Exhibit 10.1
================================================================================
AGREEMENT OF LEASE
between
PARK AVENUE SOUTH/ARMORY, INC.
Landlord,
and
TEE NEW YORK LAW PUBLISHING COMPANY
Tenant,
Dated: September 30, 1993
PREMISES:
Entire 7th and 8th Floors
Portion of the 0xx Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
================================================================================
TABLE OF CONTENTS
Page
----
Article 1 Rent ............................................................
Article 2 Preparation of the Demised Premises .............................
Article 3 Adjustments of Rent .............................................
Article 4 Electricity .....................................................
Article 5 Use .............................................................
Article 6 Alterations and Installations ...................................
Article 7 Repairs .........................................................
Article 8 Requirements of Law .............................................
Article 9 Insurance, Loss, Reimbursement, Liability .......................
Article 10 Damage by Fire or other Cause ..................................
Article 11 Assignment, Mortgaging, Subletting, Etc. .......................
Article 12 Intentionally Omitted ..........................................
Article 13 Adjacent Excavation - Shoring ..................................
Article 14 Condemnation ...................................................
Article 15 Access to Demised Premises; Changes ............................
Article l6 Conditions of Limitation .......................................
Article 17 Re-entry by Landlord, Injunction ...............................
Article 18 Damages ........................................................
Article 19 Landlord's Right to Perform Tenant's Obligations ...............
Article 20 Quiet Enjoyment ................................................
Article 2l Services and Equipment .........................................
Article 22 Definitions ....................................................
Article 23 Invalidity of Any Provision ....................................
i
TABLE OF CONTENTS
Page
----
Article 24 Brokerage ......................................................
Article 25 Subordination ..................................................
Article 26 Estoppel Certificate ...........................................
Article 27 Legal Proceedings, Waiver of Jury Trial ........................
Article 28 Surrender of Premises ..........................................
Article 29 Rules and Regulations ..........................................
Article 30 Consents and Approvals .........................................
Article 31 Notices ........................................................
Article 32 No Waiver ......................................................
Article 33 Captions .......................................................
Article 34 Inability to Perform ...........................................
Article 35 No Representations by Landlord .................................
Article 36 Name of Building ...............................................
Article 37 Restrictions Upon Use ..........................................
Article 38 Arbitration ....................................................
Article 39 Indemnity ......................................................
Article 40 Memorandum of Lease ............................................
Article 41 Miscellaneous ..................................................
Article 42 Security .......................................................
Article 43 Holdover .......................................................
Article 44 Tenant's Work; Work Fund .......................................
Article 45 Basement Space .................................................
Article 46 Right of First Offering ........................................
Article 47 Additional Right of First Offering .............................
Article 48 Tenant's Antenna ...............................................
ii
TABLE OF CONTENTS
SCHEDULES
A - Floor Plan ...................................................... A-l
B - Rules and Regulations ........................................... B-1
C - Landlord's Post-Commencement Work ............................... C-1
D - Cleaning Specifications ......................................... D-1
E - Termination Fixed Rent .......................................... E-1
F - Air-Cooled Units Location Plan .................................. F-1
G - Rules and Regulations for Alterations ........................... G-1
H - Ground Lessor Non-Disturbance Agreement ......................... H-1
I - Basement Space .................................................. I-1
J - Signage Plan .................................................... J-1
K - Fired Annual Rent Schedule ...................................... K-1
L - Form of Mortgagee Non-Disturbance Agreement ..................... L-1
M - Unabated Fixed Rent ............................................. M-1
N - Form of Security Letter of Credit ............................... N-1
O - Condenser Water Specifications .................................. O-1
AGREEMENT OF LEASE made as of this 30th day of September, 0000, xxxxxxx
XXXX XXXXXX XXXXX/XXXXXX, XXX., a New York corporation, having an office at c/o
Montrose Realty Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attn: Xxxxxx Xxxxxx, Vice President (hereinafter referred to as "Landlord") and
THE NEW YORK LAW PUBLISHING COMPANY, a New York corporation, having an office at
000 Xxxxxx Xxxxxx, Xxx Xxxx. Xxx Xxxx, 00000 (hereinafter referred to as
"Tenant").
W I T N E S S E T H
Landlord hereby leases and Tenant hereby hires from Landlord, in the
building (hereinafter referred to as the "Building") known as 000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, the following space: the entire seventh (7th) and
eighth (8th) and a portion of the ninth (9th) floor, all as shown by hatching on
the plans annexed hereto as Schedule A (which space is hereinafter collectively
referred to as the "demised premises"); for a term to commence on the date
hereof (hereinafter referred to as the "Commencement Date") and shall end on the
last day of the month preceding the month in which occurs the fifteenth (15th)
anniversary of the Commencement Date (such date on which the term of the Lease
expires is hereinafter referred to as the "Expiration Date") or on such date as
such term shall sooner cease and terminate as hereinafter provided.
Tenant shall have, as appurtenant to the demised premises, the
non-exclusive right to use for itself, its employees, invitees and visitors, in
common with others entitled thereto in accordance with the terms of this Lease
and subject to the Building Rules and Regulations: (i) public common areas in
the Building, including without limitation, sidewalks, loading facilities,
entrances and exits from public streets, lobbies, hallways, elevators, emergency
stairways, and such other facilities available to all tenants or occupants of
the Building as may be designated from time to time by Landlord to the extent
that same serve the demised premises; and (ii) with respect to those portions of
the demised premises that consist of less than the entire net rentable area of
any floor, the common facilities in the central core area of such floor.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, trustees, successors and assigns, hereby
covenant as follows:
ARTICLE 1
RENT
1.01. (a) Tenant shall pay to Landlord a fixed annual rent (hereinafter
referred to as "fixed annual rent") in the amounts set forth on Schedule K
annexed hereto and made part hereof.
(b) Notwithstanding anything contained herein to the contrary, (i) no
fixed annual rent shall be due or payable during the period commencing on the
Commencement Date and ending on January 31, 1994, and (ii) the portion of
"Tenant's Tax Payments" and "Tenant's Expense Payments", as such terms are
defined in Article 3 hereof, which are allocable to the period commencing on the
Commencement Date and ending on January 31, 1995 (hereinafter called the
"Extended Abatement Period") shall be fully abated. The day following the
expiration of the Extended Abatement Period is herein called the "Escalation
Rent Commencement Date". For purposes hereof, the "Fixed Rent Commencement Date"
shall mean November 1, 1994.
(c) Tenant agrees to pay the fixed annual rent in lawful money of the
United States of America, in equal monthly installments in advance on the first
day of each calendar month during said term, at the office of Landlord or
Landlord's managing agent or such other place in the City of New York as
Landlord may designate, without any setoff or deduction whatsoever, except such
deduction as may be occasioned by the occurrence of any event permitting or
requiring a deduction from or abatement of rent as expressly set forth in this
Lease. Should the obligation to pay fixed annual rent commence on any day other
than on the first day of a month, then the monthly installment of fixed annual
rent for such month shall be prorated on a per diem basis.
(d) The first full month's installment of fixed annual rent due under this
Lease on the Rent Commencement Date and the security to be deposited under
Article 42 hereof shall be paid by Tenant upon the execution of this Lease.
1.02. Tenant shall pay the fixed annual rent and additional rent as above
and as hereinafter provided, by good and sufficient check (subject to
collection) drawn on a bank which is a member of the New York Clearinghouse
Association or a successor thereto. All sums other than fixed annual rent
payable by Tenant hereunder shall be deemed additional rent (for default in the
payment of which Landlord shall have the same remedies as for a default in the
payment of fixed annual rent), and shall be payable within twenty (20) days
after demand therefor, unless other payment dates are hereinafter provided.
1.03. If Tenant shall fail to pay when due any installment of fixed annual
rent or any payment of additional rent for a period of five (5) days after such
installment or payment shall have become due, Tenant shall pay interest thereon
at the Interest Rate (as such term is defined in Article 22 hereof), from the
date when such installment or payment shall have become due to the date of the
payment thereof, and such interest shall be deemed additional rent, provided,
however, that such interest shall not be due on the first two (2) such late
payments within any twelve (12) month period during the term hereof unless
Tenant shall have failed to cure such late payments within five (5) days after
the giving to Tenant of written notice thereof.
-2-
PARK AVE ARMORY/NYLPC - LEASE PT I
1.04. If any of the fixed annual rent or additional rent payable under the
terms and provisions of this Lease shall be or become uncollectible, reduced or
required to be refunded because of any legal rent restrictions or controls,
Tenant shall enter into such agreement(s) and take such other steps (without any
cost, expense or liability to Tenant) as Landlord may reasonably request and as
may be legally permissible to permit Landlord to collect the maximum rents
which from time to time during the continuance of such legal rent restriction
may be legally permissible (and not in excess of the amounts reserved therefor
under this Lease). Upon the termination of such legal rent restriction, (a) the
rents shall become and thereafter be payable in accordance with the amounts
reserved herein for the periods following such termination and (b) Tenant shall
pay to Landlord, to the maximum extent legally permissible, an amount equal to
(i) the rents which would have been paid pursuant to this Lease but for such
legal rent restriction less (ii) the rents paid by Tenant during the period such
legal rent restriction was in effect.
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES
2.01. (a) Tenant has examined the demised premises and agrees to accept
same in their "as is" condition as of the date hereof, subject to Landlord's
obligations under Section 7.01 hereof, and understands and agrees that Landlord
shall not be required to perform any work, supply any materials or incur any
expense to prepare the demised premises for Tenant's occupancy, except that
Landlord shall, at Landlord's sole cost and expense, perform the work in the
demised premises defined in Schedule C hereof as the "Landlord's
Post-Commencement Work".
(b) Landlord covenants that Landlord has, at Landlord's sole cost
and expense, performed the following work in the demised premises in a good and
workerlike manner in accordance with all Legal Requirements:
(i) totally demolished the demised premises slab-to-slab and
wall-to-wall (except the thirty (30) ton water-cooled air-conditioning
unit on the ninth (9th) floor and all sprinkler loops): and
(ii) performed asbestos removal in the demised premises in
accordance with Legal Requirements in order to remove all
asbestos-containing materials from the demised premises which are noted as
currently existing therein on Landlord's asbestos report, a copy of which
has been previously delivered to Tenant and delivered to Tenant a New York
City
-3-
PARK AVE ARMORY/NYLPC - LEASE PT I
Form ACP-5 from the New York City Department of Environmental Protection
in connection with the final plans, as defined in Article 44 hereof.
2.02. (a) Landlord's Post-Commencement Work shall be deemed substantially
completed notwithstanding the fact that minor or insubstantial details of
demolition remain to be performed, the non-completion of which do not materially
interfere with the commencement of Tenant's Work in the demised premises.
(b) If the substantial completion of Landlord's Post-Commencement
Work shall be delayed due to any act or omission of Tenant or any of its
employees, agents or contractors ("Tenant's Delay") of which Tenant shall have
been given notice (which may be oral), then Landlord's Post-Commencement Work
shall be deemed substantially completed on the date when it would have so been
but for such delay.
ARTICLE 3
ADJUSTMENTS OF RENT
3.01. For the purposes of this Article 3, the following definitions shall
apply:
(a) The term "Base Tax" shall mean the "Taxes", as hereinafter
defined for the Tax Year commencing July 1, 1993 and ending June 30, 1994, as
finally determined.
(b) The term "Tenant's Proportionate Tax Share" shall be deemed to
mean 20.51 (20.51%) percent, calculated as the fraction, expressed as a
percentage, the numerator of which shall be 53,000, which Landlord and Tenant
agree for purposes of this Lease constitutes the rentable square footage of the
demised premises and the denominator of which is 258,438, which Landlord and
Tenant agree, constitutes the rentable square footage of the Building for
purposes of calculating Tenant's Proportionate Tax Share.
(c) The term "Taxes" shall mean all real estate taxes, assessments,
governmental levies, municipal taxes, county taxes or any other governmental
charge, general or special, ordinary or extraordinary, unforeseen as well as
foreseen, of any kind or nature whatsoever, which are or may be assessed levied
or imposed upon all or any part of the Land, the Building and the sidewalks,
plazas or streets in front of or adjacent thereto, and levied against Landlord
and/or the Land and/or Building, under the laws of the United States, the State
of New York, or any political subdivision thereof, or by the
-4-
PARK AVE ARMORY/NYLPC - LEASE PT I
City of New York, or any political subdivision thereof. Except as set forth in
the following sentence, "Taxes" shall exclude franchise, income, estate, gains,
transfer, transit and profit taxes. If, due to a future change in the method of
taxation of real estate or in the taxing authority, a new or additional real
estate tax, or a franchise, income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against Landlord, and/or the
Land and/or Building, in substitution in whole or in part for any tax which
would constitute "Taxes", or in lieu of additional Taxes, such tax or imposition
shall be deemed for the purposes hereof to be included within the term "Taxes".
(d) The term "Tax Year" shall mean each period of twelve months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve months occurring
during the term of this Lease as hereafter may be duly adopted as the fiscal
year for real estate tax purposes of the City of New York.
(e) The term "Operating Year" shall mean the calendar year 1993 and
each succeeding calendar year thereafter occurring during the term of this
Lease. The term "Base Year" shall mean the calendar years 1993 and 1994,
collectively.
(f) The term "Base Operating Expense Amount" shall mean 50% of the
sum of the Operating Expenses for the calendar years 1993 and 1994.
(g) "Operating Expenses" shall mean the total of all the costs and
expenses incurred or borne by Landlord in connection with the operation and
maintenance of the Building, and the services provided tenants therein,
including all expenses incurred as a result of Landlord's compliance with any of
its obligations hereunder other than Landlord's Work. Operating Expenses shall
include, without being limited thereto, but without duplication of any included
costs and expenses, the following: (i) salaries, wages, medical, surgical and
general welfare benefits (including group life insurance) and pension payments
of employees (up to and including the level of the Building manager) of Landlord
or the managing agent for the Building engaged in the operation and maintenance
of the Building; provided, however, that to the extent that such employees
provide services to both the Building and one or more other buildings, any
amounts included in this subparagraph (i) or subparagraph (ii) below shall be
appropriately prorated; (ii) payroll taxes, workmen's compensation, uniforms and
dry cleaning for the employees referred to in subdivision (i); (iii) the cost of
all charges for steam, heat, ventilation, air-conditioning and water (including
sewer rental) furnished to the Building (including common areas thereof),
together with any taxes on any such utilities; (iv) the cost of all charges for
rent, casualty, war risk (if
-5-
PARK AVE ARMORY/NYLPC - LEASE PT I
obtainable from the United States government), and liability insurance
maintained by Landlord in respect of the Land and/or the Building, (v) the cost
of all building and cleaning supplies for the Building and the cost of charges
for the telephones installed at the Building for (A) the use of the Building
manager and (B) the Class E System telephone hook-up pursuant to Legal
Requirements; (vi) the cost of all charges for management, cleaning, window
cleaning and service contracts for any areas of the Building provided, however,
that in the case of management fees if Landlord or a Landlord Affiliate, as
defined in Section 22.06 hereof, is the managing agent of the Building, then the
management fee shall not exceed the then-prevailing rates for management fees
for office buildings charged by Manhattan-based well-recognized third-party
(unrelated) management companies managing substantial numbers of office
buildings in Manhattan comparable to the Building under comparable
circumstances; (vii) the cost of Building electric current. For the purposes of
clause (vii), the cost of Building electric current shall be deemed to mean the
cost of all electricity purchased, including any taxes thereon or fuel or other
adjustments in connection therewith, for use in the Building other than that
which is furnished to the demised space of other tenants in the Building; the
parties agree that thirty (30%) percent of the Building's payment to the public
utility for the purchase of electricity shall be deemed to be payment for
Building electric current; provided, however, that either party shall have the
right to cause, from time to time, an electrical survey to be performed with
respect to such Building electric current, subject to the provisions of
subsection 3.02D hereof; (viii) the cost relating to the public elevators and
public escalators; (ix) the cost relating to protection and security of the Land
and/or the Building; (x) the cost relating to lobby decorations (other than
artwork) and interior and exterior common area landscape maintenance; (xi)
repairs, replacements and improvements which are appropriate for the continued
operation of the Building as a first-class office building; (xii) painting of
non-tenantable areas; (xiii) professional and consulting fees (other than same
which are incurred in connection with capital costs which are not permitted
hereunder to be included in Operating Expenses); (xiv) association fees or dues
of the real estate organizations known as Building Owners and Managers
Association (BOMA) and the Real Estate Board of New York (or any successor
thereto); and (xv) the cost of expenditures made to the Building by reason of
the laws and requirements of any public authorities or the requirements of
insurance bodies; provided, however, that if under generally accepted accounting
principles consistently applied, any of the costs referred to in clause (xi) are
required to be capitalized (hereinafter called "Capital Costs"), only the
following Capital Costs, in addition to Capital Costs included in Operating
Expenses relating to clause (xv), shall be included in Operating Expenses:
I. if the cost of any improvement, alteration, replacement, repair
and/or any machinery or equipment set forth in clause (xi)
-6-
PARK AVE ARMORY/NYLPC - LEASE PT I
hereof, which is designed to reduce the expenses which otherwise would be
included in Operating Expenses, is a Capital Cost, then such cost shall be
included in Operating Expenses in accordance with the provisions set forth
in the next sentence. If Landlord shall purchase any item of capital
equipment or make any capital expenditure designed to result in savings or
reductions in Operating Expenses, then the cost thereof shall be amortized
on a straight line basis, over the reasonable useful life of the item in
question (together with an interest factor equal to the Interest Rate at
the time of Landlord's having incurred said cost) provided, however, that
such amortization period shall be extended for the period necessary to
ensure that such annual amortized amount (together with such interest)
shall not exceed that amount of the actual savings in Operating Expenses
realized during such Operating Year. Upon Tenant's request, Landlord shall
submit to Tenant reasonable documentation supporting an estimate of the
potential cost savings which any such equipment or expenditure is designed
to effect. If Landlord shall lease any such item of capital equipment
designed to result in savings or reductions in Operating Expenses, then
the rental paid or incurred in connection with such leasing, or the annual
savings determined as described above, whichever is less, shall be
included in Operating Expenses for the Operating Year in which they were
incurred; and
II. the cost of any replacements set forth in clause (xi) hereof
which is a Capital Cost if (1) such replacement is made in lieu of a
repair of an item or any equipment which would constitute Operating
Expenses, because same has become obsolete such that it no longer
reasonably serves the purposes for which it was designed or because the
repair thereof is no longer reasonably and economically prudent and (2)
such replacement in lieu of a repair is reasonably necessary in accordance
with sound and fiscally prudent management and operating principles,
notwithstanding that the replacement is of a quality, design or utility
superior to that of the items being replaced, but only to the extent such
quality, design or utility shall not exceed the standard for the same then
prevailing for office buildings in Manhattan comparable to the Building.
With respect to the Capital Costs described in clause (xv) and in subclause (II)
above (but excluding Capital Costs described in subclause I above), such Capital
Costs (excluding Capital Costs described in subclause I above) shall not be
included in Operating Expenses but rather such Capital Costs, to the extent same
are not excluded from Operating Expenses pursuant to the following paragraph,
shall be amortized or depreciated, as the case may be, over a period of time
which shall be the shorter of (A) the reasonable useful life of the item in
question; or (B) fifteen (15) years. Such annual amortized amount, in all such
cases, together with interest thereon at the "Interest Rate" (as defined in
Section 22.03 hereof) in effect as of December 31 of the year in which such
expenditure is made, shall be included in Operating Expenses.
-7-
PARK AVE ARMORY/NYLPC - LEASE PT I
Notwithstanding anything to the contrary set forth in the preceding
definition of Operating Expenses, the term "Operating Expenses", as used and
defined under this subsection 3.01(g), shall not, however, include the following
items: (1) depreciation and amortization (except as otherwise expressly provided
in clause (xv) and subclauses I and II of this subsection 3.01(g)); (2) interest
on and amortization of debts; (3) the cost of tenant improvements made for
tenant(s) of the Building; (4) brokerage or leasing commissions or finders fees
or any other similar payments made in connection with the procurement of
tenants; (5) financing or refinancing costs including, without limitation, legal
and accounting fees in connection with any such financing or refinancing; (6)
Taxes; (7) rental and other payments including, without limitation, rent and
additional rent whether paid to the ground lessor or any other third party,
under the "Ground Lease", as defined in Article 25 hereof or any future ground
lease; (8) franchise, income or other similar taxes imposed upon Landlord; (9)
the cost of electrical energy furnished directly to Tenant, other tenants or
occupants of the Building or any space available for leasing in the Building;
(10) salaries and fringe and other benefits of personnel above the grade of
building manager and such building manager's supervisor and all other indirect
expenses and taxes relating thereto; (11) any expense for which Landlord is
otherwise compensated through the proceeds of insurance or a condemnation award
(or would have been compensated by insurance if Landlord had obtained and
maintained the insurance required by mortgages, superior leases or this Lease);
(12) legal, arbitration and accounting fees incurred in connection with the
negotiation of, or disputes arising out of, any space lease in the Building or
any modification, amendment, extension, surrender or cancellation of same, other
than disputes in connection with Escalation Statements; (13) Landlord's
advertising and promotional costs for the Building; (14) costs and expenses
incurred by Landlord in connection with a sale of the Building or the lessee's
interest in any ground lease or any ownership interest in Landlord including,
without limitation, legal and accounting fees incurred in connection therewith;
(15) intentionally omitted; (16) any fee, expenditure, cost or expense paid by
Landlord to a Landlord Affiliate or an affiliate of the managing agent of the
Building in excess of the amount which would be paid to any independent third
party in an arm's-length transaction; (17) the cost of any work or services
performed for any new or existing tenant(s) of the Building (including Tenant),
whether at the expense of Landlord or Landlord Affiliates or such tenant(s), to
the extent that such work or services are in excess of the work or services
which Landlord or Landlord Affiliates are required to furnish Tenant under this
Lease, at the expense of Landlord or Landlord Affiliates; and (18) costs and
expenses incurred in connection with curing any claimed violation of any legal
requirements existing at the Building as of the Commencement Date; provided,
however, that costs to comply with any reinterpretation, amendment or
modification of such legal requirements or any rules and regulations promulgated
under such legal requirements and any of the
-8-
PARK AVE ARMORY/NYLPC - LEASE PT I
foregoing enacted after the date hereof shall be includible in Operating
Expenses (subject, however, to the provisions of clauses (xi) and (xv) of this
subsection 3.01(g)); (19) costs of cleaning tenantable areas of the Building to
the extent such cleaning is in excess of the cleaning provided by Landlord
pursuant to Schedule D hereof; (20) legal fees for real estate tax certiorari
proceedings; (21) late payment penalties in the nature of interest or late fees
except to the extent reasonably incurred by Landlord in connection with a good
faith dispute with a supplier or contractor; (22) the amount of any money
judgment resulting from any tort liability of Landlord; (23) the rental paid or
incurred for Landlord's on-site leasing office; (24) the cost of installing,
operating and maintaining any specialty facility such as an observatory,
broadcasting facility, restaurant or luncheon club, athletic or recreational
club, theatre or cafeteria; (25) any expenses incurred in connection with
abatement, encapsulation, or removal of asbestos in the Building; (26) costs or
payments associated with Landlord's obtaining air rights or development rights;
and (27) the cost to provide overtime HVAC or other services to tenants of the
Building, which are in excess of the services which Landlord is obligated, at no
cost to Tenant, to provide hereunder.
If during all or part of any Operating Year including, without limitation,
the Base Year, Landlord shall not furnish any particular item(s) of work or
service (which would constitute an Operating Expenses hereunder) to portions of
the Building (including without limitation the demised premises) due to the fact
that such portions are not occupied or leased, or because such item of work or
service is not required or desired by the tenant (including without limitation
Tenant) of such portion, or such tenant is itself obtaining and providing such
item of work of service, or for any other reasons, then, for the purposes of
computing the additional rent payable hereunder pursuant to Section 3.02 hereof,
the amount of the expenses for such item(s) for such period shall be deemed to
be increased by an amount equal to the additional operating and maintenance
expenses which would reasonably have been incurred during such period by
Landlord if it had at its own expense furnished such items(s) of work or
services to ninety-five (95%) percent of the rentable area of the Building.
(h) The term "Tenant's Proportionate Operating Share" shall be
deemed to mean 21.84 (21.84%) percent, calculated as the fraction, expressed as
a percentage, the numerator of which is 53,000, which, Landlord and Tenant
agree, constitutes the rentable square footage of the demised premises, and the
denominator of which is 242,638, which Landlord and Tenant agree constitutes the
rentable square footage of the office space in the Building for purposes of
calculating Tenant's Proportionate Operating Share.
(i) "Tenant's Proportionate Share of Increase" shall mean the
percentage set forth in Section 3.01(h) multiplied by the increase in Operating
Expenses for an Operating Year over the Base Operating Expense Amount.
-9-
PARK AVE ARMORY/NYLPC - LEASE PT I
(j) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the prior Operating Year and the reasonably
estimated increase in costs for the current Operating Year divided by twelve
(12) and payable monthly by Tenant to Landlord as additional rent. If Tenant's
Projected Share of Increase shall reflect more than a four (4%) percent increase
over Tenant's Proportionate Share of Increase for the prior Operating Year, then
upon written request from Tenant, Landlord shall furnish to Tenant reasonable
evidence substantiating the amount of such estimated increase. If Tenant's
Projected Share of Increase shall reflect more than a ten (10%) percent increase
over Tenant's Proportionate Share of Increase for the prior Operating Year, then
Tenant shall have the right to dispute the correctness of such estimate,
specifying the aspects thereof which Tenant disputes. Any dispute relating to
any such estimate shall be resolved by arbitration as set forth in Section 3.09
hereof. Pending the resolution of such dispute, Tenant shall pay additional rent
in accordance with Landlord's Escalation Statement. Any overpayment by Tenant
shall be paid by Landlord within thirty (30) days after the resolution thereof
and if Landlord shall fail timely to make such payment to Tenant, then Tenant
may, upon written notice to Landlord, credit such amount against fixed annual
rent and additional rent under this Article 3 next becoming due hereunder. Any
such payment by Landlord or credit pursuant to the preceding sentence shall bear
interest at the Prime Rate from the date of the overpayment to the date of such
payment or credit.
(k) The term "Escalation Statement" shall mean a statement setting
forth in reasonable detail (i.e., with line item categories of Expenses
customarily used in similar escalation-type statements by owners of office
buildings comparable to the Building) the base amount, the current amount and
the amount payable by Tenant for a specified Tax Year or Operating Year (as the
case may be) pursuant to this Article 3.
3.02. A. After the expiration of each Operating Year or any part thereof
occurring after the Rent Commencement Date, Landlord shall furnish Tenant an
Escalation Statement setting forth Tenant's Proportionate Share of Increase,
with respect to the Operating Expenses incurred for such Operating Year. Within
thirty (30) days after receipt of such Escalation Statement for any such
Operating Year, Tenant shall pay Tenant's Proportionate Share of Increase to
Landlord as additional rent.
B. Commencing with the Operating Year in which the Escalation Rent
Commencement Date shall occur, Tenant shall pay to Landlord as additional rent
for the then Operating Year, Tenant's Projected Share of Increase. If the
Escalation Statement furnished by Landlord to Tenant pursuant to this Section
3.02 at the end of the then Operating Year shall indicate that Tenant's
Projected Share of Increase exceeded Tenant's Proportionate Share of
-10-
PARK AVE ARMORY/NYLPC - LEASE PT I
Increase, Landlord shall forthwith pay the amount of such excess directly to
Tenant within thirty (30) days after the giving such statement and if Landlord
shall fail timely to make such payment to Tenant, then Tenant may, upon written
notice to Landlord, credit the amount of such excess against the subsequent
payments of fixed annual rent and additional rent due under this Article 3; if
such statement furnished by Landlord to Tenant hereunder shall indicate that
Tenant's Proportionate Share of Increase exceeded Tenant's Projected Share of
Increase for the then Operating Year, Tenant shall within twenty (20) days after
written request therefor pay the amount of such excess to Landlord. The "amount
of such excess" to be paid or credited to Tenant pursuant to the preceding
sentence shall include interest at the Prime Rate from the date of such
overpayment to the date paid to Tenant or the date credited to Tenant; provided,
however, that with respect to that portion of the amount of such excess which
shall exceed fifteen (15%) percent of the amount of Tenant's Proportionate Share
of Increase, such interest shall be at the Interest Rate.
C. Tenant, upon no less than five (5) Business Days' prior notice,
may elect to have a financial officer of Tenant and/or Tenant's consultants
(provided same have reasonable expertise in comparable financial matters)
examine such of Landlord's books and records (collectively, "Records") as are
relevant to the Escalation Statement in question, provided any such examination
shall be commenced within seventy-five (75) days after Tenant's receipt of an
Escalation Statement and concluded within sixty (60) days after the commencement
of such examination, provided that such sixty (60) day period shall be extended
for any reasonable period which is necessary for Tenant to complete such
examination provided same shall have been conducted in a reasonably diligent
manner. In making such examination, Tenant agrees, and shall cause its financial
officer and/or consultants to agree, to keep confidential any and all
information contained in the Records.
D. If the findings of any electrical survey performed in accordance
with clause (vii) of subsection 3.01(g) hereof shall support a modification of
the thirty (30%) percent amount set forth in such clause (vii), then the party
performing such survey shall give notice thereof to the other and shall submit
to the other party a copy of such survey. The other party shall have sixty (60)
days after the date that it receives a copy of such survey to give notice to the
first party that such party has engaged an electrical consultant to verify the
determination of such survey. If the second electrical consultant and the first
electrical consultant cannot agree within ten (10) days after the giving of such
notice on what an appropriate resolution of their dispute should be, then either
party, upon notice to the other, may submit the issue to arbitration in
accordance with the provisions of Article 38 of this Lease. While such dispute
is being resolved, Tenant shall pay such charges and payments as would be due
hereunder if Landlord's
-11-
PARK AVE ARMORY/NYLPC - LEASE PT I
electrical consultant's determination were correct without prejudice to Tenant's
position. In the event that it is finally determined that there has been an
overpayment by Tenant, Landlord shall pay to Tenant the amount of such
overpayment within thirty (30) days after such final determination, together
with interest thereon at the Prime Rate, and if Landlord shall fail timely to
make such payment to Tenant, then Tenant may, upon written notice to Landlord.
credit the amount of Tenant's overpayment against subsequent payments of fixed
annual rent and additional rent under this Article 3 next becoming due from
Tenant hereunder, with interest thereon at the Prime Rate and in the event of an
underpayment, the amount of such underpayment by Tenant, together with interest
thereon at the Prime Rate, shall be paid by Tenant to Landlord within twenty
(20) days after such determination is made; such interest accruing from the date
such overpayment was made or such underpayment was due, as the case may be, to
the date credited or paid, as the case may be.
3.03. A. Tenant shall pay as additional rent for each Tax Year or portion
thereof occurring after the Escalation Rent Commencement Date, a sum
(hereinafter referred to as "Tenant's Tax Payment") equal to Tenant's
Proportionate Tax Share of the amount, if any, by which the Taxes for such Tax
Year exceed the Base Tax. Tenant's Tax Payment for each Tax Year shall be due
and payable in twelve (12) equal monthly installments, in advance, (on the first
day of each month during such Tax Year) based upon the Escalation Statement
furnished prior to the commencement of such Tax Year, until such time as a new
Escalation Statement for a subsequent Tax Year shall become effective. Upon
Tenant's written request, Landlord will furnish to Tenant a copy of the real
estate tax billing from the taxing authorities. If an Escalation Statement is
furnished to Tenant after the commencement of a Tax Year in respect of which
such Escalation Statement is rendered, then (a) until the first day of the month
following the month in which the Escalation Statement is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount equal to
one-twelfth of the Tax Payment for the preceding Tax Year; and (b) within 15
days after the Escalation Statement for such Tax Year is furnished to Tenant,
Tenant shall pay to Landlord an amount equal to the amount of any underpayment
of Tenant's Tax Payment with respect to such Tax Year and, in the event of an
overpayment, Landlord shall pay the amount of the overpayment to Tenant within
thirty (30) days after the giving of such statement and if Landlord shall fail
timely to make such payment to Tenant, then Tenant may, upon written notice to
Landlord, credit the amount of Tenant's overpayment against subsequent payments
of fixed annual rent and additional rent under this Article 3 next becoming due
hereunder. If there shall be any increase in Taxes for any Tax Year, whether
during or after such Tax Year, Landlord shall furnish a revised Escalation
Statement for such Tax Year, and Tenant's Tax Payment for such Tax Year shall be
adjusted and paid in the same manner as provided in the preceding sentence. If
during the term of this Lease. Taxes are required to be paid (either to the
appropriate taxing
-12-
PARK AVE ARMORY/NYLPC - LEASE PT I
authorities or as tax escrow payments to a superior mortgagee) in full or in
monthly, quarterly, or other installments, on any other date or dates than as
presently required, then Tenant's Tax Payments shall be correspondingly
accelerated or revised so that said Tenant's Tax Payments are due on the later
of 30 days after Landlord gives a notice to Tenant for payment of same and
twenty (20) days prior to the date payments are due to the taxing authorities or
the superior mortgagee. The benefit of any discount for any early payment or
prepayment of Taxes shall accrue solely to the benefit of Landlord and such
discount shall not be subtracted from Taxes; provided, however, that such
discount shall be subtracted from Taxes, if, at Landlord's request, installments
of Tenant's Tax Payment are made prior to the above due dates to enable Landlord
to obtain such discount.
B. If the real estate tax fiscal year of The City of New York shall
be changed during the term of this Lease, any Taxes for such fiscal year, a part
of which is included within a particular Tax Year and a part of which is not so
included, shall be apportioned on the basis of the number of days in such fiscal
year included in the particular Tax Year for the purpose of making the
computations under this Section 3.03.
C. If Landlord shall receive a refund of, or credit with respect to,
Taxes for any Tax Year. Tenant's Proportionate Tax Share of the net refund or
credit (after deducting from such total refund or credit the customary
out-of-pocket costs and expenses, including but not limited to, appraisal,
accounting and legal fees of obtaining the same, to the extent that such costs
and expenses were not payable pursuant to subsection 3.03(E) hereof) shall be
paid by Landlord within thirty (30) days after Landlord's receipt thereof and if
Landlord shall fail timely to make such payment to Tenant, then Tenant may, upon
written notice to Landlord, credit such amount against fixed annual rent and
additional rent under this Article 3 next becoming due hereunder; provided such
payment or credit to Tenant shall in no event exceed Tenant's Tax Payment paid
for such Tax Year.
D. If the Base Tax is reduced as a result of an appropriate
proceeding or otherwise, Landlord shall give notice to Tenant of the amount by
which the Tax Payments previously made were less than the Tax Payments required
to be made under this Article, together with reasonable documentation supporting
the calculation of such amount, and Tenant shall pay the amount of the
deficiency within thirty (30) days after demand therefor.
E. If it shall be the general custom for owners of office buildings
in Manhattan to retain the services of real estate tax certiorari attorneys for
such office buildings on a retainer or any basis other than on a contingency fee
basis, Tenant shall pay as additional rent hereunder within twenty (20) days
after delivery of a statement therefor for each Tax Year
-13-
PARK AVE ARMORY/NYLPC - LEASE PT I
commencing with the 1994/95 Tax Year Tenant's Tax Share of any customary
out-of-pocket expenses incurred by Landlord in contesting any items of Taxes or
the assessed valuations of all or any part of the Land and/or the Building or
collecting any refund. If it shall be the general custom to pay same on a
contingency basis, then Tenant shall have no obligation to pay same pursuant to
this subsection 3.03(E) provided, however, that same shall be deducted from any
refund or credit of Taxes as set forth in subsection 3.03(C) hereof.
3.04. Tenant shall pay to Landlord within twenty (20) days after demand
therefor, but in no event earlier than twenty (20) days prior to the date the
same first becomes due, as additional rent, any occupancy tax or rent tax
hereafter enacted (to the extent related to the demised premises), if hereafter
required to be paid by Landlord, provided, such tax is in lieu of or in
substitution for the commercial rent occupancy tax currently paid by tenants
directly to the City of New York.
3.05. If the Escalation Rent Commencement Date is not the first day of a
Tax Year, or Operating Year, then the additional rent due hereunder for such Tax
Year or Operating Year shall be a proportionate share of said additional rent
for the entire Tax Year or Operating Year, said proportionate share to be based
upon the length of time that the Lease term will be in existence during such Tax
Year or Operating Year. Upon the date of any expiration or termination of this
Lease (except termination because of Tenant's default), whether the same be the
date hereinabove set forth for the expiration of the term or any prior or
subsequent date, a proportionate share of said additional rent for the Tax Year
or Operating Year during which such expiration or termination occurs shall be
due and payable by Tenant to Landlord as hereinafter set forth. The said
proportionate share shall be based upon the length of time that this Lease shall
have been in existence during such Tax Year or Operating Year. Prior to or
promptly after said expiration or termination, Landlord shall compute the
additional rent, if any, due from Tenant as aforesaid, which computations shall
either be based on amounts payable during such Tax Year or Operating Year or be
a reasonable good faith estimate based upon the most recent statements
theretofore prepared by Landlord and furnished to Tenant. If an estimate is
used, then Landlord shall cause statements to be prepared on the basis of
amounts payable during such Tax Year or Operating Year, and upon Landlord's
furnishing such statement to Tenant, Landlord and Tenant shall make appropriate
adjustments of amounts then owing.
3.06. Payments shall be made pursuant to this Article 3 notwithstanding
the fact that an Escalation Statement is furnished to Tenant after the
expiration of the term of this Lease.
-14-
PARK AVE ARMORY/NYLPC - LEASE PT I
3.07. In no event shall the fixed annual rent ever be reduced by operation
of this Article 3 and the rights and obligations of Landlord and Tenant under
the provisions of this Article 3 with respect to any additional rent or refunds
thereof shall survive the termination of this Lease, subject to the
apportionment of such additional rent set forth in Section 3.05 hereof.
3.08. Landlord's failure to render an Escalation Statement with respect to
any Tax Year or Operating Year, respectively, shall not prejudice Landlord's
right to thereafter render an Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year. Both Tenant's obligation
to pay escalation for any Tax Year or Operating Year during the term of this
Lease and Landlord's obligation to make any refunds to Tenant required under
this Article 3 shall survive the expiration or earlier termination of this
Lease. Notwithstanding the foregoing or the provisions of Sections 3.06 and 3.07
hereof, if Landlord shall have failed to xxxx Tenant for any additional rent due
under this Article 3 within two (2) years after the expiration of any Operating
Year or within two (2) years after the expiration of any Tax Year (or after the
expiration of the two (2) year period following Landlord's receipt of a tax xxxx
from the taxing authority for such Tax Year, whichever is later with respect to
any Tax Year), then Tenant shall have the right to give Landlord notice thereof,
and if Landlord shall fail to furnish to Tenant a billing for such unbilled
items within thirty (30) days after the giving of Tenant's notice, time being of
the essence with respect to such thirty (30) days, then thereafter Landlord
shall have waived its right to obligate Tenant to pay the amount of any such
unbilled items.
3.09. Each Escalation Statement shall be conclusive and binding upon
Tenant unless within seventy-five (75) days after receipt of such Escalation
Statement Tenant shall notify Landlord that it questions the correctness of such
Escalation Statement. Any dispute relating to any Escalation Statement shall be
resolved by arbitration pursuant to Article 38 hereof, which arbitration shall
be by three (3) arbitrators each of whom shall have at least ten (10) years'
experience (i) in the operation and management of office buildings in Manhattan
comparable to the Building, or (ii) as either a Certified Public Accountant or a
real estate attorney, in either case practicing in a recognized New York City
accounting or law firm of at least twenty (20) members specializing in the
accounting or legal aspects of leasing and operation of office buildings in
Manhattan. Pending the determination of such dispute, Tenant shall pay
additional rent in accordance with the Escalation Statement that Tenant is
disputing, without prejudice to Tenant's position. In the event that it shall be
determined in such arbitration that Tenant overpaid additional rent under this
Article 3. then Landlord shall, within twenty (20) days after such
determination, refund to Tenant the amount of such overpayment with interest at
the Prime Rate from the date paid to the date refunded, and if Landlord shall
fail timely to make such payment to
-15-
PARK AVE ARMORY/NYLPC - LEASE PT I
Tenant, then Tenant may, upon written notice to Landlord, credit the amount of
Tenant's overpayment together with such interest against subsequent payments of
fixed annual rent and additional rent under this Article 3 next becoming due
hereunder. If such overpayment exceeds twelve (12%) percent of the amount which
should have been paid, then Landlord shall reimburse Tenant for the reasonable
cost of Tenant's audit and the portion of such overpayment which exceeds 12%
shall bear interest at the Interest Rate in lieu of the Prime Rate. If such
overpayment shall exceed twenty (20%) percent of the amount which should have
been paid or if such overpayment shall, for more than two (2) Operating Years,
exceed twelve (12%) percent of the amount which should have been paid, then, in
either such event, the cost of such arbitration shall be borne by Landlord. If
it shall be determined in any such arbitration that Landlord has not overstated
Tenant's payments under Section 3.02A hereof, then the cost of such arbitration
shall be borne by Tenant.
3.10. If, for any Tax Year beginning on or after July 1, 1994, the Tenant
named herein or an "Affiliate" or "Successor," as defined in Article 11 hereof,
which Affiliate or Successor is then in occupancy of at least two (2) full
floors of the Building (hereinafter collectively in this Section 3.10 referred
to as "Tenant") shall request from Landlord in writing on or before January 15
of the Tax Year preceding the Tax Year in question Landlord's determination as
to whether Landlord intends to file an application with the Tax Commission of
the City of New York (the "Tax Commission"), or any successor body which has the
power to fix or review assessed valuations, for reduction of the assessed
valuation of the Building and/or the Land (any such application being herein
called a "Protest"), then Landlord shall notify Tenant, on or before February 15
of such preceding Tax Year, of such intention or of whether to the best of
Landlord's knowledge another tenant in the Building intends to file any such
Protest. If Landlord elects not to file, Landlord may provide Tenant together
with such notice a reasonable explanation as to why Landlord believes that such
Protest will not result in a significant decrease in the assessment of the Land
and the Building (any such Protest herein defined as "ill-advised"). If Landlord
elects not to file such Protest, Tenant shall then have the right, at Tenant's
sole cost and expense (but subject and subordinate to the right of any other
tenant in the Building to file any such Protest by reason of a right previously
given to such tenant and currently existing in such tenant's current lease), to
file such a Protest provided and upon condition that Tenant gives notice thereof
to Landlord not more than twenty (20) days after Landlord has so notified Tenant
of Landlord's intention and provided further that Tenant shall deliver to
Landlord duplicate copies of all documents to be submitted to the Tax Commission
in connection with such Protest at least four (4) business days prior to making
such submission to the Tax Commission. Landlord agrees to reasonably cooperate
with Tenant in connection with the filing of such Protest by Tenant in
accordance with Tenant's rights hereunder. Landlord further agrees that if
-00-
XXXX XXX XXXXXX/XXXXX - LEASE PT I
the determination rendered in such Protest is unsatisfactory to Tenant in its
reasonable judgment, Tenant shall notify Landlord thereof and Tenant shall have
the right, at Tenant's sole cost and expense, to appeal such determination by
commencing and prosecuting real estate tax certiorari proceedings (herein called
"Tax Cert") using counsel of Tenant's choice reasonably satisfactory to
Landlord. All of the rights and obligations of Landlord and Tenant hereunder
with respect to a Protest shall also apply to a Tax Cert, including without
limitation the submission to Landlord of all documents and instruments at least
4 Business Days prior to submission in such Tax Cert. Tenant agrees that all
costs and expenses incurred in connection with such Protest and such Tax Cert
shall be paid by Tenant (and Tenant shall be permitted to recoup Tenant's
reasonable attorneys' fees expended in connection with such Protest and Tax Cert
from the amount of any refund, if any, resulting from such Protest or Tax Cert)
and Tenant shall indemnify Landlord for all costs, expenses (including
reasonable attorneys' fees), damages, losses, claims and liabilities incurred by
Landlord to unrelated third parties arising from such Protest and Tax Cert. In
addition, in the event that the assessed valuation of the Building and the Land
for the Tax Year which is the subject of Tenant's contest shall be increased by
reason of such Protest or such Tax Cert, then Tenant shall pay to Landlord, as
additional rent hereunder, the incremental amount of the increase in Taxes
resulting from such increase in such assessed valuation in such Tax Year and in
any Tax Year thereafter during the term of this Lease to the extent that such
increase in later years is due to such increase in the assessed valuation and,
in any event, only until such time as the increase in the assessed valuation
would have occurred even in the absence of Tenant's contest.
