Exhibit 10.63
Amended Lease
AGREEMENT OF LEASE dated as of August 16, 2000 between TM PARK
AVENUE ASSOCIATES, a New York limited partnership having an office at 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Landlord") and
CREDIT SUISSE FIRST BOSTON CORPORATION., a corporation organized under the laws
of Massachusetts, having offices at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(hereinafter called "Tenant").
W I T N E S S E T H:
ARTICLE 1
Premises, Term and Rent; Condition
of Premises; Landlord's Work; Etc.
Section 1.01. Landlord leases to Tenant, and Tenant hires from
Landlord, and upon and subject to the covenants, agreements, Terms, provisions
and conditions of this Lease, for the Term hereinafter stated, that portion of
the twenty-story building (hereinafter called the "Building") known as 000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, (hereinafter called the "Building") consisting
of the entire Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Twelfth,
Thirteenth, Fourteenth and Fifteenth and a portion of the Lobby Floor (the
"Tenant's Lobby") as set forth on the diagram marked Exhibit A attached hereto
(except for common areas, including, without limitation, areas devoted to
elevator shafts and conduits for mechanical systems, which common areas Tenant
shall have non-exclusive right to use with other Building occupants but
excluding Tenant's dedicated shaft space. Such leased Premises, together with
all fixtures, equipment, installations and appurtenances which at the
commencement of or during the Term of this Lease are thereto attached (except
items not deemed to be included therein and removable by Tenant as provided in
Article 4 of this Lease) are hereinafter called the "Premises". The plot of land
on which the Building is erected is hereinafter called the "Land". This
agreement is called the "Lease".
Section 1.02. This Lease shall commence on the date that Landlord
delivers the Premises to the Tenant in the condition set forth in Section 6.02
(The "Commencement Date") and shall expire, unless same shall sooner cease or be
Terminated as hereinafter provided or pursuant to law, on April 30, 2017 (such
Term being hereinafter referred to as the "Term"). Landlord may deliver the
Premises in blocks of at least four full floors and the Commencement Date for
each floor within the applicable block delivered shall be the date of delivery
of each respective block of floors and notice from Landlord to Tenant to such
effect. Once Landlord has delivered ten floors further deliveries of floors may
be on a floor-by-floor basis. If Tenant shall disagree with the Commencement
Date set forth in Landlord's notice, the same shall be determined by arbitration
in accordance with Exhibit J.
Section 1.03. The rent reserved under this Lease for the Term shall
be a fixed annual rent (hereinafter called the "Fixed Rent") as follows:
(a) At the annual rate of $8,426,188 per annum for the period from
and including the Commencement Date to and including September 30, 2005 and at
such rate to be paid in equal monthly installments of $702,182.33 each, in
advance, on the last day of each and
every prior calendar month during the entirety of such period (plus such
Additional Rent and other charges as shall become due and payable hereunder) by
Federal Funds wire transfer, to an account designated in writing by Landlord and
(b) At the annual rate of $9,158,900 per annum for the period from
and including October 1, 2005 to and including September 30, 2010 and at such
rate to be paid in equal monthly installments of $763,241.66 each, in advance,
on the last day of each and every prior calendar month during the entirety of
such period (plus such Additional Rent and other charges as shall become due and
payable hereunder), by Federal Funds wire transfer, to an account designated in
writing by Landlord, and
(c) At the annual rate of $9,891,612 per annum for the period from
and including October 1, 2010 to and including September 30, 2015 and at such
rate to be paid in equal monthly installments of $824,301 each, in advance, on
the last day of each and every prior calendar month during the entirety of such
period (plus such Additional Rent and other charges as shall become due and
payable hereunder) by Federal Funds wire transfer, to an account designated in
writing by Landlord.
(d) At the annual rent of $10,074,790 per annum for the period from
and including October 1, 2015 to and including April 30, 2017 and at such rate
to be paid in equal monthly installments of $839,565.83 each in advance on the
last day of each and every prior calendar month during the entirety of such
period (plus Additional Rent and other charges as shall become due and payable
hereunder) to an account designated in writing by Landlord.
Section 1.04. Tenant agrees promptly to pay the Fixed Rent,
Additional Rent and other charges herein reserved as and when the same shall
become due and payable, without demand thereof, and without any set-off or
deduction whatsoever except as expressly provided in this Lease and to keep,
observe and perform, and to permit no violation of, each and every of the
covenants, agreements, terms, provisions and conditions herein contained on the
part and on behalf of Tenant to be kept, observed and performed. Any Fixed Rent
payments that are due under this Lease shall, if not received by Landlord by the
fifth day after such rent is due, bear a three (3%) percent surcharge for the
late payment and interest at the Default Rate; provided, however, that if a
monthly payment is inadvertently late no more than once in any twelve month
period and is paid within two (2) days after notice from Landlord to Tenant, the
three (3%) percent surcharge shall not apply to that late payment.
