Contract
THIS AGREEMENT OF LEASE (this
“Lease”), made as of this 24th day of September, 2009 by and between Rosh
1450 Properties LLC, having an office c/o The Moinian Group, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and XXXXXX & XXXXXX GROUP,
INC., a New York corporation, having an office at 000 Xxxx 00xx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
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1.
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BASIC LEASE
TERMS.
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A. Definitions. The following definitions contained
in this subsection A of this Article 1 shall have the meanings hereinafter set
forth used throughout this Lease and the Exhibits and Schedules (if any) annexed
hereto and made a part hereof.
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(i)
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“Base
Tax Year” shall mean the calendar year (as defined in Article 28 hereof)
beginning January 1, 2010 and expiring December 31,
2010.
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(ii)
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“Broker(s)”
shall mean Hunter Organization.
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(iii)
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“Building”
the building known as 0000 Xxxxxxxx, Xxxxxx, Xxxx xxx Xxxxx xx Xxx
Xxxx.
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(iv)
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“Commencement
Date” shall mean the later to occur of the following: (i) January 1, 2010,
or (ii) substantial completion of Landlord’s Initial
Construction.
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(v)
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“Expiration
Date” shall mean December 31, 2019.
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(vi)
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Intentionally
Omitted.
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(vii)
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“Landlord’s
Initial Construction” shall mean the work and installations at the
Premises as set forth in Schedule “B”
annexed hereto and made a part
hereof.
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(viii)
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“Permitted
Uses” shall mean executive and administrative offices for general business
purposes and adult education classroom use, for operation of Tenant’s
business, and uses ancillary thereto and for no other
purpose.
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(ix)
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“Premises”
shall mean the entire twenty-fourth (24th)
Floor, in the Building, as more particularly shown on Exhibit 1
annexed hereto and made a part
hereof.
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(x)
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“Real
Property” shall mean the Building together with the plot of land upon
which such building stands.
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(xi)
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“Rent”
shall mean the rent schedule in Exhibit 2 attached
hereto.
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(xii)
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“Rent
Commencement Date” shall mean 120 days after the Commencement
Date.
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(xiii)
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“Security
Deposit” shall mean the sum of
$62,100.00.
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(xiv)
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"Tenant's
Proportionate Share" shall mean
1.8%
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(xv)
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"Tenant
Delay" means any delay which Landlord may encounter in the performance of
Landlord's obligations under this Lease by reason of any act of any nature
of Tenant, its agents or contractors, such as, delays due to changes in or
additions to Landlord’s Initial Construction requested by Tenant,
unreasonable delays by Tenant in submission of information or giving
authorizations or approvals or delays due to the postponement of any
Landlord’s Initial Construction at the request of
Tenant. Tenant shall pay to Landlord any commercially
reasonable costs or expenses incurred by Landlord by reason of any Tenant
Delay.
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Notwithstanding
anything to the contrary contained in this subsection A of this Article 1,
Articles 1 through 46 of this Lease shall control the rights and obligations of
the parties hereto.
B. Demise. Subject
to and upon the terms and conditions of this Lease, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the Premises.
C. Term. This
Lease shall be for a term (the "Term") which commences on the Commencement Date
and ends on the Expiration Date, unless sooner terminated pursuant to any of the
terms, covenants or conditions of this Lease or pursuant to law. In the event
that the date set forth above for the Commencement Date is not a date certain,
then within ten (10) days of Landlord's request, Tenant and Landlord shall join
in the execution of an agreement stipulating the Commencement Date, the Rent
Commencement Date and the Expiration Date of this Lease, provided however, such
failure to execute such agreement shall not affect the effectiveness of the
terms and provisions hereof.
D. Rent. Commencing
as of the Rent Commencement Date, and continuing throughout the Term, Tenant
shall pay Landlord the annual Rent set forth in Subsection A of this Article 1,
payable without demand, on or in advance of the first day of each month in equal
monthly installments, in lawful money (legal tender for public or private debts)
of the United States of America, at the office of Landlord or such other place
as Landlord may designate from time to time by written notice to
Tenant without any set-off, offset, abatement or deduction whatsoever, except as
provided in this Lease, Tenant shall pay the first (1st)
monthly installment, in the form of either a regular or official bank check,
upon Tenant's execution of this Lease. If the Rent Commencement Date
occurs on a date other than the first day of a calendar month, Tenant shall pay
to Landlord on or before the first day of the next month the monthly installment
of Rent for such partial month on a pro rata basis (based on the actual number
of days in the commencement month), and the first month's rent paid by Tenant as
described above shall be applied to the first full calendar month of the Term
for which Rent shall be due and payable. Such payment, together with
the sum paid by Tenant as first month's Rent 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.
E. Rent
Credit. Notwithstanding anything to the contrary hereinabove
set forth, provided this Lease is in full force and effect, and Tenant is not in
default under this Lease beyond any applicable grace or cure period, Tenant
shall be entitled to a credit against the Rent for the period from the
Commencement Date to the Rent Commencement Date, as well as for the 16th,
17th,
18th,
28th,
40th, and
52nd
months following the Rent Commencement Date.
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2.
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USE AND
OCCUPANCY.
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A. Permitted
Uses. Tenant shall use and occupy the Premises for the
Permitted Uses, and for no other purpose.
B. Use
Prohibitions. 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) 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), (iii) for a
public stenographer or typist, (iv) for a telephone or telegraph agency,
telephone or secretarial service for the public at large, (v) for a messenger
service for the public at large, (vi) gambling or gaming activities, obscene or
pornographic purposes or any sort of commercial sex establishment, (vii) for the
possession, storage, manufacture or sale of alcohol, drugs or narcotics, (viii)
for the offices or business of any federal, state or municipal agency or any
agency of any foreign government or (ix) for a security or guard service, or any
other business (except the Permitted Use)for which Landlord would not normally
rent space for. If any provision of this Lease permits, in whole or
in part, use involving fabrication of any product or assembly of components of
any product or the sale of any product, such use is only permitted to the extent
lawful under the present certificate of occupancy for the Building and under
laws, ordinances, regulations, rules and orders of any governmental body having
jurisdiction over the Premises, from time to time in effect. The
provisions of this Article shall be binding upon Tenant’s successors, assigns,
subtenants and licensees and shall not be waived by any consent to an assignment
or subletting or otherwise except by written instrument expressly referring to
this Article. 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. Tenant acknowledges that Landlord has the
right to maintain ease of access through the lobbies, entry ways, stairways,
elevators, and corridors of the Building. Accordingly, Tenant agrees
to operate its business, including, without limitation, the scheduling of
classes, events, and similar activities, at such times and in such manner as the
traffic of guests, invitees, and employees of Tenant shall not cause
unreasonable crowding in the public areas of the Building (including elevators
and stairways) and shall not materially interfere with the operation of the
Building (in Landlord’s reasonable judgment) or the operation of the businesses
of the other tenants in the Building.
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3.
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ALTERATIONS.
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A. Alterations Within
Premises. 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 written consent. Subject to the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
delayed or otherwise conditioned, and to the provisions of this Article, Tenant,
at Tenant’s expense, may make Alterations in or to the interior of the Premises
which are nonstructural, do not affect the Building's mechanical, electrical,
plumbing, Class E or other Building systems or the structural integrity of the
Building, do not affect any part of the Building other than the Premises, do not
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 which are performed only by contractors and mechanics first
approved by Landlord, which approval shall not be unreasonably withheld, delayed
or otherwise conditioned, and in compliance with all applicable laws. Tenant
shall not perform work 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, 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 in violation of the Certificate of
Occupancy for the Building. Any changes required by any governmental
department affecting the construction of the Premises shall be performed at
Landlord's sole cost. All Alterations shall be done at Tenant's expense and at
such times and in such manner as Landlord may from time to time commercially
reasonably designate pursuant to the conditions for Alterations prescribed by
Landlord for the Premises. A copy of the construction conditions and
requirements for tenant alteration work and new construction is annexed hereto
as Schedule “D”
and made a part hereof.
B. Restoration of
Premises. All furniture, furnishings and movable fixtures and
removable partitions installed by Tenant (collectively, “Tenant’s Property”)
must be removed from the Premises by Tenant, at Tenant's expense, prior to the
Expiration Date. In addition, prior to the Expiration Date, Tenant
shall, at Tenant’s expense, remove those Alterations which Landlord shall
commercially reasonably determine do not constitute normal office alterations
(“Specialty Alterations”) by notice given to Tenant at the time that the plans
and specifications for such Alterations are delivered by Landlord to
Tenant. All Alterations in and to the Premises which may be 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. Tenant shall repair any damage to the Premises or the Building caused by
such removal. Any Tenant’s Property and/or Specialty Alterations 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
Specialty Alterations or Tenant’s Property which Tenant is obligated to remove
hereunder.
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C. Chlorofluorocarbons. Anything
contained herein to the contrary notwithstanding, Tenant shall repair or remove
any mechanical or other equipment within the Premises containing
chlorofluorocarbons (“CFC”s”) which was first introduced into the Premises by
Tenant and the repair or removal of such equipment, as the case may be, shall
conform with all requirements of law. Additionally any such repair or
removal shall be done by contractors reasonably approved by Landlord and subject
to the procedures to which Landlord’s said approval shall have previously been
obtained. Tenant shall indemnify and hold Landlord harmless from any
liability or damages resulting from any contamination within the Building, as a
result of the repair or removal by Tenant of any of the aforesaid equipment
containing CFC’s.