ARTICLE 4
ELECTRICITY
4.01. (a) Landlord shall furnish to Tenant at the electric closet
servicing each floor of the demised premises by means of Building system
feeders, risers and wiring such electric energy as Tenant shall from time to
time require for the conduct of Tenant's business at the demised premises not
exceeding, however, the following electric capacity (herein called the "Provided
Capacity"):
(i) eight (8) xxxxx demand load per rentable square foot on the
seventh (7th) floor (exclusive of electric for the air-conditioning
equipment servicing such floor);
(ii) ten (10) xxxxx demand load per rentable square foot on the
eighth (8th) floor (exclusive of electric for the air conditioning
equipment servicing such floor); and
-17-
PARK AVE ARMORY/NYLPC - LEASE PT I
(iii) eight and one-half (8.5) xxxxx demand load per rentable square
foot on the portion of the ninth (9th) floor comprising the demised
premises (exclusive of electric for the air-conditioning equipment
servicing such floor).
Such electricity shall be available for distribution through the demised
premises at Tenant's cost and expense, and Landlord shall give Tenant reasonable
access to areas on the 9th floor outside of the portion of the demised premises
located thereon to perform such distribution. Tenant shall be permitted to
reallocate among the floors of the demised premises the aggregate amount of the
Provided Capacity in amounts of electric capacity allocable to each floor which
are different from the allocation set forth in the foregoing clauses (i), (ii)
and (iii) provided that any and all work necessary to effectuate such different
allocations shall be Alterations to be performed by Tenant, at Tenant's sole
cost and expense, in accordance with the provisions of this Lease including
without limitation Article 6 hereof but Landlord will not unreasonably withhold
or delay its consent thereto even though such work affects a Building System.
Landlord covenants and represents that the feeders, risers and wiring serving
the demised premises shall be capable of supplying the Provided Capacity to the
demised premises in the allocations set forth in clauses (i), (ii) and (iii)
above, subject to the provisions of Schedule C annexed hereto. Submeters will be
installed by Landlord prior to the date that Tenant takes occupancy of the
demised premises for the conduct of its business to measure Tenant's consumption
of electric energy in the demised premises.
(b) Tenant agrees that electric current will be supplied by Landlord
to the demised premises and Tenant will pay Landlord or Landlord's designated
agent, as additional rent for the supplying of electric current, the amount
computed in accordance with the provisions of this Section 4.01, which amount
shall be determined based on Tenant's actual consumption of electricity at the
demised premises as measured by submeters. The amount to be charged to Tenant by
Landlord per "KW" and "KWHR" pursuant to this Article for electricity consumed
within the demised premises, shall be 103% of the amount at which Landlord from
time to time purchases each KW and KWHR of electricity for the same period from
the utility company, which amount (herein, as adjusted from time to time, called
"Landlord's Rate") shall be determined by dividing the cost established by said
utility company (averaged separately for KWs and KWHRs) during each respective
billing period of such utility company by the number of KWs and KWHRs consumed
by the Building appearing on the utility company invoice for such period. In no
event shall the additional rent billed to Tenant pursuant to this Article 4 for
submetered electricity supplied to the demised premises be less than Landlord's
actual
-18-
PARK AVE ARMORY/NYLPC - LEASE PT I
cost therefor. Where more than one meter measures the service of Tenant, the
service rendered through all such meters shall be aggregated and treated as if
there were only one meter and billed in accordance with the rates herein. Bills
therefor shall be rendered at such times as Landlord may elect but not more
frequently than once a month and the amount shall be deemed to be, and be paid
as, additional rent. During the period of Tenant's construction occurring prior
to the installation of meters, Tenant will pay to Landlord a flat charge for
electricity of seventy cents ($0.70) per rentable square foot per annum. Such
charge shall be payable monthly as additional rent hereunder within ten (10)
days after demand therefor by Landlord.
(c) Landlord shall not in any way be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if either
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements except to the extent caused by
the gross negligence or wilful misconduct of Landlord or its agents or
employees. Tenant agrees that at all times its installations and use of electric
current shall never exceed the capacity of existing feeders to the Building or
the risers or wiring installations serving the demised premises. If Tenant
requests additional power in addition to the Provided Capacity, then if and to
the extent, in Landlord's good faith judgment, allocated power is available in
the Building for use by Tenant without resulting in allocation to Tenant of a
disproportionate amount of allocated power, Landlord shall, at Tenant's cost and
expense, provide and install in conformity with law any additional riser or
risers and/or any and all switch or switches to connect additional power to the
demised premises, and Tenant agrees to pay Landlord a connection charge for each
additional ampere of power or portion thereof so supplied to the demised
premises as set forth in the following sentence, together with the reasonable
cost of installing such additional risers, switches and related equipment. As of
the date hereof, Landlord's connection charge for each additional ampere is
$70.00 per ampere, subject to increase from time to time in the same percentage
as the increase in the "CPI", as defined in Article 22 hereof, shall increase
from year to year. All of the aforesaid costs and expenses are chargeable and
collectible as additional rent and shall be paid by Tenant to Landlord within
twenty (20) days after rendition of any xxxx or statement to Tenant therefor.
(d) Landlord may discontinue any of the aforesaid services upon
sixty (60) days notice to Tenant without being liable to Tenant therefor or
without in any way affecting this Lease or the liability of Tenant hereunder or
causing a diminution of rent and the same shall not be deemed to be a lessening
or diminution of services within the meaning of any law, rule or regulation now
or hereafter enacted, promulgated or issued, provided that either (i) such
discontinuance is required pursuant to any Legal Requirement or regulation of
the public utility company furnishing electric energy to the
-19-
PARK AVE ARMORY/NYLPC - LEASE PT I
Building or (ii) Landlord discontinues furnishing electric energy to more than
two-thirds (2/3) of the rentable office space in the Building (including the
demised premises), and provided further that such sixty (60) day period shall be
extended for so long as shall be reasonably necessary for Tenant to obtain
electricity directly from the public utility company (except to the extent such
inability to obtain direct electricity is due to reasons solely within the
control of Tenant). In the event Landlord gives such notice of discontinuance,
Landlord shall permit Tenant to receive such service direct from the public
utility corporation upon condition that Landlord shall entirely segregate
Tenant's portion of Landlord's entire electrical system so that the same is in
no way dependent upon or connected to the remaining circuits or distribution
facilities of Landlord or any other tenant including, without limitation,
arranging for the installation of direct meters to measure the consumption of
electricity in the demised premises. The costs of segregating Tenant's
electrical system shall be borne equally by Landlord and Tenant and Tenant's
portion shall be additional rent hereunder if Landlord shall give such notice
pursuant to any Legal Requirement or regulation of the public utility company
furnishing electric energy to the Building. If Landlord shall voluntarily
discontinue furnishing such electric service, such costs shall be borne entirely
by Landlord.
4.02. Tenant shall make no electrical installations, alterations, or
additions (which adversely affect the Building's electrical system outside the
demised premises) without the prior written consent of Landlord in each
instance, which consent will not be unreasonably withheld. Tenant will comply
with the General Rules, Regulations, Terms and Conditions applicable to Service,
Equipment, Wiring and Changes in Requirements in accordance with the
requirements of the public utility supplying electricity to the Building in the
same manner as if Tenant were serviced directly by such utility. If any tax is
imposed upon Landlord's receipt from the sale or resale of electrical energy to
Tenant by any Federal, State or Municipal Authority, Tenant agrees that, where
permitted by law, Tenant's pro-rata share of such taxes shall be passed on to,
and included in the xxxx of, and paid by Tenant to Landlord.
ARTICLE 5
USE
5.01. The demised premises shall be used solely as and for executive,
administrative and general offices and for any other lawful uses incidental to
their use as general, administrative and executive offices, including, without
limitation, publishing company purposes, the preparation of layouts and art work
(but in no event to include printing of any nature other than computer word
processing) and the operation of Tenant's computers, data processing, word
processing and other business machines, and for no other purposes.
-20-
PARK AVE ARMORY/NYLPC - LEASE PT I
5.02. Tenant shall not use or permit the use of the demised premises or
any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in any unlawful manner or in violation of the Certificate of
Occupancy, if any, for the demised premises or the Building, and Tenant shall
not suffer or permit the demised premises or any part thereof to be used in any
manner or anything to be done therein or anything to be brought into or kept
therein which, in the reasonable judgment of Landlord, shall impair the
character, reputation or appearance of the Building, impair or interfere with
any of the Building services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building or the demised premises, or
impair or interfere with the use of any of the other areas of the Building by,
or create a nuisance to any of the other tenants or occupants of the Building.
Tenant further agrees that it will not commit any act of waste upon the demised
premises. Landlord agrees that any certificate of occupancy which may be
procured for the Building will permit office use purposes with respect to the
demised premises.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises (other than decorative work in the
nature of, without limitation, interior wall covering, carpeting, picture
hanging and cosmetic changes all of which shall not require Landlord's consent)
without Landlord's prior written consent and only by contractors or mechanics
first approved by Landlord, which approval as to such contractors and mechanics
Landlord agrees not to unreasonably withhold or delay. (Such work, alterations,
installations, additions and improvements, other than decorative work, are
hereinafter called "Alterations".) All Alterations and decorative work shall be
done at Tenant's sole expense and in compliance with the Building's Rules and
Regulations for Alterations, a copy of which is attached hereto as Exhibit G.
Any Alterations which may be undertaken by or for the account of Tenant to
prepare, equip, decorate and furnish the demised premises for Tenant's initial
occupancy (such work hereinafter sometimes called "Tenant's Work") and any
future Alterations in the demised premises shall be effected solely in
accordance with plans and specifications first approved in writing by Landlord.
Tenant shall reimburse Landlord promptly upon demand for any reasonable out of
pocket costs and expenses incurred by Landlord to unrelated third parties in
connection with Landlord's review of such Tenant's plans and specifications.
Landlord will not unreasonably withhold or delay its consent
-21-
PARK AVE ARMORY/NYLPC - LEASE PT I
to requests for Alterations (provided they will not affect the outside of the
Building or adversely affect its (i) structural elements or (ii) electrical,
HVAC, plumbing or mechanical systems, the provisions of this parenthetical
proviso clause being hereinafter called the "Alterations Proviso"), and Landlord
agrees not to unreasonably withhold or delay its approval of the plans and
specifications for such Alterations. In the event that Landlord shall disapprove
Tenant's request for such consent to such Alterations and/or such plans and
specifications, Landlord's response shall include the reasons for such
disapproval. In the event that Landlord fails to respond to Tenant's request for
such consent to such plans and specifications within ten (10) Business Days,
Landlord shall be deemed to have consented to such request, provided Tenant's
request expressly references this Section 6.01 and such ten (10) Business Day
period and the consequences of Landlord's failure to respond within such ten
(10) Business Day period. Landlord hereby consents to Alterations for which the
estimated cost of labor and materials shall not exceed $50,000, which amount
shall be increased every three (3) years by the same percentage as the
percentage amount of increase in CPI as of such third anniversary over the CPI
as of the date of this Lease (either individually or in the aggregate with other
such Alterations being constructed at the same time) provided that with respect
to such Alterations the conditions of the Alterations Proviso are satisfied and
provided further that (i) no New York City Buildings Department BN application
shall be required in connection therewith, (ii) Tenant shall give Landlord
written notice thereof as well as copies of the plans and specifications
therefor, if any, at least ten (10) days prior to performing same, and (iii) any
such Alterations shall otherwise be performed in compliance with the provisions
of this Article 6.
Any such Alterations and decorative work shall be performed in accordance
with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workerlike manner.
2. In the event Tenant shall employ any contractor to do in the
demised premises any work permitted by this Lease, such contractor and any
subcontractor shall agree to employ only such labor as will not result in
jurisdictional disputes or strikes or result in causing disharmony with
other workers employed at the Building. Tenant will inform Landlord in
writing of the names of any contractor or subcontractor Tenant proposes to
use in the demised premises at least five (5) Business Days prior to the
beginning of work by such contractor or subcontractor.
3. All such work shall be effected in compliance with all applicable
laws, ordinances, rules and regulations of governmental bodies having or
asserting jurisdiction in the demised premises.
-22-
PARK AVE ARMORY/NYLPC - LEASE PT I
4. Tenant shall keep the Building and the demised premises free and
clear of all liens for any work or material claimed to have been furnished
to Tenant or to the demised premises on Tenant's behalf, and all work to
be performed by Tenant shall be done in a manner which will not
unreasonably interfere with or disturb other tenants or occupants of the
Building.
5. During the progress of the work to be done by Tenant, said work
shall be subject to inspection by representatives of Landlord (at
Landlord's sole cost and expense) who shall be permitted access to the
demised premises and the opportunity to inspect, at all reasonable times
and upon reasonable prior notice (which may be oral), but this provision
shall not in any way whatsoever create any obligation on Landlord to
conduct such an inspection.
6. Prior to commencement of any work, Tenant shall furnish to
Landlord certificates evidencing the existence of:
(i) worker's compensation insurance covering all persons
employed for such work; and
(ii) reasonable comprehensive general liability and property
damage insurance naming Landlord, its mortgagees, lessors and
managing agents as to whom Landlord shall have given Tenant prior
notice and Tenant as insureds, with coverage of at least $3,000,000
single limit.
7. Before commencing any work (which costs in excess of $300,000
with respect to work to be performed on any one floor of the demised
premises, or in excess of $450,000 in the aggregate with respect to work
on more than one floor of the demised premises), Tenant shall furnish to
Landlord a completion bond or such other security for completion thereof
and payment therefor as shall be reasonably satisfactory to Landlord and
in an amount which will be 110% of Tenant's reasonable estimate of the
cost of performing such work. With respect to work costing less than the
amounts set forth in the preceding sentence but in excess of $50,000.00,
Tenant shall upon request from Landlord, submit to Landlord evidence
reasonably satisfactory to Landlord that Tenant has funds available
sufficient to pay for such work. Notwithstanding the foregoing, such bond
or other security shall not be required from the Tenant named herein or
any successor thereto described in Section 11.02 hereof with respect to
Tenant's Work or with respect to future Alterations in the demised
premises provided that in the case of a future Alteration or other work
which shall cost in excess of the amounts set forth in the first
-23-
PARK AVE ARMORY/NYLPC - LEASE PT I
sentence of this clause (7), the Tenant named herein or said successor
shall furnish to Landlord reasonable written evidence that Tenant has
sufficient funds available for completion thereof. All dollar amounts set
forth in this Paragraph 7 shall be subject to annual increase on each
anniversary of the Commencement Date in the same percentage as the annual
increase in the CPI, as defined in Section 22.05 hereof.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
6.02. Any mechanic's lien, filed against the demised premises or the
Building for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant at its expense within
thirty (30) days after notice to Tenant (whether or not given by Landlord) of
such filing, by payment, filing of the bond required by law or otherwise.
6.03. All Alterations and decorative work made and installed by Landlord,
including without limitation any work referred to in Article 2 hereof, shall, at
the end of the term of this Lease, be the property of Landlord and shall be
surrendered with the demised premises as a part thereof at the end of the term
of this Lease.
6.04. All Alterations and decorative work made and installed by Tenant, or
at Tenant's expense, upon or in the demised premises which are of a permanent
nature and which cannot be removed without damage to the demised premises or
Building shall become and be the property of Landlord, and shall remain upon and
be surrendered with the demised premises as a part thereof at the end of the
term of this Lease, except that Landlord shall have the right and privilege at
any time up to six months prior to the expiration of the term of this Lease to
serve notice upon Tenant that any of such Alterations which constitute
"Specialty Alterations", as hereinafter defined, shall be removed and, in the
event of service of such notice, Tenant will, at Tenant's own cost and expense,
remove the same in accordance with such request, and repair and restore the area
of the demised premises affected by such removal. For purposes hereof, the term
"Specialty Alterations" shall mean those items which are not customarily
installed in an ordinary office installation and the removal of which is
substantially costly, such as vaults, auditoria, kitchens, private lavatories,
reinforced flooring, and the like (other than (i) one internal staircase to be
installed by Tenant between the 7th and 8th floors in the demised premises as
part of Tenant's Work, (ii) the internal executive
-24-
PARK AVE ARMORY/NYLPC - LEASE PT I
bathroom to be installed by Tenant in the demised premises as part of Tenant's
Work, and (iii) any raised computer flooring, supplemental HVAC units and
built-in cabinets permitted to be installed in the demised premises).
6.05. Where furnished by or at the expense of Tenant, all furniture,
furnishings and trade fixtures, and any other movable property shall remain the
property of Tenant which may, at its option, remove all or any part thereof at
any time prior to the expiration of the term of this Lease. In case Tenant
shall decide not to remove any part of such property, Tenant shall notify
Landlord in writing not less than three (3) months prior to the expiration of
the term of this Lease, specifying the items of property which it has decided
not to remove. If, within thirty (30) days after the service of such notice,
Landlord shall request Tenant to remove any of the said property, Tenant shall,
at its expense, remove the same and repair any damage caused by such removal. As
to such property which Landlord does not request Tenant to remove, the same
shall be, if left by Tenant, deemed abandoned by Tenant and thereupon the same
shall become the property of Landlord.
6.06. If any Alterations, decorative work or other property which Tenant
shall have the right to remove or be requested by Landlord to remove as provided
in Sections 6.04 and 6.05 hereof (herein in this Section 6.06 called the
"property") are not removed on or prior to the expiration of the term of this
Lease, Landlord shall have the right to remove the property and to dispose of
the same without accountability to Tenant and at the sole cost and expense of
Tenant. In case of any damage to the demised premises or the Building resulting
from the removal of the property Tenant shall repair such damage or, in default
thereof, shall reimburse Landlord for Landlord's cost in repairing such damage.
This obligation shall survive any termination of this Lease. The mere presence
of Tenant's property in the demised premises after the expiration of the term
hereof shall not constitute Tenant's holding over in the demised premises.
6.07. Tenant shall keep records of Tenant's Alterations costing in excess
of $100,000, and of the cost thereof for at least five (5) years after the
performance thereof. Tenant shall, during such five (5) year period and within
30 days after demand by Landlord, furnish to Landlord copies of such records and
cost if Landlord shall require same in connection with any proceeding to reduce
the assessed valuation of the Building, or in connection with any proceeding
instituted pursuant to Article 16 hereof.
6.08. Landlord shall, at Tenant's written request, cooperate in all
reasonable respects with Tenant in the performance by Tenant of Tenant's
Alterations, including, without limitation, executing New York City Buildings
Department applications and other documents required by Legal Requirements to
-25-
PARK AVE ARMORY/NYLPC - LEASE PT I
be executed by Landlord, and Landlord shall instruct its employees and
contractors to render such assistance and to cooperate with Tenant's employees,
representatives and contractors provided that to the extent that Landlord shall
incur any reasonable out-of-pocket expense to unrelated third parties in so
cooperating or in rendering such assistance, Tenant shall reimburse Landlord for
such expense as additional rent hereunder.
ARTICLE 7
REPAIRS
7.01. Landlord, at its own cost and expense (subject to recoupment
pursuant to Article 3 hereof), shall keep and maintain the public portions of
the Building and the systems and facilities of the Building serving the demised
premises (to the point of connection where the same enter the demised premises,
or in the case of the electric system, to the electric closet on each floor of
the demised premises except with respect to the Air-Cooled Units and the
Water-Cooled Unit as to which the extent of Landlord's maintenance obligations
shall be governed by the provisions of clause (ii) of subsection 21.01(a)
hereof) in good working order, condition and repair and shall make all repairs
thereto structural and otherwise, interior and exterior, as and when needed, to
the extent that such items affect the use, occupancy or enjoyment of the demised
premises for the conduct of Tenant's business, and Landlord shall make
structural repairs to the demised premises, except that nothing contained in the
foregoing shall obligate the Landlord to make those repairs for which Tenant is
specifically responsible pursuant to any of the provisions of this Lease. Tenant
shall take good care of the demised premises and shall, at its sole cost and
expense, make such non-structural repairs to the demised premises and the
fixtures and appurtenances therein as are necessitated by the act, omission,
occupancy or negligence of Tenant or by the use of the demised premises in a
manner contrary to the purposes for which same are leased to Tenant, as and when
needed to preserve them in good working order and condition. Notwithstanding the
foregoing, all damage or injury to the demised premises and its fixtures,
equipment and appurtenances whether requiring structural or non-structural
repairs, caused by or resulting from the negligence or willful misconduct of
Tenant, its servants, employees, invitees, contractors or licensees, shall be
repaired promptly by Tenant at its sole cost and expense. Tenant, at its
expense, shall promptly replace all damaged or broken doors and glass (other
than exterior windows) in and about the demised premises unless such damage was
caused by Landlord or its agents, employees or contractors, and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the demised premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall
-26-
PARK AVE ARMORY/NYLPC - LEASE PT I
promptly make, at Tenant's expense, all repairs in or to the demised premises
for which Tenant is responsible hereunder, and any repairs required to be made
by Tenant hereunder to the mechanical, electrical, sanitary, heating,
ventilating, air-conditioning or other systems of the Building shall be
performed only by contractor(s) approved by Landlord, such approval not to be
unreasonably withheld or delayed. Any other repairs in or to the Building
outside the demised premises and the facilities and systems of the Building for
which Tenant is responsible, shall be performed by Landlord at a reasonable cost
and at Tenant's expense. Except as otherwise provided in Section 9.05 hereof,
all damage or injury to the demised premises and to its fixtures, appurtenances
and equipment or to the Building or to its fixtures, appurtenances and equipment
caused by Tenant moving property into or out of the Building or by installation
or removal of furniture, fixtures or other property, shall be repaired, restored
or replaced promptly by Tenant at its sole cost and expense, which repairs,
restorations and replacements shall be in quality and class substantially equal
to the original work or installations. If Tenant fails to make such repairs,
restoration or replacements within a reasonable period of time after demand is
made therefor by Landlord, the same may be made by Landlord at the expense of
Tenant and such expense shall be collectible as additional rent and shall be
paid by Tenant within 15 days after rendition of a xxxx therefor.
The exterior walls of the Building, the portions of any window xxxxx
outside the windows, the windows, the fire stairs, any terraces or Building set
back areas, utility closets and any shafts passing through the floor on which
the demised premises are located are not part of the premises demised by this
Lease, and Landlord reserves all rights to such parts of the Building.
7.02. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which is allowed by law.
7.03. Business machines and mechanical equipment used by Tenant which
cause vibration, noise, cold or heat that is transmitted to the Building
structure or to any leased space to such a degree as to be objectionable to
Landlord or to any other tenant in the Building in Landlord's reasonable
judgment shall be placed and maintained by Tenant at its expense in settings of
cork, rubber or spring type vibration eliminators sufficient to absorb and
prevent such vibration or noise, or prevent transmission of such cold or heat.
The parties hereto recognize that the operation of elevators, air conditioning
and heating equipment will cause some vibration, noise, heat or cold which may
be transmitted to other parts of the Building and demised premises. Landlord
shall be under no obligation to endeavor to reduce such vibration, noise, heat
or cold provided that the same does not exceed the level thereof generally
maintained in office buildings comparable to the Building.
-27-
PARK AVE ARMORY/NYLPC - LEASE PT I
7.04. Except as otherwise specifically provided in this Lease, there shall
be no allowance to Tenant for a diminution of rental value and no liability on
the part of Landlord by reason of inconvenience, annoyance or injury to business
arising from the making of any repairs, alterations, additions or improvements
in or to any portion of the Building or the demised premises or in or to
fixtures, appurtenances or equipment thereof.
7.05. Landlord shall use its reasonable efforts to minimize interference
with Tenant's access to and use and occupancy of the demised premises in making
any repairs, alterations, additions or improvements; provided, however, that
Landlord shall have no obligation to employ contractors or labor at so-called
overtime or other premium pay rates or to incur any other overtime costs or
expenses whatsoever, except that Landlord, at its expense, shall employ
contractors or labor at so-called overtime or other premium pay rates to remedy
any condition that either (i) threatens the health or safety of any occupant of
the demised premises or (ii) materially adversely interferes with Tenant's
ability to conduct its business at the demised premises. In all other cases, at
Tenant's request, Landlord shall, upon Tenant's written request therefor,
employ, if reasonably practicable, contractors or labor at so-called overtime or
other premium pay rates and Tenant shall be liable as additional rent hereunder
for the excess costs attributable thereto and shall pay same to Landlord within
fifteen (15) days after demand therefor.
ARTICLE 8
REQUIREMENTS OF LAW
8.01. (a) Tenant, at Tenant's sole cost and expense, shall comply with all
laws, orders and regulations of federal, state, county and municipal
authorities, and with any direction of any public officer or officers, pursuant
to law, which shall impose any violation, order or duty upon Landlord or Tenant
with respect to the demised premises, or the use or occupation thereof except
that Tenant shall not be responsible for making any alterations in the demised
premises in order to comply with any Legal Requirement which is applicable to
ordinary "office" use of the demised premises as opposed to Tenant's particular
manner of use of the demised premises, unless such alteration (i) is required as
a result of the making of any alteration by, or on behalf of, Tenant pursuant to
Articles 6 and/or 44 hereof, or (ii) arises out of, or is in connection with,
the making of, or constitutes a modification of, any alteration previously made
by or, on behalf of, Tenant. Landlord shall be responsible for compliance with
all other Legal Requirements which affect Tenant's use and occupancy of the
demised premises and which are not the obligation of Tenant under this Lease.
-00-
XXXX XXX XXXXXX/XXXXX - LEASE PT I
(b) Notwithstanding anything to the contrary in the Lease, Tenant
shall be responsible for the cost of all present and future compliance with the
Disabilities Act, as defined in Section 22.04 hereof, in the demised premises,
except only to the extent that Landlord is responsible for such compliance only
(i) within the core bathrooms in the demised premises (but only to the extent
expressly set forth as part of Landlord's Work on Exhibit C hereof) and (ii)
with respect to the elevator call panels located on the seventh (7th), eighth
(8th) and ninth (9th) floor elevator lobbies of the Building.
(c) Without limiting the generality of the foregoing, tenant, at
Tenant's expense, shall cause the demised premises to be fully sprinklered in
accordance with the requirements of the Building Code of The City of New York
and all applicable rules and regulations pertaining thereto and Landlord shall
connect same to the Building system, such connection to be at Landlord's cost
and expense with respect to Tenant's Work, as set forth in subsection 44.02(g)
hereof, including without limitation the cost to connect Tenant's Pre Action
Sprinkler, the "Air-Cooled Units" defined in Section 21.01(a) hereof and
supplemental air-cooled HVAC units installed by Tenant as part of Tenant's Work,
it being understood and agreed, however, that Landlord shall have no liability
to maintain Tenant's Pre-Action Sprinkler or such supplemental HVAC units.
(d) In the event that there shall be discovered in the demised
premises (including, without limitation, any additional space included within
the demised premises pursuant to Article 46 or 47 hereof) or the Basement Space
any asbestos-containing materials which are required by Legal Requirements to be
removed, encapsulated or abated for any of the following reasons: (i) in order
to obtain a New York City Form ACP-5 in connection with the performance of
Alterations permitted to be performed hereunder by Tenant, (ii) by reason of
Landlord's failure to remove asbestos in accordance with Landlord's asbestos
report, a copy of which has been previously delivered to Tenant or in accordance
with subsection 45.01(a), 46.02(v)(A) or 47.09(A) hereof, or (iii) by reason of
a future change in Legal Requirements pursuant to which the mere presence of
asbestos-containing materials in the demised premises would give rise to the
obligation to remove, xxxxx or encapsulate same, then provided that such
asbestos-containing materials shall not have been introduced therein by Tenant
or anyone claiming under Tenant, Landlord shall be responsible for, and shall
perform, such removal, encapsulation or abatement.
8.02. Notwithstanding the provisions of Section 8.01 hereof, Tenant, at
its own cost and expenses in its name and/or (whenever necessary) Landlord's
name, may contest, in any manner permitted by law (including appeals to a court,
or governmental department or authority having
-29-
PARK AVE ARMORY/NYLPC - LEASE PT I
jurisdiction in the matter), the validity or the enforcement of any governmental
act, regulation or directive with which Tenant is required to comply pursuant to
this Lease, and may defer compliance therewith provided that:
(a) such non-compliance shall not subject Landlord to criminal
prosecution or subject the Land and/or Building to lien or sale:
(b) such non-compliance shall not be in violation of the Ground
Lease, as defined in Article 25 hereof;
(c) Tenant shall first deliver to Landlord a surety bond issued by a
surety company of recognized responsibility, or other security reasonably
satisfactory to Landlord in an amount reasonably satisfactory to Landlord,
indemnifying and protecting Landlord against any loss or injury by reason of
such non-compliance; provided, however, that such surety bond or other security
shall be required from the Tenant named herein or any successor thereto
described in Section 11.02 hereof only to the extent that same would be required
under paragraph 7 of Section 6.01 hereof; and
(d) Tenant shall promptly and diligently prosecute such contest.
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not cause, do, or permit to be done any act or thing,
other than the same which are consistent with customary office use, upon the
demised premises, which will invalidate or be in conflict with New York standard
fire insurance policies covering the Building, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall subject Landlord to any liability or responsibility for injury to
any person or persons or to property by reason of any business or operation
being carried on within the demised premises.
9.02. If, as a result of any act or omission by Tenant (other than office
use in a customary manner) or violation of this Lease, the rate of fire
insurance applicable to the Building shall be increased to an amount
-30-
PARK AVE ARMORY/NYLPC - LEASE PT I
higher than it otherwise would be, Tenant shall reimburse Landlord for all
increases of Landlord's fire insurance premiums so caused; such reimbursement to
be additional rent payable upon the first day of the month following any outlay
by Landlord for such increased fire insurance premiums. In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or "make-up" of
rates for the Building or demised premises issued by the body making fire
insurance rates for the demised premises, shall be presumptive evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to the demised premises.
9.03. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain or snow or leaks from any part of the Building, or
from the pipes, appliances or plumbing works or from the roof, street or
subsurface or from any other place or by dampness or by any other cause of
whatsoever nature, unless any of the foregoing shall be caused by or due to the
negligence of Landlord, its agents, servants, or employees.
9.04. Landlord or its agents shall not be liable for any damage which
Tenant may sustain, if at any time any window of the demised premises is broken,
or temporarily (restricted to less than 35% of the windows of the demised
premises, if temporary) or permanently closed, darkened or bricked up for any
reason whatsoever (other than a temporary closing, darkening or bricking up by
reason of a purely arbitrary act of Landlord without any business purpose)
provided that Landlord shall promptly repair any broken windows and shall use
reasonable efforts to minimize the duration of any such temporary closing,
darkening or bricking up which efforts shall be commercially reasonable but not
in excess of those which would be used by landlords of Manhattan office
buildings comparable to the Building, and Tenant shall not be entitled to any
compensation therefor or abatement of rent or to any release from any of
Tenant's obligations under this Lease, nor shall the same constitute an
eviction. Landlord agrees not to permanently close, darken or brick up windows
of the demised premises except to the extent required by Legal Requirements,
provided, however, that in the event that more than fifty (50%) percent of the
windows of the demised premises (other than lot line windows) are permanently
bricked up pursuant to Legal Requirements, Tenant may elect, at Tenant's option,
to terminate this Lease, by written notice (hereinafter called the "Termination
Notice") given to Landlord not more than sixty (60) days after said windows are
bricked up, and such termination shall be effective on the date selected by
Tenant in the Termination Notice which date shall not be less than thirty (30)
and not more than one hundred eighty (180) days after the date of the
Termination Notice. In the event Tenant does not send the Termination Notice to
Landlord on or before sixty (60) days have elapsed from the date that more than
fifty (50%) percent of the windows of the demised premises are permanently
bricked up pursuant to Legal Requirements,
-31-
PARK AVE ARMORY/NYLPC - LEASE PT I
Tenant's right to terminate this Lease pursuant to the preceding sentence shall
be deemed null and void and deleted from this Lease. If this Lease shall be
terminated during the Permanent Rental Period, as defined in subsection 10.02(b)
hereof, pursuant to this Section 9.04 by the exercise of the right of
termination granted to Tenant hereunder, then, in such event, Tenant shall pay
to Landlord, prior to, and as a condition of, the occurrence of such
termination, an amount equal to the Termination Fixed Rent, as defined in
subsection 10.02(b) hereof, as of the date of such termination, subject to the
provisions of subsection 41.14(b) hereof.
9.05. Subject to the waivers provided in Section 9.08 hereof, Tenant shall
reimburse Landlord for all reasonable out-of-pocket expenses, damages or fines
incurred or suffered by Landlord, by reason of any breach, violation or
non-performance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant except
as provided in Section 6.05 of this Lease, or by reason of or arising out of the
negligence or wilful misconduct Tenant, or its agents, servants or employees, in
the use or occupancy of the demised premises. Subject to the provisions of
Section 8.02 hereof, where applicable, Tenant shall have the right, at Tenant's
own cost and expense, to participate in the defense of any action or proceeding
brought against Landlord, and in negotiations for settlement thereof if,
pursuant to this Section 9.05, Tenant would be obligated to reimburse Landlord
for expenses, damages or fines incurred or suffered by Landlord.
9.06. Tenant shall give Landlord notice in case of fire or accidents in
the demised premises promptly after Tenant is aware of such event.
9.07. Tenant agrees to look solely to Landlord's estate and interest in
the Land and Building, or the lease of the Building, or of the Land and
Building, and the demised premises (and the proceeds of insurance applicable
thereto to the extent same are not applied to the repair and restoration of the
Building), for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord, in the event of any liability by Landlord, and no other
property or assets of Landlord (or the partners or members thereof if Landlord
is other than an individual or corporation) shall be subject to levy, execution,
attachment, or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder, or Tenant's use and occupancy of the demised premises, or any
other liability of Landlord to Tenant.
-32-
PARK AVE ARMORY/NYLPC - LEASE PT I
9.08. The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the demised
premises, the Building and personal property, fixtures and equipment located
thereon or therein, pursuant to which the insurance companies waive subrogation
or consent to a waiver of right to recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, the parties will not make any claim against or seek to recover from
the other for any loss or damage to its property or the property of others
resulting from fire or other hazards covered by such fire and extended coverage
insurance, provided, however, that the release, discharge, exoneration and
covenant not to xxx herein contained shall be limited by and be coextensive with
the terms and provisions of the waiver of subrogation clause or endorsements or
clauses or endorsements consenting to a waiver of right of recovery. If the
payment of an additional premium is required for the inclusion of such waiver of
subrogation provision, each party shall advise the other of the amount of any
such additional premiums and the other party at is own election may, but shall
not be obligated to, pay the same. If such other party shall not elect to pay
such additional premium, the first party shall not be required to obtain such
waiver of subrogation provision. If either party shall be unable to obtain the
inclusion of such clause even with the payment of an additional premium, then
such party shall attempt to name the other party as an additional insured (but
not a loss payee) under the policy. If the payment of an additional premium is
required for naming the other party as an additional insured (but not a loss
payee), each party shall advise the other of the amount of any such additional
premium and the other party at is own election may, but shall not be obligated
to, pay the same. If such other party shall not elect to pay such additional
premium or if it shall not be possible to have the other party named as an
additional insured (but not loss payee), even with the payment of an additional
premium, then (in either event) such party shall so notify the first party and
the first party shall not have the obligation to name the other party as an
additional insured. Tenant acknowledges that Landlord shall not carry insurance
on and shall not be responsible for damage to, Tenant's personal property or
Specialty Alterations, and that Landlord shall not carry insurance against, or
be responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
9.09. Tenant covenants and agrees to provide on or before the Commencement
Date and to keep in force during the term hereof for the benefit of Landlord and
Tenant a paid-up comprehensive general liability insurance policy naming Tenant
as the insured and the following entities as additional insureds: Landlord,
Landlord's managing agent, lessors under superior leases and the holders of any
mortgages affecting the Land and/or Building (whose names and addresses shall
have been furnished to Tenant). Such policy shall cover any liability
whatsoever, occasioned by any occurrence on or about the
-33-
PARK AVE ARMORY/NYLPC - LEASE PT I
demised premises or any appurtenances thereto. Such policy is to be written by
good and solvent insurance companies reasonably satisfactory to Landlord, and
shall be in such limits as Landlord may reasonably require provided (i) such
limits do not exceed those customarily required from time to time by owners of
office buildings comparable to the Building and (ii) Landlord shall not increase
its requirements hereunder more frequently than once during each three-year
period of the term hereof. As of the date of this Lease, Landlord requires, and
Tenant shall keep in force, limits of liability thereunder of not less than the
amount of Three Million ($3,000,000) Dollars per occurrence for bodily or
personal injury (including death) and in the amount of Three Hundred Thousand
($300,000) Dollars in respect of property damage. Such insurance may be carried
under a blanket policy covering the demised premises and other locations of
Tenant, if any. Prior to the time such insurance is first required to be carried
by Tenant and thereafter, at least fifteen (15) days prior to the effective date
of any such policy, Tenant agrees to deliver to Landlord either a duplicate
original of the aforesaid policy or a certificate evidencing such insurance.
Said certificate shall contain an endorsement that such insurance may not be
cancelled except upon ten (10) days' notice to Landlord. Tenant shall also
maintain during the term hereof "all-risk" property insurance covering Tenant's
Property and Specialty Alterations to a limit of the replacement cost thereof,
and Tenant's failure to provide and keep in force the aforementioned insurance
shall be regarded as a material default hereunder entitling Landlord to exercise
any or all of the remedies provided in this Lease in the event of Tenant's
default.
9.10. Landlord shall obtain and keep in full force and effect insurance
against loss or damage by fire and other casualties to the Building including
all of Tenant's Alterations (other than Specialty Alterations) in such forms and
amounts as an institutional first mortgagee for the Building shall require or,
if there is no mortgage held by an institutional first mortgagee, in such forms
and amounts as owners of office buildings similar to the Building maintain from
time to time. For purposes of this Section 9.10, "institutional mortgagee" shall
mean a bank, trust company, savings and loan company, insurance company, real
estate investment trust or pension fund. Upon written request from Tenant,
Landlord shall submit reasonable evidence of the property insurance required to
be carried under this Section 9.10 as well as of the waiver of subrogation set
forth in Section 9.08 hereof.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01. (a) If the Building or the demised premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether
-34-
PARK AVE ARMORY/NYLPC - LEASE PT I
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents or visitors (and if this Lease shall not
have been terminated as in this Article 10 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and the demised premises,
at its expense (without limiting the rights of Landlord under any other
provisions of this Lease), with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace any personal property installed by or on behalf of Tenant or
any Specialty Alterations.
(b) Prior to the substantial completion of Landlord's repair
obligations set forth in subsection 10.01(a) hereof, Landlord shall provide
Tenant and Tenant's contractor, subcontractors and materialmen access to the
demised premises to perform Alterations on the following terms and conditions
(but not to occupy the same for the conduct of business):
(1) Tenant shall not commence work in any portion of the
demised premises until the date specified in a notice from Landlord
to Tenant stating that the repairs required to be made by Landlord
have been or will be completed to the extent reasonably necessary,
in Landlord's reasonable discretion, to permit the commencement of
the Alterations then prudent to be performed in accordance with good
construction practice in the portion of the demised premises in
question without interference with, and consistent with the
performance of, the repairs remaining to be performed.
(2) Such access by Tenant shall be deemed to be subject to all
of the applicable provisions of this Lease.
(3) It is expressly understood that if Landlord shall be
delayed in substantially completing the repairs due to any acts of
Tenant, its agents, servants, employees or contractors, including,
without limitation, by reason of the performance of any Alteration,
by reason of Tenant's failure or refusal to comply or to cause its
architects, engineers, designers and contractors to comply with any
of Tenant's obligations described or referred to in this Lease, or
if such repairs are not completed because under good construction
scheduling practice such repairs should be performed after
completion of any Alteration, then such repairs shall be deemed
substantially complete on the date when the repairs would have been
substantially complete but for such delay. Any additional costs to
Landlord to
-35-
PARK AVE ARMORY/NYLPC - LEASE PT I
complete any repairs occasioned by such delay shall be paid by
Tenant to Landlord within ten (10) days after demand, as additional
rent.
10.02. (a) If the Building or the demised premises shall be partially
damaged or partially destroyed by fire or other cause, then the fixed annual
rent and additional rent payable hereunder shall be abated to the extent that
the demised premises or any portion thereof shall have been rendered unusable
for the conduct of Tenant's business for the period from the date of such damage
or destruction to the date the damage has been repaired or restored, subject to
the provisions of subsection 10.02(b) hereof. If the demised premises or
Tenant's access to and from the demised premises shall be totally (which shall
be deemed to include substantially totally) damaged or destroyed or if the
demised premises shall be rendered completely (which shall be deemed to include
substantially completely) unusable for the conduct of Tenant's business on
account of fire or other cause, the fixed annual rent and additional rent for
the entire demised premises shall xxxxx as of the date of the damage or
destruction and until Landlord has repaired, restored and rebuilt the Building
and the demised premises and such access, provided, however, that should Tenant
reoccupy a portion of the demised premises for the conduct of its business
during the period the restoration work is taking place and prior to the date
that the same are made completely tenantable, rents allocable to such portion
shall be payable by Tenant from the date of such occupancy. Landlord shall give
Tenant at least forty-five (45) days prior notice of Landlord's estimate of the
date of the substantial completion of such repair and restoration provided that
Landlord shall have no liability to Tenant, and Tenant's obligations hereunder
shall not be diminished or affected, if such repair and restoration shall not
have been substantially completed by Landlord's estimated date.