Section 1.05. Additional Rent shall mean all charges owed pursuant
to Sections 16.04, 19.01, 21.02, 21.03, 21.04, 22.06, 23.02, 23.03 and 23.04 and
such other Sections of similar purport.
Section 1.06. If, by reason of any of the provisions of this Lease,
the Term expires on any date other than the last day of a calendar month (except
if the Term Terminates by reason of Tenant's default hereunder), the Fixed Rent
and Additional Rent for such calendar month shall be equitably prorated. If the
Commencement Date of the Lease is any day other than the first of a calendar
month, the Fixed and Additional Rent for that first month shall be equitably
prorated.
2
Section 1.07. For all purposes hereof, it is agreed that the
Premises consists of 183,178 square feet consisting of 16,288 square feet on
each of the second through eighth floors and the twelfth through fifteenth
floors and 4,010 square feet in the Tenant's Lobby.
Section 1.08. Notwithstanding any other provisions of the Lease,
Tenant will not be obligated to make any payments of the Fixed Rent for: (a) the
two month period commencing with the Commencement Date, and (b) the month of
September, 2003 and (c) for the months of October 1, 2005 through September 30,
2006, Tenant shall receive a rent credit of $63,603.47 per month (or, if Tenant
shall have expended less than $483,179 in order to remove the linoleum or other
floor tiles in the Premises, and if all such linoleum or other floor tiles have
not been removed, the credit will be reduced by one twelfth (1/12) of $483,179
less the amount so expended). Tenant shall pay, upon the execution of the Lease,
the Fixed Rent for the third month after the Commencement Date.
ARTICLE 2
Rent after lease expiration; Guarantee of Payment
Section 2.01. If Tenant holds over beyond the Term, Tenant shall pay
Landlord as use and occupancy, during the period that Tenant holds over an
amount equal to the sum of one hundred-fifty (150%) percent of the Fixed Rent
and all Additional Rent.
Section 2.02. Tenant will never withhold rent when due under Article
1 of this Lease. If Tenant believes that it is entitled to any abatement of rent
it will commence an accelerated arbitration proceeding in accordance with the
proceeding (the "Arbitration Procedures") set forth in Exhibit J attached hereto
and made part of this Lease. If Tenant receives any award from the arbitration,
Landlord shall pay such award in three monthly installments including interest
on the outstanding balance to be calculated at the prime rate plus 1% and Tenant
shall have the right to offset against the Fixed Rent and Additional Rent the
amounts so to be repaid. Prime rate shall be that from time to time posted by
Citibank, N.A. or its successor.
ARTICLE 3
Use of Premises
Section 3.01. The Premises shall be used and occupied for executive
administrative and general and trading offices by Tenant, or affiliates, of
Tenant and by and for permitted assignees, subtenants and licensees and uses
ancillary thereto, including, without limitation, as a data center, cafeteria,
document reproduction center, mail center, training room for employees,
recreation room and similar uses and for no other purpose. Tenant agrees that it
shall not use the Premises or any part thereof, or suffer or permit the Premises
or any part thereof to be used, for any purposes other than as set forth in the
first sentence of this Section 3.01.
Section 3.02. Tenant agrees that it shall not use or suffer or
permit the use of the Premises or any part thereof in any way which would
violate any of the covenants, agreements, Terms, provisions and conditions of
this Lease or for any unlawful purposes or in any unlawful manner and Tenant
shall not suffer or permit the Premises or any part thereof to be used in any
3
manner or anything to be done therein or anything to be brought into or kept
therein which, in the reasonable judgment of Landlord, would in any way impair
or unreasonably interfere with any of the Building systems or the proper and
economic heating, cleaning, air conditioning or other similar servicing of the
Building or the Premises (to the extent that same or any of same are to be
furnished to the Premises), or impair or unreasonably interfere with the use of
any of the other areas of the Building by, or occasion discomfort, inconvenience
or annoyance to, any of the other tenants or occupants of the Building and which
is customary in first class office buildings.
Section 3.03. Subject to Landlord's obligation under this Lease, if
any governmental license or permit shall be required for the proper and lawful
conduct of Tenant's business or other Tenant activity carried on in the
Premises, and if the failure to secure such license or permit would in any way
materially adversely affect Landlord, then Tenant at Tenant's sole cost and
expense, shall duly procure the same and make the same available to inspection
by Landlord. Tenant, at Tenant's sole cost and expense, shall at all times,
comply with the requirements of each such license or permit. Notwithstanding
anything in this Lease to the contrary, Tenant shall not have any obligation to
secure, or pay for, any license or permit for work which Landlord is responsible
to perform in or about the Premises or the Building.
