner, flag, pennant,
aerial, or the like upon or outside the demised premises or the building, (k)
use any portion of the demised premises for the conduct of any public auction,
gathering, meeting or exhibition, the rendering of any health or related
services, the conduct of a school, the conduct of any business which results in
the presence of the general public in the demised premises, or in any other
manner which, in Owner's reasonable opinion, creates excessive traffic or use of
the building services, (l) grant or create, or permit to be created, any
security interest in or lien upon any fixtures, installed or placed in the
demised premises by Tenant or Owner which may remain in the demised premiss upon
the expiration of this lease, or (m) cause or permit, as the result of any
intentional act or omission on the part of Tenant, its agents, employees,
tenants, subtenants or other occupants of the demised premises to release
Hazardous Substances (as defined in this Article) in or from any portion of the
demised premises in violation of any Environmental Laws. Tenant shall indemnify,
defend and hold harmless Owner, and its successors, assigns,
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and each of their partners, employees, agents, officers and directors from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, losses, costs or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, including, without limitation, reasonable attorneys'
and consultants' fees and disbursements and investigation and laboratory fees
arising out of: (i) the presence, disposal, release or threat of release of any
Hazardous Substance as a result of any act or omission of Tenant, its agents,
employees, tenants, subtenants, invitees or other occupants of the demised
premises, in or from or affecting the demised premises; (ii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
any such Hazardous Substance; (iii) any lawsuit brought, settlement reached or
government order relating to such Hazardous Substance; and (iv) any violations
of laws, orders, regulations, requirements or demands or governmental
authorities by Tenant. "Hazardous Substance" shall mean "solid waste" or
"hazardous waste", "hazardous material", "hazardous substance", and "petroleum
product" as defined in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Hazardous Material Transportation Act, the Federal Water Pollution Control Act
and the Superfund Amendments and Reauthorization Act of 1986, any laws relating
to underground storage tanks, and any similar or successor federal law, state
law or local statutes and ordinances and any rules, regulations and policies
promulgated thereunder, as any of such federal, state and local statutes,
ordinances and regulations may be amended from time to time (collectively,
"Environmental Laws").
65. FIRE OR OTHER CASUALTY. Notwithstanding any provision of Article 9 to
the contrary, subject to Owner's right to terminate this lease as provided in
Article 9, if more than 50 percent of the demised premises shall be rendered
untenantable by fire or other casualty and (a) Tenant is not then in default
under this lease following any required notice and the expiration of the
applicable cure period and (b) Tenant has not caused the fire or other casualty,
Owner shall, within 30 days following the fire or other casualty, obtain and
deliver to Tenant an estimate from Owner's architect, engineer or contractor of
the time required to substantially complete the restoration of the demised
premises. If the estimate shall be 270 days or more following the fire or other
casualty, Tenant shall have the right to terminate this lease by notice to Owner
within 30 days following Tenant's receipt of the estimate (time being of the
essence), in which event this lease shall terminate effective the date which is
60 days following the date of Owner's delivery of such estimate, Tenant shall
pay the fixed rent and additional rent to the date of termination (or the date
of the fire or other casualty for that portion of the demised premises which is
untenantable), and this lease shall expire as if that date were the date set
forth in this lease for the expiration of the term. If this lease shall not be
terminated as provided in this Article, or if the estimate is less than 270
days, and for any reason the restoration is not substantially completed within
365 days following the fire or other casualty, Tenant shall have the right, by
notice to Owner within 10 days following the end of that 365-day period (time
being of the essence), to terminate this lease effective the date which is 60
days following the date of Tenant's notice, in which event Tenant shall pay the
fixed rent and additional rent to the date of termination (or the date of the
fire or other casualty for that part of the demised premises which is
untenantable), and this lease shall expire as if that date were the date set
forth in this lease for the expiration of the term.
66. RENT CONTROL. If the fixed rent or any additional rent shall be or
become uncollectible by virtue of any law, governmental order or regulation, or
direction of any public officer or body pursuant to law, Tenant shall enter into
such agreement or agreements and take such other action as Owner may reasonably
request, as may be legally permissible, to permit Owner to collect the maximum
fixed rent and additional rent which may from time to time during the
continuance of such rent restriction be legally permissible, but not in excess
of the amounts of fixed rent and additional rent payable under this lease. Upon
the termination of such rent restriction prior to the expiration of the term of
this lease (a) the fixed rent and additional rent, after such termination, shall
become payable under this lease in the amount of the fixed rent and additional
rent set forth and (b) Tenant shall pay to Owner, if legally permissible, an
amount equal to (i) the fixed rent and additional rent which would have been
paid pursuant to this lease, but for such rent restriction, less (ii) the fixed
rent and additional rent paid by Tenant to Owner during the period that such
rent restriction was in effect.