(b) Notwithstanding anything to the contrary in this Article 10, for
purposes of calculating the abatements (whether partial or total) of fixed
annual rent under Section 10.02(a) hereof allocable to the "Permanent Rental
Period", as hereinafter defined, the partial amounts of the fixed annual rent
hereinafter defined as the "Unabated Fixed Rent" shall not be considered and
such Unabated Fixed Rent shall in no event be subject to any of the abatements,
whether partial or total, set forth in subsection 10.02(a) hereof. It is
understood and agreed that during any period of partial or full abatement of
fixed annual rent under subsection 10.02(b) hereof occurring during the
Permanent Rental Period, or any portion thereof, Tenant shall continue to be
obligated to make monthly payments of the Unabated Fixed Rent pursuant to the
terms of this Lease. For purposes of this Lease, (a) the term "Permanent Rental
Period" shall mean the period commencing on February 1, 1994 and ending January
31, 2004; (b) the term "Unabated Fixed Rent" as applied to any period shall mean
the aggregate amount of the monthly payments set forth
-36-
PARK AVE ARMORY/NYLPC - LEASE PT I
on Schedule M annexed hereto and made part hereof for the period in question;
and (c) the term "Termination Fixed Rent" shall mean the amounts set forth on
Schedule E annexed hereto and made a part hereof as of the dates set forth on
such Schedule E, subject to the provisions of subsection 41.14(b) hereof.
10.03. (a) if the Building shall be totally damaged or destroyed by fire
or other cause, or if the Building shall be so damaged or destroyed by fire or
other cause (whether or not the demised premises are damaged or destroyed) as to
require a reasonably estimated expenditure of more than forty (40%) percent of
the full insurance value of the Building immediately prior to the casualty, then
in either such case Landlord may terminate this Lease by giving Tenant notice to
such effect within one hundred twenty (120) days after the date of the casualty
provided that Landlord shall terminate the leases of tenants in the Building,
including Tenant and excluding Landlord or any Landlord Affiliate covering at
least 66-2/3% of rentable office space in the Building. In case of any damage or
destruction mentioned in this Article 10, as to which Landlord does not elect to
terminate this Lease, Tenant may terminate this Lease by notice to Landlord, if,
subject to the provisions of subsection 10.03(b) hereof, Landlord has not
completed the making of the required repairs and restored and rebuilt the
Building and the demised premises within twelve (12) months from the date of
such damage or destruction, or within such period after such date (not exceeding
three (3) months) as shall equal the aggregate period Landlord may have been
delayed in doing so by Force Majeure Causes, as defined in Section 34.01 hereof.
(b) Within ninety (90) days after the occurrence of any damage or
destruction of the demised premises or access thereto, Landlord shall give
Tenant notice of the date that, in the judgment of a reputable contractor or
architect designated by Landlord, it estimates Landlord shall be able to
substantially complete the required repairs and restorations (the "Anticipated
Completion Date") subject to delays for Force Majeure Causes. If the Anticipated
Completion Date shall be after the date which is twelve (12) months after the
date of such damage or destruction, then Tenant shall have the right, within
thirty (30) days after the notice of the Anticipated Completion Date is given,
to terminate this Lease by giving ten (10) Business Days' notice of such
termination to Landlord, and on the date occurring ten (10) Business Days after
the giving of such notice, this Lease will terminate as if such date were the
Expiration Date specified herein. If Tenant does not give such termination
notice within said thirty-day period, then the expiration of the twelve (12)
months restoration and repair period provided for in subsection 10.03(a) hereof
shall automatically be deemed extended to the Anticipated Completion Date, as
such date may be extended for Force Majeure Causes for not more than an
additional three (3) months.
-00-
XXXX XXX ARMORY/NYLPC - LEASE PT I
(c) If this Lease shall be terminated during the Permanent Rental
Period, pursuant to this Article 10 by the exercise of the rights of termination
granted to either Landlord or Tenant hereunder, then, in such event, Tenant
shall pay to Landlord within five (5) days after the occurrence of such
termination, an amount equal to the Termination Fixed Rent, as defined in
subsection 10.02(b) hereof as of the date of such termination, subject to the
provisions of subsection 41.14(b) hereof.
10.04. No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building pursuant
to this Article 10.
10.05. During the eighteen (18) month period ending on the Expiration
Date, the twelve (12) month period set forth in Sections 10.03(a) and 10.03(b)
shall be reduced to four (4) months.
10.06. Landlord will not carry separate insurance of any kind on Tenant's
property, and, except as provided by law or by reason of its breach of any of
its obligations hereunder, shall not be obligated to repair any damage thereto
or replace the same. Tenant shall maintain insurance on Tenant's property, and
Landlord shall not be obligated to repair any damage thereto or replace the
same.
10.07. The provisions of this Article 10 shall be considered an express
agreement governing any cause of damage or destruction of the demised premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
-38-
PARK AVE ARMORY/NYLPC - LEASE PT I
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Except as otherwise provided herein, Tenant shall not (a) assign or
otherwise transfer this Lease or the term and estate hereby granted, (b) sublet
the demised premises or any part thereof or allow the same to be used or
occupied by others or in violation of Article 5 hereof, (c) mortgage, pledge or
encumber this Lease or the demised premises or any part thereof in any manner or
permit any lien to be filed against the Lease, the demised premises or the
Building by reason of any act or omission on the part of Tenant, or (d) publicly
advertise, or authorize a broker to advertise (other than listing with brokers),
for a subtenant or an assignee, if such advertisement states a rental rate for
the demised premises without, in each instance set forth in the foregoing
clauses (a) through (d) of this Section 11.01, obtaining the prior consent of
Landlord, except as otherwise expressly provided in this Article 11 (except that
Tenant may continue to use any advertisement which was previously approved by
Landlord). For purposes of this Article 11 and except as otherwise expressly
permitted in Section 11.02 hereof, (i) the transfer of a majority of the issued
and outstanding capital stock of any corporate tenant, or of a corporate
subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of transactions, shall be deemed an assignment of
this Lease, or of such sublease, as the case may be, except that the transfer of
the outstanding capital stock of any corporate tenant, or subtenant, shall be
deemed not to include the sale or transfer of such stock by persons or parties
through the "over-the-counter market" or through any recognized stock exchange,
(ii) any person or legal representative of Tenant, to whom Tenant's interest
under this Lease passes by operation of law, or otherwise, shall be bound by the
provisions of this Article 11; and (iii) a modification, amendment or extension
of a sublease which modifies (w) the use permitted thereunder, (x) the financial
terms thereof, (y) the premises demised thereunder, or (z) the term thereof,
shall be deemed a sublease.
11.02. (a) The provisions of Sections 11.01, 11.05, 11.06, 11.07 and 11.08
hereof shall not apply to an assignment of this Lease to (i) a corporation or
other entity into or with which Tenant is merged or consolidated or (ii) a
person or an entity to which substantially all of Tenant's assets are
transferred or to an entity to which all or substantially all of Tenant's stock
is transferred (provided that such sale of stock is not for the principal
purpose of transferring the leasehold estate hereunder), whether such transfer
of stock and/or assets is by means of foreclosure or otherwise or by the
exercise of any rights by any entity to which the stock and/or assets of Tenant
are pledged, or (iii) any person or entity which shall acquire all or any
portion of the assets of the Tenant named herein, or an Affiliate or Successor
of the Tenant named herein, which are allocable to all or a portion of the
on-going operations of the business then being conducted at the demised premises
(whether or not any other assets of the Tenant named herein are also
-00-
XXXX XXX XXXXXX/XXXXX - LEASE PT II
acquired) or a person or entity who shall acquire the stock of the Tenant named
herein allocable to such business (whether or not all of the stock of the Tenant
named herein is also acquired) (any corporation, entity, or person set forth in
the foregoing clauses (i), (ii) and (iii) being herein called a "Successor"), or
(iv) any corporation or other entity controlled by, which controls or which is
under common control with, the Tenant named herein (herein called an
"Affiliate") provided such merger, consolidation or transfer of stock and/or
assets set forth in the preceding clauses (i), (ii) and (iii) is for a valid
business purpose and not principally for the purpose of transferring the
leasehold estate created hereby, and provided, further, that Tenant shall have
delivered to Landlord at least ten (10) days (but not more than twenty-five (25)
days) prior to the effective date of any such transaction: (1) a certified
statement (the "EBITDA Certificate") from the chief financial officer of such
successor or assignee, and (2) "Support Documentation," as hereinafter defined.
The EBITDA Certificate and Support Documentation shall evidence that with
respect to the twelve (12) month period ending with the month next preceding the
month in which occurs the date on which Tenant has delivered to Landlord the
items specified in clauses (1) and (2) of the foregoing sentence (such 12-month
period being herein called the "Fiscal Year"):
(A) (i) in the case of a sale of Tenant's assets, a merger or a
consolidation or other combination, EBITDA (Earnings Before
Interest, Taxes, Depreciation, Amortization and any other non-cash
charges, including, but not limited to, executive options) for the
Fiscal Year for the combined business (i.e., the EBITDA of such
successor or assignee combined with the EBITDA relating to the
business acquired and assumed from Tenant) is at least 1.35 times
required annual debt service for the Fiscal Year for such combined
business (i.e., the required annual debt service of such successor
or assignee combined with the required annual debt service relating
to the business assumed or acquired from Tenant), or (ii) in the
case of a sale of Tenant's stock, EBITDA for the Fiscal Year for
Tenant is at least 1.35 times the required annual debt service of
Tenant after such stock sale; and
(B) the total debt (including subordinate debt) for such combined
business on the last day of the Fiscal Year for the Fiscal Year does
not exceed six (6) times EBITDA for such combined business for the
Fiscal Year (or, in the case of a sale of stock, after such stock
sale, the total debt (including subordinate debt) does not exceed
six (6) times EBITDA for Tenant).
For purposes hereof, the term "Support Documentation" shall mean: (y) quarterly
financial statements both of the Tenant and of the entity into, or with, which
the Tenant is being consolidated or merged or to which Tenant's assets are being
sold, for at least three (3) quarters occurring during the Fiscal Year, which
statements are prepared for internal purposes and made
-40-
PARK AVE ARMORY/NYLPC - LEASE PT II
available to financial institutions which are lenders of Tenant or such entity,
and (z) the annual audited financial statements both of the Tenant and of the
entity into, or with, which the Tenant is being consolidated or merged or to
which Tenant's assets are being sold, for the most recent fiscal year during
which any portion of the Fiscal Year occurs.
(b) Notwithstanding tine foregoing provisions of this subsection 11.01 to
the contrary:
(i) With respect to any transfer of substantially all of Tenant's
assets or of Tenant's stock by means of foreclosure by (or exercise
of any rights of) any entity to which the stock and/or assets of
Tenant are pledged, as set forth in clause (ii) of subsection
11.01(a) hereof, of which transfer Landlord shall have been given
notice, Tenant shall not be required to deliver to Landlord the
EBITDA Certificate or the Support Documentation or to satisfy the
conditions set forth in clauses (A) and (B) of subsection 11.01(a)
hereof if such entity is a savings and loan association, a savings
bank, a commercial bank or trust company, an insurance company, or a
Federal, state, municipal or private employees' welfare pension or
retirement fund or system, (or a wholly owned subsidiary of such
entity which is formed for the exclusive purpose of foreclosing on
such stock and/or assets and which has no assets or liabilities
other than those acquired or assumed in such foreclosure) provided
that any such entity (i) has total assets of at least One Billion
($1,000,000,000) Dollars, and (ii) reports to or is subject to the
supervision of the Insurance Department of the State of New York,
any agency or official exercising a comparable function on behalf of
any other state, the Comptroller of the Currency, the Federal
Deposit Insurance Corporation, the Department of Labor, the Federal
Reserve Board, the Federal Home Loan Bank Board, the Federal Savings
and Loan Insurance Corporation or any similar regulatory agency, or
any successor to any of the foregoing agencies, entities or
officials.
(ii) If, with respect to an assignment of this Lease pursuant to
clause (iii) of subsection 11.01(a) hereof, the principal business
being conducted at the demised premises as of the effective date of
such assignment is any business other than the publication of The
New York Law Journal or The National Law Journal or any other
business which services the legal profession, then the nature and
character of such business and such assignee's use of the demised
premises shall not detract from the character, reputation or dignity
of the Building in Landlord's reasonable judgment and Tenant shall
deliver to Landlord at least ten (10) days prior to the effective
date of such transaction, the name, business address and a
description of the nature and character of such business.
-41-
PARK AVE ARMORY/NYLPC - LEASE PT II
For purposes hereof, "control" means ownership directly or indirectly of
50% or more of the outstanding voting stock, partnership interests or other
beneficial interests of the entity in question. In connection with any
transactions with Affiliates pursuant to subsection 11.01(a) hereof, any
cessation of such control by the Tenant named herein shall constitute an
assignment or subletting, as the case may be, which shall be subject to all of
the terms, provisions and conditions of this Article 11.
11.03. Any assignment or transfer, whether made with Landlord's consent as
required by Section 11.01, or without Landlord's consent pursuant to Section
11.02, shall be made only if, and shall not be effective until, the assignee
shall execute, acknowledge and deliver to Landlord a recordable agreement, in a
form consistent with the provisions of this Article 11, whereby the assignee
shall assume the obligations and performance of this Lease and agree to be bound
by and upon all of the covenants, agreements, terms, provisions and conditions
hereof on the part of Tenant to be performed or observed after the effective
date of such assignment or transfer and whereby the assignee shall agree that
the provisions of Section 11.01 hereof shall, notwithstanding such an assignment
or transfer, continue to be binding upon it in the future. Tenant covenants
that, notwithstanding any assignment or transfer, whether or not in violation of
the provisions of this Lease, and notwithstanding the acceptance of fixed annual
rent by Landlord from an assignee or transferee or any other party, Tenant shall
remain fully and primarily liable for the payment of the fixed annual rent and
additional rent due and to become due under this Lease and for the performance
of all of the covenants, agreements, terms, provisions and conditions of this
Lease on the part of Tenant to be performed or observed.
11.04. The liability of Tenant, and the due performance by Tenant of the
obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee of Landlord, by way of mortgage, or
otherwise, extending the time of, or modifying any of the obligations contained
in this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations on Tenant's part to be performed under this Lease, and Tenant shall
continue liable hereunder. If any such agreement or modification operates to
increase the obligations of a tenant under this Lease, the liability under this
Section 11.04 of the tenant named in the Lease or any of its successors in
interest, (unless such party shall have expressly consented in writing to such
agreement or modification) shall continue to be no greater than if such
agreement or modification had not been made. To charge Tenant named in this
Lease and its successors in interest, no demand or notice of any default shall
be required. Tenant and each of its successors in interest hereby expressly
waive any such demand or notice.
11.05. (a) If Tenant shall at any time or times during the term of this
Lease desire to assign this Lease or sublet, "for substantially the balance of
the term of this Lease", as hereinafter defined in the final
-42-
PARK AVE ARMORY/NYLPC - LEASE PT II
sentence of this subsection 11.05(a), all or substantially all of the demised
premises or any portion or portions thereof consisting of an aggregate of 30% or
more of the entire demised premises (after aggregating all portions of the
demised premises which have theretofore been sublet with the portion thereof in
question), Tenant shall give notice thereof to Landlord (herein called "Tenant's
Article 11 Offer Notice"), which notice shall set forth in the case of a
subletting: (a) the area proposed to be sublet, (b) the commencement date and
term of the proposed subletting, (c) the work (including the construction of a
demising wall) to be performed by Tenant and/or the subtenant, if any, the work
contributions, if any, periods of rent free occupancy, if any, purchase price of
any of Tenant's furniture, fixtures and equipment, and (d) the rent and
additional rent and all other financial terms (the items set forth in the
foregoing clauses (c) and (d) are herein in the aggregate called the "Proposed
Rent Rate") pursuant to which Tenant is willing to enter into a sublease with a
third party. In the case of a proposed assignment, Tenant's Article 11 Offer
Notice shall set forth Tenant's intention to (x) assign the Lease in whole, it
being understood and agreed that partial assignments of the Lease are not
permitted hereunder, (y) the effective date of such proposed assignment, and (z)
all financial and other material terms of the proposed assignment. Tenant's
Article 11 Offer Notice shall be deemed an offer from Tenant to Landlord whereby
Landlord (or Landlord's designee) may, at its option, (i) accept an assignment
of this Lease from Tenant (if the proposed transaction is an assignment of this
Lease), (ii) sublease such space from Tenant for the remaining balance of the
term of this Lease (less one day) and upon the other terms and conditions
hereinafter set forth if the proposed transaction is a sublease for
substantially the balance of the term of this Lease, (iii) terminate this Lease
if the proposed transaction is (A) an assignment of the Lease (provided that
Landlord agrees to recognize any then-existing subtenants of Tenant on the terms
of such subleases as to which Landlord shall have given consent hereunder) or
(B) a sublease of all or substantially all of the demised premises for
substantially the balance of the term of this Lease; or (iv) terminate this
Lease with respect to the space covered by the proposed sublease. Said options
may be exercised by Landlord by notice to Tenant within thirty (30) days after
Tenant's Article 11 Offer Notice has been given to Landlord and during such
thirty (30) day period Tenant shall not assign this Lease or sublet such space
to any person. Tenant's Article 11 Offer Notice may also be in the form of an
executed counterpart of the proposed assignment or sublease together with such
other information required under Section 11.06 hereof, in which event the thirty
(30) day period referred to herein and the thirty (30) day period referred to in
Section 11.06 shall run concurrently. If Landlord shall fail to respond to
Tenant's notice during such 30 day period, Landlord shall be deemed to have
elected not to exercise any of its options hereunder provided that Tenant's
Article 11 Offer Notice shall have referenced the provisions of this Section
11.05(a) and such 30 day period and the consequences if Landlord shall fail to
respond within such 30 day period. The phrase "for substantially the balance of
the term of this Lease" shall mean the period equal to the remaining term of
this Lease less any period of time up to eighteen (18) months.
-00-
XXXX XXX ARMORY/NYLPC - LEASE PT II
(b) Intentionally omitted.
(c) If Landlord should elect to have Tenant execute and deliver a
sublease to Landlord or its designee pursuant to any of the provisions of this
Section 11.05, said sublease shall be in a form reasonably satisfactory to
Landlord and Tenant and on all the terms contained in this Lease, except that:
(i) The rental terms shall be at the Proposed Rent Rate subject to
the provisions of Section 11.07 hereof, if applicable and if the
Proposed Rent Rate shall be in excess of the rent provided for
herein Landlord shall be permitted to offset against the rental due
under any such sublease the amount of additional rent, if any, due
from Tenant pursuant to Section 11.07 hereof,
(ii) The sublease shall not provide for any work to be done for the
subtenant or for any initial rent concessions (except that the value
of same shall be amortized over the term of the sublease and the
annual portion thereof shall be reflected in the rental terms
pursuant to the foregoing clause (i) to the extent that same are
included in the Proposed Rent Rate) or contain provisions
inapplicable to a sublease,
(iii) The subtenant thereunder shall have the right to underlet the
subleased premises, in whole or in part, without Tenant's consent,
(iv) The subtenant thereunder shall have the right to make, or cause
to be made, any changes, alterations, decorations, additions and
improvements that such subtenant may desire or authorize, subject to
the provisions of clause (ix) of this Section 11.05(c),
(v) Such sublease shall expressly negate any intention that any
estate created by or under such sublease be merged with any other
estate held by either of the parties thereto,
(vi) Any consent required of Tenant, as lessor under that sublease,
shall be deemed granted if consent with respect thereto is granted
by Landlord,
(vii) The use of the sublet premises by the subtenant thereunder
shall be for general office use in accordance with all Legal
Requirements, and, in the case of a subletting of a partial floor of
the Building in which the Tenant named herein and/or its Affiliate
and/or Successor occupies the remaining portion of the demised
premises located on such floor and no less than 26,000 rentable
square feet of the demised premises in the aggregate, such use shall
exclude any use by a "Direct Competitor," as defined in Article 36
hereof,
-44-
PARK AVE ARMORY/NYLPC - LEASE PT II
(viii) Any failure of the subtenant thereunder to comply with the
provisions of said sublease, other than with respect to the payment
of rent to Tenant, shall not constitute a default thereunder or
hereunder if Landlord has consented to such non-compliance, to the
extent that there shall be no adverse effect on Tenant resulting
therefrom (except to a de minimis extent),
(ix) Such sublease shall provide that Tenant's obligations with
respect to vacating the demised premises and removing any changes,
alterations, decorations, additions or improvements made in the
subleased premises shall be limited to those which accrued and
related to such as were made prior to the effective date of the
sublease and were not subsequently altered or changed,
(x) (1) Such sublease shall provide that the amount to be charged by
Tenant for such subtenant's electricity consumption shall be based
upon the same rates and provisions as provided in Section 4.01
herein and that such subtenant's consumption shall be measured by
the submeters located in the demised premises, subject to the
following provisions of this subsection 11.05(c)(x).
(2) In the event that the submeter measuring electricity
consumption in the subleased premises also measures consumption in
one or more other portions of the demised premises, then such
subtenant's consumption of electricity in the subleased premises and
the consumption of electricity by Tenant in such portion of the
demised premises shall each be equal to a percentage of the
consumption indicated on such submeter together such percentages
aggregating 100% of the consumption reflected by such submeter. Such
percentages shall be determined by survey performed from time to
time by a reputable, independent electrical consultant, selected by
Landlord or Tenant (the "Initial Electrical Consultant") provided
that Tenant may not initiate a survey hereunder more frequently than
once every two years. The Initial Electrical Consultant may make
surveys in the subleased premises and such portion of the demised
premises covering the electrical equipment and fixtures and use of
current therein, and the connected electrical load and usage and
such percentages shall be determined and/or redetermined in
accordance with such survey. The determination of such percentage
with respect to the subleased premises by the Initial Electrical
Consultant shall be binding and conclusive on the other party hereto
from and after the delivery of copies of such determination to the
other party hereto, unless within thirty (30) days after the
-45-
PARK AVE ARMORY/NYLPC - LEASE PT II
delivery of such copies, the other party hereto disputes such
determination. If the other party hereto disputes the determination,
it shall, at its own expense, obtain from a reputable, independent
electrical consultant (the "Other Electrical Consultant") its own
survey, and a determination of such percentage with respect to the
subleased premises. The Other Electrical Consultant and the Initial
Electrical Consultant then shall seek to agree on a finding of such
determination of such percentage. If they cannot agree, they shall
choose a third reputable electrical consultant whose cost shall be
shared equally by Landlord and Tenant, to make a similar survey, and
the determination of such percentage by such third electrical
consultant shall be controlling. (If they cannot agree on such third
consultant, within ten (10) days, then either party may apply to the
Supreme Court in the County of New York for the appointment of such
third consultant.) However, pending such determination, such
subtenant shall pay to Tenant the electricity charge as determined
by the Initial Electrical Consultant, provided, however, if the
electricity charge determined as aforesaid is different from that
determined by the Initial Electrical Consultant, then Landlord and
Tenant shall make adjustment for any deficiency owed by such
subtenant or overage paid by such subtenant pursuant to the decision
of the third electrical consultant together with interest at the
Prime Rate from the date of such deficiency or overage to the date
repaid.
(d) Performance by Landlord, or its designee or any subtenant or
other occupant under a recapture sublease or assignment who occupies recaptured
space after the execution of a recapture sublease or assignment, shall be deemed
performance by Tenant of any similar obligation under this Lease. Tenant shall
not be liable for any default under this Lease or deemed to be in default
hereunder if such default is occasioned by or arises from any act or omission of
Landlord, its designee or any subtenant or other occupant under the recapture
sublease or assignment or is occasioned by or arises from any act or omission of
any such person and in the event of non-payment of rent, Tenant shall be
permitted to net out the amount of such non-payment by subtenant from the amount
of rent that Tenant is required to pay to Landlord hereunder.
11.06. In the event that Landlord does not exercise any of the options
available to it pursuant to Section 11.05 hereof, Landlord shall not
unreasonably withhold or delay its consent to an assignment of this Lease or a
subletting of all or any part of the demised premises, provided:
(a) Tenant shall furnish Landlord with the name and business address
of the proposed subtenant or assignee, information with respect to the nature
and character of the proposed subtenant's or assignee's business, current
financial information evidencing financial responsibility reasonably
satisfactory to Landlord, considering the responsibilities involved regardless
whether, in the case of an assignee other than a Successor, the financial
condition of such assignee would satisfy the conditions set forth in clauses (A)
and (B) of subsection 11.02(a) hereof, and an executed counterpart of the
sublease or assignment agreement;
(b) The proposed subtenant or assignee is a reputable party;
-46-
PARK AVE ARMORY/NYLPC - LEASE PT II
(c) The nature and character of the proposed subtenant or assignee,
its business or activities and intended use of the demised premises is in
keeping with the standards of the Building;
(d) (Provided that Landlord shall have available for leasing in the
Building within five (5) months from the effective date of the proposed
transaction office space comparable in size and term to the space to be sublet
or assigned for the proposed term) the proposed subtenant or assignee is not
then an occupant of any part of the Building or a party who dealt with Landlord
or Landlord's agent (directly or through a broker) with respect to space in the
Building during the five (5) months immediately preceding Tenant's request for
Landlord's consent;
(e) Each sublease shall specifically state that (i) it is subject to
all of the terms, covenants, agreements, provisions, and conditions of this
Lease, (ii) the subtenant will not have the right to further assign its sublease
or sublet all or part of the demised premises or to allow same to be used by
others, without the consent of Landlord in each instance, provided, however,
that with respect to a future assignment or future underlettings by any direct
subtenants of Tenant or by any direct undertenant of any such direct subtenants
(herein collectively called "Undertenants"), Landlord agrees not to
unreasonably withhold or delay its consent in accordance with, and subject to
compliance by such Undertenants with the obligations of Tenant contained in the
provisions of Sections 11.01, 11.03, 11.04, 11.05, 11.06, 11.07 and 11.08 hereof
provided: (A) that Landlord shall have the rights (as against such Undertenants
and/or Tenant), and such Undertenants shall comply with the obligations of
Tenant, set forth in Sections 11.05 and 11.07 hereof with respect to any such
proposed underletting, applied as if such proposed underlettings or assignments
were a sublease of the premises demised under this Lease or an assignment of
this Lease by Tenant, except that for purposes of such application, (1) the
figure "50%" set forth in Section 11.07 shall be deemed to be "100%", and (2)
Landlord shall not have the options set forth in clauses (iii) and (iv) of
subsection 11.05(a), and (B) that the undersubtenants and assignees of such
Undertenants shall not have any right to further assign or undersublet all or
any part of the demised premises or to allow same to be used by others without
the consent of Landlord in each instance, (iii) a consent by Landlord thereto
shall not be deemed or construed to modify, amend or affect the terms and
provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the premises involved, and the occupants thereof, as if the
sublease or assignment had not been made;
(f) Tenant shall have paid Landlord, within ten (10) days after
receipt of a xxxx therefor, the reasonable attorneys' fees incurred by Landlord
to review the requested consent;
(g) The proposed subtenant or assignee is not (i) a retail bank,
trust company, safe deposit business, savings and loan association or loan
company which intends to use the demised premises for retail uses; (ii) an
employment or recruitment agency; (iii) a school, college, university or
educational institution whether or not for profit except that the demised
premises may be used as executive offices of such entities set forth in this
clause (iii); (iv) a government or any subdivision or agency thereof;
-00-
XXXX XXX XXXXXX/XXXXX - LEASE PT II
(h) Tenant shall not have advertised in the mass media the proposed
assignment together with a rental rate or the proposed subletting at a rental
rate (unless the rental rate information in such listing is not generally
available to persons other than brokers) less than the rental rates then being
charged under leases being entered into by Landlord for comparable space in the
Building and for a comparable term and Landlord agrees promptly to furnish to
Tenant such then-current rental rates upon written request therefor from Tenant;
(i) Tenant shall have complied with the applicable provisions in
Section 11.05 (to the extent same are applicable) and Landlord shall not have
made any of the elections provided for in Section 11.05 provided the time period
for Landlord's response under this Section 11.06 may overlap with that under
Section 11.05;
(j) With respect to aggregate financial terms, the proposed sublet
space and the proposed sublet term, there shall be no more than a seven and
one-half (7-1/2%) percent variation between the proposed sublease or the
proposed assignment and the corresponding provisions of Tenant's Article 11
Notice;
(k) There shall be no more than four (4) separately demised rentable
areas of any full floor portion of the demised premises, and no more than two
(2) separately demised rentable areas on any portion of the demised premises
constituting less than a full floor of the Building.
Landlord shall have twenty (20) days after Landlord has received all of
the information and materials described in this Section 11.06 to review Tenant's
proposal to assign or sublet. If Landlord shall fail to respond within such
twenty (20) day period, which period may coincide or overlap with the twenty
(20) day period described in Section 11.05(a), then Landlord shall be deemed to
have given its consent to Tenant's proposed sublet or assignment, provided that
Tenant's request for consent shall expressly reference this Section 11.06 and
consequences of Landlord's failure to respond within such twenty (20) day
period.
11.07. If Landlord shall give or shall be deemed to have given its consent
to any assignment of this Lease or to any sublease, Tenant shall pay to
Landlord, as additional rent, 50% of the following amounts:
(i) in the case of an assignment, an amount equal to all sums and
other consideration paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in the case of a sale thereof, the then net unamortized
or undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns) after deducting therefrom the amount of "Tenant's Costs", as
hereinafter defined; and
-48-
PARK AVE ARMORY/NYLPC - LEASE PT II
(ii) in the case of a sublease, any rent, additional rent or other
consideration paid under the sublease or otherwise to Tenant by the subtenant
which is in excess of the fixed annual rent, additional rent and other charges
accruing during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the sale or rental thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns) after deducting therefrom the amount of "Tenant's
Costs", as hereinafter defined.
The sums payable under this Section 11.07 shall be paid to Landlord within ten
(10) days after same are paid by the subtenant or assignee, as the case may be,
to Tenant.
For purposes hereof, "Tenant's Costs" shall mean the reasonable costs and
expenses incurred by Tenant in making such assignment or subletting on account
of brokerage fees and leasing commissions, advertising fees, and attorneys' fees
and disbursements paid by Tenant to independent third parties in connection with
such assignment or subletting, the reasonable cost of improvements and
alterations performed by Tenant to segregate or prepare the demised premises for
the assignee or subtenant, and rental abatements or credits and work allowances
given by Tenant.
11.08. (a) In the event that in connection with Tenant's request for
Landlord's consent pursuant to Section 11.06 hereof, Tenant submits to Landlord
a duplicate of a proposed sublease or proposed assignment with respect to the
proposed subletting or assignment set forth in Tenant's Article 11 Offer Notice
and the provisions of such sublease or assignment (as, for example, the space,
the term, or the Proposed Rent Rate) differ (by more than seven and one-half
(7-1/2%) percent from the statements set forth in the Tenant's Article 11 Offer
Notice, then in such event, Tenant's request for consent pursuant to Section
11.06 hereof shall be deemed to be an offer from Tenant to Landlord as to which
Landlord shall have all of the options set forth in Section 11.05 hereof
provided that Tenant may rescind such request (and its deemed offer) by giving
notice thereof to Landlord within five (5) Business Days after the date of
Landlord's response to Tenant's request provided further that Tenant shall have
such right of rescission only on condition that Tenant's request for Landlord's
consent shall expressly reference Tenant's intention to exercise such right of
rescission in the event that Landlord notifies Tenant of Landlord's exercise of
Landlord's options under Section 11.05 hereof.
(b) If Landlord fails to exercise any of its options under Section
11.05 hereof, and Tenant fails to request Landlord's consent to an assignment or
sublease on the terms and conditions set forth in Tenant's Article 11 Offer
Notice within nine (9) months from the date of Landlord's response to Tenant's
Article 11 Offer Notice, Tenant shall again comply with all of the provisions
and conditions of Section 11.05 hereof before assigning this Lease or subletting
all or part of the demised premises.
-49-
PARK AVE ARMORY/NYLPC - LEASE PT II
11.09. If Tenant defaults in the payment of any rent and such default
remains uncured beyond the expiration of the applicable grace period, then
Landlord is authorized to collect any rents due or accruing from any assignee,
subtenant or other occupant of the demised premises and to apply the net amounts
collected to the fixed annual rent and additional rent reserved herein. The
receipt by Landlord of any amounts from an assignee or subtenant, or other
occupant of any part of the demised premises shall not be deemed or construed as
releasing Tenant from Tenant's obligations hereunder except to the extent of
rent applied or the acceptance of that party as a direct tenant.
11.10. Landlord shall not disclose to third parties (other than Landlord's
managing agent, leasing agent, accountants and attorneys) any financial
information or any other confidential information regarding Tenant's business
furnished to Landlord under this Article 11 except to the extent required by
Legal Requirements or under subpoena in connection with a legal proceeding and
Landlord will instruct its managing agent, leasing agent, accountants and
attorneys not to disclose any such information except as hereinbefore expressly
permitted.
ARTICLE 12
Intentionally Omitted
ARTICLE 13
ADJACENT EXCAVATION -- SHORING
13.01. If an excavation or other substructure work 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,
license to enter upon the demised premises for the purpose of doing such work as
shall be necessary to preserve the wall of or the Building of which the 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 Landlord, or
(provided Tenant continues to have access to the demised premises) diminution or
abatement of rent. Landlord shall permit Tenant to be subrogated to the rights
of Landlord against any such person to the extent that Landlord or Tenant shall
have a claim for damages against such person. Landlord shall use reasonable
efforts to induce the person causing or authorized to cause such excavation to
minimize its interference with Tenant's use of the demised premises but Landlord
shall have no liability to Tenant nor shall Tenant's obligations under this
Lease be affected if Landlord's reasonable efforts are unsuccessful in
connection therewith.
-50-
PARK AVE ARMORY/NYLPC - LEASE PT II
ARTICLE 14
CONDEMNATION
14.01. (a) In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article 1 hereunder and
additional rents under Article 3 hereunder shall be abated in an amount thereof
apportioned according to the area of the demised premises so condemned or taken
relative to the area of the demised premises prior to such condemnation or
taking, subject to the provisions of Section 14.06 hereof. In the event that
only a part of the Building shall be so condemned or taken, then (a) provided
that more than (i) forty (40%) percent of the rentable area of the Building is
so condemned or taken, Landlord (whether or not the demised premises be
affected) may, at Landlord's option, terminate this Lease and the term and
estate hereby granted as of the date of such vesting of title by notifying
Tenant in writing of such termination within thirty (30) days following the date
on which Landlord shall have received notice of vesting of title, provided that
Landlord shall terminate the leases of tenants in the building (including Tenant
and excluding Landlord and Landlord's Affiliates) covering at least 66-2/3% of
the rentable office space in the building, or (b) if such condemnation or taking
shall be of a substantial part of the demised premises (i.e., twenty-five (25%)
percent or more of the rentable area thereof) or of all reasonable means of
access thereto, Tenant may, at Tenant's option, by delivery of notice in writing
to Landlord within thirty (30) days following the date on which Tenant shall
have received notice of vesting of title, terminate this Lease and the term and
estate hereby granted as of the date of vesting of title, or (c) if neither
Landlord nor Tenant elects to terminate this Lease, as aforesaid, this Lease
shall be and remain unaffected by such condemnation or taking, except that the
fixed annual rent payable under Article 1 and additional rents payable under
Article 3 shall be abated to the extent hereinbefore provided in this Article
14, subject to the provisions of subsection 14.01(b) hereof. In the event that
less than all of the demised premises shall be so condemned or taken and this
Lease and the term and estate hereby granted with respect to the remaining
portion of the demised premises are not terminated as hereinbefore provided,
Landlord will, with reasonable diligence and at its expense, restore the
remaining portion of the demised premises to a self-contained rental unit and/or
the access thereto as nearly as practicable to the same condition as it was in
prior to such condemnation or taking.
(b) Notwithstanding anything to the contrary in this Article 14, for
purposes of calculating the abatements (whether partial or total) of fixed
annual rent under subsection 14.01(a) hereof allocable to the Permanent Rental
Period, as defined in subsection 10.02(b) hereof, the partial amounts of the
fixed annual rent defined as the "Unabated Fixed Rent" in subsection 10.02(b)
hereof shall not be considered and such Unabated Fixed
-51-
PARK AVE ARMORY/NYLPC - LEASE PT II
Rent shall in no event be subject to any of the abatements whether partial or
total, set forth in subsection 14.01(a) hereof. It is understood and agreed that
during any period of partial or full abatement of fixed annual rent under
subsection 14.01 hereof occurring during the Permanent Rental Period or any
portion thereof, Tenant shall continue to be obligated to make monthly payments
of the Unabated Fixed Rent pursuant to the terms of this Lease.
14.02. (a) In the event of its termination in any of the cases
hereinbefore provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
(b) If this Lease shall be terminated during the Permanent Rental
Period pursuant to this Article 14 by the exercise of the rights of termination
granted to either Landlord or Tenant hereunder, then, in such event, Tenant
shall pay to Landlord, prior to, and as a condition of, the occurrence of such
termination, an amount equal to the Termination Fixed Rent (as defined in
subsection 10.02(b) hereof) as of the date of such termination, subject to the
provisions of subsection 41.14(b) hereof.
14.03. In the event of any condemnation or taking hereinbefore mentioned
of all or a part of the Building, Landlord shall be entitled to receive the
entire award in the condemnation proceeding, including any award made for the
value of the estate vested by this Lease in Tenant, and Tenant hereby expressly
assigns to Landlord any and all right, title and interest of Tenant now or
hereafter arising in or to any such award or any part thereof, and Tenant shall
be entitled to receive no part of such award. Nothing contained herein shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for any Tenant's property included in such taking, and for any
moving expenses provided such claim does not reduce Landlord's claim.
14.04. If the whole or any part of the demised premises shall be acquired
or condemned temporarily during the term of this Lease for any public or
quasi-public use or purpose, Tenant shall give prompt notice thereof to Landlord
and the term hereof shall not be reduced or affected in any way and Tenant shall
continue to pay in full all fixed annual rent and additional rent payable by
Tenant hereunder without reduction or abatement, and Tenant shall be entitled to
receive for itself any award or payments for such use, provided, however, that:
(a) if the acquisition or condemnation is for a period not extending
beyond the term of this Lease and if such award or payment is made less
frequently than in monthly installments, the same shall be paid to and held by
Landlord as a fund which Landlord shall apply from time to time to the
-52-
PARK AVE ARMORY/NYLPC - LEASE PT II
fixed annual rent and additional rent payable by Tenant hereunder, except that,
if by reason of such acquisition or condemnation changes or alterations are
required to be made to the demised premises which would necessitate an
expenditure to restore the demised premises, then a portion of such award or
payment considered by Landlord as appropriate to cover the expenses of the
restoration shall be retained by Landlord, without application as aforesaid, and
applied toward the restoration of the demised premises as provided in subsection
14.01(a) hereof; or
(b) if the acquisition or condemnation is for a period extending
beyond the term of this Lease, such award or payment shall be apportioned
between Landlord and Tenant as of the Expiration Date; Tenant's share thereof,
if paid less frequently than in monthly installments, shall be paid to Landlord
and applied in accordance with the provisions of subsection 14.04(a) above,
provided, however, that the amount of any award or payment allowed or retained
for restoration of the demised premises shall remain the property of Landlord if
this Lease shall expire prior to the restoration of the demised premises.
14.05. In the event of any taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the demised
premises which does not result in a termination of this Lease, Landlord, at its
expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the demised premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises.
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01. Tenant shall permit Landlord to erect, use and maintain pipes,
ducts and conduits in and through the demised premises, provided the same are
concealed behind walls and ceilings of the demised premises or, if such
concealment is reasonably impracticable, installed adjacent to such walls and
ceilings provided that same shall be furred and the usable area of the demised
premises is not reduced more than by a de minimis extent. Landlord shall install
such pipes, ducts and conduits by such methods and at such locations as will
minimize interference with and impairment of Tenant's layout and use of the
demised premises. Landlord or its agents or designees shall have the right, upon
reasonable prior notice to Tenant and accompanied by a representative of Tenant
if Tenant shall make the same available, to enter the demised premises, at
reasonable times during business hours, for the making of such repairs or
alterations as Landlord may deem necessary for the Building or which Landlord
shall be required to or shall have the right to make by the provisions of this
Lease or to keep the Building in good repair as a
-53-
PARK AVE ARMORY/NYLPC - LEASE PT II
functioning office building, and shall also have the right to enter the demised
premises after reasonable prior notice and, at the election of Tenant, with a
representative of Tenant, if one is made available for the purpose of inspecting
them or exhibiting them to prospective purchasers or lessees of the entire
Building or to prospective mortgagees of the fee or of Landlord's interest in
the property of which the demised premises are a part or to prospective
assignees of any such mortgages or to the holder of any mortgage on the
Landlord's interest in the property, its agents or designees or, during the
twelve (12) months prior to the expiration of the term of this Lease, to
prospective tenants of the demised premises. Subject to the provisions of the
following sentence, Landlord shall be allowed to take all material into and upon
the demised premises (provided such material is not stored in the demised
premises overnight) that may be required for the repairs or alterations above
mentioned as the same is required for such purpose, without the same
constituting an eviction of Tenant in whole or in part, and the rent reserved
shall in no wise xxxxx while said repairs or alterations are being made by
reason of loss or interruption of the business of Tenant because of the
prosecution of any such work. In connection with Landlord's access to the
demised premises, Landlord's ability to perform repairs or alterations and
Landlord's ability to bring materials into the demised premises pursuant to this
Section 15.01, Landlord shall exercise reasonable diligence so as to minimize
the disturbance to Tenant's use and enjoyment of the demised premises but
nothing contained herein shall be deemed to require Landlord to perform the same
on an overtime or premium pay basis, subject to the provisions of Section 7.05
hereof.
15.02. Landlord reserves the right, 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, stairways, toilets and other public parts of the Building;
provided, however, that access to the Building shall not be unreasonably
obstructed or cut off and that there shall result no unreasonable obstruction of
access to the demised premises or unreasonable interference with the use or
enjoyment thereof, and that the size and/or configuration of the demised
premises are not changed thereby (except to a de minimis extent).
15.03. Landlord reserves the right to light, at Landlord's cost and
expense, from time to time all or any portion of the demised premises at night
for display purposes.
15.04. Deleted Prior to Execution.
15.05. If Tenant shall not be personally present to open and permit an
entry into the demised premises at any time when for any reason an entry therein
shall be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may, after attempting, if such attempt is reasonably
practicable, to give Tenant oral notice, forcibly enter the same without
rendering Landlord or such agents liable therefor (if during such entry Landlord
or Landlord's agents shall accord reasonable care to Tenant's property) and
without in any manner affecting the obligations and covenants of this Lease.
-54-
PARK AVE ARMORY/NYLPC - LEASE PT II
ARTICLE 16
CONDITIONS OF LIMITATION
16.01. This Lease and the term and estate hereby granted are subject to
the limitation that whenever Tenant or any guarantor of Tenant's obligations
under this Lease shall make an assignment of the property of Tenant for the
benefit of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law or any involuntary petition alleging an act of bankruptcy or
insolvency shall be filed against Tenant or such guarantor under any bankruptcy
or insolvency law, or whenever a petition shall be filed by or against Tenant
under the reorganization provisions of the United States Bankruptcy Act or under
the provisions of any law of like import, or whenever a petition shall be filed
by Tenant or such guarantor under the arrangement provisions of the United
States Bankruptcy Act or under the provisions of any law of like import, or
whenever a permanent receiver of Tenant or such guarantors or of or for the
property of Tenant or such guarantor shall be appointed, then, Landlord may, (a)
at any time after receipt of notice of the occurrence of any such event, or (b)
if such event occurs without the acquiescence of Tenant or such guarantor, at
any time after the event continues for ninety (90) days, give Tenant a notice of
intention to end the term of this Lease at the expiration of five (5) days from
the date of service of such notice of intention, and upon the expiration of said
five (5) day period, this Lease and the term and estate hereby granted. whether
or not the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for damages as provided in Article 18.