Section 3.04. Landlord represents that the Certificate of Occupancy
attached hereto as Exhibit B is valid in full force and effect for the Building.
Section 3.05. Tenant shall have the right to name the Building
during the Term and to place prominent signage in the lobbies of the Building
and one exterior sign adjacent to the Park Avenue entrance to the Building and
one exterior sign on each side of the entrance to Tenant's Lobby provided that
such signage is tasteful and consistent with the first class nature of the
Building and does not interfere or conflict with the first floor retail usage or
signage. Except as provided herein, Landlord will not allow any exterior signage
other than for the retail space.
Section 3.06. Tenant will have a dedicated entrance for its
exclusive use (with the right and obligation to impose security measures and
procedures using employees in labor harmony with employees of the Building at
the lobby on the 00xx Xxxxxx side of the Building as shown in Exhibit A attached
herein hereto constituting the Tenant's Lobby; all elevators, except the freight
elevator, located on the eastern side of the Building shall be dedicated for
Tenant's exclusive use as will be the one most westerly elevator on the Park
Avenue side of the Building. At such time as Tenant occupies thirteen (13)
floors of the Building, Tenant shall receive a second dedicated elevator on the
Park Avenue side of the Building adjacent to the then dedicated elevator on the
Park Avenue side. At such time as Tenant occupies fifteen (15) floors of the
Building, Tenant shall receive a third dedicated elevator on the Park Avenue
side of the Building adjacent to the then dedicated elevators and when Tenant
occupies eighteen floors, Tenant will receive a fourth dedicated elevator on the
Park Avenue side of the Building adjacent to the then dedicated elevators. At
Tenant's request, all non-dedicated elevators shall be "locked off" so as not to
service Tenant's floors.
Section 3.07. Tenant shall have the use of a 100 square foot area of
the roof as shown on Exhibit F to install satellite dishes, antennae and other
communication equipment without extra cost or charge and will further have shaft
space from the telecommunication's points of entry
4
in the basement to be made available to Tenant pursuant to Exhibit F to the
portion of the roof as described in Exhibit F dedicated to Tenant (the Dedicated
Shaft Space).
Section 3.08. Tenant shall have the right to use the fire stairs
connecting the floors of the Premises as convenience stairs. Tenant may install
an internal security system and shall tie such system into the Building's
security and Class E systems.
ARTICLE 4
Appurtenances, Etc., Not to be Removed
Section 4.01. All fixtures, equipment, installations and
appurtenances attached to or built into the Premises (hereinafter severally and
collectively called, in this Section 4.01. "Appurtenances" other than trade
fixtures and equipment) and personal property at the commencement of or during
the Term, whether or not furnished or installed at the expense of Tenant or by
Tenant, shall be and remain part of the Premises and be deemed the property of
Landlord and shall not be removed by Tenant, except as otherwise expressly
provided in this Lease. Without limiting the generality of the preceding
sentence, all electric, plumbing, heating, sprinkler, dumbwaiter and elevator
systems, fixtures and outlets, venetian blinds, partitions, railings, gates,
doors, stairs, paneling, cupboards (whether or not recessed in paneling),
molding, shelving, radiator enclosures, cork, rubber, tile and composition
floors, and ventilating, silencing, air conditioning and cooling equipment shall
be deemed to be Appurtenances, whether or not attached to or built into the
Premises. Anything hereinbefore in this Article 4 contained to the contrary
notwithstanding, any Appurtenances furnished and installed in any part of the
Premises (whether or not attached thereto or built therein) by Tenant may be
removed from the Building by Tenant prior to the expiration of the Term hereof.
Tenant shall repair and restore, in a good and workmanlike manner, substantially
to its condition prior to the furnishing or installation of any Appurtenances
which are not customarily found in a first class office building ("Specialty
Alterations") and repair any damages to the Premises or the Building caused by
such removal on or prior to the end of the Term (or any space as to which a
renewal right is not exercised). If any Appurtenance which as aforesaid may be
removed from the Building by Tenant is not removed by Tenant from the Building
within the time above specified therefor it shall be deemed that the same has
been abandoned by Tenant to Landlord.
Section 4.02. The exterior of the perimeter walls of the Premises,
any balconies or roofs adjacent to the Premises, and any space in and/or
adjacent to the Premises presently used for shafts, stairways, stacks, pipes,
vertical conveyors, mail chutes, pneumatic tubes, conduits, ducts, electric or
other utilities, rooms containing elevator or air conditioning machinery and
equipment, sinks, or other Building facilities, and the use thereof, as well as
reasonable access thereto through the Premises for the purpose of such use and
the operation, improvement, replacement, addition, repair, maintenance and/or
decoration thereof, are expressly reserved to Landlord except as otherwise
provided in this Lease; provided, however, that Tenant may decorate the interior
sides of the perimeter walls of the Premises. Tenant shall not have access to
the Building air conditioning systems to be installed within the Premises, but
shall be provided with access to any Tenant equipment or risers located therein
as described in Exhibit F.