D. Submission of
Plans. 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,
which approval shall not be unreasonably withheld, delayed or otherwise
conditioned, (ii) shall pay to Landlord the reasonable costs and expenses
incurred by Landlord (including the reasonable 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 bodies, and (iv) shall furnish to Landlord reasonable
evidence that Tenant, and Tenant's contractors and subcontractors engaged in
connection with such Alterations, are carrying such insurance as Landlord may
require, as more particularly set forth in Schedule “D” annexed
hereto and made a part hereof. 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, if same
are required by any governmental bodies and shall furnish Landlord with copies
thereof. All Alterations shall be made and performed in accordance
with the Rules and Regulations (hereinafter defined) and in accordance with the
Americans with Disabilities Act of 1990, as amended, including but not limited
to the accessibility provisions thereof; all materials and equipment to be
incorporated in the Premises as a result of all Alterations shall be new and
first quality; no such materials or equipment shall be subject to any lien,
encumbrance, chattel mortgage or title retention or security
agreement. Tenant agrees to allow Landlord’s designated contractor to
bid on any Alterations to be performed by or on behalf of Tenant. If
Landlord’s designated contractor is the lowest bidding contractor, Tenant agrees
to award the contract for the performance of such Alterations to such
contractor. 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.
E. 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 thirty
(30) days thereafter, 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, service provider, mechanic or laborer in the Premises, whether in
connection with any Alterations, cleaning services or otherwise, if, in
Landlord's commercially reasonable judgment, such employment will cause any
conflict with other contractors, service providers, mechanics, or laborers
engaged in the construction, cleaning, maintenance or operation of the Building
by Landlord or Tenant. In the event of any such conflict, Tenant,
upon demand of Landlord, shall cause all contractors, service providers,
mechanics or laborers causing such conflict to promptly leave the
Building.
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4. REPAIRS. Landlord
shall, at its sole expense(unless need for repair is caused by Tenant), maintain
and promptly repair the public and structural portions of the Building, both
exterior and interior, and all Building wide mechanical systems, elevators and
the roof of the Building. Tenant shall, throughout the Term, take
good care of the Premises 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. 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,
resulting from the negligence or wrongful acts of, or Alterations made by, or
any work, labor, service or equipment done for or supplied to, Tenant or any
subtenant, or the installation, use or operation of any property or equipment by
Tenant or any of Tenant's subtenants, agents, employees, invitees or licensees,
shall be repaired promptly by Tenant, at its sole cost and expense, to the
commercially reasonable satisfaction of Landlord. 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 substantially equal to the original work or
construction and shall be made in accordance with the provisions of Article 3
hereof. If Tenant fails after twenty (20) days notice from Landlord
to proceed with due diligence to make repairs required to be made by Tenant
hereunder, and if Landlord thereafter elects to make any repairs in or to the
Building or the facilities and systems thereof for which Tenant is responsible,
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. Tenant
shall give Landlord prompt notice of any defective condition in the Premises for
which Landlord may be responsible hereunder. Except as expressly
provided in Article 10 hereof or elsewhere in this Lease, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the
part of 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, Tenant, at Tenant's expense, 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 reasonably 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. If at any time any windows of the Premises are temporarily
darkened, if required by law, 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.
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. Landlord shall provide periodic Building
standard window cleaning (outside only ) for the outside windows at the Premises
at Landlord’s sole expense.
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6.
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REQUIREMENTS OF LAW;
FLOOR LOAD.
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A. Requirements of
Law. Tenant, at Tenant’s sole expense, shall promptly comply
with all present and future 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 particular manner of use or the alteration thereof by
Tenant, provided that, except with respect to an alteration of the Premises by
Tenant, Tenant shall not be required to make any structural or exterior
repairs. Tenant shall not, in its manner of use of the Premises, do
or permit to be done any act or thing upon the Premises which is contrary to and
will invalidate or be in conflict with any public liability, fire or other
policies of insurance at any time carried by or for the benefit of Landlord with
respect to the Building and fixtures and property therein, or which shall
subject Landlord to any liability to any person or for property
damage. Tenant 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 as not to increase
the insurance rate applicable to the Building, or use the Premises in a manner
which shall increase the rate of fire insurance on the Building over that in
effect prior to this Lease. If by reason of Tenant's failure to
comply with the provisions of this Article, the fire insurance rate shall at the
beginning of this Lease or at any time thereafter be higher than it otherwise
would be, then Tenant shall reimburse 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 by Tenant, and Tenant 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. 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.
B. Floor Load. Tenant
shall not place a load upon any floor of the Premises exceeding the floor load
per square foot area that such floor was designed to carry and which is allowed
by law. Landlord reserves the right to prescribe the weight and
position of all safes, business machines and heavy equipment and installations
such that the same are placed and maintained by Tenant, at Tenant's expense, in
settings sufficient in Landlord's reasonable judgment to absorb and prevent
vibration, noise and annoyance. 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 and payment to Landlord of Landlord's
actual 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 reasonably
designate.
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7.
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SUBORDINATION.
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A. Subordination. This
Lease is subject and subordinate to each and every trust indenture and mortgage
(collectively the "Mortgages") which may now or hereafter affect the Real
Property, the Building, and to all renewals, extensions, supplements,
amendments, modifications, consolidations, and replacements thereof or thereto,
substitutions therefor and advances made thereunder. This clause
shall be self-operative and no further instrument of subordination shall be
required to make the interest of any trustee or mortgagee of a Mortgage superior
to the interest of Tenant hereunder. In confirmation of such
subordination, however, Tenant shall execute promptly any certificate that
Landlord may reasonably request. Tenant covenants and agrees that,
except as expressly provided for herein, Tenant shall not do anything that would
constitute a default under any 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. If, in connection with the financing of the Real Property, the Building
any lending institution (such as a bank, insurance company or similar
institution regularly issuing first mortgage loans) shall request reasonable
modifications of this Lease, provided such modifications do not increase the
obligations or (except immaterially) adversely affect the rights of Tenant under
this Lease, Tenant covenants to make such modifications. The Landlord shall
obtain from the holder or holders of any Mortgages a non-disturbance agreement
(“SNDA”) in the lender’s usual form; provided however that the Landlord’s
failure to obtain an SNDA shall not constitute a default under this Lease by the
Landlord nor shall the terms and provisions of this Lease be affected thereby;
and further provided that any costs incurred by Landlord in obtaining such SNDA
shall be paid by Tenant immediately upon demand, the failure to pay such costs
shall be deemed an Event of Default (as such term is defined herein)with respect
to Tenant’s rights under this Lease (a “NDA”) in form and substance reasonably
satisfactory to Tenant prior to the Commencement Date.
B. Attornment. If
at any time prior to the expiration of the Term, any Mortgage shall be
foreclosed for any reason, Tenant agrees, at the election and upon demand of any
owner of the Real Property or the Building, or of any mortgagee in possession of
the Real Property or the Building, to attorn, from time to time, to any such
owner, 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, mortgagee as the case may be, or receiver caused to be appointed by
any of the foregoing, shall not then be entitled to possession of the Premises
under the NDA or any other agreement or by law. The provisions of
this subsection B shall inure to the benefit of any such owner or mortgagee, 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 or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subsection B,
commercially reasonably satisfactory to any such owner or mortgagee,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy. Subject to the NDA, nothing contained in this subsection B
shall be construed to impair any right otherwise exercisable by any such owner
or mortgagee.
8. RULES AND
REGULATIONS. Tenant and Tenant's employees, agents, visitors
and licensees shall observe faithfully, and comply with, the Rules and
Regulations annexed hereto and made a part hereof as Schedule “A” and such
other and further commercially reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt (collectively, the "Rules and
Regulations") on such notice to be given as Landlord may
elect. 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 employees, agents, visitors or licensees but Landlord shall use
commercially reasonable efforts to apply the Rules and Regulations in a uniform
manner to all tenants of the Building.
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9.
INSURANCE.
A. Liability
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 managing agent, the present and any future
mortgagee of the Real Property or the Building are named as additional
insureds. Such policy shall contain 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. 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 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
$2,000,000 for injury (or death) and $1,000,000.00 for each person and for
damage to property or such greater coverage amounts as Landlord may, from time
to time, commercially reasonably require provided such greater coverage amounts
are then carried by tenants of similar premises as the Premises in similar
office buildings in midtown Manhattan. Such coverage may be maintained by a
combined single limit policy in the above coverage amounts and an “umbrella” or
excess coverage policy in the amount of $5,000,000.00. 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 complete copy of any such policy upon written request of
Landlord. Tenant shall have no right to obtain any of the insurance
required hereunder pursuant to a blanket policy covering other properties unless
the blanket policy contains an endorsement that names Landlord, Landlord's
managing agent and the present and any future mortgagees of the Real Property or
the Building 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. Each policy required 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 insurance company rating
organization having a national reputation) as having a general policyholder
rating of "A-" and a financial rating of at least "10". 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 within ten (10) days of Landlord's written demand
therefor.
B. All-Risk
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
(except with respect to the coverage limits and the types of insurance coverages
and the naming of mortgagees as additional insureds) 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.
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C. Waiver of
Subrogation. 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 or the partners, directors, officers,
shareholders or employees of such party 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. 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 or any part thereof shall be damaged
by fire or other casualty, Tenant shall give prompt notice thereof to Owner and
this Lease shall continue in full force and effect except as hereinafter set
forth. If the Premises shall be damaged by fire or other casualty,
then the Premises shall be repaired and restored to its condition preceding the
damage in accordance with the provisions of this Article 10. 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 such as
Tenant's furniture, fixtures, equipment and other personal property of Tenant,
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-wide
systems up to the point of connection into the Premises. 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 as given by Notice to Tenant by Landlord within
sixty (60) days after such fire or other casualty if such failure by Landlord is
a result of “Force Majeure.” The Rent until such repairs shall be
made 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 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. The abatement
of Rent provided for in this subsection shall continue for a period of two (2)
months following the date Landlord completes its repair and restoration
obligations hereunder.