16.02. This Lease and the term and estate hereby granted are subject to
further limitation as follows:
(a) whenever Tenant shall default in the payment of any installment of
fixed annual rent, or in the payment of any additional rent or any other charge
payable by Tenant to Landlord, on any day upon which the same ought to be paid,
and such default shall continue for ten (10) days after Landlord shall have
given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, in default of any of Tenant's obligations hereunder, and if
such situation shall continue and shall not be remedied by Tenant within thirty
(30) days after Landlord shall have given to Tenant a notice specifying the
same, or, in the case of a happening or default which cannot with due diligence
be cured within a period of thirty (30) days and the continuation of which for
the period required for cure will not subject Landlord to the risk of criminal
liability (as more particularly described in Article 8 hereof) or termination of
the Ground Lease (as defined in Section 25.06(a) hereof) or foreclosure of any
superior mortgage, if Tenant shall not, (i) within twenty (20) days after
Landlord shall have given Tenant notice thereof advise Landlord of Tenant's
intention to remedy such situation, (ii) duly commence to institute such cure
within said twenty (20) day period, and
-55-
PARK AVE ARMORY/NYLPC - LEASE PT II
thereafter diligently and continuously prosecute to completion such cure, and
(iii) complete such remedy within such time after the date of the giving of said
notice to Landlord as shall reasonably be necessary, or
(c) whenever any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the term
hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 11, or
(d) whenever Tenant shall default in the due keeping, observing or
performance of any covenant, agreement, provision or condition of Article 5
hereof on the part of Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by Tenant within seven (7)
business days after Landlord shall have given to Tenant a notice specifying the
same,
then in any of said cases set forth in the foregoing subsections (a), (b), (c)
and (d) Landlord may give to Tenant a notice of intention to end the term of
this Lease at the expiration of five (5) days from the date of the service of
such notice of intention, and upon the expiration of said five (5) days this
Lease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.01. If Tenant shall default in the payment of any installment of fixed
annual rent, or of any additional rent, on any date upon which the same ought to
be paid, and if such default shall continue for ten (10) days after Landlord
shall have given to Tenant a notice specifying such default, or if this Lease
shall expire as in Article 16 provided, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the demised
premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or otherwise, without being liable to
indictment, prosecution or damages therefrom, to the end that Landlord may have,
hold and enjoy the demised premises again as and of its first estate and
interest therein. The word re-enter, as herein used, is not restricted to its
technical legal meaning. In the event of any termination of this Lease under the
provisions of Article 16 or if Landlord shall re-enter the demised premises
under the provisions of this Article 17 or in the event of the termination of
this Lease, or of re-entry, by or under any summary dispossess or other
proceedings or action or any provision of law by reason of default hereunder on
the part of Tenant, which remains uncured after notice and beyond the expiration
of the applicable cure period, Tenant shall thereupon pay to Landlord the fixed
annual rent and additional rent payable by
-56-
PARK AVE ARMORY/NYLPC - LEASE PT II
Tenant to Landlord up to the time of such termination of this Lease, or of such
recovery of possession of the demised premises by Landlord, as the case may be,
and shall also pay to Landlord damages as provided in Article 18.
17.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. Except as otherwise expressly provided herein, the special remedies
to which Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may
lawfully be entitled at any time and Landlord may invoke any remedy allowed at
law or in equity as if specific remedies were not provided for herein.
17.03. If this Lease shall terminate under the provisions of Article 16,
or if Landlord shall re-enter the demised premises under the provisions of this
Article 17, or in the event of the termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, which
remains uncured after notice and beyond beyond the expiration of the applicable
cure period, all moneys, if any, paid by Tenant to Landlord, whether as advance
rent, security or otherwise, shall be applied by Landlord against any fixed
annual rent or additional rent due from Tenant at the time of such termination
or re-entry or, at Landlord's option against any damages payable by Tenant under
Articles 16 and 18 or pursuant to law.
17.04. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the demised premises, by reason of the violation by Tenant of any
of the covenants and conditions of this Lease or otherwise.
ARTICLE 18
DAMAGES
18.01. If this Lease is terminated under the provisions of Article 16, or
if Landlord shall re-enter the demised premises under the provisions of Article
17, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, which remains uncured
after notice and beyond the expiration of the applicable cure period, Tenant
shall pay to Landlord as damages, at the election of Landlord, either
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value (i.e., discounted to present value using a discount rate equal to the
Prime Rate at such time of reentry or termination) of the excess, if any, of
-57-
PARK AVE ARMORY/NYLPC - LEASE PT II
(1) the aggregate of the fixed annual rent (subject to the
provisions of Section 18.02 hereof) and the additional rent payable
hereunder which would have been payable by Tenant (conclusively presuming
the additional rent to be the same as was payable for the year immediately
preceding such termination except that additional rent on account of
increases in Taxes and Operating Expenses shall be presumed to increase at
the average of the annual rates of increase thereof previously experienced
by Landlord during the period (not to exceed 3 years) prior to such
termination) for the period commencing with such earlier termination of
this Lease or the date of any such re-entry, as the case may be, and
ending with the Expiration Date, had this Lease not so terminated or had
Landlord not so re-entered the demised premises, over
(2) the aggregate fair rental value of the demised premises for the
same period, or
(b) sums equal to the fixed annual rent (subject to the provisions of
Section 18.02 hereof) and the additional rent (as above presumed) payable
hereunder which would have been payable by Tenant had this Lease not so
terminated, or had Landlord not so re-entered the demised premises, payable upon
the due dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if Landlord
shall re-let the demised premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord from such re-letting, such net
rents to be determined by first deducting from the gross rents as and when
received by Landlord from such re-letting, the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the demised premises and in
securing possession thereof, as well as the expenses of re-letting, including
altering and preparing the demised premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the demised
premises and the rental thereof; it being understood that any such re-letting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this subsection
to a credit in respect of any net rents from a re-letting, except to the extent
that such net rents are actually received by Landlord. If the demised premises
or any part thereof should be re-let in combination with other space, then
proper apportionment on a square foot basis shall be made of the rent received
from such re-letting and of the expenses of re-letting. If the demised premises
or any part thereof be re-let by Landlord to an unrelated third party for the
unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie, be the fair and
reasonable rental value for the demised premises, or part thereof, so re-let
during the term of the re-letting.
18.02. Notwithstanding anything to the contrary contained in Section 18.01
hereof, if this Lease is terminated or if Landlord shall re-enter the demised
premises during the Permanent Rental Period, then Tenant
-58-
PARK AVE ARMORY/NYLPC - LEASE PT II
shall pay to Landlord, immediately upon such termination or re-entry (and not in
accordance with the schedule for payment of damages set forth in Section 18.01
hereof), the portion of the fixed annual rent equal to the Termination Fixed
Rent as of the date of such re-entry or termination, subject to the provisions
of subsection 41.14(b) hereof.
18.03. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 16, or under any provision of law,
or had Landlord not re-entered the demised premises. Nothing herein contained
shall be construed to limit or prejudice the right of Landlord to prove for and
obtain as liquidated damages by reason of the termination of this Lease or
re-entry of the demised premises for the default of Tenant under this Lease, 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 any of the
sums referred to in Section 18.01. Nothing herein contained shall be construed
to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry of the
demised premises for the default of Tenant under this Lease, 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 any of the sums referred to
in Section 18.01.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01. 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 and such default
remains uncured after notice and beyond the expiration of the applicable cure
period, (a) Landlord may remedy such default for the account of Tenant,
immediately and without notice in case of emergency, or in any other case only
provided that Tenant shall fail to remedy such default with all reasonable
dispatch after Landlord shall have notified Tenant in writing of such default
and of Landlord's intention to exercise its self-help right pursuant to this
Section 19.01 and the applicable grace period for curing such default shall have
expired; and (b) if Landlord makes any reasonable expenditures or incurs any
reasonable obligations for the payment of money in connection with such default
including, but not limited to, reasonable attorneys' fees in instituting,
prosecuting or defending any action or proceeding, such sums paid or obligations
incurred, with interest at the Interest Rate, shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Landlord within twenty (20) days
after rendition of a xxxx to Tenant therefor.
-59-
PARK AVE ARMORY/NYLPC - LEASE PT II
ARTICLE 20
QUIET ENJOYMENT
20.01. Landlord covenants and agrees that subject to the terms and
provisions of this Lease, Tenant may peaceably and quietly enjoy the demised
premises and Tenant's rights under this Lease shall not be cut off or ended
before the expiration of the term of this Lease, subject however, to: (i) the
obligations of this Lease, and (ii) the provisions of Article 25 hereof with
respect to ground and underlying leases and mortgages which affect this Lease.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01. So long as this Lease is in full force and effect, Landlord shall,
at its cost and expense:
(a) (i) maintain and operate the heating system serving the demised
premises, and shall furnish heat in the demised premises as may be reasonably
required for comfortable occupancy of the demised premises during Business Hours
of Business Days. Landlord covenants and agrees that the portion of the Building
heating system (the "Premises Heating System") servicing the demised premises
shall be in good working order and in compliance with all Legal Requirements on
or before the day that Tenant shall commence the conduct of its business in the
demised premises, and that Landlord shall maintain and repair the Premises
Heating System in good working order and condition and in compliance with all
Legal Requirements throughout the term of this Lease and that the Premises
Heating System shall be capable of maintaining inside conditions of
approximately 65(degree)F dry bulb when the outside winter temperature is
0(degree)F dry bulb. The foregoing capabilities of the system are based upon and
limited to the continuous closure of all exterior windows. "Business Hours"
shall mean 8:00 a.m. to 6:00 p.m. If Tenant shall require heat service at any
other time, Landlord shall furnish such service for such times provided Tenant
shall give Landlord notice thereof for overtime evening service on any Business
Day prior to 1:00 P.M. of such Business Day and for such overtime service on
weekends or holidays prior to noon on the next preceding Business Day, and
Tenant shall pay to Landlord within fifteen (15) days after demand for such
overtime service as set forth in the following sentence. As of the date hereof,
Landlord's Building Standard charge for overtime heating is $25 per hour per
floor (four (4) hour minimum required) subject to increase after the date hereof
from time to time equal to 103% of actual increases after the date hereof in
Landlord's out-of-pocket costs to provide same (but in no event shall such
charge exceed the Building Standard charge therefor).
-60-
PARK AVE ARMORY/NYLPC - LEASE PT II
(ii) furnish air-conditioning in the demised premises as follows:
1. Landlord shall furnish air-conditioning in the 7th and 8th
floors of the Building through the eight (8) ceiling hung units,
Model C15G3B made by Cool Air Corp (herein called the "Air-Cooled
Units") installed therein as part of Tenant's Work which shall
provide air-conditioning service only to the 7th and 8th floors.
Tenant shall operate such Air-Cooled Units which shall be operable
on a 24-hour basis. The Air-Cooled Units shall be capable of
providing air-conditioning service during the term of this Lease in
accordance with the design specifications for same. All electricity
used in connection with the operation of the Air-Cooled Units shall
be obtained by Tenant at Tenant's expense pursuant to the provisions
of Article 4 hereof. After the installation of same in accordance
with Legal Requirements and with Tenant's final plans, the
maintenance and repair of the Air-Cooled Units shall be performed by
Landlord and the costs of such maintenance and repair shall be borne
by Landlord except that if Tenant shall operate such Air-Cooled
Units at times other than Business Hours of Business Days, Tenant
shall be liable to pay to Landlord, as additional rent hereunder
within ten (10) days after demand therefor, for such overtime
service (i.e., the operation of each Air-Cooled Unit for more than
an aggregate of 3,000 hours per calendar year for each such Unit) at
the rate of twenty-eight ($0.28) cents per hour per Unit on a
Unit-by-Unit basis except that Landlord shall permit Tenant a credit
in the following amounts per annum per unit to be applied against
such aggregate annual overtime costs on a Unit-by-Unit basis, as
follows:
0xx Xxxxx 0xx Xxxxx
--------- ---------
Unit 1 - $87.36 p/a Xxxx 0 - $56.00 p/a
Xxxx 0 - $72.80 p/a Xxxx 0 - $109.20 p/a
Xxxx 0 - $36.40 p/a Xxxx 0 - $56.00 p/a
Xxxx 0 - $36.40 p/a Xxxx 0 - $36.40 p/a
The location of each of the above-mentioned Units is set forth
on Schedule F annexed hereto and made a part hereof.
If the commencement or termination of this Lease shall occur
on any day other than the first day or the last day of a calendar
year, respectively, then the foregoing calculation shall be
prorated.
-61-
PARK AVE ARMORY/NYLPC - LEASE PT II
2. Landlord shall furnish air-conditioning in the portion of
the 9th floor comprising the demised premises through a 30-ton
water-cooled air-conditioning unit (hereinafter called the
"Water-Cooled Unit") located within the demised premises which
operates off condenser water provided by Landlord from a central
cooling tower servicing the Building and which services the portion
of the demised premises located on the ninth (9th) floor and the
westerly portion of the ninth (9th) floor of the building directly
contiguous to the 9th floor portion of the demised premises (the
"Continuous A/C Premises"). The condensing unit for the Water-Cooled
Unit will function when seasonably required on Business Days, from
8:00 A.M. to 6:00 P.M. and shall be capable of providing condenser
water as set forth in the specifications annexed hereto as Schedule
O. Landlord shall maintain and keep the Water-Cooled Unit in good
order and repair and shall maintain and operate the Water-Cooled
Unit, subject to the design specifications of the systems and to
energy conservation requirements of, and voluntary energy
conservation programs sponsored by, governmental authorities (but
not in excess of programs customarily followed by owners of office
buildings comparable to the Building). All electricity used in
connection with the operation of the Water-Cooled Unit shall be
obtained by Tenant at Tenant's expense subject to the provisions
hereof pursuant to the provisions of Article 4 hereof, i.e., by
separate submeter to be installed by Landlord prior to the date that
Tenant shall occupy the demised premises for the conduct of its
business. During any period that the Contiguous A/C Premises shall
be unoccupied, Tenant shall bear 100% of such electricity costs for
operation of the Water-Cooled Unit during Business Hours of Business
Days provided, however, that Landlord agrees that during such period
the air ducts servicing the Contiguous A/C Premises from the
Water-Cooled Unit shall be blocked off. During any period that the
Contiguous A/C Premises are occupied, such electricity costs shall
be prorated on a rentable square foot basis for operation of the
Water-Cooled Unit during Business Hours of Business Days. In the
event that Tenant shall require air-conditioning service on the 9th
-62-
PARK AVE ARMORY/NYLPC - LEASE PT II
floor portion of the demised premises on days other than Business
Days or on Business Days but during the hours other than from 8:00
A.M. to 6:00 P.M., then Tenant shall be capable of operating the
Water-Cooled Unit automatically by switch control and Landlord shall
equip the Water-Cooled Unit with a mechanism to record the periods
of overtime use requested by Tenant and if same is so operated by
Tenant, Tenant agrees to pay Landlord's charges for such overtime
service at the Building as additional rent. As of the date of this
Lease, Landlord's Building Standard charge for overtime
air-conditioning service is seven cents ($0.07) per hour per ton for
each Water-Cooled Unit serving the 9th floor portion of the demised
premises, subject to increase from time to time after the date
hereof equal to 103% of actual increases in Landlord's out-of-pocket
costs to provide same (but in no event shall such charge exceed the
Building Standard charge therefor).
(b) provide reasonable passenger and freight elevator service to the
demised premises during Business Hours of Business Days, and there shall be at
least one passenger elevator subject to call at all other times. Landlord agrees
not to modify the existing passenger elevator service serving the demised
premises in any way which would reduce the passenger elevator service to the
demised premises below current industry standard, i.e., one passenger car per
45,000 occupied rentable square feet, and Landlord agrees not to reduce the
number of elevator cabs servicing the demised premises to below three (3) cabs,
subject to the provisions of Section 21.03 hereof. The use of the elevators
shall be on a non-exclusive basis and shall be subject to the Rules and
Regulations, and the use of the freight elevators shall be on a first-come,
first-served basis. If the Building supplies manually operated elevator service,
Landlord may at any time substitute automatic control elevator service, without
reducing or otherwise affecting any of Tenant's obligations hereunder. Use of
the freight elevators by Tenant during non-Business hours and on non-Business
Days shall be provided by Landlord to Tenant on a first-come, first-served basis
upon advance notice to Landlord, and Tenant shall pay, as additional rent
hereunder within fifteen (15) days after demand the following charges therefor:
as of the date hereof, Landlord's Building Standard overtime freight elevator
charge is at the rate of $55 per hour, with a minimum of four (4) hours on
non-Business Days, subject to increases after the date hereof from time to time,
equal to 103% of increases after the date hereof in Landlord's actual
out-of-pocket costs to provide same (but in no event shall such charge exceed
the Building Standard charge therefor).
Tenant has informed Landlord that Tenant anticipates daily
deliveries to the demised premises of no more than 3,000 copies of Tenant's
newspapers during any non-Business Hours of Business Days and at any time during
non-Business Days and Landlord agrees, subject to the provisions of this
paragraph, that a passenger elevator may be used for same. Landlord shall
designate a passenger elevator car to be used for such deliveries (the
-63-
PARK AVE ARMORY/NYLPC - LEASE PT II
"Delivery Car") and Landlord shall provide and install interior cab padding in
such passenger car on a daily basis prior to such delivery. Subject to Force
Majeure Causes and emergencies, the Delivery Car shall during non-Business Hours
be used only for such after-hours delivery and Tenant shall be liable to ensure
that the deliveryperson making such delivery shall effect same by use of his or
her rubber-wheeled hand-truck and that such deliveryperson shall lay protective
rubber walk-off mats, to be provided by Landlord and to be stored in a location
near the Building entrance lobby rendering same reasonably easily and promptly
accessible to such delivery person, for the purpose of protecting the carpeting
of the Building lobby during such access and egress by such deliveryperson.
Tenant shall also ensure that such deliveryperson shall remove such protective
mats upon completion of the delivery each evening. Tenant shall be responsible
for the cost of repairing all damage to the Building including, without
limitation, the Building lobby and the Delivery Car caused by, or resulting
from, such delivery and Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all loss, claim, damage. cost and liability
resulting from same. Notwithstanding anything to the contrary contained in this
paragraph, Landlord may, in its sole discretion, from time to time upon
reasonable advance notice to Tenant, modify the manner in which Tenant shall
have the right pursuant to this paragraph to make such delivery including,
without limitation, substituting another passenger elevator car or a freight
elevator car to be used as the Delivery Car, provided that Landlord provides to
Tenant elevator access to the demised premises for the purpose of such delivery
without Tenant's incurring overtime Building freight elevator charges or any
other Building charges therefor, and without diminishing the rights granted to
Tenant pursuant to this paragraph (except to a de minimis extent).
(c) (i) cause the demised premises, including the exterior and the
interior of the windows thereof, to be cleaned in accordance with the provisions
of Schedule D hereof. Landlord shall not be required to clean any portions of
the demised premises used for the preparation, serving or consumption of food or
beverages, training rooms, data processing or reproducing operations or private
lavatories or toilets. Tenant shall pay to Landlord within 15 days after demand
the costs incurred by Landlord for (a) extra cleaning work in the demised
premises required because of (i) negligence on the part of Tenant or its
subtenants or its or their employees or visitors, (ii) the use of portions of
the demised premises for special purposes requiring greater or more difficult
cleaning work than office areas, (iii) interior glass partitions or unusual
quantity of interior glass surfaces, and (iv) cleaning of materials or finishes
installed by Tenant or at its request which cleaning is not required under
Schedule D hereof, and (b) removal from the demised premises and the Building of
any refuse and rubbish of Tenant in excess of that ordinarily accumulated in
business office occupancy or at times other than Landlord's standard cleaning
times, and (c) the use of the demised premises by Tenant other than during
Business Hours on Business Days but only to the extent such usage actually
increases the amount of cleaning required to be performed in the demised
premises by more than an insignificant amount.
-64-
PARK AVE ARMORY/NYLPC - LEASE PT II
(ii) If the cleaning contractor employed by Landlord shall, in the
reasonable judgment of Tenant, materially fail to satisfy the requirements of
Schedule D annexed hereto, then Tenant shall have the right to give Landlord
written notice of such failure, which notice shall set forth in reasonable
detail the items which evidence such failure. Landlord shall have ninety (90)
days to cure, or to cause its cleaning contractor to cure, such failure in all
material respects. During such 90-day period, Tenant shall cooperate with
Landlord in its effort to cure such failure by responding promptly to any
reasonable inquiries made to Tenant with respect to the cleaning service. If,
after the expiration of such 90-day cure period, such cleaning contractor shall,
in Tenant's reasonable judgment, not have cured such failure in all material
respects, then Tenant shall give Landlord notice thereof, and unless Landlord
disputes Tenant's determination as hereinafter set forth, Landlord shall, within
ninety (90) days of receipt of Tenant's notice replace the cleaning contractor
in question for the entire Building. If, however, in Landlord's reasonable
judgment, such cleaning contractor shall have cured such failure within such
180-day cure period in substantially all material respects, or if, in the first
instance, Landlord disputes the fact that such cleaning contractor failed to
satisfy the requirements of Schedule D hereto, then Landlord shall notify Tenant
thereof, and either party shall have the right to submit the dispute to
arbitration, in accordance with the provisions of Article 38 hereof. If the
arbitrators shall make a determination in Tenant's favor, then Landlord and
Tenant agree that Tenant's sole remedy shall be for Landlord to replace the
cleaning contractor in question for the entire Building within ninety (90) days
from the date of such determination. If, however, the arbitrators shall make a
determination in Landlord's favor, then in such event, Landlord shall not be
obligated to replace the cleaning contractor in question.
(d) Landlord, its cleaning contractor and their employees shall have
access to the demised premises after 5:30 p.m. and before 8:00 a.m. and shall
have the right to use, without charge therefor, all light, power and water in
the demised premises reasonably required to clean the demised premises as
required under paragraph (c) of this subsection 21.01.
(e) Landlord agrees to repaint the painted surfaces on the lower two
floors of the Building facade after the Commencement Date and Landlord agrees
that the costs of such repainting shall not be includible in Operating Expenses.
(f) Furnish hot and cold water for lavatory, drinking and office
cleaning purposes. If Tenant requires, uses or consumes water for any other
purposes, Tenant agrees to Landlord installing a meter or meters to measure
Tenant's water consumption, and Tenant further agrees to reimburse Landlord for
the reasonable cost of the meter or meters and the installation thereof, and to
pay for the reasonable maintenance of said meter equipment. Tenant shall
reimburse Landlord for 103% of Landlord's actual costs to provide all water
consumed, as measured by said meter or meters, including sewer rents, (but in no
event shall such charge exceed the Building Standard charge therefor).
-65-
PARK AVE ARMORY/NYLPC - LEASE PT II
21.02. Intentionally omitted.
21.03. Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder and without
abatement of fixed annual rent, or additional rent, to stop or interrupt or
reduce service of any of the heating, ventilating, air-conditioning, electric,
sanitary, elevator or other Building systems serving the demised premises, or to
stop or interrupt or reduce any other services required of Landlord under this
Lease (whether or not specified in this Article 21) whenever and for so long as
may be necessary, by reason of (i) accidents, emergencies, or strikes, (ii) the
making of repairs or changes which Landlord is required or is permitted by this
Lease or by law to make or in good xxxxx xxxxx necessary to maintain and operate
the Building, (iii) difficulty in securing proper supplies of fuel, steam,
water, electricity, labor or supplies, or (iv) any other cause beyond Landlord's
reasonable control, whether similar or dissimilar; provided that except in case
of emergency, Landlord will notify Tenant in advance, if possible, of any such
stoppage and, if ascertainable, its estimated duration, and will proceed
diligently with the work necessary to resume such service as promptly as
possible and in a manner so as to minimize interference with Tenant's use and
enjoyment of the demised premises. Landlord agrees that the provisions of
Section 7.05 shall apply with respect to the performance of any such work.
21.04. It is expressly agreed that no persons, firms or corporations other
than those who have been approved by Landlord (such approval not to be
unreasonably withheld or delayed) will be permitted to furnish laundry, linen,
towels, and other similar supplies and services to tenants and licensees in the
Building. Landlord may fix, in its reasonable discretion, at any time and from
time to time, the hours during which and the regulations under which such
supplies and services are to be furnished.
21.05. Tenant agrees to employ such office maintenance contractor as
Landlord may from time to time designate, for all waxing, polishing, lamp
replacement and cleaning (other than those cleaning services Landlord is
obligated to furnish) provided that the quality thereof and the charges therefor
are reasonably comparable to that of other contractors. Tenant shall not employ
any other contractor for such services without Landlord's prior written consent,
which shall not be unreasonably withheld or delayed.
21.06. Landlord shall maintain, operate and manage the Building in a
manner consistent with that of other comparable office buildings in Manhattan.
Landlord will not be required to furnish any other services, except as otherwise
provided in this Lease.
21.07. Tenant shall have access to the demised premises on a
24-hour-per-day basis, subject to Landlord's reasonable security measures.
21.08. Landlord shall not unreasonably withhold its consent to the
installation in the demised premises by Tenant at Tenant's sole cost and expense
of a warming pantry (which may include a microwave and refrigerator) together
with a lunchroom unit provided that:
-00-
XXXX XXX XXXXXX/XXXXX - LEASE PT II
(a) the use thereof shall be confined to Tenant's officers, Tenant's
employees and business invitees;
(b) the operation thereof shall not involve the installation of any
flues or other ventilation equipment or facilities, and shall not cause any
food, cooking or other odors to emanate from the demised premises to other parts
of the Building; and
(c) Tenant shall from time to time engage such first-class
extermination services as shall be necessary to protect the demised premises
against rats, mice, roaches and other insects or vermin.
(d) Tenant may install vending machines as a service exclusively for
Tenant's employees and business invitees.
21.09. Tenant shall have the right to maintain on the Building directory
Tenant's Proportionate Operating Share of listings for such directory, at no
cost to Tenant.
21.10. Notwithstanding anything in this Lease contained to the contrary,
if, as result of (a) the failure of Landlord to provide heating or
air-conditioning service, passenger or freight elevator service or any utility
services required to be provided under this Lease or to make any repairs or
maintenance Landlord is obligated to make under this Lease, (b) any repair,
alteration or other work performed by Landlord or its agents, employees or
contractors in the Building or in the demised premises, or (c) any negligent act
or omission of Landlord or its agents or employees, the demised premises or any
portion thereof of no less than 7,500 rentable square feet shall become
untenantable or unusable for Tenant's business purposes for a period in excess
of ten (10) consecutive Business Days and the cause thereof shall not be any
negligent act or omission of Tenant, its agents, representatives or employees
("Tenant's Acts") or any reason set forth in Article 34 of this Lease, and
Tenant shall give Landlord notice of such untenantability or unusability and
shall vacate the demised premises or any such portion thereof for the period of
such untenantability or unusability, then, in such event the fixed annual rent
payable pursuant to Section 1.01 hereof and Tenant's Tax Payment and Tenant's
Expense Payment allocable to such portion of the demised premises on a pro rata
rentable square foot basis shall xxxxx from and after the first (1st) Business
Day of such untenantability or unusability until the demised premises or any
such portion thereof shall be rendered tenantable or usable for Tenant's
business purposes. In the event of any such event described in this Section
21.10, Landlord agrees to use reasonable diligent efforts to complete the cure
thereof and to be bound by, and subject to, the provisions of Section 7.05
hereof in connection with Landlord's cure of such failure.
21.11. Landlord covenants and agrees to provide, at Landlord's cost
subject to recoupment under Article 3 hereof, a concierge or Building lobby
attendant at the 000 Xxxx Xxxxxx Xxxxx entrance of the Building 24 hours a day,
365 days a year.
-67-
PARK AVE ARMORY/NYLPC - LEASE PT II
21.12. Landlord agrees that Tenant may install, at Tenant's sole cost and
expense, cable television in the demised premises for Tenant's use subject to
Landlord's reasonable approval of the plans and location for such installation.
ARTICLE 22
DEFINITIONS
22.01. The term "Landlord" as used in this Lease means only the owner, or
the mortgagee in possession, for the time being of the Land and Building (or the
owner of a lease of the Building or of the Land and Building), so that in the
event of any transfer of title to said Land and Building or said lease, or in
the event of a lease of the Building, or of the Land and Building, upon
notification to Tenant of such transfer or lease the said transferor Landlord
shall, from and after such transfer, be and hereby is entirely freed and
relieved of any and all covenants, obligations and liabilities of Landlord
hereunder, and it shall be deemed and construed as a covenant running with the
land without further agreement between the parties or their successors in
interest, or between the parties and the transferee of title to said Land and
Building or said lease, or the said lessee of the Building, or of the Land and
Building, that the transferee or the lessee has assumed and agreed to carry out
any and all such covenants, obligations and liabilities of Landlord hereunder.
22.02. The term "Business Days" as used in this Lease shall exclude
Saturdays, Sundays and all days recognized as holidays under the applicable (as
determined by the issue or matter in question) union contract.
22.03. "Interest Rate" shall mean a rate per annum equal to the lesser of
(a) 2% above the commercial lending rate (herein referred to as the "Prime
Rate") announced from time to time by Bankers Trust Company, as its prime rate
for 90-day unsecured loans, or (b) the maximum applicable legal rate, if any.
22.04. "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations and ordinances) and the orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices, commissions
and other subdivisions thereof, or of any official thereof, or of any other
governmental public or quasi-public authority, whether now or hereafter in
force, including, without limitation, The Americans with Disabilities Act of
1990, Public Law 101-336, 42 U.S.C. xx.xx. 12101 et seq. (herein called the
"Disabilities Act"), which may be applicable to the Land or Building or the
demised premises or any part thereof, or the sidewalks, curbs or areas adjacent
thereto.
22.05. "CPI" shall mean the Consumer Price Index for All Urban Consumers
("CPI-AUC"), New York, New York-Northeastern New Jersey, All Items
(1982-1984=100), issued and published by the Bureau of Labor Statistics of the
-00-
XXXX XXX XXXXXX/XXXXX - XXXXX XX XX
Xxxxxx Xxxxxx Department of Labor. In the event that CPI-AUC ceases to use a
1982-84 base rate of 100 as the basis of calculation, or if a substantial change
is made in the terms or number of items contained in CPI-AUC, then the CPI-AUC
shall be adjusted to the figure that would have been arrived at had the manner
of computing the CPI-AUC in effect at the date of this Lease not been altered.
If CPI-AUC is not available, the term CPI shall mean (i) a successor or
substitute index to CPI-AUC, appropriately adjusted; or (ii) if such a successor
or substitute index is not available or may not lawfully be used for the
purposes herein stated, a reliable governmental or other non-partisan
publication, selected by Landlord and approved by Tenant (which approval shall
not be unreasonably withheld or delayed), evaluating the information theretofore
used in determining CPI-AUC.
22.06. "Landlord Affiliate" shall mean any entity controlled by, which
controls or which is under common control with Landlord. For purposes hereof,
control means ownership directly or indirectly of 50% or more of the outstanding
voting stock, partnership interests or other beneficial interests of the entity
in question.
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01. If any term, covenant, condition or provision of this Lease or the
application thereof to any circumstance or to any person, firm or corporation
shall be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Lease or the application thereof to any
circumstances or to any person, firm or corporation other than those as to which
any term, covenant, condition or provision is held invalid or unenforceable,
shall not be affected thereby and each remaining term, covenant, condition and
provision of this Lease shall be valid and shall be enforceable to the fullest
extent permitted by law.
ARTICLE 24
BROKERAGE
24.01. Tenant covenants, represents and warrants that Tenant has had no
dealings or communications with any broker, or agent other than Xxxxxxxxx
Riverbank, L.P. (which is currently representing Landlord) and Xxxxxxxx Real
Estate Company (hereinafter collectively called the "Brokers") in connection
with the consummation of this Lease and the negotiation thereof, and Tenant
covenants and agrees to pay, hold harmless and indemnify Landlord from and
against any and all cost, expense (including reasonable attorneys' fees and
disbursements) or liability for any compensation, commissions or charges claimed
by any broker or agent, other than the Brokers in the event of a breach of the
foregoing representation.
-69-
24.02. Landlord covenants and agrees to pay, hold harmless and indemnify
Tenant from and against any and all cost, expense (including reasonable
attorneys' fees and disbursements) or liability for any compensation,
commissions or charges claimed by any broker or agent, claiming to have dealt
with Landlord with respect to this Lease or the negotiation thereof.
24.03. Landlord shall be responsible for any commission or fee payable to
the Brokers pursuant to separate agreements between Landlord and the Brokers.
24.04. The provisions of this Article 24 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 25
SUBORDINATION
25.01. Provided and only so long as the so-called non-disturbance
agreements referenced in Section 25.06 are in full force and effect and subject
to the provisions of Section 25.06 hereof, this Lease is and shall be subject
and subordinate to the Ground Lease (as hereinafter defined) and all ground or
underlying leases which may hereafter affect the real property of which the
demised premises form a part and to all mortgages which may now or hereafter
affect such leases or such real property, and to all renewals, modifications,
replacements and extensions thereof. The provisions of this Section 25.01 shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute and deliver
any instrument, in recordable form if required, that Landlord, the lessor of
the ground or underlying lease or the holder of any such mortgage or any of
their respective successors in interest may reasonably request to evidence such
subordination.
25.02. In the event of a termination of any ground or underlying lease
where the ground lessor has provided to Tenant a so-called non-disturbance
agreement as set forth in Section 25.06 hereof, or if the interests of Landlord
under this Lease are transferred by reason of, or assigned in lieu of,
foreclosure or other proceedings for enforcement of any mortgage where the
mortgagee has provided to Tenant a so-called non-disturbance agreement as set
forth in Section 25.06 hereof, or if the holder of any mortgage acquires a lease
in substitution therefor where the mortgagee has provided to Tenant a so-called
non-disturbance agreement as set forth in Section 25.06 hereof, then Tenant
under this Lease will, at the option to be exercised in writing by the lessor
under such ground or underlying lease or such mortgagee or purchaser, assignee
or lessee, as the case may be, either (i) attorn to it on the then-executory
terms and conditions of this Lease for the remainder of the term provided such
successor is entitled to possession of the demised premises and will perform for
its benefit all the terms, covenants and conditions of this Lease on Tenant's
part
-70-
to be performed with the same force and effect as if said lessor, such mortgagee
or purchaser, assignee or lessee, were the landlord originally named in this
Lease, or (ii) enter into a new lease with said lessor or such mortgagee or
purchaser, assignee or lessee, as landlord, for the remaining term of this Lease
and otherwise on the same terms and conditions and with the same options, If
any, then remaining. The foregoing provisions of clause (i) of this Section
25.02 shall enure to the benefit of such lessor, mortgagee, purchaser, assignee
or lessee, shall be self-operative upon the exercise of such option, and no
further instrument snail be required to give effect to said provisions. Tenant,
however, upon demand of any such lessor, mortgagee, purchaser, assignee or
lessee agrees to execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section 25.02, reasonably satisfactory to any such
lessor, mortgagee, purchaser, assignee or lessee, acknowledging such attornment
and setting forth the terms and conditions of its tenancy.
25.03. Anything herein contained to the contrary notwithstanding, under no
circumstances shall the aforedescribed lessor under the ground lease or
mortgagee or purchaser, assignee or lessee, as the case may be, whether or not
it shall have succeeded to the interests of the landlord under this Lease, be
(a) liable for any act, omission or default of any prior landlord
provided, however, that the foregoing provisions of this subsection 25.03(a)
shall not be deemed to exculpate the successor landlord from the obligation to
cure any condition in the Building which continues to give rise to a default
after the date the successor landlord acquires its interest; or
(b) subject to any offsets, claims or defenses which the Tenant
might have against any prior landlord other than the abatements provided in
Section 1.01 hereof or otherwise as expressly set forth in this Lease; or
(c) bound by any fixed annual rent or additional rent which Tenant
might have paid to any prior landlord for more than one month in advance or for
more than three months in advance where such rent payments are payable at
intervals of more than one month; or
(d) bound by any modification, amendment or abridgment of the Lease,
or any cancellation or surrender of the same, made without its prior written
approval except with respect to any cancellation or surrender of this Lease made
pursuant to any express right expressly set forth in this Lease.
25.04. If, in connection with the financing of the Building, the holder of
any mortgage shall request reasonable modifications in this Lease as a condition
of approval thereof, Tenant will not unreasonably withhold, delay or defer
making such modifications, provided that such modifications do not (i) increase
the monetary obligations of Tenant or (ii) except to a de minimis extent (A)
increase the non-monetary obligations of Tenant hereunder or (B) decrease the
rights of Tenant or the obligations of Landlord hereunder.
-71-
25.05. Tenant agrees that, except for the first month's rent hereunder, it
will pay no rent under this Lease more than thirty (30) days in advance of its
due date, and, in the event of any act or omission by Landlord, Tenant will not
exercise any right to terminate this Lease or to remedy the default and deduct
the cost thereof from rent due hereunder until Tenant shall have given written
notice of such act or omission to the ground lessor and to the holder of any
mortgage on the fee or the ground lease who shall have furnished such lessor's
or holder's last address to Tenant, and until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notices,
during which time such lessor or holder shall have the right, but shall not be
obligated, to remedy to completion or cause to be remedied to completion such
act or omission. Tenant shall not exercise any right pursuant to this Section
26.02 if the holder of any mortgage or such aforesaid lessor commences to cure
such aforesaid act or omission within a reasonable time and diligently
prosecutes such cure thereafter.
25.06.(a) Landlord represents that (i) the only superior lease currently
affecting the Land or the Building is that certain lease dated July 1, 1964
between PARK 25TH ASSOCIATES, as landlord, and Xxxxx Xxxxx, as tenant, and which
lease was assigned by Xxxxx Xxxxx to 345 PARK SOUTH ASSOCIATES by assignment
dated July 1, 1964 and which lease was further assigned by 000 XXXX XXXXX
ASSOCIATES to 000 XXXX XXXXXX XXXXX PARTNERSHIP by assignment dated June 30,
1982, and which lease was further assigned by 000 XXXX XXXXXX XXXXX PARTNERSHIP
to Landlord's predecessor-in-interest The Armory Building Limited Partnership,
by assignment dated May 20, 1985, as amended by a First Amendment of Lease dated
May, 1989 between Park 25th Associates, as landlord and The Armory Building
Limited Partnership, Landlord's predecessor-in-interest, as tenant (herein
called the "Ground Lease"); (ii) there are no leasehold mortgages currently
affecting Landlord's interest as tenant under the Ground Lease; and (iii) there
are no mortgages currently affecting the fee interest in the Land and Building
other than a mortgage held by the lessor under the Ground Lease. Landlord shall
use reasonable efforts to obtain a so-called non-disturbance agreement from the
lessor under the Ground Lease (in the form annexed hereto as Schedule H hereof),
and Tenant hereby agrees to pay any reasonable attorneys' fees of the lessor
under the Ground Lease actually charged to Landlord pursuant to the Ground Lease
in connection with obtaining such non-disturbance agreement. If Landlord shall
fail to obtain any such non-disturbance agreement within thirty (30) days from
the date hereof, Tenant may terminate this lease by providing notice thereof to
Landlord within fifteen (15) days after the expiration of said 30-day period and
this lease shall terminate as of the fifth (5th) Business Day following the
giving of Tenant's notice and Landlord shall return to Tenant the Security
Deposit and the first full month's rent submitted to Landlord hereunder, unless
Landlord shall have obtained and delivered to Tenant such non-disturbance
agreement within such five (5) Business Day period.
(b) With respect to future leasehold mortgages affecting Landlord's
interest in the Ground Lease and future ground and underlying leases, the
subordination of this Lease to such future leasehold mortgages and future ground
leases shall be conditioned upon the execution and delivery by
-72-
and between Tenant and any such mortgagee or lessor of a so-called
non-disturbance agreement in a form customarily used by such mortgagee or lessor
provided same shall contain provisions no more onerous to Tenant (except to a de
minimis extent) than, and shall be as beneficial to Tenant as, the provisions of
Schedule L annexed hereto (in the case of mortgagees) or Schedule H annexed
hereto (in the case of ground lessors). Tenant agrees to execute such agreements
and return same to Landlord within twenty (20) days after Landlord's written
request therefor. If Tenant shall fail to execute, acknowledge and return any
such agreement within such twenty (20) day period, then Landlord may send a
notice to Tenant indicating that, as of the tenth (10th) day following such
second notice, this Lease shall be subordinate to such future leasehold
mortgages or future leases, as the case may be, pursuant to the terms and
conditions of such agreement, and Tenant shall be deemed to have executed and
delivered such agreement to the lessor or mortgagee requesting such execution,
notwithstanding the fact that Tenant has not, in fact, executed and delivered
such agreement. If Tenant shall fail to execute, acknowledge and return any such
agreement within such ten (10) day period then the provisions of the foregoing
sentence shall apply.
ARTICLE 26
ESTOPPEL CERTIFICATE
26.01. Each party agrees, at any time and from time to time, as requested
by the other party, upon not less than ten (10) Business Days' prior notice, to
execute and deliver to the other a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force as modified and stating the modifications),
certifying the dates to which the annual fixed rent and additional rent have
been paid, and stating whether or not, to the best knowledge of the signer and
without investigation, the other party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such default of
which the signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by others with whom the party
requesting such certificate may be dealing.
ARTICLE 27
LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL
27.01. Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
demised premises, and/or any other claims (except claims for personal injury or
property damage), and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of rent, Tenant will
-73-
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding, unless the failure to
interpose a counterclaim in such proceeding will result in a waiver thereof.
ARTICLE 28
SURRENDER OF PREMISES
28.01. Upon the expiration or other termination of the term of this Lease.
Tenant shall quit and surrender to Landlord the demised premises, broom clean,
in good order and condition, ordinary wear and tear, damage required to be
repaired by Landlord and damage by fire, the elements or other casualty and
condemnation excepted, and Tenant shall remove all of its property as and to the
extent herein provided. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
ARTICLE 29
RULES AND REGULATIONS
29.01. Tenant and Tenant's servants, employees and agents shall observe
faithfully and comply with (i) the Rules and Regulations set forth in Schedule B
attached hereto and made part hereof entitled "Rules and Regulations" and such
other and further reasonable Rules and Regulations as Landlord or Landlord's
agents may from time to time adopt and (ii) the Building Rules and Regulations
for Alterations attached hereto as Schedule G and such amendments or additions
thereto as Landlord or Landlord's agents may adopt; provided that in either case
any such further Rules and Regulations or such amendments or additions to the
Building Rules and Regulations for Alterations do not conflict with Tenant's use
of the demised premises as permitted hereunder or cause (except to a de minimis
extent) (A) an increase in Tenant's obligations hereunder or (B) a decrease in
Tenant's rights or Landlord's obligations hereunder, and provided, further, that
in case of any conflict or inconsistency between the provisions of this Lease
and of any of the Rules and Regulations or Building Rules and Regulations for
Alterations as originally or as hereafter adopted, the provisions of this Lease
shall control. Reasonable advance written notice of any additional Rules and
Regulations or Building Rules and Regulations for Alterations shall be given to
Tenant. Landlord agrees not to unreasonably withhold or delay any consent or
approval required under the Rules and Regulations.
