Execution Copy
ASSIGNMENT AND AMENDMENT OF LEASE, CONSENT TO ASSIGNMENT
AND RELEASE AND WAIVER OF CLAIMS
THIS ASSIGNMENT AND AMENDMENT OF LEASE, CONSENT TO ASSIGNMENT, AND RELEASE
AND WAIVER OF CLAIMS AGREEMENT (this "Agreement") is made as of the 14th day of
February, 2003, by and among WU/Lighthouse 100 Xxxxxxx, L.L.C., a Delaware
limited liability company ("Landlord"), WilTel Communications, LLC, a Delaware
limited liability company ("Assignor"), and Video Network Communications, Inc.,
a Delaware corporation ("Assignee"). Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Lease (as defined
below).
RECITALS:
WHEREAS, 100 Xxxxxxx LLC, Landlord's predecessor-in-interest, and
NextVenue, Inc., Assignor's predecessor-in-interest, entered into that certain
Agreement of Lease, dated as of July 7, 1999 (the "Lease"), a copy of which is
attached hereto as Exhibit A and made a part hereof, which Lease covers the
entire eighth (8th) floor and a portion of the ninth (9th) floor of the building
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX (the "Premises");
WHEREAS, Assignor desires to assign to Assignee, the Lease and all of
Assignor's rights and obligations thereunder and all of Assignor's right, title
and interest in and to the Premises, and Assignee desires to accept such
assignment by Assignor and to be bound by the terms of the Lease, as amended
hereby, following such assignment;
WHEREAS, Assignee and Landlord desire to amend the Lease as set forth
herein; and
WHEREAS, Landlord and Assignor desire to release and waive all claims they
may have against each other in connection with the Lease or performance
thereunder and the use and occupancy of the Premises.
NOW THEREFORE, in consideration of the mutual promises and covenants herein
exchanged and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Landlord, Assignor and Assignee hereby agree as
follows:
1. Assignment. As of the Effective Date (as hereinafter defined), Assignor
hereby conveys, assigns and transfers to Assignee all of its right, title,
obligations, liabilities, duties and interest in and to the Lease and the
Premises and Assignee accepts the assignment and assumes all of Assignor's
right, title, obligations, liabilities, duties and interest in and to the
Lease and the Premises and agrees to perform and be bound by all the duties
and obligations of Assignor under the Lease and to pay and discharge all
obligations of Assignor under the Lease. The Landlord hereby consents to
such assignment and assumption and shall, upon and following the Effective
Date, treat
Assignee as the Tenant under the Lease as if Assignee had been the original
signator as Tenant on the Lease. Landlord's consent shall not in any way be
construed to relieve Assignee from obtaining the express written consent of
Landlord to any further assignment of the Lease, except to the extent
expressly provided in the Lease.
2. Amendment. Each of Landlord and Assignee hereby agrees that, as of the
Effective Date, the Lease shall be amended as follows:
i. Article 1(B)(iii) thereof shall be deleted in its entirety and the
following shall be inserted in place thereof:
"(iii) "Rent" shall mean:
(a) for the period commencing on the Effective Date through and
including the day immediately preceding the date on which the fourth
(4th) anniversary of the Effective Date shall occur, $930,540.00 per
annum, payable in equal monthly installments of $77,545.00; and
(b) for the period commencing on the date on which the fourth
(4th) anniversary of the Effective Date shall occur through and
including the Expiration Date, $992,576.00 per annum, payable in equal
monthly installments of $82,714.67."
ii. Article 1(B) thereof shall be amended to add the following definition
to the end thereof:
"(xi) "Effective Date" shall have the meaning given to such term in
that certain Assignment and Amendment of Lease, Consent to Assignment
and Release and Waiver of Claims Agreement, dated as of February 14,
2003, by and among Landlord, WilTel Communications, LLC and Video
Network Communications, Inc."
iii. Article 36, Article 43 and Schedule B-1 thereof shall be deemed
deleted therefrom and of no further force or effect. In addition, all
references in the Lease to "Landlord's Core Work" or any requirement
that Landlord perform Landlord's Core Work shall be deemed deleted
therefrom.
3. Liability. Assignor hereby agrees to remain liable for all of its
obligations arising under, or in connection with, the Lease, the Premises
or Assignor's use and occupancy of the Premises arising out of events,
circumstances or conditions occurring or existing on or prior to the
Effective Date, regardless of whether any such liabilities arise before, on
or after the Effective Date. Assignee hereby agrees to be liable for all of
its obligations arising under, or in connection with, the Lease, the
Premises or Assignee's use and occupancy of the Premises arising out of
events, circumstances or conditions occurring or existing after the
Effective Date.
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4. Waiver and Release. As of the Effective Date, Landlord and Assignor hereby
forever release and discharge the other, and their respective employees,
agents, officers, directors and other representatives, from any and all
undertakings, obligations, duties, actions, causes of action, claims,
demands, expenses, indemnity, recoupment, offset or setoff whatsoever,
which arise after the Effective Date and which is set forth in, based upon,
or relates directly or indirectly to, the (i) Lease (including, among
others, those obligations under Articles 12G, 12J, and 12M regarding the
payment of money to Landlord or any failure of Assignee to perform in
accordance with the Lease or the terms of this Agreement), except as
expressly provided in this Agreement, (ii) Premises or (iii) Assignor's use
and occupancy of the Premises, whether such duties or claims are known,
unknown or unforeseen, absolute or contingent, accrued or unaccrued, and
whether at law or in equity, whether in contract, negligence, tort,
statutory or any other theory of liability and Landlord and Assignor hereby
forever waive any and all such claims and defenses related to the (i)
Lease, (ii) Premises or (iii) Assignor's use and occupancy of the Premises,
both direct and collateral, against the other. In addition, the Landlord
expressly waives its rights under Article 12C of the Lease with respect to
the assignment covered by this Agreement.
5. Effective Date. The Effective Date shall be the date of the closing of the
sale of Assignor's webcasting business to Assignee pursuant to that certain
Asset Purchase Agreement by and among Assignee, Assignor and Xxxxxxxx
Communications Procurement, LP.
6. Return of Letter of Credit and Transfer of Deposit. (A) Assignee shall
cause a Letter of Credit (the "Assignee's LC") in the amount of $844,101.00
to be issued for the benefit of Landlord by a New York City bank acceptable
to Landlord and otherwise in form and substance substantially similar to
the Letter of Credit, dated January 4, 2002, issued by XX Xxxxxx Xxxxx
(numbered P-219902) for the benefit of Landlord (the "Existing LC").
Assignee may, on the third (3rd) anniversary of the Effective Date and on
each succeeding anniversary, cause the Assignee's LC to be reduced by an
amount equal to $70,341.75, provided that Assignee is not then in default
under any of the terms, covenants or conditions of the Lease on Assignee's
part to be observed and performed. In the event that at any time Assignee
shall be entitled to reduce such Assignee's LC as provided in the foregoing
provisions of this Paragraph, the security shall be held as cash security
then, in lieu of Assignee replacing any such Assignee's LC, Landlord shall
return sums to Assignee equal to the amount by which Assignee's LC would
have been reduced if it were in existence; provided, however, in no event
shall the Assignee's LC or cash security ever be reduced below the sum of
$140,683.50. The sum of $844,101.00 referred to in the first sentence of
this Paragraph shall be deemed reduced as the foregoing provisions shall
operate to so reduce Assignee's LC and/or cash security, as the case may
be.
(B) In addition to Assignee's LC, Assignee shall deliver to Landlord, on or
prior to the Effective Date, a guaranty from Moneyline Telerate, the
indirect owner of a
3
majority of the issued and outstanding stock of Assignee, in form and
substance substantially similar to the form attached hereto as Exhibit B
and made a part hereof.
(C) Promptly following the date on which Assignee complies with the
requirements of Subsections A and B above, Landlord shall return to
Assignor the Existing LC. The parties agree that any deposit currently
being held by Landlord other than the Existing LC shall be transferred for
the benefit and use by and in favor of Assignee.
7. Fire Maintenance Agreement. As soon as practicable after the date hereof,
Assignee shall enter into a maintenance contract with Firecom Case Acme, a
fire safety contractor, relating to the maintenance of the sprinkler system
installed within the Premises.
8. Non-Disturbance Agreement. Notwithstanding any provisions of Article 7A of
the Lease to the contrary, Landlord agrees to use its reasonable efforts to
cause the then lessor under any Superior Lease or the then holder of any
Mortgage, as the case may be, to enter into a subordination,
non-disturbance and attornment agreement, in such lessor's or holder's
customary form (any such agreement, or any agreement of similar import is
referred to in this Agreement as a "Non-Disturbance Agreement"), as
promptly as practicable after the Effective Date. Assignee agrees to
cooperate reasonably with Landlord in Landlord's obtaining any
Non-Disturbance Agreement and Assignee shall provide Landlord and any such
lessor or holder, as the case may be, with any information reasonably
required by them in connection with obtaining any such Non-Disturbance
Agreement. If Landlord is unable in good faith to obtain such
Non-Disturbance Agreement from any such lessor or holder, neither the
validity of the Lease (as amended by this Agreement) nor the obligations of
Assignee under the Lease or this Agreement shall be affected thereby and
Landlord shall not be liable to Assignee for any such lessor's or holder's
refusal to deliver such Non-Disturbance Agreement.
9. No Broker. Assignor and Assignee hereby represent to Landlord that there
are no brokers involved in this transaction and that there are no third
parties entitled to claim any commissions or similar compensation in
connection with this Agreement.
10. Landlord Consent. Assignor and Assignee hereby acknowledge and agree that
the obligations arising under this Agreement are conditioned upon obtaining
the consent of Landlord and Landlord's execution of this Agreement.
Landlord hereby acknowledges and agrees that, upon execution and delivery
of this Agreement by Assignor, Assignee and Landlord and on the occurrence
of the Effective Date, no further action shall be required to effectuate
the transfer and assignment of Assignor's right, title, duties and interest
in and to the Lease and the Premises to Assignee. Landlord further
acknowledges and agrees that all provisions and requirements in Article 12
of the Lease are hereby satisfied and waives its rights under and in
respect of Articles 12C and 12D of the Lease with respect to the assignment
of the Lease to Assignee hereunder.
4
11. Attorneys' Fees. Pursuant to Subsection (ix) of Article 12G of the Lease,
each of Assignor and Assignee agree to pay to Landlord, within five (5)
days after receipt of a xxxx therefor, as additional rent, one-half of
Landlord's reasonable costs incurred in connection with this Agreement,
including, without limitation, Landlord's reasonable counsel fees incurred
in connection with the preparation and execution of this Agreement; it
being understood that Assignor's and Assignee's payments, in the aggregate,
shall reimburse Landlord for one hundred percent (100%) of Landlord's
reasonable counsel fees.
12. No Assignment Profits: Assignor and Assignee acknowledge that Subsection
(i) of Article 12J of the Lease provides that Assignor shall pay to
Landlord a sum (the "Assignment Profit") equal to one hundred percent
(100%) of all sums and other consideration paid to Assignor by Assignee for
or by reason of such assignment (less all expenses reasonably and actually
incurred by Assignor in connection with the assignment as further described
in Article 12J of the Lease). Each of Assignor and Assignee hereby
represent and warrant to Landlord that there is no Assignment Profit
arising from or paid in connection with the execution and delivery of this
Agreement. Each of Assignor and Assignee agree to provide to Landlord,
promptly upon request, any information or other documentation reasonably
required by Landlord to verify the accuracy of the foregoing representation
and warranty.
13. Entire Agreement. This Agreement represents the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
understandings, oral or written.
14. Counterparts. This Agreement may be entered into by the exchange of
counterparts (including facsimiled counterparts). If exchange is effected
by a party by the use of a facsimiled counterpart, then that party must
provide the original signed counterpart to the other party within seven
days of exchange.
15. Governing Law. This Agreement shall be construed and governed by the laws
of the State of New York, excluding its choice of law provisions.
16. Notices. All notices, requests, demands, claims and other communications
required or permitted to be given hereunder or under the Lease shall be in
writing and shall be sent by: (a) personal delivery or by a nationally
recognized overnight courier service (effective upon delivery); (b)
facsimile (effective on the next day after transmission); or (c) registered
or certified mail, return receipt requested and postage prepaid (effective
upon delivery), in each case addressed to the intended recipient as set
forth below:
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If to Assignee:
Video Network Communications, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
If to Assignor:
WilTel Communications, LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, General Counsel
Facsimile: (000) 000-0000
If to Landlord:
c/o Lighthouse Real Estate Management, LLC
000 Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Mr. Xxxx Xxxxxx
Facsimile: (000) 000-0000
with copies to
Xxxxxxxx & Fleece
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Either party may change its addresses for receiving notices by giving written
notice of such change to the other party in accordance with this Section 16.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement on the day and year first above
written.
WU/LIGHTHOUSE 100 XXXXXXX L.L.C.,
a Delaware limited liability company
By: LIGHTHOUSE 100 XXXXXXX LLC,
a Delaware limited liability company,
its managing member
By: 100 XXXXXXX F/L PROPERTIES L.L.C.,
a Delaware limited liability company,
its managing member
By: LIGHTHOUSE 100 WILLIAM OPERATING LLC,
a New York limited liability company, its manager
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Member
WILTEL COMMUNICATIONS, LLC
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Vice President and Controller
VIDEO NETWORK COMMUNICATIONS, INC.
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Director and Attorney-in-Fact
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EXHIBIT A
LEASE
AGREEMENT OF LEASE
Between
100 XXXXXXX LLC
Landlord,
and
NEXTVENUE, INC.
Tenant.
Premises:
The entire Eighth (8th) Floor
and a portion of the Ninth (9th) Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
TABLE OF CONTENTS
Page No.
--------
1. BASIC LEASE TERMS........................................................1
A. Premises............................................................1
B. Definitions.........................................................1
2. USE AND OCCUPANCY........................................................3
A. Permitted Uses......................................................3
B. Use Prohibitions....................................................3
3. ALTERATIONS..............................................................3
A. Alterations Within Premises.........................................3
B. Intentionally Omitted...............................................4
C. Submission of Plans.................................................4
D. Mechanics' Liens; Labor Conflicts..................................5
4. REPAIRS - FLOOR LOAD.....................................................5
5. WINDOW CLEANING..........................................................6
6. REQUIREMENTS OF LAW......................................................6
7. SUBORDINATION............................................................7
A. Subordination.......................................................7
B. Attornment..........................................................7
8. RULES AND REGULATIONS....................................................7
9. INSURANCE................................................................8
A. Tenant's Insurance..................................................8
B. Tenant's Improvement Insurance......................................9
C. Waiver of Subrogation...............................................9
10. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE....................9
A. Repair of Damage....................................................9
B. Termination Option.................................................10
C. Repair Delays......................................................10
D. Provision Controlling..............................................11
E. Property Loss or Damage............................................11
11. CONDEMNATION............................................................12
A. Condemnation.......................................................12
B. Award..............................................................12
12. ASSIGNMENT AND SUBLETTING...............................................12
A. Prohibition Without Consent........................................12
B. Notice of Proposed Transfer........................................13
C. Landlord's Option..................................................13
D. Termination by Landlord............................................13
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E. Intentionally Omitted..............................................13
F. Effect of Termination..............................................13
G. Conditions for Landlord's Approval.................................14
H. Future Requests....................................................15
I. Sublease Provisions................................................16
J. Profits from Assignment or Subletting..............................16
K. Other Transfers....................................................17
L. Related Corporation................................................17
M. Assumption by Assignee.............................................17
N. Liability of Tenant................................................18
O. Listings...........................................................18
P. Intentionally Reserved.............................................18
Q. Re-entry by Landlord...............................................18
13. CONDITION OF THE PREMISES...............................................19
A. Acceptance by Tenant...............................................19
B. Tenant's Initial Alteration........................................19
14. ACCESS TO PREMISES......................................................19
15. CERTIFICATE OF OCCUPANCY................................................20
16. LANDLORD'S LIABILITY....................................................20
17. DEFAULT.................................................................20
A. Events of Default; Conditions of Limitation........................20
B. Effect of Bankruptcy...............................................21
C. Conditional Limitation.............................................22
18. REMEDIES AND DAMAGES....................................................22
A. Landlord's Remedies................................................22
B. Damages............................................................23
C. Legal Fees.........................................................24
19. FEES AND EXPENSES.......................................................25
A. Curing Tenant's Defaults...........................................25
B. Late Charges.......................................................25
20. NO REPRESENTATIONS BY LANDLORD..........................................25
21. END OF TERM.............................................................25
A. Surrender of Premises..............................................25
B. Holdover by Tenant.................................................26
22. QUIET ENJOYMENT.........................................................26
23. FAILURE TO GIVE POSSESSION..............................................26
24. NO WAIVER...............................................................26
25. WAIVER OF TRIAL BY JURY.................................................27
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26. INABILITY TO PERFORM....................................................27
27. BILLS AND NOTICES.......................................................28
28. ESCALATION..............................................................28
A. Defined Terms......................................................28
B. Escalation.........................................................30
C. Payment of Escalations.............................................31
D. Adjustments........................................................32
29. SERVICES................................................................33
A. Elevator...........................................................33
B. Heating............................................................33
C. Cooling............................................................33
D. After Hours and Additional Services................................34
E. Cleaning...........................................................35
F. Sprinkler System...................................................35
G. Water..............................................................35
H. Electricity Service................................................36
I. Interruption of Services...........................................37
30. PARTNERSHIP TENANT......................................................38
A. Partnership Tenants................................................38
B. Limited Liability Entity...........................................38
31. VAULT SPACE.............................................................39
32. SECURITY DEPOSIT........................................................39
33. CAPTIONS................................................................40
34. ADDITIONAL DEFINITIONS..................................................40
35. PARTIES BOUND...........................................................40
36. BROKER..................................................................40
37. INDEMNITY...............................................................40
38. ADJACENT EXCAVATION SHORING.............................................41
39. MISCELLANEOUS...........................................................41
A. No Offer...........................................................41
B. Signatories........................................................41
C. Certificates.......................................................41
D. Directory Listings.................................................42
E. Authority..........................................................42
F. Signage............................................................42
G. Consents and Approvals.............................................42
H. Intentionally Omitted..............................................43
I. Renewal Option.....................................................43
iii
J. Downtown Benefits..................................................44
40. RIGHT OF FIRST OFFER....................................................44
41. SATELLITE DISHES........................................................47
A. Satellite Rent.....................................................47
B. Roof Access........................................................48
C. Tenant's Obligations...............................................48
42. TENANT'S GENERATOR......................................................50
43. DOWNTOWN BENEFITS.......................................................51
EXHIBITS
Exhibit 1 Floor Plan of Premises
Exhibit 2 Intentionally Deleted
Exhibit 3 Current Cleaning Specifications
Exhibit 4 Form of Letter of Credit
SCHEDULES
Schedule A Rules and Regulations
Schedule X-x Landlord's Core Work
Schedule B-2 Tenant's Initial Alteration
Schedule C Requirements for Certificates of Final Approval
Schedule D Tenant Alteration Work and New Construction Conditions and
Requirement
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AGREEMENT OF LEASE, made as of this 7th day of July 1999, between 100
XXXXXXX LLC, a Delaware limited liability company, having an office c/o Taconic
Investment Partners, L.L.C., 0000 Xxxxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000
("Landlord") and NEXTVENUE, INC., a Delaware corporation, having an office at
2200 Xxxxxxxx Avenue, Fifth Floor, Fort Xxx, New Jersey 07024 ("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. BASIC LEASE TERMS.
A. Premises. Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the entire eighth (8th) floor and a portion of the ninth (9th)
floor, as more particularly shown hatched on Exhibit 1 annexed hereto and made a
part hereof (the "Premises") in the building known as 000 Xxxxxxx Xxxxxx, in the
Borough of Manhattan, New York County, City and State of New York (the
"Building" and, together with the plot of land upon which such building stands,
the "Real Property") for a term (the "Term") to commence on the "Commencement
Date" (hereinafter defined), and to end on the "Expiration Date" (hereinafter
defined), both dates inclusive, unless the Term shall sooner end pursuant to any
of the terms, covenants or conditions of this Lease or pursuant to law at the
"Rent" (hereinafter defined, which Rent shall also include any additional rent
payable hereunder), which Tenant agrees to pay in lawful money of the United
States which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments, in advance,
commencing on the Rent Commencement Date and on the first (1st) day of each
calendar month thereafter during the Term (except as hereinafter otherwise
provided), at the office of Landlord or such other place as Landlord may
designate, without any set-off, offset, abatement or deduction whatsoever,
except that the first (1st) monthly installment of Rent shall be payable on the
date hereof. If the Rent Commencement Date (as hereinafter defined) shall occur
on a date other than the first (1st) day of any calendar month, Tenant shall pay
to Landlord, on the first (1st) day of the month next succeeding the month
during which the Rent Commencement Date shall occur, an amount equal to such
proportion of an equal monthly installment of Rent as the number of days from
and including the Rent Commencement Date bears to the total number of days in
said calendar month. Such payment, together with the sum paid by Tenant upon the
execution of this Lease, shall constitute payment of the Rent for the period
from the Rent Commencement Date to and including the last day of the next
succeeding calendar month.
B. Definitions. The following definitions contained in this subsection
B of this Article 1 shall have the meanings hereinafter set forth used
throughout this Lease, including, without limitation, the Exhibits, Schedules
and Riders attached hereto (if any).
(i) "Commencement Date" shall mean the date hereof.
(ii) "Expiration Date" shall mean the date which is the ten (10)
year anniversary of the Rent Commencement Date.
(iii) "Rent" shall mean:
(a) for the period commencing on the Rent Commencement Date
through and including the day immediately preceding the date on which
the fifth (5th) anniversary of the Rent Commencement Date shall occur,
$844,101.00 Dollars per annum, payable in equal monthly installments
of $70,341.75 Dollars each; and
(b) for the period commencing on the date on which the fifth
(5th) anniversary of the Rent Commencement Date shall occur through
and including the Expiration Date, $906,627.00 per annum, payable in
equal monthly installments of $75,552.25 each.
(iv) "Tenant's Initial Alteration" shall mean the work and
installations at the Premises as set forth in Schedule B-1. All of the
terms, covenants and conditions of Schedule B are incorporated in this
Lease by reference and shall be deemed a part of this Lease as though more
fully set forth in the body of this Lease.
(v) "Rent Commencement Date" shall mean the eight (8) month
anniversary of the Commencement Date; provided, however, that (1) if
Landlord shall not have substantially completed Landlord's Core Work on or
prior to the Landlord's Core Work Anticipated Completion Date (as defined
in Schedule X-x) by reasons other than force majeure and (ii) the
substantial completion of Landlord's Core Work after the Landlord's Core
Work Anticipated Completion Date unreasonably interferes with the
commencement and/or substantial completion by or on behalf of Tenant of
Tenant's Initial Alteration so as to actually have caused a material delay
in the completion thereof, Tenant's Rent Commencement Date shall be
extended one (1) day for each day that the commencement and substantial
completion of Tenant's Initial Alteration was actually materially delayed
by Landlord's failure to substantially complete Landlord's Core Work on or
prior to the Landlord's Core Work Anticipated Completion Date by means
other than force majeure.
(vi) "Permitted Uses" shall mean executive and general offices
and data center in connection with Tenant's business. Notwithstanding the
foregoing, Tenant shall also be permitted to make telephone sales from the
Premises incidental to the foregoing.
(vii) "Base Tax Year" shall mean the fiscal year commencing July
1, 1999 and ending June 30, 2000, or such other fiscal year as shall be
used by the City of New York.
(viii) "Tenant's Proportionate Share" shall mean 8.389%.
(ix) "Broker" shall mean, collectively, Xxxxxxx Xxxxxxx
Commercial and Insignia/Xxxxxx X. Xxxxxx, Inc.
(x) "Hazardous Substances" shall mean, collectively, (a) asbestos
and polychlorinated biphenyls and (b) hazardous or toxic materials, wastes
and substances which are defined, determined and identified as such
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 'SS''SS' 9601 et seq.; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 'SS''SS' 6901 et seq.;
the Toxic Substance Control Act, 15 U.S.C. 'SS''SS' 2601 et seq.; the Water
Pollution Control Act (also known as the Clean Water Act), 33 U.S.C.
'SS' 1251 et seq.; the Clean Air Act, 42 U.S.C. 'SS' 7401 et seq.; and
the Hazardous Materials Transportation Act, 49 U.S.C. 'SS' 1801 et seq.
Notwithstanding anything to the contrary contained in this subsection B of
this Article 1, Articles 1 through 42 shall control the rights and obligations
of the parties hereto except that the provisions of any Riders shall supersede
any inconsistent provisions in Articles I through 42, as the case may be.
2
2. USE AND OCCUPANCY.
A. Permitted Uses. Tenant shall use and occupy the Premises for the
Permitted Uses, and for no other purpose.
B. Use Prohibitions. Tenant hereby represents, warrants and agrees
that Tenant's business is not photographic, multilith or multigraph
reproductions or offset printing. Anything contained herein to the contrary
notwithstanding, Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used (i) for the business of
photographic, multilith or multigraph reproductions or offset printing, (ii) for
a banking, trust company, depository, guarantee or safe deposit business, (iii)
as a savings bank, a savings and loan association or a loan company, (iv) for
the sale of travelers checks (except as may be issued by Tenant to employees of
Tenant for xxxxx cash type reimbursement), money orders, drafts, foreign
exchange or letters of credit or for the receipt of money for transmission, (v)
as a "retail" stock broker's or dealer's office which shall be open to the
general public (except pursuant to prior appointment), (vi) as a restaurant or
bar or for the sale of confectionery, soda, beverages, sandwiches, ice cream or
baked goods or for the preparation, dispensing or consumption of food or
beverages in any manner whatsoever except for vending machines, the type, number
and location of which shall be subject to Landlord's prior approval, which
approval shall not be unreasonably withheld or delayed, (vii) as a news or cigar
stand, (viii) as an employment agency, labor union office, physician's or
dentist's office or for the rendition of any other diagnostic or therapeutic
services, dance or music studio, school (except for the training of employees of
Tenant), (ix) as a xxxxxx shop, beauty salon or manicure shop (x) for the direct
sale, at retail, wholesale or otherwise, of any goods or products, (xi) for a
public stenographer or typist, (xii) for a telephone or telegraph agency,
telephone or secretarial service for the public at large, (xiii) for a messenger
service for the public at large, (xiv) for gambling or gaming activities,
obscene or pornographic purposes or any sort of commercial sex establishment,
(xv) for the possession, storage, manufacture or sale of alcohol, drugs or
narcotics, (xvi) for the conduct of a public auction, (xvii) for the offices or
business of any federal, state or municipal agency or any agency of any foreign
government or (xviii) for any use that would cause the Premises to be deemed a
place of public accommodation under the Americans with Disabilities Act of 1990.
Nothing in this subsection B shall preclude Tenant from using any part of the
Premises for photographic, multilith or multigraph reproductions in connection
with, either directly or indirectly, its own business and/or activities.
3. ALTERATIONS.
A. Alterations Within Premises. Except as otherwise provided herein,
Tenant shall not make or perform or permit the making or performance of, any
alterations, installations, improvements, additions or other physical changes in
or about the Premises ("Alterations") without Landlord's prior consent.
Notwithstanding the preceding sentence, Landlord's prior consent shall not be
required for decorative, non-structural changes which do not cost in excess of
$75,000.00 in the aggregate. Landlord agrees not to unreasonably withhold or
delay its consent to any Alterations proposed to be made by Tenant to adapt the
Premises for those business purposes permitted by subsection A of Article 2
hereof, which are nonstructural and which do not affect the Building's
mechanical, electrical, plumbing, Class E or other Building systems or the
structural integrity of the Building, provided that such Alterations are
performed only by contractors or mechanics reasonably approved by Landlord, do
not affect any part of the Building other than the Premises, do not adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building, do not reduce the value or utility of
the Building and are performed in compliance with all applicable laws. Tenant
shall not perform work, without Landlord's consent, which consent Landlord may
withhold in its sole discretion, which would (i) require changes to the
structural components of the Building or the exterior design of the Building,
(ii) require any material modification to the Building's mechanical, electrical,
plumbing installations or other Building installations outside the Premises,
(iii) not be in compliance with all applicable laws, rules,
3
regulations and requirements of any governmental department having jurisdiction
over the Building and/or the construction of the Premises, including but not
limited to, the Americans with Disabilities Act of 1990, or (iv) be incompatible
with the Certificate of Occupancy for the Building. Any changes required by any
governmental department affecting the construction of the Premises (other than
Landlord's Core Work) shall be performed at Tenant's sole cost and expense. All
Alterations shall be done at Tenant's expense and at such times and in such
manner as Landlord may from time to time reasonably designate pursuant to the
conditions for Alterations prescribed by Landlord for the Premises, a copy of
which is annexed hereto as Schedule D and made a part hereof. Landlord shall
have the right to modify such rules and regulations provided that no such
modification shall materially increase Tenant's obligations or materially reduce
its rights with respect to the performance of Alterations. All furniture,
furnishings and movable fixtures and removable partitions installed by Tenant
must be removed from the Premises by Tenant, at Tenant's expense, prior to the
Expiration Date. All Alterations in and to the Premises which are made by
Landlord or Tenant prior to and during the Term, or any renewal thereof, shall
become the property of Landlord upon the Expiration Date or earlier end of the
Term or any renewal thereof, and shall not be removed from the Premises by
Tenant unless Landlord, at Landlord's option by notice to Tenant
contemporaneously with Landlord's approval of such Alteration and as a condition
to such approval, elects to have them removed from the Premises by Tenant, in
which event the same shall be removed from the Premises by Tenant, at Tenant's
expense, prior to the Expiration Date. In the event Landlord elects to have
Tenant remove such Alterations, Tenant shall repair and restore in a good and
workmanlike manner to Building standard original condition (reasonable wear and
tear excepted) any damage to the Premises or the Building caused by such
removal. Any of such fixtures or installations not so removed by Tenant at or
prior to the Expiration Date or earlier termination of the Term shall become the
property of Landlord, but nothing herein shall be deemed to relieve Tenant of
responsibility for the cost of removal of any such fixtures or installations
which Tenant is obligated to remove hereunder.