5
Section 4.03. Tenant shall be required to remove those internal
staircases that it installed if Landlord has given written notice to Tenant at
least twelve (12) months prior to the end of the Term that such staircases shall
be removed.
ARTICLE 5
Various Covenants
Section 5.01. Tenant covenants that Tenant will:
(a) Subject to the provisions of Articles 6, 7, 8 and 10 of this
Lease, take good care of the Premises, and, at Tenant's sole cost and expense,
(i) make all interior non-structural repairs (other than repairs occasioned by
acts of Landlord, its agents, servants or employees, tenants or other occupants
of the Building) thereto as may be required to keep the Premises in good order
and condition.
(b) Faithfully observe and comply with the rules and regulations
annexed hereto and such additional reasonable rules and regulations of general
applicability to the Building as Landlord hereafter at any time or from time to
time may make and may communicate in writing to Tenant, provided, however, that
(i) in the case of any conflict between the provisions of this Lease and any
such rule or regulation, the provisions of this Lease shall control, (ii)
nothing contained in this Lease shall be construed to impose upon Landlord any
duty or obligation to enforce the rules and regulations or the Terms, covenants
or conditions in any other lease as against any other tenant; and (iii) Landlord
will not discriminate against Tenant in the enforcement of any such rules; and
(iv) Tenant shall have the right to dispute the reasonableness of any new rule
or regulation by notifying Landlord in writing within thirty (30) days after the
same is first promulgated in writing by Landlord. If the parties are unable to
resolve this dispute, same shall be settled by arbitration in accordance with
the Arbitration Procedures.
(c) Permit Landlord and any mortgagee of the Building and/or the
Land or of the interest of Landlord therein and any lessor under any ground or
underlying lease, and their representatives, to enter the Premises at all
reasonable hours, using best efforts to give 24-hours' notice to Tenant except
in the event of emergencies for the purposes of inspection, or of making
necessary or required repairs, replacements or improvements in or to the
Building or equipment, or of making repairs in or to the Premises, or of
complying with all laws, orders and requirements of governmental or other
authority or of exercising any right reserved to Landlord by this Lease,
including the right during the progress of such repairs, replacements or
improvements or while performing work and furnishing materials in connection
with compliance with any such laws, orders or requirements, to keep and store
within the Premises all necessary materials, tools and equipment to the extent
necessary and that no reasonable alternate space is available to Landlord.
Landlord shall perform such work shall be done in such a manner, as to minimize
disruption to Tenant's business in and access to the Premises and will be done
after business hours, if Tenant requests, at the reasonable cost and expense of
Tenant to the extent such cost exceeds what would otherwise have been payable.
Landlord shall endeavor to keep the work area clean and tidy.
6
(d) Make no claim against Landlord or any lessor under any ground or
underlying lease for any loss of or damage to any property of Tenant or others
by theft or any injury or damage to Tenant or other persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or sub-surface or from any
other place or by dampness or by any other cause of whatsoever nature, or any
such damage caused by other tenants or persons in the Building or caused by
construction of any private work unless caused by or due to the willful acts or
omissions or the negligence of Landlord, its agents, servants, or employees or
contractors or the breach by Landlord of its obligations under this Lease. No
property other than such as might normally be brought upon or kept in the
Premises as an incident to the reasonable use of the Premises for the purposes
specified in this Lease shall be brought upon or kept in the Premises.
(e) Make no alterations, decorations, installations, repairs,
additions, improvements or replacements (hereinafter collectively called "Tenant
Changes") in, to or about the Premises except as provided in this clause (e):
(i) No Tenant's Changes of a structural nature shall be made
without Landlord's prior consent, and then only by contractors or
mechanics approved by Landlord, such consent and approval to changes
and contractors not to be unreasonably conditioned, withheld or
delayed. Tenant charges, which are of a non-structural nature may be
made without Landlord's consent but upon at least ten (10) days
written prior notice. Changes of decorative, cosmetic nature or
minor repairs may be made without notice or Landlord's consent. All
contractors or mechanics, no matter the amount of the contract,
shall provide the Landlord, prior to commencing work, with a copy or
certificates of their worker's compensation and liability insurance
policies naming the Landlord as an insured and shall work in labor
harmony with the Building's employees.