Nothing in this Section 29.01 contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees. Landlord shall not enforce any Rule or Regulation against Tenant
which Landlord shall not then be generally enforcing against other office
tenants in the Building.
-74-
Any dispute between Landlord and Tenant with respect to the Rules and
Regulations shall be resolved by arbitration pursuant to Article 38 hereof.
ARTICLE 30
CONSENTS AND APPROVALS
30.01. Wherever in this Lease Landlord's consent or approval is required,
if Landlord shall delay or refuse such consent or approval, Tenant in no event
shall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
way of set-off, counterclaim or defense) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or unreasonably delayed its consent
or approval. Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, for specific performance, injunction or declaratory
judgment. Tenant may, however, commence arbitration under Section 30.02 or
Article 38 hereof, as the case may be, for the resolution of any dispute between
Landlord and Tenant with respect to the reasonableness of Landlord's withholding
of consent in any case where Landlord has expressly agreed in this Lease not to
unreasonably withhold or delay its consent. Notwithstanding the foregoing,
Tenant may make a claim for money damages against Landlord in any instance in
which there has been a final judicial determination of a court of competent
jurisdiction that Landlord has withheld or delayed its consent maliciously or in
bad faith with respect to any consent that Landlord is asked to grant in
accordance with this Lease and which such consent Landlord has expressly agreed
in this Lease not to unreasonably withhold; provided, however, that in no event
shall Landlord be liable for consequential, special or indirect damages.
30.02. (a) If there is a dispute between Landlord and Tenant as to (i) the
reasonableness of Landlord's refusal to consent to any assignment or subletting,
or (ii) the reasonableness of Landlord's refusal to consent to any Alteration,
in either event where Landlord has expressly agreed herein not to unreasonably
withhold its consent, Tenant may, at its option, as its sole and exclusive
remedy (subject to the provisions of the last sentence of Section 30.01 hereof),
submit such dispute to arbitration in the City of New York under the Expedited
Procedures provisions of the Commercial Arbitration Rules of the American
Arbitration Association or any successor (the "AAA") (presently Rules 53 through
57 and, to the extent applicable, Section 19); provided, however, that with
respect to any such arbitration, (i) the list of arbitrators referred to in Rule
54 shall be returned within five (5) days from the date of mailing; (ii) the
parties shall notify the AAA by telephone, within four (4) days of any
objections to the arbitrator appointed and will have no right to object if the
arbitrator so appointed was on the list submitted by the MA and was not objected
to in accordance with the second paragraph of Rule 54; (iii) the Notice of
Hearing referred to in Rule 55 shall be four (4) days in advance of the hearing;
(iv) the hearing shall be held within seven (7) days after the appointment of
the arbitrator; (v) the arbitrator shall have no right to award damages; and
(vi) the decision and award of the arbitrator shall be final and conclusive on
the parties.
-75-
(b) The arbitrators conducting any arbitration shall be bound by the
provisions of this Lease and shall not have the power to add to, subtract from,
or otherwise modify such provisions. Landlord and Tenant agree to sign all
documents and to do all other things necessary to submit any such matter to
arbitration and further agree to, and hereby do, waive any and all rights they
or either of them may at any time have to revoke their agreement hereunder to
submit to arbitration and to abide by the decision rendered thereunder. With
respect to a dispute concerning the reasonableness of Landlord's refusal to
consent to any assignment or subletting, each of the arbitrators shall have at
least ten (10) years' experience in the business of managing real estate or
acting as a real estate broker or real estate attorney dealing with first-class
office buildings located in Manhattan. With respect to a dispute concerning the
reasonableness of Landlord's refusal to give any approval of any Alteration with
respect to which Landlord expressly agreed herein to be reasonable, each of the
arbitrators shall be an architect or engineer with at least ten (10) years'
experience in designing and performing Alterations in first-class office
buildings located in Manhattan similar in size, quality and character to the
Alteration which is the subject of the dispute. Each party hereunder shall pay
its own costs, fees and expenses in connection with any arbitration or other
action or proceeding brought under this Article 30, and the expenses and fees of
the arbitrators selected shall be shared equally by Landlord and Tenant.
Notwithstanding any contrary provisions hereof (but subject to the provisions of
the last sentence of Section 30.01 hereof), if Tenant shall submit such dispute
to arbitration, then Landlord and Tenant agree that (i) the arbitrators may not
award or recommend any damages to be paid by either party, (ii) in no event
shall either party be liable for, nor be entitled to recover, any damages, and
(iii) Tenant's sole remedy arising out of such arbitrator's decision shall be
the right to enter into the proposed sublease or assignment, or proceed on the
basis that the requested approval relating to such Alteration had been granted,
as the case may be.
ARTICLE 31
NOTICES
31.01. Any notice, demand, consent, approval, disapproval, or statement
(hereinafter collectively referred to as the "Notices") required to be given by
the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be in
writing. Unless otherwise required by such law or regulation, each Notice shall
be given, and shall be deemed to have been served and given (A) three (3)
Business Days after such Notice is mailed by registered or certified mail,
return receipt requested, deposited enclosed in a securely closed post-paid
wrapper, in a United States Government general or branch post office, or
official depository with the exclusive care and custody thereof, or (B) one (1)
Business Day after such Notice is mailed by nationally recognized overnight
courier, addressed to either party, at its address set forth on page 1 of this
Lease. After Tenant shall occupy the demised premises
-76-
for the conduct of its business, the address of Tenant for Notices, demands,
consents, approvals or disapprovals shall be the Building, Attention: Xxxxx
Xxxxxxxxxxx. Either party may, by notice as aforesaid, designate a different
address or addresses for Notices.
31.02. In addition to the foregoing, either Landlord or Tenant may, from
time to time, request in writing that the other party serve a copy of any Notice
on one or two other persons or entities designated in such request, such service
to be effected as provided in Section 31.01 hereof.
31.03. Pursuant to Section 31.02 hereof, a copy of each Notice to be
served upon Landlord at its address on page 1 of this Lease shall also
simultaneously be served upon Landlord at the following address: Bankers Trust
Co., 000 Xxxx Xxxxxx -- 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxx, Vice
President, and a copy of each Notice of default to be served upon Tenant
pursuant to Article 16 hereof shall also be served upon Xxxx & Xxxxx, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxx X. Xxxxxx, Esq.
ARTICLE 32
NO WAIVER
32.01. No agreement to accept a surrender of this Lease shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of the demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord sublet the premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease. The failure of
either Landlord or Tenant to seek redress for violation of, or to insist upon
the strict performance of, any covenant or condition of this Lease or any of the
Rules and Regulations set forth herein, or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
payment by Tenant or the receipt by Landlord of rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the Rules and Regulations set
forth herein, or hereafter adopted, against Tenant and/or any other tenant in
the Building shall not be deemed a waiver of any such Rules and Regulations,
subject to the provisions of Section 29.01 hereof. No provision of this Lease
shall be deemed to have been waived by Landlord or Tenant, unless such waiver be
in writing signed by such party. No payment by Tenant or receipt by Landlord of
a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on the account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment of rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
-77-
32.02. This Lease contains the entire agreement between the parties, 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.
ARTICLE 33
CAPTIONS
33.01. 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.
ARTICLE 34
INABILITY TO PERFORM
34.01. If, by reason of (1) strike, (2) labor troubles, (3) governmental
pre-emption in connection with a national emergency, (4) any rule, order or
regulation of any governmental agency, (5) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, (6) act of
God, or (7) any other cause beyond Landlord's reasonable control except
financial inability, Landlord shall be unable to fulfill its obligations under
this Lease or shall be unable to supply any service which Landlord is obligated
to supply, this Lease and Tenant's obligation to pay rent hereunder shall in no
wise be affected, impaired or excused, except as otherwise provided herein. The
reasons set forth in clauses (1) through (7) of this Section 34.01 are
hereinafter called "Force Majeure Causes".
34.02. If, by reason of (1) strike, (2) labor troubles, (3) governmental
pre-emption in connection with a national emergency, (4) any rule, order or
regulation of any governmental agency, (5) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, (6) act of
God, or (7) any other cause beyond Tenant's reasonable control except financial
inability, Tenant shall be unable to fulfill its obligations to make any repairs
or alterations which Tenant is obligated to perform under this Lease, this Lease
and Landlord's obligations hereunder shall in no wise be affected, impaired or
excused, except as otherwise provided herein.
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01. Landlord or Landlord's agents have made no representations or
promises with respect to the Building or demised premises except as herein
expressly set forth.
-78-
ARTICLE 36
NAME OF BUILDING
36.01. (a) Except as otherwise expressly set forth in this Article 36,
Landlord shall have the full right at any time to name and change the name of
the Building and to change the designated address of the Building, and the
Building may be named after any person, firm, or otherwise, whether or not such
name is, or resembles, the name of a tenant of the Building.
(b) Notwithstanding the provisions of subsection 36.01(a), provided
and for so long as this Lease shall remain in full force and effect and the
Tenant named herein and/or its Affiliates or Successor shall be in actual
occupancy of no less than two (2) full floors of the Building, (i) such named
Tenant or such Affiliate or Successor which is then in occupancy of at least two
(2) full floors of the Building shall have the right to install identifying
signage on the glass transom above the 000 Xxxx Xxxxxx Xxxxx entrance door of
the Building and/or etched or otherwise placed on the glass entrance door of
such 000 Xxxx Xxxxxx Xxxxx entrance; provided that such signage shall contain
only such named Tenant's name or the name of its Affiliate or Successor which is
then in actual occupancy of at least two (2) full floors of the Building and of
which the principal business is the publication or production of materials
concerning the legal profession and/or the identification logo of same (and
Landlord hereby approves the following name: "The New York Law Journal and The
National Law Journal") and such named Tenant, Affiliate or Successor shall have
obtained the prior written approval of Landlord, such approval not to be
unreasonably withheld or delayed, to plans and specifications for such signage
reflecting the color, size, configuration, design and materials of such signage
and Landlord hereby approves the size, configuration and design for same annexed
hereto as Schedule J, and provided further that no other tenant identification
signage shall be installed on the glass entrance door and glass transom of the
000 Xxxx Xxxxxx Xxxxx entrance door to the Building (Any such signage permitted
to be installed by the named Tenant, or its Affiliate or Successor may be
removed from the Building at any time at Tenant's option, and shall be removed
prior to the Expiration Date, in either case at Tenant's sole cost and expense
and Tenant shall repair any damage to the Building caused by such installation
or removal and restore same to its condition prior to such installation) and
(ii) Landlord shall not name the Building after, or give rights, to any person
or entity constituting a "Direct Competitor" as hereinafter defined, to install
its identifying signage on or above the 000 Xxxx Xxxxxx Xxxxx entrance door to
the Building or to install identifying signage on the exterior of the Building
which is larger than that of Tenant, and (iii) Landlord shall not permit any
other tenant in the Building which occupies 105% or less of the amount of
rentable square feet of office space then-occupied by Tenant to install
indentifying signage on the exterior of the Building which is larger than that
of Tenant. For purposes hereof, "Direct Competitor" shall mean (A) American
Lawyer and American Lawyer Media Group and any subsidiary of the foregoing of
which the principal business is the
-79-
publication of materials concerning the legal profession, and any entity, the
name of which contains the phrase "American Lawyer" or "American Lawyer Media
Group", (B) Los Angeles Daily Journal, (C) Chicago Daily Bulletin, (D) Lawyer's
Weekly USA, (E) Xxxxxxxx-Xxxx Law & Business, (F) Xxxxxxx Xxxxxx, and (G) any
future newspaper which is competitive with The New York Law Journal or The
National Law Journal.
ARTICLE 37
RESTRICTIONS UPON USE
37.01. It is expressly understood that no portion of the demised premises
shall be used as, by or for (i) the retail activities of a bank, trust company,
savings bank, industrial bank, savings and loan association or personal loan
bank (or any branch office or public accommodation office of any of the
foregoing), or (ii) a public stenographer or typist, xxxxxx shop, beauty shop,
beauty parlor or shop, telephone or telegraph agency, telephone or secretarial
service, messenger service (except in connection with the conduct of Tenant's
business in the demised premises), travel or tourist agency, employment agency
(other than a high class executive recruitment office), public restaurant or
bar, commercial document reproduction or offset printing service (except in
connection with the conduct of Tenant's business in the demised premises),
vending machines (other than for use by Tenant's employees and business
invitees), retail, wholesale or discount shop for sale of merchandise, retail
service shop, labor union, school or classroom (other than in connection with
training of Tenant's employees), governmental or quasi-governmental bureau,
department or agency, including an autonomous governmental corporation, or a
company engaged in the business of renting office or desk space.
ARTICLE 38
ARBITRATION
38.01. In the event of any dispute between Landlord and Tenant with
respect to: (i) construction issues under Article 2 and Schedule C; (ii) the
provisions of Article 29; and (iii) in each case specified in this Lease in
which resort to arbitration shall be required or may be elected by either party
(except as otherwise provided in Section 30.02 hereof), such arbitration (unless
otherwise specifically provided in other Sections of this Lease) shall be in New
York City in accordance with the Commercial Arbitration Rules of the AAA and the
provisions of this Lease. Within ten (10) Business Days next following the
giving of any notice by Landlord or Tenant stating that it wishes such dispute
to be determined by arbitration under this Article 38, Landlord and Tenant shall
each give notice to the other setting forth the name and address of an
arbitrator designated by the party giving such notice. If either party shall
fail to give notice of such designation within said ten (10) Business Days, then
the AAA shall select the arbitrator for the party
-80-
failing to choose. If the two arbitrators shall fail to agree upon the
designation of a third arbitrator within five (5) Business Days after the
designation of the second arbitrator then either party may apply to the AAA in
Manhattan, New York for the designation of such arbitrator. The three
arbitrators shall conduct such hearings as they deem appropriate, making their
determination in writing and giving notice to Landlord and Tenant of their
determination as soon as practicable, and if possible, within five (5) Business
Days after the designation of the third arbitrator: the concurrence of or, in
the event no two of the arbitrators shall render a concurrent determination,
then the determination of the third arbitrator designated shall be binding upon
Landlord and Tenant. Judgment upon any decision rendered in any arbitration held
pursuant to this Section 38.01 shall be final and binding upon Landlord and
Tenant, whether or not a judgment shall be entered in any court. Each party
shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this Section 38.01, including the expenses and fees of any
arbitrator selected by it in accordance with the provisions of this Section
38.01, and the parties shall share all other expenses and fees of any such
arbitration. The arbitrators shall be bound by the provisions of this Lease, and
shall not add to, subtract from or otherwise modify such provisions. Judgment
may be had on the decision and award of the arbitrators so rendered in any court
of competent jurisdiction.
38.02. If Tenant gives notice requesting arbitration as provided in
Section 38.01, Tenant shall simultaneously serve a duplicate of the notice on
each Superior Mortgagee and Superior Lessor whose name and address shall
previously have been furnished to Tenant, and such Superior Mortgagees and
Superior Lessors shall have the right to participate in such arbitration.
ARTICLE 39
INDEMNITY
39.01. Subject to the waiver provided pursuant to Section 9.08 hereof,
Tenant shall indemnify and save Landlord, its partners, directors, officers,
principals, shareholders, agents and employees (herein called the "Indemnitees")
harmless from and against (a) all claims of whatever nature against the
Indemnitees arising from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants or employees, (b) all claims against
the Indemnitees arising from any accident, injury or damage whatsoever caused to
any person or to the property of any person and occurring during the term hereof
in the demised premises, (c) all claims against the Indemnitees arising from any
accident, injury or damage occurring outside of the demised premises but
anywhere within or about the Building, where such accident, injury or damage
results or is claimed to have resulted from an act, omission or negligence of
Tenant or Tenant's contractors, licensees, agents, servants, or employees, and
(d) any breach, violation or non-performance of any covenant, condition or
agreement in this Lease set forth and contained on the part of Tenant to be
fulfilled, kept, observed and performed. This indemnity and hold harmless
agreement shall include indemnity from and against
-81-
any and all liability, fines, suits, demands, costs and expenses of any kind or
nature (including, without limitation, reasonable attorneys' fees and
disbursements) incurred in or in connection with any such claim or proceeding
brought thereon, and the defense thereof and shall be subject to the waiver of
subrogation set forth in Section 9.08 hereof; provided, however, that Tenant
shall not be liable for any consequential, indirect or special damages by reason
of this indemnity.
39.02. Subject to the waiver provided pursuant to Section 9.08 hereof,
Landlord shall indemnify, defend and save Tenant, its partners, directors,
officers, principals, shareholders, agents and employees harmless from and
against any claims against the foregoing indemnitees arising from the negligence
or wilful misconduct of Landlord, its agents or employees. This indemnity and
hold harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof and shall be subject to the waiver of subrogation set
forth in Section 9.08 hereof; provided, however, that in no event shall Landlord
be liable for any consequential, indirect or special damages by reason of this
indemnity.
39.03. If any claim, action or proceeding is made or brought against
either party, which claim, action or proceeding the other party shall be
obligated to indemnify such first party against pursuant to the terms of this
Lease, then, upon demand by the indemnified party, the indemnifying party, at
its sole cost and expense, shall resist or defend such claim, action or
proceeding in the indemnified party's name, if necessary, by such attorneys as
the indemnified party shall approve, which approval shall not be unreasonably
withheld. Attorneys for the indemnifying party's insurer are hereby deemed
approved for purposes of this Section 39.03. Notwithstanding the foregoing, an
indemnified party may retain its own attorneys to defend or assist in defending
any claim, action or proceeding involving potential liability of Five Million
Dollars ($5,000,000) or more, and the indemnifying party shall pay the
reasonable fees and disbursements of such attorneys.
39.04. The provisions of this Article 39 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 40
MEMORANDUM OF LEASE
40.01. Landlord and Tenant shall, at the request of the other party
execute and deliver a statutory form of memorandum of this Lease form reasonably
satisfactory to Landlord and Tenant for the purpose of recording, but said
memorandum of this Lease shall not in any circumstances be deemed to modify or
to change any of the provisions of this Lease. The filing fees and other
expenses (other than attorneys' fees of the other party) shall be borne by the
party requesting the filing of such memorandum.
-82-
ARTICLE 41
MISCELLANEOUS
41.01. Irrespective of the place of execution or performance, this Lease
shall be governed and construed in accordance with the laws of the State of New
York.
41.02. This Lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Lease to be
drafted.
41.03. 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.
41.04. 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.
41.05. Time shall be of the essence with respect to the exercise of any
option granted under this Lease.
41.06. Except as otherwise provided herein whenever payment of interest is
required by the terms hereof it shall be at the Interest Rate.
41.07. Tenant represents and warrants that this lease has been duly
authorized, executed and delivered by Tenant and constitutes the legal, valid
and binding obligation of Tenant.
41.08. In the event that Tenant is in arrears in payment of fixed annual
rent or additional rent hereunder and such default remains uncured beyond the
expiration of the applicable grace period, then during the continuation of such
event of default, 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 Landlord may, after notice to Tenant, apply any payments made by Tenant to
any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
41.09. This Lease shall not be binding upon Landlord or Tenant until the
same is executed by Landlord and Tenant and an executed copy thereof has been
delivered to Tenant and to Landlord. This Lease may be executed in counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument.
41.10. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, including, without limitation, this Section 41.10, unless such agreement
is in writing, refers expressly to this lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge,
termination or effectuation of the abandonment is sought.
-83-
41.11 Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 11 hereof shall operate to vest and rights in any
successors or assignee of Tenant and (b) the provisions of this Article 41 shall
not be construed as modifying any conditions of limitations contained in Article
16 hereof.
41.12. This Lease constitutes the entire agreement between the parties
with respect to the leasing of the demised premises.
41.13. In connection with any examination by Tenant of Landlord's books
and records, Tenant agrees to treat, and to instruct its employees, accountants
and agents to treat, all information as confidential and not disclose it to any
other person except as may be required by any Legal Requirement or to a court or
an arbitrator in a dispute between Landlord and Tenant; and Tenant will confirm
or cause its agents and accountants to confirm such agreement in a separate
written agreement if requested by Landlord.
41.14. Notwithstanding anything to the contrary contained herein:
(a) in the event that this Lease shall terminate for any reason
whatsoever during the Permanent Rental Period, then Tenant shall pay to Landlord
no later than five (5) days after the occurrence of such termination (unless an
earlier date for such payment is expressly set forth in this Lease) an amount
equal to the Termination Fixed Rent as of such termination date as set forth on
Schedule E annexed hereto, subject to the provisions of subsection 41.14(b)
hereof and
(b) if, prior to March 1, 1997, Landlord shall cease to make
payments under to that certain agreement of even date herewith between Landlord
and Tenant (the "Side Agreement") of "Monthly Payments" and "Occupancy
Payments", as defined in the Side Agreement, and thereafter (i) Landlord shall
have the right to, and shall re-enter the demised premises pursuant to Article
16 or 17 hereof and (ii) this Lease shall be terminated, then, in such event,
the Termination Fixed Rent shall be deemed to be the Termination Fixed Rent as
of the date that Landlord's payments under the Side Agreement shall have so
ceased.
ARTICLE 42
SECURITY
42.01. Tenant shall deposit with Landlord either the sum of $510,417.00 or
the "Security Letter", as defined in Section 42.02 hereof in such amount, as
security for the faithful performance and observance by Tenant of the terms,
provisions, covenants and conditions of this Lease. Such security (including
without limitation any cash portion remaining after application of the proceeds
drawn down under the Security Letter) shall be deposited in a segregated
interest-bearing account at Bankers Trust Company or, upon notice to Tenant, any
money center bank and Landlord shall refund to Tenant the amount of such
interest accrued on the monies so deposited once each calendar year upon written
request from Tenant. It is agreed that in the
-84-
event Tenant defaults in respect of any of the terms, provisions, covenants and
conditions of this Lease, including, but not limited to, the payment of fixed
annual rent and additional rent, and such default remains uncured after the
expiration of the applicable grace period set forth herein, Landlord may, during
the continuance of such event of default, use, apply or retain the whole or any
part of the security so deposited to the extent required for the payment of any
fixed annual rent and additional rent or any other sum as to which Tenant is in
default after notice and beyond applicable grace periods or for any sum which
Landlord may reasonably expend by reason of Tenant's default in respect of any
of the terms, provisions, covenants and conditions of this Lease, after notice
and beyond applicable grace periods including but not limited to, any damages
or deficiency accrued before or after summary proceedings or other re-entry by
Landlord. If and to the extent that Landlord has not applied the security in
accordance with the provisions hereof and Tenant shall have delivered to
Landlord an executed document in recordable form terminating any memorandum of
lease which Tenant shall have caused to be recorded pursuant to Article 40 of
this Lease the security shall be returned to Tenant within thirty (30) days
after the date fixed as the end of the Lease or the earlier termination thereof
and after delivery of entire possession of the demised premises to Landlord in
accordance with this Lease. In the event of a sale of the Land and Building or
leasing of the Building, Landlord shall have the right to transfer the security
to the vendee or lessee who shall be bound by the provisions hereof, and
Landlord shall upon such transfer be released by Tenant from all liability for
the return of such security; and in such event Tenant agrees to look solely to
the new landlord for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new landlord. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security except in connection with an assignment of this Lease permitted
hereunder and consented to by Landlord and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance except in connection with an
assignment of this Lease permitted hereunder and consented to by Landlord. In
the event Landlord applies or retains any portion or all of the security
deposited, Tenant shall forthwith restore the amount so applied or retained so
that at all times the amount deposited shall be $510,417.00.
42.02. In lieu of the cash security deposit provided for in Section 42.01
hereof, Tenant may at any time during the term hereof deliver to Landlord and
shall thereafter, except as otherwise provided herein or if Tenant shall, at any
time, provide a cash deposit in lieu thereof, maintain in effect at all times
during the term hereof, an irrevocable letter of credit, in form and substance
as set forth in Schedule N annexed hereto, in the amount of the security
required pursuant to this Article 42 issued by a banking corporation
satisfactory to Landlord and having its principal place of business or a duly
licensed branch or agency thereof in the State of New York. Landlord agrees that
CoreStates Bank and Credit Lyonnais S.A., New York Branch are satisfactory (such
banks and any other bank approved by Landlord are herein called individually an
"Approved Bank"). Such letter of credit shall provide that the full amount
thereof may be drawn down by Landlord upon
-85-
the presentation to the issuing bank of Landlord's sight draft on the issuing
bank together with a certificate from an officer of Landlord certifying that
Landlord is entitled to draw down the Security Letter by reason of a default by
Tenant under this Lease, after notice and the expiration of the applicable grace
period, and such letter of credit shall have an expiration date no earlier than
the first anniversary of the date of issuance thereof and shall be automatically
renewed from year to year unless terminated by the issuer thereof by notice to
Landlord given not less than forty-five (45) days prior to the expiration
thereof. If Landlord shall give Tenant notice that either the short-term or
long-term Standard & Poor's rating of the Approved Bank, which is the issuer of
the Security Letter, has decreased below the "Minimum Standard Rating", as
hereinafter defined (together with evidence thereof), then Tenant shall, no
later than fifteen (15) days from the receipt of such notice, deliver to
Landlord a replacement letter of credit from a bank satisfactory to Landlord or
a cash security deposit in the amount required hereunder provided, however, that
if Tenant shall during such 15-day period request Landlord's approval of a
proposed bank, and Landlord shall fail to respond to Tenant's request within
three (3) Business Days after receipt of such request, such 15-day period shall
be extended on a day-for-day basis for each day beyond such 3-Business Day
period that Landlord shall fail to respond to Tenant's request for approval. For
purposes hereof, the "Minimum Standard Rating" shall mean: (i) a long-term CD
rating not below A; (ii) a short-term CD rating not below A-1; and (iii) a
senior unsecured debt rating not below A. Except as otherwise provided in this
Article 42, Tenant shall, throughout the term of this Lease deliver to Landlord,
in the event of the termination of any such letter of credit, an extension of
such letter of credit or a replacement letter of credit in lieu thereof (each
such letter of credit and such extensions or replacements thereof, as the case
may be, is hereinafter referred to as a "Security Letter") no later than
forty-five (45) days prior to the expiration date of the preceding Security
Letter. The term of each such Security Letter shall be not less than one (1)
year and shall be automatically renewable from year to year as aforesaid. If
Tenant shall fail to obtain any replacement or extension of a Security Letter
within the time limits set forth in this Section 42.02, Landlord, as its sole
remedy, may draw down the full amount of the existing Security Letter and retain
the same as security hereunder, subject to the provisions of this Section 42.02.
42.03. In the event Tenant defaults after notice and beyond applicable
grace periods in respect of any of the terms, provisions, covenants and
conditions of this Lease, including, but not limited to, the payment of fixed
annual rent and additional rent, and such default remains uncured beyond any
applicable grace period, Landlord may during the continuance of such event of
default use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any fixed annual rent and additional
rent or any other sum as to which Tenant is in default or for any sum which
Landlord may reasonably expend by reason of Tenant's default in respect of any
of the terms, provisions, covenants, and conditions of this Lease, including but
not limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. To insure that
-86-
Landlord may utilize the security represented by the Security Letter in the
manner, for the purposes, and to the extent provided in this Article 42, each
Security Letter shall provide that the full amount thereof may be drawn down by
Landlord upon the presentation to the issuing bank of Landlord's sight draft
drawn on the issuing bank together with a certificate from an officer of
Landlord certifying that Landlord is entitled to draw down the Security Letter
by reason of a default by Tenant under this Lease, after notice and the
expiration of the applicable grace period.
42.04. In the event that Tenant defaults after notice and beyond
applicable grace periods in respect of any of the terms, provisions, covenants
and conditions of the Lease and Landlord utilizes all or any part of the
security represented by the Security Letter but does not terminate this Lease as
provided in Article 16 hereof, Landlord shall, in addition to exercising its
rights as provided in Section 42.03, retain the unapplied and unused balance of
the principal amount of the Security Letter as security for the faithful
performance and observance by Tenant thereafter of the terms, provisions, and
conditions of this Lease, and may use, apply, or retain the whole or any part of
said balance to the extent required for payment of rent, additional rent, or any
other sum as to which Tenant is in default or for any sum which Landlord may
expend or be required to expend by reason of Tenant's default in respect of any
of the terms, covenants, and conditions of this Lease. In the event Landlord
applies or retains any portion or all of the security delivered hereunder,
Tenant shall forthwith restore the amount so applied or retained so that at all
times the amount deposited shall be not less than the security required by
Section 42.01.
42.05. To the extent that the Security or any portion thereof has not been
applied in accordance with this Article 42, and Tenant shall have delivered to
Landlord an executed document in recordable form terminating any memorandum of
lease which Tenant shall have caused to be recorded pursuant to Article 40 of
this Lease the security shall be returned to Tenant within thirty (30) days
after the date fixed as the end of the Lease or the earlier termination hereof
and after delivery of entire possession of the demised premises to Landlord in
accordance with this Lease. In the event of a sale of the Land and Building or
leasing of the Building, Landlord shall have the right to transfer any interest
it may have in the Security Letter to the vendee or lessee who shall be bound by
the provisions hereof and Landlord shall upon such transfer be released by
Tenant from all liability for the return of such Security Letter, provided such
vendee or lessee assumes any responsibilities of Landlord with respect to such
Security Letter and in such event Tenant agrees to look solely to the new
landlord for the return of said Security Letter; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security Letter to a new landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. In the event of a sale of the Building Landlord shall have the
right to require Tenant to
-87-
deliver a replacement Security Letter naming the new landlord as beneficiary
and, if Tenant shall fail to timely deliver the same, to draw down the existing
Security Letter and retain the proceeds as security hereunder until a
replacement Security Letter is delivered.
ARTICLE 43
HOLDOVER
43.01. In the event this Lease is not renewed or extended or a new lease
is not entered into between the parties, and if Tenant shall then hold over
after the expiration of the term of this Lease, and if Landlord shall then not
proceed to remove Tenant from the demised premises in the manner permitted by
law (or shall not have given written notice to Tenant that Tenant must vacate
the demised premises) irrespective of whether or not Landlord accepts rent from
Tenant for a period beyond the Expiration Date, the parties hereby agree that
Tenant's occupancy of the demised premises after the expiration of the term
shall be under a month-to-month tenancy commencing on the first day after the
expiration of the term, which tenancy shall be upon all of the terms set forth
in this lease except Tenant shall pay on the first day of each month of the
holdover period as fixed annual rent, an amount equal to the higher of (i) an
amount equal to one hundred fifty (150%) percent of one-twelfth of the sum of
the fixed annual rent and additional rent payable by Tenant during the last year
of the term of this Lease (i.e., the year immediately prior to the holdover
period) or (ii) an amount equal to the then market rental value for the demised
premises. It is further stipulated and agreed that if Landlord shall, at any
time after the expiration of the original term or after the expiration of any
term created thereafter, proceed to remove Tenant from the demised premises as a
holdover, the fixed annual rent for the use and occupancy of the demised
premises during any holdover period shall be calculated in the same manner as
set forth above.
43.02 Notwithstanding anything to the contrary contained in this lease,
the acceptance of any rent paid by Tenant pursuant to Section 43.01 hereof shall
not preclude Landlord from commencing and prosecuting a holdover or summary
eviction proceeding, and the preceding sentence shall be deemed to be an
"agreement expressly providing otherwise" within the meaning of Section 232-c of
the Real Property Law of the State of New York.
ARTICLE 44
TENANT'S WORK; WORK FUND
44.01. Tenant hereby covenants and agrees that Tenant will, at Tenant's
own cost and expense, and in a good and workerlike manner, make and complete the
Tenant's Work, as hereinafter defined, in accordance with the final plans, as
hereinafter defined.
-88-
Tenant, at Tenant's expense, shall prepare a final plan or final set
of plans and specifications for the initial work to be performed by Tenant in
the demised premises (which said final plan or final set of plans, as the case
may be, and specifications are hereinafter called the "final plan") which shall
contain complete information, and dimensions necessary for the construction and
finishing of the demised premises and for the engineering in connection
therewith. The final plan shall be submitted by Tenant to Landlord for
Landlord's written approval, which approval shall be given or withheld in
accordance with the provisions of Article 6 hereof. If Landlord shall fail to
respond to Tenant's written request for approval of the final plans within ten
(10) Business Days after Landlord's receipt of such request, then Landlord shall
be deemed to have granted such approval provided that Tenant's request therefor
shall have expressly referenced this Section 44.01 and the aforementioned ten
(10) Business Day period and the consequences of Landlord's failure to timely
respond. The provisions of the preceding sentence shall apply to Tenant's
request for Landlord's approval of any revisions to the final plans provided
that the ten (10) Business Day period set forth therein shall be reduced to five
(5) Business Days. Tenant shall promptly reimburse Landlord within fifteen (15)
days after demand for any reasonable out-of-pocket costs and expenses incurred
by Landlord to unrelated third parties in connection with Landlord's review of
Tenant's final plan. If Landlord shall disapprove the final plan, Landlord shall
set forth its reasons for such disapproval and itemize those portions of the
final plan so disapproved. Landlord shall not be deemed unreasonable in
withholding its consent to the extent that the final plan prepared by Tenant
pursuant hereto involves the performance of work or the installation in the
demised premises of materials or equipment which do not substantially equal or
exceed the standard of quality adopted by Landlord for the Building (herein
called "Building Standard") to the extent such standard does not exceed that
adopted by landlords of comparable office buildings in Manhattan. Landlord has
received from Tenant the following drawings: (i) Prepared by SPGA-MBA, dated
8/16/93: ML1 through 4; 7C; 7PT; 7RC; 7FP; 7F; 7DHS; 8DE; 8C; 8PT; 8RC; 8FP; 8F;
8DHS; 9DE; 9C; 9PT; 9RC; 9FP; 9F; 9DHS; B-1; D-1 through 17 (other than D-13);
S-1 and S-2; (ii) Prepared by SPGA-MBA and countersigned by Xxxxxx X. Xxxxx
dated 8/23/93: M-1 through 5; E-1 through 12; SP-1 through 4; P-1 through 3.
Such drawings are approved by Landlord except as noted on that certain
memorandum dated September 29, 1993 from Landlord's managing agent to Landlord's
attorney, a copy of which has been previously delivered to Tenant.
In accordance with the final plan, Tenant, at Tenant's expense, will
make and complete in and to the demised premises the work and installations
(hereinafter called "Tenant's Work") specified in the final plan. Tenant agrees
that Tenant's Work will be performed using reasonable efforts to minimize
disturbance to the occupants of other parts of the Building and to the
structural and mechanical parts of the Building and Tenant will, at its own cost
and expense leave all structural and mechanical parts of the Building which
shall or may be affected by Tenant's Work in at least the same operating
condition as prior to the commencement of Tenant's Work. At any and all times
during the progress of Tenant's Work, Landlord shall be entitled to have
representatives on the site to inspect Tenant's Work provided that such access
and inspection shall not interfere with the performance of Tenant's Work and
such representatives shall have free and unrestricted access to any and every
part of the demised premises subject to the foregoing proviso in this sentence
and provided further that Landlord shall incur no liability,
-89-
obligation or responsibility to Tenant or any third party by reason of such
access and inspection, except to the extent of Landlord's negligence or wilful
misconduct or that of its agents or employees. Tenant shall advise Landlord in
writing of Tenant's general contractor and subcontractor(s) who are to do
Tenant's Work, and same shall be subject to Landlord's prior written approval
which approval will not be unreasonably withheld or delayed; such general
contractor and subcontractors(s) shall, to the extent permitted by law, use
employees for Tenant's Work who will work harmoniously with other employees on
the job. If Landlord shall fail to respond to Tenant's written request for
approval of a contractor written (10) Business Days after Landlord's receipt of
such request, then Landlord shall be deemed to have granted such approval.
Landlord approves Xxxx Xxxxxxxx Associates Inc., Xxxxxxxxxx Realty or OD&P
Construction to act as Tenant's construction manager or general contractor for
Tenant's Work.
Tenant shall at Tenant's sole cost and expense file all necessary
architectural plans and obtain all necessary approvals and permits in connection
with Tenant's Work being performed by it pursuant to this Article 44.
44.02. The following conditions shall also apply to Tenant's Work:
(a) intentionally omitted;
(b) Tenant, at Tenant's expense shall (i) file all required
architectural, mechanical and electrical drawings and obtain all necessary
permits, and (ii) furnish and perform all engineering and engineering drawings
in connection with Tenant's Work. Tenant shall obtain Landlord's approval of the
drawings referred to in (i) and (ii) hereof and of the engineer selected by
Tenant for engineering of Tenant's Work, which approval shall be given or
withheld in accordance with the provisions of Article 6 hereof. Landlord hereby
approves Xxxxxx X. Xxxxx of Xxxx Xxxxxxxx Associates Inc., as Tenant's engineer
for Tenant's Work;
(c) all Tenant's Work shall be performed by Tenant in accordance
with the provisions of Article 6 hereof and Landlord's Building Rules and
Regulations for Alterations;
(d) Landlord agrees that there shall be no charge to Tenant for the
use of the freight elevator during Business Hours of Business Days for the
period of the construction of Tenant's Work (including, without limitation, for
the movement of construction materials to the demised premises and the removal
of construction debris) in reasonable amounts provided same shall not
unreasonably interfere with the operations of the Building and the use thereof
by other tenants in the Building) and of Tenant's initial move-in to the
demised premises provided, however, that, except as otherwise expressly agreed
in this subsection 44.02(d), Tenant's use thereof shall be governed by the
provisions of Article 21 hereof. During the period of the performance of
Tenant's Work and Tenant's initial move-in to the demised premises, Tenant shall
pay to Landlord as overtime charges for use of the freight elevators
-90-
during non-Business Hours and on non-Business Days Landlord's actual cost to
provide same except that Tenant shall have free use of the freight elevators
during Tenant's construction and/or move-in to the demised premises for up to
thirty-two (32) overtime hours, subject to the provisions of Article 21 hereof.
Overtime charges for Tenant's use of overtime freight elevator service during
the performance of Tenant's Work and Tenant's initial move in may, at Tenant's
option, be credited against the portion of the Work Allowance allocable to the
Flexible Fund in accordance with Section 44.05 hereof.
(e) Landlord shall impose no percentage override fee on Tenant based
on the cost of Tenant's Work provided, however, that the foregoing shall not
prohibit Landlord from requiring Tenant to pay to Landlord as additional rent
hereunder Landlord's out-of-pocket costs for overtime expenses incurred by
Landlord in connection with Tenant's Work during non-Business Hours, except as
otherwise expressly provided in this Lease;
(f) All modifications to the sprinkler system existing in the
demised premises on the Commencement Date which are set forth in Tenant's final
plans as approved by Landlord shall be performed by Tenant at Tenant's expense.
Tenant will be liable for all costs in connection therewith including without
limitation the cost of system shut down during non-Business Hours and on
non-Business Days at the rate of $40.00 per hour per day;
(g) If Tenant shall install, at Tenant's cost, an internal fire
alarm system within the demised premises, same shall be included in Tenant's
final plans for Landlord's approval in accordance with this Article 44, and
Tenant shall, at Tenant's expense, wire same to a central point to be designated
by Landlord in the fire stairs of the Building between the sixth and tenth
floors, and Landlord shall, at Landlord's cost and expense, make the final
connection thereof to the Building Class E System;
(h) During the performance of Tenant's Work, Tenant shall be
permitted, at Tenant's sole cost and expense, to construct a customary
construction shed at a location within the demised premises, subject to
Landlord's prior reasonable approval of the method, design and location of same;
(i) During the performance of Tenant's Work and throughout the term
of this Lease in connection with Tenant's Alterations, subject to complying with
Legal Requirements, Tenant shall be permitted to use a reasonable portion of
shaft space which is available for use by tenants in the Building for Tenant's
communications cabling, cable TV cabling, Tenant's antenna wiring (pursuant to
Article 48 hereof) and electrical and other wiring which Tenant shall request in
writing from Landlord, subject to Landlord's approval thereof, such approval not
to be unreasonably withheld or delayed, subject to the then-current and future
anticipated needs of Landlord or of any then-current or future tenants with
respect to such additional available shaft space in the Building, all such usage
to be at no cost and expense to Landlord and in accordance with Landlord's
reasonable rules and regulations for same;
-91-
(j) Tenant shall have the right to install an internal staircase
between any contiguous floors demised to Tenant in a location and pursuant to
plans and specifications approved by Landlord, such approval not to be
unreasonably withheld or delayed and to install a private bathroom in the
demised premises in a location and pursuant to plans and specifications approved
by Landlord, such approval not to be unreasonably withheld or delayed. Any such
internal stairways (other than the stairway to be installed by Tenant between
the seventh (7th) and eighth (8th) floors of the Building and such private
bathroom) shall constitute Specialty Alterations as to which Landlord shall have
the rights set forth in Section 6.04 hereof; and
(k) Tenant shall be permitted, without charge by Landlord during
Business Hours of Business Days, reasonable access to the sixth (6th) floor of
the Building as necessary from time to time during the performance of Tenant's
Work for installing electrical and communication wiring above the suspended
ceiling of the sixth (6th) floor and for drilling poke-throughs in the 6th floor
ceiling for electrical and communications distribution on the 7th floor to the
extent such work is approved by Landlord as part of Tenant's final plans and
provided that in the event that all or any portion of the 6th floor shall be
leased, then Tenant's rights under this paragraph (k) shall be subject to
reasonable restrictions imposed by Landlord in order to minimize interference
with the use of such leased space by the future tenant thereof, and Tenant shall
reasonably cooperate with any such future tenants in connection with performing
any such work and scheduling any such access under this paragraph (k) hereunder.
If Tenant shall require access to the 6th floor for such purpose during
non-Business Hours or on non-Business Days, Tenant shall give Landlord
reasonable prior notice and Landlord shall provide Landlord's supervisory
personnel to monitor such after-hours access at Tenant's expense, not to exceed
Landlord's Building Standard charge therefore. It is understood and agreed that
Tenant shall not be responsible for removing and/or restoring any ceiling tiles
on the 6th floor which Landlord shall cause to be taken down in connection with
any installing and/or drilling any such poke-throughs in accordance with this
subparagraph (k) but otherwise Tenant shall be liable to repair and restore any
damage to the 6th floor premises resulting from such access. Landlord agrees
that core drilling reasonably necessary for purposes of the provisions of this
subparagraph (k) shall be permitted during Business Hours of Business Days
during the performance of Tenant's Work subject to the foregoing provisions of
this paragraph (k).
44.03. It is understood that of the services to be furnished by Landlord
referred to in Article 21 hereof, Landlord shall not furnish any cleaning
services until Tenant commences occupancy of the demised premises for the
conduct of its business. Tenant shall be responsible for removal of Tenant's
refuse and rubbish during the period that Tenant's Work is in progress in the
demised premises.