B. Intentionally Omitted.
C. Submission of Plans. Except as otherwise expressly set forth
herein, prior to making any Alterations, Tenant (i) shall submit to Landlord or
to a consultant appointed by Landlord ("Landlord's Consultant") detailed plans
and specifications (including layout, architectural, mechanical, electrical,
plumbing, Class E sprinkler and structural drawings stamped by a professional
engineer or architect licensed in the State of New York) for each proposed
Alteration and shall not commence any such Alteration without first obtaining
Landlord's approval of such plans and specifications, (ii) shall pay to Landlord
all reasonable costs and expenses incurred by Landlord (including the cost of
Landlord's Consultant) in connection with Landlord's review of Tenant's plans
and specifications, (iii) shall, at its expense, obtain all permits, approvals
and certificates required by any governmental or quasi-governmental bodies, and
(iv) shall furnish to Landlord duplicate original policies or certificates
thereof of worker's compensation insurance (covering all persons to be employed
by Tenant, and Tenant's contractors and subcontractors in connection with such
Alteration) and comprehensive public liability (including property damage
coverage) insurance in such form, with such companies, for such periods and in
such amounts as Landlord may reasonably require, naming Landlord and its agents
as additional insureds. Landlord or Landlord's Consultant shall respond to
Tenant with respect to Tenant's submission of detailed plans and specifications
within ten (10) business days after receipt of such submission. In the event
Landlord or Landlord's Consultant does not respond within such ten (10) business
day period, Tenant may send Landlord a notice stating that, if Landlord does not
respond to Tenant's submission within ten (10) business days after receipt by
Landlord of such notice, Tenant's submission shall be deemed approved. If
Landlord or Landlord's Consultant fails to respond to such notice within ten
(10) business days after receipt thereof, Landlord's consent shall be deemed
given therefor. Upon completion of such Alteration, Tenant, at Tenant's expense,
shall obtain certificates of final approval of such Alteration, including the
"as-built" drawings showing such Alterations, required by any governmental or
quasigovernmental bodies and shall furnish Landlord with copies thereof. All
Alterations shall be made
4
and performed in accordance with the Rules and Regulations (hereinafter defined)
and in accordance with the Americans with Disabilities Act of 1990, including,
but not limited to, the accessibility provisions thereof; all construction
materials and equipment to be incorporated in the Premises as a result of all
Alterations shall be new and first quality; no such construction materials or
equipment shall be subject to any lien, encumbrance, chattel mortgage or title
retention or security agreement except for equipment owned by Tenant and subject
to purchase money financing security interests of the vendors thereof.
Landlord's approval of Tenant's plans, specifications and working drawings for
Alterations shall create no responsibility or liability on the part of Landlord
with respect to their completeness, design, sufficiency or compliance with all
applicable laws, rules or regulations of governmental agencies or authorities.
D. Mechanics' Liens; Labor Conflicts. Any mechanic's lien filed
against the Premises, or the Real Property, for work claimed to have been done
for, or materials claimed to have been furnished to, Tenant shall be discharged
by Tenant within twenty (20) days after Tenant shall have received notice
thereof, at Tenant's expense, by payment or filing the bond required by law.
Tenant shall not, at any time prior to or during the Term, directly or
indirectly employ, or permit the employment of, any contractor, mechanic or
laborer in the Premises, whether in connection with any Alteration or otherwise,
if, in Landlord's sole discretion, such employment will interfere or cause any
conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation bf the Building by Landlord, Tenant or
others. In the event of any such interference or conflict, Tenant, upon demand
of Landlord, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately. Landlord may, at its
option, direct Tenant to cause any contractor, mechanic or laborer in the
Premises to be bonded to Landlord's reasonable satisfaction.
4. REPAIRS - FLOOR LOAD. Landlord shall operate, maintain and repair the
public structural and mechanical portions of the Building, both exterior and
interior in conformance with standards applicable to office buildings in
Manhattan and all Rules and Regulations (as hereinafter defined). Tenant shall,
throughout the Term, take good care of the Premises, Tenant's Equipment (as
hereinafter defined) and the fixtures and appurtenances therein and at Tenant's
sole cost and expense, make all nonstructural repairs thereto as and when needed
to preserve them in good working order and condition, reasonable wear and tear
and damage for which Tenant is not responsible under the terms of this Lease
excepted. Tenant shall pay Landlord for all replacements to the lamps, tubes,
ballasts and starters in the lighting fixtures installed in the Premises at
competitive prices. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Building, or to its fixtures, equipment and
appurtenances; whether requiring structural or nonstructural repairs, caused by
or resulting from acts or omissions, neglect or improper conduct of, or
Alterations made by Tenant or any of Tenant's employees, invitees or licensees,
shall be repaired promptly by (i) Tenant, at its sole cost and expense, to the
reasonable satisfaction of Landlord or (ii) Landlord, at Tenant's expense, to
the extent the repairs are structural in nature. Tenant also shall repair all
damage to the Building and the Premises caused by the moving of Tenant's
fixtures, furniture or equipment. All the aforesaid repairs shall be of quality
and class equal to the original work or construction and shall be made in
accordance with the provisions of Article 3 hereof. If Tenant fails after ten
(10) days notice to proceed with due diligence to make repairs required to be
made by Tenant hereunder, the same may be made by Landlord, at the expense of
Tenant, and the expenses thereof incurred by Landlord shall be collectible by
Landlord as additional rent promptly after rendition of a xxxx or statement
therefor; provided however, interest shall not commence to accrue until Landlord
has rendered such statement or xxxx. Tenant shall give Landlord prompt notice of
any defective condition in any plumbing, electrical, air-cooling or heating
system located in, servicing or passing through the Premises. Tenant shall not
place a load upon any floor of the Premises exceeding the floor load per square
foot area which such floor was .designed to carry and which is allowed by law.
Landlord reserves the right to reasonably prescribe the weight and position of
all safes, business machines and heavy equipment and installations. Business
machines and mechanical equipment shall be placed and
5
maintained by Tenant at Tenant's expense in settings sufficient, in Landlord's
reasonable judgment, to absorb and prevent vibration, noise and annoyance.
Except as expressly provided in Article 10 hereof, 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 Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building, or
the Premises, or in or to fixtures, appurtenances, or equipment thereof. If the
Premises be or become infested with vermin, Landlord, at Landlord's expense (or
at Tenant's expense if such infestation is caused by Tenant), shall cause the
same to be exterminated from time to time to the satisfaction of Landlord and
shall employ such exterminators and such exterminating company or companies as
shall be approved by Landlord. The water and wash closets and other plumbing
fixtures shall not be used for any purposes other than those for which they were
designed or constructed, and no sweepings, rubbish, rags, acids or other
substances shall be deposited therein.
5. WINDOW CLEANING. Tenant shall not clean, nor require, permit, suffer or
allow any window in the Premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law, or any other applicable law, or of the rules of
the Board of Standards and Appeals, or of any other board or body having or
asserting jurisdiction.
6. REQUIREMENTS OF LAW. Tenant, at its sole expense, shall comply with all
laws, statutes, orders, directives and regulations of federal, state, county,
city and municipal authorities, departments, bureaus, boards, agencies,
commissions and other sub-divisions thereof, and of any official thereof and any
other governmental and quasi-public authority and all rules, orders, regulations
or requirements of the New York Board of Fire Underwriters, or any other similar
body which shall now or hereafter impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises as a result of the specific
manner or use, occupation or alteration thereof by Tenant. Tenant shall not do
or permit to be done any act or thing upon the Premises which will invalidate or
be in conflict with any insurance policies covering the Building and fixtures
and property therein; and shall not do, or permit anything to be done in or upon
the Premises or bring or keep anything therein, except as now or hereafter
permitted by the Xxx Xxxx Xxxx Xxxx Xxxxxxxxxx, Xxx Xxxx Board of Fire
Underwriters, New York Fire Insurance Rating Organization or other authority
having jurisdiction and then only in such quantity and manner of storage as not
to increase the rate for fire insurance applicable to the Building, or use the
Premises in a manner which shall increase the rate of fire insurance on the
Building or on property located therein, over that in similar type buildings or
in effect at the Commencement Date. Any work or installations made or performed
by or on behalf of Tenant or any person claiming through or under Tenant
pursuant to this Article shall be made in conformity with, and subject to the
provisions of, Article 3 hereof. If by reason of Tenant's failure to comply with
the provisions of this Article, Landlord shall give Tenant five (5) days notice
of such failure and if such failure to comply continues after such five (5) day
period and if the fire insurance rate shall thereafter be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
hereunder, for that part of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure of use by Tenant,
and shall make such reimbursement upon the first day of the month following such
outlay by Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of rates for the Building or the Premises
issued by the New York Fire Insurance Rating Organization, or other body fixing
such fire insurance rates, shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to the Premises. Notwithstanding anything to the contrary, Landlord
shall comply with all laws, statutes, orders, directives and regulations of
governmental authorities applicable to the Building but not in respect of the
Premises.
6
7. SUBORDINATION.
A. Subordination. This Lease is subject and subordinate to each and
every ground or underlying lease of the Real Property or the Building heretofore
or hereafter made by Landlord (collectively, the "Superior Leases") and to each
and every trust indenture and mortgage (collectively, the "Mortgages") which may
now or hereafter affect the Real Property, the Building or any such Superior
Lease and the leasehold interest created thereby, and to all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof or thereto, substitutions therefor and advances made
thereunder, provided that the lessor under any such Superior Lease or the holder
of any Mortgage, as the case may be, execute and deliver to Tenant a
Non-Disturbance Agreement (as hereinafter defined). This clause shall be
self-operative and no further instrument of subordination shall be required to
make the interest of any lessor under a Superior Lease, or trustee or mortgagee
of a Mortgage superior to the interest of Tenant hereunder. In confirmation of
such subordination, however, Tenant shall execute promptly a subordination and
non-disturbance agreement that Landlord may reasonably request and Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact to
execute any such certificate or certificates for and on behalf of Tenant. If the
date of expiration of any Superior Lease shall be the same day as the Expiration
Date, the Term shall end and expire twelve (12) hours prior to the expiration of
the Superior Lease. Tenant covenants and agrees that Tenant shall not do
anything that would constitute a default under any Superior Lease or Mortgage,
or omit to do anything that Tenant is obligated to do under the terms of this
Lease so as to cause Landlord to be in default under any of the foregoing. If,
in connection with the financing of the Real Property, the Building or the
interest of the lessee under any Superior Lease, any lending institution shall
request reasonable modifications of this Lease that do not increase the
obligations of Tenant in any material way or adversely affect the rights of
Tenant in any material way under this Lease, Tenant covenants to make such
modifications.
B. Attornment. If at any time prior to the expiration of the Term, any
Mortgage shall be foreclosed or any Superior Lease shall terminate or be
terminated for any reason, Tenant agrees, at the election and upon demand of any
owner of the Real Property or the Building, or the lessor under any such
Superior Lease, or of any mortgagee in possession of the Real Property or the
Building, to attorn, from time to time, to any such owner, lessor or mortgagee,
upon the then executory terms and conditions of this Lease, for the remainder of
the term originally demised in this Lease, provided that such owner, lessor or
mortgagee, or any person acquiring the interest of Landlord as a result of such
termination, as the case may be, or receiver caused to be appointed by any of
the foregoing, shall then be entitled to possession of the Premises. The
provisions of this subsection B shall inure to the benefit of any such owner,
lessor or mortgagee, and shall apply notwithstanding that, as a matter of law,
this Lease may terminate upon the termination of any such Superior Lease, and
shall be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Tenant, however, upon demand of any
such owner, lessor or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subsection B,
satisfactory to any such owner, lessor or mortgagee, acknowledging such
attornment and setting forth the terms and conditions of its tenancy. Nothing
contained in this subsection B shall be construed to impair any right otherwise
exercisable by any such owner, lessor or mortgagee.
8. RULES AND REGULATIONS. Tenant and Tenant's contractors, employees,
agents, visitors, and licensees shall comply strictly with, the Rules and
Regulations annexed hereto and made a part hereof as Schedule A and such other
and further reasonable Rules and Regulations as Landlord or Landlord's agents
may from time to time adopt (collectively, the "Rules and Regulations"). In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Landlord or Landlord's agents, the parties hereto
agree to submit the question of the reasonableness of such Rule or Regulation
for decision to the Chairman of the Board of Directors of the Management
7
Division of The Real Estate Board of New York, Inc., or to such impartial person
or persons as he may designate, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice in writing upon
Landlord within sixty (60) days after receipt by Tenant of written notice of the
adoption of any such additional Rule or Regulation. Nothing in this Lease
contained shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
lease, against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees, except that Landlord shall not enforce any Rule or
Regulation against Tenant in a discriminatory manner. Furthermore, no such
additional Rule or Regulation shall materially increase any of Tenant's
obligations under this Lease or interfere with, in any material way, Tenant's
use of the Premises or diminish, in any material way, Tenant's rights hereunder.
If there is any conflict between this Lease and the Rules and Regulations, the
provisions of this Lease shall control.
9. INSURANCE.
A. Tenant's Insurance. Tenant shall obtain at its own expense and keep
in full force and effect during the Term, a policy of commercial general
liability insurance (including, without limitation, insurance, covering tenant's
contractual liability under this Lease), under which Tenant is named as the
insured, and Landlord, Landlord's asset manager, Landlord's managing agent, the
present and any future mortgagee of the Real Property or the Building and/or
such other designees specified by Landlord from time to time, are named as
additional insureds, as their interests may appear. Such policy shall contain
(i) a provision that no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained
subject to customary exclusions reasonably acceptable to Landlord, (ii) a waiver
of subrogation against Landlord or a consent to a waiver of right of recovery
against Landlord, provided, however, such waiver of subrogation shall not be
applicable to the liability section of such policy, and (iii) an agreement by
the insurer that it will not make any claim against or seek to recover from
Landlord for any loss, damage or claim whether or not covered under such policy.
Such policy shall also contain a provision which provides the insurance company
will not cancel or refuse to renew the policy, or change in any material way
(except for increases in coverage) the nature or extent of the coverage provided
by such policy, without first giving Landlord at least thirty (30) days written
notice by certified mail, return receipt requested, which notice shall contain
the policy number and the names of the insureds and policy holder. The minimum
limits of liability shall be a combined single limit with respect to each
occurrence in an amount of not less than $3,000,000 for injury (or death) and
damage to property or such greater amount as Landlord may, from time to time,
reasonably require. Tenant shall also maintain at its own expense during the
Term a policy of workers' compensation insurance providing statutory benefits
for Tenant's employees and employer's liability. Tenant shall provide to
Landlord upon execution of this Lease and at least thirty (30) days prior to the
termination of any existing policy, a certificate evidencing the effectiveness
of the insurance policies required to be maintained hereunder which shall
include the named insured, additional insured, carrier, policy number, limits of
liability, effective date, the name of the insurance agent and its telephone
number. Tenant shall provide Landlord with a certificate evidencing any such
policy upon written request of Landlord. Tenant shall have the right to obtain
any of the insurance required hereunder pursuant to a blanket policy covering
other properties provided the blanket policy contains an endorsement that names
Landlord, Landlord's asset manager, Landlord's managing agent, the present and
any future mortgagee of the Real Property or the Building and/or such other
designees specified by Landlord from time to time, as additional insureds,
references the Premises, and guarantees a minimum limit available for the
Premises equal to the amount of insurance required to be maintained hereunder.
Notwithstanding anything in this Section 9 to the contrary, to the extent
unavailable, Tenant shall not be required to name Landlord as an additional
insured in policy or policies of workers' compensation insurance. Each policy
required
8
hereunder shall contain a clause that the policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance. The limits of
the insurance required under this subsection shall not limit the liability of
Tenant under this Lease. All insurance required to be carried by Tenant pursuant
to the terms of this Lease shall be effected under valid and enforceable
policies issued by reputable and independent insurers permitted to do business
in the State of New York, and rated in Best's Insurance Guide, or any successor
thereto (or if there be none, an organization having a national reputation) as
having a general policyholder rating of "A" and a financial rating of at least
"13". In the event that Tenant fails to continuously maintain insurance as
required by this subsection, Landlord may, at its option and without relieving
Tenant of any obligation hereunder, order such insurance and pay for the same at
the expense of Tenant. In such event, Tenant shall repay the amount expended by
Landlord, with interest thereon, immediately upon Landlord's written demand
therefor.
B. Tenant's Improvement Insurance. Tenant shall also maintain at its
own expense during the Term a policy against fire and other casualty on an "all
risk" form covering all Alterations, construction and other improvements
installed within the Premises, whether existing in the Premises on the date
hereof or hereinafter installed by or on behalf of Landlord or Tenant, and on
all furniture, fixtures, equipment, personal property and inventory of Tenant
located in the Premises and any property in the care, custody and control of
Tenant (fixed or otherwise) sufficient to provide 100% full replacement value of
such items, which policy shall otherwise comply with the provisions of
subsections A and C of this Article 9. On any such policy, Tenant shall name
Landlord as a loss payee, as its interest may appear.
C. Waiver of Subrogation. Subject to the provisions hereof, the
parties hereto shall procure an appropriate clause in, or endorsement on, any
"all-risk" property insurance covering the Premises and the Building, including
its respective Alterations, construction and other improvements as well as
personal property, fixtures, furniture, inventory and equipment located thereon
or therein, pursuant to which the insurance companies waive subrogation or
consent to a waiver of right of recovery, and each party hereby agrees that it
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 "all-risk" property insurance policies to the extent
that such loss or damage is actually recoverable under such policies exclusive
of any deductibles. Such waiver will not apply should any loss or damage result
from one of the parties gross negligence or willful misconduct. 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 shall pay the same. It is expressly
understood and agreed that Landlord will not carry insurance on the Alterations,
construction and other improvements presently existing or hereafter installed
within the Premises or on Tenant's fixtures, furnishings, equipment, personal
property or inventory located in the Premises or insurance against interruption
of Tenant's business.
10. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE.
A. Repair of Damage. If the Premises (other than Alterations or
Tenant's property) shall be damaged by fire or other casualty, then Landlord
shall proceed to repair and restore (subject to receipt of insurance proceeds)
the Premises to its condition preceding the damage, subject to the provisions of
this Article 10. Landlord shall have no liability to Tenant, and Tenant shall
not be entitled to terminate this Lease, if such repairs and restoration are not
in fact completed within Landlord's estimated time period, so long as Landlord
shall have proceeded with reasonable due diligence. Until such repairs shall be
made, the Rent shall be reduced in the proportion which the area of the part of
the Premises which is not usable by Tenant bears to the total area of the
Premises; provided, however, should Tenant reoccupy a portion of the Premises
for the conduct of its business prior to the date such repairs are
9
made, the Rent shall be reinstated with respect to such reoccupied portion of
the Premises and shall be payable by Tenant from the date of such occupancy.
Landlord shall use its commercially reasonable efforts to minimize interference
with Tenant's use and occupancy in making any repairs pursuant to this Section.
Further, should Landlord, at its sole option, make available to Tenant, during
the period of such repair, other space in the Building of equal or better
quality which is reasonably suitable for the temporary continuation of Tenant's
business, the Rent shall be reinstated with respect to such temporarily occupied
space and shall be payable by Tenant from the date such space is occupied by
Tenant. Whenever in this Article 10 reference is made to restoration of the
Premises (i) Tenant's obligation shall be as to all property within the Premises
including Tenant's furniture, fixtures, equipment and other personal property,
any and all Alterations, construction or other improvements made to the Premises
by or on behalf of Tenant and any other leasehold improvements existing in the
Premises on the date hereof, all of which shall be restored and replaced at
Tenant's sole cost and expense and (ii) Landlord's obligation, if any, shall be
as to the shell, which constitutes the structure of the Building and the
mechanical, electrical, plumbing, air-conditioning and other building systems up
to the point of connection into the Premises, the floor and ceiling slabs of the
Premises, the exterior walls of the Premises and other core areas. Landlord's
obligation to repair or rebuild, and Tenants right to rent abatement, as
described in this Article 10, are only effective provided the damage or
destruction is not due to the intentional or negligent acts or omissions of
Tenant, its agents, employees, licensees or invitees. After substantial
completion of Landlord's repair obligations set forth above, Landlord shall
provide Tenant and Tenant's contractor, subcontractors and materialmen access to
the Premises to perform Alterations. Such access by Tenant shall be deemed to be
subject to all of the applicable provisions of this Lease, except that there
shall be no obligation on the part of Tenant, solely as a result of such access,
to pay any Rent or additional rent with respect to the affected portion of the
Premises for any period prior to the re-occupation of any part of the Premises
by Tenant for the conduct of its business. During any period of Tenant's repair
and restoration following substantial completion of Landlord's repair and
restoration work, Rent and additional rent shall be payable as if said fire or
other casualty had not occurred.
B. Termination Option. Anything in subsection A of this Article 10 to
the contrary notwithstanding, if the Premises are totally damaged or are
rendered wholly untenantable, and if Landlord's architect determines that it
will take in excess of eight (8) months to restore the Premises, or if the
Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, either substantial alteration, demolition or reconstruction of the
Building shall be required (whether or not the Premises shall have been damaged
or rendered untenantable) or the Building, after its proposed repair, alteration
or restoration shall not be economically viable as an office building, then in
any of such events, Landlord or Tenant, may, not later than ninety (90) days
following the damage, give the other party a notice in writing terminating this
Lease. In addition (i) if any material damage shall occur to the Premises or the
Building during the last one (1) year of the Term, either party thereto shall
have the option to terminate this Lease by written notice to the other party and
in such event this Lease shall terminate on the later of the date of the notice
of termination or the date Tenant vacates the Premises and removes all of its
property therefrom and (ii) Landlord shall not be obligated to repair or restore
the Premises or the Building if a holder of a mortgage or underlying leasehold
applies proceeds of insurance to the loan or lease payment balance, and the
remaining proceeds, if any, available to Landlord are insufficient to pay for
such repair or restoration. If Landlord elects to terminate this Lease, the Term
shall expire upon the thirtieth (30th) day after such notice is given, and
Tenant shall vacate the Premises and surrender the same to Landlord. If Tenant
shall not be in default under this Lease, then upon the termination of this
Lease under the conditions provided for in the next preceding sentence, Tenant's
liability for Rent thereafter accruing shall cease as of the day following such
damage and the Rent shall be apportioned to the date that the Premises are no
longer useable.
C. Repair Delays. Landlord shall not be liable for reasonable delays
which may arise by reason of the claim adjustment with any insurance company on
the part of Landlord and/or
10
Tenant, and for reasonable delays on account of "labor troubles" or any other
cause beyond Landlord's control.
D. Provision Controlling. The parties agree that this Article 10
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and that Section 227 of
the Real Property Law of the State of New York, which provides for such
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 any such case.
E. Property Loss or Damage. Any Building employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as
Tenant's agent with respect to such property and neither Landlord nor its agents
shall be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for the loss of or damage to any property of
Tenant by theft or otherwise. Neither Landlord nor its agents shall be liable
for any injury or damage to persons or property or interruption of Tenant's
business 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; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the Premises or in the Building. Anything in this Article 10 to
the contrary notwithstanding, nothing in this Lease shall be construed to
relieve Landlord from responsibility directly to Tenant for any loss or damage
caused directly to Tenant wholly or in part by the gross negligence or willful
misconduct or willful omission of Landlord. Nothing in the foregoing sentence
shall affect any right of Landlord to the indemnity from Tenant to which
Landlord may be entitled under Article 37 hereof in order to recoup for payments
made to compensate for losses of third parties. If at any time any windows of
the Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever including, but not limited to, Landlord's own acts, or any of such
windows are permanently closed, darkened or bricked-up if required by law or
related to any construction upon property adjacent to the Real Property by
Landlord or others, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall reimburse and compensate
Landlord as additional rent within fifteen (15) days after rendition of a
statement for all expenditures made by, or damages or fines sustained or
incurred by, Landlord due to nonperformance or noncompliance with or breach or
failure to observe any term, covenant or condition of this Lease upon Tenant's
part to be kept, observed, performed or complied with. Tenant shall give
immediate notice to Landlord in case of fire or accident in the Premises or in
the Building. Tenant shall not move any safe, heavy machinery, heavy equipment,
freight, bulky matter or fixtures into or out of the Building without Landlord's
prior consent which shall not be unreasonably withheld or delayed and payment to
Landlord of Landlord's actual out-of-pocket costs in connection therewith. If
such safe, machinery, equipment, freight, bulky matter or fixtures requires
special handling, Tenant agrees to employ only persons holding a Master Rigger's
License to do said work, and that all work in connection therewith shall comply
with the Administrative Code of the City of New York and all other laws and
regulations applicable thereto, and shall be done during such hours as Landlord
may designate and, notwithstanding said consent of Landlord, Tenant shall
indemnify Landlord for, and hold Landlord harmless and free from, damages
sustained by persons or property and for any damages or monies paid out by
Landlord in settlement of any claims or judgments, as well as for all expenses
and attorneys' fees incurred in connection with the foregoing and all costs
incurred in repairing any damage to the Building or appurtenances.
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11. CONDEMNATION.
A. Condemnation. If the whole of the Real Property, the Building or
the Premises shall be acquired or condemned for any public or quasi-public use
or purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property shall be so acquired or condemned then (i) except as
hereinafter provided in this subsection A, this Lease and the Term shall
continue in force and effect but, if a part of the Premises is included in the
part of the Real Property so acquired or condemned, from and after the date of
the vesting of title, the Rent shall be reduced in the proportion which the area
of the part of the Premises so acquired or condemned bears to the total area of
the Premises immediately prior to such acquisition or condemnation; (ii) whether
or not the Premises shall be affected thereby, Landlord, at Landlord's option,
may give to Tenant, within sixty (60) days next following the date upon which
Landlord shall have received notice of vesting of title, a thirty (30) days
notice of termination of this Lease; and (iii) if the part of the Real Property
so acquired or condemned shall contain more than twenty percent (20%) of the
total area of the Premises immediately prior to such acquisition or
condemnation, or if, by reason of such acquisition or condemnation, Tenant no
longer has reasonable means of access to the Premises, Tenant, at Tenant's
option, may give to Landlord, within sixty (60) days next following the date
upon which Tenant shall have received notice of vesting of title, a thirty (30)
days notice of termination of this Lease. If any such thirty (30) days notice of
termination is given by Landlord or Tenant this Lease and the Term shall come to
an end and expire upon the expiration of said thirty (30) days with the same
effect as if the date of expiration of said thirty (30) days were the Expiration
Date. If a part of the Premises shall be so acquired or condemned and this Lease
and the Term shall not be terminated pursuant to the foregoing provisions of
this subsection A, Landlord, at Landlord's expense, shall restore that part of
the Premises not so acquired or condemned to a self-contained rental unit
inclusive of Tenant's Alterations. In the event of any termination of this Lease
and the Term pursuant to the provisions of this subsection A, the Rent shall be
apportioned as of the date of such termination and any prepaid portion of Rent
for any period after such date shall be refunded by Landlord to Tenant.
B. Award. In the event of any such acquisition or condemnation of all
or any part of the Real Property, Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation, Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term and Tenant hereby expressly assigns to Landlord
all of its right in and to any such award. Nothing contained in this subsection
B shall be deemed to prevent Tenant from making a claim in any condemnation
proceedings for the then value of any furniture, furnishings and fixtures
installed by and at the sole expense of Tenant and included in such taking and
for Tenant's costs and expenses associated with moving, provided that such award
shall not reduce the amount of the award otherwise payable to Landlord.