B. Landlord's 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, 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 if 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,
at Landlord's option, may, not later than sixty (60) days following such damage,
give Tenant a notice in writing terminating this Lease. In addition,
(i) if any damage shall occur to the Premises or the Building during the last
two (2) years of the Term, Landlord or Tenant shall have the option to terminate
this Lease upon not less than sixty (60) days prior written notice to the other
party or (ii) if the holder of a Mortgage applies the proceeds of insurance to
the loan and the remaining proceeds, if any, available to Landlord are
insufficient to pay for such repair or restoration. If this Lease is
terminated pursuant to the provisions of this subsection B, the Term shall
expire upon the date set forth in such notice, and Tenant shall vacate the
Premises and surrender the same to Landlord without prejudice however, to
Landlord’s rights and remedies against Tenant under this Lease in effect prior
to such fire or other casualty and any Rent owing shall be paid up to such date
and any payments of Rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. 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.
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C. Repair
Delays. Landlord shall not be liable for reasonable delays
which may arise as a result of “Force Majeure” or by reason of the claim
adjustment with any insurance company on the part of Landlord and/or Tenant and
for causes beyond Landlord’s control, provided Landlord uses good faith
commercially reasonable efforts to adjust such claim.
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 of Landlord, its agents, employees or
contractors. 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.
F. Notwithstanding
anything to the contrary contained herein, if, in any event, such repairs or
restoration shall not be completed within nine (9) month after such fire and
other casualty, then Tenant may, upon notice to Landlord, cancel and terminate
this Lease and the Lease shall be deemed terminated on the date set forth in
said notice (the “Tenant
Termination Date”) and Tenant shall vacate the Premises on or prior to
the Tenant Termination Date and all Rent shall be pro rated as of the date of
such fire or other casualty.
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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 thirty (30) 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 thirty (30) 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. 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 condemnation 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 moving expenses provided
that such award shall not materially reduce the amount of the award otherwise
payable to Landlord.
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12.
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ASSIGNMENT AND
SUBLETTING.
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A. Prohibition Without
Consent. Tenant expressly covenants that it shall not (i)
assign or otherwise transfer this Lease or the term and estate hereby granted,
(ii) mortgage, pledge or encumber this Lease or the Premises or any part thereof
in any manner by reason of any act or omission on the part of Tenant, (iii)
sublet the Premises or any part thereof or permit the Premises or any part
thereof to be used or occupied by others (whether for desk space, mailing
privileges or otherwise) or (iv) advertise, or authorize a broker to advertise
the Premises for assignment or subletting, without obtaining the prior written
consent of Landlord in each instance. If this Lease be assigned, or
if the Premises or any part thereof be sublet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
subtenant 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. 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.
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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, the
effective or commencement date of which shall be not less than thirty (30) 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, prior to such
notice by Tenant with respect to a subletting.
C. Landlord's
Options. 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,
(a) sublease such space (hereinafter called the "Leaseback Space") from Tenant
upon the terms and conditions hereinafter set forth (if the proposed transaction
is a sublease of all or part of the Premises), or (b) terminate this Lease (if
the proposed transaction is an assignment or a sublease of all or substantially
all of the Premises). Said options may be exercised by Landlord by
notice to Tenant at any time within thirty (30) days after the aforesaid notice
has been given by Tenant to Landlord; and during such thirty (30) day period
Tenant shall not assign this Lease nor sublet such space to any person or
entity. If Landlord fails to give the aforesaid notice within said
thirty (30) day period, Tenant shall give a second notice to Landlord after the
expiration of said thirty (30) day period and, if Landlord has failed to give
the aforesaid notice set forth in the second sentence of this Subsection within
ten (10) days after the giving of said second notice by Tenant, Landlord shall
be deemed not to have exercised its option under this subsection.
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. Takeback by
Landlord. If Landlord exercises its option to sublet the
leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of Rent and
additional rent then payable pursuant to this Lease, or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease:
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(i) shall
be expressly subject to all of the covenants, agreements, terms, provisions and
conditions of this Lease except such as are inapplicable, and except as
otherwise expressly set forth to the contrary in this Article 12;
(ii) shall
be upon the same terms and conditions as those contained in the proposed
sublease, except such as are inapplicable and except as otherwise expressly set
forth to the contrary in this Article 12;
(iii) shall
give the subtenant the unqualified and unrestricted right, without Tenant's
permission, to assign such sublease or any interest therein and/or to sublet the
space covered by such sublease or any part or parts of such space and to make
any and all changes, alterations and improvements in the space covered by such
sublease, and if the proposed sublease will result in all or substantially all
of the Premises being sublet, grant Landlord or its designee the option to
extend the term of such sublease for the balance of the term of this Lease less
one (1) day;
(iv) shall
provide that any assignee or further subtenant of Landlord or its designee, may,
at the election of Landlord, be permitted to make alterations, decorations and
installations in such space or any part thereof and shall also provide in
substance that any such alterations, decorations and installations in such space
therein made by any assignee or subtenant of Landlord or its designee may be
removed, in whole or in part, by such assignee or subtenant, at its option,
prior to or upon the expiration or other termination of such sublease provided
that such assignee or subtenant, at its expense, shall repair any damage and
injury to such space so sublet caused by such removal; and
(v) shall
also provide that (a) the parties to such sublease expressly negate any
intention that any estate created under such sublease be merged with any other
estate held by either of said parties, (b) any assignment or subletting by
Landlord or its designee (as the subtenant) may be for any purpose or purposes
that Landlord, in Landlord's uncontrolled discretion, shall deem suitable or
appropriate, provided, however, if the sublease is for a portion of the Premises
then any such purpose or purposes shall not materially interfere with Tenant’s
operations in balance of the Premises retained by Tenant , (c) Landlord, at
Landlord’s sole expense, shall and will at all times provide and permit
reasonably appropriate means of ingress to and egress from such space so sublet
by Tenant to Landlord or its designee, (d) Landlord, at Landlord’s sole expense,
may make such alterations as may be required or deemed necessary by Landlord to
physically separate the subleased space from the balance of the Premises and to
comply with any legal or insurance requirements relating to such separation, and
(e) that at the expiration of the term of such sublease, Tenant will accept the
space covered by such sublease in its then existing condition, subject to the
obligations of the subtenant to make such repairs thereto as may be necessary to
preserve the premises demised by such sublease in good order and
condition.
F. Effect of Takeback or
Termination. If Landlord exercises its option to sublet the
Leaseback Space, (i) Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord; (ii) performance by Landlord, or its designee,
under a sublease of the Leaseback Space shall be deemed performance by Tenant of
any similar obligation under this Lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease nor shall Tenant be liable for any default under this Lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease; and (iii) Tenant shall have no obligation, at the expiration or
earlier termination of the Term, to remove any alteration, installation or
improvement made in the Leaseback Space by Landlord (or its designee); In
addition, if required by applicable law in connection with any termination of
this Lease, or subletting of all or any portion of the Leaseback Space to
Landlord or its designee, Tenant shall complete, swear to and file any
questionnaires, tax returns, affidavits or other documentation which may be
required to be filed with the appropriate governmental agency in
connection with any other tax which may now or hereafter be in
effect. Landlord further agrees to pay any amounts which may be
assessed in connection with any of such taxes and to indemnify Tenant against
and to hold Tenant harmless from any claims for payment of such taxes as a
result of such transactions.
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G. Conditions for Landlord's
Approval. In the event Landlord does not exercise either of
the options provided to it pursuant to subsection C of this Article 12 and
provided 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 written
consent to the proposed assignment or sublease shall not be unreasonably
withheld, delayed for more than thirty (30) days or otherwise conditioned,
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 commercially 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
provided in this Lease.
(iii) The
proposed assignee or subtenant is a reputable party of good character and with
commercially reasonable sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with commercially
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 six (6) month period, negotiating to lease space in
the Building;
(vi) The
form of the proposed sublease or instrument of assignment (a) shall be in form
commercially reasonably satisfactory to Landlord, and (b) shall comply with the
applicable provisions of this Article 12;
(vii) There
shall not be more than two (2) subtenants (including Landlord or its designee)
of the Premises;
(viii) The
rental and other terms and conditions of the sublease are substantially the same
as those contained in the proposed sublease furnished to Landlord pursuant to
subsection B of this Article 12;
(ix) Within
ten (10) 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
commercially reasonable 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;
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(x) (Omitted)
(xi) The
proposed occupancy shall not, in Landlord's commercially reasonable opinion
materially (a) increase the office cleaning requirements or (b) the Building's
operating or other expenses or (c) 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 any material additional requirements of law (including related
regulations) beyond those requirements which are applicable to the named Tenant
herein; 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.
Except
for any subletting by Tenant to Landlord or its designee pursuant to the
provisions of this Article 12, each subletting pursuant to this subsection G of
this Article 12 shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Lease. Notwithstanding
any such subletting to Landlord or any such subletting to any other 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 either of its options 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 either of its options 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 ninety
(90) 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.
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;
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(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.
(iv) If
any laws, orders, rules or regulations of any applicable governmental authority
require that any Hazardous Substances, including, without limitation, asbestos,
contained in or about the Premises to be sublet (the "Sublet Space") be dealt
with in any particular manner in connection with any alteration of the Sublet
Space, then it shall be the subtenant's obligation, at the subtenant's expense,
to deal with such Hazardous Substances in accordance with all such laws, orders,
rules and regulations (unless Landlord elects to deal with such Hazardous
Substances itself, in which event, the subtenant shall reimburse Landlord for
all of Landlord's costs and expenses in connection therewith within ten (10)
days next following the rendition of a statement therefor).
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-half (½) 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, one-half (½) of the then
net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns) less one-half (½) of all expenses
reasonably and actually incurred by Tenant on account of brokerage commissions
and advertising 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). The sums payable
by under this subsection J(i) of this Article 12 shall be paid to Landlord as
and when payable by the assignee to the Tenant; and
(ii) in
the case of a sublease, one-half (½) of any 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 one-half (½) of then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns), less one-half (½) of all expenses reasonably and
actually incurred by Tenant on account of brokerage commissions, advertising
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; provided,
however, that the provisions of subsections A (other than (A(iv)), C, D, E, F,
G, H and J shall not apply to transactions with a corporation or other business
entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets are transferred or sold, provided that such
merger, consolidation or transfer of assets is for a valid business purpose and
not principally for the purpose of transferring the leasehold estate created
hereby, and provided further, 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 greater of (1) the net worth of Tenant
immediately prior to such merger, consolidation, transfer, or sale, or (2) the
net worth of Tenant herein named on the date of this Lease and (b) proof
commercially reasonably 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 (by 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 reasonable
judgment, would impair the reputation of the Building as a first-class office
building.