(ii) Tenant's Changes shall be done at Tenant's sole cost and
expense and at such times, and in such manner so as to not
unreasonably discomfort, inconvenience or disrupt Landlord or any
other tenant's use or access of or to the Building (it being
acknowledged that the performance of Tenant's Changes may involve
some such discomfort, inconvenience or annoyance);
(iii) Prior to the commencement of any structural Tenant's
Changes or changes to the Building's systems or to the exterior of
the Building, Tenant shall submit to Landlord, for Landlord's
approval, plans and specifications (to be prepared by and at the
sole cost and expense of Tenant) of such proposed Tenant's Changes
in detail reasonably satisfactory to Landlord; The proposed Tenant's
Changes provided for in such plans and specifications shall not be
undertaken until Landlord has approved same, which approval shall
not be unreasonably withheld, conditioned or delayed and such
proposed Tenant's Changes shall not be continued pursuant to
material amendments or additions to such plans and specifications
until Landlord has approved such amendments or additions. Landlord's
approval shall be deemed given if Landlord has not given Tenant
notice of objection to such plans and specifications, or to such
amendments or
7
additions, as the case may be, within fifteen (15) business days
after same, respectively, have been submitted to Landlord, or within
ten (10) business days after submission of any revised plans such
notice of objection to specify in reasonable detail the nature
thereof;
(iv) In no event shall any material or equipment (except for
communication, word processing and computer equipment or any other
equipment used in Tenant's normal operations) be incorporated in or
to the Premises in connection with any such Tenant's Changes which
is subject to any lien, security agreement, charge, mortgage or
other encumbrance of any kind whatsoever or is subject to any
conditional sale or other similar or dissimilar title retention
agreement;
(v) Any mechanic's lien filed against the Premises or the
Building for work done for, or claimed to have been done for, or
materials furnished to, or claimed to have been furnished to, Tenant
shall be discharged by Tenant within sixty (60) days after Tenant
receives notice of the same, at Tenant's expense, by filing the bond
required by law or otherwise; and
(vi) All Tenant's Changes shall at all times comply with (A)
laws, rules, orders and regulations of governmental authorities
having jurisdiction thereof, (B) the reasonable rules and
regulations and (C) to the extent required by Section 5.01(e),
plans and specifications as aforesaid, or amendments or additions
thereto as aforesaid,
(f) Not violate, or permit the violation of, any condition imposed
by the standard fire insurance policy issued for office buildings in the County
or the City of New York and not to do anything or permit anything to be done, or
keep anything or permit anything to be kept, in the Premises, which would
increase the fire or other casualty insurance rate on the Building or the
property therein, or which would result in insurance companies of good standing
refusing to insure the Building or any such property in amounts and against
risks as reasonably determined by Landlord. If by reason of failure of Tenant to
comply with the provisions of this paragraph including but not limited to, the
use to which Tenant puts the Premises, the fire insurance rate shall at the
beginning of this Lease or 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 solely because of such failure or use by Tenant, and shall make
such reimbursement upon the first day of the month following such outlay by
Landlord (such payment being deemed a cure of Tenant's failure or use). In any
action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make up" rate for the Building or the Premises issued by an organization making
fire insurance rates for the Premises, shall be prima facie evidence of charges
in the fire insurance rate then applicable to the Premises.
(g) Permit Landlord, at reasonable times and upon one days prior
notice, to show the Premises to any lessor or lessee under any ground or
underlying lease, or any lessee or mortgagee, or any prospective purchaser,
lessee, mortgagee, or assignee of any mortgage of the Building and/or the land
upon which the Building is situate or of Landlord's interest therein, and
8
their representatives, and during the period of nine months next preceding the
date of expiration of the Term with respect to any part of the Premises
similarly show any part of the Premises, at reasonable times, to any person
contemplating the leasing of all or a portion of the same such entry shall not
affect Tenant's use and occupancy of the Premises in any material way.
(h) At the end of the Term, quit and surrender to Landlord the
Premises broom-clean and in good order and condition, reasonable wear and tear,
obsolescence and damage by the elements excepted, and Tenant shall remove all of
its personal property, except as may be otherwise provided in Article 4 hereof.
Any personal property which shall remain in the Premises after the expiration or
termination of the Term shall be deemed to have been abandoned, and either may
be retained by Landlord as its property or may be disposed of in such manner as
Landlord may see fit; provided, however, that, notwithstanding the foregoing.
Tenant will, upon request of Landlord made not later than 30 days prior to the
expiration or not later than the day before any termination of the Term,
promptly remove from the Building any such personal property at Tenant's own
cost and expense.
(i) At any time and from time to time, but not more than twice per
year, upon not less than fifteen (15) days' prior notice by Landlord to Tenant,
execute, acknowledge and deliver to Landlord, or to anyone Landlord shall
reasonably designate, a statement of Tenant in writing certifying that this
Lease is unmodified and in full effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), specifying the dates to which the Fixed Rent, Additional Rent
and other charges have been paid in advance, if any, and stating whether or not
to the best knowledge of the signer of such certificate Landlord is in default
in performance of any provision of this Lease and, if so, specifying each such
default of which the signer may have knowledge, it being intended that any such
statement so delivered may be relied upon by any lessor under any ground or
underlying lease, or any lessee or mortgagee, or any prospective purchaser,
lessee, mortgagee, or assignee of any mortgage, of the Building and/or the Land
or Landlord's interest therein.