12. ASSIGNMENT AND SUBLETTING.
A. Prohibition Without Consent. Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage, pledge,
encumber or otherwise transfer this Lease, nor underlet, nor suffer, nor permit
the Premises or any part thereof to be used or occupied by others (whether for
desk space, mailing privileges or otherwise), without the prior written consent
of Landlord in each instance. If this Lease be assigned, or if the Premises or
any part thereof be underlet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the Rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the assignee, undertenant or occupant
as tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. In the event that any such
default is cured, then any sums collected from any subtenant,
12
user or occupant in excess of the Rent and additional rent and costs of
collection, shall be promptly paid to Tenant after deducting any fees and
expenses payable by Tenant to Landlord in connection with such default. The
consent by Landlord to an assignment or underletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or underletting. In no event shall any
permitted subtenant assign or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space or
any part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer in contravention of the provisions of this Article 12
shall be void.
B. Notice of Proposed Transfer. If Tenant shall at any time or times
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (i) a conformed or photostatic copy of the proposed assignment or
sublease (or, in lieu thereof, a fully executed bona fide term sheet setting
forth the material terms of the proposed transaction), the effective or
commencement date of which shall be not less than sixty (60) nor more than one
hundred and eighty (180) days after the giving of such notice, (ii) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises,
(iii) current financial information with respect to the proposed assignee or
subtenant, including, without limitation, its most recent financial report, (iv)
an agreement by Tenant to indemnify Landlord against liability resulting from
any claims that may be made against Landlord by the proposed assignee or
subtenant or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease and (v) in
the case of a sublease, such additional information related to the proposed
subtenant as Landlord shall reasonably request, if any.
C. Landlord's Option. The notice containing all of the information set
forth in Subsection B of this Article 12 above shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option,
if the proposed sublease is for any portion of the Premises but substantially
the remainder of the Term, terminate this Lease with respect to the portion of
the Premises proposed to be sublet. Said option may be exercised by Landlord by
notice to Tenant at any time within fourteen (14) days after the aforesaid
notice has been given by Tenant to Landlord; and during such fourteen (14) day
period Tenant shall not assign this Lease nor sublet such space to any person or
entity.
D. Termination by Landlord. If Landlord exercises its option to
terminate this Lease in the case where Tenant desires either to assign this
Lease or sublet all or substantially all of the Premises, then this Lease shall
end and expire on the date that such assignment or sublet was to be effective or
commence, as the case may be, and the Rent and additional rent due hereunder
shall be paid and apportioned to such date. Furthermore, if Landlord exercises
its option to terminate this Lease pursuant to subsection C of this Article 12,
Landlord shall be free to and shall have no liability to Tenant if Landlord
should lease the Premises (or any part thereof) to Tenant's prospective assignee
or subtenant.
E. Intentionally Omitted.
F. Effect of Termination. Tenant shall complete, swear to and file any
questionnaires, tax returns, affidavits or other documentation which may be
required to be filed (a) with the New York State Department of Taxation and
Finance in connection with Article 31-B of the Tax Law of the State of New York,
(b) with the Commissioner of Finance of the City of New York or the New York
State Department of Taxation and Finance in connection with Article 31 of the
Tax Law of the State of New York, (c) with the Commissioner of Finance of the
City of New York in connection with the New York City Real Property Transfer Tax
and (d) with the appropriate governmental agency in connection
13
with any other tax which may now or hereafter be in effect. Tenant further
agrees to pay any amounts which may be assessed in connection with any of such
taxes and to indemnify Landlord against and to hold Landlord harmless from any
claims for payment of such taxes as a result of such transactions.
G. Conditions for Landlord's Approval. In the event Landlord does not
exercise the recapture option provided to it pursuant to subsection C of this
Article 12 and providing that Tenant is not in default of any of Tenant's
obligations under this Lease (after notice and the expiration of any applicable
grace period) as of the time of Landlord's consent, and as of the effective date
of the proposed assignment or commencement date of the proposed sublease,
Landlord's consent (which must be in writing and form reasonably satisfactory to
Landlord) to the proposed assignment or sublease shall not be unreasonably
withheld or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of subsection
B of this Article 12 and Landlord shall not have exercised any of its
options under subsection C of this Article 12 within the time permitted
therefor;
(ii) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner, which (a) is in keeping
with the then standards of the Building and (b) is limited to the use of
the Premises as general and executive offices;
(iii) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(iv) Neither (a) the proposed assignee or subtenant nor (b) any
person which, directly or indirectly, controls, is controlled by or is
under common control with, the proposed assignee or subtenant, is then an
occupant of any part of the Building;
(v) The proposed assignee or subtenant is not a person with whom
Landlord is or has been, within the preceding three (3) month period,
negotiating to lease space comparable to the offered premises in the
Building;
(vi) The form of the proposed sublease or instrument of
assignment (a) shall be in form reasonably satisfactory to Landlord, and,
without limitation, (1) shall not provide for a rental or other payment for
the use, occupancy or utilization of the space demised thereby based in
whole or in part on the income or profits derived by any person from the
property so leased, used, occupied or utilized other than an amount based
on a fixed percentage or percentages of gross receipts or sales and (2)
shall provide that no person having an interest in the possession, use,
occupancy or utilization of the space demised thereby shall enter into any
lease, sublease, license, concession or other agreement for use, occupancy
or utilization of such space which provides for a rental or other payment
for such use, occupancy or utilization based in whole or in part on the
income or profits derived by any person from the property so leased, used,
occupied or utilized other than an amount based on a fixed percentage or
percentages of gross receipts or sales, and that any such purported lease,
sublease, concession or other agreement shall be absolutely void, and
ineffective ab initio and (b) shall comply with the applicable provisions
of this Article 12;
(vii) There shall not be more than three (3) subtenants
(including Landlord or its designee) of the Premises;
14
(viii) The proposed space has not been advertised for less than
the then current market rent per rentable square foot for the applicable
portion of the Premises as though such portion of the Premises were vacant,
and the rental and other terms and conditions of the sublease are the same
as those contained in the proposed sublease furnished to Landlord pursuant
to subsection B of this Article 12;
(ix) Within five (5) days after receipt of a xxxx therefor,
Tenant shall reimburse Landlord for the reasonable costs that may be
incurred by Landlord in connection with said assignment or sublease,
including, without limitation, the costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and reasonable legal
costs incurred by Landlord in connection with the granting of any requested
consent;
(x) Tenant shall not have advertised or publicized in any way the
availability of the Premises without prior notice to and approval by
Landlord, nor shall any advertisement state the name (as distinguished from
the address) of the Building or the proposed rental;
(xi) The proposed occupancy shall not, in Landlord's reasonable
opinion, materially increase the office cleaning requirements or the
Building's operating or other expenses or impose an extra burden upon
services to be supplied by Landlord to Tenant;
(xii) The proposed assignee or subtenant or its business shall
not be subject to compliance with requirements of law (including related
regulations) materially different than those requirements which are
applicable to the named Tenant herein or which would impose additional
requirements upon Landlord; and
(xiii) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts of
New York State.
Notwithstanding any subletting to any subtenant and/or acceptance of Rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Rent and additional rent due and to become
due hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting, no other and
further subletting of the Premises by Tenant or any person claiming through or
under Tenant shall or will be made except upon compliance with and subject to
the provisions of this Article 12. If Landlord shall decline to give its consent
to any proposed assignment or sublease, or if Landlord shall exercise its option
under subsection C of this Article 12, Tenant shall indemnify, defend and hold
harmless Landlord against and from any and all loss, liability, damages, costs,
and expenses (including reasonable counsel fees) resulting from any claims that
may be made against Landlord by the proposed assignee or subtenant or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
H. Future Requests. In the event that (i) Landlord fails to exercise
its option under subsection C of this Article 12 and consents to a proposed
assignment or sublease, and (ii) Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within one hundred twenty
(120) days after the giving of such consent, then, Tenant shall again comply
with all of the provisions and conditions of subsection B of this Article 12
before assigning this Lease or subletting all or part of the Premises.
15
I. Sublease Provisions. With respect to each and every sublease or
subletting authorized by Landlord under the provisions of this Lease, it is
further agreed that:
(i) No subletting shall be for a term ending later than one (1)
day prior to the Expiration Date of this Lease;
(ii) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, re-entry or
dispossession by Landlord under this Lease Landlord may, at its option,
take over all of the right, title and interest of Tenant, as sublessor,
under such sublease, and such subtenant shall, at Landlord's option, attorn
to Landlord pursuant to the then executory provisions of such sublease,
except that Landlord shall not (a) be liable for any previous act or
omission of Tenant under such sublease, (b) be subject to any counterclaim,
offset or defense, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, or (c) be bound by
any previous modification of such sublease or by any previous prepayment of
more than one (1) month's Rent. The provisions of this Article 12 shall be
self-operative and no further instrument shall be required to give effect
to this provision.
J. Profits from Assignment or Subletting. If Landlord shall give its
consent to any assignment of this Lease or to any sublease or if Tenant shall
enter into any other assignment or sublease permitted hereunder, Tenant shall in
consideration therefor, pay to Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to one hundred
(100%) percent of all sums and other considerations 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)
less all expenses reasonably and actually incurred by Tenant on account of
brokerage commissions, advertising costs and leasing costs in connection
with such assignment, provided that Tenant shall submit to Landlord a
receipt evidencing the payment of such expenses (or other proof of payment
as Landlord shall require); and
(ii) in the case of a sublease, all rents, additional charges or
other consideration payable under the sublease on a per square foot basis
to Tenant by the subtenant which is in excess of the Rent and additional
rent 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 thereof, the then
net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns), less all expenses reasonably and
actually incurred by Tenant on account of brokerage commissions,
advertising costs, leasing costs and the cost of demising the premises so
sublet in connection with such sublease, provided that Tenant shall submit
to Landlord a receipt evidencing the payment of such expenses (or other
proof of payment as Landlord shall require). The sums payable under this
subsection J(ii) of this Article 12 shall be paid to Landlord as and when
payable by the subtenant to Tenant.
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K. Other Transfers. (i) If Tenant is a corporation other than a
corporation whose stock is listed and traded on a nationally recognized stock
exchange (hereinafter referred to as a "public corporation"), the provisions of
subsection A of this Article 12 shall apply to a transfer (by one or more
transfers) of a majority of the stock of Tenant as if such transfer of a
majority of the stock of Tenant were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred, provided that in any of such events (a) the successor to
Tenant has a net worth computed in accordance with generally accepted accounting
principles at least equal to the net worth of Tenant herein named on the date of
this Lease and (b) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least ten (10) days prior to the effective date of
any such transaction.
(ii) If Tenant is a partnership, the provisions of subsection A
of this Article 12 shall apply to a transfer (by one or more transfers) of
a majority interest in the partnership, as if such transfer were an
assignment of this Lease.
(iii) If Tenant is a subdivision, authority, body, agency,
instrumentality or other entity created and/or controlled pursuant to the
laws of the State of New York or any city, town or village of such state or
of federal government ("Governmental Entity"), the provisions of subsection
A of this Article 12 shall apply to a transfer (or one or more transfers)
of any of Tenant's rights to use and occupy the Premises, to any other
Governmental Entity, as if such transfer of the right of use and occupancy
were an assignment of this Lease; but said provisions shall not apply to a
transfer of any of Tenant's rights in and to the Premises to any
Governmental Entity which shall replace or succeed to substantially similar
public functions, responsibilities and areas of authority as Tenant,
provided that in any of such events the successor Governmental Entity (a)
shall utilize the Premises in a manner substantially similar to Tenant, and
(b) shall not utilize the Premises in any manner which, in Landlord's
judgment, would impair the reputation of the Building as a first-class
office building.
L. Related Corporation. Tenant may, with Landlord's consent which
shall not be unreasonably withheld, permit any corporations or other business
entities (but not including Governmental Entities) which control, are controlled
by, or are under common control with Tenant (herein referred to as "related
corporation") to sublet all or part of the Premises for any of the purposes
permitted to Tenant, subject however to compliance with Tenant's obligations
under this Lease. Such subletting shall not be deemed to vest in any such
related corporation any right or interest in this Lease or the Premises nor
shall it relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than fifty percent (50%) of all of the voting stock of such
corporation or not less than fifty percent (50%) of all of the Legal and
equitable interest in any other business entities.
M. Assumption by Assignee. Any assignment or transfer, whether made
with Landlord's consent pursuant to subsection A of this Article 12 or without
Landlord's consent pursuant to subsection K of this Article 12, shall be made
only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in subsection A of this Article 12
shall, notwithstanding such assignment or transfer, continue to be binding upon
it in respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent and/or additional rent by Landlord from an assignee, transferee or any
other party, the original named Tenant shall remain fully liable for the payment
of the Rent and additional rent and for the other obligations of this Lease on
the part of Tenant to be performed or observed.
17
N. Liability of Tenant. The joint and several liability of Tenant and
any immediate or remote successor in interest of Tenant and the due performance
of the obligations of this Lease on Tenant's part to be performed or observed
shall not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time, or modifying any of the
obligations, of this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
O. Listings. The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such listing shall constitute a privilege
extended by Landlord, revocable at Landlord's will by notice to Tenant.
P. Intentionally Reserved.
Q. Re-entry by Landlord. If Landlord shall recover or come into
possession of the Premises before the date herein fixed for the termination of
this Lease, Landlord shall have the right, at its option, to take over any and
all subleases or sublettings of the Premises or any part thereof made by Tenant
and to succeed to all the rights of said subleases and sublettings or such of
them as it may elect to take over. Tenant hereby expressly assigns and transfers
to Landlord such of the subleases and sublettings as Landlord may elect to take
over at the time of such recovery of possession, such assignment and transfer
not to be effective until the termination of this Lease or re-entry by Landlord
hereunder or if Landlord shall otherwise succeed to Tenant's estate in the
Premises, at which time Tenant shall upon request of Landlord, execute,
acknowledge and deliver to Landlord such further instruments of assignment and
transfer as may be necessary to vest in Landlord the then existing subleases and
sublettings. Every subletting hereunder is subject to the condition and by its
acceptance of and entry into a sublease, each subtenant thereunder shall be
deemed conclusively to have thereby agreed from and after the termination of
this Lease or re-entry by Landlord hereunder of or if Landlord shall otherwise
succeed to Tenant's estate in the Premises, that such subtenant shall waive any
right to surrender possession or to terminate the sublease and, at Landlord's
election, such subtenant shall be bound to Landlord for the balance of the term
of such sublease and shall attorn to and recognize Landlord, as its landlord,
under all of the then executory terms of such sublease, except that Landlord
shall not (i) be liable for any previous act, omission or negligence of Tenant
under such sublease, (ii) be subject to any counterclaim, defense or offset not
expressly provided for in such sublease, which theretofore accrued to such
subtenant against Tenant, (iii) be bound by any previous modification or
amendment of such sublease unless Landlord consented to same in writing or by
any previous prepayment of more than one (1) month's Rent and additional rent
which shall be payable as provided in the sublease, (iv) be obligated to repair
the subleased space or the Building or any part thereof, in the event of total
or substantial total damage beyond such repair as can reasonably be accomplished
from the net proceeds of insurance actually made available to Landlord, (v) be
obligated to repair the subleased space or the Building or any part thereof, in
the event of partial condemnation beyond such repair as can reasonably be
accomplished from the net proceeds of any award actually made available to
Landlord as consequential damages allocable to the part of the subleased space
or the Building not taken or (vi) be obligated to perform any work in the
subleased space of the Building or to prepare them for occupancy beyond
Landlord's obligations under this Lease, and the subtenant shall execute and
deliver to Landlord any instruments Landlord may reasonably request to evidence
and confirm such attornment. Each subtenant or licensee of Tenant shall be
deemed automatically upon and as a condition of occupying or using the Premises
or any part thereof, to have given a waiver of the type described in and to the
extent and upon the conditions set forth in this Article 12.
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13. CONDITION OF THE PREMISES.
A. Acceptance by Tenant. Landlord agrees to perform, or to cause to be
performed, Landlord's Core Work described in and in accordance with Schedule B-1
annexed hereto in accordance with the terms, conditions and provisions thereof.
Tenant agrees to accept possession of the Premises in the condition which shall
exist on the Commencement Date "as is", except for Landlord's Core Work, and
further agrees that Landlord shall have no other obligation to perform any work
or make any installations in order to prepare the Premises for Tenant's
occupancy.
B. Tenant's Initial Alteration. Tenant agrees to perform, or to cause
contractors approved by Landlord to perform, Tenant's Initial Alteration
described in Schedule B-2 annexed hereto in accordance with the terms,
conditions and provisions thereof, and in accordance with all other terms,
conditions and provisions contained in this Lease, including, without
limitation, Schedules C and D annexed hereto. All of the terms, covenants and
conditions of Schedules C and D are incorporated in this Lease as if fully set
forth at length herein.
14. ACCESS TO PREMISES. Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use and maintain, concealed
ducts, pipes and conduits in and through the Premises. Landlord or Landlord's
agents shall have the right to enter the Premises at all reasonable times upon
reasonable prior notice except in case of emergency to (i) examine the same,
(ii) to show them to prospective purchasers, mortgagees or lessees of the
Building or space therein, (iii) to make such repairs, alterations, improvements
or additions as Landlord may deem necessary or desirable to the Premises or to
any other portion of the Building or which Landlord may elect to perform
following Tenant's failure to make repairs or perform any work which Tenant is
obligated to perform under this Lease upon ten (10) days prior written notice,
or (iv) for the purpose of complying with laws, regulations or other
requirements of government authorities. Landlord shall be allowed to take all
necessary material and equipment into and upon the Premises and to store them
within the Premises without the same constituting an eviction or constructive
eviction of Tenant in whole or in part and the Rent shall in nowise xxxxx while
any decorations, repairs, alterations, improvements or additions are being made,
by reason of loss or interruption of business of Tenant, or otherwise. During
the one (1) year prior to the Expiration Date or the expiration of any renewal
or extended term, Landlord may exhibit the Premises to prospective tenants
thereof. If Tenant shall not be personally present to open and permit an entry
into the Premises, at any time, when for any reason an entry therein shall be
necessary or permissible subject to the terms and conditions of this Lease,
Landlord or Landlord's agents may enter the same by a master key, or may, in an
emergency, 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. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair of
the Building or any part thereof, other than as herein provided. Landlord also
shall have the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known so long as Tenant continues to have access to the Premises. In
addition, Tenant understands and agrees that Landlord may perform substantial
renovation work in and to the public parts of the Building and the mechanical
and other systems serving the Building (which work may include the replacement
of the Building exterior facade and window glass, requiring access to the same
from within the Premises), and that Landlord shall incur no liability to Tenant,
nor shall Tenant be entitled to any abatement of Rent on account of any noise,
vibration or other disturbance to Tenant's business at the Premises (provided
that Tenant is not denied access to said Premises) which shall arise out of the
performance by Landlord of the aforesaid renovations of the Building. Tenant
understands and
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agrees that all parts (except surfaces facing the interior of the Premises) of
all walls, windows and doors bounding the Premises (including exterior Building
walls, core corridor walls, doors and entrances), all balconies, terraces and
roofs adjacent to the Premises, all space in or adjacent to the Premises used
for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms,
heating, air cooling, plumbing and other mechanical facilities, service closets
and other Building facilities are not part of the Premises, and Landlord shall
have the use thereof, as well as access thereto through the Premises for the
purposes of operation, maintenance, alteration and repair. Landlord shall, in
the exercise of its rights under this Article 14, use commercially reasonable
efforts to minimize disturbance to Tenant's use and occupancy of the Premises.
15. CERTIFICATE OF OCCUPANCY. Tenant shall not at any time use or occupy,
the Premises in violation of the certificate of occupancy issued for the
Premises or for the Building and in the event that any department of the City or
State of New York shall hereafter at any time contend and/or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of such certificate of occupancy whether or
not such use shall be a Permitted Use, Tenant shall, upon five (5) days written
notice from Landlord, immediately discontinue such use of the Premises. Failure
by Tenant to discontinue such use after such notice shall be considered a
default in the fulfillment of a covenant of this Lease and Landlord shall have
the right to terminate this Lease immediately, and in addition thereto shall
have the right to exercise any and all rights and privileges and remedies given
to Landlord by and pursuant to the provisions of Articles 17 and 18 hereof.
16. LANDLORD'S LIABILITY. The obligations of Landlord under this Lease
shall not be binding upon Landlord named herein after the sale, conveyance,
assignment or transfer by such Landlord (or upon any subsequent landlord after
the sale, conveyance, assignment or transfer by such subsequent landlord) of its
interest in the Building or the Real Property, as the case may be, and in the
event of any such sale, conveyance, assignment or transfer, Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, grantee, assignee or other transferee that such
purchaser, grantee, assignee or other transferee has assumed and agreed to carry
out any and all covenants and obligations of Landlord hereunder. Neither the
shareholders, directors or officers of Landlord, if Landlord is a corporation,
nor the partners comprising Landlord (nor any of the shareholders, directors or
officers of such partners), if Landlord is a partnership (collectively, the
"Parties"), shall be liable for the performance of Landlord's obligations under
this Lease provided the same are assumed by such transferee or assignee. Tenant
shall look solely to Landlord to enforce Landlord's obligations hereunder and
shall not seek any damages against any of the Parties. The liability of Landlord
for Landlord's obligations under this Lease shall not exceed and shall be
limited to Landlord's interest in the Building and the Real Property and Tenant
shall not look to or attach any other property or assets of Landlord or the
property or assets of any of the Parties in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations.
17. DEFAULT.
A. Events of Default; Conditions of Limitation. This Lease and the
term and estate hereby granted are subject to the limitations that upon the
occurrence, at any time prior to or during the Term, of any one or more of the
following events (referred to as "Events of Default"):
(i) if Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and
such default shall continue for a period of five (5) days after notice by
Landlord to Tenant of such default; or
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(ii) if Tenant shall default in the observance or performance of
any term, covenant or condition of this Lease on Tenant's part to be
observed or performed (other than the covenants for the payment of Rent and
additional rent) and Tenant shall fail to remedy such default within
twenty-five (25) days after notice by Landlord to Tenant of such default,
or if such default is of such a nature that it cannot be completely
remedied within said period of twenty-five (25) days and Tenant shall not
commence within said period of twenty-five (25) days, or shall not
thereafter diligently prosecute to completion all steps necessary to remedy
such default; or
(iii) if Tenant shall default in the observance or performance of
any term, covenant or condition on Tenant's part to be observed or
performed under any other lease with Landlord or Landlord's predecessor in
interest of space in the Building and such default shall continue beyond
any grace period set forth in such other lease for the remedying of such
default; or
(iv) if the Premises shall become deserted or abandoned for
longer than one (1) year; or
(v) if Tenant's interest in this Lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, except as may be
expressly permitted under Article 12 hereof; or
(vi) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or shall make an
assignment for the benefit of creditors or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's property and the same is not
discontinued within thirty (30) days; or
(vii) if, within thirty (30) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or
otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, such proceeding shall
not have been dismissed, or if, within ninety (90) days after the
appointment of any trustee, receiver or liquidator of Tenant, or of all or
any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise
discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property pursuant to which the Premises shall be
taken or occupied or attempted to be taken or occupied;
then, in any of said cases, at any time prior to or during the Term, of any
one or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a seven (7) days notice of termination of
this Lease and, in the event such notice is given, this Lease and the Term shall
come to an end and expire (whether or not the Term shall have commenced) upon
the expiration of said seven (7) days with the same effect as if the date of
expiration of said seven (7) days were the Expiration Date, but Tenant shall
remain liable for damages as provided in Article 18 hereof.
B. Effect of Bankruptcy. If, at any time (i) Tenant shall be comprised
of two (2) or more persons, or (ii) Tenant's obligations under this Lease shall
have been guaranteed by any person other than Tenant, or (iii) Tenant's interest
in this Lease shall have been assigned, the word "Tenant", as
21
used in clauses (vi) and (vii) of subsection A of this Article 17, shall be
deemed to mean any one or more of the persons primarily or secondarily liable
for Tenant's obligations under this Lease. Any monies received by Landlord from
or on behalf of Tenant during the pendency of any proceeding of the types
referred to in said clauses (vi) and (vii) shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of rent or a waiver
on the part of Landlord of any rights under said subsection A.
C. Conditional Limitation. Nothing contained in this Article 17 shall
be deemed to require Landlord to give the notices herein provided for prior to
the commencement of a summary proceeding for non-payment of rent or a plenary
action for recovery of rent on account of any default in the payment of the
same, it being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such termination, Tenant
shall do so as a holdover tenant.
18. REMEDIES AND DAMAGES.
A. Landlord's Remedies. (i) If Tenant shall default in the payment
when due of any installment of Rent or in the payment when due of any additional
rent beyond applicable notice and cure periods, or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the Premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant, or if Tenant shall fail to move into or take
possession of the Premises within fifteen (15) days after the Commencement Date,
or if this Lease and the Term shall expire and come to an end as provided in
Article 17:
(a) Landlord and its agents and servants may immediately, or
at any time after such Event of Default or after the date upon which
this Lease and the Term shall expire and come to an end, re-enter the
Premises or any part thereof, either by summary proceedings, or by any
other applicable action or proceeding, (without being liable for
indictment, prosecution or damages therefor), and may repossess the
Premises and dispossess Tenant and any other persons from the Premises
and remove any and all of their property and effects from the
Premises; and
(b) Landlord, at Landlord's option, may relet the whole or
any part or parts of the Premises from time to time, either in the
name of Landlord or otherwise, to such tenant or tenants, for such
term or terms ending before, on or after the Expiration Date, at such
rental or rentals and upon such other conditions, which may include
concessions and free rent periods, as Landlord, in its sole
discretion, may determine. Landlord shall have no obligation to relet
the Premises or any part thereof and shall in no event be liable for
refusal or failure to relet the Premises or any part thereof, or, in
the event of any such reletting, for refusal or failure to collect any
rent due upon any such reletting, and no such refusal or failure shall
operate to relieve Tenant of any liability under this Lease or
otherwise to affect any such liability; Landlord, at Landlord's
option, may make such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
(ii) Tenant hereby waives the service of any notice of intention
to reenter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law. Tenant,
on its own behalf and on behalf of all persons claiming through or
22
under Tenant, including all creditors, does further hereby waive any and
all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the Premises, or to re-enter or repossess
the Premises, or to restore the operation of this Lease, after (a) Tenant
shall have been dispossessed by a judgment or by warrant of any court or
judge, or (b) any re-entry by Landlord, or (c) any expiration or
termination of this Lease and the Term, whether such dispossess, re-entry,
expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words "re-enter", "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their
technical legal meanings. In the event of a breach or threatened breach by
Tenant, or any persons claiming through or under Tenant of any term,
covenant or condition of this Lease on Tenant's part to be observed or
performed, Landlord shall have the right to enjoin such breach and the
right to invoke any other remedy allowed by law or in equity as if
re-entry, summary proceedings and other special remedies were not provided
in this Lease for such breach. The right to invoke the remedies
hereinbefore set forth are cumulative and shall not preclude Landlord from
invoking any other remedy allowed at law or in equity.
B. Damages. (i) If this Lease and the Term shall expire and come to an
end as provided in Article 17, or by or under any summary proceeding or
any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in subsection A of this Article 18, or by or under any summary
proceeding or any other action or proceeding, then, in any of said events:
(a) Tenant shall pay to Landlord all Rent, additional rent
and other charges payable under this Lease by Tenant to Landlord to
the date upon which this Lease and the Term shall have expired and
come to an end or to the date of re-entry upon the Premises by
Landlord, as the case may be;
(b) Tenant also shall be liable for and shall pay to
Landlord, as damages, any deficiency (referred to as "Deficiency")
between the Rent reserved in this Lease for the period which otherwise
would have constituted the unexpired portion of the Term and the net
amount, if any, of rents collected under any reletting effected
pursuant to the provisions of subsection A(i) of this Article 18 for
any part of such period (first deducting from the rents collected
under any such reletting all of Landlord's expenses in connection with
the termination of this Lease, or Landlord's reentry upon the Premises
and with such reletting including, but not limited to, all reasonable
repossession costs, brokerage commissions, legal expenses, attorneys'
fees and disbursements, alteration costs and other expenses of
preparing the Premises for such reletting); any such Deficiency shall
be paid in monthly installments by Tenant on the days specified in
this Lease for payment of installments of Rent, Landlord shall be
entitled to recover from Tenant each monthly Deficiency as the same
shall arise, and no suit to collect the amount of the Deficiency for
any month shall prejudice Landlord's right to collect the Deficiency
for any subsequent month by a similar proceeding; and
(c) whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiencies as and for liquidated and agreed final damages, a
sum equal to the amount by which the Rent reserved in this Lease for
the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental value
of the Premises for the same period, less the aggregate amount of
Deficiencies theretofore collected by Landlord pursuant to the
provisions of subsection B(1)(b) of this Article 18 for the same
period; if, before presentation of proof of such liquidated damages to
any court, commission or
23
tribunal, the Premises, or any part thereof, shall have been relet by
Landlord for the period which otherwise would have constituted the
unexpired portion of the Term, or any part thereof, the amount of rent
reserved upon such reletting shall be deemed, prima facie, to be the
fair and reasonable rental value for the part or the whole of the
Premises so relet during the term of the reletting.