L. Related
Corporation. Tenant may, without Landlord's consent, assign
this Lease or sublet all or a portion of the Premises to any corporations or
other business entities (but not including Governmental Entities) which control,
are controlled by, or are under common control with Tenant (herein collectively
referred to as a "related corporation") or to sublet all or part of the Premises
to a related corporation for any of the purposes permitted to Tenant, subject
however to compliance with Tenant's obligations under this Lease and in such
event subsections A (other than (A(iv)), B (other than B(i), B(iii), and B(iv),
C, D, E, F, G, H and J shall not apply to an assignment or sublease under this
subsection. Such subletting shall not 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 or L 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 commercially reasonably
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease and agree to be bound by all of the terms, conditions, covenants and
provisions hereof on the part of Tenant to be performed or observed and whereby
the assignee shall agree that the provisions 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.
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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 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 except for (a) an extension of the term of this Lease, (b) an
increase in Rent or (c) any additional increased materially adverse obligation
on the part of the Tenant with respect to the 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 of others shall constitute a privilege
extended by Landlord, revocable at Landlord's will by notice to
Tenant.
P. (Omitted).
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 wrongful act 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 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 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.
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CONDITION OF THE
PREMISES.
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A. Acceptance by
Tenant. Except for Landlord’s Initial Construction,
Tenant has examined the Premises and agrees to accept possession of the Premises
in the condition and state of repair which shall exist on the date hereof "as
is", and further agrees that, except for Landlord’s Initial Construction,
Landlord shall have no other or further obligation to perform any work or make
any installations, alterations or improvements in order to prepare the Premises
for Tenant's occupancy except as may set forth in this Lease. The
taking of possession of the Premises by Tenant shall be conclusive evidence as
against Tenant that, at the time such possession was so taken, the Premises and
the Building were in good and satisfactory condition and that Landlord’s Initial
Construction was fully completed except for any “punchlist” items.
B. All
of the terms, covenants and conditions of the Schedules annexed hereto are
incorporated in this Lease as if fully set forth at length herein.
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14.
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ACCESS TO
PREMISES.
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A. Access by
Landlord. Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use, maintain and replace
concealed ducts, pipes and conduits in and through the
Premises. Landlord, Landlord's agents and/or affiliates, and the
holder of any Mortgage shall each have the right to enter the Premises at all
reasonable times upon reasonable prior notice (which may be by telephone) 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,
replacements, alterations or improvements as Landlord may deem commercially
reasonably necessary to the Premises or which Landlord may elect to perform
following Tenant's failure beyond any applicable grace or cure period to make
repairs or perform any work which Tenant is obligated to perform under this
Lease, (iv) for the purpose of complying with laws, regulations or other
requirements of government authorities and (v) to perform “Remedial Work” (as
defined in Article 40 hereof) after the failure of Tenant, beyond any applicable
grace or cure period to perform the same in accordance with the terms of this
Lease. Landlord shall be allowed, during the progress of any work in
and about the Premises, 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 such repairs, replacements,
alterations, improvements or additions are being made. During the
nine (9) months prior to the Expiration Date or the expiration of any renewal or
extended term, Landlord may exhibit the Premises to prospective
tenants. If, in the event of an emergency Tenant shall not be
personally present to open and permit an entry into the Premises, Landlord or
Landlord's agents may enter the same by a master key, or may 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. With respect to such entry as hereinabove provided in
this subsection, Landlord shall use commercially reasonable efforts to minimize
any interference with Tenant’s operations in the Premises.
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B. Other Landlord
Privileges. Landlord 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, 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. Tenant
acknowledges that Landlord may (but shall have no obligation to) perform
repairs, improvements, alterations and/or 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 improvements to the lobby and facade of the
Building, which may require that scaffolding and/or a sidewalk bridge be placed
in front of the Building, and the replacement of window glass, requiring access
to the same from within the Premises). 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 immaterial disturbance to Tenant's
business at the Premises (provided that Tenant is not denied access thereto)
which shall arise out of the performance by Landlord of the aforesaid repairs,
alterations and renovations of the Building or any part
thereof. Tenant understands and 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, 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
reasonable access thereto through the Premises pursuant to the provisions of
this Lease for the purposes of operation, maintenance, alteration and repair
thereof. Landlord, throughout the Term, shall have reasonable
access to any and all mechanical installations of Landlord, including but not
limited to air-cooling, fan, ventilating, machine rooms and electrical closets
pursuant to the provisions of this Lease.
15. CERTIFICATE OF
OCCUPANCY. Tenant shall not at any time use the Premises in a manner
which is in violation of the existing certificate of occupancy issued for the
Premises and Building and in the event that any department of the City or State
of New York shall hereafter at any time declare by notice, violation, or order
that the manner of use by Tenant of the Premises is a violation of such
certificate of occupancy, except for the Permitted Use, Tenant shall, upon
fifteen (15) days written notice from Landlord, discontinue such manner of use
of the Premises. Failure by Tenant to discontinue such manner of use
after such notice by Landlord shall be considered a default in the fulfillment
of a covenant of this Lease and Landlord 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, members, directors or officers of Landlord, if Landlord is a
corporation, nor the partners comprising Landlord (nor any of the shareholders,
members, 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. 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. In no event shall Landlord (or any of the officers,
trustees, directors, partners, beneficiaries, joint ventures, members,
stockholders or other principals or representatives of Landlord be liable for
incidental or consequential damages
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17.
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DEFAULT.
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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 same is due of any additional rent, and such default shall
continue for a period of eight (8) days after same is due; or
(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 (20) 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 (20) days and Tenant shall not
commence within said period of twenty (20) days, or shall not thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or
(iii) (Omitted).
(iv) (Omitted).
(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 permitted under
Article 12 hereof; or
(vi) if
this Lease shall be rejected under §235 of Title 11 of the U.S. Bankruptcy Code;
or
(vii) 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, of any one or more of such Events of Default, Landlord, at
any time thereafter, at Landlord's option, may give to Tenant a five (5) 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 five (5) days with the same
effect as if the date of expiration of said five (5) days were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 18
hereof.
B. Effect of
Bankruptcy. Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease may be canceled by Landlord by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (i) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (ii) the making by Tenant
of any assignment or any other arrangement for the benefit of creditors under
any state statute. Neither Tenant nor any person claiming through or
under Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the Premises but shall forthwith quit and surrender
the Premises. If this Lease shall have been assigned in accordance
with its terms, the provisions of this Article 17 shall be applicable to any of
the persons or entities primarily or secondarily liable for Tenant’s obligations
under this Lease. It is stipulated and agreed that in the event of
the termination of this Lease pursuant to this subsection, Landlord shall
forthwith, notwithstanding any other provisions of this Lease to the contrary,
be entitled to recover from Tenant as and for liquidated damages an amount
determined in accordance with Subsection B(i)(c) of Article 18 of this
Lease.
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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,
after ten (10) days after same is due of any installment of Rent or in the
payment when due of any additional rent, or if any execution in the payment 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 this Lease and the Term shall expire and come
to an end as provided in Article 17:
(a) Landlord
and its agents may, at any time after such default (and the expiration of any
applicable grace or cure period) 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 to 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 re-enter 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 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.
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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 repossession costs, brokerage commissions, advertising, 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 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.
23
(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 direct damages to which Landlord may be entitled in addition to the
damages set forth in subsection B(i) of this Article 18 but the foregoing shall
not include any punitive, special or consequential damages.
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 actually incurs or
pays 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, beyond any applicable grace or cure periods 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),
whether or not 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;
(e) in
connection with this Lease, any other appearance by Landlord (or any officer,
partner or employee of Landlord) as a witness or otherwise in any action or
proceeding in connection with this Lease involving or affecting Landlord, Tenant
or this Lease.
(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 for a period of one
(1) year. This provision is intended to supplement (and not to limit)
other provisions of this Lease pertaining to indemnities and/or attorneys'
fees.
D. Additional Landlord
Remedies. Tenant hereby acknowledges and agrees that in the
event this Lease and the Term hereof shall expire and come to an end as provided
in Article 17 within the first two (2) years of the term of this Lease, Tenant
shall be liable for an amount equal to the sum of the unamortized portion of (i)
the cost of Landlord’s Initial Construction plus(ii) any brokerage commissions
or fees paid by Landlord in connection with this Lease (amortized on a
straight-line basis over the Term of this Lease), which sum shall be immediately
due and payable by Tenant on demand by Landlord and deemed to be additional rent
hereunder.
24
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, after the giving of notice (if required) and upon the expiration of any
applicable grace or cure period (except if such default by Tenant results in an
emergency situation at the Premises and/or at the Building, in which event no
grace or cure period shall be applicable and Landlord may immediately or at any
time thereafter and without notice perform the same for the account of
Tenant. If Landlord makes any expenditures or incurs any obligations
for the payment of money in connection with any such default by Tenant or the
cure thereof including, but not limited to, any direct damages or fines or incur
any reasonable attorneys' fees and disbursements in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations incurred with
interest and costs shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Landlord within ten (10) days of rendition of any xxxx or
statement to Tenant therefor. If the Term hereof shall have expired
at the time Landlord sustains or incurs such expenditures, such sums shall be
recoverable by Landlord, as damages.
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 equal to three (3%) percent of the late
amount. Tenant acknowledges and agrees that, except as otherwise expressly
provided herein, if Tenant fails to dispute any item of additional rent within
twenty (20) 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, Taxes
(as defined in Article 28 hereof) or any other matter or thing affecting or
related to the Premises, 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.