(j) Not move any safe, heavy machinery, heavy equipment, bulky
matter or fixtures into or out of the Building without Landlord's prior consent,
which shall not be unreasonably withheld or delayed. If such safe, machinery,
equipment, freight of bulky matter or fixtures require 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 applicable laws,
orders and regulations of all governmental authorities having or asserting
jurisdiction over the Premises or the Building. Notwithstanding the consent of
Landlord and subject to the terms of Sections 8.03 and 8.04. Tenant shall
indemnify Landlord for, and hold Landlord harmless and free from, damages
sustained by persons or property and for any damages or monies paid out by
Landlord in settlement of any claims or judgments, as well as for all reasonable
costs and expenses and reasonable attorneys' fees incurred in connection with
Tenant's moving such heavy equipment, and occasioned by the acts of Tenant, its
agents, servants, employees, contractors, visitors or invitees and all costs
reasonably incurred in repairing any such damage to the Building, except any of
the same arising from the willful misconduct or negligence of Landlord its
agents, servants and employees or a breach by Landlord of its obligations under
this Lease.
9
(k) Unless attributable to the negligence or misconduct of Landlord,
its officers, directors, agents and employees or of another party to be
indemnified hereunder, indemnify, and save harmless, Landlord and any mortgagee
and any lessor under any ground or underlying lease, and their respective
officers, directors, agents and employees, from and against any and all
liability (statutory or otherwise), claims, actions, suits, demands, damages,
judgments, costs, interest and expenses of any kind or nature of anyone
whomsoever (including, but not limited to, reasonable counsel fees and
disbursements incurred in the defense of any action or proceeding), to which
they may be subject or which they may suffer by reason of, or by reason of any
claim for, any injury to, or death of, any person or persons or damage to
property (including any loss of use thereof) arising from or in connection with
the use of the Premises by Tenant, its employees, contractors, agents, visitors,
invitees, subtenants or licenses or from any work, installation or thing
whatsoever done, by Tenant, its employees, contractors, agents, visitors,
invitees, subtenants or licensees in the Premises during the Term of this Lease
or arising from any condition of the Premises due to or resulting from any
default by Tenant in the performance of Tenant's obligations under this Lease or
from any act, omission, (where this Lease or law imposes a duty to acts) or
negligence of Tenant or any of Tenant's officers, directors, agents,
contractors, employees, subtenants, licensees or invitees. Unless attributable
to the negligence or misconduct of Tenant, its officers, directors, agents and
employees or of another party to be indemnified hereunder, Landlord shall
indemnify, and save harmless Tenant, Tenant's officers, directors, agents and
employees, from and against any and all liability (statutory or otherwise),
claims, actions, suits, demands, damages, judgments, costs, interest and
expenses of any kind or nature of anyone whomsoever (including, but not limited
to, reasonable counsel fees and disbursements incurred in the defense of any
action or proceeding), to which they may be subject or which they may suffer by
reason of, or by reason of any claim for, any injury to, or death of, any person
or persons or damage to property (including any loss of use thereof) arising
from or in connection with the use of the Premises by Landlord, its employees,
contractors, agents, visitors, invitees, subtenants or licenses or from any
work, installation or thing whatsoever done, by Landlord, its employees,
contractors, agents, visitors, invitees, subtenants or licensees in the Premises
during the Term or arising from any condition of the Premises due to or
resulting from any default by Landlord in the performance of Landlord's
obligations under this Lease or from any act, omission, (where this Lease or law
imposes a duty to acts) or negligence of Landlord or any of Landlord's officers,
directors, agents, contractors, employees, subtenants, licensees or invitees.
(l) Not clean, nor require, permit, suffer or allow any window in
the Premises to be cleaned, in violation of Section 202 of the Labor Law.