67. AIR CONDITIONING. Notwithstanding any provision of this lease to the
contrary, Owner shall have no obligation to furnish to Tenant or the demised
premises any air conditioning. Any air-conditioning unit and equipment located
in the demised premises on the date the term of this lease shall commence may be
utilized by Tenant; provided that Owner shall have no obligation with respect
thereto and that Tenant shall accept the same in its "AS IS" condition. Tenant
shall, at its sole cost and expense (a) maintain and promptly make all repairs,
structural or otherwise, ordinary and extraordinary, to all components of the
air-conditioning system within the demised premises, (b) maintain, and prior to
the commencement of the term of the lease deliver to Owner, a full service
contract covering the air conditioning system with a company reasonably
acceptable to Owner and (c) pay all permit fees and other costs associated with
any air-conditioning units in the demised premises. Tenant shall not be released
or excused from the performance of any of its obligations under this lease for
any failure or for interruption or curtailment of any air conditioning, for any
reason whatsoever, and no such failure, interruption or curtailment shall
constitute a constructive or partial eviction.
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68. MANAGING AGENT. Any ▇▇▇▇, statement, notice or communication given by
Owner to Tenant in accordance with this lease may be signed and delivered by the
managing agent of the building with the same force and effect as if signed and
delivered by Owner. Until Owner shall give notice to Tenant of a change, the
managing agent of the building shall be ▇▇▇▇▇▇ Comfort & Sons, Inc..
69. SURVIVAL. Any obligation of Owner or Tenant which by its nature or
under the circumstances can only be, or by the provisions of this lease may be,
performed after the expiration or earlier termination of this lease, and any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such expiration or termination, unless expressly
otherwise provided in this lease, shall survive the expiration or earlier
termination of this lease. No delay by Owner in rendering any ▇▇▇▇ or statement
shall be deemed a waiver or release of Tenant's obligation to make the payment
reflected on that ▇▇▇▇ or statement.
70. INTERPRETATION. Irrespective of the place of execution or performance,
this lease shall be governed by and construed in accordance with the law of the
State of New York. If any provision of this lease or the application thereof to
any person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, the remainder of this lease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. This lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this lease to be drafted. Each covenant, agreement, obligation
or other provision of this lease on Tenant's part to be performed, shall be
deemed and construed as a separate and independent covenant of Tenant, not
dependent on any other provision of this lease. All terms and words used in this
lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. If Tenant consists of two or more persons or entities, the obligations
and liabilities of Tenant shall be joint and several.
71. EXECUTION OF LEASE. Notwithstanding any provision of this lease, or any
law or rule, to the contrary, or the execution of this lease by Tenant, this
lease shall not bind Owner, nor shall Tenant be permitted the benefits of this
lease, unless and until one or more counterparts of this lease are executed by
Owner and delivered to Tenant.
72. AMERICANS WITH DISABILITIES ACT. Notwithstanding any provision of this
lease to the contrary, Tenant shall, at its expense, subject to all of the
provisions of this lease, comply with all aspects of the Americans with
Disabilities Act, as now or hereafter constituted (the "ADA"), with respect to
the demised premises, whether or not such compliance is required as the result
of Tenant's business, Tenant's Work, Tenant's use or manner of use of the
demised premises or the building (including the use permitted under this lease),
or Tenant's method of operation or whether or not such compliance requires
structural changes to the demised premises. If Tenant's business, Tenant's Work,
Tenant's use or manner of use or Tenant's method of operation requires changes
to any portion of the building or areas adjacent to the building in order to
comply with the ADA, Tenant shall either (i) discontinue such business, Tenant's
Work, use or method of operation or (ii) authorize Owner to perform same, at
Tenant's expense. Except as set forth in the prior sentence, if any area of the
building outside the demised premises must comply with the ADA, Owner shall
comply with same at Owner's expense (subject to Owner's right to contest the
need for such compliance). Owner shall comply with the ADA in connection with
Owner's Work (but not to the extent compliance is required in connection with
the demised premises, which compliance shall be performed by Tenant, at Tenant's
expense, in accordance with this lease).