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, vacant,
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 immediately preceding business day.
B. Holdover by
Tenant. 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 one (1) day
after the Expiration Date or sooner termination of the Term, in addition to any
other rights or remedy 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 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. 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 the preceding provisions, Tenant shall be
subject not only to summary proceeding and all damages related thereto, but also
to any 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.
25
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 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, or otherwise, 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 for any reason whatsoever, including, but not limited to, the failure of
the present tenant of the Premises to vacate and surrender the Premises to
Landlord. 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, including the covenant to pay Rent.
24. NO
WAIVER.
A. 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 pursuant to the terms hereof and any such extension thereof
during the remainder of the original Term; such privilege, if and when so
exercised by Landlord pursuant to the terms hereof, 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 pursuant to
the terms hereof 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.
26
B. 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 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 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.
C. 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 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 unless such waiver be
in writing signed by Landlord.
D. 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.
E. 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, 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.
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, “Force Majeure”).
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), postage
prepaid, addressed as follows or 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:
|
If
to Landlord:
|
Rosh 1450 Properties
LLC
|
|
c/o
The Moinian Group
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
with
a copy to:
|
Property
Manager
|
|
Xxxxxxx
and Xxxxxxxxx
|
|
|
0000
Xxxxxxxx, 0xx
Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
If
to Tenant:
|
Xxxxxx
& Xxxxxx Group, Inc.
|
|
0000
Xxxxxxxx, 00xx
Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
with
a copy to:
|
Ballon
Xxxxx Xxxxx & Xxxxxx, P.C.
|
|
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention:
Xxxxx Xxxxxx, Esq.
|
or 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. 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 except if mailed by
Landlord subsequent to the date of Tenant’s vacating, deserting, abandoning or
surrendering the Premises. This notice provision has been
specifically negotiated between the parties hereto.
28
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 or
other assessments (exclusive of penalties and interest thereon) imposed upon the
Real Property and real estate taxes or assessments imposed in connection with
the receipt of income or rents solely from the Building to the extent that same
shall be in lieu of all or a portion of the aforesaid taxes or assessments, or
additions or increases thereof (including, without limitation, (i) Omitted (ii)
assessments made in connection with any business improvement district and (iii)
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 and there
shall be included in real estate taxes for each Comparison Year in which such
installments may be paid, the installments of such assessment so becoming
payable during such Comparison Year (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, rental, income, franchise,
transit or other tax) is imposed upon Landlord or the owner of the Real Property
or the Building, based on the occupancy, rents or income therefrom, in
substitution for 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 in computing the adjustment set forth in subsection
D(i)(a).
(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.
(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 its fiscal year for
real estate tax purposes).
(iv)
"Base Taxes" shall mean the Taxes payable for the Base Tax Year.
(v)
"Comparison Year" shall mean with respect to Taxes, any Tax Year subsequent to
the Base Tax Year for any part or all of which there is an increase in the Rent
pursuant to subsection B of this Article 28.
(vi)
"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.
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)(a) of this Article 28.
29
C. Payment of
Escalations. (i) At any time prior to, 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, and
(b) the amount of the increase in the Rent resulting from each of such
comparisons. Landlord's failure to render a Landlord's Statement and/or receive
payments with respect thereto during or with respect to any Comparison Year
shall not prejudice Landlord's right to render a Landlord's Statement and/or
receive payments with respect thereto 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.
Landlord may also at any time and from time to time, furnish to Tenant a revised
Landlord's Statement or Statements showing separately or together a comparison
of the Taxes payable for the Comparison Year with the Base Taxes.
(ii) (a)
With respect to an increase in the Rent resulting from an increase in the Taxes
for any Comparison Year above the Base Taxes, Tenant shall pay to Landlord a sum
equal to one-half (½) of such increase on the first day of June and a sum equal
to one-half (½) of such increase on the first day of December of each calendar
year. If Landlord's Statement shall be furnished to Tenant after the
commencement of the Comparison Year to which it relates, then (1) until
Landlord's Statement is rendered for such Comparison Year, Tenant shall pay
Tenant's Proportionate Share of Taxes for such Comparison Year in semi-annual
installments, as described above, based upon the last prior Landlord's Statement
rendered to Tenant with respect to Taxes, and (2) Tenant shall, within fifteen
(15) days after Landlord's Statement is furnished to Tenant, pay to Landlord an
amount equal to any underpayment of the installments of Taxes theretofore paid
by Tenant for such Comparison Year and, in the event of an overpayment by
Tenant, Landlord shall permit Tenant to credit against subsequent payments of
Rent the amount of such overpayment and, if such overpayment occurs in the last
Tax Year of the then Term of this Lease, by cash payment to Tenant. If during
the Term of this Lease, Taxes are required to be paid (either to the appropriate
taxing authorities or as tax escrow payments to a mortgagee) 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, as the
case may be. The benefit of any discount for any early payment or prepayment of
Taxes shall accrue solely to the benefit of Landlord, and such discount shall
not be subtracted from Tenant's Proportionate Share of such Taxes.
(b)
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) or C(ii)(b) for the
Comparison Year in question; Tenant shall pay any net debit balance to Landlord
within fifteen (15) days next following rendition by Landlord, in accordance
with the provisions of Article 27 hereof, of an invoice for such net debit
balance; any net credit balance shall be applied against the next accruing
monthly installment of Minimum Rent.
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 Share by way
of a credit against the Rent next becoming due after the sending of such
Statement; provided, however, that Tenant's 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.
30
(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.
(ii) Any
Landlord's Statement sent to Tenant shall be conclusively binding upon Tenant
unless, within thirty (30) 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 the same, and (b) send a written notice to Landlord
objecting to such statement and specifying the particular respects in which such
statement is claimed to be incorrect.
(iii)
Anything in this Article 28 to the contrary notwithstanding, under no
circumstances shall the rent payable under this Lease be less than the then
annual Base 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 or decrease in the Rent under this Article
shall not affect the rights or obligations of the parties hereto respecting such
increase or decrease and any Landlord's Statement relating to such increase or
decrease 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 thirty (30)
days after such statement is sent to Tenant.
E. (Omitted).
29. SERVICES.
A. Elevator. Landlord
shall provide passenger elevator facilities on business days from 12:00 A.M. to
11:59 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 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 use may be arranged with Landlord's
prior consent, which consent shall not be unreasonably withheld or delayed and
Tenant shall pay as additional rent all building standard charges
therefor. Tenant shall not be charged for any elevator use during its
initial move-in into the Premises.
B. Heating. Landlord
shall furnish heat to the Premises when and as required by law, on business days
from 8:00 A.M. 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.
31
C. Cooling/Central System or
Package Unit Serving Multiple Tenants. The Premises shall be serviced by
a Tenant controlled air conditioning and ventilation system installed by
Landlord. Landlord shall furnish air-cooling on business days from 8:00 A.M. to
6:00 P.M. from May 15 through October 15 of each year during the Term, when, in
the judgment of Landlord, commercially 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. Tenant agrees to maintain and repair such system at its
own cost and expense and Tenant shall maintain a service contract for the
air-conditioning units. Tenant shall not alter, modify or replace
such air-cooling system, or any part thereof. Anything in this
subsection C to the contrary notwithstanding, Landlord shall not be responsible
if the normal operation of the air-cooling system serving the Premises 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.
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.
D. After Hours and Additional
Services. The Rent does not include any charge to Tenant for the
furnishing of any additional passenger elevator facilities or any freight
elevator facilities (other than as provided in Article 29 subsection A) or for
the service of heat to the Premises during periods other than the hours and days
set forth in sections A, B and C 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) additional
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 commercially 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 any of the terms, covenants or conditions of this
Lease beyond any applicable grace or cure period; or if Landlord shall
commercially reasonably determine, that such facilities or services are
requested in connection with, or the use thereof shall create or aid in a
default under 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 agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or
otherwise. Landlord may limit the furnishing during Overtime Periods
of any of the facilities or services referred to in this Article 29D to a total
of thirty (30) hours in any one week.
E. Cleaning/Provided by
Landlord. Landlord, at Landlord’s sole expense,
shall provide cleaning services for the Premises five (5) days per each week
pursuant to a Landlord’s cleaning standards for the Building. In
addition, Tenant shall, at its own cost and expense, clean and remove all
garbage, waste, rubbish and refuse from the Premises and the Building in
accordance with such rules and regulations Landlord deems reasonably necessary
for the proper operation of the Building.
F. Sprinkler System. If
there now is or shall be installed by Landlord 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 the negligence or wrongful act 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 additional sprinkler heads be
made or supplied at the Premises 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 additional sprinkler
heads. Tenant shall pay to Landlord as additional rent the sum of twenty-five
($25.00) Dollars on the first day of each month during the term of this Lease,
as Tenant's portion of the contract price for sprinkler supervisory
service.
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G. Water. Landlord
shall provide water for ordinary drinking, cleaning, pantry, and lavatory
purposes, but if Tenant requires, uses or consumes water for any other purposes
or in unusual quantities, Landlord may install a water meter at Landlord’s
expense and thereby measure Tenant's water consumption for all purposes and in
such event (i) Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense; (ii) Tenant agrees to
pay for water consumed, as shown on said meter, ten (10) days after bills are
rendered as additional rent; 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. Tenant shall pay
to Landlord, as additional rent, on the first day of each month, Fifty ($50.00)
Dollars for the use of the water supplied to the Building in the absence of a
water meter for the Demised Premises.
H. Electricity Charges.
a) Tenant's demand for, and consumption of, electricity in the
Premises shall be determined by submeter or submeters installed (or, if
existing, retrofitted) by Landlord at Landlord's expense. Tenant
shall pay for such electric consumption within 15 days after rendition of bills
therefor, which bills shall be rendered by or on behalf of Landlord separately
for each meter.