(ii) If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
equitably apportioned for the purposes of this subsection B. Tenant shall
in no event be entitled to any rents collected or payable under any
reletting, whether or not such rents shall exceed the Rent reserved in this
Lease. Solely for the purposes of this Article, the term "Rent" as used in
subsection B(i) of this Article 18 shall mean the Rent in effect
immediately prior to the date upon which this Lease and the Term shall have
expired and come to an end, or the date of re-entry upon the Premises by
Landlord, as the case may be, adjusted to reflect any increase or decrease
pursuant to the provisions of Article 28 hereof for the Comparison Year (as
defined in said Article 28) immediately preceding such event. Nothing
contained in Article 17 or this Article 18 shall be deemed to limit or
preclude the recovery by Landlord from Tenant of the maximum amount allowed
to be obtained as damages by any statute or rule of law, or of any sums or
damages to which Landlord may be entitled in addition to the damages set
forth in subsection B(i) of this Article 18.
C. Legal Fees. (i) Tenant hereby agrees to pay, as additional rent,
all reasonable attorneys' fees and disbursements (and all other court costs or
expenses of legal proceedings) which Landlord may incur or pay out by reason of,
or in connection with:
(a) any action or proceeding by Landlord to terminate this
Lease;
(b) any other action or proceeding by Landlord against
Tenant (including, but not limited to, any arbitration proceeding);
(c) any default by Tenant in the observance or performance
of any obligation under this Lease (including, but not limited to,
matters involving payment of rent and additional rent, computation of
escalations, alterations or other Tenant's work and subletting or
assignment), in the event Landlord commences any action or proceeding
against Tenant; and
(d) any action or proceeding brought by Tenant against
Landlord (or any officer, partner or employee of Landlord) in which
Tenant fails to secure a final unappealable judgment against Landlord.
(ii) Tenant's obligations under this subsection C of Article 18
shall survive, the expiration of the Term hereof or any earlier termination
of this Lease. This provision is intended to supplement (and not to limit)
other provisions of this Lease pertaining to indemnities and/or reasonable
attorneys' fees and shall not be duplicative of any other provisions
hereof.
(iii) Landlord hereby agrees to be liable to Tenant for all
attorneys' fees and disbursements (and all other court costs or expenses of
legal proceedings) which Tenant may incur or pay out by reason of or in
connection with any action or proceeding by Tenant against Landlord
(including, but not limited to, any arbitration proceeding) in which Tenant
prevails.
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19. FEES AND EXPENSES.
A. Curing Tenant's Defaults. 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 beyond the expiration of applicable, notice and cure periods,
Landlord may immediately or at any time thereafter on ten (10) days notice
perform the same for the account of Tenant, and if Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith including, but not limited to, reasonable attorneys' fees and
disbursements in instituting, prosecuting or defending any action or proceeding,
such sums paid or obligations incurred with interest and costs from and after
the date Tenant receives the aforesaid notice shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Landlord within fifteen (15) days
of rendition of any xxxx or statement to Tenant therefor.
B. Late Charges. If Tenant shall fail to make payment of any
installment of Rent or any additional rent within ten (10) days after the date
when such payment is due, Tenant shall pay to Landlord, in addition to such
installment of Rent or such additional rent, as the case may be, as a late
charge and as additional rent, a sum based on a rate equal to the lesser of (i)
four percent (4%) per annum above the then current prime rate charged by
Citibank, N.A. or its successor and (ii) the maximum rate permitted by
applicable law, of the amount unpaid computed from the date such payment was due
to and including the date of payment, but in no event shall interest be computed
and payable for less than a full calendar month. Tenant acknowledges and agrees
that, except as otherwise expressly provided herein, if Tenant fails to dispute
any item of additional rent within sixty (60) days of receipt of a xxxx or
notice therefor, Tenant shall be deemed to have waived its right to dispute the
same.
20. NO REPRESENTATIONS BY LANDLORD. Landlord or Landlord's agents have made
no representations or promises with respect to the Building, the Real Property,
the Premises or Taxes (as defined in Article 28 hereof) except as herein
expressly set forth and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth herein. All references
in this Lease to the consent or approval of Landlord shall be deemed to mean the
written consent of Landlord or the written approval of Landlord and no consent
or appraisal of Landlord shall be effective for any purpose unless such consent
or approval is set forth in a written instrument executed by Landlord.
21. END OF TERM.
A. Surrender of Premises. Upon the expiration or other termination of
the Term, Tenant shall quit and surrender to Landlord the Premises, broom clean,
in good order and condition, ordinary wear and tear and damage for which Tenant
is not responsible under the terms of this Lease excepted, and Tenant shall
remove all of its property pursuant to Article 3 hereof. Tenant's obligation to
observe or perform this covenant shall survive the expiration or sooner
termination of the Term. If the last day of the Term or any renewal thereof
falls on Saturday or Sunday this Lease shall expire on the business day
immediately preceding. In addition, the parties recognize and agree that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be substantial, will exceed the
amount of the monthly installments of the Rent theretofore payable hereunder,
and will be impossible to accurately measure. Tenant therefore agrees that if
possession of the Premises is not surrendered to Landlord within twenty-four
(24) hours after the Expiration Date or sooner termination of the Term, in
addition, to any other rights or remedies Landlord may have hereunder or at law,
Tenant shall pay to Landlord for each month and for each portion of any month
during which Tenant holds over in the Premises after the Expiration Date or
sooner termination of this Lease, a sum equal to two (2) times the aggregate of
that portion of the Rent and the additional rent which was payable under this
Lease during the last month of the Term. Nothing herein contained shall be
deemed to permit Tenant to retain possession of the Premises without Landlord's
consent, which may be withheld in Landlord's
25
sole discretion, after the Expiration Date or sooner termination of this Lease
and no acceptance by Landlord of payments from Tenant after the Expiration Date
or sooner termination of the Term shall be deemed to be other than on account of
the amount to be paid by Tenant in accordance with the provisions of this
Article 21, which provisions shall survive the Expiration Date or sooner
termination of this Lease.
B. Holdover by Tenant. If Tenant shall hold-over or remain in
possession of any portion of the Premises beyond the Expiration Date of this
Lease, notwithstanding the acceptance of any Rent and additional rent paid by
Tenant pursuant to subsection A above, Tenant shall be subject not only to
summary proceeding and all damages related thereto, but also to any direct
damages arising out of lost opportunities (and/or new leases) by Landlord to
re-let the Premises (or any part thereof). All damages to Landlord by reason of
such holding over by Tenant may be the subject of a separate action and need not
be asserted by Landlord in any summary proceedings against Tenant.
22. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon
Tenant paying the Rent and additional rent and observing and performing all the
terms, covenants and conditions, on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Premises subject, nevertheless, to
the terms and conditions of this Lease including, but not limited to, Article 16
hereof and to all Superior Leases and Mortgages.
23. FAILURE TO GIVE POSSESSION. Tenant waives any right to rescind this
Lease under Section 223-a of the New York Real Property Law or any successor
statute of similar import then in force and further waives the right to recover
any damages which may result from Landlord's failure to deliver possession of
the Premises on the date set forth in Article 1 hereof for the commencement of
the Term. If Landlord shall be unable to give possession of the Premises on such
date, and provided Tenant is not responsible for such inability to give
possession, the Rent reserved and covenanted to be paid herein shall not
commence until the possession of the Premises is given or the Premises are
available for occupancy by Tenant, and no such failure to give possession on
such date shall in any way affect the validity of this Lease or the obligations
of Tenant hereunder or give rise to any claim for damages by Tenant or claim for
rescission of this Lease, nor shall same be construed in anyway to extend the
Term. If permission is given to Tenant to enter into the possession of the
Premises or to occupy premises other than the Premises prior to the Commencement
Date, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease, except
the covenant to pay Rent.
24. NO WAIVER. If there be any agreement between Landlord and Tenant
providing for the cancellation of this Lease upon certain provisions or
contingencies and/or an agreement for the renewal hereof at the expiration of
the Term, the right to such renewal or the execution of a renewal agreement
between Landlord and Tenant prior to the expiration of the Term shall not be
considered an extension thereof or a vested right in Tenant to such further
term, so as to prevent Landlord from canceling this Lease and any such extension
thereof during the remainder of the original Term; such privilege, if and when
so exercised by Landlord, shall cancel and terminate this Lease and any such
renewal or extension previously entered into between Landlord and Tenant or the
right of Tenant to any such renewal or extension; any right herein contained on
the part of Landlord to cancel this Lease shall continue during any extension or
renewal hereof; any option on the part of Tenant herein contained for an
extension or renewal hereof shall not be deemed to give Tenant any option for a
further extension beyond the first renewal or extended term. No act or thing
done, by Landlord or Landlord's agents during the Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys of
the Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as a termination
of this Lease or a surrender of the Premises. In the event Tenant at any time
desires to have Landlord sublet
26
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, and Tenant hereby relieves Landlord of any
liability for loss of or damage to any of Tenant's effects in connection with
such subletting. The failure of Landlord 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 force and effect of an original
violation. 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, 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. No provision of this Lease
shall be deemed to have been waived by Landlord or Tenant unless such waiver be
in writing signed by Landlord or Tenant, as the case may be. 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 account of the earliest
stipulated Rent, or as Landlord may elect to apply same, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as 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. This
Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged in this Lease. 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.
25. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other 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 Premises, and/or any claim of injury or damage,
or for the enforcement of any remedy under any statute, emergency or otherwise.
It is further mutually agreed that in the event Landlord commences any summary
proceeding (whether for nonpayment of rent or because Tenant continues in
possession of the Premises after the expiration or termination of the Term),
Tenant will not interpose any counterclaim (except for mandatory or compulsory
counterclaims) of whatever nature or description in any such proceeding.
Notwithstanding the foregoing, Tenant shall not be prevented from bringing a
separate action with respect to any claim hereunder.
26. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay
Rent and additional rent hereunder and perform all of the other covenants and
agreements hereunder on the part of Tenant to be performed shall in nowise be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease expressly or impliedly to be performed by Landlord
or because Landlord is unable to make, or is delayed in making any repairs,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or by accident or
by any cause whatsoever reasonably beyond Landlord's control, including, but not
limited to, laws, governmental preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any federal, state,
county or municipal authority or any department or subdivision thereof or any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency (collectively, "Unavoidable
Delays"). Landlord shall, subject to the terms of this Lease, fulfill its
obligations with commercially reasonable due diligence as soon as such
Unavoidable Delays cease to exist.
27
27. BILLS AND NOTICES. Except as otherwise expressly provided in this
Lease, any bills, statements, notices, demands, requests or other communications
given or required to be given under this Lease shall be deemed sufficiently
given or rendered if in writing, sent by registered or certified mail (return
receipt requested) or overnight courier addressed (i) to Tenant (a) at Tenant's
address set forth in this Lease if mailed prior to Tenant's taking possession of
the Premises, or (b) at the Building if mailed subsequent to Tenant's taking
possession of the Premises, or (c) at any place where Tenant or any agent or
employee of Tenant may be found if mailed subsequent to Tenant's vacating,
deserting, abandoning or surrendering the Premises, in any case, with a courtesy
copy to Tenant's attorneys, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, III, Esq., or (ii)
to Landlord at Landlord's address set forth in this Lease with a courtesy copy
to Landlord's attorneys, Solomon and Xxxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxx, Esq., or (iii) to such other address
as either Landlord or Tenant may designate as its new address for such purpose
by notice given to the others in accordance with the provisions of this Article
27. Tenant hereby acknowledges and agrees that any such xxxx, statement, demand,
notice, request or other communication may be given by Landlord's agent on
behalf of Landlord. Any such xxxx, statement, demand, notice, request or other
communication shall be deemed to have been rendered or given on the date when it
shall have been mailed as provided in this Article 27. Notwithstanding anything
contained in this Article 27 to the contrary, bills and statements issued by
Landlord may be sent by the method(s) set forth hereinabove, without copies to
any other party. This notice provision has been specifically negotiated between
the parties hereto.
28. ESCALATION
A. Defined Terms. In a determination of any increase in the Rent under
the Provisions of this Article 28, Landlord and Tenant agree as follows:
(i) "Taxes" shall mean the aggregate amount of real estate taxes
and any special assessments (exclusive of penalties and interest thereon)
imposed upon Real Property (including, without limitation, (a) assessments
made upon or with respect to any "air rights", (b) assessments made in
connection with the Downtown Business Improvement District and (c) any
assessments levied after the date of this Lease for public benefits to the
Real Property or the Building (excluding an amount equal to the assessments
payable in whole or in part during or for the Base Tax Year (as defined in
Article 1 of this Lease)), which assessments, if payable in installments,
shall be deemed payable in the maximum number of permissible installments
(in the manner in which such taxes and assessments are imposed as of the
date hereof); provided, that if because of any change in the taxation of
real estate, any other tax or assessment (including, without limitation,
any occupancy, gross receipts, or rental income, franchise, transit or
other tax) is imposed upon Landlord or the owner of the Real Property or
the Building or the occupancy, rents or income therefrom, in substitution
or in addition to, any of the foregoing Taxes, such other tax or assessment
shall be deemed part of the Taxes. With respect to any Comparison Year
(hereinafter defined) all expenses, including reasonable attorneys' fees
and disbursements, experts' and other witnesses' fees, incurred in
contesting the validity or amount of any Taxes or in obtaining a refund of
Taxes shall be considered as part of the Taxes for such year. Anything
contained herein to the contrary notwithstanding, Taxes shall not be deemed
to include (w) any taxes on Landlord's income, (x) franchise taxes, (y)
estate or inheritance taxes or (z) any similar taxes imposed on Landlord.
(ii) "Assessed Valuation" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the New York
City Charter and of the Administrative Code of the City of New York for the
purpose of imposition of Taxes.
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(iii) "Tax Year" shall mean the period July 1 through June 30 (or
such other period as hereinafter may be duly adopted by the City of New
York as it fiscal year for real estate tax programs) any portion of which
occurs during the Term.
(iv) "Base Taxes" shall mean the Taxes payable for the Base Tax
Year.
(v) "Comparison Year" shall mean (a) with respect to Taxes, any
Tax Year, subsequent to the Base Tax Year, and (b) with respect to
Operating Expenses (hereinafter defined) any calendar year subsequent to
the Base Expense Year (hereinafter defined), for any part or all of which
there is an increase in the Rent pursuant to subsection B of this Article
28.
(vi) (a) "Operating Expenses" shall mean the aggregate of those
costs and expenses (and taxes, if any, thereof) paid or incurred by or
on behalf of Landlord (whether directly or through independent
contractors) in respect of the operation, maintenance and management
of the land and/or the Building and the sidewalks and areas adjacent
thereto (hereinafter called "Operation of the Property") which, in
accordance with the accounting practices used by Landlord (and which
is in accordance with sound management principles respecting the
operation of non-institutional first class office buildings in New
York City) are properly chargeable to the Operation of the Property
together with and including (without limitation) the financial
expenses incurred in connection with the Operation of the Property
such as increases in ground rent, if any, insurance premiums,
reasonable attorneys' fees and disbursements (exclusive of any such
fees and disbursements incurred in applying for any abatement of
Taxes) and auditing the other professional fees and expenses, but
specifically excluding (1) Taxes, (2) franchise, transfer gains,
estate or income taxes imposed upon Landlord, (3) mortgage interest
and amortization, (4) leasing and brokerage commissions and similar
fees, (5) the cost of tenant installations and decorations incurred in
connection with preparing space for a new tenant and any other
contribution by Landlord to the cost of other tenant's improvements,
(6) ground rent, if any, other than increases therein, (7) capital
improvements (including, without limitation, any capital improvement
required by a change in laws), except, however, that (A) if any
capital improvement results in reducing Operating Expenses (as, for
example, a labor-saving improvement), then with respect to the
Comparison Year in which the improvement is made and each subsequent
Comparison Year during the Term the amount by which the Operating
Expenses have been reduced shall be deemed deducted from the Base
Operating Expenses (hereinafter defined) and (B) if Landlord is not
furnishing any particular work or service (the cost of which if
performed by Landlord would constitute an Operating Expense) to a
tenant who has undertaken to perform such work or service in lieu of
the performance thereof by Landlord, Operating Expenses shall be
determined to be increased by an amount equal to the additional
Operating Expenses which reasonably would have been incurred during
such period by Landlord if it had at its own expense furnished such
work or services to such tenant, (8) refinancing fees and any interest
payments or late penalties, (9) depreciation and amortization of any
building and equipment (except as set forth herein), (10) operating
expenses of any associated garage or retail space, (11) charitable
contributions, (12) costs for sculptures, paintings and other objects
of art located within or outside of the Building, (13) off-site
management and overhead, (14) all amounts paid to subsidiaries or
affiliates of the Landlord for services on or to the building that are
in excess of competitive costs for such services, (15) any payments
under a ground lease or a master lease relating to the Premises, if
any, (16) special services performed by Landlord for individual
tenants, (17) costs which are covered by and reimbursed under any
contractor, manufacturer or supplier warranty or service contract,
(18) the cost of any judgment, settlement, or
29
arbitration award resulting from any liability of Landlord, (19) the
cost arising from any commercial concession operated by Landlord,
including any compensation paid to clerks, attendants or other persons
in such concessions, (20) the cost relating to any management office
for the Building including rent, or for any other management office in
the Building (except for the salaries of Building employees), (21) any
costs, fees, dues contributions or similar expenses for industry
associations or similar organizations in which the Building is a
member, (22) the entertainment expenses and travel expense of
Landlord, its employees, agents partners and affiliates, (23) any
costs for which Landlord has been reimbursed or receives a credit
refund or discount, (24) lease takeover costs and costs incurred by
Landlord in connection with enforcement of other leases or subleases
in the Building and legal fees incurred in connection with any
negotiation of any space lease in the Building, (25) the cost of
providing any service customarily provided by a managing agent and the
cost of which is customarily included in management fees (i.e.,
bookkeeping and accounting costs), (26) the cost of any separate
electrical meter cost or any survey Landlord may provide to any of the
tenants in the Building, (27) costs relating to withdrawal liability
or unfunded pension liability under the Multi-Employer Pension Plan
Act or similar law, (28) any expense for which Landlord is otherwise
compensated through the proceeds of insurance or is otherwise
compensated by any tenant of the Building for services in excess of
the services Landlord is obligated to furnish to Tenant hereunder, and
(29) advertising and promotional expenditures.
(b) In determining the amount of Operating Expenses for the
Base Year or any Comparison Year, if less than ninety-five percent
(95%) of the Building rentable area shall have been occupied by
tenant(s) at any time during any such Base Year or Comparison Year,
Operating Expenses shall be determined for such Base Year or
Comparison Year to be an amount equal to the like expenses which would
normally be expected to be incurred had such occupancy been
ninety-five percent (95%) throughout such Base Year or Comparison
Year.
(c) If any capital improvement is made during the Base Year
or any Comparison Year, then the useful life amortization, with
interest, of the cost of such improvements shall be deemed an
Operating Expense in each of the Comparison Years during which such
amortization occurs.
(vii) "Base Operating Expenses" shall mean the Operating Expenses
for the Base Expense Year.
(viii) "Landlord's Statement" shall mean an instrument or
instruments containing a comparison of any increase or decrease in the Rent
for the preceding Comparison Year pursuant to the provisions of this
Article 28.
(ix) "Base Expense Year" shall be deemed to mean the 1999
calendar year.
B. Escalation. (i) If the Taxes payable for any Comparison Year
(any part or all of which falls within the Term) shall represent an increase
above the Base Taxes, then the Rent for such Comparison Year and continuing
thereafter until a new Landlord's Statement is rendered to Tenant, shall be
increased by Tenant's Proportionate Share of such increase. The Taxes shall be
initially computed on the basis of the Assessed Valuation in effect at the time
Landlord's Statement is rendered (as the Taxes may have been settled or finally
adjudicated prior to such time) regardless of any then pending application,
proceeding or appeal respecting the reduction of any such Assessed Valuation but
shall be subject to subsequent adjustment as provided in subsection D(i) of this
Article 28.
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(ii) If the Operating Expenses for any Comparison Year (any part
or all of which falls within the Term) shall be greater than the Base
Operating Expenses, then the Rent for such Comparison Year and continuing
thereafter until a new Landlord's Statement is rendered to Tenant, shall be
increased by Tenant's Proportionate Share of such increase.
C. Payment of Escalations. (i) At any time during or after any
Comparison Year Landlord shall render to Tenant, either in accordance with the
provisions of Article 27 hereof or by personal delivery at the Premises, a
Landlord's Statement or Statements showing separately or together (a) a
comparison of the Taxes payable for the Comparison Year with the Base Taxes, (b)
a comparison of the Operating Expenses for the Comparison year with the Base
Operating Expenses, and (c) the amount of the increase in the Rent resulting
from each of such comparisons. Landlord's failure to render a Landlord's
Statement during or with respect to any Comparison Year shall not prejudice
Landlord's right to render a Landlord's Statement during or with respect to any
subsequent Comparison Year, and shall not eliminate or reduce Tenant's
obligation to pay increases in the Rent pursuant to this Article 28 for such
Comparison Year.
(ii) (a) Tenant's obligations with respect to increases in
Operating Expenses and Taxes, shall be payable by Tenant on the first
day of the month following the furnishing to Tenant of a Landlord's
Statement with respect to Operating Expenses and/or Taxes, as
applicable, in an amount equal to one-twelfth (1/12th) of such
increase in the Rent multiplied by the number of months (and any
fraction thereof) of the Term then elapsed since the commencement of
the Comparison Year for which the increase in Operating Expenses
and/or Taxes, as the case may be, is applicable, together with a sum
equal to one-twelfth (1/12th) of such increase with respect to the
month, following the furnishing to Tenant of a Landlord's Statement;
and thereafter, commencing with the next succeeding monthly
installment of Rent and continuing monthly thereafter until rendition
of the next succeeding Landlord's Statement, the monthly installments
of Rent shall be increased by an amount equal to one-twelfth (1/12th)
of such increase in Operating Expenses and/or Taxes, as the case may
be. Any increase in the Rent shall be collectible by Landlord in the
same manner as Rent.
(b) If during the Term of this Lease, Taxes are required to
be paid (either to the appropriate taxing authorities or as to tax
escrow payments to a mortgagee or ground lessor) in full or in
monthly, quarterly, or other installments, on any other date or dates
than as presently required, then, at Landlord's option, Tenant's
Proportionate Share with respect to Taxes shall be correspondingly
accelerated or revised so that Tenant's Proportionate Share is due at
least thirty (30) days prior to the date payments are due to the
taxing authorities or the superior mortgagee or ground lessor, as the
case may be.
(c) Following each Landlord's Statement, a reconciliation
shall be made as follows: Tenant shall be debited with any increase in
the Rent shown on such Landlord's Statement and credited with the
aggregate, if any, paid by Tenant on account in accordance with the
provisions of subsection C(ii)(a) for the Comparison Year in question;
Tenant shall pay any net debit balance to Landlord within twenty (20)
days next following rendition by Landlord, either in accordance with
the provisions of Article 27 hereof or by personal delivery to the
Premises, of an invoice for such net debit balance; any net credit
balance shall be applied against the next accruing monthly installment
of Rent.
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(iii) (a) As used in this subsection C(iii), the words "Tentative
Monthly Expense Charge" shall mean a sum equal to one-twelfth (1/12th)
of Tenant's Proportionate Share multiplied by the difference between
(i) the Base Operating Expenses and (ii) one hundred and six percent
(106%) of the Operating expenses for (1) the Base Expense Year with
respect to the first Comparison Year during the Term or (2) the
immediately preceding Comparison Year with respect to the second
Comparison Year and each Comparison Year thereafter during the Term.
(b) At any time in any Comparison Year (any part or all of
which falls within the term), Landlord, at its option, in lieu of the
payments required under subsection C(ii)(a) of this Article 28 with
respect to Operating Expenses only, may demand and collect from
Tenant, as additional rent, a sum equal to the Tentative Monthly
Expense Charge multiplied by the number of months in said Comparison
Year preceding the demand, and thereafter; commencing with the month
in which the demand is made and continuing thereafter for each month
remaining in said Year, the monthly installments of Rent shall be
deemed increased by the Tentative Monthly Expense Charge. Any amount
due to Landlord under this subsection C(iii)(b) or subsection
C(iii)(a) above may be included by Landlord in any Landlord's
Statement rendered to Tenant as provided in subsection C(i) of this
Article 28.
(c) After the end of the Comparison Year in which a demand
is made pursuant to the provisions of subsection C(iii)(b) of this
Article 28 and at any time that Landlord renders a Landlord's
Statement or Statements to Tenant as provided in subsection C(i) of
this Article 28 in respect of Operating Expenses, the amounts, if any,
collected by Landlord from Tenant under subsection C(iii)(b) hereof on
account of Tentative Monthly Expense Charge shall be adjusted, and, if
the amount so collected is less than or exceeds the amount actually
due under said Landlord's Statement for the Comparison Year, a
reconciliation shall be made in the same manner as provided in
subsection C(ii)(c) of this Article 28.
D. Adjustments. (i) (a) In the event that, after a Landlord's
Statement has been sent to Tenant, an Assessed Valuation which had been utilized
in computing the Taxes for a Comparison Year is reduced (as a result of
settlement, final determination of legal proceedings or otherwise), and as a
result thereof a refund of Taxes is actually received by or on behalf of
Landlord, then, promptly after receipt of such refund, Landlord shall send
Tenant a statement adjusting the Taxes for such Comparison Year (taking into
account the expenses mentioned in the last sentence of subsection A(i) of this
Article 28) and setting forth Tenant's Proportionate Share of such refund and
Tenant shall be entitled to receive such Tenant's Proportionate Share by way of
a credit against the Rent next becoming due after the sending of such Statement;
provided, however, that Tenant's Proportionate Share of such refund shall be
limited to the amount, if any, which Tenant had theretofore paid to Landlord as
Increased Rent for such Comparison Year on the basis of the Assessed Valuation
before it had been reduced.
(b) In the event that, after a Landlord's Statement has been
sent to Tenant, the Assessed Valuation which had been utilized in
computing the Base Taxes is reduced (as a result of settlement, final
determination of legal proceedings or otherwise), then, and in such
event: (1) the Base Taxes shall be retroactively adjusted to reflect
such reduction, (2) the monthly installment of Rent shall be increased
accordingly, and (3) all retroactive additional rent resulting from
such retroactive adjustment shall be forthwith payable when billed by
Landlord. Landlord promptly shall send to Tenant a statement setting
forth the basis for such retroactive adjustment and additional rent
payments. In the event the Assessed Valuation which has been utilized
in computing the Base Taxes is
32
increased solely as a result of the sale, transfer or conveyance of
the Real Property, neither Base Taxes nor the monthly installment of
Rent shall be increased as a result thereof.
(ii) Any Landlord's Statement sent to Tenant shall be
conclusively binding upon Tenant unless, within sixty (60) days after such
statement is sent, Tenant shall (a) pay to Landlord the amount set forth in
such statement, without prejudice to Tenant's right to dispute same, and
(b) send a written notice to Landlord objecting to such statement and
specifying the respects in which such statement is claimed to be incorrect.
If such notice is sent, the parties recognize the unavailability of
Landlord's books and records because of the confidential nature thereof and
hence agree that either party may refer the decision of the issues raised
to a reputable independent firm of certified public accountants selected by
Tenant and reasonably acceptable to Landlord, and the decision of such
accountants shall be conclusively binding upon the parties. The fees and
expenses involved in such decision shall be borne by the unsuccessful party
(and if both parties are partially unsuccessful, the accountants shall
apportion the fee and expenses between the parties based on the degree of
success of each party).
(iii) Anything in this Article 28 to the contrary
notwithstanding, under no circumstances shall the rent payable under this
Lease be less than the Rent set forth in Article 1 hereof.
(iv) The expiration or termination of this Lease during any
Comparison Year for any part or all of which there is an increase in the
Rent under this Article shall not affect the rights or obligations of the
parties hereto respecting such increase and any Landlord's Statement
relating to such increase may, on a pro rata basis, be sent to Tenant
subsequent to, and all such rights and obligations shall survive, any such
expiration or termination. Any payments due under such Landlord's Statement
shall be payable within twenty (20) days after such statement is sent to
Tenant. If any payments are due from Landlord to Tenant, the same shall be
paid within thirty (30) days following the Expiration Date.
29. SERVICES
A. Elevator. Landlord shall provide passenger elevator facilities on
business days from 8:00 A.M. to 6:00 P.M. and shall have one passenger elevator
in the bank of elevators servicing the Premises available at all other times.
Landlord shall provide freight elevator services on an "as available" basis for
incidental use and for deliveries by Tenant from 8:00 A.M. through 12:00 Noon
and from 1:00 P.M. through 5:00 P.M. on business days only. Any extended or
weekend use may be arranged with Landlord's prior consent which shall not be
unreasonably withheld or delayed and Tenant shall pay as additional rent all
building standard charges therefor (provided that during Tenant's Initial
Alteration and move-in only, such charges shall be at Landlord's actual costs
therefor). Use of freight elevators on weekends must be in increments of four
(4) hours.