ARTICLE 6
Changes or Alterations by Landlord; Landlords' Work
Section 6.01. Upon written notice, Landlord reserves the right to
make such changes, alterations, additions, improvements, repairs or replacements
in or to the Building and the fixtures and equipment thereof, as well as in or
to the street entrances, halls, passages, elevators, escalators, stairways and
other parts thereof, all as Landlord may reasonably deem necessary or desirable
providing there shall be no substantial diminution of building services to the
Premises or of ingress or egress to and from the Premises or other than to a de
minimus extent affect any of the
10
areas of exclusive or dedicated use of Tenant. Landlord reserves the right to
erect, maintain and use pipes, ducts and conduits in and through the Premises,
all as Landlord may reasonably deem necessary or desirable. Any such changes or
the like referred to in the two immediately preceding sentences shall not
unreasonably interfere with Tenant's use or occupancy of the Premises, or reduce
other than by a de minimus extent the usable area of the Premises. Any damage to
the Premises resulting in the course of any such work shall be corrected
promptly at the sole cost and expense of Landlord to the extent such correction
is not inconsistent with the change or the like, and, with respect to the
installation of pipes, ducts and conduits, same shall be concealed behind,
beneath or within partitioning, columns, ceilings or floors, to the maximum
extent possible, or completely furred at points immediately adjacent to any such
partitioning, columns or ceilings, and same shall not other than by a de minimus
amount reduce the usable area of the Premises. Nothing contained in this Article
6 shall relieve Tenant of any duty, obligation or liability of Tenant under this
Lease with respect to making any repair, replacement or improvement or complying
with any law, order or requirement of any governmental or other authority.
Section 6.02. Landlord will deliver the Premises to the Tenant
vacant, free of tenancies and with the present installation demolished and
removed and the Phase I Work set forth on Schedule C complete on the
Commencement Date. Landlord will complete the Phase II Work set forth on
Schedule C in a good and workmanlike manner in coordination with Tenant's work.
If Landlord's Phase II Work is not completed by the dates set forth in Exhibit C
and such later completion delays Tenant's commencement or performance or
completion of its work then, to the extent Landlord was not delayed in the
completion of Landlord's Phase II Work by Tenant, Tenant shall be entitled to an
abatement of rent of one day for each day of delay. Delay will be determined on
a floor-by-floor basis and rent abatement will be similarly so determined.
Landlord represents, to the best of it's knowledge, that the Building is in
compliance with all codes and regulations of any federal, state or local
governmental entity, inclusive of the provision of the Americans with Disability
Act of 1992 -- except for the bathrooms in the Premises which are the
responsibility of the Tenant and that the Building has a live load capacity as
set forth in the Certificate of Occupancy. Landlord further represents that
there are no hazardous materials in the Building or Premises. Landlord shall, if
required in order to use the Premises for office use, obtain a change to the
Certificate of Occupancy permitting such use as soon a practicable following the
date hereof so as not to delay Tenants ability to occupy the Premises for
business purposes or provide Tenant with reasonably satisfactory evidence that
no change of the Certificate of Occupancy is needed. Tenant shall cooperate with
Landlord in connection therewith. Landlord shall have no liability to Tenant if
unable to timely obtain such change either because application cannot be made
therefor until Tenant's work is completed or due to normal governmental delays
attendant upon the obtaining of any such change in a certificate of occupancy,
but shall be responsible to Tenant if due to Landlord's failure to pursue the
same with due diligence and continuity or by reason of violation or other
application pending or affecting the Building.
Section 6.03. If at any time any windows of the Premises are
temporarily darkened, closed, rendered inoperable or obstructed for any reason
beyond Landlord's control, 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.
11
ARTICLE 7
Tenant Improvements
Section 7.01. Tenant covenants, and agrees to construct, first class
offices in the entire Premises pursuant to plans and specifications to be
provided by the Tenant to Landlord. Tenant will make all improvements in strict
compliance with Sections 5.01(e), 5.01(f) of this Lease and will reconstruct
all of the bathrooms within the Premises to comply with the provisions of the
Americans with Disability Act of 1992.
Section 7.02. Provided no Act of Default exists, Landlord will pay
for a portion of the actual cost of tenant improvements (including without
limitation, soft costs) equal to $2,747,670. Such reimbursement will be on the
following Terms:
(a) All of Tenant's work will be in accordance with plans and
specifications prepared by a registered architect hired and paid for by the
Tenant, such plans will be and otherwise in accordance with Article 5 and will
be filed with by the New York City Department of Building and such other
governmental agencies as are required.
(b) Any work to be performed in the Premises must be performed by a
contractor(s) who have been approved in writing by the Landlord which approval
will not be unreasonably withheld, conditioned or delayed, prior to the
commencement of work. Said contractors must provide Landlord with certificates
of insurance and Worker's Compensation coverage in amounts and form satisfactory
to Landlord and must work in labor harmony with the Building's employees.
(c) Requests for payment shall be made not more often than on a
monthly basis, each request shall include the following:
(i) a certification of the amount spent for which
reimbursement is sought.
(ii) lien waivers from the Contractors or Sub-contractors
acknowledging receipt of prior payments and certification from the
Tenant's architect as to the work that had been completed.
(iii) such other documentation as the first mortgagee shall
reasonably require if such mortgagee is generally recognized as an
institutional lender.
(d) Landlord upon verification of the same, will pay to Tenant the
Tenant's contractor an amount equal to 100% of the payment requested but in the
aggregate no more than $2,747,670.