(b) The
amount payable by Tenant per "KW" and "KWHR" for electricity consumed within the
Premises, whether determined by meters or as otherwise provided below, shall be
105% of the amount (as adjusted from time to time, "Landlord's Rate") at which
Landlord from time to time purchases each KW and KWHR of electricity for the
same period from the public utility company (including all surcharges, taxes,
fuel adjustments, taxes passed on to consumers by the public utility, and other
sums payable in respect thereof). Landlord's Rate shall be determined
by dividing the cost charged by said utility (averaged separately for KW and
KWHRs) during each respective billing period by the number of KWs and KWHRs
consumed by the Building as set forth on the utility company invoice for such
period, plus the cost of line losses between the Building's master meter and
Tenant's meter(s) as commercially reasonably determined by
Landlord.
(c) At
Landlord's option, Landlord shall furnish and install all replacement lighting,
tubes, lamps, bulbs and ballasts required in the Premises, and Tenant shall pay
to Landlord or its designated contractor upon demand Landlord's then established
reasonable charges therefor.
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I. Interruption of
Services. Landlord reserves the right to stop
service of the heating, the elevator, electrical, plumbing or other mechanical
systems or facilities in the Building and cleaning services when necessary, by
reason of accident or emergency, or for repairs, additions, alterations,
replacements, or improvements which, in the commercially reasonable judgment of
Landlord, are necessary to be made, until said repairs, additions, alterations,
replacements, or improvements shall have been completed. Landlord shall have no
responsibility or liability for interruption, curtailment or failure to supply
heat, outside air, elevator, plumbing, electricity or cleaning when prevented by
exercising its right to stop service or by strikes, labor troubles or accidents
or by any cause reasonably beyond Landlord's control, or by failure of
independent contractors to perform or by laws, orders, rules or regulations of
any federal, state, county or municipal authority or failure of suitable fuel
supply, or inability by exercise of reasonable diligence to obtain suitable fuel
or by reason of governmental preemption in connection with a National Emergency
or by reason of the conditions of supply and demand which have been or are
affected by war or other emergency. 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. Notwithstanding anything to the
contrary contained in this Lease, in the event that, as a result of (a) lack of
access for Tenant to the Premises and/or (b) the failure of any of the
mechanical systems in the Premises (including, without limitation, electricity)
and/or (c) the inoperability elevators to the Premises, Tenant is unable to
conduct its operations in the Premises for a period of seven (7) consecutive
business days then, unless the said condition or conditions hereinabove set
forth result from the negligence or wrongful acts of Tenant, its agents,
employees, contractors or invitees, the Fixed Rent shall thereafter xxxxx on
a per diem
basis until such time as Tenant is able to resume its operations in the
Premises.
30. PARTNERSHIP
TENANT.
A. Partnership
Tenants. 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 agrees not to
unreasonably withhold or delay such consent provided that:
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(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, 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. (a)
Tenant shall deposit with Landlord on the signing of this Lease the Security
Deposit (as defined in and subject to the provisions of Article 1A.(xiii) of
this Lease) as security for the faithful performance and observance by Tenant of
and subject to the provisions of the terms, conditions and provisions of this
Lease, including without limitation the surrender of possession of the Premises
to Landlord herein provided. It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this Lease, including,
but not limited to, the payment of Rent and additional rent, Landlord may apply
or retain the whole or any part of the Security Deposit so deposited to the
extent required for the payment of any Rent and additional rent or any other sum
as to which Tenant is in default or for any sum which Landlord may expend by
reason of Tenant's default (beyond any applicable grace or cure period) in
respect of any of the terms, covenants and conditions of this Lease, including
but not limited to, any damages or deficiency in the reletting of the Premises,
whether such damages or deficiency accrue or accrues before or after summary
proceedings or other reentry by Landlord. If Landlord applies or retains any
part of the Security Deposit so deposited, Tenant, within ten (10) days' after
receipt of notice from Landlord, shall deposit with Landlord the amount so
applied or retained so that Landlord shall have the full Security Deposit on
hand at all times during the Term. The failure by Tenant to deposit such
additional amount within the foregoing time period shall be deemed a material
default pursuant to Article 17 of this Lease. If Tenant shall comply with all of
the terms, provisions, covenants and conditions of this Lease, the Security
Deposit shall promptly be returned to Tenant after the Expiration Date and after
delivery of the possession of the Premises to Landlord. In the event of a sale
of the Real Property or the Building, Landlord shall have the right to transfer
the Security Deposit to the vendee and Landlord shall thereupon be released by
Tenant from all liability for the return of the Security Deposit; and Tenant
agrees to look solely to the new Landlord for the return of the Security
Deposit; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Deposit to a new Landlord. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and that neither Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance. Landlord shall retain the Security Deposit in an
interest bearing account in a banking institution having an office in the City
of New York, County of New York having a net worth value in excess of
$500,000,000.00 at a customary rate of interest for the benefit of the Tenant
and same shall form part of the Security Deposit.
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(b) (Omitted).
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. Each of the
parties hereby represent and warrant to each other that they
have dealt directly with (and only with), the Broker (as defined in
Article 1 herein) as broker in connection with this Lease, and that no other
broker negotiated this Lease or is entitled to any commission in connection
therewith; and each party covenants and agrees to pay, hold harmless and
indemnify the other party from and against any and all cost, expense (including
reasonable attorney’s fees) or liability for any compensation, commissions or
charges claimed by any broker or agent, other than the Broker, with respect to
this Lease or the negotiations thereof, arising from, the indemnifying
party’s acts, conduct or conversations. The execution and
delivery of this Lease by Landlord shall be conclusive evidence that Landlord
has relied upon the foregoing representation and warrant. This
Article shall survive the expiration or sooner termination of this Lease. Broker
shall be entitled to one full commission, provided under a separate agreement
between Landlord and Broker.
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37. INDEMNITY. Tenant
shall not, in its manner of use of the Premises, do or permit any act or thing
to be done upon the Premises which will subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of law or of any legal requirement of 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 all liabilities, obligations, damages, penalties,
claims, costs and expenses, including reasonable attorney fees, incurred or
arising from (i) any wrongful act, omission or negligence of Tenant, its
contractors, licensees, agents, employees, invitees or visitors including any
claims arising from any act, omission or negligence of Landlord or Landlord or
Tenant, (ii) any accident, injury or damage whatsoever caused to any person or
to the property of any person and occurring during the Term in or about the
Premises, (iii) 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 resulted from the
negligence or wrongful acts of Tenant or Tenant’s agents, employees, invitees or
visitors, including any claims arising from any act, omission or negligence of
Landlord or Landlord or Tenant (iv) any breach or violation 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) Tenant, or any of
Tenant's contractors, licensees, agents, employees, invitees or
visitors causing or permitting any Hazardous Substance (as hereinafter defined)
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 from in or out
about the Premises. The term "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 any law. Tenant’s liability under this
Lease extends to the negligence or wrongful acts of any subtenant and any
contractor, licensee, agent, employee, invitee or visitor of any
subtenant. As used herein and in all other provisions in this Lease
containing indemnities made for the benefit of Landlord, the term "Landlord"
shall mean the Landlord herein named and its managing agent and their 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,
costs and expenses of any kind or nature incurred in or in connection with any
such claim or proceeding brought thereon, and the reasonable cost of the defense
thereof (excluding punitive and/or special damages). This Paragraph shall
survive the expiration or sooner termination of this Lease.
38. ADJACENT EXCAVATION
SHORING. If an excavation shall be made upon land adjacent to the
Premises, Tenant shall afford to the person causing or authorized to cause such
excavation, license to reasonably enter upon the Premises for the purpose of
doing such work as shall becommercially reasonably 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.
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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 (a) Landlord shall have executed
and delivered a fully executed copy of this Lease to Tenant, (b) the delivery of
a valid insurance certificate complying with the requirements hereof and (c) the
receipt by the Landlord of good usable funds for the payment of the first
monthly installment of rent and the Security Deposit unless required due to more
frequent sales or financings.
B. Certificates. From
time to time, within ten (10) days next following request by Landlord or the
mortgagee of a Mortgage but not more than twice in any 12 month period, (unless
required due to more frequent sales or financings), Tenant shall deliver to
Landlord or such mortgagee, as the case may be, a written statement executed and
acknowledged by Tenant, in form commercially reasonably satisfactory to Landlord
or such mortgagee, (i) stating that this Lease is then in full force and effect
(if that is the case) 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
knowledge of Tenant, Landlord is in default under this 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,
(vii) stating the Commencement Date, the Rent Commencement Date and the
Expiration Date, and (viii) as to any other matters requested reasonably by
Landlord or such mortgagee. Tenant acknowledges that any statement delivered
pursuant to this subsection B 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 by any mortgagee of a Mortgage, or by any assignee of any
mortgagee of a Mortgage.
C. Directory Listings.
Landlord agrees to provide Tenant, at Landlord's sole cost and expense, with
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.
D. 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.
E. 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 and in
the lobby 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 on the entry door(s) of, and in the lobby of, the
Premises shall be prepared by Tenant in conformity with building standard
signage requirements (if any) and submitted to Landlord for Landlord's consent,
which consent shall not be unreasonably withheld, delayed or otherwise
conditioned. Upon the granting of Landlord’s consent, Tenant may
install such signage at Tenant's sole cost and expense. 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, which approval shall not be unreasonably
withheld, delayed or otherwise conditioned. 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. 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".
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F. Consents and
Approvals. 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 approval of Landlord shall be
effective for any purpose unless such consent or approval is set forth in a
written instrument executed by Landlord. Wherever in this Lease
Landlord's consent or approval is required, if Landlord shall delay or refuse
such consent or approval, Tenant in no event shall be entitled to make, nor
shall Tenant make, any claim, and Tenant hereby waives any claim for money
damages (nor shall Tenant claim any money damages by way of set-off,
counterclaim or defense) based upon any claim or assertion by Tenant that
Landlord unreasonably withheld or unreasonably delayed its consent or
approval. Tenant's sole remedy shall be an action or proceeding to
enforce any such provision, for specific performance, injunction or declaratory
judgment.