B. Heating. Landlord shall furnish heat to the Premises when and as
required by law, on business days from 8:00 AM. to 6:00 P.M. Landlord shall not
be responsible for the adequacy, design or capacity of the heating distribution
system if the normal operation of the heat distribution system serving the
Building shall fail to provide heat at reasonable temperatures or any reasonable
volumes or velocities in any parts of the Premises by reason of any
rearrangement of partitioning or other Alterations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant.
C. Cooling. Landlord, at Landlord's expense, shall furnish air-cooling
on business days from 8:00 A.M. to 6:00 P.M. as required for the comfortable
occupancy of the Premises, but in no
33
event less than from May 15 through October 15 of each year during the Term,
when, in the judgment of Landlord, reasonably exercised, it may be required for
the comfortable occupancy of the Premises, and shall ventilate the Premises on
business days and for similar hours during other months of the year. Anything in
this subsection C to the contrary notwithstanding, Landlord shall not be
responsible if the normal operation of the Building air-cooling system shall
fail to provide cooled air at reasonable temperatures, pressures or degrees of
humidity or any reasonable volumes or velocities in any parts of the Premises by
reason of (i) human occupancy factors and any machinery or equipment installed
by or on behalf of Tenant or any person claiming through or under Tenant that
have an electrical load in excess of the average electrical load for the
Building air-cooling system as required under this Lease or (ii) any
rearrangement of partitioning or other Alterations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant unless same is
specifically required by Landlord solely for Landlord's convenience and not in
connection with any applicable governmental laws, ordinances, rules or
regulations. Tenant agrees to keep and cause to be kept closed all of the
windows in the Premises whenever the air-cooling system is in operation and
agrees to lower and close the blinds when necessary because of the sun's
position whenever the air-cooling system is in operation. Tenant at all times
agrees to cooperate fully with Landlord and to abide by the regulations and
requirements which Landlord may reasonably prescribe for the proper functioning
and protection of the air-cooling system. Landlord, throughout the Term, shall
have free access to any and all mechanical installations of Landlord, including,
but not limited to, air-cooling, fan, ventilating, machine rooms and electrical
closets. Tenant may, subject to the terms and conditions of this Lease,
including, without limitation, this Article 9 and Article 3 hereof, install air
conditioning in the Premises for the data center, at Tenant's sole cost and
expense, provided the installation and maintenance of same is, in all respects,
reasonably satisfactory to Landlord and, subject to Landlord's prior written
approval, which shall not be unreasonably withheld or delayed, vent such air
conditioning through any existing louvers along Xxxxx Street exposure. In
addition to the foregoing, Tenant may install vents on the eighth (8th) floor of
the Building along the Xxxxx Street exposure reasonably sufficient to service
Tenant's air conditioning requirements, the number, design and location of which
shall be subject to Landlord's prior written approval, which approval shall not
be unreasonably withheld or delayed.
D. After Hours and Additional Services. The Rent does not include any
charge to Tenant for the furnishing of any additional passenger elevator
facilities, any freight elevator facilities (other than as contemplated in
Article 29 subsection A) or for the service of heat, cooled air or mechanical
ventilation to the Premises during periods other than the hours and days set
forth in subsections A and B of this Article 29 for the furnishing and
distributing of such facilities or services (referred to as "Overtime Periods").
Accordingly, if Landlord shall furnish any (i) passenger elevator facilities to
Tenant during Overtime Periods or freight elevator facilities, except as
provided in subsection A of this Article 29, or (ii) heat to the Premises during
Overtime Periods, then Tenant shall pay Landlord additional rent for such
facilities or services at the standard rates then fixed by the Landlord for the
Building or, if no such rates are then fixed, at reasonable rates. Neither the
facilities nor the services referred to in this Article 29D shall be furnished
to Tenant or the Premises if Landlord has not received advance notice from
Tenant specifying the particular facilities or services requested by Tenant at
least twenty-four (24) hours prior to the date on which the facilities or
services are to be furnished; or if Tenant is in default under or in breach of
any of the terms, covenants or conditions of this Lease beyond the expiration of
any applicable notice and cure periods; or if Landlord shall determine, in its
sole and exclusive discretion, reasonably exercised, that such facilities or
services are requested in connection with, or the use thereof shall create or
aid in a default under or a breach of any term, covenant or condition of this
Lease. All of the facilities and services referred to in this Article 29D are
conveniences and are not and shall not be deemed to be appurtenances to the
Premises, and the failure of Landlord to furnish any or all of such facilities
or services shall not constitute or give rise to any claim of an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of Rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its
34
agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise. Landlord shall have no
obligation to (i) furnish cooled air or ventilation to the Premises during
Overtime Periods or (ii) supply condenser water to the Premises for supplemental
air cooling systems.
E. Cleaning. Landlord, at Landlord's expense, shall cause the Premises
(with the exception of the data center, the cleaning of which shall be the sole
responsibility of Tenant) to be kept clean in building standard manner. Tenant
shall pay to Landlord the cost of removal of any of Tenant's refuse and rubbish
from the Premises and the Building to the extent that the same exceeds the
refuse and rubbish usually attendant upon the use of such Premises as executive
and general offices. Bills for the same shall be rendered by Landlord to Tenant
at such time as Landlord may elect and shall be due and payable when rendered
and the amount of such bills shall be deemed to be, and be paid as additional
rent. Tenant shall, however, have the option of independently contracting for
the removal of such refuse and rubbish in the event that Tenant does not wish to
have same done by employees of Landlord. Under such circumstances, however, the
removal of such refuse and rubbish by others shall be subject to such rules and
regulations, as in the judgment of Landlord, are necessary for the proper
operation of the Building. Attached hereto as Exhibit 3 are the current cleaning
specifications for the Building, but Landlord reserves the right to amend same
from time to time in a commercially reasonable manner.
F. Sprinkler System. If there now is or shall be installed in the
Building a "sprinkler system", and such system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants, employees, licensees or visitors,
Tenant shall forthwith restore the same to good working condition at its own
expense; and if the New York Board of Fire Underwriters or the New York Fire
Insurance Rating Organization or any bureau, department or official of the state
or city government, shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business, or the location of the partitions, trade
fixtures, or other contents of the Premises, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment.
G. Water. If Tenant requires, uses or consumes water for any purpose
in addition to ordinary drinking, cleaning, pantry or lavatory purposes,
Landlord may install a water meter and thereby measure Tenant's water
consumption for all purposes. In such event (i) Tenant shall pay Landlord for
the cost of the meter and the cost of the installation thereof and through the
duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Landlord may cause such meter and equipment to be replaced or
repaired and collect the cost thereof from Tenant; (ii) Tenant agrees to pay for
water consumed, as shown on said meter as and when bills are rendered, and on
default in making such payment Landlord may pay such charges and collect the
same from Tenant; and (iii) Tenant covenants and agrees to pay the sewer rent,
charge or any other tax, rent, levy or charge which now or hereafter is
assessed, imposed or shall become a lien upon the Premises or the realty of
which they are part pursuant to law, order or regulation made or issued in
connection with any such metered use, consumption, maintenance or supply of
water, water system, or sewage or sewage connection or system. The xxxx rendered
by Landlord for the above shall be based upon Tenant's consumption and shall be
payable by Tenant as additional rent within twenty (20) days of rendition. Any
such costs or expenses incurred or payments made by Landlord for any of the
reasons or purposes hereinabove stated shall be deemed to be additional rent
payable by Tenant and collectible by Landlord as such. Independently of and in
addition to any of the remedies reserved to Landlord hereinabove or elsewhere in
this Lease, Landlord may xxx for and collect any monies to be paid by Tenant or
paid by Landlord for any of the reasons or purposes hereinabove set forth.
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H. Electricity Service. (i) With respect to the portion of the
Premises located on the eighth (8th) floor of the Building, Landlord shall
provide to the perimeter of such portion of the Premises, at a location
reasonably determined by Landlord, 325 amperes (during the first year of the
Term, however, Landlord shall provide to the perimeter of such portion of the
Premises, at a location reasonably determined by Landlord, 525 amperes) of
electrical load for the servicing of all of Tenant's electrical needs within
such portion of the Premises, including, without limitation, any air-cooling
equipment located in, or exclusively servicing such portion of the Premises.
With respect to the portion of the Premises located on the ninth (9th) floor of
the Building, Landlord shall provide to the perimeter of such portion of the
Premises, at a location reasonably determined by Landlord, 100 amperes of
electrical load for the servicing of all of Tenant's electrical needs within
such portion of the Premises, including, without limitation, any air-cooling
equipment located in, or exclusively servicing such portion of the Premises.
Landlord's designated agent shall install a submeter to measure Tenant's
consumption of electrical energy in the Premises, but excluding Building HVAC.
Tenant shall pay Landlord for any and all costs incurred in connection with the
installation of such submeter upon the submission by Landlord of a xxxx for such
costs. The cost of electricity utilized by Tenant shall be paid for by Tenant to
Landlord as additional rent and shall be calculated at Landlord's cost for
submetered electrical energy, plus (a) Landlord's charge for overhead and
supervision in the amount of four percent (4%) of the total electric xxxx and
(b) any taxes or other charges in connection therewith. If any tax shall be
imposed upon Landlord's receipts from the sale or resale of electrical energy to
Tenant, the pro rata share applicable to the electrical energy service received
by Tenant shall be passed on to, included in the xxxx of, and paid by Tenant if
and to the extent permitted by law. Landlord shall xxxx Tenant, monthly, for the
cost if its consumption of electricity in the Premises and Tenant shall pay the
amount thereof at the time of payment of each installment of Rent. If either the
quantity or character of electrical services is changed by the public utility or
other company supplying electrical service to the Building or is no longer
available or suitable for Tenant's requirements, no such change, unavailability
or unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord, or its agents, by reason of inconvenience or annoyance to Tenant,
or injury to or interruption or Tenant's business, or otherwise.
(ii) If Tenant requires additional electrical energy beyond the
amperage specified above for any reason whatsoever, including, without
limitation, the use of additional business machines, office equipment or
other appliances in the Premises which utilize electrical energy, Tenant
shall request such additional electrical energy from Landlord in each
instance. If Landlord agrees to provide the same, any additional feeders or
risers which are required to supply Tenant's additional electrical
requirements, and all other equipment proper and necessary in connection
with such feeders or risers, shall be installed by Landlord upon Tenant's
request, at the sole cost and expense of Tenant (including, without
limitation, a connection fee of Three Hundred Fifty and 00/100 ($350.00)
Dollars per kilovolt ampere), provided that, in Landlord's reasonable
judgment, such additional feeders or riders are necessary and are
permissible under applicable laws and insurance regulations and the
installation of such feeders or risers will not cause permanent damage or
injury to the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations or
interfere with or disturb other tenants or occupants of the Building.
Tenant covenants that at no time shall the use of electrical energy in the
Premises exceed the capacity of the existing feeders or wiring
installations then serving the Premises or provide Tenant with greater than
325 amperes (during the first year of the Term, however, Landlord shall
redistribute 525 amperes) of electrical load deemed to be in the Premises.
Tenant shall not make or perform, or permit the making or performance of,
any alterations to wiring installations or other electrical facilities in
or serving the Premises without the prior consent of Landlord in each
instance and without paying Landlord's customary charges therefor. Any such
Alterations, additions or consent by Landlord shall be subject to the
provisions of this Lease, including, but not limited to, the provisions of
Article 3 hereof.
36
(iii) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than ninety (90) days
notice to Tenant. Landlord shall not elect to discontinue furnishing
electricity to Tenant unless Landlord concurrently elects to discontinue
furnishing electricity to all other tenants in the Building or if Tenant
has defaulted on payment of amounts owed under this Section 29H. If
Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in
full force and effect and shall be unaffected thereby, except only that
from and after the effective date of such discontinuance, Landlord shall
not be obligated to furnish electricity to Tenant. If Landlord so
discontinues furnishing electricity to Tenant, Tenant shall arrange to
obtain electricity directly from the public utility or other company
servicing the Building. Such electricity may be furnished to Tenant by
means of the then existing electrical facilities serving the Premises to
the extent that the same are available, suitable and safe for such
purposes. All meters and all additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to obtain
electricity, of substantially the same quantity, quality and character,
shall be installed by Landlord at Tenant's sole cost and expense. Landlord
shall not voluntarily discontinue furnishing electricity to Tenant until
Tenant is able to receive electricity directly from the public utility or
other company servicing the Building.
(iv) Landlord shall not be liable to Tenant in any way for any
interruption, curtailment or failure or defect in the supply or character
of electricity furnished to the Premises by reason of any requirement, act
or omission of Landlord or of any public utility or other company servicing
the Building with electricity or for any other reason except Landlord's
negligence or willful misconduct.
(v) In the event that the submeter to be installed in the
Premises in accordance with the provisions of Subsection H(i) of this
Article 29 is not installed, activated and fully operational on or before
the Commencement Date (and irrespective of whether or not Rent shall be
payable for such period), Tenant will pay, monthly, as additional rent the
sum of ($1.00 times rentable square feet) divided by 12 (the "Interim
Electrical Charge" ) on the Commencement Date and on the first day of each
calendar month thereafter until such time as the submeter is installed,
activated and fully operational. If the Commencement Date occurs on a date
other than the first day of a calendar month, the Interim Electrical Charge
for such month shall be an amount equal to such proportion of the Interim
Electrical Charge as the number of days from and including the Commencement
Date to the last day of the calendar month in which the Commencement Date
occurs bears to the total number of days in such calendar month. If the
first day that the electrical submeter becomes activated and fully
operational occurs on a date other than the first day of a calendar month,
the Tenant shall pay for such month an amount equal to such proportion of
the Interim Electrical Charge as the number of days from the beginning of
such calendar month through and including the date that such electrical
submeter becomes operational bears to the total number of days in such
calendar month plus the cost of electricity as determined by the submeter,
for the remainder of such month.
I. Interruption of Services. Landlord reserves the right to stop
service of the HVAC system and all other Building systems when necessary, by
reason of accident or emergency, or for repairs, additions, alterations,
replacements or improvements in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed (which repairs shall be performed in accordance with Section
4 of this Lease). Landlord shall have no responsibility or liability for
interruption, curtailment or failure to supply cooled or outside air, heat,
elevator, plumbing or electricity when prevented by Unavoidable Delays or by any
legal requirement, or its right to stop services. Tenant acknowledges that the
Building HVAC system may contain freon or other chlorofluorocarbons ("CFC's")
and that future federal, state or city regulations may
37
require the removal of CFC's as well as the alteration or replacement of
equipment utilizing CFC's. In connection therewith (i) Landlord reserves the
right to stop service of the HVAC system or any other mechanical systems
containing CFC's for such duration as may be necessary to convert any such
systems to eliminate the use of CFC's and (ii) to enter upon the Premises, as
necessary to install replacement equipment within the Premises required by any
such change. The exercise of such right or such failure by Landlord, shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any compensation or to any abatement or diminution of Rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord or its agents by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise. If, however,
there occurs a cessation of the services to be provided by Landlord hereunder as
a result of Landlord's acts, and solely as a result thereof Tenant completely
ceases to occupy the Premises entirely (that is, Tenant completely vacates the
entire Premises) for more than fifteen (15) consecutive days, the Rent shall
thereafter xxxxx until the earlier to occur of (a) the date such interrupted
service is resumed and (b) the date Tenant re-occupies any portion of the
Premises (in which event the Rent shall thereafter be payable in its entirety).
30. PARTNERSHIP TENANT.
A. Partnership Tenants. If Tenant is a partnership (or is comprised of
two (2) or more persons, individually and as co-partners of a partnership) or if
Tenant's interest in this Lease shall be assigned to a partnership (or to two
(2) or more persons, individually and as co-partners of a partnership) pursuant
to Article 12 (any such partnership and such persons are referred to in this
Article 30 as a "Partnership Tenant"), the following provisions of this Article
30 shall apply to such Partnership Tenant: (i) the liability of each of the
parties comprising a Partnership Tenant shall be joint and several, and (ii)
each of the parties comprising a Partnership Tenant hereby consents in advance
to, and agrees to be bound by, any written instrument which may hereafter be
executed, changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord, and by any notices,
demands, requests or other communications which may hereafter be given by a
Partnership Tenant or by any of the parties comprising a Partnership Tenant, and
(iii) any bills, statements, notices, demands, requests or other communications
given or rendered to a Partnership Tenant and to all such parties shall be
binding upon a Partnership Tenant and all such parties, and (iv) if a
Partnership Tenant shall admit new partners, all of such new partners shall, by
their admission to a Partnership Tenant, be deemed to have assumed performance
of all of the terms, covenants and conditions of this Lease on Tenant's part to
be observed and performed, and (v) a Partnership Tenant shall give prompt notice
to Landlord of the admission of any such new partners, and upon demand of
Landlord, shall cause each such new partner to execute and deliver to Landlord
an agreement in form satisfactory to Landlord, wherein each such new partner
shall assume performance of all the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subdivision (iv) of subsection A of this Article 30).
B. Limited Liability Entity. Notwithstanding anything to the contrary
contained herein, if Tenant is a limited or general partnership (or is comprised
of two (2) or more persons, individually or as co-partners), the change or
conversion of Tenant to (i) a limited liability company, (ii) a limited
liability partnership, or (iii) any other entity which possesses the
characteristics of limited liability (any such limited liability company,
limited liability partnership or entity is collectively referred to as a
"Limited Liability Successor Entity"), shall be prohibited unless the prior
written consent of Landlord is obtained, which consent may be withheld in
Landlord's sole discretion. Notwithstanding the foregoing, Landlord's consent
shall not be required provided that:
38
(a) The Limited Liability Successor Entity succeeds to all
or substantially all of Tenant's business and assets;
(b) The Limited Liability Successor Entity shall have a net
worth, determined in accordance with generally accepted accounting
principles, consistently applied, of not less than the greater of the
net worth of Tenant on (1) the date of execution of this Lease, or (2)
the day immediately preceding the proposed effective date of such
conversion;
(c) Tenant is not in default of any of the terms, covenants
or conditions of this Lease on the proposed effective date of such
conversion;
(d) Tenant shall cause each partner of Tenant to execute and
deliver to Landlord an agreement (or in the event the governing
partnership agreement requires less than all of the partners, to so
execute and deliver such lesser number of partners), in form and
substance satisfactory to Landlord, wherein each such partner agrees
to remain personally liable for all of the terms, covenants and
conditions of this Lease that are to be observed and performed by the
Limited Liability Successor Entity; and
(e) Tenant shall reimburse Landlord within ten (10) business
days following demand by Landlord for any and all reasonable costs and
expenses that may be incurred by Landlord in connection with said
conversion of Tenant to a Limited Liability Successor Entity,
including, without limitation, any attorney's fees and disbursements.
31. VAULT SPACE. Any vaults, vault space or other space outside the
boundaries of the Real Property, notwithstanding anything contained in this
Lease or indicated on any sketch, blueprint or plan, are not included in the
Premises. Landlord makes no representation as to the location of the boundaries
of the Real Property. All vaults and vault space and all other space outside the
boundaries of the Real Property which Tenant may be permitted to use or occupy
is to be used or occupied under a revocable license, and if any such license
shall be revoked, or if the amount of such space shall be diminished or required
by any Federal, State or municipal authority or by any public utility company,
such revocation, diminution or requisition shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord. Any fee, tax or charge imposed by
any governmental authority for any such vaults, vault space or other space shall
be paid by Tenant.
32. SECURITY DEPOSIT. In order to secure Tenant's obligations under this
Lease, simultaneously with the execution of this Lease, Tenant shall deliver to
Landlord an irrevocable letter of credit in the amount of $844,101.00 in form
and substance acceptable to Landlord in its sole discretion and issued by a New
York City bank acceptable to Landlord (the "L/C"). Landlord may draw down on the
L/C from time to time to reimburse itself upon an Event of Default. Drawings may
be made by sight draft and partial drawings shall be permitted. The L/C shall be
substantially in the form of Exhibit 4 annexed hereto and provide for a twelve
month-expiry, and shall contain a so-called "evergreen" clause so that, unless
the issuing bank notifies Landlord, in writing, of its intention not to renew
the L/C at least forty-five (45) days prior to the stated expiry thereof, the
L/C shall be renewed automatically for a period of twelve months. If the issuing
bank so notifies Landlord or if, with Landlord's consent, the L/C does not
contain an "evergreen" clause and Tenant fails to provide a renewal letter of
credit in the form and amount of the original L/C at least forty-five (45) days
prior to the stated expiry thereof, Landlord may draw down on the L/C and hold
the cash proceeds of same as security for Tenant's obligations under this Lease.
Tenant may, on the second (2nd) anniversary of the Rent Commencement Date, and,
on each succeeding anniversary of the Rent Commencement Date, cause the L/C to
be reduced by an amount
39
equal to $70,341.75, provided (a) that in no event shall Tenant ever have the
right to reduce the L/C to an amount less than $140,683.50 and (b) Tenant's
right to reduce the amount of the L/C as provided for herein shall terminate
upon an Event of Default. Tenant shall be liable for any fees which may be
payable in connection with a transfer of the L/C by Landlord.
33. CAPTIONS. 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.
34. ADDITIONAL DEFINITIONS.
A. The term "office" or "offices", wherever used in this Lease, shall
not be construed to mean premises used as a store or stores, for the sale or
display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing.
B. The words "reenter" and "reentry" as used in this Lease are not
restricted to their technical legal meaning.
C. The term "rent" as used in this Lease shall mean and be deemed to
include Rent, any increases in Rent, all additional rent and any other sums
payable hereunder.
D. The term "business days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and union holidays for those unions that materially affect the
delivery of services in the Building.
35. PARTIES BOUND. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this Lease, their assigns.
36. BROKER
A. Tenant represents and warrants that Tenant has dealt directly with
(and only with), the Broker (as defined in Article 1 herein) as broker in
connection with this Lease, and that insofar as Tenant knows no other broker
negotiated this Lease or is entitled to any commission in connection therewith,
and the execution and delivery of this Lease by Landlord shall be conclusive
evidence that Landlord has relied upon the foregoing representation and
warranty.
B. Landlord represents and warrants that Landlord has dealt directly
with (and only with), the Broker (as defined in Article I herein) as broker in
connection with this Lease, and that insofar as Landlord knows no other broker
negotiated this Lease or is entitled to any commission in connection therewith,
and the execution and delivery of this Lease by Tenant shall be conclusive
evidence that Tenant has relied upon the foregoing representation and warranty.
37. INDEMNITY. Tenant shall not do or permit any act or thing to be done
upon the Premises which may subject Landlord to any liability or responsibility
for injury, damages to persons or property or to any liability by reasons of any
violation of law or of any legal requirement of any public authority, but shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant agrees to indemnify and save harmless Landlord from and
against (i) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, (ii) all claims against Landlord arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and
40
occurring during the Term in or about the Premises, (iii) all claims against
Landlord arising from any accident, injury or damage to any person, entity or
property, occurring outside of the Premises but anywhere within or about the
Real Property, where such accident, injury or damage results or is claimed to
have resulted from an act or omission of Tenant or Tenant's agents, employees,
invitees or visitors, and (iv) any breach, violation or nonperformance 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 and (v) any claim,
loss or liability arising or claimed to arise from Tenant, or any of Tenant's
contractors, licensees, agents, servants, employees, invitees or visitors
causing or permitting any Hazardous Substance to be brought upon, kept or used
in or about the Premises or the Real Property or any seepage, escape or release
of such Hazardous Substances. As used herein and in all other provisions in this
Lease containing indemnities made for the benefit of Landlord, the term
"Landlord" shall mean 100 Xxxxxxx LLC and its respective parent companies and/or
corporations, their respective controlled, associated, affiliated and subsidiary
companies and/or corporations and their respective members, officers, partners,
agents, consultants, servants, employees, successors and assigns. 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
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof. Landlord shall indemnify and save Tenant, its
shareholders, directors, officers, partners, employees and agents harmless from
and against all claims against Tenant, its shareholders, directors, officers,
partners, employees and agents arising from any gross negligence or willful
misconduct of Landlord.
38. ADJACENT EXCAVATION SHORING. If an excavation shall be made upon land
adjacent to the Premises, or shall be authorized to be made, Tenant, upon
reasonable prior notice, shall afford to the person causing or authorized to
cause such excavation, license to enter upon the Premises for the purpose of
doing such work as said person shall deem necessary to preserve the wall or the
Building from injury or damage and to support the same by proper foundations
without any claim for damages or indemnity against Landlord, or diminution or
abatement of Rent, provided Tenant continues to have access to the Premises.
39. MISCELLANEOUS.
A. No Offer. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
B. Signatories. If more than one person executes this Lease as Tenant,
each of them understands and hereby agrees that the obligations of each of them
under this Lease are and shall be joint and several, that the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally and
that the act of or notice from, or notice or refund to, or the signature of, any
one or more of them, with respect to the tenancy and/or this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or so signed.
C. Certificates. From time to time, within ten (10) days next
following request by Landlord or the mortgagee of a Mortgage, Tenant shall
deliver to Landlord or such mortgagee, as the case may be, a written statement
executed and acknowledged by Tenant, in form satisfactory to Landlord or such
mortgagee (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Rent, additional rent and other charges
hereunder have been paid, together with the amount of fixed base monthly Rent
then payable, (iii) stating whether or not, to the best knowledge of Tenant,
Landlord is in default under this
41
Lease, and, if Landlord is in default, setting forth the specific nature of all
such defaults, (iv) stating the amount of the security deposit under this Lease,
(v) stating whether there are any subleases affecting the Premises, (vi) stating
the address of Tenant to which all notices and communications under the Lease
shall be sent, the Commencement Date and the Expiration Date, and (vii) as to
any other matters requested by Landlord or such mortgagee. Tenant acknowledges
that any statement delivered pursuant to this subsection C may be relied upon by
any purchaser or owner of the Real Property or the Building, or Landlord's
interest in the Real Property or the Building or any Superior Lease, or by any
mortgagee of a Mortgage, or by any assignee of any mortgagee of a Mortgage, or
by any lessor under any Superior Lease.
D. Directory Listings. Landlord agrees to provide Tenant, at
Landlord's sole cost and expense, with two (2) listings of Tenant's name on the
directory in the lobby of the Building. Upon written request by Tenant, Landlord
agrees to provide Tenant with additional listings on such directory, at Tenant's
sole cost and expense, provided Tenant shall be limited to a number of listings
determined by multiplying Tenant's Proportionate Share by the total number of
spaces for listings on such directory.
E. Authority. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and validly existing entity qualified to
do business in the State of New York and that Tenant has full right and
authority to execute and deliver this Lease and that each person signing on
behalf of Tenant is authorized to do so. Without in any way limiting the
liability of Tenant with respect to its obligations under this Lease, the
officers, directors and shareholders of Tenant shall not be personally liable
for any of Tenant's obligations under this Lease except for such officers,
directors and shareholders fraud, gross negligence or willful misconduct.
F. Signage. Tenant shall not exhibit, inscribe, paint or affix any
sign, advertisement, notice or other lettering on any portion of the Building or
the outside of the Premises without the prior written consent of Landlord in
each instance. A plan of all signage or other lettering proposed to be
exhibited, inscribed, painted or affixed shall be prepared by Tenant in
conformity with building standard signage requirements and submitted to Landlord
for Landlord's consent. If the proposed signage is acceptable to Landlord,
Landlord shall approve such signage or other lettering by written notice to
Tenant. All signage or other lettering which has been approved by Landlord shall
thereafter be installed by Landlord at Tenant's sole cost and expense. Payment
of all charges therefor shall be deemed additional rent hereunder. In the event
Landlord requires payment in advance for the installation of any such signage or
other lettering, no installation shall be commenced by Landlord until Landlord
has received payment in full.
Upon installation of any such signage or other lettering, such signage or
lettering shall not be removed, changed or otherwise modified in any way without
Landlord's prior written approval. The removal, change or modification of any
signage or other lettering theretofore installed shall be performed solely by
Landlord at Tenant's sole cost and expense. Tenant shall not exhibit, inscribe,
paint or affix on any part of the Premises or the Building visible to the
general public any signage or lettering including the words "temporary" or
"personnel".
Any signage, advertisement, notice or other lettering which shall be
exhibited, inscribed, painted or affixed by or on behalf of Tenant in violation
of the provisions of this section may be removed by Landlord and the cost of any
such removal shall be paid by Tenant as additional rent.
G. Consents and Approvals. 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
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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.