44.04. Landlord shall, at Tenant's written request, cooperate in all
reasonable respects with Tenant in the performance by Tenant of Tenant's Work in
preparing the demised premises for Tenant's occupancy and Landlord shall
-92-
instruct its employees and contractors to render such assistance and to
cooperate with Tenant's employees, representatives and contractors provided that
to the extent that Landlord shall incur any reasonable out-of-pocket expense to
unrelated third parties in so cooperating or in rendering such assistance,
Tenant shall reimburse Landlord for such expense as additional rent hereunder.
Landlord agrees to cooperate with Tenant, at no expense to Landlord, in
connection with executing all necessary permits, approvals or applications
required for the performance of Tenant's Work in accordance with the final plans
as approved by Landlord. Landlord and Tenant acknowledge and agree that Tenant's
Work and portions of Landlord's Post-Commencement Work shall be performed
concurrently in the demised premises and accordingly Landlord and Tenant hereby
agree to cooperate with each other in all reasonable respects such that the
performance simultaneously of Landlord's Post-Commencement Work and Tenant's
Work shall be coordinated in a reasonable manner.
44.05. (a) Landlord shall provide Tenant an allowance in the amount of up
to TWO MILLION FOUR HUNDRED EIGHT THOUSAND FIVE HUNDRED ($2,408,500) DOLLARS
(herein called the "Work Allowance") [calculated as ($2,385,000 ($45 prsf of the
office space) plus $23,500], which Work Allowance shall be applied against the
cost and expense of the actual construction work performed by Tenant in
connection with Tenant's Work in the Premises, provided, however, that a portion
of the Work Allowance in an amount not to exceed twenty (20%) percent of the
amount thereof may be applied by Tenant against the cost and expense of "Fees",
as hereinafter defined. In the event that the cost and expense of such actual
construction work and the Fees shall exceed the amount of the Work Allowance,
Tenant shall be entirely responsible for such excess. If Tenant does not use all
or any part of the Work Allowance for Tenant's Work and such Fees, then the Work
Allowance shall be reduced accordingly. For purposes hereof, "Fees" shall mean
costs and expenses incurred in connection with Tenant's Work on account of
architectural, engineering, design and other consultants' fees, filing fees, and
Tenant's furniture, fixtures and equipment (including communications equipment)
when and after same have been installed in the demised premises (except that
commercially reasonable deposits or downpayments for same and for other
materials used in Tenant's Work shall be collectible pursuant to this Section
44.05 as part of the Work Fund prior to installation provided the aggregate
amount of such deposits or downpayments shall not exceed $250,000) and any
payment required to be made by Tenant to Landlord for services provided under
Section 44.01 hereof. The Work Allowance shall be payable to Tenant or, at the
written direction of Tenant, to Tenant's general contractor or construction
manager, by wire transfer or by check subject to collection, at Landlord's
election, upon written requisition, in installments of no less than $200,000
each (except for the penultimate such installment, which may be less than
$200,000.00 and the last such installment which shall be in an amount not less
than $50,000), as Tenant's Work progresses, but in no event more frequently than
monthly, and in accordance with the provisions of subsection 44.05(c) hereof.
If the amount of such estimate exceeds $2,500,000, then Tenant shall
simultaneously therewith furnish to Landlord written evidence reasonably
satisfactory to Landlord of the availability of Tenant's funds sufficient to pay
for the cost of Tenant's Work in excess of the Work Allowance, Landlord may
withhold ten percent (10%)
-93-
of the amount of each installment of the Work Fund requisitioned by Tenant
(other than the final installment) as a retainage, except that (A) no retainage
shall be withheld by Landlord on the portion of any requisition constituting
Fees, (B) Landlord may not withhold such retainage if Tenant is withholding a
retainage from the contractor to which such retainage by Landlord would
otherwise apply, and (C) upon completion of each trade, Tenant may request, and
Landlord shall pay from the Work Fund, subject to the provisions of this Section
44.05, the amount of any retainage previously withheld by Landlord in respect of
such trade. Tenant's requests for payment of installments of the Work Fund shall
(i) list separately each trade for which payment is requested, (ii) indicate
whether Tenant or Landlord is withholding a retainage in respect thereof, (iii)
indicate which portions of such request are for Fees (as to which no retainage
shall apply), and (iv) indicate which trades, if any, listed in such request
have completed their portions of Tenant's Work.
(b) At any and all times during the progress of Tenant's Work,
representatives of Landlord shall have the right of access to the demised
premises and inspection thereof provided such access and inspection shall not
interfere with the performance of Tenant's Work and shall have the right to
withhold all or any portion of the Work Allowance as shall equal the cost of
correcting any portions of Tenant's Work which shall not have been performed in
accordance with the final plans and in a good and workmanlike manner. Landlord
shall incur no liability, obligation or responsibility to Tenant or any third
party by reason of the access and inspection provided in this subsection
44.05(b).
(c) In connection with the payment of the installments of the Work
Allowance, Tenant shall prior to the payment to Tenant, or Tenant's general
contractor or construction manager, at Tenant's direction, of the installment of
the Work Allowance in question furnish to Landlord (1) invoices for the portion
of Tenant's Work or Fees, as the case may be, referenced in such requisition,
(2) copies of paid invoices for the portion of Tenant's Work or Fees, as the
case may be, referenced in the prior requisition, (3) partial lien waivers from
the contractor or contractors performing the portion of Tenant's Work
represented by such invoices releasing Tenant from liability for same, (4) a
certificate signed by Tenant's architect and an officer of Tenant certifying
that such portion of the Tenant's Work has been satisfactorily completed
substantially in accordance with the final plan, and (5) prior to the payment of
the final installment of the Work Allowance, (which shall not be less than
$50,000), all Building Department sign-offs, inspection certificates and any
permits required to be issued by any governmental entities having jurisdiction
thereover (or in the event any such sign-off, certificate or permit is
impossible to obtain by reason of the fact that there is no Certificate of
Occupancy for the Building, then a compliance certificate under New York City
Directive 14 in lieu thereof) including, without limitation, with respect to the
work to be performed by Tenant pursuant to Sections 44.06, 44.07 and 44.08
hereof.
-94-
(d) Notwithstanding anything to the contrary in this Section 44.05,
it is understood and agreed that a portion of the Work Allowance in an amount up
to $40,000 (herein called the "Flexible Fund") shall be permitted to be
allocated by Tenant, at its sole election, to any and all costs incurred by
Tenant associated with Tenant's Work, Tenant's relocation, or Tenant's use and
occupancy of the demised premises including, without limitation, Fees; provided,
however, that no portion of the Flexible Fund used for the payment of Fees shall
be included in calculating whether Tenant has exceeded the twenty percent (20%)
limit on the amount of the Work Fund permitted to be applied to Fees pursuant to
Section 44.05(a) hereof. The entire Flexible Fund shall be payable by Landlord
to Tenant upon written requisition therefor by Tenant accompanied by invoices
and/or xxxxxxxx (including without limitation xxxxxxxx for services provided by
Landlord under this Lease for which Tenant is required hereunder to pay charges
therefor) in an amount up to the amount of the Flexible Fund, and (except with
respect to actual construction costs for portions of Tenant's Work requisitioned
by Tenant from the Flexible Fund) Tenant shall not be required to submit the
items set forth in clauses (1) through (5) of subsection 44.05 (c) hereof or any
further documentation with request thereto as a condition for Landlord's payment
thereof.
44.06. In addition to the Work Allowance, Landlord shall allow Tenant an
additional allowance of up to TWENTY THOUSAND ($20,000) DOLLARS (herein called
the "Slab Allowance") to be applied against the cost and expense incurred by
Tenant for actual construction costs to remove the existing internal stairway
between the 6th and 7th floors and to slab over the existing slab cut on the 7th
floor serving such internal stairway provided that such stairway removal and
slabover work shall be performed in accordance with Legal Requirements and with
plans approved by Landlord, such approval not to be unreasonably withheld or
delayed. The Slab Allowance shall be payable by Landlord to Tenant after the
substantial completion of such slabover work in accordance with such approved
plans and upon submission to Landlord of a requisition thereof containing an
invoice for same together with the documentation in connection with such
stairway removal and slabover work set forth in clauses (2), (3) and (4) of
subsection 44.05(c).
44.07. In addition to the Work Allowance and the Slab Allowance, Landlord
shall allow Tenant an additional allowance of up to Ten Thousand and no/l00
($10,000.00) Dollars (herein called the "Demising Wall Allowance") to be applied
against the actual cost and expense incurred by Tenant for actual construction
costs to construct a demising wall on the 9th floor separating the portion of
the demised premises located on such 9th floor from the balance of the rentable
area on such floor, as shown on the floor plan of the 9th floor annexed as
Schedule A to the Lease, provided that such work shall be performed in
accordance with Legal Requirements and with plans approved by Landlord, such
approval not to be unreasonably withheld or delayed. The Demising Wall Allowance
shall be payable by Landlord to Tenant after the substantial completion of such
work in accordance with such approved plans and upon submission to Landlord of a
requisition thereof containing an invoice for same together with the
documentation in connection with such work set forth in
-95-
clauses (2), (3) and (4) of subsection 44.05(c).
44.08. In addition to the Work Allowance, the Slab Allowance and the
Demising Wall Allowance Landlord shall allow Tenant an additional allowance of
up to THREE HUNDRED TWENTY THOUSAND ($320,000) DOLLARS (herein called the "HVAC
Allowance") to be applied against the cost and expense incurred by Tenant to
purchase and install the Air-Cooled Units in the 7th and 8th floors in
accordance with Tenant's final plans. The HVAC Allowance shall be payable by
Landlord to Tenant after the substantial completion of such installation in
accordance with such approved plans and upon submission to Landlord of a
requisition thereof containing an invoice for same together with the
documentation in connection with such purchase and installment of the Air-Cooled
Units set forth in clauses (2), (3) and (4) of subsection 44.05(c).
ARTICLE 45
BASEMENT SPACE
45.01. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, for the term hereof, the portion of the Building located on the
basement floor of the Building as shown hatched on the floor plan annexed hereto
as Schedule I and which Landlord and Tenant hereby agree constitutes 880 usable
square feet (hereinafter called the "Basement Space") upon all the terms of this
Lease as modified by this Article 45. Tenant's occupancy of the Basement Space
shall be subject to all of the terms and conditions set forth in the Lease and
to the following additional terms and conditions:
(a) Tenant shall accept the Basement in its "as is" condition as of
the Commencement Date; and Landlord shall not be obligated to perform any work
or incur any expense to prepare the Basement Space for Tenant's use except that
Landlord shall perform asbestos removal in the Basement Space in accordance with
Legal Requirements in order to deliver to Tenant a New York City Buildings
Department Form ACP-5 with respect to the Basement Space based on Tenant's final
plans issued with respect to the Basement Space, within ten (10) Business Days
after Landlord shall have approved such plans, and Landlord shall provide and
install one lighting fixture in the Basement Space and Landlord shall construct
a Building Standard door and walls separating the Basement Space within
forty-five (45) days after execution of this Lease and the receipt of the
required non-disturbance agreement.
(b) Commencing on the Escalation Rent Commencement Date and for the
remainder of the term of this Lease, the fixed annual rent set forth in
subsection 1.01(b) hereof shall be increased by the annual rate of Four Thousand
Four Hundred ($4,400.00) Dollars per annum allocable to the Basement Space and,
accordingly, the monthly installments of fixed annual rent shall be increased by
the monthly amount of $366.67 per month.
-96-
(c) Landlord shall supply electricity to the Basement Space for the
lighting fixtures therein. Tenant shall pay to Landlord additional rent for the
supply of electricity to the Basement Space for the lighting thereof at the
annual rate of Five Hundred ($500) Dollars per annum, which shall be payable in
equal monthly installments on the first day of each month in the same manner as
prescribed in Article 1 with respect to fixed annual rent from and after the
date that Landlord shall have substantially completed the demising wall and door
for the Basement Space, without regard to the abatement set forth in subsection
1.01(b) thereof. Such additional rent on account of electricity supplied to the
Basement Space shall be subject to increase from time to time in the same
percentage as any percentage increase in the rate charged to Landlord for
electricity supplied to the Building by the public utility supplying electricity
to the Building;
(d) Tenant shall make no alterations, installations, additions, or
improvements in or to the Basement Space without Landlord's prior written
consent and Landlord agrees to give or withhold such consent in accordance with
the provisions of Article 6 hereof provided that such proposed alterations or
installations in the Basement Space are of a nature which is not inconsistent
with office storage areas;
(e) Tenant shall use the Basement Space only for the purposes of
customary office storage;
(f) Tenant may not assign its rights with respect to the Basement
Space (except in connection with a permitted assignment of this lease) or
sublease the same or allow the same to be used by others (except that the entire
Basement Space may be sublet to a permitted subtenant of Tenant of no less than
22,000 rentable square feet of the demised premises) without the prior written
consent of Landlord; and
(g) Except for elevator service and electricity as hereinabove
provided, Landlord shall not be responsible for the rendition or delivery of any
services or utilities to the Basement Space whatsoever, including, without
limitation, water, heating, ventilation, air-conditioning, or cleaning.
ARTICLE 46
RIGHT OF FIRST OFFERING
46.01. For purposes of this Lease, the term "First Offering Space" shall
mean the remainder of the rentable area on the ninth (9th) floor of the Building
other than the demised premises except that the portion thereof which is
currently vacant shall not constitute First Offering Space until after such
space shall have been initially leased. For purposes hereof, the First Offering
Space shall be deemed to contain 13,174 rentable square feet.
46.02. Provided Tenant is not in default under the terms and conditions of
this Lease after notice and beyond applicable cure periods
-97-
either as of the date of the giving of "Tenant's Acceptance Notice" or the
"First Offering Space Inclusion Date" (as such terms are hereinafter defined),
and if, at any time during the term hereof and prior to the tenth (10th)
anniversary of the Commencement Date, the First Offering Space or any portion
thereof shall become available for leasing, then Landlord, before offering such
First Offering Space to anyone other than the Current Tenant (as hereinafter
defined), and subject to the provisions of Section 46.09 hereof, shall offer to
Tenant, subject to the provisions of this Article 46, the right to include such
entire First Offering Space within the demised premises, during the period
commencing on the First Offering Space Inclusion Date and ending on the
Expiration Date for all purposes and upon all the terms and conditions of this
Lease (including the provisions of Article 3 hereof with the base factors
specified therein but excluding subsection 1.01(b) and Sections 44.05, 44.06 and
44.07 hereof) except that:
(i) the fixed annual rent with respect to the First Offering Space
shall be at the following rates during the following periods from and
after the First Offering Space Inclusion Date (it being understood and
agreed that no portion of the following fixed annual rent allocable to the
First Offering Space shall constitute Unabated Fixed Rent or Termination
Fixed Rent):
(A) at the rate of $17.50 per rentable square foot during the
periods set forth in clauses (i) and (ii) of subsection 1.01(a)
hereof;
(B) at the rate of $19.75 per rentable square foot during the period
set forth in clause (iii) of subsection 1.01(a) hereof; and
(C) at the rate of $24.00 per rentable square foot during the period
set forth in clause (iv) of subsection 1.01(a) hereof;
(ii) effective as of the First Offering Space Inclusion Date, for
purposes of calculating the additional rent payable pursuant to Article 3
allocable to the First Offering Space, Tenant's Proportionate Tax Share
and Tenant's Proportionate Operating Share attributable to the First
Offering Space shall be deemed to be the fraction, expressed as a
percentage, the numerator of which shall be the number of rentable square
feet included within the First Offering Space, and the denominator of
which shall be 258,438 and 242,638, respectively and the base years and
base factors set forth in Article 3 shall be applicable;
(iii) the security required to be maintained pursuant to Article 42
hereof shall be increased by an amount equal to the product of $20.42
times the rentable square footage of the First Offering Space;
-98-
(iv) Landlord shall allow Tenant an allowance in an amount up to the
"First Offering Space Allowance", as hereinafter defined which shall apply
to the cost and expense of Tenant's work to prepare the First Offering
Space for Tenant's initial occupancy (hereinafter called "Tenant's
Offering Work"). The First Offering Space Allowance shall be payable in
the same manner and subject to the same requirements and conditions with
respect to Tenant's Offering Work as the Work Allowance is payable
pursuant to Section 44.05 hereof with respect to Tenant's work. The First
Offering Space Allowance shall be in the amount of $45.00 per rentable
square foot of the First Offering Space, provided, however, that in the
event that as of the First Offering Space Inclusion Date, there shall
remain less than ten (10) full years in the term of this Lease, then the
amount of such First Offering Space Allowance shall be reduced to the
product of (x) a fraction the numerator of which shall be the number of
full calendar months remaining in the term of this Lease as of the First
Offering Space Inclusion Date and the denominator of which shall be 120,
times (y) $45.00, times (z) the number of rentable square feet in the
First Offering Space;
(v) Landlord shall, at Landlord's sole cost and expense, perform the
following work in the First Offering Space in a good and workerlike manner
in accordance with all Legal Requirements: (A) demolish the entire First
Offering Space slab-to-slab and wall-to-wall (other than the sprinkler
loop and supplemental HVAC equipment, if any, located therein if Tenant
shall so request in "Tenant's Acceptance Notice", as defined in Section
46.04 hereof) and perform such asbestos removal in the demised premises in
accordance with Legal Requirements as may be required in order to deliver
to Tenant a New York City Buildings Department Form ACP-5 based on
Tenant's approved plans for Tenant's Offering Work, and deliver the First
Offering Space vacant and broom-clean, all of the foregoing items in this
clause (A) to be substantially completed within ten (10) Business Days
after the later of: forty-five (45) days after the occurrence of (1) the
First Offering Space Inclusion Date, or (2) the date that Landlord shall
have approved such plans; subject, in either case, to extension for Force
Majeure Causes; if Landlord shall fail timely to substantially complete
the work set forth in this clause A on the date herein set forth, as
extended by Force Majeure Causes, and such failure shall not be caused by
Tenant Delays and such failure shall cause an actual delay in the
performance of Tenant's Offering Work or an actual delay in the date that
Tenant is able to occupy the First Offering Space for the conduct of its
business, then for each day of such actual delay in the performance of
Tenant's Offering Work or an actual delay in the date that Tenant is able
to occupy the First Offering Space for the conduct of its business
(without double counting any delay in the performance of Tenant's Offering
Work which automatically causes an automatic delay
-99-
PARK AVE ARMORY/NYLPC - LEASE PT II
in such occupancy date), the abatement period set forth in subsection
46.02(vi) hereof shall be extended on a day-for-day basis; (B) furnish,
and install in the First Offering Space such package air-conditioning
units as Landlord shall reasonably determine shall reasonably be required
for the cooling of such space (unless the First Offering Space is already
so equipped with units in operating condition) at a standard comparable to
the standard set forth in subsection 21.01(a)(ii) hereof (herein called
"Landlord's Added Units"), and such installation shall be completed within
sixty (60) days after Tenant shall commence the actual construction of
Tenant's Offering Work, subject to extension for Force Majeure Causes. In
lieu of accepting Landlord's Added Units, Tenant may designate the model
and size of such air-conditioning units to be purchased and installed by
Landlord provided and on condition that (1) Landlord shall reasonably
approve such Tenant-designated units, (2) Tenant shall make such
designation in writing in Tenant's Acceptance Notice, (3) Tenant shall pay
to Landlord upon demand as additional rent hereunder the differential
between the cost of purchasing and installing Landlord's Added Units and
the cost of purchasing and installing (including location and venting
costs) such Tenant-designated units, and (4) if such Tenant-designated
units shall require long-lead time to order or to install, then the 60-day
deadline set forth in the foregoing provisions of this subsection 46.02(v)
shall not be applicable and Landlord shall perform such work reasonably
promptly and diligently prosecute same to completion; (C) replace the
then-existing electrical panels servicing the First Offering Space with
circuit breaker panels and new disconnect switches, if such work shall not
theretofore have been performed, and (D) put all radiators in the First
Offering Space in good working order, it being understood and agreed that
Landlord shall have no obligation with respect to thermostatic valves for
such radiators. All work described in the foregoing clauses (C) and (D)
shall be performed by Landlord reasonably promptly and shall be diligently
prosecuted to completion; and
(vi) the fixed annual rent and additional rent payable pursuant to
Article 3 hereof and attributable to the First Offering Space set forth in
subsection 46.02(i) shall be abated for the one hundred eighty (180) day
period commencing on the First Offering Space Inclusion Date, provided,
however, that in the event that as of the First Offering Space Inclusion
Date there shall remain less than ten (10) full years in the term of this
Lease, then the number of days in the foregoing abatement period shall be
reduced to the product of (x) a fraction, the numerator of which shall be
the number of full calendar months remaining in the term of this Lease as
of the First Offering Space Inclusion Date, and the denominator of which
shall be 120, times (y) 180.
46.03. Landlord's offer shall be made to Tenant in a written notice
(hereinafter called the "First Offer Notice"), which notice shall specify the
First Offering Space being offered and Landlord's estimate of the date
(hereinafter called the "Estimated Inclusion Date") such space shall become
available for Tenant's occupancy. Such notice may be given at any time
-100-
PARK AVE ARMORY/NYLPC - LEASE PT II
prior to the First Offering Space Inclusion Date. Except as expressly set forth
in Section 46.11 hereof, Landlord shall have no liability to Tenant if the
Estimated Inclusion Date is not accurate.
46.04. Tenant may accept the offer set forth in the First Offer Notice by
delivering to Landlord an unconditional acceptance (herein called "Tenant's
Acceptance Notice") of such offer within twenty (20) days after delivery by
Landlord of the First Offer Notice to Tenant. Such First Offering Space shall be
added to and included in the demised premises on the later to occur (herein
called the "First Offering Space Inclusion Date") of (i) the day that Tenant
exercises its option as aforesaid, or (ii) the date such First Offering Space
shall become available for Tenant's possession. Time shall be of the essence
with respect to the giving of Tenant's Acceptance Notice.
46.05. Tenant shall have the option to include either all of such First
Offering Space being offered or none at all; Tenant shall have no right to
include only a portion of any First Offering Space.
46.06. If Tenant does not accept an offer made by Landlord pursuant to the
provisions of this Article 46 with respect to such First Offering Space,
Landlord shall be under no further obligation to Tenant with respect to such
First Offering Space and Tenant shall have waived and relinquished its right to
such First Offering Space, unless such First Offering Space shall thereafter be
part of future First Offering Space which is offered as a single rental unit,
and Landlord shall at any and all times thereafter be entitled to lease such
First Offering Space to others at such rental and upon such terms and conditions
as Landlord in its sole discretion may desire whether such rental terms,
provisions and conditions are the same as those offered to Tenant or more or
less favorable, provided, however, that the provisions of Section 46.02 shall
again be applicable if such First Offering Space shall become available for
leasing after any future lessee or occupant thereof shall vacate same.
46.07. Tenant agrees to accept such First Offering Space in its condition
and state of repair existing as of the First Offering Space Inclusion Date and
understands and agrees that Landlord shall not be required to perform any work,
supply any materials or incur any expense to prepare such space for Tenant's
occupancy, except as expressly set forth in subsections 46.02(iv) and 46.02(v)
hereof. It is understood and agreed that Tenant shall have no liability to
replace lot line windows in the First Offering Space if such replacement is
required by Legal Requirements.
46.08. The termination of this Lease shall also terminate and render void
all of Tenant's options or elections under this Article 46 whether or not the
same shall have been exercised; and nothing contained in this Article 46 shall
prevent Landlord from exercising any right or action granted to or reserved by
Landlord in this Lease to terminate this Lease. None of Tenant's options or
elections set forth in this Article 46 may be severed from the Lease or
separately sold, assigned or transferred.
-101-
PARK AVE ARMORY/NYLPC - LEASE PT II
46.09. Notwithstanding any provision to the contrary contained in this
Article 46, the rights granted to Tenant hereunder shall be at all times subject
to:
(a) the election of the then-current tenant, or any
subsidiary, affiliate or assignee thereof (each herein referred to as a "Current
Tenant") of the First Offering Space to extend the term of its lease or
agreement with respect thereto, regardless of whether such election is made
pursuant to any provision included within such lease or agreement, and
(b) any option or right to lease same hereafter given by
Landlord to any future lessee or occupant of any portion of the First Offering
Space which shall have previously been offered to Tenant pursuant to this
Article 46 and as to which Tenant shall not have given Landlord Tenant's
Acceptance Notice.
46.10. The provisions of this Article 46 shall be effective only if, on
the date Tenant gives Tenant's Acceptance Notice and upon the First Offering
Space Inclusion Date, the Tenant named herein and/or its Affiliates or
Successors are in actual occupancy of sixty-five (65%) percent of the demised
premises (other than the First Offering Space in question) except that Landlord
may, in its sole discretion, waive such occupancy requirement.
46.11. If any First Offering Space shall not be available for Tenant's
occupancy on the First Offering Space Inclusion Date for any reason including
the holding over of the prior tenant, then Landlord and Tenant agree that the
failure to have such First Offering Space available for occupancy by Tenant
shall in no way affect the validity of this lease or the inclusion of such First
Offering Space in the demised premises or the obligations of Landlord or Tenant
hereunder, nor shall the same be construed in any way to extend the term of this
Lease, and for the purpose of this Article 46 the First Offering Space Inclusion
Date shall be deferred to and shall be the date such First Offering Space is
available for Tenant's occupancy unleased and free of tenants or other
occupants. The provisions of this Section 46.11 are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law. In the event that the First Offering Space does not
become available within thirty (30) days after the Estimated Inclusion Date
because of the holding over of the existing tenant thereof, and unless Landlord
shall, within such thirty (30) day period, enter into an agreement with such
existing tenant providing for the vacating of the First Offering Space within
ninety (90) days after the Estimated Inclusion Date, Landlord shall thereafter
commence and diligently prosecute holdover proceedings against such occupant.
Notwithstanding anything in this Section 46.11 to the contrary, if Landlord has
not made the First Offering Space available for Tenant's occupancy within nine
(9) months after the Estimated Inclusion Date, then Tenant shall, during the ten
(10) days following the expiration of the foregoing period, have the right to
elect to rescind Tenant's Acceptance Notice upon written notice to Landlord and
such election shall be effective upon the expiration of thirty (30) days after
the date of such notice, unless the First Offering Space becomes available for
Tenant's occupancy within such thirty (30) day period.
-102-
PARK AVE ARMORY/NYLPC - LEASE PT II
46.12. Landlord shall, in accordance with the provisions of this Article
46, give a notice to Tenant specifying the first Offering Space Inclusion Date
and confirming the terms of the inclusion of the First Offering Space in
accordance with the terms of this Article 46. Any dispute as to Landlord's
notice shall be submitted to arbitration in accordance with the provisions of
Article 38 hereof, but pending the outcome of such arbitration, such date and
terms shall be deemed to be for all purposes of this Lease the date and terms
specified by Landlord as above provided. When the First Offering Space Inclusion
Date and terms have so been determined, the parties shall, within ten (10) days
thereafter, at either party's request therefor, execute a written agreement
confirming the First Offering Space Inclusion Date and the terms of the
inclusion of the First Offering Space. Any failure of the parties to execute
such written agreement shall not affect the validity of the First Offering Space
Inclusion Date and the terms of the inclusion of the First Offering Space as
specified and determined as aforesaid.
ARTICLE 47
ADDITIONAL RIGHT OF FIRST OFFERING
47.01. For purposes of this Lease, the term "Additional Offering Space"
shall mean the sixth (6th) and tenth (10th) floors of the Building provided,
however, that the sixth (6th) floor, which is currently vacant, shall constitute
Additional Offering Space only after it has been initially leased and thereafter
becomes available for leasing. For purposes hereof, each such floor shall be
deemed to contain 22,058 rentable square feet.
47.02. Provided Tenant is not in default under the terms and conditions of
this Lease after notice and beyond the expiration of applicable cure periods,
either as of the date of the giving of "Tenant's Additional Acceptance Notice"
or the "Additional Offering Space Inclusion Date" (as such terms are hereinafter
defined), if, at any time during the term of this Lease and prior to the tenth
(10th) anniversary of the Commencement Date, the Additional Offering Space or
any portion thereof shall become available for leasing, then Landlord, before
offering such Additional Offering Space to anyone other than the Current Tenant
(as hereinafter defined), and subject to the provisions of Section 47.11 hereof,
shall offer to Tenant, subject to the provisions of this Article 47, the right
to include such entire Additional Offering Space within the demised premises,
during the period commencing on the Additional Offering Space Inclusion Date and
ending on the Expiration Date, for all purposes and upon all the terms and
conditions of this Lease (excluding subsection 1.01(b) and Sections 44.05, 44.06
and 44.07 hereof), except that:
(i) the fixed annual rent with respect to the Additional Offering
Space shall be at the rate of 95% of the fair market rent for the
Additional Offering Space, which shall be determined by Landlord (subject
to the provisions of Section 47.07 hereof) as of
-103-
PARK AVE ARMORY/NYLPC - LEASE PT II
date (hereinafter called the "Additional Offering Space Determination
Date") occurring 30 days prior to the Additional Offering Space Inclusion
Date (as such term is hereinafter defined) and shall be set forth in a
written notice to Tenant, but in no event shall such fixed annual rent
applicable to the Additional Offering Space be less than the sum (herein
called the "Additional Offering Space Escalated Rent") of:
(a) product obtained by multiplying (A) the "Applicable Fixed
Rent Rate", as hereinafter defined, times the number of
rentable square feet included within the Additional Offering
Space, plus
(b) the product obtained by multiplying (A) the monthly amount
of Tenant's Tax Payment for the last full calendar month prior
to the Additional Offering Space Inclusion Date calculated on
a rentable square foot basis, without giving effect to any
offset or abatement, times (B) twelve (12), times (C) the
number of rentable square feet included within the Additional
Offering Space, plus
(c) the product obtained by multiplying (A) the monthly amount
of Tenant's Expense Payment for the last full calendar month
prior to the Additional Offering Space Inclusion Date
calculated on a rentable square foot basis, without giving
effect to any offset or abatement, times (B) twelve (12),
times (C) the number of rentable square feet included within
the Additional Offering Space.
For purposes hereof, the "Applicable Fixed Rent Rate" shall mean the
following amounts during the following periods from and after the
Additional Offering Space Inclusion Date:
(A) at the rate of $17.50 per rentable square foot during the
periods set forth in clauses (i) and (ii) of subsection
1.01(a) hereof;
(B) at the rate of $19.75 per rentable square foot during the
period set forth in clause (iii) of subsection 1.01(a) hereof;
and
(C) at the rate of $24.00 per rentable square foot during the
period set forth in clause (iv) of subsection 1.01(a) hereof;
-104-
PARK AVE ARMORY/NYLPC - LEASE PT II
It is understood and agreed that no portion of the fixed annual rent
allocable to the Additional Offering Space shall constitute Unabated Fixed
Rent or Termination Fixed Rent.
(ii) Effective as of the Additional Offering Space Inclusion Date,
for purposes of calculating the additional rent payable pursuant to
Article 3 allocable to the Additional Offering Space:
(a) Tenant's Proportionate Tax Share and Tenant's
Proportionate Operating Share attributable to the Additional
Offering Space shall be deemed to be the fraction, expressed
as a percentage, the numerator of which shall be the number of
rentable square feet included within the Additional Offering
Space, and the denominator of which shall be 258,438 and
242,638, respectively;
(b) "Base Tax" referred to in Section 3.01(a) hereof shall be
deemed to be the Taxes for the Tax Year ending on the June 30
immediately preceding the Additional Offering Space Inclusion
Date, as finally determined;
(c) The "Base Operating Amount" set forth in Section 3.01(f)
hereof, shall be deemed to be the Operating Expenses for the
calendar year immediately preceding the calendar year in which
occurs the Additional Offering Space Inclusion Date.
(iii) The security required to be maintained pursuant to Article 42
hereof shall be increased by the product of $20.42 times the rentable
square footage of the Additional Offering Space.
47.03. Landlord's offer shall be made to Tenant in a written notice
(hereinafter called the "Additional Offer Notice") which notice shall specify
(i) the Additional Offering Space being offered, (ii) Landlord's estimate of the
date (hereinafter called the "Estimated Additional Inclusion Date") such space
shall become available for Tenant's occupancy and (iii) the fixed annual rent
payable with respect to such Additional Offering Space, determined in accordance
with the provisions of Section 47.02 hereof. Such notice may be given at any
time prior to the Additional Offering Space Inclusion Date. Except as expressly
set forth in Section 47.12 hereof, Landlord shall have no liability to Tenant if
the Estimated Additional Inclusion Date is not accurate.
47.04. Tenant may accept the offer set forth in the Additional Offer
Notice by delivering to Landlord an unconditional acceptance (herein called
"Tenant's Additional Acceptance Notice") of such offer within twenty (20) days
after delivery by Landlord of the Additional Offer Notice to Tenant. Such
Additional Offering Space shall be added to and included in the demised premises
on the later to occur (herein called the "Additional
-105-
PARK AVE ARMORY/NYLPC - LEASE PT II
Offering Space Inclusion Date") of (i) the day that Tenant exercises its option
as aforesaid, or (ii) the date such Additional Offering Space shall become
available for Tenant's possession. Time shall be of the essence with respect to
the giving of Tenant's Additional Acceptance Notice.
47.05. Tenant shall have the option to include either all of the
Additional Offering Space in question into the demised premises or none at all;
Tenant shall have no right to include only a portion of any such Additional
Offering Space.
47.06. If Tenant does not accept an offer made by Landlord pursuant to the
provisions of this Article 47 with respect to such Additional Offering Space,
Landlord shall be under no further obligation to Tenant with respect to such
Additional Offering Space and Tenant shall have waived and relinquished its
right to such Additional Offering Space, unless such Additional Offering Space
shall thereafter be part of a future Additional Offering Space, which is offered
as a single rental unit, and Landlord shall at any and all times thereafter be
entitled to lease such Additional Offering Space to others at such rental and
upon such terms and conditions as Landlord in its sole discretion may desire
whether such rental terms, provisions and conditions are the same as those
offered to Tenant or more or less favorable; provided, however, that the
provisions of Section 47.02 shall again be applicable if such Additional
Offering Space shall become available for leasing after any future lessee or
occupant thereof shall vacate same.
47.07. (a) In the event that Tenant disputes the amount of the fair market
rent specified in the Additional Offer Notice, then at any time on or before the
date occurring twenty (20) days after Tenant has received the Additional Offer
Notice, and provided that Tenant shall have given Tenant's Additional Acceptance
Notice, Tenant may initiate the arbitration process provided for herein by
giving notice to that effect to Landlord, and, if Tenant so initiates the
arbitration process, such notice shall specify the name and address of the
person designated to act as an arbitrator on its behalf. Within thirty (30) days
after the Landlord's receipt of notice of the designation of Tenant's
arbitrator, Landlord shall give notice to Tenant specifying the name and address
of the person designated to act as an arbitrator on its behalf. If Landlord
fails to notify Tenant of the appointment of its arbitrator within the time
above specified, then Tenant shall provide an additional notice to Landlord
requiring Landlord's appointment of an arbitrator within twenty (20) days after
Landlord's receipt thereof. If Landlord fails to notify Tenant of the
appointment of its arbitrator within the time specified by the second notice,
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree upon
such appointment. The two arbitrators so chosen shall meet within ten (10) days
after the second arbitrator is appointed, and shall exchange sealed envelopes
each containing such arbitrator's written determination of the fair market
rental of the space in question based on the criteria set forth. Copies of such
written determinations shall promptly be sent to both Landlord and
-106-
PARK AVE ARMORY/NYLPC - LEASE PT II
Tenant. Any failure of either of such arbitrators to meet and exchange such
determinations shall be deemed acceptance of the other party's arbitrator's
determination as to fair market rental. Within twenty (20) days after the second
arbitrator is appointed, the two arbitrators shall together appoint a third
arbitrator. If said two arbitrators cannot agree upon the appointment of a third
arbitrator within such twenty (20) day period, then either party, on behalf of
both and on notice to the other, may request such appointment by the American
Arbitration Association (or any successor organization) in accordance with its
then prevailing rules. If the American Arbitration Association shall fail to
appoint said third arbitrator within thirty (30) days after such request is
made, then either party may apply, on notice to the other, to the Supreme Court,
New York County, New York (or any other court having jurisdiction and exercising
functions similar to those now exercised by the foregoing court) for the
appointment of such third arbitrator.
Such third arbitrator shall, within fifteen (15) days after his or
her appointment, determine whether the fair market rental specified by the first
arbitrator or second arbitrator in such submissions was closer to the
determination by such third arbitrator of the fair market rental of the
Additional Offering Space, and the fair market rental specified by the first
arbitrator or the second arbitrator which is closer to the determination by such
third arbitrator shall conclusively be deemed to be the fair market rental of
the Additional Offering Space, but in no event shall the fixed annual rent with
respect to the Additional Offering Space be less than the Additional Offering
Space Escalated Rent.
(b) In determining the fair market rent under this Section 47.07,
the arbitrators shall take into account all relevant factors including, without
limitation, the work required to be performed by Landlord in the Additional
Offering Space pursuant to Section 47.09 hereof. The parties acknowledge and
agree that Landlord has agreed to reduce the fixed annual rent alternative in
subsection 47.02(i) to 95% of fair market value (as opposed to 100% of fair
market value) in order to give Tenant the benefit of Landlord's cost saving in
connection with an existing lease for an existing tenant (as opposed to a new
lease with a new tenant), and, accordingly, the parties and/or the arbitrators
shall not duplicate such cost savings in connection with their determination of
fair market rent under this Article 47.
(c) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party, and the fees and expenses
of the third arbitrator and all other expenses (not including the attorneys
fees, witness fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally.
(d) Each of the arbitrators selected as herein provided shall have
at least ten (10) years experience in the leasing, operation, management or
renting of office space on behalf of landlords in Midtown Manhattan.
-107-
PARK AVE ARMORY/NYLPC - LEASE PT II
(e) If Tenant fails to initiate the arbitration process within the
aforesaid twenty (20) day period, time being of the essence, then Landlord's
determination of the fixed annual rent set forth in the Additional Offer Notice
shall be conclusive. In the event Landlord notifies Tenant that the fixed annual
rent for the Additional Offering Space shall be the Additional Offering Space
Escalated Rent, then the provisions of this Section 47.07 hereof shall be
inapplicable.
(f) In the event the Tenant initiates the aforesaid arbitration
process and, as of the Additional Offering Space Inclusion Date, the amount of
the fair market rent has not been determined, Tenant shall pay the amount
determined by Landlord to be the fair market rent for the Additional Offering
Space and when the determination has actually been made, an appropriate
retroactive adjustment (with interest at the Prime Rate) shall be made as of the
Additional Offering Space Inclusion Date.
47.08. The provisions of this Article 47 shall be effective only if, on
the date on which Tenant gives Tenant's Additional Acceptance Notice and on the
date that Tenant accepts possession of the Additional Offering Space, the Tenant
named herein and/or its Affiliates or Successors are in actual occupancy of
sixty-five (65%) percent of the demised premises provided, however, that
Landlord may, in its sole discretion, waive such occupancy requirement.
47.09. Tenant agrees to accept each Additional Offering Space in its
condition and state of repair existing as of the Additional Offering Space
Inclusion Date and understands and agrees that Landlord shall not be required to
perform any work, supply any materials or incur any expense to prepare such
space for Tenant's occupancy except that Landlord shall, at Landlord's sole cost
and expense, perform the following work in the Additional Offering Space in a
good and workerlike manner in accordance with all Legal Requirements: (A)
demolish the entire Additional Offering Space slab-to-slab and wall-to-wall
(other than the sprinkler loop and supplemental HVAC equipment, if any, located
therein if Tenant shall so request in "Tenant's Additional Acceptance Notice",
as defined in Section 47.04 hereof), and perform such asbestos removal in the
demised premises in accordance with Legal Requirements as may be required in
order to deliver to Tenant a New York City Buildings Department Form ACP-5 based
on Tenant's approved plans for Tenant's initial work in the Additional Offering
Space to prepare the Additional Offering Space for Tenant's initial occupancy,
and deliver the Additional Offering Space vacant and broom-clean, all of the
foregoing items in this clause (A) to be substantially completed within ten (10)
Business Days after the later to occur of: forty-five (45) days after the
occurrence of (1) the Additional Offering Space Inclusion Date, or (2) the date
Landlord shall have approved such plans; subject, in either case, to extension
for Force Majeure Causes, if Landlord shall fail timely to substantially
complete the work set forth in this clause A on the date herein set forth, as
extended by Force Majeure Causes, and such failure shall not be caused by Tenant
Delays and such failure shall cause an actual delay in the performance of
Tenant's Offering Work or an actual delay in the date that Tenant is able to
-108-
PARK AVE ARMORY/NYLPC - LEASE PT II
occupy the First Offering Space for the conduct of its business, then for each
day of such actual delay in the performance of Tenant's Offering Work or an
actual delay in the date that Tenant is able to occupy the First Offering Space
for the conduct of its business (without double counting any delay in the
performance of Tenant's Offering Work which automatically causes an automatic
delay such occupancy date), the date that rent for the Additional Offering Space
commences shall be postponed on a day-for-day basis; (B) furnish and install in
the Additional Offering Space Landlord's Added Units, and (unless the Additional
Offering Space is already so equipped with units in operating condition) such
installation shall be completed within sixty (60) days after Tenant shall
commence the actual construction of the initial work in the Additional Offering
Space to prepare same for Tenant's occupancy, subject to extension for Force
Majeure Causes. In lieu of accepting Landlord's Added Units, Tenant may
designate the model and size of such air-conditioning units to be purchased and
installed by Landlord provided and on condition that (1) Landlord shall approve
such Tenant-designated units, (2) Tenant shall make such designation in writing
in Tenant's Acceptance Notice, (3) Tenant shall pay to Landlord upon demand as
additional rent hereunder the differential between the cost of purchasing and
installing Landlord's Added Units and the cost of purchasing and installing
(including location and venting costs) such Tenant-designated units, and (4) if
such Tenant-designated units shall require long-lead time to order or to
install, then the 60-day deadline set forth in the foregoing provisions of this
subsection 47.09 shall not be applicable and Landlord shall perform such work
reasonably promptly and diligently prosecute same to completion; (C) replace the
then-existing electrical panels servicing the Additional Offering Space with
circuit breaker panels and new disconnect switches, if such work shall not
theretofore have been performed; and (D) put all radiators in the Additional
Offering Space in good working order, it being understood and agreed that
Landlord shall have no obligation with respect to thermostatic valves for such
radiators. All work described in the foregoing clauses (C) and (D) shall be
performed by Landlord reasonably promptly and shall be diligently prosecuted to
completion. It is understood and agreed that Tenant shall have no liability
arising from Legal Requirements: (i) to replace lot line windows in the
Additional Offering Space, or (ii) for compliance with the Disabilities Act in
the core toilets of the floor on which the Additional Offering Space is located,
provided that such floor is a multi-tenanted floor.