G. Governing
Law. This Lease shall be deemed to have been made in New York
County, New York, and shall be construed in accordance with the laws of New
York. All actions or proceedings relating, directly or indirectly, to
this Lease shall be litigated only in courts located within the County of New
York. Landlord and Tenant, any guarantor of the performance of
Tenant’s obligations hereunder and their respective successors and assigns,
hereby subject themselves to the jurisdiction of any state or federal court
located with such county, and shall be subject to service provided that the
terms, provisions and conditions of Article 27 are adhered to.
H. (Omitted).
40. HAZARDOUS
SUBSTANCES. Tenant shall not permit the presence, handling,
use, storage or transportation of Hazardous Substances in or about the Premises
or the Building and Tenant shall, at its sole cost and expense, perform any and
all Remedial Work arising from, growing out of or related to any breach of the
foregoing covenant by Tenant. The term “Remedial Work” shall mean all
investigation, monitoring, restoration, abatement, detoxification, containment,
handling, treatment, removal, storage, decontamination, clean-up, transport,
disposal or other ameliorative work or response action undertaken in connection
with (a) any “Environmental Laws” (as hereinafter defined), (b) any order of any
governmental authority having jurisdiction over the Premises and/or the
Building, or (c) any final judgment, consent decree, settlement or compromise
with respect to any “Hazardous Substances Claims” (as hereinafter
defined). The term “Hazardous Substances Claims” shall mean any and
all enforcement, clean-up, removal, remedial or other governmental or regulatory
actions, agreements or orders threatened in writing, instituted or completed
pursuant to any Environmental Laws and any and all other actions, proceedings,
claims, written demands or causes of action, whether meritorious or not
(including, without limitation, third party claims for contribution, indemnity,
personal injury or real or personal property damage), that, in each case, relate
to, arise from or are based, in whole or in part, on the occurrence or alleged
occurrence of any violation or alleged violation of or responsibility under any
applicable Environmental Law relating to the Premises and/or the Building or to
the ownership, use, occupation or operation thereof. The term
“Environmental Laws” shall mean any and all present and future federal, state
and local laws (whether under common law, statute, ordinance, rule, regulation
or otherwise), court or administrative orders or decrees, requirements of
permits issued with respect thereto, and other requirements of governmental
authorities having jurisdiction over the Premises and/or the Building relating
to protection of the environment, to public health and safety or any Hazardous
Substances (including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601,
et seq., as heretofore or hereafter amended from time to time).
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41. LANDLORD'S TERMINATION
OPTION. Landlord shall have the right at any time to cancel
and terminate this Lease in the event Landlord shall decide to demolish or
rehabilitate the Building (the "Termination Option"), provided that Landlord
shall give notice to Tenant of Landlord's exercise of the Termination Option not
later than six (6) months prior to the proposed termination date set forth in
such notice. In the event Landlord shall give such notice of termination
pursuant to the provisions of this Article 41, this Lease shall come to an end
and expire on the termination date set forth in the notice of termination, with
the same force and effect as though said date were the Expiration Date, unless
sooner terminated pursuant to any other term, covenant or condition of this
Lease, or pursuant to law.
42. LANDLORD'S OPTION TO
RELOCATE TENANT. Landlord shall have the right, upon not less
than
sixty (60) days prior written notice (the "Relocation Notice") to Tenant, to
relocate Tenant, at Landlord's sole expense, to other space located in the
Building (the "Substitution Space") of substantially comparable size and
condition as the Premises, in which event Tenant shall vacate the Premises on
the date specified in the Relocation Notice and enter into an amendment of this
Lease with Landlord to provide for (i) the deletion of all reference to the
Premises and the insertion of the Substitution Space in place thereof, (ii) a
fixed annual rent equal to the then current fixed annual rent per square foot
payable by Tenant under this Lease multiplied by the number of rentable square
feet in the Substitution Space and (iii) a modification of the
definitions of Tenant's Proportionate Share (as currently defined in Article 1
hereof) to accurately represent the percentage which the Substitution Space
bears to the total rentable area of the Building and to accurately represent
that portion of the fixed annual rent for the Substitution Space. In
all other respects, the terms and conditions contained in this Lease (including
escalations and base years) shall remain unmodified and continue in full force
and effect.
43. CONDOMINIUM. This
Lease and all rights of Tenant hereunder are and shall be subject and
subordinate in all respects to any past, present and future condominium
declaration and by-laws, as same may be amended from time to time (collectively,
the "Declaration") which
Declaration has been and/or shall be recorded in connection therewith including
those which were executed in order to convert the Building (or any part thereof)
to a condominium form of ownership in accordance with the provisions of Article
9-B of the Real Property Law, or any successor thereto. If any such
Declaration is to be recorded, Tenant, upon the request of Landlord, shall enter
into an amendment of this Lease confirming such subordination and modifying the
Lease in such respects as shall be necessary to conform to such condominium
conversion, including, without limitation, appropriate adjustments to Tenant's
Share and appropriate reductions in the Operating Expenses for the Base
Operating Year and the Base Tax Amount; provided, that, such
amendment and the foregoing subordination shall not reduce Tenant's rights or
increase Tenant's obligations under this Lease (in either case other than in a
non-material respect) including, without limitation, any reduction in the
obligations of Landlord under the Lease with respect to the Building, its
mechanical systems, elevators and roof. Subject to the above terms of
this Section, Tenant shall comply with the terms, covenants and conditions, of
the Declaration with respect to this Lease.
44. It is
acknowledged and agreed that in the preparation of this lease, indistinguishable
contributions were made by the attorneys and other representatives of both
Landlord and Tenant and that Landlord and Tenant each waives any and all rights,
either in law or in equity, to have this lease or any part thereof interpreted
in favor of one party over the other on the basis of lease draftsmanship and
preparation.
|
45.
|
Intentionally
Omitted.
|
40
|
46.
|
Intentionally
Omitted.
|
47.01. Renewal
Right. (a) Provided that on the date Tenant
exercises the Renewal Option and at the commencement of the Renewal Term
(i) this Lease shall not have been terminated and (ii) Tenant shall
not be in default under this Lease beyond any applicable grace or cure periods,
Tenant shall have the option (the "Renewal Option") to
extend the term of this Lease for an additional five (5) year period (the "Renewal Term"), to
commence at the expiration of the initial Term.
(b) The
Renewal Option shall be exercised with respect to the entire Premises only and
shall be exercisable by Tenant giving notice to Landlord (the "Renewal Notice") at
least 18 months before the last day of the initial Term. Time is of
the essence with respect to the giving of the Renewal Notice.
47.02.
Renewal Rent and Other
Terms. (a) The Renewal Term shall be upon all of
the terms and conditions set forth in this Lease, except that (i) the Fixed
Rent shall be as determined pursuant to the further provisions of this Section 47.02;
(ii) Tenant shall accept the Premises in its "as is" condition at the
commencement of the Renewal Term, and Landlord shall not be required to perform
Landlord's Work or any other work, pay the Work Allowance or any other amount or
render any services to make the Premises ready for Tenant's use and occupancy or
provide any abatement of Fixed Rent or Additional Charges, in each case with
respect to the Renewal Term; (iii) Tenant shall have no option to renew
this Lease beyond the expiration of the Renewal Term; and (iv) the Base Tax
Amount shall be the Taxes for the Tax Year ending immediately before the
commencement of the Renewal Term.
(b) The
annual Fixed Rent for the Premises for the Renewal Term shall be 95% of the Fair
Market Rent (“Rental Value”) and (ii) the Tax Payment payable with respect to
the Tax Year ending immediately before the commencement of the Renewal
Term. "Fair
Market Rent" means the fixed annual rent that a willing lessee would pay
and a willing lessor would accept for the Premises during the Renewal Term,
taking into account all relevant factors, which relevant factors include,
without limitation, (a) the “as is” condition, (b) the Renewal Term is for five
(5) years (c) any similar leasing of premises such as the Premises would entail
a brokerage commission to a leasing broker (d) the limitation of the Permitted
Uses, (e) the location of the Premises and (f) the various terms of this Lease,
including the Tax Escalation.
(c) If
Tenant timely exercises the Renewal Option, Landlord shall notify Tenant (the
"Rent Notice")
at least 90 days before the last day of the initial Term of Landlord's
determination of the Fair Market Rent ("Landlord's
Determination"). If Landlord's Determination exceeds the
Annual Rent, then Tenant shall notify Landlord ("Tenant's Notice"),
within 20 days after Tenant's receipt of the Rent Notice, whether Tenant accepts
or disputes Landlord's Determination, and if Tenant disputes Landlord's
Determination, Tenant's Notice shall set forth Tenant's determination of the
Fair Market Rent. If Tenant fails to give Tenant's Notice within such 20 day
period, Tenant shall be deemed to have accepted Landlord's
Determination.