H. Intentionally Omitted
I. Renewal Option.
1. Provided that (i) both at the time of the exercise of the option
hereinafter set forth and at the time of commencement of the Renewal Term (as
hereinafter defined) this Lease is in full force and effect, and provided
further that no Event of Default is continuing hereunder and (ii) Tenant has
neither assigned its interest under this Lease or subleased all or any portion
of the Premises nor offered to so assign this Lease or sublease all or any
portion of the Premises, and (iii) Tenant is in occupancy of the entire Premises
for the purpose of conducting its own business, Tenant is hereby granted the
option to renew the Term of this Lease for one (1) period of sixty (60) months
(the "Renewal Term"). The Renewal Term is to commence immediately upon the
expiration of the initial Term. Once Tenant has served a Renewal Notice (as
hereinafter defined) upon Landlord, Tenant shall be bound for the entire
applicable Renewal Term by the terms and conditions of this Lease, as the same
is modified pursuant to this Article 39. Tenant shall exercise the option to
renew only by delivering irrevocable written notice of such election (a "Renewal
Notice" ) to Landlord not less than one (1) year prior to the expiration of the
initial Term. In the event that Landlord does not receive the Renewal Notice
within such notice period (time being of the essence with respect thereto), then
such option to renew the Term shall, upon the expiration of such time period,
become null and void and be of no further force or effect and Tenant shall, at
the request of Landlord, execute an instrument in form and substance acceptable
to Landlord confirming such facts.
2. The Renewal Term shall be upon the same terms and conditions of
this Lease, except that (a) the Rent during the Renewal Term shall be payable at
an annual rate per rentable square foot equal to the greater of (1) ninety-five
(95%) percent of the annual fair market rental rate for the Premises for the
Renewal Term ("FMR"), as such FMR is determined (x) by agreement between
Landlord and Tenant on or before the date (the "FMR Agreement Date" ) which is
sixty (60) days prior to the end of the initial Term or (y) in the absence of
such agreement, by the Three Appraiser Method set forth in Section 3 of this
Section I, or (2) the Rent in effect during the last year of the initial Term;
(b) Tenant shall have no option to renew this Lease beyond the expiration of the
Renewal Term; and (c) the Premises shall be delivered in their existing
condition (on an "as is" basis) at the time the Renewal Term commences. Landlord
and Tenant shall attempt to negotiate in good faith a mutually acceptable
determination of the FMR prior to the FMR Agreement Date. FMR, as used herein,
shall be deemed to be the fair market rental rate (i.e., the rental rate payable
by a willing tenant to a willing landlord for like and comparable space),
determined as of the date which is six (6) months prior to the Expiration Date,
for the Premises.
3. The "Three Appraiser Method" shall operate as follows: FMR shall be
based upon the then current fair market rental rate for comparable space in
comparable buildings in the downtown, New York, New York area (i.e., the rental
rate payable by a willing tenant to a willing landlord for like and comparable
space), using as a comparison, transactions for the six (6) months prior to the
commencement of such Renewal Term, which shall be determined by each of two (2)
real estate appraisers, one of whom shall be named by Landlord and the other of
whom shall be named by Tenant. Each of the appraisers shall be licensed or
certified, as appropriate, in New York as a real estate appraiser, specializing
in first-class office buildings in the New York, New York area, having no less
than ten (10) years experience in such field, and generally recognized as
ethical and reputable within the field (each, a
43
"Qualified Appraiser"). Landlord and Tenant agree to make their appointments
within five (5) business days after the FMR Agreement Date, if the parties have
not theretofore agreed upon the FMR. Each Qualified Appraiser shall submit his
determination of the FMR within fifteen (15) days after the date of his
selection. If the positive difference between the two determinations of the FMR
is less than or equal to ten (10%) percent of the higher of the two
determinations, then, for the purposes of Section 2(a)(l) above, the FMR shall
be the higher of such two determinations of the FMR. If the positive difference
between the two determinations of the FMR is greater than ten (10%) percent of
the higher of the two determinations, then the two (2) Qualified Appraisers
selected by Landlord and Tenant shall select a third Qualified Appraiser within
five (5) days after they both have rendered their FMR determinations, and within
fifteen (15) days after the date of his selection, the third Qualified Appraiser
shall submit his determination of the FMR and, for the purposes of Section
2(a)(l) above, the FMR shall be the avenge of the three (3) determinations made
by the three (3) Qualified Appraisers. Landlord and Tenant shall each pay the
fee of the Qualified Appraiser selected by it, and they shall equally share the
payment of the fee of the third Qualified Appraiser, if the selection of same is
required hereunder.
4. Except for the renewal option set forth in this Section I, this
Lease may only be extended beyond the Expiration Date by the parties executing
an extension agreement signed by both parties making specific reference to this
Lease.
J. Downtown Benefits. Landlord shall reasonably cooperate with Tenant,
at no cost or expense or liability to Landlord, in connection with Tenant's
applying for any property related benefits from the City of New York to which
Tenant may be entitled as a result of Tenant's leasing the Premises. All such
benefits acquired by Tenant shall be for the account of Tenant only.
40. RIGHT OF FIRST OFFER.
(i) Provided (1) this Lease shall then be in full force and
effect, (2) Tenant shall not be in material default hereunder beyond any
applicable notice and/or cure period, and (3) Tenant shall be in actual
occupancy of at least ninety (90%) percent of the Premises (items (1), (2),
and (3) hereinafter shall be collectively referred to as the "Offer Space
Conditions"), in the event that Landlord shall desire to lease the balance
of the ninth (9th) floor in the Building (the "Offer Space"), Tenant shall
have the single, non-recurring right ("Right of First Offer") to have
Landlord submit written notice (the "Lease Notice") to Tenant of
Landlord's desire to lease the Offer Space as to the space offered, which
Lease Notice shall be deemed an offer to Tenant to lease the Offer Space.
(ii) The Lease Notice shall set forth (1) a description of the
Offer Space, the number of rentable square feet attributable to the Offer
Space as determined by Landlord (the "Deemed Rentable Square Footage" ) and
Tenant's Proportionate Share attributable to the Offer Space (the "Deemed
Tenant's Proportionate Share"), (2) the fixed annual rent and all
additional rent (including the base amount or base years, if any, for
taxes, operating expenses and other escalations) at which Landlord proposes
to lease the Offer Space (collectively, the "Offer Rental"), (3) the term
for which Landlord proposes to lease the Offer Space (including renewal
options, if any, it being understood that, unless expressly set forth in
the Lease Notice, the renewal options provided in Article 39 hereof shall
not be applicable to the Offer Space), (4) the condition in which Landlord
proposes to deliver the Offer Space, (5) the tenant inducements (such as,
by way of example only, work letters, work allowances and free rent
periods) that Landlord proposes to offer in connection with the leasing of
the Offer Space, (6) the date upon which Landlord anticipates the Offer
Space could be delivered to Tenant (the "Offer Space Scheduled Date"), and
(7) such other terms as Landlord may propose upon which Landlord would be
willing to lease the Offer Space to a third party tenant. The Lease Notice
shall
44
constitute an offer by Landlord to Tenant to lease all and not less than
all of the Offer Space identified in the Lease Notice. The parties hereto
agree that in no event, unless Landlord was grossly negligent or
intentionally lied to Tenant, shall the Deemed Rentable Square Footage
constitute or imply any representation by Landlord whatsoever as to the
actual size of the Offer Space.
(iii) Tenant shall have thirty (30) days following Landlord's
giving of the Lease Notice to deliver to Landlord written notice (the
"Election to Lease Notice" ) of Tenant's desire to lease from Landlord the
Offer Space for the Offer Rental and on such other terms as may be set
forth in the Lease Notice. Time shall be of the essence with respect to
said 30-day period and the failure or refusal of Tenant for any reason
whatsoever to deliver to Landlord the Election to Lease Notice in the time
and manner herein prescribed shall be deemed an irrevocable waiver of
Tenant's Right of First Offer as to the particular transaction and any
future lease of the Offer Space, whereupon Tenant's Right of First Offer
shall lapse, and be of no further force or effect.
(iv) If Tenant shall timely and in the manner herein prescribed
deliver its Election to Lease Notice and provided the Offer Space
Conditions are satisfied, then, on the date on which Landlord delivers
vacant possession of the Offer Space to Tenant (the "Offer Space Effective
Date"), the Offer Space shall become, and be deemed to comprise, part of
the Premises as if originally included in the demise hereunder, upon the
same terms, covenants and provisions of this lease, except (1) the Rent
shall be increased by the Offer Rental, (2) Tenant's Proportionate Share
shall be increased by the Deemed Tenant's Proportionate Share and (3) as
may be otherwise set forth in the Offer. Landlord shall use reasonable
efforts to deliver vacant possession of the Offer Space to Tenant on or
prior to the Offer Space Scheduled Date; provided, however, it is expressly
understood that the Offer Space Scheduled Date shall not be binding upon
Landlord and if Landlord is unable to deliver possession of the Offer Space
to Tenant for any reason on or prior to such date, the Offer Space
Effective Date shall be the date on which Landlord is able to so deliver
possession and Landlord shall not be subject to any liability and this
Lease shall not be impaired under such circumstances. Tenant hereby waives
any right to rescind this Lease under the provisions of Section 223(a) of
the Real Property Law of the State of New York, and agrees that the
provisions of this Article are intended to constitute "an express provision
to the contrary" within the meaning of said Section 223(a). Notwithstanding
the foregoing, if Landlord is unable to deliver vacant possession of the
Offer Space to Tenant on or prior to the six (6) month anniversary of the
Offer Space Scheduled Date, Tenant shall have the right, as and for its
sole remedy, by written notice to Landlord given within ten (10) days after
the five (5) month anniversary of the Offer Space Scheduled Date, to
rescind its Election to Lease Notice. Upon Landlord's receipt of Tenant's
notice to rescind (provided that Landlord shall not theretofore have
delivered to Tenant vacant possession of the Offer Space), the provisions
of this Section 40 shall automatically cease to apply to the Offer Space
and Landlord shall cease to have any further obligations to Tenant with
respect to the Offer Space, but the foregoing shall not affect Tenant's
rights or obligations under the Lease with respect to any other portion of
the Premises.
(v) If Tenant shall notify Landlord of Tenant's waiving of its
Right of First Offer, or if Tenant is deemed to have waived its Right of
First Offer, then the following shall apply:
(1) Tenant shall, immediately upon demand therefor by
Landlord, execute, in form for recording and as otherwise reasonably
required by Landlord, an instrument ("Waiver") confirming the waiver
of and extinguishing the Right of First
45
Offer and expressly reciting that the Waiver is given pursuant to
Article 40 of this Lease. If Tenant shall fail or refuse for any
reason to execute the Waiver within two (2) Business Days after demand
therefor by Landlord, then Landlord may execute the Waiver on Tenant's
behalf, without waiving any of Landlord's rights and remedies to
recover damages. Nothing herein shall be in derogation of Landlord's
right to damages (and/or to seek equitable relief, e.g., an action to
compel specific performance) which may be incurred by Landlord in such
event if another transaction is discontinued or terminated, with or
without an agreement having been entered into, as a result of or
attributable to Tenant's failure or refusal to have executed and
delivered the Waiver; and
(2) Landlord shall have a period of three hundred sixty-five
(365) days from the date of Landlord's receipt of the Waiver executed
by Tenant, to execute a lease for the Offer Space for not less than
eighty-five (8 5%) percent of the Net Effective Offer Rental (as
hereinafter defined) and on such other terms and conditions as are
substantially the same as, but not substantially more favorable to the
proposed lessee than, those contained in the Lease Notice. The term
"Net Effective Offer Rental " shall mean the net present value,
determined as of the commencement date of the proposed lease using a
discount rate of 10%, of the aggregate of all rent and additional rent
for taxes, operating expenses and electricity charges payable under
the proposed lease discounted from the date that any such payment
would have been made under the proposed lease to the commencement date
of such proposed lease, after deducting therefrom the amount of all
tenant inducements (such as, by way of example only, work allowances,
work letters and rent abatements) that are (or will be) granted to the
tenant thereunder, discounted, using a discount rate of 10%, from the
date that such tenant inducements were to have been given under the
proposed lease to the commencement date of such proposed lease. If a
lease for the Offer Space is not executed within the said 365-day
period, then the Right of First Offer accorded to Tenant in this
Section 40 shall be deemed revived and reinstated with respect to any
subsequent desire of Landlord to lease the Offer Space subsequent to
said 365-day period, but in no event be deemed to revive the
particular Right of First Offer theretofore waived or deemed waived by
Tenant. Notwithstanding the foregoing, in the event that Landlord
shall submit a new Lease Notice to Tenant within the 365-day period
applicable to a previous Waiver by Tenant and Tenant shall also waive
or be deemed to have waived its Right of First Offer as to the new
Lease Notice, then the provisions of the first two (2) full sentences
of this Section 40(v)(2) above shall be deemed to apply to the terms
and conditions of the new Lease Notice, and the terms of this sentence
shall always be applicable to the most recent Lease Notice with
respect to which Tenant shall have waived or been deemed to have
waived its Right of First Offer.
(vi) Any breach by Tenant of its obligations under this Section
40 shall entitle Landlord to any and all remedies available to Landlord at
law and in equity.
(vii) The Right of First Offer herein set forth is available only
to the Tenant first named in the heading of this Lease (i.e., NextVenue,
Inc.), and reference in this Section 40 to "Tenant" shall mean, and the
rights accorded in this Section 40 shall be available only to, NextVenue,
Inc.; and to no other person, party or entity whatsoever including, without
limitation, any assignee, licensee or subtenant of NextVenue, Inc.
(viii) Notwithstanding the foregoing, Tenant's Right to First
Offer shall not apply to, and the term Offer Space shall not include, any
space (1) which is subject to (w) a lease which grants the tenant
thereunder any rights of renewal or extension as to such space, (x) a
right,
46
option or obligation to lease such space hereafter acquired by any other
tenant or person, if such right, option or obligation arises pursuant to an
option or right to renew or extend the term of such lease contained in any
lease or a so-called "must-take" provision contained in any lease (i.e., a
provision whereby such tenant or person is obligated to take the space in
question upon the occurrence of certain events enumerated in such lease),
(y) an expansion option contained in any lease, or (z) an offer space or
available space option contained in any such lease, or (2) which Landlord
intends to offer to the existing tenant of such space notwithstanding the
absence of any renewal or extension rights in such tenant's existing lease.
(ix) Tenant and Landlord, respectively, shall indemnify, defend
and hold harmless the other from any claims for any brokerage commissions
or real estate consultant fees and all costs, expenses and liabilities in
connection therewith, including, without limitation, reasonable attorneys'
fees and expenses, arising out of any conversations or negotiations had by
Tenant or Landlord, respectively, with any broker or real estate consultant
other than Broker and any one claiming by, through or under Broker in
connection with the granting of the Right of First Offer, the exercise
thereof and consummation of the transaction(s) contemplated thereby.
(x) Landlord and Tenant shall, upon the request of the other
party, execute, acknowledge and deliver to the other party an instrument or
instruments in form reasonably satisfactory to both parties confirming the
addition of the Offer Space to the Premises, the Offer Space Effective
Date, the increase in the Rent, the increase in Tenant's Proportionate
Share and any other terms or conditions in respect of the Offer Space, but
any failure of the parties to execute, acknowledge and deliver such
instrument(s) shall not affect the validity of the leasing of the Offer
Space or any of the provisions of this Section 40.
41. SATELLITE DISHES. Tenant shall have the non-exclusive right to install,
inspect, adjust and maintain one or more satellite dishes (collectively,
"Satellite Dishes" ) on the Building rooftop at Tenant's sole risk, cost and
expense (said right is hereinafter referred to as "Tenant's Satellite Right" )
provided the installation, inspection, adjustment and maintenance of said
Satellite Dishes does not involve any penetration of the roof surface and such
installation is otherwise, in all respects, satisfactory to Landlord and its
roofing contractor (it being agreed that Tenant may, subject to Landlord's
reasonable approval, run a conduit from the roof to the Premises). The
dimensions and performance characteristics of said Satellite Dishes shall be
subject to Landlord's reasonable approval.
A. Satellite Rent. In consideration of Landlord's granting to Tenant
Tenant's Satellite Right, Tenant shall pay to Landlord, in addition to all Rent
and additional rent payable by Tenant under this Lease, an amount equal to the
product of (x) $13.50 and (y) the total number of square feet of space utilized
by Tenant in connection with Satellite Dishes ( "Satellite Rent"). Satellite
Rent shall be payable by Tenant on the first day of each month for each month
that a Satellite Dish is on the roof of the Building. Satellite Rent shall be
increased as of the second and each succeeding anniversary of the Rent
Commencement Date (each, an "Adjustment Date" ) to an amount equal to the
greater of (a) the product of (i) the Satellite Rent payable immediately prior
to the applicable Adjustment Date multiplied by (ii) 1.03, and (b) the product
of (i) the Satellite Rent payable immediately prior to such Adjustment Date
multiplied by (ii) a fraction (which shall in no event be less than 1/1), the
numerator of which is the CPI Index (as hereinafter defined) for the calendar
month which is three (3) months immediately preceding the month in which the
applicable Adjustment Date occurs and the denominator of which is the CPI Index
for the calendar month which is fifteen (15) months immediately preceding the
month in which the applicable Adjustment Date occurs (the resultant fraction for
the purposes of such calculation being carried to five (5) decimal places). In
no event shall the Satellite Rent be reduced on any Adjustment Date below the
Satellite Rent payable immediately prior to such Adjustment Date. For purposes
of this Lease, the "CPI Index " shall mean the Consumer Price Index for all
Urban Consumers, All Items, U.S.
47
City average (1967=100), published by the Bureau of Labor Statistics of the U.S.
Department of Labor (the "Bureau") or a successor or substitute index
appropriately adjusted. The CPI Index using the 1967 reference base shall be
used as long as such index is published by the Bureau. If the CPI Index using
the 1967 reference base ceases to be published by the Bureau, all CPI Index
numbers used in the calculations provided for herein shall be adjusted to the
new reference base, the adjustment factor provided by the Bureau being
conclusive., If at any time a change occurs in the terms, items or structure of
the CPI Index, the new and updated CPI Index (with the appropriate reference
base year) shall immediately upon its introduction be adopted for use in the
calculations provided for herein. If a correction is made to a previously
published CPI Index, the Satellite Rent payable by Tenant hereunder shall be
recalculated in accordance with such correction and Tenant shall pay to
Landlord, promptly upon demand, the amount of the deficiency, if any in
Satellite Rent theretofore paid by Tenant and Landlord shall credit Tenant
against future payments of Satellite Rent the amount of the excess Satellite
Rent paid by Tenant, if any. If no CPI Index (including a successor or
substitute index) is available, a reliable governmental or other publication,
selected by Landlord, evaluating the information theretofore used in determining
the CPI Index shall be used in determining the adjustment of Satellite Rent as
of succeeding Adjustment Dates.
B. Roof Access. Landlord and Tenant agree that Tenant's Satellite
Right will necessitate that Tenant have access to the rooftop of the Building.
To the extent that Tenant's Satellite Right expands the area of the Building to
which Tenant has access (the "new access areas"), then Landlord and Tenant agree
that any and all provisions of the Lease that apply to the Premises, including,
but not limited to, the Rules and Regulations, shall also apply to the new
access areas, except as modified herein and except to the extent that said Lease
provisions place any additional responsibilities on the Landlord with respect to
the new access areas. The precise location of the Satellite Dishes shall be
subject to the sole discretion of Landlord. Landlord shall also have the express
right to reject the proposed size and design of any or all of the Satellite
Dishes.
C. Tenant's Obligations.
(i) Increase in Landlord's Insurance Cost. If the rate of any
insurance carried by Landlord is increased as a result of the exercise of
Tenant's Satellite Right, then Tenant will pay to Landlord, as additional
rent, not later than thirty (30) days before the date Landlord is obligated
to pay a premium on the insurance or within ten (10) days after Landlord
delivers to Tenant a certified statement from Landlord's insurance carrier
stating that the rate increase was caused by Tenant's Satellite Right,
whichever date is later, a sum equal to the difference between the original
premium and the increased premium resulting solely from the installation of
the Satellite Dishes.
(ii) Rooftop Access. Landlord has not made any representations or
promises pertaining to physical condition of the Building's rooftop or its
suitability for the installation and maintenance of the Satellite Dishes.
Tenant, for the purpose of this Article 41 and its right to rooftop access
hereunder, accepts the rooftop in its "as is" condition. Without in any way
limiting Landlord's rights under this Lease, Landlord shall use
commercially reasonable efforts to minimize interference with Tenant's
rights under this Article 41.
(iii) Compliance With Laws. Tenant represents that it has
obtained, or will have obtained prior to installation, any and all
necessary licenses, approvals, permits, etc., necessary for the
installation, maintenance and operation of Tenant's Satellite Dishes.
Tenant's Satellite Right shall not in any way conflict with any applicable
law, statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted. Tenant will, at its sole cost and expense,
promptly comply or take all action necessary to enable the Building to
comply with all laws, statutes, ordinances, governmental rules or
regulations, or requirements of
48
any board of fire insurance underwriters or other similar bodies now or
hereafter constituted relating to or affecting Tenant's Satellite Right.
Tenant shall and hereby does indemnify and hold Landlord harmless from and
against any loss, cost (including reasonable attorneys' fees incurred in
defending Landlord), damage or liability arising out of any violations of
said laws, statutes, ordinances, rules or regulations. Tenant shall, at its
sole cost and expense, make any repairs to the rooftop which are
necessitated by the installation, maintenance or operation of the Satellite
Dishes. Such repairs shall be governed by the provisions of Section 4
hereof. Landlord may, at its option, after notice to Tenant, cause such
repairs to be made at the sole cost and expense of Tenant.
(iv) Operation. Tenant's Satellite Right shall, in all material
respects, be exercised: (1) in such manner as will not create any hazardous
condition or interfere with or impair the operation of the heating,
ventilation, air conditioning, plumbing, electrical, fire protection, life,
safety, public utilities or other systems or facilities in the Building or
the Premises or any other tenant in the Building; (2) in compliance with
all applicable laws, codes and regulations; (3) in such a manner as will
not directly or indirectly interfere with, delay, restrict or impose any
expenses, work or obligations upon Landlord in the use or operation of the
Building; (4) at Tenant's cost, including the cost of repairing all damage
attributable to the installation, inspection, adjustment, maintenance,
removal or replacement of the Satellite Dishes. In connection with the
installation of the Satellite Dishes, Tenant shall provide to Landlord:
(aa) a letter from a structural engineer reasonably acceptable to Landlord
certifying that the installation of the Satellite Dishes was properly
performed and that the integrity of the Building structure has not been
adversely affected in any material way by reason of such installation; and
(bb) written approval of Landlord's roofing contractor of the manner of
installation which shall not be unreasonably withheld or delayed.
(v) Insurance. Tenant will, at all times during the term of this
Lease, and at its cost and expense, ensure that the insurance policies to
be maintained by Tenant under Section 9 hereof are properly endorsed to
reflect the Satellite Dishes and Tenant's Satellite Right. Tenant agrees to
pay the premiums therefor and to deliver copies of said policies and/or
endorsements thereto to Landlord on the first day of the term of this
Lease, and the failure of Tenant to either obtain said insurance or deliver
copies of said policies or certificates thereof to Landlord shall be a
default under this Lease.
(vi) Indemnity. Tenant shall and hereby does indemnify and hold
harmless Landlord against and from any and all claims arising from the
Tenant's use of the new access areas and Tenant's installation, inspection,
adjustment and maintenance of the Satellite Dishes. Tenant assumes all risk
of damage to property or injury to persons, in, upon or about the new
access areas as a result of Tenant's installation, inspection, adjustment
and maintenance of the Satellite Dishes.
(vii) Landlord's Recapture. In conjunction with the Lease,
Landlord may, by giving thirty (30) days notice to Tenant, elect to retain
or dispose of in any manner the Satellite Dishes (the "Satellite Recapture
Right" ) if Tenant does not remove said Satellite Dishes from the rooftop
on the Lease Expiration Date or earlier termination of this Lease. If
Landlord notifies Tenant of its intent to exercise the Satellite Recapture
Right and Tenant does not remove the Satellite Dishes by the Expiration
Date, title to the Satellite Dishes shall, on expiration of the thirty (30)
day period, vest in Landlord. Additionally, Tenant shall be liable to
Landlord for any of Landlord's costs for storing, removing and disposing of
said Satellite Dishes. This provision shall survive the expiration or
termination of this Lease.
49
(viii) Non-Exclusivity. By granting the Tenant's Satellite Right,
Landlord does not covenant or agree that it has not conveyed or will not
convey in the future similar rights to other parties desiring to install
communications devices on the roof of the Building. In addition, Landlord
makes no representation whatsoever as to the suitability of the rooftop for
installation of the Satellite Dishes in terms of the quality of reception
of the Satellite Dishes, and does not warrant that the Satellite Dishes
will be free from interference from other devices placed upon the Building
or other buildings in the area.
(ix) Default. Tenant's Satellite Right shall terminate in the
event of an Event of Default under the Lease.
42. TENANT'S GENERATOR. (a) Subject to the provisions of Article 3,
Landlord will grant to Tenant, for Tenant's own use and not for resale purposes,
a non-exclusive license for an area to be designated by Landlord in Landlord's
reasonable discretion, for the construction, installation, operation and use by
Tenant of a 600 kilowatt diesel-powered electric generator and other related
equipment, including, but not limited to, mountings and supports (collectively
such equipment being hereinafter referred to, individually or collectively, as
"Tenant's Equipment"), at a location designated by Landlord. Tenant will have
full control over the maintenance and operation of Tenant's Equipment and may,
subject to Landlord's reasonable approval as to dimensions and location, install
a 3,000 gallon diesel fuel tank. Tenant will reimburse Landlord for the actual
cost of any diesel fuel used as measured by a fuel meter. In connection with the
foregoing, and subject to the rights of other tenants in the Building, Landlord
shall make available to Tenant access to the applicable area, for the
construction, installation, maintenance, repair, operation and use of Tenant's
Equipment. If Tenant requires riser space for electrical conduits connecting
Tenant's Equipment to the Premises, then, subject to the rights of other tenants
in the Building, and subject to the provisions of Article 3 hereof, Landlord
shall make available to Tenant, for Tenant's use solely in connection with
Tenant's Equipment, sufficient space in the Building, at a location reasonably
determined by Landlord, for the installation of a riser. All work in connection
with the installation of such riser, including core drilling, if required, shall
be performed at Tenant's sole cost and expense, including the cost of a fire
watch and related supervisory costs relating to any core drilling, which shall
be performed in such a manner and at such times as Landlord shall prescribe.
References herein to Tenant's Equipment shall be deemed to include such riser
and the electrical conduits appurtenant thereto. Without in any way limiting
Landlord's approval rights contained in this Article 42 or anywhere else in this
Lease, Landlord conditionally approves (i) the farthest west parking space in
the parking garage for the location of Tenant's Equipment and (ii) a separate
room within the basement of the Building which room is due east of the fuel oil
tank currently located thereat for the location of the aforementioned 3,000
gallon diesel fuel tank. With respect to each of the aforementioned spaces,
Landlord shall deliver same "AS IS", without in any way being obligated to
prepare such spaces for Tenant's use thereof or make any alterations to such
spaces whatsoever.
(b) The installation of Tenant's Equipment shall constitute
an Alteration and shall be performed at Tenant's sole cost and expense
in accordance with and subject to the provisions of Article 3 hereof.
All of the provisions of this Lease shall apply to the installation,
use and maintenance of Tenant's Equipment, including all provisions
relating to compliance with legal requirements and insurance
requirements, insurance, indemnity, repairs and maintenance. The
license granted to Tenant in this Article 42 shall not be assignable
by Tenant separately from this Lease. Tenant's Equipment shall be
treated for all purposes of this Lease as Tenant's Property. Tenant
shall pay to Landlord monthly, as Additional Rent upon demand, the
amount, determined by Landlord in its reasonable discretion, by which
Taxes imposed upon the Building have been increased on account of
Tenant's installation of Tenant's Equipment.
50
(c) Tenant shall have reasonable access at all times to, and
Landlord shall not interfere with, the use of the Equipment so as to
cause the functioning thereof to be materially interrupted or
impaired. Tenant shall use Tenant's Equipment so as not to cause any
interference to Landlord's use of the Building or the Real Property,
including the use by Landlord or other tenants or occupants of the
Building of equipment and facilities thereon, or damage to or
interference with the operation of the Building or systems. If
Tenant's Equipment interferes with or disturbs the reception or
transmission of communication signals by or from any antennas,
satellite, dishes or similar equipment installed by Landlord or any
other tenant in the Building on or before the installation by Tenant
of Tenant's Equipment, or if Tenant's Equipment interferes with the
operation of the Building or the Building systems, then Tenant, at its
sole cost and expense, shall relocate Tenant's Equipment to another
area designated by Landlord.
(d) Tenant acknowledges and agrees that the privileges
granted Tenant under this Article 42 shall merely constitute a license
and shall not, now or at any time after the installation of Tenant's
Equipment, be deemed to grant Tenant a leasehold or other real
property interest in the Building or any portion thereof. The license
granted to Tenant in this Article 42 shall co-exist with the Lease,
and shall not be revoked so long as this Lease has not been terminated
and shall automatically terminate and expire upon the expiration or
earlier termination of this Lease and the termination of such license
shall be self-operative and no further instrument shall be required to
effect such termination.