73. CONFIDENTIALITY. Tenant shall hold in confidence and shall not disclose
to third parties, and shall cause its officers, directors, employees,
representatives, brokers, attorneys and advisers to hold in confidence and not
disclose to third parties, the terms of this lease, except to the extent same
(a) must be disclosed by order of any court or regulatory agency, or by law,
including, without limitation, in connection with a public offering of
securities, (b) is publicly known or becomes publicly known other than through
the acts of Tenant, or any of its officers, directors, employees,
representatives, brokers, attorneys or advisers, or (c) must be disclosed by
Tenant in connection with any financing or sale, any subletting of the demised
premises, or any assignment of this lease.
74. MINIMIZE INTERFERENCE. Owner shall exercise Owner's rights under
Articles 13 and 20 in a manner which shall minimize interference with the
conduct of Tenant's business in the demised premises, but Owner shall not be
required to incur overtime labor charges or any other substantial changes. Upon
the completion of any work by Owner pursuant to said Articles, the usable area
of any floor of the demised premises shall not have been reduced as a result of
that work (other than by a diminimis amount) and Owner shall restore the
portions of the demised premises affected by the work to their condition
immediately prior to the performance of the work.
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75. JURISDICTION. All suits, actions or proceedings arising out of or
relating to this lease shall be adjudicated in the state courts of the State of
New York, or the federal courts, sitting in New York County (collectively, "New
York Courts"). Owner and Tenant irrevocably consent to the personal and subject
matter jurisdiction of the New York Courts in any suit, action or proceeding
arising out of or relating to this lease. This consent to jurisdiction shall be
self-operative and no further instrument or action, other than service of
process in any manner permitted by law or this Article, shall be necessary in
order to confer jurisdiction upon the person of Owner and Tenant and the subject
matter in question in any New York Court. Tenant hereby appoints and authorizes
its council, Phillips, Lytle, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, at its office in
the City of New York, or its then counsel, to accept service of process on its
behalf, under this lease. Owner hereby appoints and authorizes either of its
counsel, ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, at its office in the City of New York or
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, at its office in the City of New York, or any of their
then counsel, to accept service of process on their behalf, under this lease.
(a) Owner and Tenant irrevocably waive and agree not to assert, by way
of motion, as a defense or otherwise, any objection which it may now or
hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this lease brought in any New York Court, any
claim that any suit, action or proceeding arising out of or relating to this
lease brought in any New York Court has been brought in an inconvenient
forum, or any claim that Owner or Tenant is not personally subject to the
jurisdiction of that court. The judgment of any New York Court in any suit,
action or proceeding arising out of or relating to this lease may be
enforced, and execution on any such judgment may be had, in any New York
Court.
(b) Service in any suit, action or proceeding arising out of or
relating to this lease may be made by delivery of the summons and complaint,
or the petition and notice of petition by certified or registered mail,
return receipt requested, sent to Tenant at the demised premises in
compliance with Article 58.
76. DUE AUTHORIZATION. (a) If Tenant is a corporation, the person executing
this lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly incorporated or duly qualified (if foreign) corporation and is authorized
to do business in the State of New York (a copy of evidence thereof to be
supplied to Owner upon request); and that the person executing this lease on
behalf of Tenant is an officer of Tenant and that he or she is duly authorized
to execute and deliver this lease to Owner (a copy of a resolution to that
effect to be supplied to Owner upon request).
(b) Owner hereby represents and warrants to Tenant that the party
executing this lease on behalf of Owner is duly authorized to execute and
deliver this lease to Tenant.
77. REPAIRS AND MAINTENANCE BY OWNER. Owner shall perform all maintenance
and repair work required to be performed by Owner pursuant to this lease with
due diligence and in a workmanlike manner. Notwithstanding Tenant's obligations
to give Owner prompt notice of any defective condition in the demised premises
for which Owner may be responsible, Tenant's failure to do so shall not relieve
Owner of its obligations to remedy the defect. Tenant shall not be required to
make any repairs (whether structural or non-structural) to the extent the same
are necessitated by the act, omission or negligence of Owner, or its agents or
employees.