41
(d) If
Tenant timely disputes Landlord's Determination and Landlord and Tenant fail to
agree as to the Fair Market Rent within 20 days after the giving of Tenant's
Notice, then the Fair Market Rent shall be determined as
follows: Such dispute shall be resolved by arbitration conducted in
accordance with the Real Estate Valuation Arbitration Rules (Expedited
Procedures) of the AAA, except that the provisions of this Section 47.02(d)
shall supersede any conflicting or inconsistent provisions of said
rules. The party requesting arbitration shall do so by giving notice
to that effect to the other party, specifying in said notice the nature of the
dispute, and that said dispute shall be determined in the City of New York, by a
panel of 3 arbitrators in accordance with this Section
47.02(d). Landlord and Tenant shall each appoint their own
arbitrator within 7 days after the giving of notice by either
party. If either Landlord or Tenant shall fail timely to appoint an
arbitrator, the appointed arbitrator shall select the second arbitrator, who
shall be impartial, within 7 days after such party's failure to
appoint. Such two arbitrators shall have 7 days to appoint a third
arbitrator who shall be impartial. If such arbitrators fail to do so,
then either Landlord or Tenant may request the AAA to appoint an arbitrator who
shall be impartial within 14 days of such request and both parties shall be
bound by any appointment so made within such 14-day period. If no
such third arbitrator shall have been appointed within such 14 days, either
Landlord or Tenant may apply to any court having jurisdiction to make such
appointment. The third arbitrator only shall subscribe and swear to
an oath fairly and impartially to determine such dispute. Within 14
days after the third arbitrator has been appointed, each arbitrator shall render
its determination of the Fair Market Rent in writing and shall submit same to
each of the other arbitrators, and to Landlord and Tenant. If at
least two of the three arbitrators shall concur in their determination of the
Fair Market Rent, their determination shall be final and binding upon the
parties. If the arbitrators fail to concur, then the Fair Market Rent
shall be equal to 50% of the sum of the two determinations by the arbitrators
closest in amount, and such amount shall be final and binding upon the
parties. The fees and expenses of any arbitration pursuant to this
Section
47.02(d) shall be borne by the parties equally, but each party shall bear
the expense of its own arbitrator, attorneys and experts and the additional
expenses of presenting its own proof. The arbitrators shall not have
the power to add to, modify or change any of the provisions of this
Lease. Each arbitrator shall have at least 10 years' experience in
leasing and valuation of properties in the Borough of Manhattan, City and State
of New York which are similar in character to the Building. After a
determination has been made of the Fair Market Rent, the parties shall execute
and deliver an instrument setting forth the Fair Market Rent, but the failure to
so execute and deliver any such instrument shall not effect the determination of
Fair Market Rent.
(e) If
Tenant disputes Landlord's Determination and if the final determination of Fair
Market Rent shall not be made on or before the first day of the Renewal Term,
then, pending such final determination, Tenant shall pay, as Fixed Rent for the
Renewal Term, an amount equal to Landlord’s Determination based upon the final
determination of the Fair Market Rent, the Fixed Rent payments made by Tenant
for such portion of the Renewal Term were (i) less than the Rental Value payable
for the Renewal Term, Tenant shall pay to Landlord the amount of such deficiency
within 10 days after demand therefor or (ii) greater than the Rental Value
payable for the Renewal Term, Landlord shall credit the amount of such excess
against the immediately following future installments of Fixed Rent payable by
Tenant.
48.01. Landlord’s
Representations.
Tenant shall have access to the
Building and the Premises 24 hours seven days a week.
49.01. Filing of
Lease.
Tenant is a public corporation and, as
such, this Lease shall be filed with the Securities and Exchange Commission and
Landlord has no objection to said filing.
42
IN WITNESS WHEREOF, Landlord
and Tenant have respectively executed this Lease as of the day and year first
above written.
Rosh 1450 Properties
LLC, as
agent
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx, a Managing Member
XXXXXX & XXXXXX GROUP,
INC., Tenant
By: /s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President
_______________________________
Tenant’s
Tax I.D. Number
43
EXHIBIT
1
Floor
Plan of Premises
44
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 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 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, within
the tenant's premises and under such regulation as may be reasonably 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, jobber or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
|
45
|
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 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 reasonable judgment of Landlord, might 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.
|
Each
tenant shall be required to use Landlord's designated locksmith and may
only install such locks and other security devices as Landlord reasonably
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.
|
|
IX.
|
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.
|
|
X.
|
No
tenant shall install or permit to be installed any vending
machines.
|
|
XI.
|
No
animals or birds may be brought into or kept in or about the Building;
Tenant acknowledges that any violation of this Rule and Regulation will
impair the first class character and reputation of the Building and shall
be a material default under this Lease. In addition, no bicycles, mopeds
or vehicles of any kind shall be brought into or kept in or about the
Building or permitted therein.
|
|
XII.
|
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.
|
|
XIII.
|
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 reasonably approved by Landlord unless the prior consent of Landlord
has been obtained for other
xxxxxxx.
|
|
XIV.
|
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.
|
46
|
XV.
|
Canvassing,
soliciting and peddling in the Building is prohibited and each tenant
shall cooperate to prevent same.
|
|
XVI.
|
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.
|
|
XVII.
|
No
tenant shall generate, store, handle, discharge or otherwise deal with any
Hazardous Substances on or about the Real
Property.
|
47
SCHEDULE
B
LANDLORD’S
INITIAL CONSTRUCTION
Subject to the other terms and
provisions hereof, Landlord agrees, at its sole cost and expense and without
charge to Tenant, to do the following work in the Premises, all of which work shall
be of quality, installation, design, capacity, finish and color of the building
standard adopted by Landlord for the Building hereinafter called "Building
Standard" except as otherwise specified in Tenant’s Plans and
Specifications.
Landlord,
at Landlord’s sole expense, shall provide a “new building installation” in the
Premises based on Tenant’s Plans and Specifications, which are attached hereto
in Exhibit 1, which work shall be completed (except for “punchlist items”) on
but not before January 1, 2010 (the “Lease Commencement
Date”). Landlord shall provide all architectural services with
respect to Landlord’s Initial Construction at Landlord’s sole
expense. Landlord shall obtain all permits and approvals with respect
to Landlord’s said work, at Landlord’s sole expense. Landlord’s work
shall be performed in accordance with Tenant’s Plans and Specifications as shown
in Exhibit 1.
Notwithstanding
anything contained herein to the contrary, Landlord’s Initial Construction shall
be deemed to have been substantially completed on the earlier of (i)
the date upon which Landlord’s Initial Construction has been completed, other
than (A) minor details or adjustments, (B) items which, in accordance with good
construction practice, should be performed after completion of Tenant's Initial
Construction and (C) any part of Landlord’s Initial Construction that is not
completed due to Tenant Delay; provided, that in
each case Landlord shall nevertheless remain obligated to complete Landlord’s
Initial Construction and (ii) the date Tenant takes possession of the Premises
for the performance of Alterations. The taking of possession of the Premises by
Tenant for the performance of Alterations by Tenant or for the commencement of
its business operations in the Premises shall be conclusive evidence as against
Tenant that, at the time such possession was so taken, the Premises and the
Building were in good and satisfactory condition and that Landlord’s Initial
Construction was fully and satisfactorily completed except for minor or
insubstantial details of construction or mechanical adjustment which Landlord
agrees to complete with reasonable diligence after said Tenant’s taking of
possession of the Premises.
48
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 Landlord for Landlord'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
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 NYC 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
changes to previously approved plans and applications must be filed under
an amended application, as required. Landlord reserves the
right to withhold approvals to proceed with changes until associated plans
are properly filed with the New York City Building 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.
|
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
Landlord.
|
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 by Tenant.
49
|
Form
|
Description
|
|
|
_____ *
|
PW-1
|
Building
Notice Application (Plan work approval application)
|
|
_____ *
|
PW-1B
|
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
|
50
|
_____ *
|
PW-6
|
Revised
Certificate of Occupancy for change in use (if
applicable)
|
|
Form
ACP7
|
New
York City Department of
|
|
|
or
|
Environmental
Protection Asbestos
|
|
|
Form ACP5
|
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 beperforated
(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 Landlord to
proceed with the work.
|
51
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 sign-offs 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).
|
52
|
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 Landlord’s managing agent 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 Landlord’s managing
agent 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.
|
53
INSURANCE
REQUIREMENTS
LIABILITY
LIMITATIONS
|
A.
|
Comprehensive
or Commercial General Liability Insurance written on an occurrence basis,
to afford protection of $5,000,000 combined single limit for personal
injury, bodily injury and/or death and Broad Form property damage arising
out of any one occurrence; and which insurance shall include coverage for
premises-operations (including explosion, collapse and underground
coverage), elevators, contractual liability, owner's and contractor's
protective liability, and completed operations
liability.
|
|
B.
|
Comprehensive
Auto Liability Insurance covering the use of all owned, non-owned and
hired vehicles providing bodily injury and property damage coverage, all
on a per occurrence basis, at a combined single limit of
$1,000,000.
|
|
C.
|
Worker's
Compensation Insurance providing statutory benefits for contractor's
employees and Employer's Liability Coverage in an amount not less than
$100,000/$500,000/$100,000.
|
|
D.
|
Property
coverage damage to or loss of use of contractor's
equipment.
|
CERTIFICATE
HOLDER
Rosh 1450 Properties
LLC
000 Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
ADDITIONAL
INSUREDS
Xxxxxxx
and Xxxxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
In
addition to listing each of the Additional Insureds, as noted above, the
Certificate of Insurance, general liability form, shall state "The General
Aggregate limit applies separately to each project."
The name
and address of the Additional Insureds shall appear on the Certificate of
Insurance. The insurance agent's address and telephone number is also
required.
54
SCHEDULE
E (Omitted)
55
Exhibit
2
|
Space
|
Year
|
Annual
Rental Rate
|
|
Premises
|
||
|
Year
|
1
|
$248,400.00
|
|
Year
|
2
|
$254,610.00
|
|
Year
|
3
|
$260,975.25
|
|
Year
|
4
|
$267,499.63
|
|
Year
|
5
|
$274,187.12
|
|
Year
|
6
|
$281,041.80
|
|
Year
|
7
|
$288,067.85
|
|
Year
|
8
|
$295,269.54
|
|
Year
|
9
|
$302,651.28
|
|
Year
|
10
|
$310,217.56
|
|
Monthly
Rental Rate
|
||
|
Year
|
1
|
$20,700.00
|
|
Year
|
2
|
$21,217.50
|
|
Year
|
3
|
$21,747.94
|
|
Year
|
4
|
$22,291.64
|
|
Year
|
5
|
$22,848.93
|
|
Year
|
6
|
$23,420.15
|
|
Year
|
7
|
$24,005.65
|
|
Year
|
8
|
$24,605.80
|
|
Year
|
9
|
$25,220.94
|
|
Year
|
10
|
$25,851.46
|
56