43. DOWNTOWN BENEFITS. Notwithstanding anything to the contrary contained
herein, in the event Tenant has not qualified for benefits under any New York
City downtown incentive program on or before thirty (30) days from the date
hereof, Tenant may, by written notice (the "Benefits Notice" ) to Landlord no
later than thirty-five (35) days from the date hereof (the "Contingency
Expiration Date"), TIME BEING OF THE ESSENCE WITH RESPECT THERETO, terminate
this Lease, whereupon all obligations and liabilities of both Landlord and
Tenant shall be extinguished, except for those obligations and liabilities which
expressly survive the termination of this Lease, provided, however, Tenant
reimburses Landlord immediately for all costs and expenses incurred by Landlord
in connection with the preparation and negotiation of this Lease, Landlord's
Core Work and Tenant's Initial Alteration, including, without limitation, fees
of attorneys, contractors and architects and costs and expenses associated with
applications for building permits and design approvals (as evidenced by copies
of invoices or receipts or other reasonably satisfactory documentation). Tenant
acknowledges and agrees that Landlord may, without notice to Tenant, and without
in any way limiting the amount which may be payable to Landlord hereunder, draw
down the L/C to reimburse Landlord for any such amounts which may be payable to
Landlord hereunder. In the event Landlord does not receive the Benefits Notice
on or before the Contingency Expiration Date, then such right to terminate the
Lease shall become null and void and of no further force and effect. Tenant
shall use its best efforts to promptly and diligently pursue any such benefits.
[NO FURTHER TEXT ON THIS PAGE]
51
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
LANDLORD:
100 XXXXXXX LLC,
a Delaware limited liability company
By: Taconic Investment Partners, L.L.C.,
Authorized signatory
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Principal
TENANT:
NEXTVENUE, INC.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: President
00-0000000
------------------------------------------
Tenant's Tax I.D. Number
52
EXHIBIT 1
Floor Plan of Premises
[MAP]
[MAP]
EXHIBIT 2
Intentionally Deleted
EXHIBIT 3
Current Cleaning Specifications
000 Xxxxxxx Xxxxxx
Cleaning of the building located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx Xxx Xxxx
including office space, entrance lobby, sidewalks, public halls, stairways, fire
tower, lavatories, passageways, elevator cabs, as provided for below. This does
not include vault areas, elevator shafts, elevator pits, kitchen or dining
rooms.
GENERAL CLEANING - Nightly
Dust sweep flooring with specially treated cloths to Insure dust free floors.
Wash ceramic tile, marble and terrazzo flooring in building entrance foyers.
Carpet sweep carpeted areas and rugs four nights each week and vacuum once each
week, moving light furniture other than desks, file cabinets, etc.
Sweep stairways; wash as necessary, ashtrays, receptacles, etc.; damp dust as
necessary.
Clean cigarette urns and replace sand or water necessary.
Remove wastepaper and waste materials to a designated area in the premises.
Waste or rubbish bags shall be supplied to us.
Dust and wipe clean furniture, fixtures, desk equipment, telephones and
windowsills with specially treated cloths.
Dust baseboards, chair rails, trim louvres, pictures, charts etc. within reach.
Wash drinking fountains and coolers.
Keep lockers and service closet rooms in clean and orderly condition.
LAVATORIES - Nightly
Sweep and wash flooring with approved germicidal detergent solution.
Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
Wash both sides of toilet seats, wash basins, bowls and urinals with approved
germicidal detergent solution.
Dust partitions, tile walls, dispensers and receptacles.
Empty and clean towels and sanitary disposal receptacles.
Remove wastepaper and refuse to a designated area in the premises, using special
janitor carriages.
Fill toilet tissue dispenses with supplies furnished by the Contractor.
ENTRANCE LOBBY - Nightly
Sweep and wash flooring; vacuum carpeting.
Spray buff lobby nightly.
If floor mats have been used during the day, they shall be washed.
Clean cigarette urns and replace sand or water as necessary.
Floors in elevator cabs will be properly maintained. If carpeted remove soluble
spots which safely respond to standard spotting procedure without risk of injury
to color or fabric.
Dust and rub down mail chutes and mail depositories.
Dust and rub down elevator doors, walls, metal work and saddles in elevator
cabs.
Dust walls up to twelve (12) feet and keep from fingermarks, smudges, etc.
PUBLIC AREAS - Periodic Cleaning
Elevator, stairway, office and utility doors on each floor will be checked for
general cleanliness, removing fingermarks as necessary.
Remove fingermarks from metal partitions and other similar surfaces as
necessary.
Wipe clean interior building metals necessary.
PUBLIC AREAS - High Dusting
Do high dusting every 3 months, which includes the following:
Dust pictures, frames, charts, graphs and similar wall hangings not reached in
nightly cleaning.
Dust exterior of light fixtures.
Dust overhead pipes, sprinklers, etc.
Dust window frames.
PUBLIC WAXING - QUARTERLY
All public corridors shall be scrubbed and waxed quarterly.
Dust vertical surfaces such as partitions, ventilating louvres, etc. not reached
in nightly cleaning.
Upon completion of the foregoing work assignments, lights shall be extinguished,
windows closed, doors locked, premises secured, and left in a neat and orderly
condition.
LAVATORIES - Periodic Cleaning
Machine scrub flooring with approved germicidal detergent solution, bi-monthly.
Wash partitions, tile walls and enamel surfaces with approved germicidal
detergent solution once a month.
Dust exterior of lighting fixtures once a month.
High dusting once a month.
ENTRANCE LOBBY - Periodic Cleaning
Machine scrub flooring, one time each month and apply wax.
Clean lights, globes and fixtures as necessary.
Dust down walls once a month.
Rub down metal and other high level bright work as necessary.
DAY SERVICES - DUTIES OF DAY PORTERS
Police areas in lobby.
Police elevator cabs in main level
Fill toilet tissue dispensers in lavatories supplies furnished by the
Contractor.
Clean basement corridors and utility areas.
Police employee's locker rooms so that they are kept in clean condition.
Sweep and hose sidewalks, weather permitting; shovel snow when necessary.
Set out rubber mats on rainy days; keep in clean condition.
Sweep and dust stairways and fire tower; dust handrails; spindles; newels and
stair stringers, wash stairs as necessary.
Keep frames of entrance doors in clean condition.
Clean standpipes and sprinkler connections as necessary.
If directed by building management, equipment rooms, fan rooms, etc. shall be
swept regularly.
Wipe down exterior metal work, marble, etc. of building entrances as necessary.
It is assumed that store or ground floor tenants will pay for exterior
maintenance.
WINDOW CLEANING
1. Clean all entrance doors five times a week, Monday through Friday, and
transoms, once a week.
2. Clean all perimeter office windows, both exterior and interior four times a
year.
3. All window cleaning will be performed during the regular working hours of
7:00 a.m. to 3:30 p.m., Monday through Friday, excluding Saturdays and
Sundays, and Union Holidays.
4. No exterior window washing will be done on days of rain, sleet, or snow,
but will be performed as soon as possible thereafter.
SCHEDULE OF CLEANING:
Night cleaning service shall be rendered five nights each week, Monday through
Friday, except on union and legal holidays.
Day services shall be rendered five days each week, Monday through Friday,
except on union and legal holidays.
EXHIBIT 4
Form of Letter of Credit
[BANK LETTERHEAD]
100 Xxxxxxx LLC
c/o _______________________
___________________________
___________________________
Re: Irrevocable Clean Standby Letter of Credit
By order of our client, ____________________, we hereby open our irrevocable
clean standby Letter of Credit No. ___ in your favor for an amount not to exceed
in the aggregate __________ ($________) Dollars effective immediately.
Funds under this Letter of Credit are available to you against your sight draft
on us mentioning thereon our Credit No. ________________________.
This Letter of Credit shall expire on _________________, ________, 2000;
provided, however, that it is a condition of this Letter of Credit that it shall
be deemed automatically extended, from time to time, without amendment, for one
year from the expiry date hereof and from each and every future expiry date,
unless at least forty-five (45) days prior to any expiry date we shall notify
you by registered or certified mail (return receipt requested) or overnight
courier service delivered to the above indicated address that we elect not to
consider this Letter of Credit renewed for any such additional period.
Upon receipt of such notice, but on or before the then expiration date, you may
draw the full amount hereunder by means of your sight draft drawn on us,
accompanied by your written statement purportedly signed by one of your
authorized representatives reading as follows: "We are in receipt of written
notice from you of your election not to renew your Letter of Credit No.
_____________, and we have not received an acceptable replacement Letter of
Credit as of the date of our drawings."
This Letter of Credit is transferable in full, not in part, without any fees or
charges and may be transferred one or more times upon receipt of your written
instructions.
[Insert standard provision for the right to transfer the letter of credit in
accordance with the Uniform Customs and Practice for Documentary Credits
referred to below.]
We hereby agree with you that all drafts drawn with the terms of this Letter of
Credit will be duly honored upon presentment and delivery to our office at on or
prior to the expiry date, or as the same may from time to time be extended.
Partial drawings are permitted.
Except as otherwise specified herein, this Letter of Credit is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500.
Very truly yours,
[Name of Bank]
By:
SCHEDULE A
RULES AND REGULATIONS
I. The rights of each tenant in the Building to the entrances, corridors and
elevators of the Building are limited to ingress to and egress from such
tenant's premises and no tenant shall use, or permit the use of the
entrances, corridors, or elevators for any other purpose. No tenant shall
invite to its premises, or permit the visit of persons in such numbers or
under such conditions as to interfere with the use and enjoyment of any of
the plazas, entrances, corridors, elevators and other facilities of the
Building by other tenants. No tenant shall encumber or obstruct, or permit
the encumbrances or obstruction of any of the sidewalks, plazas, entrances,
corridors, elevators, fire exits or stairways of the Building. Landlord
reserves the right to control and operate the public portions of the
Building, the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as Landlord deems best for the
benefit of the tenants generally.
II. Landlord may refuse admission to the Building outside of ordinary business
hours to any person not known to the watchman in charge or not having a
pass issued by Landlord or not properly identified, and may require all
persons admitted to or leaving the Building outside of ordinary business
hours to register. Tenants' employees, agents and visitors shall be
permitted to enter and leave the Building whenever appropriate arrangements
have been previously made between Landlord and the tenant with respect
thereto. Each tenant shall be responsible for all persons for whom it
requests such permission and shall be liable to Landlord for all acts of
such persons. Any person whose presence in the Building at any time shall,
in the judgment of Landlord, be prejudicial to the safety, character,
reputation or interests of the Building or its tenants may be denied access
to the Building or may be ejected therefrom. In case of invasion, riot,
public excitement or other commotion Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or
otherwise, for the safety of the tenants and protection of property in the
Building. Landlord may require any person leaving the Building with any
package or other object to exhibit a pass from the tenant from whose
premises the package or object is being removed, but the establishment and
enforcement of such requirement shall not impose any responsibility on
Landlord for the protection of any tenant against the removal of property
from the premises of any tenant. Landlord shall, in no way, be liable to
any tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from a tenant's premises or the Building under
the provisions of this rule.
III. No tenant shall obtain or accept for use in its premises ice, drinking
water, towels, barbering, boot blacking, floor polishing, lighting
maintenance, cleaning or other similar services from any persons not
authorized by Landlord in writing to furnish such services. Such services
shall be furnished only at such hours, in such places within the tenant's
premises and under such regulation as may be fixed by Landlord.
IV. No window or other air-conditioning units shall be installed by any tenant,
and only such window coverings as are supplied or permitted by Landlord
shall be used in a tenant's premises.
V. There shall not be used in any space, nor in the public halls of the
Building, either by any tenant or by jobbers, or other in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
VI. All entrance doors in each tenant's premises shall be left locked when the
tenant's premises are not in use. Entrance doors shall not be left open at
any time. All windows in each tenant's premises shall be kept closed at all
times and all blinds therein above the ground floor shall be
lowered when and as reasonably required because of the position of the
sun, during the operation of the Building air-conditioning system to
cool or ventilate the tenant's premises.
VII. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might unreasonably
disturb other tenants in the Building, shall be made or permitted by
any tenant. No dangerous, inflammable, combustible or explosive object,
material or fluid shall be brought into the Building by any tenant or
with the permission of any tenant.
VIII. All damages resulting from any misuse of the plumbing fixtures shall be
borne by the tenant who, or whose servants, employees, agents, visitors
or licensees, shall have caused the same.
IX. Each tenant shall be required to use Landlord's designated locksmith and
may only install such locks and other security devices as Landlord
approves. Each tenant shall furnish Landlord with keys to its respective
premises so that Landlord may have access thereto for the purposes set
forth in the Lease. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows in any tenant's premises and no
lock on any door therein shall be changed or altered in any respect.
Duplicate keys for a tenant's premises and toilet rooms shall be procured
only from Landlord, which may make a reasonable charge therefore. Upon
the termination of a tenant's lease, all keys of the tenant's premises
and toilet rooms shall be delivered to Landlord.
X. Each tenant, shall, at its expense, provide artificial light in the
premises for Landlord's agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
XI. No tenant shall install or permit to be installed any vending machines.
XII. No animals or birds, bicycles, mopeds or vehicles of any kind shall be
kept in or about the Building or permitted therein.
XIII. No furniture, office equipment, packages or merchandise will be received
in the Building or carried up or down in the elevator, except between
such hours as shall be designated by Landlord. Landlord shall prescribe
the charge for freight elevator use and the method and manner in which
any merchandise, heavy furniture, equipment or safes shall be brought in
or taken out of the Building, and also the hours at which such moving
shall be done. No furniture, office equipment, merchandise, large
packages or parcels shall be moved or transported in the passenger
elevators at any time.
XIV. All electrical fixtures hung in offices or spaces along the perimeter of
any tenant's Premises must be fluorescent, of a quality, type, design
and bulb color approved by Landlord unless the prior consent of Landlord
has been obtained for other xxxxxxx.
XV. The exterior windows and doors that reflect or admit light and air into
any premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by any tenant, nor shall
any articles be placed on the windowsills.
XVI. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent same.
XVII. No tenant shall do any cooking, conduct any restaurant, luncheonette or
cafeteria for the sale or service of food or beverages to its employees
or to others, except as expressly approved in writing by Landlord. In
addition, no tenant shall cause or permit any odors of cooking or other
processes
or any unusual or objectionable odors to emanate from the premises. The
foregoing shall not preclude tenant from having food or beverages
delivered to the premises, provided that no cooking or food preparation
shall be carried out at the premises.
XVIII. No tenant shall generate, store, handle, discharge or otherwise deal with
any hazardous or toxic waste, substance or material or oil or pesticide
on or about the Real Property.
SCHEDULE B-1
LANDLORD'S CORE WORK
I. Landlord agrees, at its sole cost and expense and without charge to
Tenant, to do the following work in the Premises, all of which shall be of
design, capacity, finish and color of the building standard adopted by Landlord
for the Building hereinafter called "Building Standard":
Demolish and remove existing tenant improvements with floors left broom
clean:
Replace and repair any broken window panes.
Provide panel and hook-up points to Class E system, with the hook-up panels
no further than one floor from the Premises.
Deliver HVAC in good working condition.
Provide tenant with a duly completed ACP-5 Form which will be sufficient
for the tenant to perform alterations in accordance with "final plans."
Repair/refurbish all convector covers.
Cosmetically repair/refurbish men's and women's rest rooms.
Install a demising wall and a wall for a common corridor on the ninth (9th)
floor of the Premises.
III. Landlord shall perform Landlord's Core Work simultaneously with
Tenant's Initial Alteration and shall endeavor to substantially complete same on
or before the date which is thirty (30) days after the Contingency Expiration
Date (the "Landlord's Core Work Anticipated Completion Date"). Tenant and
Landlord, respectively, shall not interfere with the other's performance of
Landlord's Core Work and Tenant's Initial Alteration, as the case may be, and
shall coordinate Tenant's Initial Alteration and Landlord's Core Work,
respectively, so that it does not interfere with the performance of the other
party's work.
SCHEDULE B-2
TENANT'S INITIAL ALTERATION
I. Tenant shall perform or cause the performance of Alterations in and to
the Premises to prepare same for Tenant's initial occupancy thereof ("Tenant's
Initial Alteration"), which Tenant's Initial Alteration shall include, without
limitation, the following installations in and to the common areas on the ninth
(9th) floor: wall-to-wall carpeting, ceilings and lighting fixtures. All
Alterations to be performed by Tenant shall be, at a minimum, of a quality and
standard equivalent to the standards for construction reasonably set by
Landlord, from time to time, for the Building, and shall be subject to the prior
approval of Landlord as set forth in Article 3 hereof. Tenant shall submit to
Landlord or, at Landlord's direction, Landlord's Consultant, complete and
detailed architectural, mechanical and engineering plans and specifications
prepared by an architect or engineer licensed in the State of New York and
reasonably approved by Landlord, which plans and specifications shall be stamped
and certified by such architect or engineer, showing Tenant's Initial
Alteration, which plans and specifications shall be prepared by Tenant, at
Tenant's own cost and expense. Tenant's plans and specifications shall include
all information necessary to reflect Tenant's requirements for the design and
installation of any supplemental air-cooling equipment, ductwork, heating,
electrical, plumbing and other mechanical systems and all work necessary to
connect any nonstandard facilities to the Building's base mechanical, electrical
and structural systems. Tenant's submission shall include not less than three
(3) sets of sepias and five (5) sets of black and white prints.
II. Tenant shall not perform work which would (a) require changes to
structural components of the Building or the exterior design of the Building,
(b) require any material modification to the Building's mechanical installations
or other Building installations outside the Premises, (c) not be in compliance
with all applicable laws, rules, regulations and requirements of any
governmental department having jurisdiction over the Building and/or the
construction of the Premises, including but not limited to, the Americans with
Disabilities Act of 1990, or (d) be incompatible with the Certificate of
Occupancy for the Building. Any changes required by any governmental department
affecting the construction of the Premises shall be performed at Tenant's sole
cost.
III. At the time that Tenant submits its plans and specifications to
Landlord for Landlord's approval, such plans and specifications must be
transmitted to Landlord with a cover letter specifically stating that "the
enclosed plans and specifications are being transmitted to Landlord for its
review and approval pursuant to the terms of the Lease." Landlord or Landlord's
Consultant shall respond to Tenant's request for approval of any plans and
specifications described in subsection I above within ten (10) business days
following the submission of such plans and specifications prepared in accordance
with the terms hereof. In the event Landlord or Landlord's Consultant shall
disapprove of all or a portion of any of Tenant's plans and specifications, such
disapproval shall be set forth in writing and shall include the reasons therefor
in reasonable detail, in which event Tenant shall revise such plans and
specifications and resubmit same to Landlord within five (5) business days
thereafter, time being of the essence. Landlord or Landlord's Consultant shall
respond to Tenant's request for consent of any such revised plans within five
(5) business days following resubmission. The approval of plans and
specifications by Landlord or Landlord's Consultant (hereinafter referred to as
the "Final Plans") together with Tenant's satisfactory compliance with the
requirements set forth in items (1) through (4) of Schedule D annexed hereto,
shall be deemed an authorization for Tenant to proceed with Tenant's Initial
Alteration, which shall be performed in accordance with the provisions of
Article 3 and Schedule D of this Lease. Tenant shall reimburse Landlord for any
reasonable fees of Landlord's Consultant incurred in connection with Tenant's
Initial Alteration. Neither the recommendation or designation of an architect or
engineer nor the approval of the final plans and specifications by Landlord or
Landlord's Consultant shall be deemed to
create any liability on the part of Landlord with respect to the design or
specifications set forth in the Final Plans.
IV. Landlord agrees to reimburse Tenant for the cost of Tenant's Initial
Alteration, as approved by Landlord or Landlord's Consultant and made by Tenant
within eight (8) months of the Commencement Date to the extent of the lesser of
(i) $1,050,945.00 or (ii) the actual cost to Tenant for Tenant's Initial
Alteration ("Landlord's Contribution"). Provided this Lease is in full force and
effect and Tenant is not in default hereunder, Landlord's Contribution shall be
paid by progress payments as follows: on or before the first (1st) day of each
calendar month, Tenant may submit to each of Landlord and Landlord's Consultant
an application and certificate for payment (standard AIA Form G702) for that
portion of Tenant's Initial Alteration previously completed, which application
and certificate for payment must be accompanied by (a) all information and
documents required thereunder and (b) a partial lien waiver executed by the
general contractor (the "General Contractor") and its subcontractors employed in
connection with Tenant's Initial Alteration covering work previously paid for
out of prior progress payments. Provided Landlord's architect verifies in
writing that the work described in any such application and certificate for
payment has been completed in accordance with the Final Plans, Landlord, on or
about the thirtieth (30th) day of such calendar month shall remit to Tenant
ninety percent (90%) of the amount so requisitioned by Tenant or such other
amount as is approved by Landlord, based on the portion of Tenant's Initial
Alteration which has been completed, with ten (10%) percent to be retained until
final payment of Landlord's Contribution is due pursuant to the terms of this
Subsection IV. Provided this Lease is in full force and effect and Tenant is not
in default hereunder, Landlord shall pay the balance of Landlord's Contribution
to Tenant within thirty (30) days of submission by Tenant of (a) paid receipts
(or such other proof of payment as Landlord shall reasonably require) for work
done in connection with Tenant's Initial Alteration, (b) a written statement
from Tenant's architect or engineer that the work described on any such invoices
has been completed in accordance with the Final Plans, (c) a lien waiver
executed by the General Contractor, (d) proof reasonably satisfactory to
Landlord that Tenant has complied with all of the conditions set forth in this
Schedule B (as applicable), which shall include, without limitation, submission
of all of the items described on Schedule D annexed hereto and made a part
hereof and (e) two (2) complete sets of "as-built" Final Plans. Tenant may use
no more than 15% of Landlord's Contribution towards soft costs incurred in
respect of Tenant's Initial Alteration.
SCHEDULE C
REQUIREMENTS FOR
"CERTIFICATES OF FINAL APPROVAL"
1. All required Building Department Forms must be properly filled out and
completed by the approved architect/engineer of record or Building Department
expediter, as required.
2. All forms are to be submitted to the Landlord for the owner's review and
signature prior to submission of final plans and forms to the New York City
Building Department, as required.
3. All pertinent forms and filed plans are to be stamped and sealed by a
licensed architect and/or professional engineer, as required. All controlled
inspections are to be performed by the architect/engineer of record unless
approved otherwise by the Landlord.
4. A copy of all approved forms, permits and approved Building Department plans
(stamped and signed by the New York City Building Department) are to be
submitted to the building office prior to start of work.
5. Copies of all completed inspection reports and Building Department Sign-offs
are to be submitted to the building office immediately following completion of
construction, as required.
6. All claims, violations or discrepancies with improperly filed plans,
applications, or improperly completed work shall become the sole responsibility
of the applicant to resolve, as required.
7. All charges to previously approved plans and applications must be filed under
an amended application, as required. The Landlord reserves the right to withhold
approvals to proceed with changes until associated plans are properly filed with
the New York City Buildings Department, as required.
8. The architect/engineer of record accepts full responsibility for any and all
discrepancies or violations which arise out of non-compliance with all local
laws and building codes having jurisdiction over the work.
9. The Landlord reserves the right to reject any and all work requests and new
work applications that are not properly filed or accompanied by approved plans
and building permits.
10. All ACP's and asbestos inspections must be conducted by a licensed and fully
qualified asbestos inspection agency approved by the Landlord.
Checklist of "Certificates of Final Approval" required to be furnished by
Tenant pursuant to Article 3 (Alterations) of Lease.
These forms must be furnished by the Architect/ Engineer of record or
Building Department expediter (filing agency) and approved by the Landlord prior
to submitting all plans and forms to the New York City Building Department for
final approval.
These forms must be furnished in order for Tenant to receive "Landlord's
Contribution."
Form Description
---- -----------
______* PW- 1 Building Notice Application (Plan work approval application)
______* PW-l B Plumbing/Mechanical Equipment
Application and Inspection Report
______* PW- 1 Statement Form B
______* TR- 1 Amendment Controlled Inspection Report
______ PW-2 Building Permit Form (All Disciplines)
______ B Form 708 Building Permit "Card"
______* TR- 1 Certification of Completed Inspection and Certified Completion Letter
by Architect/Engineer of record or Building Department expediter
______ PW-3 Cost Affidavit Form
______ PW-4 Equipment Use Application Form
______* PW-6 Revised Certificate of Occupancy for change in use (if applicable)
______ Form ACP7 New York City Department of
or Environmental Protection Asbestos
Form ACPS Inspection Report as prepared by a licensed
and approved asbestos inspection agency
Building Department Equipment Use Permits for all new HVAC equipment
installed under this application
Revised Certificate of Occupancy for change in use (if applicable)
*These items must be perforated (with the date and New York City Building
Department Stamp) to signify New York City Building Department Approval. All
forms must bear proper approvals and sign-offs prior to authorization given by
the Landlord to proceed with the work.
SCHEDULE D
TENANT ALTERATION WORK AND NEW CONSTRUCTION
CONDITIONS AND REQUIREMENTS
1. No Alterations are permitted to commence until original Certificates of
Insurance, required from Tenant's general contractor (the "General
Contractor") and all subcontractors complying with the attached
requirements are on file with the Building office.
2. All New York City Building Department applications with assigned BN# and
permits must be on file with the Building office prior to starting work. A
copy of the building permit must also be posted on the job site by the
General Contractor. The General Contractor shall make all arrangements with
Landlord's expediter for final inspections and signoffs prior to
substantial completion.
3. The General Contractor shall comply with all Federal, State and local laws,
building codes, OSHA requirements, and all laws having jurisdiction over
the performance and handling of the Alterations.
4. The existing "Class E" fire alarm system (including all wiring and
controls), if any, must be maintained at all times. Any additions or
alterations to the existing system shall be coordinated with the Building
office as required. All final tie-in work is to be performed by Landlord's
fire alarm vendor and coordinated by the General Contractor. All costs for
the tie-ins are reimbursable to Landlord by Tenant.
5. All wood used, whether temporary or not, such as blocking, form work,
doors, frames, etc. shall be fire rated in accordance with the New York
City Building and Fire Code requirements governing this work.
6. Building standby personnel (i.e. Building operating engineer and/or
elevator operator), required for all construction will be at Landlord's
discretion. Freight elevators used for overtime deliveries must be
scheduled in writing with Landlord at least 24 hours in advance, as
required. All costs associated are reimbursable to Landlord by Tenant.
7. The General Contractor shall comply with the Rules and Regulations of the
Building elevators and the manner of handling materials, equipment and
debris to avoid conflict and interference with Building operations. All
bulk deliveries or removals will be made prior to 8:00 a.m. and after 5:00
p.m. or on weekends, as required.
8. No exterior hoisting will be permitted. All products or materials specified
are to be assembled on-site, and delivered to the site in such a manner so
as to allow unobstructed passage through the Building's freight elevator,
lobbies, corridors, etc.
The General Contractor will be responsible for protection of all finished
spaces, as required.
9. All construction personnel must use the freight elevator at all times. Any
and all tradesman found riding the passenger elevators without prior
approval from Landlord will be escorted out of the Building and not be
allowed re-entry without written approval from the Building office.
10. During the performance of Alterations, Tenant's construction supervisor or
job superintendent must be present on the job site at all times.
11. During the performance of Alterations, all demolition work shall be
performed after 6:00 p.m. during the week or on weekends. This would
include carting or rubbish removal as well as performing any operations
that would disturb other Building tenants or other occupants (drilling,
chopping, grinding, recircuiting, etc.).
12. No conduits or cutouts are permitted to be installed in the floor slab
without prior written approval from Landlord. Landlord reserves the right
to restrict locations of such items to areas that will not interfere with
the Building's framing system or components. No conduits or cutouts are
permitted outside of Tenant's Premises.
13. Plumbing connections to Building supply, waste and vent lines are to be
performed after normal working hours, and coordinated with the Building
manager, and are to include the following minimum requirements:
A. Separate shutoff valves for all new hot and/or cold water supply lines
(including associated access doors).
B. Patch and repair of existing construction on floor below, immediately
following completion of plumbing work (to be performed after normal
working hours, as required).
14. The General Contractor must coordinate all work to occur in public spaces,
core areas and other tenant occupied spaces with Landlord, and perform all
such work after normal working hours (to include associated patch and
repair work). The General Contractor shall provide all required protection
of existing finishes within the affected area(s).
15. The General Contractor must perform all floor coring, drilling or trenching
after normal business hours, and obtain Landlord's permission and approval
of same prior to performing such work.
16. Convector mounted outlets and associated conduits, wiring, boxes, etc.,
shall be located and installed in areas where they will not hinder the
operation or maintenance of existing fan coil units or prevent removal or
replacement of access panels or removable covers.