47.10. The termination of this Lease shall also terminate and render void
all of Tenant's options or elections under this Article 47 whether or not the
same shall have been exercised; and nothing contained in this Article 47 shall
prevent Landlord from exercising any right or action granted to or reserved by
Landlord in this Lease to terminate this Lease. None of Tenant's options or
elections set forth in this Article 47 may be severed from the Lease or
separately sold, assigned or transferred.
47.11. Notwithstanding any provisions to the contrary contained in this
Article 47, the rights granted to Tenant hereunder shall be at all times subject
to:
-109-
PARK AVE ARMORY/NYLPC - LEASE PT II
(a) the election of the then-current tenant, or any
subsidiary, affiliate or assignee thereof (each herein referred to as a "Current
Tenant") of the Additional Offering Space to extend the term of its lease or
agreement with respect thereto, regardless of whether such election is made
pursuant to any provision included within any lease or agreement, and
(b) any option or right to lease same hereafter given by
Landlord to any future lessee or occupant of any portion of the Additional
Offering Space which shall have previously been offered to Tenant pursuant to
this Article 47 and as to which Tenant shall not have given Landlord Tenant's
Additional Acceptance Notice.
47.12. If any Additional Offering Space shall not be available for
Tenant's occupancy on the Additional Offering Space Inclusion Date for any
reason including the holding over of the prior tenant, then Landlord and Tenant
agree that the failure to have such Additional Offering Space available for
occupancy by Tenant shall in no way affect the validity of this Lease or the
inclusion of such Additional Offering Space in the demised premises or the
obligations of Landlord or Tenant hereunder, nor shall the same be construed in
any way to extend the term of this Lease, and for the purpose of this Article 47
the Additional Offering Space Inclusion Date shall be deferred to and shall be
the date such Additional Offering Space is available for Tenant's occupancy
unleased and free of tenants or other occupants. The provisions of this Section
47.12 are intended to constitute "an express provision to the contrary" within
the meaning of Section 223-a of the New York Real Property Law. In the event
that the Additional Offering Space does not become available within thirty (30)
days after the Estimated Additional Inclusion Date because of the holding over
of the existing tenant thereof, and unless Landlord shall within such thirty
(30) day period, enter into an agreement with such existing tenant providing for
the vacating of the Additional Offering Space within ninety (90) days after the
Estimated Additional Inclusion Date, Landlord shall thereafter commence and
diligently prosecute holdover proceedings against such occupant. Notwithstanding
anything in this Section 47.12 to the contrary, if Landlord has not made the
Additional Offering Space available for Tenant's occupancy within nine (9)
months after the Estimated Additional Inclusion Date, then Tenant shall, during
the ten (10) days following the expiration of the foregoing period, have the
right to elect to rescind Tenant's Additional Acceptance Notice upon written
notice to Landlord and such election shall be effective upon the expiration of
thirty (30) days after the date of such notice, unless the Additional Offering
Space becomes available for Tenant's occupancy within such thirty (30) day
period.
47.13. Landlord shall, in accordance with the provisions of this Article
47, give a notice to Tenant specifying the Additional Offering Space Date and
confirming the terms of the inclusion of the Additional Offering Space in
accordance with the terms of this Article 47. Any dispute as to Landlord's
notice shall be submitted to arbitration in accordance with the provisions of
Article 47 hereof, but pending the outcome of such arbitration,
-110-
PARK AVE ARMORY/NYLPC - LEASE PT II
such date and terms shall be deemed to be for all purposes of this Lease the
date and terms specified by Landlord as above provided. When the Additional
Offering Space Date and terms have so been determined, the parties shall, within
ten (10) days thereafter, at either party's request therefor, execute a written
agreement confirming the Additional Inclusion Date and the terms of the
inclusion of the Additional Offering Space. Any failure of the parties to
execute such written agreement shall not affect the validity of the Additional
Offering Space Date and the terms of the inclusion of the Additional Offering
Space as specified and determined as aforesaid.
ARTICLE 48
TENANT'S ANTENNA
48.01. Provided that space on the rooftop of the Building shall then be
available as hereinafter more specifically set forth, Landlord agrees that,
subject to all laws, ordinances, statutes, rules and regulations of all
governmental authorities having jurisdiction thereof, and further subject to the
conditions and limitations hereinafter stipulated, during the term of this
Lease, Tenant, at Tenant's sole cost and expense, upon no less than thirty (30)
days' advance notice to Landlord ("Tenant's Antenna Notice"), may install on a
portion of the rooftop of the Building, if same shall be available, and
thereafter maintain, repair, and operate one microwave dish or one satellite
communications receiver (hereinafter referred to as the "antenna"), the
dimensions of which, together with all supporting structures and ancillary
equipment, shall not exceed 10 feet x 10 feet x 10 feet, provided and on
condition that: (i) the size and dimensions of the antenna and any reasonably
required support structures as well as the location of the portion of the
rooftop for such installation shall be subject to Landlord's prior consent,
which shall not be unreasonably withheld or delayed; (ii) the installation and
position of such antenna and reasonably required support structures shall comply
with Legal Requirements; (iii) the installation of any electrical or
communications lines ("Wiring") and related equipment in connection with the
installation and operation of the antenna, as well as the manner and location
(i.e., routing) of all Wiring and related equipment in connection therewith
shall (A) be at Tenant's sole cost and expense, (B) be subject to Landlord's
prior consent, which shall not be unreasonably withheld or delayed; and (C)
comply with Legal Requirements; and (iv) the antenna, reasonably required
support structures, Wiring and related equipment shall be maintained and kept in
repair by Tenant, at Tenant's sole cost and expense. The parties agree that
Tenant's use of the rooftop of the Building is a nonexclusive use and Landlord
may permit the use of any other portion of the roof to any other person, firm or
corporation for any use including the installation of other antennas and support
equipment. The parties also agree that Tenant's rights under this Article 48
shall be entirely conditional upon there being available at the time that Tenant
shall give the notice to Landlord required pursuant to this Section 48.01 space
available on the rooftop appropriate in Landlord's reasonable judgment for the
installation
-111-
PARK AVE ARMORY/NYLPC - LEASE PT II
and operation of Tenant's antenna without any interference with any antenna or
other equipment then previously installed on such roof or as to which Landlord
shall have given, prior to the date hereof, an option for installation thereof,
it being understood and agreed that Landlord shall have no obligation to reserve
any such space for Tenant's use. Tenant's rights hereunder are subject to the
rights of other occupants of the Building or other third parties to whom
Landlord shall have given, prior to the date hereof, rights to the rooftop of
the Building.
48.02. For the purpose of installing, servicing or repairing the antenna
and related equipment, Tenant shall have access to the rooftop of the Building
upon prior reasonable request of Landlord. All access by Tenant to the roof of
the Building shall be subject to the supervision and control of Landlord and to
Landlord's reasonable safeguards for the security and protection of the
Building, the Building equipment and installations and equipment of other
tenants of the Building as may be located on the roof of the Building. Landlord
shall have the right to assign a Building representative to be present during
the duration of Tenant's access to the rooftop and Tenant shall pay the
Landlord's customary charges therefor as additional rent.
45.03. Tenant, at Tenant's sole cost and expense, agrees to promptly and
faithfully obey, observe and comply with all laws, ordinances, regulations,
requirements and rules of all duly constituted public authorities in any manner
affecting or relating to Tenant's use of said roof as to the installation,
repair, maintenance and operation of any support structures and antenna and
related equipment erected or installed by Tenant pursuant to the provisions of
this Article 48. Tenant, at Tenant's sole cost and expense, shall secure and
thereafter maintain all permits and licenses required for the installation and
operation of the antenna and any support structures and related equipment
erected or installed by Tenant pursuant to the provisions of this Article 48,
including, without limitation, any approval, license or permit required from the
Federal Communications Commission. Landlord shall reasonably cooperate with
Tenant, at Tenant's expense, in connection with obtaining any such permits or
licenses. In no event shall the maximum level of microwave emissions from the
antennas exceed an amount equal to Tenant's proportionate share of the total
microwave emissions allowable for the Building as determined by the governmental
authorities having jurisdiction thereof.
48.04. Tenant agrees that Tenant will pay for all electrical service
required for Tenant's use of the antenna and related equipment erected or
installed by Tenant pursuant to the provisions of this Article 48 in accordance
with Article 4 of this Lease and Tenant further agrees that such electric
service shall feed off the supply of electrical energy furnished to the demised
premises as provided in Article 4 of this Lease.
-112-
PARK AVE ARMORY/NYLPC - LEASE PT II
48.05. The antenna, support structures and related equipment installed by
Tenant, pursuant to the provisions of this Article 48 shall be Tenant's personal
property, and, upon the expiration of the term of this Lease, or upon its
earlier termination in any manner, shall be removed by Tenant at Tenant's sole
cost and expense. All wiring and related electrical equipment installed by
Tenant in connection with the installation and operation of the antenna shall be
Tenant's personal property. Upon the expiration of the Term of this lease or
upon its earlier termination in any manner, if Landlord so directs by written
notice to Tenant, Tenant shall promptly remove the Wiring and electrical
equipment as designated in such notice, at Tenant's sole cost and expense.
Tenant, at Tenant's sole cost and expense, shall promptly repair any and all
damage to the rooftop of the Building and to any other part of the Building
caused by or resulting from the installation, maintenance and repair, operation
or removal of the antenna, support structures, Wiring and related equipment
erected or installed by Tenant pursuant to the provisions of this Article 48 and
restore said affected areas to their condition as existed prior to the
installation of the antenna and related equipment.
48.06. Tenant agrees that Landlord shall not be required to provide any
services whatsoever to the rooftop of the Building other than reasonable access
thereto in accordance with the provisions of this Article 48.
48.07. Tenant covenants and agrees that all installations made by Tenant
on the rooftop of the Building or in any other part of the Building pursuant to
the provisions of this Article 48 shall be at the sole risk of Tenant, and
neither Landlord nor Landlord's agent or employees shall be liable for any
damage or injury thereto caused in any manner, unless the same shall proximately
result from the gross negligence or willful misconduct of Landlord, its agents
and employees and in no event shall Landlord be liable to Tenant for any
special, indirect or consequential damages in connection therewith.
48.08. Subject to the waiver of subrogation set forth in Section 9.08
hereof, Tenant will, and does hereby, indemnify and save harmless Landlord from
and against: (i) any and all claims, counsel fees, demands, damages, expenses or
losses by reason of any liens, orders, claims or charges resulting from any work
done, or materials or supplies furnished, in connection with the fabrication,
erection, installation, maintenance and operation of the antenna, support
structures, Wiring and any related equipment installed by Tenant pursuant to the
provisions of this Article 48; and (ii) any and all claims, costs, demands,
expenses, fees or suits arising out of accidents, damage, injury or loss to any
and all persons and property, or either, whomsoever or whatsoever resulting from
or arising in connection with the erection, installation, maintenance and
operation and repair of the antenna, support structures, Wiring and related
equipment installed by Tenant pursuant to the provisions of this Article 48
except to the extent caused by
-113-
PARK AVE ARMORY/NYLPC - LEASE PT II
the gross negligence or wilful misconduct of Landlord, or its agents or
employees and in no event shall Landlord be liable to Tenant for any special,
indirect or consequential damages in connection therewith. Tenant shall obtain
and thereafter maintain during the Term of this Lease insurance coverage for the
benefit of Landlord and its managing agent in such amount and of such type as
Landlord may reasonably require. Notwithstanding anything herein contained to
the contrary, Tenant shall perform the installations or exercise Tenant's rights
referred to in this Article 48 in a manner so as not to revoke, negate or in any
manner impair or limit the roof warranty or guaranty to be obtained by Landlord,
to the extent same shall be a 20-year, no dollar limit warranty with conditions
customary in the industry.
48.09. All plans and specifications of Tenant's Work and installations to
be done and made by Tenant pursuant to the provisions of this Article 48 shall
be subject to the prior approval of Landlord, such approval not to be
unreasonably withheld or delayed, and shall be further subject to inspection and
reasonable supervision by Landlord at Tenant's cost for the actual out-of-pocket
costs incurred by Landlord therefor.
48.10. Tenant covenants and agrees that the antenna, support structures,
Wiring and related electrical equipment to be installed by Tenant shall not
interfere with or adversely affect any equipment, installations, lines or
machinery of the Building or any other tenant of the Building, including,
without limitation, any other communications equipment previously installed in,
on top of or otherwise outside the Building, or access thereto for maintenance,
repair or removal. Landlord agrees that any communications equipment installed
on the roof of the Building after the installation of Tenant's antenna shall not
interfere with or adversely affect Tenant's antenna or the use and operation
thereof (except to a de minimis extent).
48.11. Tenant acknowledges being advised by Landlord that Landlord has,
and shall be, granting to third parties, various rights and licenses to utilize
various portions of the Building and rooftop thereof for the installation of
microwave dishes, satellite communications equipment, whip antennae and other
communications equipment and related equipment (hereinafter all of the foregoing
are collectively referred to as "Other Communications Equipment") and that,
inasmuch as Landlord's ability to facilitate the installation and operation of
such Other Communications Equipment will be of paramount importance to Landlord,
Landlord shall have the right, at any time and from time to time, during the
Term of this Lease, upon thirty (30) days' prior written notice to Tenant, to
relocate the Tenant's antenna, support structures and related equipment to other
areas of the Building and rooftop thereof, as Landlord in its sole discretion
may determine so as to accommodate such Other Communications Equipment on the
roof of the Building and so as to eliminate, or not to create, problems of
interference with respect to or between Other Communications Equipment now, or
in the future, installed on the roof or other areas of the Building. Such
relocation shall, to the extent practicable, be performed during hours other
than periods when Tenant is using such antenna so as to minimize any
-114-
PARK AVE ARMORY/NYLPC - LEASE PT II
disruption of Tenant's normal business activities and except for such downtime
such relocation shall not prevent Tenant from using its antenna for its original
intended purpose. Tenant shall cooperate with Landlord to effectuate the
relocation of Tenant's antenna, support structures and related equipment, as
shall be required by Landlord. All costs involved in such relocation shall be
borne by Landlord.
48.12. Tenant shall not be permitted to assign or transfer all or any
portion of the rights granted to Tenant pursuant to this Article 48 unless
Tenant assigns this Lease to the party to whom such rights are assigned or
transferred.
48.13. From and after the earlier of: (i) the date of installation of
Tenant's antenna, or (ii) the date occurring ninety (90) days after Landlord's
receipt of Tenant's Antenna Notice, Tenant shall pay to Landlord a fixed annual
charge with respect to the antenna at the annual rate equal to the then fair
market value thereof, and such fixed annual charge shall be payable in equal
monthly installments on the first day of each month in the same manner as
prescribed in Article 1 with respect to the fixed annual rent payable
thereunder. Landlord agrees that if Tenant shall give Tenant's Antenna Notice on
or before the first (1st) anniversary of the date of this Lease, then the fixed
annual charge due and payable pursuant to this Section 48.13 shall be at the
rate of Twelve Thousand ($12,000) Dollars per annum, as such amount shall be
subject to increase as of the third (3rd), sixth (6th), ninth (9th) and twelfth
(12) anniversaries of the Commencement Date by the same percentage increase in
the CPI as of each such anniversary date over the CPI as of the Commencement
Date.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD:
PARK AVENUE SOUTH ARMORY, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, Vice President
TENANT:
THE NEW YORK LAW PUBLISHING COMPANY
By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxxxx, President
Tenant's Tax Identification Number is 00-0000000.
-115-
PARK AVE ARMORY/NYLPC - LEASE PT II
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On this 28th day of September, 1993, before me personally came Xxxx
Xxxxxxx, to me known, who; being duly sworn by me, did depose and say that he
has an address at 000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, that he
is the Vice President of PARK AVENUE SOUTH/ARMORY, INC., a New York corporation,
the corporation mentioned in, and which executed the foregoing instrument as
Landlord; and that he signed his name thereto by order of the Board of Directors
of said corporation.
JUNE X. XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Nassau County /s/ June X. Xxxxxxxx
Commission Expires 9/28/95 --------------------------
Notary Public
CORPORATE TENANT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 29th day of September, 1993, before me personally came Xxxxx
X. Xxxxxxxxxxx to me known, who being by me duly sworn, did say that he resides
at 00 Xxxx 00xx Xxxxxx, XX, XX 00000; that he is President of THE NEW YORK LAW
PUBLISHING COMPANY, the corporation described in and which executed the
foregoing instrument as Tenant; and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ Xxxxxx Xxxx
--------------------------
Notary Public
XXXXXX XXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires March 3, 1994
-116-
PARK AVE ARMORY/NYLPC - LEASE PT II
SCHEDULE A
[FLOOR PLAN OMITTED]
0XX XXXXX
X-0
[FLOOR PLAN OMITTED]
0XX XXXXX
X-0
[FLOOR PLAN OMITTED]
9TH FLOOR
A-3
SCHEDULE B
RULES AND REGULATIONS
I. Tenant shall not:
1. obstruct, encumber or use, or allow or permit any of its employees,
agents, licensees or invitees to congregate in or on, the sidewalks, driveways,
entrances, passages, courts, arcades, esplanade areas, plazas, elevators,
vestibules, stairways, corridors or halls of the Building, outside of the
demised premises, or use any of them for any purposes other than for ingress and
egress to and from the demised premises;
2. attach awnings or other projections to the outside walls of the
Building or place bottles, parcels or other articles, or lettering visible from
the exterior, on the windows, windowsills or peripheral air conditioning
enclosures;
3. attach to, hang on, or use in connection with, any exterior window or
entrance door of the demised premises, any blinds, shades or screens which are
not of a quality, type, design and color, or which are not attached in a manner,
approved by Landlord;
4. place or leave any door mat or other floor covering in any area outside
of the demised premises;
5. exhibit, inscribe, paint or affix any sign, insignia, advertisement,
object or other lettering in or on any windows, doors, walls or part of the
outside or inside of the Building (exclusive of the inside of the demised
premises), or in the demised premises if visible from the outside, without
Landlord's approval, except that the name(s) of Tenant and any permitted
sublessee may be displayed on the entrance doors of the premises occupied by
each, subject to Landlord's reasonable approval of the size, color and design of
such display and, if Landlord elects to perform such work, Tenant shall pay
Landlord for the performance of such work;
6. cover or obstruct the sashes, sash doors, skylights, windows and doors
that reflect or admit light and air into the halls, passageways or other public
areas of the Building;
7. place in, sweep or permit to be swept, attach to, put in front of, or
affix to any part of the exterior of, the Building or any of its halls, doors,
windows, elevators, corridors or vestibules, outside of the demised premises,
any lettering, signs, decorations, showcases, displays, display windows,
packages, boxes or other articles;
8. except in the normal decoration of the interior of the demised
premises, xxxx, paint, drill into, or in any way deface, any part of the
Building or the demised premises or cut, bore or string wires therein;
9. permit or allow bicycles, vehicles, animals, fish or birds of any kind
to be brought into or kept on or about the Building or the demised premises;
B-1
10. make, permit or alloy to be made, any unseemly or disturbing noises,
whether by musical instruments, recordings, radio, talking machines, television,
whistling, singing or in any other way, which might disturb other occupants in
the Building or those having business with them or impair or interfere with the
use or enjoyment by others of neighboring buildings or premises;
11. bring into or keep on any part of the demised premises or the Building
any inflammable, combustible, radioactive or explosive fluid, chemical or
substance, other than for customary general and executive office purposes;
12. place upon any of the doors (other than closet or vault doors) or
windows in the Building any locks or bolts which shall not be operable by the
Grand Master Key for the Building, or make any changes in locks or the
mechanisms thereof which shall make such locks inoperable by said Grand Master
Key unless such change is approved by Landlord in which event Tenant shall give
Landlord duplicate keys for such locks or bolts;
13. remove, or carry into or out of the demised premises or the Building,
any safes, freight, furniture, packages, boxes, crates or any bulky or heavy
objects except during such hours and in such elevators as Landlord may
reasonably determine from time to time;
14. use any lighting in perimeter areas of the Building, other than that
which is standard for the Building or approved by Landlord, so as to permit
uniformity of appearance to those viewing the Building from the outside;
15. engage or pay any employees on the demised premises except those
actually working for the Tenant in the demised premises, or advertise for
laborers giving the demised premises as an address;
16. obtain, permit or allow in the Building the purchase, or acceptance
for use in the demised premises, by means of a service cart, vending machine or
otherwise, of any ice, drinking water, food, tobacco in any form, beverage,
towel, barbering, boot blackening, cleaning, floor polishing or other similar
items or services from any persons, except such persons, during such hours, and
at such places within the Building and under such requirements as may be
determined by Landlord with respect to the furnishing of such items and
services, provided that the charges for such items and services by such persons
are not excessive;
17. intentionally omitted;
18. close and leave the demised premises at any time without closing all
operable window and, if requested by Landlord, turning out all lights;
B-2
19. permit entrance doors to the demised premises to be left open at any
time or unlocked when the demised premises are not in use;
20. encourage canvassing, soliciting or peddling in any part of the
Building or permit or allow the same in the demised premises;
21. use, or permit or allow any of its employees, contractors, suppliers
or invitees to use, any space or part of the Building, including the passenger
elevators or public halls thereof, in the moving, delivery or receipt of safes,
freight, furniture, packages, boxes, crates, paper, office material or any other
matter or thing, any hand trucks, wagons or similar items which are not equipped
with such rubber tires, side guards and other safeguards which shall have been
approved by Landlord or use any such hand trucks, wagons or similar items in any
of the passenger elevators;
22. cause or permit any food odors or any other unusual or objectionable
odors to exist in or emanate from the demised premises or permit any cooking or
preparation of food except in areas approved by Landlord and in compliance with
local ordinances;
23. create or permit a public or private nuisance, by reason of noise,
odors and/or vibrations or otherwise;
24. throw or allow or permit to be thrown anything out of the doors,
windows or skylights or down the passageways or stairways of the Building;
25. lay vinyl asbestos tile or other similar floor covering so that the
same shall come in direct contact with the floor or in a manner or by means of
such pastes or other adhesives which shall not have been approved by Landlord,
it being understood that if linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall be first affixed to
the floor, by a paste or other material which is soluble in water, the use of
cement or other similar adhesive material being expressly prohibited;
26. use, allow or permit the passenger elevators to be used by Tenant's
working hands (persons in rough clothing handling packages, cartons and
shipments of material or mail) or persons carrying bulky packages or by persons
calling for or delivering mail or goods to or from the demised premises, and
Tenant shall cooperate with Landlord in enforcing this Rule on those making
deliveries to Tenant;
27. request any of Landlord's agents, employees or contractors to perform
any work, or do anything, outside of their regular duties, unless previously
approved by the Building manager;
28. invite to the demised premises or the Building, or permit the visit
of, persons in such numbers or under such conditions as unreasonably to
interfere with the use and enjoyment of any of the plazas, entrances, corridors,
arcades, escalators, elevators or other facilities of the Building by other
occupants thereof;
B-3
29. use, permit or allow the use of any fire exits or stairways for any
purpose other than emergency use;
30. employ any firm, person or persons to move safes, machines or other
heavy objects into or out of the Building, without prior approval of Landlord of
such persons and the manner in which such items will be moved, which approval
shall not be unreasonably withheld;
31. install or use any machines or machinery of any kind whatsoever which
may disturb any persons outside of the demised premises;
32. use the water and wash closets or other plumbing fixtures for any
purpose other than those for which they were constructed, and shall not allow or
permit sweepings, rubbish, rags, or other solid substances to be thrown therein;
or
33. install any carpeting or drapes, or paneling, grounds or other
decorative wood products, in the demised premises, other than those wood
products considered furniture, which are not treated with fire-retardant
materials and, in such event, shall submit, to Landlord's reasonable
satisfaction, proof or other reasonable certification of the materials
reasonably satisfactory fire retardant characteristics.
34. smoke or carry lighted cigars or cigarettes in the elevators of the
building.
II. Tenant shall:
1. pay Landlord for any damages, costs or expenses incurred by Landlord
with respect to the breach of any of the Rules and Regulations contained in or
provided by this Lease by Tenant, or any of its servants, agents, employees,
licensees or invitees, or the misuse by Tenant, or any of the aforesaid, of any
fixture or part of the demised premises or the Building and shall cause its
servants, agents, employees, licensees and invitees to comply with the Rules and
Regulations contained in or provided for by this Lease;
2. upon the termination of this Lease, turn over to Landlord all keys;
either furnished to, or otherwise procured by, Tenant with respect to any locks
used by Tenant in the demised premises or the Building and, in the event of the
loss of any such keys, pay to Landlord the cost of procuring same;
3. subject to the provisions of Article 18 hereof, refrain from, and
immediately upon receipt of notice thereof, discontinue any violation or breach
of the Rules and Regulations contained in or provided for by this Lease;
4. request Landlord to furnish passes to persons whom Tenant desires to
have access to the demised premises during times other than Business Hours and
be responsible and liable to Landlord for all persons and acts of such persons
for whom Tenant requests such passes;
B-4
5. furnish artificial light and electrical energy (unless Landlord shall
furnish electrical energy as a service included in the rent) at Tenant's expense
for the employees of the Landlord or Landlord's contractors while doing
janitorial or other cleaning services or while making repairs or Alterations in
the demised premises.
6. apply at the office of the Building's manager with respect to all
matters and requirements of Tenant which require the attention of Landlord, his
agents or any of his employees;
7. pay Landlord reasonable charges for the installation and replacement of
ceiling tiles removed for Tenant by telephone installers or others in the
demised premises and public corridors, if any;
8. except as expressly provided to the contrary in this Lease, pay
Landlord actual reasonable charges for the hiring or providing of security
guards during times when Tenant, or any subtenant of Tenant, is moving into or
out of portions of the demised premises or when significant quantities of
furniture or other materials are being brought into or removed from the demised
premises.
III. Landlord shall:
1. have the right to inspect all freight objects or bulky matter (except
printed matter) brought into the Building and to exclude from the Building all
objects and matter which violate any of the Rules and Regulations contained in
or provided for by this Lease;
2. have the right to require any person leaving the demised premises with
any package, or other object or matter, to submit a pass, listing such package
or object or matter, from Tenant;
3. in no way be liable to Tenant or any other party for damages or loss
arising from the admission, exclusion or rejection of any person or any property
to or from the demised premises or the Building under the provisions of the
Rules and Regulations contained in or provided for by this Lease;
4. have no liability or responsibility for the protection of any of
Tenant's property as a result of damage or the unauthorized removal of any such
property resulting wholly or in part from Landlord's failure to enforce, in any
particular instance, or generally, any of Landlord's rights.
5. have the right to require all persons entering or leaving the Building,
during hours other than Business Hours, to sign a register and may also exclude
from the Building, during such hours, all persons who do not present a pass to
the Building signed by Landlord;
6. furnish passes to persons for whom Tenant requests same;
7. have the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of other occupants, of the Building; and
B-5
8. have the right to remove any violation of Paragraph I items 2, 3, 4, 5,
6 or 7 of these Rules and Regulations without any right of Tenant to claim any
liability against Landlord, and have the right to impose a reasonable charge
against Tenant for removing any such violation or repairing any damages
resulting therefrom.
In the event of any conflict between the provisions of the Lease and
these Rules and Regulations, the provisions of the Lease shall govern.
B-6
SCHEDULE C
LANDLORD'S POST-COMMENCEMENT WORK
Landlord, shall, at Landlord's sole cost and expense, perform the
following work ("Landlord's Post-Commencement Work") in and to the demised
premises in a good and workerlike manner in accordance with all Legal
Requirements:
1. Replace the existing electrical panels servicing the demised
premises with circuit breaker panels and new disconnect
switches, and bring up additional risers in order to provide
an aggregate 500 amps power to be terminated in Room 747 as
per Tenant's Plan 7-PT, and as set forth in Paragraphs 2 and 3
of the proposal from Cardinal Electrical Contractors Inc. to
Landlord, dated September 28, 1993, a copy of which is annexed
as an Exhibit to this Schedule C, of which 250 amps shall
satisfy Landlord's obligation to supply the Provided Capacity
set forth in clause (i) of subsection 4.01(a) hereof for the
7th floor, and the remaining 250 amps shall be for Tenant's
use. Landlord shall substantially complete the portion of
Landlord's Work set forth in this Paragraph 1 on or before the
date occurring four (4) weeks after "Tenant's Work Start
Date", defined as the date the Tenant's contractor shall
commence the actual construction of Tenant's Work (as opposed
to preliminary work such as plan filing and contract bidding).
If Landlord shall not have timely substantially completed the portion of
Landlord's Post Commencement Work set forth in the foregoing Paragraph 1 hereof
on or before the date set forth in such Paragraph 1 for such substantial
completion, as such date shall be extended for Force Majeure Causes, then
provided that (i) such failure shall not have been caused by Tenant's Delays,
and (ii) such failure shall cause an actual delay in the performance of Tenant's
Work or an actual delay in the date that Tenant is able to occupy the demised
premises for conduct of its business, then for each such day of such actual
delay in the performance of Tenant's Work or an actual delay in the date that
Tenant is able to occupy the demised premises for conduct of its business
(without double counting any delay in the performance of Tenant's Work which
automatically causes an automatic delay in such occupancy date), the Rent
Commencement Date shall be extended by one day on a day-for-day basis (without
further double counting the number of days of such extension of the Rent
Commencement Date, however, in the event that such delay in the performance of
Tenant's Work is caused by Landlord's failure to substantially complete more
than one portion of Landlord's Post-Commencement Work).
C-1
2. Perform such work as may be required so that the core
bathrooms located on each floor of the demised premises shall
comply with The Americans with Disabilities Act of 1990,
Public Law 101-336, 42 U.S.C. 12101 et seq. and all other
applicable Legal Requirements. Landlord shall construct core
bathrooms on the 7th and 8th floors substantially to the
standard of the core bathroom on the 2nd floor of the
Building. Landlord shall renovate the 9th floor core bathroom
as necessary to comply with this Paragraph 2. Landlord shall
substantially complete Landlord's Work set forth in this
Paragraph 2 in the 7th floor and 8th floor bathrooms on or
before the date that Tenant completes Tenant's Work, subject
to extension by reason of Force Majeure Causes. Landlord shall
give Tenant at least three (3) Business Days prior notice of
the delivery of such 7th floor and 8th floor bathrooms and
Tenant shall inspect same during such notice period, and shall
accept same in their substantially complete condition subject
to performance of punchlist items. Landlord shall provide and
install standard locksets for such bathrooms and after
delivery of same to Tenant, Landlord shall have no further
liability to Tenant with respect to same pursuant to this
Paragraph 2. With respect to the 9th floor bathroom, Landlord
shall substantially complete the portion of Landlord's Work
set forth in this Paragraph 2 to the extent required to
provide a working bathroom on or before the date that Tenant
completes Tenant's Work and Landlord shall complete the
finishes in such 9th floor bathroom within thirty (30) days
after the completion of Tenant's Work. If Landlord does not
substantially complete Landlord's Post Commencement Work set
forth in this Paragraph 2 on or before the deadline dates set
forth herein, than Tenant and Landlord agree that as Tenant's
sole remedy therefor, Tenant shall have the right to perform
the items of such Landlord's Post-Commencement Work which were
not substantially completed with respect to which Tenant shall
have given Landlord prior notice of its intention to exercise
the self-help remedy and the name of the contractor Tenant
intends to engage for the performance of such remedy work and
Landlord shall not have reasonably objected in writing to the
use of the contractor named by Tenant in its notice to perform
such remedy work. Upon completion of such remedy of the
uncompleted work by Tenant, Tenant shall give notice thereof
to Landlord and shall submit to Landlord together with such
notice a copy of paid invoices from such contractor setting
forth the reasonable costs and expenses incurred by Tenant to
complete such remedy work and if Landlord shall not have
reimbursed Tenant the amount of such reasonable costs and
expenses with interest thereon at the Interest Rate within ten
(10) Business Days after receipt of Tenant's notice, then
Tenant shall have the right to offset such costs and expenses
with interest thereon at the Interest Rate against the
payments of fixed rent and other items of rental due hereunder
(hereinafter called the "Offset Option"), provided that the
amount of such offset shall be based on the invoices submitted
to Landlord and provided further that Tenant's notice to
Landlord shall have specifically referenced Tenant's intention
to exercise the Offset Option in the event of
C-2
Landlord's failure to timely make the foregoing reimbursement.
Notwithstanding anything to the contrary contained herein,
Tenant shall have no right to elect the Offset Option after it
has provided Landlord with prior written notice of its
election of said Offset Option hereinbefore set forth if
within ten (10) Business Days from Landlord's receipt of such
notice, Landlord has objected to the Offset Option and
commenced the arbitration process set forth in Article 38
hereof. In the event Landlord shall dispute the Offset Option
by written notice to Tenant and shall begin the arbitration
process set forth in Article 38, Tenant shall continue to make
all rental payments required under the lease in a timely
fashion without application of the Offset Option until such
time as said arbitration is resolved in Tenant's favor, at
which time, Tenant shall have the right to exercise the Offset
Option, with interest as aforesaid.
3. Replace with new wire glass windows those lot line windows
which were not recently replaced within thirty (30) days after
the Air-Cooled Units shall have been installed and Tenant
shall have met with Landlord's managing agent to identify the
lot line windows to be replaced.
C-3
Exhibit to Schedule C
[Letterhead of CARDINAL ELECTRICAL CONTRACTORS, INC.]
September 28, 1993 PROPOSAL
Montrose Realty
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Mr. Xxx Xxxxxx
RE: 000 Xxxx Xxxxxx, Xxxxx
Power to 7th Floor
Dear Xxx:
As per your request, we are submitting our proposal for the above mentioned
project.
1) -500 Amperes to 7th floor terminating at a 600 ampere fused switch, this
riser will be a parallel set of 300 MCM with a 1/0 neutral in each set.
$ 32,500.00
-----------
2) -400 amperes to the 7th floor which will be a parallel set 4/0, 3 in each
conduit terminating at a 400 ampere switch.
$ 26,000.00
-----------
3) -100 amperes 3-phase 4-wire for lighting and power, we would use 1/0
conductors which is rated at 150 amperes and terminate at a 200 ampere
switch and fuse at 125 amperes.
$ 7,000.00
-----------
Hoping we have covered all your options.
All main switches tie ins will be coordinated with Con Edison and Building
personnel.
We will have to file Advisory Board drawings with this request.
Very truly yours,
CARDINAL ELECTRICAL CONTRACTORS, INC.
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
President
RB/lf
SCHEDULE D
CLEANING SPECIFICATIONS
A. General Cleaning will be performed nightly, Monday through
Friday, excluding Union and/or legal Holidays.
1. All carpeting will be vacuumed once per week and carpet
swept the remaining four nights.
2. All composition floor tile will be swept and dust mopped
with a chemically treated mop for dust control.
3. All desks will be dusted.
4. All ashtrays will be emptied and cleaned.
5. Waste paper baskets will be emptied and trash removed to a
designated location on the premises. Plastic liners will be
installed weekly into all trash receptacles at the tenants' expense.
6. Wipe clean all water fountains and coolers - empty waste
water.
7. All janitor rooms will be kept clean and in an orderly
condition.
B. Lavatory service will be performed, Monday through Friday,
excluding Union and/or legal Holidays.
1. Porcelain fixtures will be scoured clean.
2. Both sides of toilet seats will be washed with a mild
germicidal solution.
3. Bright work will be dry polished.
4. Receptacles will be emptied and cleaned.
5. Mirrors will be cleaned.
6. Partitions will be wiped down as necessary.
7. Shelves will be cleaned.
8. Floors will be washed with a mild non-injurious
disinfectant.
9. Lavatory supplies to be furnished at the Tenant's expense
except on multi-tenanted floors, in which event same shall be
furnished at Landlord's expense.
D-1
C. Weekly Routine
1. All chairs, tables, cabinets and allied attachments will be
dusted weekly.
2. Window xxxxx will be dusted weekly.
3. Moldings and ledges within hands reach will be dusted
weekly.
D. Quarterly Cleaning
1. Dust while in place all pictures, frames, charts, graphs
and similar wall hangings not reached in nightly cleaning.
2. Dust all verticle surfaces and walls, partitions, doors,
door bucks and other surfaces not reached in nightly cleaning.
3. Clean all exterior windows (inside and out).
4. Dust all venetian blinds.
E. Yearly Service
1. Clean all venetian blinds.
D-2
SCHEDULE E
TERMINATION FIXED RENT
------------------------------------------
1994 Jan $0.00
Feb $13,254.54
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug $91,257.86
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
1995 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct $204,406.00
Nov [ILLEGIBLE]
Dec $287,781.32
------------------------------------------
1996 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar $323,904.27
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov $414,515.91
Dec $425,211.21
------------------------------------------
1997 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun $431,151.18
Jul [ILLEGIBLE]
Aug $422,782.53
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov $410,020.39
Dec [ILLEGIBLE]
------------------------------------------
1998 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct $361,001.05
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
1999 Jan $347,002.23
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
E-1
SCHEDULE E
TERMINATION FIXED RENT
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct $303,301.90
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
2000 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep $246,238.47
Oct [ILLEGIBLE]
Nov $235,410.37
Dec $229,942.43
------------------------------------------
2001 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar $213,320.19
Apr $207,705.83
May $202,054.26
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
2002 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May $131,241.25
Jun [ILLEGIBLE]
Jul [ILLEGIBLE]
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
2003 Jan [ILLEGIBLE]
Feb [ILLEGIBLE]
Mar [ILLEGIBLE]
Apr [ILLEGIBLE]
May [ILLEGIBLE]
Jun [ILLEGIBLE]
Jul $41,208.63
Aug [ILLEGIBLE]
Sep [ILLEGIBLE]
Oct [ILLEGIBLE]
Nov [ILLEGIBLE]
Dec [ILLEGIBLE]
------------------------------------------
2004 Jan $0.00
E-2
SCHEDULE F
AIR-COOLED UNITS LOCATION PLAN
[FLOOR PLAN OMITTED]
8th FLOOR
F-1
SCHEDULE F
AIR-COOLED UNITS LOCATION PLAN
[FLOOR PLAN OMITTED]
7th FLOOR
F-2
SCHEDULE G
RULES AND REGULATIONS FOR ALTERATIONS
1. Letter of intent from tenant.
2. Three (3) complete sets of plans with specifications.
3. Building Notice application forms.
4. Approval of Landlord.
5. Insurance Certificates from General Contractor and all Subcontractors.
6. Cashier's receipt from Building Department.
7. Work permit to be posted at job site.
8. Final Approval from Building Department.
DEMOLITION
1. All demolition to be done before or after building office hours.
2. All rubbish removal before or after building hours.
3. Tenant to pay for overtime elevator service.
4. Tenant to make arrangement with Building Manager for Contractor's use of
elevator service.
5. No material or equipment to be carried under or on top of elevators.
WALLS: "MASONRY"
1. All masonry walls to have a base course of cinder blocks on cement slab.
2. All masonry walls to be from slab to arch.
3. All walls to meet Building Department requirements.
4. All walls abutting mullions to have a channel to receive blocks.
DRY WALLS
1. All dry wall partitions are to be constructed of steel studs and 5/8"
sheetrock - sheetrock to be installed vertically, penetrating ceiling,
studs to be 16" on center.
2. All walls abutting mullions to have a channel on the mullion and on the
horizontal and vertical surfaces of the periphery enclosure to receive
sheetrock. "J" molding is to be used where the sheetrock butts the
periphery enclosure or mullion surfaces.
G-1
3. The installation and application of all materials for dry wall
partitioning shall be in accordance with the manufacturers instructions
and of all applicable codes.
4. Fixing of all metal studs to floor and concrete ceilings shall be done
before or after business hours.
5. Floor and ceiling runners are to be securely attached, 16" OC to concrete
arch, not to ductwork.
6. For separation of tenants' spaces and public corridors, partitions are to
be as follows, in order to derive a 2 hour rating:
2 1/2" steel studs, 16" CC, 5/8" gypsum board inside layers both sides and
2 layers of 5/8" gypsum wall board all outside, a total of 4 layers all
from the floor slab to the structural slab above.
ELECTRICAL
1. Home runs to be indicated on plans. Rigid conduit to be used throughout
3/4" minimum size, thin wall tubing permitted.
2. Fixtures to be building standard or approved by Landlord.
3. Switches and outlets
Single pole switches - Leviton #5521) or equal
3-way switches - Leviton #5523) or equal
Wall receptacles - Leviton #5014) or equal
4. All conduit to be supported by standoffs, not wired to ceiling supports.
All conduit to be concealed.
5. All electrical boxes to be 4-1/2 X 4-1/2. No gem boxes.
6. All unused conduit and wiring to be removed.
6a. No power to be taken from line side of panels -- load side only.
6b. No power to be taken from other tenant on floor.
7. All wiring to meet Building Department and Underwriters requirements. No
wire molding permitted. No surface mounted wiring on walls, floors or
ceilings. No power poles or posts.
8. All special power to be taken from main distribution board, not from
existing building panels. Approval of all electrical work to be obtained
from Building Electrical Engineer, at tenant's expense.
9. Plans with requirements shall be submitted to Landlord to determine riser
capacity.
G-2
10. Tenant to pay for all electrical design and layout costs.
11. Building Mechanic to supervise all riser shutdowns.
12. All lighting fixtures shall be hung from carrying channels which will
provide bridged openings to receive fixtures.
13. The building shall be provided with "as built" drawings showing all
changes in wiring size, circuit numbering, circuit routing and all
electrical work as actually installed. Index to be revised on panels.
TELEPHONE
1. All telephone wire to be concealed in conduit or thin wall.
2. Telephone wire permitted to run loose in periphery enclosures.
3. No telephone wire to be run exposed on baseboards or walls.
4. Termination of conduit to be indicated on plans.
5. No telephone equipment of any kind shall be installed in any areas
reserved by building such as fan rooms, electric closets, halls, slop
sinks, etc.
DOORS
1. All doors to have a fire rated label in all instances where the wall in
which such door is located is required to be fire rated.
2. INTENTIONALLY OMITTED
3. All new metal doors shall be flush panels reinforced with channels at 6"
centers, insulated and with no visible seams.
4. All door frames shall have concealed reinforcement for door butts and
strike and shall be punched for silencers. Doors and door frames are to be
installed in accordance with manufacturers instructions.
HARDWARE
1. INTENTIONALLY OMITTED
2. All locks to be keyed and mastered to building setup. Two individual keys
to be supplied to building.
G-3
SUPERVISION
1. General Contractor to have a Superintendent or Xxxxxxx on premises at all
times during day and after hours when work is in progress.
2. Job to be policed at all times - laborers continually keeping space
orderly. If necessary, public lobby on floor to be washed and waxed.
Sidewalk to be kept clean.
3. Contractor to be responsible for cleanliness of all parts of area
including elevator and lobbies. The building will charge tenant for any
cleaning made necessary due to construction operations.
4. Contractor to protect all periphery units and clean same at completion of
job.
5. Contractor to block off grills or ducts to keep dust from entering into
operating building air conditioning system.
EQUIPMENT
1. No equipment is to be suspended from the reinforcing rods in arch.
2. Equipment to be suspended with fish plates through slab or steel beams
depending on weight.
3. All floor loading and steel work subject to the approval of the building
structural steel engineer. Approval obtained at tenant's expense.
WOODWORK
All wood to be fireproofed (New York City Affidavit of Certification to be
furnished).
PUBLIC AREAS
All public areas to meet Building Department requirements.