78. ESSENTIAL SERVICES. (a) Notwithstanding any provision of this lease to
the contrary, if Owner shall fail to provide any Essential Service (as defined
in this Article) for a period of 10 consecutive business days and, as a result
thereof, Tenant is unable to use all or substantially all of the demised
premises for the conduct of business, then the fixed rent shall ▇▇▇▇▇ as of the
commencement of such 10-day period through the day preceding the day on which
the service is substantially restored. If such failure and inability shall
continue for 90 consecutive days, Tenant shall have the right, until the service
is substantially restored, to terminate this lease by notice to Owner (in which
event this lease shall terminate without obligation or liability of Owner to
Tenant as a result thereof). Notwithstanding the foregoing, if the failure to
provide an Essential Service is not the result of the willful misconduct or
negligence of Owner and such Essential Service cannot reasonably be restored
within 10 business days or 90 days, as the case may be, then such periods shall
be extended for so long as it shall require Owner in the exercise of reasonable
diligence to restore the service provided that Owner commences to restore the
interrupted Essential Service within such 10 business day period. Tenant shall
be deemed unable to use all or substantially all of the demised premises for the
conduct of its business on any business day when, as the result of Owner's
failure to provide an Essential Service, more than 50 percent of Tenant's
employees who are regularly employed at the demised premises, are not there for
all or most of Tenant's ordinary working hours on that day.
(b) "Essential Service" shall be deemed to mean and be limited to
reasonable toilet facilities, reasonable access to the demised premises
through the main lobby of the building (but not if such access is disrupted
by the performance of Owner's Work), heating (as the season may then
require), electric power for light and the operation of Tenant's equipment
(if the interruption is caused by Owner) and the service of
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at least one passenger elevator, to the extent such services are required to
be furnished by Owner under this lease.
(c) To the extent reasonably practicable, Owner shall give Tenant 14
days notice prior to performing any work which shall adversely affect any
Essential Service.
79. RULES AND REGULATIONS. Any rules or regulations promulgated by Owner
shall be consistent with the provisions of this lease, and shall be enforced in
a nondiscriminatory manner.
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EXHIBIT A
OWNER'S WORK DESCRIPTION
WINDOWS
- New double hung windows model TR-9000 aluminum manufactured by TRACO or
equivalent. Window features to include:
Tilt-in sash for cleaning.
Preventive stops for limiting opening of sashes.
Choice of color of frames from Manufacturer's standard color chart to be
mutually acceptable to Owner and Tenant.
Duel sealed insulated glass and thermally broken frame and sash members.
ELEVATORS
Based upon the recommendations of an independent elevator consultant, work to
include:
- A new microprocessor passenger elevator will be installed in place of the
existing manual freight elevator.
- Group controls to permit a 3 car operation, as well as to allow
independent operation of converted freight elevator.
- New ADA compliant panels and indicators on all floors.
- Upgrade existing passenger elevators to include:
- Disassembly of machinery
- Removal and disassembly of spider
- Replacement of main shaft bearings
(gear side and traction sheave side)
- Replacement of thrust bearings
- Removal and tuning of armature
- Reassemble, seal and test machinery
- Exhaust Fans
and such other mechanical repairs and replacements as
shall be reasonably recommended by the Owner's elevator
consultant. Owner shall furnish the elevator consultant's
report to Tenant.
Upgrade of existing interior cabs to match the converted freight elevator with
new finishes to include carpeting, decorative metal, and decorative stone, as
well as new ventilation. Finishes are to be mutually acceptable to Owner and
Tenant.
LOBBY AND ENTRANCE
Based upon architectural plans and specifications, work to include:
- Extend lobby to the south approximately 20' - 0" to incorporate a
former freight elevator that is being converted for passenger use.
- New concierge desk built of materials which are complimentary to the
overall lobby design and materials (but Owner is not responsible for
staffing the desk).
- Radiator covers in the vestibule.
- New air conditioning unit to provide cooling for existing and extended
lobby.
- Card Key Access System which will be ADT compatible.
- Replacement of interior vestibule and exterior entry doors and store
fronts with a more complementing design for both the facade and lobby.
- Renovations to lobby to include new wall treatments, new ceiling, new
lighting, and new floor in expanded lobby which will compliment existing
floor. Finishes to consist of decorative stone, wood and wall coverings
appropriate to the building and which are mutually acceptable to Owner
and Tenant.
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