17. The General Contractor shall be responsible for all final tests,
inspections and approvals associated with all modifications, deletions or
additions to Building Class "E" systems and equipment.
18. Recircuiting of existing power/lighting panels and circuits affecting
Building and/or tenant operations are to be performed after normal business
hours and coordinated with the Building office in advance, as required.
19. All burning and welding to be performed in occupied or finished areas shall
be performed after normal business hours and coordinated with the Building
office in advance, as required. Proper ventilation of the work area will be
required in order to perform this work.
20. The General Contractor shall provide Taconic Investment Partners, L.L.C.
and the Building office with all approved submittal and closeout documents
as well as all required final inspections and Building Department sign-offs
just prior to or immediately following completion of construction.
21. Any and all alterations to the Building sprinkler system (including
draining of system) are to be performed after normal business hours and
coordinated with the Building office, as required. All
costs associated with the shut down, drain and refill of the sprinkler
system are reimbursable to Landlord.
22. The General Contractor shall be responsible for any and all daily cleanup
required to keep the job site clean throughout the entire course of the
Alterations. No debris shall be allowed to accumulate in any public spaces.
23. The General Contractor shall be responsible for proper protection of all
existing finishes and construction for Alterations to be performed in
common Building areas. All Alterations to be performed in occupied areas
outside of the Premises shall be performed after normal business hours and
coordinated with the Building office, as required;
24. The General Contractor shall perform any and all hoisting associated with
the Alterations after normal business hours. The General Contractor will
obtain all required permits and insurance to perform work of this nature.
The General Contractor shall specify hoisting methods and provide all
required permits and insurance to Taconic Investment Partners, L.L.C. and
the Building office prior to commencement of Alterations.
25. Union labor shall be used by all contractors and subcontractors performing
any and all Alterations within the Building. All contractors and
subcontractors shall perform all work in a professional manner, and shall
work in close harmony with one another as well as with the Building
management and maintenance personnel.
26. The General Contractor shall forward complete copies of all approved
contractor submittal, and Building and Fire Department sign-offs and
Statement of Responsibility forms, to the Building office immediately
following completion of construction.
INSURANCE REQUIREMENTS
Prior to commencement of the Work and until completion and final acceptance of
the same, the Contractor and each and every Subcontractor of the Contractor
shall, at its sole expense, maintain the following insurance on its own behalf,
and furnish to the Owner certificates of insurance evidencing same and
reflecting the effective date of such coverage as follows:
The term "Contractor & Subcontractor" as used in this Insurance Rider, shall
mean and include Contractors and Subcontractors of every tier.
A. Worker's Compensation and Occupational Disease Insurance in accordance with
applicable law or laws.
B. Employer's Liability Insurance with Limits of Liability of at least Five
Hundred Thousand ($500,000.00) Dollars.
C. Commercial General Liability Insurance written on an occurrence basis with
a combined Personal Injury, Bodily Injury and Property Damage limit of at
least One Million ($1,000,000.00) Dollars per occurrence and Five Million
($5,000,000.00) Dollars combined single limit umbrella policy, including
the following perils:
1. Broad Form Blanket Contractual Liability for liability assumed under
this Agreement and all other contracts relative to the Work.
2. Premises/Operations.
3. Completed Operations/Products Liability with a two (2) year extension
beyond completion and acceptance of the Work.
4. Broad Form Property Damage.
5. "XC&U" Perils, where applicable.
6. Personal Injury Liability (A, B & C).
7. Independent Contractors.
8. Elevator Collision Insurance, where applicable.
9. Endorsements (GL2010) and Certificates of Insurance must be furnished
reflecting the inclusion of the interests of the following parties as
additional insureds:
100 Xxxxxxx LLC
c/o Taconic Investment Partners, L.L.C.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Taconic Investment Partners, L.L.C.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
10. Endorsements must be furnished that "The General Aggregate limit
applies separately to each project" unless a "comprehensive" general
liability policy is being provided.
11. Coverage is to be endorsed to reflect that insurance is to be primary
for the Contractor, the Owner and all other additional insureds.
12. Coverage is to be provided on an "occurrence" basis, if available. If
not available, coverage on a "claims made" basis will be acceptable
provided that both the retroactive date and available limits remaining
are properly indicated and if the policy form is acceptable to the
Owner.
13. A copy of policy endorsement(s) and any other documents required to
verify such insurance are to be submitted with the appropriate
certificate(s).
D. Comprehensive Automobile Liability Insurance covering the use of all owned,
non-owned, and hired vehicles with a combined bodily injury and property
damage limit of at least One Million ($1,000,000.00) Dollars.
E. Where an off site property exposure exists, the Contractor, at its sole
expense, shall furnish to the Owner a certificate of insurance and other
required documentation evidencing that the Contractor is maintaining "All
Risk" Property Insurance on all materials, equipment and supplies stored
off site which are intended to become a permanent part of the Project Site,
while off site and while in transit, until actually delivered to the
Project Site. Coverage is to be provided on a replacement cost basis. In
addition, such coverage shall provide for the interest of 685 Acquisition
LLC and Emmes Asset Management Corp. to be named as loss payees and shall
contain a provision requiring the insurance carriers to waive their rights
of subrogation against all additional insureds named in this Rider.
F. All of the above insurance shall each contain the following working
verbatim
"This insurance will not be canceled, materially changed or not renewed
without at least a thirty (30) day advance written notice to 100 Xxxxxxx
LLC, c/o Taconic Investment Partners, L.L.C., 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, by certified mail-return receipt requested, with a copy to the
Owner's counsel, Solomon and Xxxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq.
G. The amount of insurance contained in aforementioned insurance coverages,
shall not be construed to be a limitation of the liability on the party of
the Contractor or any of its Subcontractors.
H. The Contractor shall file certificates of insurance prior to the
commencement of the Work with the Owner which shall be subject to the
Owner's approval of adequacy of protection and the satisfactory character
of the insurer. In the event of failure of the Contractor to furnish and
maintain said insurance and to furnish satisfactory evidence thereof, the
Owner shall have the right (but not the obligation) to take out and
maintain the same for all parties on behalf of the Contractor who agrees to
furnish all necessary information thereof and to pay the cost thereof to
the Owner immediately upon presentation of a xxxx.
I. Owner and its agents are not responsible for any temporary structures on or
around the Project Site or any of contractor's tools and equipment or any
material, equipment or supplies located away from or in transit to the
Project Site.
NOTE: In addition to the standard policy exclusions:
1. No coverage is provided for temporary structures and the Contractors
or Subcontractors tools and equipment.
2. No coverage is provided for losses resulting from flood and
earthquake.
3. No coverage is provided for any material, equipment, or supplies
located away from or in transit to the Project Site.
J. Any type of insurance or any increase of limits of liability not described
above which the Contractor requires for its own protection or on account of
statute shall be its own responsibility and at its own expense.
K. The carrying of the insurance described shall in no way be interpreted as
relieving the Contractor of any responsibility of liability under this
Agreement.
L. Any policies effected by the Contractor or any of its Subcontractors on
their owned and/or rented equipment and materials shall contain a provision
requiring the insurance carriers to waive their rights of subrogation
against the Owner and all other indemnities named in this Agreement.
M. Should the Contractor engage a Subcontractor, the same conditions apply
under this Agreement to each Subcontractor.
FIRST AMENDMENT TO AGREEMENT OF LEASE
This First Amendment dated as of January 20, 2000 between Lighthouse 100
Xxxxxxx LLC, as Landlord, and NextVenue, Inc., as tenant
WHEREAS, Landlord's predecessor and Tenant have entered into a certain
Agreement of Lease dated as of July 7, 1999 (the "Lease") covering the entire
eighth (8th) floor and a portion of the ninth (9th) floor (the "Premises") of
the building located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.; and
WHEREAS, Landlord and Tenant desire to amend the Lease to supplement
Article 42 thereof with respect to Tenant's right to install a generator at the
Building upon the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Recitals. The foregoing recitations are true and correct and by this
reference are incorporated herein.
2. Conflict. In the event of a conflict between the terms of this First
Amendment and the Lease, the terms of this First Amendment shall be controlling
to the extent of any such conflict.
3. Terms. Unless specifically defined herein, capitalized terms used herein
shall have the same meaning as ascribed to them in the Lease.
4. Generator. Supplementing Article 42 of the Lease, Tenant shall have the
right to install a generator in the parking garage of the Building in the area
designated on Exhibit "A" annexed hereto subject to the following terms and
conditions: (i) all testing of the generator shall occur on non-business days in
the presence of Landlord or its representative and Tenant shall pay any
reasonable out-of-pocket overtime charges actually incurred by Landlord in order
to have its representative present at such testing; (ii) Tenant shall be
responsible, at its sole cost and expense, to maintain and repair the generator
and shall cause the same to be removed from the Premises at the expiration of
the Term; (iii) any contract entered into by Tenant to maintain or repair the
generator shall be subject to the prior written approval of Landlord, which in
any event shall not be unreasonably withheld and given within (or not given, as
the case may be) seven (7) days after Landlord's receipt thereof; (iv) Landlord
shall provide, at Tenant's expense, the additional risers required to allow for
800 amps of service to the 8th floor (it being understood that the total cost
for the same shall be the cost of installation plus a connection fee of $166,260
payable as follows: $96,260 upon execution of this First Amendment and $70,000
on the first anniversary of this First Amendment); (v) Tenant shall install the
generator, Tenant's Equipment and the fuel tank during Overtime Periods and
shall pay Landlord for the reasonable out-of-pocket cost actually paid by
Landlord of any building services or employees used in connection therewith; and
(vi) Tenant shall pay as Additional Rent the sum of $3,000 per month commencing
on the Rent Commencement Date through and including the month in which the
generator is removed from the Premises.
5. Downtown Benefits. Supplementing paragraph 39 (J) of the Lease, Landlord
and Tenant acknowledge the following: (a) an application for abatement of real
property taxes will be made for the Premises on behalf of Tenant; (b) the Rent
including amounts payable by the Tenant for real property taxes will accurately
reflect any abatement of real property taxes; (c) at least $10 per square foot
in the Title 4 abatement zone, or at least $5 per square foot or $25 per square
foot in the Title 4A abatement zone must be spent on improvements to the
Premises and the common areas, the amount being dependent
upon the length of the Lease and whether it is a new, renewal or expansion
lease; (d) all abatements granted will be revoked if, during the benefit period,
real estate taxes, water or sewer charges or other lienable charges are unpaid
for more than one year, unless such delinquent amounts are paid as provided in
the relevant law.
6. Broker. Landlord and Tenant represent and warrant to each other that
they have not dealt with any broker in connection with this First Amendment.
7. Ratification. Except as specifically and expressly modified hereby, the
Lease is ratified and confirmed in all respects and shall remain binding on and
inure to the benefit of the parties hereto, and their permitted successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this First
Amendment to Lease as of the day and year first above written.
LANDLORD:
LIGHTHOUSE 100 XXXXXXX LLC
By: Lighthouse 100 Xxxxxxx Operating L.L.C.
By:
-----------------------------------
TENANT:
NEXTVENUE, NC.
By:
------------------------------
NEW YORK CITY
INDUSTRIAL DEVELOPMENT AGENCY
AND
iBEAM BROADCASTING
CORPORATION
----------
FIRST AMENDMENT TO
LEASE AGREEMENT
----------
Affecting the leasehold known by the Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx in the County of New York and
State of New York which is also known as Xxxxx 00,
Xxx 00 and Section 1 on
the Official Tax Map of the City of New York
Dated as of April 1,2001
New York City Industrial Development Agency
NextVenue Inc. Project
THIS FIRST AMENDMENT TO THE LEASE AGREEMENT, made and entered into as of
April 1, 2001, by and between NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, a
corporate governmental agency constituting a body corporate and politic and a
public benefit corporation of the State of New York, duly organized and existing
under the laws of the State of New York (the "Agency"), having its principal
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first part,
and iBEAM BROADCASTING CORPORATION, a corporation organized and existing under
and by virtue of the laws of the State of Delaware, having, offices at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), party of the second
part (capitalized terms used but not defined in the recitals to this Agreement
shall have the respective meanings assigned such terms in the Lease Agreement
(defined below)) amending and restating the LEASE AGREEMENT, dated as of April
1, 2000, by and between the Agency and NextVenue, Inc. (the "Lease Agreement"):
WITNESSETH:
WHEREAS, pursuant to the Lease Agreement, the Agency agreed to provide
certain financial assistance to NextVenue, Inc. in exchange for a commitment by
NextVenue to retain certain employees and operations within the City of New
York;
WHEREAS, NextVenue has been acquired by the Company and in conjunction with
such acquisition, the Company will maintain certain operations and employees at
NextVenue's current offices at 000 Xxxxxxx Xxxxxx xx Xxx Xxxx, Xxx Xxxx; and
WHEREAS, the Company desires to receive the financial assistance provided
to NextVenue, Inc. pursuant to the Lease Agreement; and
WHEREAS, in consideration of such financial assistance, the Company has
agreed to maintain certain levels of employment and maintain its financial
services and corporate enterprise operations within the City of New York; and
NOW, THEREFORE, in consideration of the premises and the respective
representations hereinafter contained, the parties hereto agree as follows:
Section 1. The Agency hereby consents to the acquisition of NextVenue by
the Company and authorizes the grant of financial assistance to the Company in
accordance with the Lease Agreement as amended herein.
Section 2. The Company agrees to maintain its financial services and
corporate enterprise operations at the Project Personalty Location.
Section 3. The definition of "Company Business" set forth in Section 1.1 of
the Lease Agreement shall be amended and replaced in its entirety as follows:
Company Business shall mean use as offices for its provision of
streaming video content and services for the financial services industry,
and all executive functions and/or positions directing such activity.
Section 4. The definition of "Base Employment Number" set forth in Section
1.1 of the Lease Agreement shall be amended and replaced in its entirety as
follows:
Base Employment Number shall mean for each Semiannual Period, 82 plus
the total number of Growth Credit Employees claimed by the Company during
the Project Term; provided
however, that for the purpose of calculating the Base Employment Reduction
and Base Employment Reduction Percentage in connection with a Relocation
Reduction, the Base Employment Number shall be reduced by the aggregate
number of Eligible Employees no longer employed by the Company Group as a
result of Non-Relocation Reductions continuing from the immediately
preceding Semiannual Period.
IN WITNESS WHEREOF, each of the undersigned by its duly authorized officers
has executed and delivered this First Amendment as of the date hereof.
NEW YORK CITY INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Deputy Executive Director
iBEAM BROADCASTING CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and General Counsel
EXHIBIT B
GUARANTY
Execution Copy
AGREEMENT AND GUARANTEE
KNOW ALL MEN BY THESE PRESENTS THAT
WHEREAS:
1. WU/Lighthouse 100 Xxxxxxx, L.L.C., a Delaware limited liability
company (referred to herein as "Owner"), having its principal office at c/o
Lighthouse Real Estate Management, LLC, 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, Attention: Mr. Xxxx Xxxxxx, concurrently with the delivery of this
instrument has entered into that certain Assignment and Amendment of Lease,
Consent to Assignment and Release and Waiver of Claims Agreement, dated as of
February 14, 2003 (the "Assignment and Amendment"), by and among Owner, WilTel
Communications, LLC ("Assignor") and Video Network Communications, Inc., a
Delaware corporation ("Tenant"), pursuant to which, among other things, Assignor
assigned to Tenant, Tenant assumed, and Owner consented to the assignment of,
all of Assignor's rights and obligations under that certain Agreement of Lease,
dated as of July 7, 1999 (as amended, the "Lease"), by and between 100 Xxxxxxx
LLC, Owner's predecessor-in-interest, and NextVenue, Inc., Assignor's
predecessor-in-interest, as amended thereby, which Lease and Assignment and
Amendment are hereby incorporated in this instrument by reference (the premises
demised in the Lease and the Assignment and Amendment is referred to herein as
the "Demised Premises"); and
2. The undersigned, Moneyline Telerate (referred to herein as
"Guarantor"), having an office at 000 Xxxxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx,
Xxxxxx and State of New York, is the indirect owner of a majority of the issued
and outstanding stock of Tenant; and
3. Guarantor acknowledges that Owner would not enter into the
Assignment and Amendment unless this Agreement and Guarantee accompanied the
execution and delivery of the Assignment and Amendment.
NOW, THEREFORE, in consideration of the execution and delivery of the
Assignment and Amendment by Owner and Tenant, and of other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged by
Guarantor;
FIRST: The undersigned Guarantor does hereby:
A. Covenant and agree with Owner that if Tenant or its successors
shall default at any time during the term demised in the Lease in the payment of
rent, increases thereof, additional rent, or other charges payable by Tenant
under the Lease, or in the observance or performance of any of the terms,
covenants or conditions of the Lease on Tenant's part to be observed or
performed, beyond the applicable grace period provided in the Lease for the
curing of such default, then Guarantor will, on demand, well and truly observe
and perform said terms, covenants and conditions and pay to Owner the rent,
increases thereof, additional rent and other charges payable by Tenant under the
Lease, or any arrears thereof that may remain due to Owner, and all damages
payable pursuant to the Lease that may arise in consequence of Tenant's
insolvency or such default in the observance or performance of any of said
terms, covenants or conditions; and
B. Covenant and agree with Owner that any suit or proceeding
brought against Guarantor to collect the amount of any Deficiency referred to in
Article 18(B) of the Lease for any month or months shall not prejudice in any
way the rights of Owner to collect any such Deficiency for any subsequent month
or months in any similar suit or proceeding; and
C. Covenant and agree with Owner that Guarantor may, at Owner's
option, be joined in any action or proceeding commenced by Owner against Tenant
in connection with or based upon the Lease or any term, covenant or condition
thereof, and that recovery may be had against Guarantor in such action or
proceeding or in any independent action or proceeding against Guarantor without
Owner, or its assigns, first asserting, prosecuting or exhausting any remedy or
claim against Tenant or its successors or against any security of Tenant held by
Owner under the Lease; and
D. Covenant and agree with Owner that this Agreement and
Guarantee shall remain and continue in full force and effect notwithstanding any
modifications or amendments of the Lease or release or discharge of Tenant
(other than a full release and complete discharge of all of Tenant's obligations
under the Lease) to all of which Guarantor hereby consents in advance; and
E. Covenant to indemnify and save Owner harmless of and from all
cost, liability, damage and expense, including, but not limited to, reasonable
counsel fees, arising in connection with (i) Tenant's default under the Lease or
Tenant's insolvency, to the extent of Tenant's obligations under the Lease, or
(ii) Guarantor's default hereunder; and
F. Covenant and agree with Owner that the validity hereunder
shall in no way be terminated, affected or impaired by reason of any action
which Owner may take or fail to take against Tenant or by reason of any waiver
of, or failure to enforce, any of the rights or
2
remedies reserved to Owner in the Lease; that the failure or refusal of Owner to
relet the Demised Premises or any part or parts thereof in the event that Owner
shall obtain possession of the Demised Premises after Tenant's insolvency or
default shall not release Guarantor's liability hereunder, nor shall Owner be
liable in any way whatsoever for failure to relet the Demised Premises, or, in
the event that the Demised Premises is relet, for failure to collect rent under
any such reletting; and that Owner at Owner's option, may make such alterations,
repairs, replacements and/or decorations in the Demised Premises as Owner, in
Owner's sole judgment, considers advisable and necessary for the purpose of
reletting the Demised Premises and the making of such alterations and/or
decorations shall not operate or be construed to release Guarantor from
liability hereunder; and
G. Waive notice of the acceptance of this Agreement and Guarantee
and of any and all defaults by Tenant in the payment of rent, additional rent,
or other charges, and of any and all defaults by Tenant in the performance of
any of the terms, covenants or conditions of the Lease on Tenant's part to be
observed or performed, and of any and all notices or demands which may be given
by Owner to Tenant, whether or not required to be given to Tenant under the
terms of the Lease; and
H. Waive a trial by jury of any and all issues arising in any
action or proceeding between the parties, upon, under or in connection with this
Agreement and Guarantee or of any of its provisions, directly or indirectly, or
any and all negotiations in connection therewith; and
I. Acknowledge that this Guarantee is a guarantee of payment and
not of collection in respect to any obligations which may accrue to Owner from
Tenant under the provisions of the Lease; and
J. Covenant to and agree with Owner that the validity hereunder
shall in no way be terminated, affected or otherwise impaired by reason of any
assignment or transfer of Tenant's interest in the Lease, unless otherwise
expressly agreed to in writing by Owner and Guarantor; provided, however, that
this Agreement and Guarantee shall terminate automatically and have no further
force or effect upon the assignment of the Lease (in accordance with the terms
and conditions set forth in the Lease and the Assignment and Amendment,
including the required prior consent of Owner to such assignment) to an
unrelated third party that assumes all of the obligations under the Lease; and
K. Covenant to and agree with Owner that in the event of
termination of the Lease by reason of the occurrence of any of the events set
forth in Article 17 of the Lease, or in the event of the disaffirmance or
rejection of the Lease in any proceeding of the type referred to in Article 17
or in any similar proceeding, Guarantor shall, upon written request of Owner,
given by certified mail, return receipt requested, within thirty (30) days next
following any such termination, disaffirmance or rejection (and actual notice
thereof to Owner in the event of a disaffirmance or rejection or in the event of
a termination other than by act of Owner) pay to Owner all rent, increases
thereof, additional rent and other charges due and owing from Tenant to Owner
under the Lease to and including the date of such termination, disaffirmance or
rejection. Notwithstanding any such termination, disaffirmance or rejection of
the Lease,
3
Guarantor shall remain obligated to comply with, and fully perform, all of
Tenant's obligations under the Lease as if Guarantor was the tenant under the
Lease, and, in the event Guarantor shall default in such obligations, then, in
addition to all other remedies by reason of such default, either at law or in
equity, Owner shall have the same rights and remedies against Guarantor as if
Guarantor was the tenant under the Lease.
L. Covenant to and agree with Owner that no failure to exercise
and no delay in exercising, on the part of Owner, of any right, power or
privilege under this Agreement and Guarantee or at law shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the exercise of any
other power or right. The rights and remedies provided in this Agreement and
Guarantee are cumulative and not exclusive of any rights or remedies provided by
law.
M. Covenant that if a claim is ever made upon Owner or any holder
of the mortgages now or hereafter in effect which may affect the Real Property
(as defined in the Lease) or affect the ground or underlying leases now or
hereafter in effect affecting the Real Property for repayment or recovery of any
amount or amounts received by Owner or any such holder of such mortgage in
payment or on account of the liabilities and obligations guaranteed hereunder
and Owner or such holder of the mortgage repays to or for the benefit of the
undersigned or Tenant or any of their respective creditors all or part of such
amount by reason of (i) any judgment, decree or order or any court or
administrative body having jurisdiction over Owner or such holder of such
mortgage or any of its property, or (ii) any settlement or compromise of any
such claim effected by Owner or such holder of such mortgage with any such
claimant (including Tenant), then and in such event the undersigned shall be and
remain liable under this Agreement and Guarantee for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by Owner or such holder of such mortgage. In addition, the undersigned
hereby waives any claim, right or remedy which the undersigned may now have or
hereafter acquires against Tenant that arises hereunder or as a result of the
performance of the undersigned hereunder, including, without limitation, any
claim, right or remedy of subrogation or reimbursement until all of the
Guarantor's obligations hereunder have been paid in full.
N. Guarantor acknowledges that this Agreement and Guarantee and
the Guarantor's obligations under this Agreement and Guarantee are, and shall at
all times continue to be, absolute and unconditional in all respects, and shall
at all times be valid and enforceable irrespective of any other agreements or
circumstances of any nature whatsoever which might otherwise constitute a
defense to this Agreement and Guarantee and the obligations of Guarantor under
this Agreement and Guarantee or the obligations of any other person or party
(including, but not limited to, the Tenant) relating to this Agreement and
Guarantee or the obligations of the Guarantor hereunder or otherwise with
respect to the Lease. Guarantor agrees that this Agreement and Guarantee sets
forth the entire agreement and understanding of Owner and Guarantor, and
Guarantor absolutely, unconditionally and irrevocably waives any and all right
to assert any (i) set off or (ii) counterclaim or cross claim that is unrelated
to the claims brought by Owner against Tenant or Guarantor (except that the
aforesaid waiver shall not apply to any so-called "mandatory" counterclaims or
cross claims the failure of which to assert in connection with Owner's claims
would prejudice or preclude Guarantor from making any such
4
counterclaim or cross claim) of any nature whatsoever with respect to this
Agreement and Guarantee or the obligations of Guarantor under this Agreement and
Guarantee or the obligations of any other person or party (including, without
limitation, Tenant) relating to this Agreement and Guarantee or the obligations
of Guarantor under this Agreement and Guarantee or otherwise with respect to the
Lease in any action or proceeding brought by Owner to enforce the obligations of
Guarantor under this Agreement and Guarantee. Guarantor acknowledges that no
oral or other agreements, understandings, representations or warranties exist
with respect to this Agreement and Guarantee or with respect to the obligations
of Guarantor under this Agreement and Guarantee except as specifically set forth
in this Agreement and Guarantee. Notwithstanding anything to the contrary
contained herein, nothing herein shall be deemed or construed to limit in any
way Guarantor's right to defend against the substance, nature or extent of any
claim hereunder for failure to pay or perform any of Guarantor's obligations
hereunder.
O. Covenant and agree that for so long as this Agreement and
Guarantee shall remain and continue in full force and effect, within one hundred
twenty (120) days following the end of each fiscal year of Guarantor occurring
during such time period, Guarantor shall deliver to the holder(s) of the then
existing mortgage(s) affecting the building in which the Demised Premises is
located an annual financial statement of Guarantor, prepared by a certified
public accountant in accordance with generally accepted accounting principles
applied on a consistent basis.
SECOND: The provisions of this Agreement and Guarantee shall be
binding upon said Guarantor, its successors and assigns and shall inure to the
benefit of Owner, its successors and assigns, and shall not be deemed waived or
modified unless specifically set forth in writing, executed by Owner and
delivered to Guarantor.
THIRD: A. (1) Guarantor hereby submits itself to the jurisdiction of
the State of New York in any action or proceeding arising out of or under the
Lease or this Agreement and Guarantee, and agrees that this Agreement and
Guarantee shall be governed, construed and interpreted in accordance with the
laws of the State of New York which shall apply in any such action or
proceeding.
(2) All judicial actions, suits or proceedings brought
against Guarantor with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement and
Guarantee or for recognition or enforcement of any judgment rendered in any such
proceedings may be brought in any State or federal court of competent
jurisdiction in the City of New York. By execution and delivery of this
Agreement and Guarantee, Guarantor accepts, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered
5
thereby in connection with this Agreement and Guarantee from which no appeal has
been taken or is available. Guarantor hereby irrevocably waives any objection to
the laying of venue or based on the grounds of forum non conveniens which it may
now or hereafter have to the bringing of any such action or proceeding in any
such jurisdiction. Nothing herein shall limit the right of Owner to bring any
action, suit or proceeding against Guarantor in the court of jurisdiction.
Guarantor acknowledges that final judgment against it in any action, suit or
proceeding referred to in this Article THIRD shall be conclusive and may be
enforced in any other jurisdiction, by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the fact and of the
amount of any such judgment against Guarantor.
B. Guarantor hereby irrevocably appoints, authorizes, empowers
and designates the General Counsel of Guarantor as its lawful agent upon whom
service of any legal process may be made in the State of New York, in a like
manner and with like effect as if the same were served personally upon Guarantor
within the jurisdiction of the State of New York.
C. Guarantor agrees that any bills, statements, notices, demands,
requests or other communications given or required to be given to Guarantor
under this Agreement and Guarantee at Owner's election, shall be addressed to
Guarantor care of said agent at said address. Guarantor may designate, from time
to time, a successor agent under this paragraph by giving notice thereof to
Owner, at the above address by certified mail, return receipt optional, and any
such successor shall thereupon become the agent for all purposes of this
Article.
FOURTH: The officer executing this Agreement and Guarantee on behalf
of the undersigned Guarantor represents to Owner that said officer has been duly
authorized by the undersigned Guarantor to execute and deliver this Agreement
and Guarantee on behalf of the undersigned Guarantor and that execution and
delivery of this Agreement and Guarantee is a proper and authorized act of the
undersigned Guarantor and does not violate the Certificate of Incorporation or
the By-Laws of the undersigned Guarantor or the Delaware General Corporation
Law.
(signature page follows)
6
IN WITNESS WHEREOF, the undersigned Guarantor has signed and sealed
this Agreement and Guarantee this 14th day of February, 2003.
MONEYLINE TELERATE
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxx
Title
(Guarantee)
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
State of New York )
:ss.:
County of New York )
On the 14th day of February, in the year 2003, before me, the
undersigned, personally appeared Xxxx Xxxxx, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxx Xxxx
-----------------------------------
(Signature and Office of individual
taking acknowledgment)
(Guarantee)
STATEMENT OF DIFFERENCES
------------------------
The section symbol shall be expressed as............................... 'SS'