AIR CONDITIONING
1. Tenant to alter existing air conditioning ductwork or system to meet
requirements of altered area.
2. System to be balanced at completion of job.
G-4
3. Tenant to furnish design balancing figures to building.
4. All outside louvres to match existing. Sketches to be submitted prior to
installation.
5. No partial window louvre permitted.
6. No outside louvre or ductwork is to be installed in such a manner as to
interfere with the cleaning of windows or replacement of glass.
7. All periphery shut-off valves to be accessible at all times.
8. All unused ductwork to be removed.
9. All unused equipment, such as air handling units, air conditioning units
to be removed.
10. All ductwork shall be installed in a neat and workmanlike manner. All
ducts to be installed as high as possible. The air conditioning contractor
is to blank off all openings in the existing ductwork caused by removals.
All blank offs shall be sealed air tight, with rivets, caulking compound
and duct tape. All new ductwork is to be inspected and sealed wherever
required, in the same manner.
11. Manual volume dampers are to be installed in all branch or sub-branch
ducts and elsewhere as required for balancing and control of all duct
systems whether or not shown on drawings.
12. Duct hangers shall be attached to steel or concrete slab as required.
13. Access doors are to be provided adjacent to all fan dampers and locations
to be shown on duct work shop drawings.
14. All supplementary air-conditioning systems are to be specifically
discussed with the Landlord's representative.
15. All condensate lines are to be rigid copper tubing with an indirect drain
to waste, not into building service sinks or other sinks and not into the
building condensate system.
16. As-built duct drawings to be given to building upon the completion of job.
17. Pneumatic tubing to be copper. No plastic tubing permitted.
G-5
PLUMBING
1. No water risers to be shut down during building office hours.
2. All plumbing to conform to the Code.
3. All fixtures to match existing.
4. No exposed plumbing permitted.
5. All unused fixtures and piping to be removed and all unused piping to be
capped at its respective riser.
6. No plastic pipe permitted.
7. Building mechanic to supervise all riser shutdowns.
8. All valves to have a 2" square brass tag stamped with designating No., 1"
high, filled in with black enamel, to each valve; fastened to valve
spindle with brass chain.
9. Provide lead or fiber xxxxxxx between hangers and clamps for copper pipe.
10. All pipe hangers and supports shall be connected to the building
structure; no chain straps, perforated bars, wire hangers or expansion
xxxxxxx permitted; no hanging from work of another trade permitted.
11. Sleeves are to be provided for each pipe passing through walls, partitions
floors and slabs.
12. All fixtures installed must have a local shutoff valve, and where two or
more fixtures are in the same area, a valve to control all fixtures as
well as a shutoff valve at the riser.
CEILINGS
1. All ceilings shall meet all New York City Building Department
requirements.
2. All ceilings to match existing unless specifically approved by Owner.
G-6
3. No ceiling tiles shall be installed until the building management has had
an opportunity to inspect the areas to ascertain that all ductwork,
plumbing, electrical, etc., has been installed and further that all
fireproofing has been reinstalled on any exposed steel.
4. All ceilings are to be installed in strict accordance with the
manufacturers specifications, and all applicable Codes.
5. Access panels are to be provided wherever necessary for inspection
maintenance and/or controls relating to air-conditioning, plumbing or
other building services.
6. Carrying channels for the ceiling shall be bolted to hangers as required
but not over 4' - 0" OC and 6" of walls and partitions parallel to the
channels.
METAL AND GLASS PARTITIONS
1. All partitions to meet all N.Y. City Building Dept. requirements.
2. INTENTIONALLY OMITTED
3. All partitions to be secured to floor and to arch above. Hangers to be
independent of all other hangers.
FLOORING
INTENTIONALLY OMITTED
ELEVATOR SERVICE
Tenant to pay for all elevator service.
GENERAL
The Building Management Office will inspect the work to assure the building
requirements, quality of materials and workmanship are in conformity with
building standard.
If stand-by service is required, the Building Manager will supply necessary
staff at your expense.
G-7
The Building Management reserves, for its own use, all fan rooms, electric
closets, service sinks, telephone closets (if any), public stairways, public
lobbies and service corridors. No tenant installations are to be indicated on
drawings to be within those areas without specific approval of the building. A
blanket approval of a plan is not an approval to install conduit, piping, or
ductwork through these areas. In all cases where approval is given,
installations are to be done at the times specified by the building and in a
manner specified by the building. All holes in floors, walls, or ceilings are to
be properly sealed upon the completion of a specific installation.
All contractors are to support their work by independent means. No trade to hang
off another's work.
G-8
SCHEDULE H
SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE AGREEMENT
AGREEMENT dated the ___ day of ________, 1993 between PARK 25TH
ASSOCIATES, a New York limited partnership having an office at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Ground Lessor") and THE
NEW YORK LAW PUBLISHING COMPANY, a New York corporation having an office at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Space Tenant").
W I T N E S S E T H:
WHEREAS
A. Ground Lessor is the holder of the landlord's interest, and PARK AVENUE
SOUTH/ARMORY, INC. (hereinafter called "Ground Lessee") is the holder of the
tenant's interest, respectively, in, to and under that lease (hereinafter called
the "Ground Lease") described in Exhibit A annexed hereto which Ground Lease
covers the entire premises (hereinafter called the "Premises") described in
Exhibit B annexed hereto;
B. Ground Lessee, as landlord, and Space Tenant, as tenant, have or are
about to enter into a lease (hereinafter called the "Space Lease") for a portion
of the Premises;
C. A true and complete copy of the Space Lease has been delivered to
Ground Lessor the receipt of which is hereby acknowledged; and
D. Ground Lessor and Space Tenant desire to confirm their understanding
with respect to the Space Lease and the rights of Space Tenant thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, Ground Lessor and Space Tenant agree as follows:
1. If (i) the Ground Lease shall terminate or expire or be terminated
prior to the date fixed in the Space Lease for the expiration of the term of the
Space Lease by reason of surrender or default of Ground Lessee, cancellation by
agreement between Ground Lessor and Ground Lessee or for any other reasons, and
(ii) at the time of such termination or expiration Space Tenant is not in
default under the Space Lease after the giving of a notice thereof and the
expiration of any applicable grace period, then;
(a) Space Tenant shall not be named or joined as a party defendant
in any action, suit or proceeding to terminate the Ground Lease or to remove or
evict Ground Lessee from the Premises (unless Space Tenant is deemed a necessary
party by the court, in which event Space Tenant may be so named or joined but
such naming or joinder shall not otherwise be in derogation of the rights of
Space Tenant set forth in this Agreement); and
H-1
(b) Space Tenant shall not be evicted from the premises demised
under the Space Lease, nor shall the leasehold estate or possession of Space
Tenant be terminated or disturbed, nor (except to the extent provided in
Paragraph 2 of this Agreement) shall any of the rights of Space Tenant be
affected in any way by reason of any default or event of default under the
Ground Lease or by the Ground Lessor in the exercise of any of its rights under
the Ground Lease or otherwise by law provided, and in any case (except to the
extent provided in Paragraph 2 hereof) the rights of Space Tenant under the
Space Lease shall not be diminished, reduced or adversely affected in any way
whatsoever by reason of any default or event of default under, or termination or
expiration of, the Ground Lease.
2. If, at any time Ground Lessor (or any person, or such persons'
successors or assigns, who acquires the interest of Ground Lessee, as landlord,
under the Space Lease through termination of the Ground Lease or otherwise)
shall succeed to the rights of Ground Lessee, as landlord, under the Space Lease
as a result of a default or event of default by Ground Lessee under the Ground
Lease or for any other reason, and if Space Tenant is not then in default under
the Space Lease after notice and beyond the time permitted therein to cure such
default then (i) the Space Lease shall not terminate, (ii) Space Tenant shall
attorn to and recognize such person so succeeding to the rights of Ground
Lessee, as landlord, under the Space Lease (herein sometimes called "Successor
Landlord") as Space Tenant's landlord under the Space Lease, upon the then
executory terms and conditions of the Space Lease and as hereinafter provided in
this Paragraph 2, and (iii) Successor Landlord shall accept such attornment and
recognize Space Tenant as Successor Landlord's tenant under the Space Lease,
upon the then executory terms and conditions of the Space Lease and as
hereinafter provided in this Paragraph 2. Upon such attornment and recognition
the Space Lease shall continue in full force and effect as, or as if it were, a
direct lease between Successor Landlord and Space Tenant upon all the then
executory terms, conditions and covenants as are set forth in the Space Lease
and which shall be applicable after such attornment and recognition, except that
Successor Landlord shall not:
(a) be liable for any act or omission of Ground Lessee, as landlord,
under the Space Lease; provided, however, that the foregoing provisions of this
subparagraph 2(a) shall not be deemed to exculpate the Successor Landlord from
the obligation to cure any condition in the Building which continues to give
rise to a default after the date the Successor Landlord acquires its interest;
(b) be obligated to repair, replace, rebuild or restore the premises
demised under the Space Lease, or any part thereof, in the event of total or
substantially total damage or destruction beyond such repair, replacement,
rebuilding or restoration as can reasonably be accomplished from the net
proceeds of insurance actually received by, or made available to, Successor
Landlord for such purposes;
(c) be obligated to repair, replace, rebuild or restore the premises
demised under the Space Lease, or any part thereof, in the event of total or
substantially total taking by governmental authority, eminent domain or
condemnation beyond such repair, replacement, rebuilding or restoration as
H-2
can reasonably be accomplished from the net proceeds actually received by, or
made available to, Successor Landlord as consequential damage allocable to the
part of the premises demised under the Space Lease not taken;
(d) be subject to any offset or defense (other than actual
performance) which Space Tenant may have against the previous landlord as
landlord, under the Space Lease;
(e) be bound by any previous modification of the Space Lease unless
Ground Lessor has approved such amendment or modification in advance and by
written instrument or by any previous payment of rent or additional rent other
than the payment of the first month's rent made more than thirty (30) days prior
to its due date;
(f) be bound by any previous extension of the Space Lease (other
than extension or rights of extensions contained in the Space Lease) unless
Ground Lessor has approved such amendment or modification in advance and by
written instrument;
(g) be obligated to perform any work in the premises demised under
the Space Lease, or any part thereof, other than such work which is required to
be performed by Ground Lessee, as landlord, under the Space Lease from and after
such attornment provided, however, that Successor Landlord shall not be bound by
an obligation to complete construction of any tenant finish work or other
initial construction or initial improvement of the premises or to pay for such
work performed by Space Tenant.
In addition, in no event shall there by any personal liability under the
Space Lease on the part of Successor Landlord and Successor Landlord's liability
under the Space Lease shall be limited to the extent of the interest of
Successor Landlord in the Premises.
3. Space Tenant confirms that, subject to the provisions of this
Agreement, the Space Lease and its rights thereunder now are, and shall at all
times continue to be, subject and subordinate to the Ground Lease and to the
leasehold estate of the Ground Lessor in the Premises.
4. All notices shall be in writing and shall be deemed to have been
given when delivered personally or when deposited in the United States mail,
certified or registered, postage prepaid, addressed as follows:
To Ground Lessor:
Park 25th Associates
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with copies to:
H-3
To Space Tenant:
A. Prior to Space Tenant's occupancy of the Premises:
THE NEW YORK LAW PUBLISHING COMPANY
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
B. After Space Tenant has taken occupancy of the Premises:
THE NEW YORK LAW PUBLISHING COMPANY
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxx Xxxxxxxxxxx
5. Space Tenant hereby certifies to Ground Lessor:
(a) The Space Lease has not been modified, altered or amended. There are
not other oral or written agreements between Ground Lessee, as
landlord, and Space Tenant relating to the premises demised under
the Space Lease or the Space Lease.
(b) The base rent currently payable is set forth on Schedule K of the
Space Lease, plus items of additional rent.
(c) Space Tenant has accepted possession of the premises demised under
the Space Lease and is now in possession of the same.
(d) No right of renewal or right to reduce the premises demised under
the Space Lease has been exercised.
(e) intentionally omitted;
(f) That the Space Lease is in full force and effect and Space Tenant
has not received any notice of default from the Ground Lessee, as
landlord, thereunder that has not been cured.
(f) That Space Tenant has no knowledge of any circumstances giving rise
to any right to any credit or set-off against its obligation
H-4
for present or future rentals under the Space Lease, nor has Space
Tenant received any notices of any prior assignment, hypothecation
or pledge of the rents under the Space Lease.
6. The provisions of this Agreement shall be self-operative and no further
instrument shall be necessary to effect the aforementioned attornment,
recognition and subordination. Nevertheless, in confirmation thereof, Space
Tenant shall execute and deliver an appropriate certificate to confirm such
attornment, recognition or subordination upon request of Ground Lessee or any
other party to whom Space Tenant herein agrees to attorn.
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns.
PARK 25TH ASSOCIATES,
Ground Lessor
By:
-------------------------------------
, a general partner
THE NEW YORK LAW PUBLISHING COMPANY,
Space Tenant
By:
-------------------------------------
X-0
XXXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of _____________, 1993, before me personally came
_______________________, to me known, who, being duly sworn by me, did depose
and say that he resides at _____________________, that he is a general partner
in PARK 25TH ASSOCIATES, a New York limited partnership, the limited partnership
mentioned in, and which executed the foregoing instrument as Ground Lessor; and
that he signed his name thereto as the act and deed of said firm.
-------------------------------------
Notary Public
COUNTY OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of ___________, 1993, before me personally came
________________ to me known, who being by me duly sworn, did say that he
resides at ________________________; that he is _________________ of THE NEW
YORK LAW PUBLISHING COMPANY, the corporation described in and which executed the
foregoing instrument as Space Tenant; and that he signed his name thereto by
order of the board of directors of said corporation.
-------------------------------------
Notary Public
H-6
Exhibit A
DESCRIPTION OF GROUND LEASE
Lease dated July 1, 1964 between PARK 25TH ASSOCIATES, as landlord, and
XXXXX XXXXX, as tenant, which Lease was recorded in the City Register's Office,
New York County, on July 8, 1964 in Liber 5285 of Conveyances, page 338, and
which lease was assigned by XXXXX XXXXX to 345 PARK SOUTH ASSOCIATES by
assignment dated July 1, 1964 and recorded on July 8, 1964 in said City
Register's Office in Liber 5285 of Conveyances, page 334, and which Lease was
further assigned by 000 XXXX XXXXX ASSOCIATES to 000 XXXX XXXXXX XXXXX
PARTNERSHIP by assignment dated June 30, 1982 and recorded on June 30, 1982 in
said City Register's Office in Reel 629, page 244, and which Lease was further
assigned by 000 XXXX XXXXXX XXXXX PARTNERSHIP to Tenant by assignment dated May
20, 1985 and recorded on May 23, 1985 in said City Register's Office in Reel
913, page 1957, as amended by First Amendment of Lease made by and between PARK
25Th ASSOCIATES, as Landlord, and The ARMORY BUILDING LIMITED PARTNERSHIP, as
Tenant, dated as of May, 1989, covering the land, the building and improvements
thereon, located in the City, County and State of New York, commonly known by
the street address 000 Xxxx Xxxxxx Xxxxx, and more particularly described in
Exhibit "B" annexed to this Agreement and made a part hereof.
X-0
Xxxxxxx X to
DESCRIPTION OF LAND
ALL that certain lot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows;
BEGINNING at the corner formed by the intersection of the easterly
side of 4th Avenue with the southerly side of 00xx Xxxxxx;
running thence Easterly along the southerly side of 26th Street, 120
feet;
thence Southerly parallel with 4th Avenue, 98 feet 9 inches to the
center line of the block between 25th and 26th Streets;
thence Westerly along said center line of the block, 30 feet;
thence Southerly and parallel with the easterly side of 4th Avenue,
98 feet 9 inches to the northerly side of 00xx Xxxxxx;
thence Westerly along the northerly side of 25th Street, 90 feet to
the easterly side of 0xx Xxxxxx;
thence Northerly along the easterly side of 4th Avenue, 197 feet 6
inches to the southerly side of 26th Street, at the point or place
of BEGINNING,
(Said 0xx Xxxxxx now being known as Park Avenue South.)
H-8
SCHEDULE I
[FLOOR PLAN]
000 XXXX XXX. SO
BASEMENT
ALL AREAS, CONDITIONS AND
DEMENSIONS ARE APPROXIMATE
SCHEDULE J
SIGNAGE
[GRAPHIC OMITTED]
Both logos
are approxi-
mately 6" to
J-1
Not drawn to scale
SCHEDULE K
------------------------------------------------------------
Yearly Monthly
Year Month Payment Payment
-----------------------------------------------------------
-----------------------------------------------------------
1994 JAN $143,244.88 $0.00
FEB $987.77
MAR $987.77
APR $987.77
MAY $987.77
JUN $987.77
JUL $987.77
AUG $987.77
SEP $987.77
OCT $987.77
NOV $67,177.48
DEC $67,177.48
-----------------------------------------------------------
1995 JAN $880,360.89 $73,363.41
FEB $73,363.41
MAR $73,363.41
APR $73,363.41
MAY $73,363.41
JUN $73,363.41
JUL $73,363.41
AUG $73,363.41
SEP $73,363.41
OCT $73,363.41
NOV $73,363.41
DEC $73,363.41
-----------------------------------------------------------
1996 JAN $908,842.90 $75,736.91
FEB $75,736.91
MAR $75,736.91
APR $75,736.91
MAY $75,736.91
JUN $75,736.91
JUL $75,736.91
AUG $75,736.91
SEP $75,736.91
OCT $75,736.91
NOV $75,736.91
DEC $75,736.91
-----------------------------------------------------------
1997 JAN $928,380.65 $77,365.05
FEB $77,365.05
MAR $77,365.05
APR $77,365.05
MAY $77,365.05
JUN $77,365.05
JUL $77,365.05
AUG $77,365.05
SEP $77,365.05
OCT $77,365.05
NOV $77,365.05
DEC $77,365.05
-----------------------------------------------------------
K-1
1998 JAN $1,051,589.81 $87,632.48
FEB $87,632.48
MAR $87,632.48
APR $87,632.48
MAY $87,632.48
JUN $87,632.48
JUL $87,632.48
AUG $87,632.48
SEP $87,632.48
OCT $87,632.48
NOV $87,632.48
DEC $87,632.48
-----------------------------------------------------------
1999 JAN $1,131,089.81 $94,257.48
FEB $94,257.48
MAR $94,257.48
APR $94,257.48
MAY $94,257.48
JUN $94,257.48
JUL $94,257.48
AUG $94,257.48
SEP $94,257.48
OCT $94,257.48
NOV $94,257.48
DEC $94,257.48
-----------------------------------------------------------
2000 JAN $1,131,089.81 $94,257.48
FEB $94,257.48
MAR $94,257.48
APR $94,257.48
MAY $94,257.48
JUN $94,257.48
JUL $94,257.48
AUG $94,257.48
SEP $94,257.48
OCT $94,257.48
NOV $94,257.48
DEC $94,257.48
-----------------------------------------------------------
2001 JAN $1,131,089.81 $94,257.48
FEB $94,257.48
MAR $94,257.48
APR $94,257.48
MAY $94,257.48
JUN $94,257.48
JUL $94,257.48
AUG $94,257.48
SEP $94,257.48
OCT $94,257.48
NOV $94,257.48
DEC $94,257.48
-----------------------------------------------------------
K-2
2002 JAN $1,131,089.81 $94,257.48
FEB $94,257.48
MAR $94,257.48
APR $94,257.48
MAY $94,257.48
JUN $94,257.48
JUL $94,257.48
AUG $94,257.48
SEP $94,257.48
OCT $94,257.48
NOV $94,257.48
DEC $94,257.48
-----------------------------------------------------------
2003 JAN $1,206,173.14 $100,514.43
FEB $100,514.43
MAR $100,514.43
APR $100,514.43
MAY $100,514.43
JUN $100,514.43
JUL $100,514.43
AUG $100,514.43
SEP $100,514.43
OCT $100,514.43
NOV $100,514.43
DEC $100,514.43
-----------------------------------------------------------
2004 JAN $1,272,000.00 $106,000.00
FEB $106,000.00
MAR $106,000.00
APR $106,000.00
MAY $106,000.00
JUN $106,000.00
JUL $106,000.00
AUG $106,000.00
SEP $106,000.00
OCT $106,000.00
NOV $106,000.00
DEC $106,000.00
-----------------------------------------------------------
2005 JAN $1,272,000.00 $106,000.00
FEB $106,000.00
MAR $106,000.00
APR $106,000.00
MAY $106,000.00
JUN $106,000.00
JUL $106,000.00
AUG $106,000.00
SEP $106,000.00
OCT $106,000.00
NOV $106,000.00
DEC $106,000.00
-----------------------------------------------------------
K-3
2006 JAN $1,272,000.00 $106,000.00
FEB $106,000.00
MAR $106,000.00
APR $106,000.00
MAY $106,000.00
JUN $106,000.00
JUL $106,000.00
AUG $106,000.00
SEP $106,000.00
OCT $106,000.00
NOV $106,000.00
DEC $106,000.00
-----------------------------------------------------------
2007 JAN $1,272,000.00 $106,000.00
FEB $106,000.00
MAR $106,000.00
APR $106,000.00
MAY $106,000.00
JUN $106,000.00
JUL $106,000.00
AUG $106,000.00
SEP $106,000.00
OCT $106,000.00
NOV $106,000.00
DEC $106,000.00
-----------------------------------------------------------
2008 JAN $848,000.00 $106,000.00
FEB $106,000.00
MAR $106,000.00
APR $106,000.00
MAY $106,000.00
JUN $106,000.00
JUL $106,000.00
AUG $106,000.00
-----------------------------------------------------------
K-4
SCHEDULE L
FORM OF MORTGAGEE NON-DISTURBANCE AGREEMENT
AGREEMENT dated the __________ of day of __________, 19 __ between [Name
of Superior Mortgagee], a ___________ having an office, at _____________
(hereinafter called "Mortgagee"), and [Name of Space Tenant] a __________ having
an office at ________________ (hereinafter called "Space Tenant")
W I T N E S S E T H
WHEREAS:
A. Mortgagee has made or is about to make a certain loan secured by a
mortgage described in (Name of instrument] between Mortgagee, or mortgagee, and
[Name of leasehold owner], as mortgagor (hereinafter called "Ground Tenant"), to
be recorded in the Office of the Register of the City of New York (New York
County) (hereinafter called the "Mortgage"), covering the Ground Tenant's
leasehold interest in the land, buildings, improvements and other items of
property described therein, located in the City of New York, County of New York
and State of New York and more particularly described on Exhibit "A" annexed
hereto and made a part hereof (said leasehold interest in the land, buildings,
improvements and such other property being hereinafter referred to as the
"Premises"); and
B. Ground Tenant is the holder of the tenant's interest, in, to and under
that lease (hereinafter called the "Ground Lease") described in Exhibit B
annexed hereto which Ground Lease covers the entire Premises;
C. Ground Tenant, as landlord, and Space Tenant, as tenant, have or are
about to enter into a lease (hereinafter called the "Space Lease") for a portion
of the Premises;
D. A true complete copy of the Space Lease has been delivered to Mortgagee
the receipt of which is hereby acknowledged; and
E. Mortgagee and Space Tenant desire to confirm their understanding with
respect to the Space Lease and the rights of Space Tenant thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, Mortgagee and Space Tenant agree as follows;
1. Mortgagee agrees that provided the Space Lease is in full force
and effect and unless Space Tenant shall then be in default thereunder after
notice and beyond the time permitted therein to cure such default;
(a) Space Tenant shall not be named or joined as a party
defendant in any action, suit or proceeding to foreclosure the Mortgage or to
collect the debt secured thereby which may be instituted or taken by Mortgagee
under or in connection with the Mortgage or any obligation secured thereby
unless Space Tenant is deemed a necessary party by the court, in which event
Space Tenant may be so named or joined by such naming or joinder shall not
otherwise be in derogation of the rights of Space Tenant set forth in this
Agreement; and
(b) Space Tenant shall not be evicted from the premises
demised under the Space Lease, nor shall the leasehold estate or possession of
Space Tenant be terminated or distributed, nor (except to the extent provided in
Paragraph 2 of this Agreement) shall any of the rights of Space Tenant be
affected in any way be reason of any default or event of default under the
Mortgage or by the Mortgagee in the exercise of any of its rights under the
Mortgage, the note secured thereby or otherwise by law provided, and in any case
(except to the extent provided in Paragraph 2 hereof) the rights of Space Tenant
under the Space Lease shall not be diminished, reduced or adversely affected in
any way whatsoever by reason of any default or event of default under, or
foreclosure of, the Mortgage, and Mortgagee will recognize Tenant as the direct
tenant of Mortgagee on the same terms and provisions of the Space Lease except
as modified by Paragraph 2 hereof.
2. If, at any time Mortgagee (or any person, or such persons'
successors or assigns, who acquires the interest of Ground Tenant, as landlord,
under the Space Lease through foreclosure action of the Mortgage) shall succeed
to the rights of Ground Tenant, as landlord, under the Space Lease as a result
of a default or event of default under the Mortgage or otherwise, and if Space
Tenant is not then in default under the Space Lease after notice and beyond the
time permitted therein to cure such default, then (i) the Space Lease shall not
terminate, (ii) Space Tenant shall attorn to and recognize such person so
succeeding to the rights of Ground Tenant, as landlord, under the Space Lease
(herein sometimes called "Successor Landlord") as Space Tenant's landlord under
the Space Lease, upon the then executory terms and conditions of the Space Lease
and as hereinafter provided in this Paragraph 2, and (iii) Successor Landlord
shall accept such attornment and recognize Space Tenant as Successor Landlord's
tenant under the Space Lease upon the then executory terms and conditions of the
Space Lease and as hereinafter provided in this Paragraph 2. Upon such
attornment and recognition the Space Lease shall continue in full force and
effect as, or as if it were, a direct lease between Successor Landlord and Space
Tenant upon all the then executory terms, conditions and covenants as are set
forth in the Space Lease and which shall be applicable after such attornment and
recognition, except that Successor Landlord shall not;
(a) be liable for any act or omission of Ground Tenant, as landlord,
under the Space Lease provided, however, that the foregoing provisions of this
subparagraph 2(a) shall not be deemed to exculpate the Successor Landlord from
the obligation to cure any condition in the Building which continues to give
rise to a default after the date the Successor Landlord acquires its interest;
(b) be obligated to repair, replace, rebuild or restore the premises
demised under the Space Lease, or any part thereof, in the event of total or
substantially total damage or destruction beyond such repair,
L-2
replacement, rebuilding or restoration as can reasonably be accomplished from
the net proceeds of insurance actually received by, or made available to,
Successor Landlord;
(c) be obligated to repair, replace, rebuild or restore the
premises demised under the Space Lease, or any part thereof, in the event of
total or substantially total taking by governmental authority, eminent domain or
condemnation beyond such repair, replacement, rebuilding or restoration as can
reasonably be accomplished from the net proceeds actually received by, or made
available to, Successor Landlord;
(d) be subject to any offset or defense (other than actual
performance) which Space Tenant may have against the previous landlord, as
landlord, under the Space Lease;
(e) be bound by any previous modification of the Space Lease
unless Mortgagee has approved such amendment or modification in advance and by
written instrument or by any previous payment rent or additional rent made other
than the payment of the first month's rent more than thirty (30) days prior to
its due date;
(f) be bound by any previous extension of the Space Lease
(other than extensions or rights of extensions contained in the Space Lease)
unless Mortgagee has approved such amendment or modification in advance and by
written instrument;
(g) be obligated to perform any work in the premises demised
under the Space Lease, or any part thereof, other than such work which is
required to be performed by Ground Tenant, as landlord, under the Space Lease
from and after such attornment provided, however, that Successor Landlord shall
not be bound by an obligation to complete construction of any tenant finish work
or other initial construction or initial improvement of the premises or to pay
for such work performed by Space Tenant.
In addition, in no event shall there be any personal liability under the
Space Lease on the part of Successor Landlord and Successor Landlord's liability
under the Space Lease shall be limited to the extent of the interest of
Successor Landlord in the Premises.
3. Subject to the continuing effectiveness of this Agreement, Space
Tenant confirms that the Space Lease and its rights thereunder now are, and
shall at all times continue to be, subject and subordinate to (a) the lien
security title and security interest of the Mortgage and (b) any additional
financing of the Premises or portions thereof provided by Mortgagee or its
successors or assigns and the liens and security interests of the documents
evidencing and securing such additional financing, and to all the terms,
L-3
conditions and provisions thereof provided, however, that the same shall be
subject to the provisions of this Agreement, to all advances made or to be made
thereunder, and to any renewals, extensions, consolidations, modifications or
replacements thereof, including any increases therein or supplements thereto.
4. All notices shall be in writing and shall be deemed to have been
given when delivered personally or when deposited in the United States mail,
certified or registered, postage prepaid, addressed as follows;
To Mortgagee:
with copies to:
To Space Tenant:
A. Prior to Space Tenant's occupancy of the Premises:
THE NEW YORK LAW PUBLISHING COMPANY
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
B. After Space Tenant has taken occupancy of the Premises:
THE NEW YORK LAW PUBLISHING COMPANY
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxx Xxxxxxxxxxx
5. Space Tenant hereby certifies to Mortgagee*:
(a) The Space Lease has not been modified, altered or amended.
There are not other oral or written agreements between Ground
Tenant, as landlord, and Space Tenant relating to the premises
demised under the Space Lease or the Space Lease.
(b) The base rent currently payable is $_____________________
per month, plus items of additional rent.
______________
* Space Tenant to modify as may be appropriate to reflect the state of facts
in existence as of the date of this Agreement.
L-4
(c) Space Tenant has accepted possession of the premises
demised under the Space Lease and is now in possession of the same.
(d) No right of renewal or right to reduce the premises
demised under the Space Lease has been exercised.
(e) That all work to be performed by Ground Tenant, as
landlord under the Space Lease has been completed in accordance with
the terms of the Space Lease to the full satisfaction of Space
Tenant.
(f) That the Space Lease is in full force and effect and Space
Tenant has not received any notice of default from the Ground
Tenant, as landlord, thereunder that has not been cured.
(g) That Space Tenant has no knowledge of any circumstances
giving rise to any right to any credit or set-off against its
obligation for present or future rentals under the Space Lease, nor
has Space Tenant received any notices of any prior assignment,
hypothecation or pledge of the rents under the Space Lease.
6. The provisions of this Agreement shall be self-operative and no
further instrument shall be necessary to effect the aforementioned attornment,
recognition and subordination. Nevertheless, in confirmation thereof, Space
Tenant shall execute and deliver an appropriate certificate to confirm such
attornment, recognition or subordination upon request of Ground Tenant or any
other party to whom Space Tenant herein agrees to attorn.
7. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their successors and assigns.
[SIGNATURE LINES AND ACKNOWLEDGMENTS]
L-5
Exhibit A to Schedule P
DESCRIPTION OF LAND
All that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the easterly
side of 4th Avenue with the southerly side of 00xx Xxxxxx;
running thence easterly along the southerly side of 26th Street, 120
feet;
thence Southerly parallel with 4th Avenue, 98 feet 9 inches to the
center line of the block between 25th and 26th Streets;
thence Westerly along said center line of the block, 30 feet;
thence Southerly and parallel with the easterly side of 4th Avenue,
98 feet 9 inches to the northerly side of 00xx Xxxxxx;
thence Westerly along the northerly side of 25th Street, 90 feet to
the easterly side of 0xx Xxxxxx;
thence Northerly along the easterly side of 4th Avenue, 197 feet 6
inches to the southerly side of 26th Street, at the point or place
of BEGINNING.
(Said 0xx Xxxxxx now being known as Park Avenue South.)
L-6
SCHEDULE M
UNABATED FIXED RENT
YEAR MONTHLY AMOUNT
---- --------------
February 1994 through Calendar 1994 .............. $ 987.77 per month
Calendar 1995 ........................... $3,007.05 per month
Calendar 1996 ........................... $5,380.55 per month
Calendar 1997 ........................... $7,008.70 per month
Calendar 1998 through Calendar 2003 ..... $7,028.32 per month
EXHIBIT N
CORESTATES
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A.
CREDIT NO. ISSUE DATE EXPIRY DATE LETTER OF CREDIT AMOUNT
72P 24-SEP-1993 1-NOV-94 USD510,417.00
0 0 0 0
BENEFICIARY APPLICANT
PARK AVENUE SOUTH/ARMORY, INC. THE NEW YORK LAW PUBLISHING COMPANY
C/O MONTROSE REALTY CORPORATION 000 0XX XXXXXX
000 XXXXXXX XXXXXX XXX XXXX, XX 00000
XXX XXXX, XX 00000
0 0 0 0
--------------------------------------------------------------------------------
[ILLEGIBLE] BENEFICIARY:
HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR, AS
BENEFICIARY, [ILLEGIBLE] IS AVAILABLE BY THE FOLLOWING DOCUMENTS:
THE BENEFICIARY'S DRAFT(S) DRAWN ON US AT SIGHT, DULY ENDORSED ON THE REVERSE
SIDE THEREOF, AND BEARING THE CLAUSE: "DRAWN UNDER PHILADELPHIA NATIONAL BANK,
INCORPORATED AS CORESTATES BANK, N.A. STANDBY LETTER OF CREDIT NUMBER 512872P."
A TYPEWRITTEN STATEMENT ON THE LETTERHEAD OF AND PURPORTEDLY SIGNED BY AN
AUTHORIZED OFFICER OF PARK AVENUE SOUTH/ARMORY, INC. STATING THEREIN: "WE HEREBY
CERTIFY THAT THE NEW YORK LAW PUBLISHING COMPANY IS IN DEFAULT AFTER NOTICE AND
EXPIRATION OF APPLICABLE GRACE PERIOD UNDER THE TERMS OF THAT CERTAIN LEASE BY
AND BETWEEN PARK AVENUE SOUTH/ARMORY, INC. AS LANDLORD AND THE NEW YORK LAW
PUBLISHING COMPANY AS TENANT WITH RESPECT TO THE PREMISES LOCATED AT 000 XXXX
XXXXXX XXXXX, AND WE ARE ENTITLED TO DRAW UPON THIS LETTER OF CREDIT BY REASON
OF SUCH DEFAULT. THEREFORE WE DEMAND PAYMENT OF USD (SUPPLY AMOUNT) UNDER
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A. STANDBY LETTER
OF CREDIT NUMBER 512872P."
THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL, AMENDMENTS, IF ANY, FOR OUR
ENDORSEMENT. (IF YOUR DEMAND REPRESENTS A PARTIAL DRAWING, WE WILL ENDORSE THE
ORIGINAL CREDIT AND RETURN SAME TO YOU FOR POSSIBLE FUTURE CLAIMS. IF, HOWEVER,
YOUR DEMAND REPRESENTS A FULL DRAWING OR IF SUCH DRAWING IS PRESENTED ON THE DAY
OF THE RELEVANT EXPIRATION DATE HEREOF, WE WILL HOLD THE ORIGINAL FOR OUR FILES
AND REMOVE SAME FROM CIRCULATION.)
SPECIAL CONDITIONS: IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT WILL BE
DEEMED TO BE AUTOMATICALLY EXTENDED, WITHOUT AMENDMENT, FOR ADDITIONAL PERIODS
OF ONE (1) YEAR FROM THE PRESENT OR ANY FUTURE EXPIRY DATE HEREOF, UNLESS AT
LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE NOTIFY YOU IN
WRITING, AT YOUR ADDRESS STATED ABOVE, VIA CERTIFIED OR OTHER EXPRESS MAIL OF
OUR INTENTION NOT TO SO EXTEND THIS LETTER OF CREDIT FOR ANY ADDITIONAL PERIODS.
SUCH NOTICE WILL BE DEEMED TO HAVE BEEN GIVEN WHEN SENT.
THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OUR UNDERTAKING AND SUCH
UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE
TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN 0R WHICH THIS LETTER OF CREDIT
IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT RELATES AND ANY SUCH REFERENCE
SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR
INSTRUMENT.
SEE CONTINUATION
--------------------------------------------------------------------------------
ORIGINAL
CORESTATES
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A.
OUR CREDIT NO. ISSUE DATE
512B72P 28-SEP-1993
REF
0 0 0 0
BENEFICIARY APPLICANT
PARK AVENUE SOUTH/ARMORY, INC. THE NEW YORK LAW PUBLISHING
C/O BANKERS TRUST COMPANY COMPANY
000 XXXX XXXXXX - 23 WEST 000 0XX XXXXXX
XXX XXXX, XX 00000-0000 XXX XXXX, XX 00000
ATTN: XXXX XXXXXXX, MANAGING
0 DIRECTOR 0 0 0
-------------------------------------------------------------------------------
DEAR BENEFICIARY:
WE HEREBY AMEND OUR IRREVOCABLE STANDBY LETTER OF CREDIT AS FOLLOWS:
1) THE BENEFICIARY HEREOF MUST SHOW THEIR APPROVAL OF THIS AMENDMENT BY
SIGNING THE ATTACHED COPY OF SAME AND RETURNING SUCH SIGNED COPY TO THE
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK. N.A., X.X.
XXX 00000, 000 XXXXXX XXXXXX, XXXXXXX FLOOR, FIND CODE 1-9-7-1, ATTENTION:
LETTER OF CREDIT DEPARTMENT, PHILADELPHIA, P.A. 19106.
2) THE BENEFICIARY'S ADDRESS IS AMENDED TO READ AS INDICATED ABOVE.
3) REQUIRED DOCUMENT NUMBER TWO (2) IS DELETED IN ITS ENTIRETY AND REPLACED
WITH THE FOLLOWING:
QUOTE
A DATED TYPEWRITTEN STATEMENT ON THE LETTERHEAD OF AND PURPORTEDLY SIGNED
BY AN AUTHORIZED OFFICER OF PARK AVENUE SOUTH/ARMORY, INC. STATING HEREIN
EITHER:
(A) "WE HEREBY CERTIFY THAT THE TENANT IS IN DEFAULT AFTER NOTICE AND
EXPIRATION OF APPLICABLE GRACE PERIOD UNDER THE TERMS OF THAT
CERTAIN LEASE BY AND BETWEEN PARK AVENUE SOUTH/ARMORY, INC. AS
LANDLORD AND THE NEW YORK LAW PUBLISHING COMPANY AS TENANT WITH
RESPECT TO THE PREMISED LOCATED AT 000 XXXX XXXXXX XXXXX, AND WE ARE
ENTITLED TO DRAW UPON THIS LETTER OF CREDIT BY REASON OF SUCH
DEFAULT;
OR
(B) "WE HEREBY DRAW THE FULL AMOUNT OF THIS LETTER OF CREDIT BECAUSE
THIS LETTER OF CREDIT WILL EXPIRE WITHIN FORTY-FIVE (45) DAYS OF THE
DATE OF THIS STATEMENT:
(CHOOSE EITHER (A) OR (B) AS APPLICABLE)
WE DEMAND PAYMENT OF THE FULL AMOUNT UNDER PHILADELPHIA NATIONAL
BANK, INCORPORATED AS CORESTATES BANK, N.A. STANDBY LETTER OF CREDIT
NUMBER 512872P."
UNQUOTE
4) REQUIRED DOCUMENT NUMBER THREE (3) IS DELETED IN ITS ENTIRETY AND REPLACED
WITH THE FOLLOWING:
QUOTE
THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENTS, IF ANY, FOR
OUR ENDORSEMENT.
UNQUOTE
CONTINUED
--------------------------------------------------------------------------------
COPY
CORESTATES
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A.
--------------------------------------------------------------------------------
ATTACHED TO AND FORMING PART OF AMENDMENT TO STANDBY CREDIT NO. 512872P
DATED 28-SEP-1993.
PAGE TWO
5) SPECIAL CONDITION "A" IS DELETED IN ITS ENTIRETY AND REPLACED WITH THE
FOLLOWING:
QUOTE
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IF WILL BE DEEMED TO BE
AUTOMATICALLY EXTENDED, WITHOUT AMENDMENT, FOR ADDITIONAL PERIODS OF ONE
(1) YEAR FROM THE PRESENT OR ANY FUTURE EXPIRY DATE HEREOF, UNLESS AT
LEAST SIXTY (60) DAYS PRIOR TO THE CURRENT EXPIRATION DATE WE NOTIFY YOU
IN WRITING, AT YOUR ADDRESS STATED ABOVE, VIA CERTIFIED OR OTHER EXPRESS
MAIL OF OUR INTENTION NOT TO SO EXTEND THIS LETTER OF CREDIT FOR ANY
ADDITIONAL PERIODS. SUCH NOTICE WILL BE DEEMED TO HAVE BEEN GIVEN WHEN
SENT. UPON RECEIPT BY YOU OF SUCH NOTICE, MAY DRAW HEREUNDER IN ACCORDANCE
WITH THE TERMS CONTAINED HEREIN.
UNQUOTE.
NOTE: DUE TO OUR RECENT CHANGE OF ADDRESS PLEASE NOTE THAT ANY AND ALL
CORRESPONDENCE RELATED TO THIS LETTER OF CREDIT SHOULD NOW BE SENT TO
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A.. X.X. XXX
00000, 530 WALNUT STREET, SEVENTH FLOOR, ATTENTION LETTER OF CREDIT DEPARTMENT,
FIND CODE 0-0-0-0, XXXXXXXXXXXX, XX, 00000.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED HEREIN THIS AMENDMENT TO THE ABOVE
LETTER OF CREDIT IS SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS: (1983 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION
NO. 400".
ALL INQUIRIES REGARDING THIS CREDIT SHOULD BE DIRECTED TO US AT OUR PHONE
NUMBERS (000) 000-0000; (000) 000-0000;(000) 000-0000; (000) 000-0000.
-------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
COPY
CORESTATES
PHILADELPHIA NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A.
--------------------------------------------------------------------------------
ATTACHED TO AND FORMING PART OF TO STANDBY CREDIT NO.
512872P DATE 24-SEP-1993.
PAGE TWO
ENGAGE WITH YOU THAT ALL DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF
THIS LETTER OF CREDIT WILL BE DULY HONORED BY US IF DELIVERED TO PHILADELPHIA
NATIONAL BANK, INCORPORATED AS CORESTATES BANK, N.A., P.O. BOX 13866, 000 XXXXXX
XXXXXX, XXXXXXX FLOOR, FIND CODE 1-9-7-1, ATTENTION: LETTER OF CREDIT
DEPARTMENT, PHILADELPHIA, PA. 19106 PRIOR TO 3 P.M. ON OR BEFORE THE EXPIRATION
DATE HEREOF.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED HEREIN THIS LETTER OF CREDIT IS
SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS: (1983
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO 400".
ALL INQUIRIES REGARDING THIS CREDIT SHOULD BE DIRECTED TO US AT OUR PHONE
NUMBERS (000) 000-0000; (000) 000-0000;(000) 000-0000; (000) 000-0000.
/s/ [ILLEGIBLE]
------------------------------
AUTHORIZED SIGNATURE
--------------------------------------------------------------------------------
ORIGINAL
SCHEDULE O
[FLOOR PLAN]
EVAPCO
COOLING
TOWER
SCHEDULE O (CONTINUED)
[FLOOR PLAN]
EVAPCO
COOLING
TOWER