(e) Tenant shall provide final lien waivers and records of payments
from each and every contractor and sub-contractor that worked on the Premises
and shall further indemnify and defend Landlord against all claims arising by
reason of lack of payment or late payment from sub-contractors or contractors
employed by Tenant at the Premises.
12
ARTICLE 8
Damage by Fire, Etc.
Section 8.01. If any part of the Premises shall be damaged by fire
or other casualty, Tenant shall give prompt notice thereof to Landlord and
Landlord shall proceed with reasonable diligence, to repair such damage, and if
any part of the Premises shall be rendered untenantable by reason of such
damage, the Fixed Rent and Additional Rent payable hereunder shall be abated
proportionately for the period from the date of such damage to the date when the
Premises or the damaged portion thereof shall have been made tenantable. When
Premises have been made tenantable and Tenant has been given notice at least ten
(10) days prior ("Landlord's Reasonable Notice"),Tenant shall receive a further
abatement of Fixed and Additional Rent for a period which is the lesser of (a)
one hundred twenty (120) days and (b) the actual time after Landlord's
Restoration Notice that Tenant re-occupies the Premises. If Tenant has been
given notice at least ten (10) days prior, (Landlord's Restorated Notice)
thereto or to such earlier date upon which the Term shall expire or terminate,
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, unless such inconvenience, annoyance or injury is occasioned by
the acts or omissions of Landlord, its agents, servants, employees, contractors,
visitors or invitees. Tenant understands that Landlord will not carry insurance
of any kind on Tenant's Property, which Term, as used herein, means, Tenant's
goods, furniture or furnishings or any fixtures, equipment, improvements,
installations or appurtenances removable by Tenant as provided in this Lease,
and that Landlord shall not be obligated to repair any damage thereto or replace
the same. In the event that Tenant cannot move back into at least eighty (80%)
percent of its space within 180 days from the casualty, Tenant may Terminate
this Lease unless Landlord has provided other space in the Building for Tenant
to occupy comparable in size and quality. Landlord shall within sixty (60) days
of casualty notify Tenant of estimated time to restore Premises, if such time is
more than one hundred eighty (180) days or if damage occurs in the last two
years of the Term, Tenant may terminate this Lease by written notice to Landlord
Section 8.02. Anything contained in Section 8.01 to the contrary
notwithstanding, if substantial alteration or reconstruction of the Building
(i.e. any alteration or reconstruction costing thirty five (35%) percent of the
then value of the Building) shall, in the reasonable opinion of Landlord, be
required as a result of damage by fire or other casualty, then this Lease and
the Term and estate hereby granted may be Terminated by Landlord by its giving
to Tenant, and provided that similar Notice is given to other Tenants who along
with Tenant occupy at least ninety-five (95%) percent of the office space in the
Building within 30 days after the date of such damage, notice specifying a date,
not less than 90 days after the giving of such notice, for such Termination. In
the event of the giving of such notice of Termination, this Lease and the Term
and estate hereby granted shall expire as of the date specified therefor in such
notice with the same effect as if such date were the date hereinbefore specified
for the expiration of the Term, and the Fixed Rent and Additional Rent payable
hereunder shall be apportioned as of such date of termination, subject to
abatement, if any, as and to the extent provided in Section 8.01 hereof.
Section 8.03. Each party agrees to endeavor to have included in each
of its property insurance policies (insuring the Building and Landlord's
property therein, in the case of Landlord, and insuring Tenant's property in the
Premises, in the case of Tenant, against loss,
13
damage or destruction by fire or other casualty therein covered) a waiver of the
insurer's right of subrogation against the other party, or, if such waiver
should be unobtainable or unenforceable, (a) an express agreement that such
policy shall not be invalidated if the assured waives, before the casualty, the
right of recovery against any party responsible for a casualty covered by the
policy or (b) if, any other form of permission shall not be, or shall cease to
be, obtainable (i) without additional charge or (ii) at all, the insured party
shall so notify the other party promptly after learning thereof. In the first
such case, if the other party shall so elect and shall pay the insurer's
additional charge therefor, such waiver, agreement or permission shall be
included in the policy.
Section 8.04. Each party hereby releases the other party with
respect to any claim (including a claim for negligence) which it might otherwise
have against the other party for loss, damage or destruction with respect to its
property occurring during the Term of this Lease to the extent to which it is
insured for such loss, damage or destruction under a policy or policies
containing a waiver of subrogation or permission to release liability as
provided in Section 8.03 hereof. If, notwithstanding the recovery of insurance
proceeds by either party for such loss, damage or destruction of its property,
the other party is liable to the first party with respect thereto or is
obligated under this Lease to make replacement, repair or restoration or
payment, then (provided the first party's right of full recovery under its
insurance policies is not thereby prejudiced or otherwise adversely affected)
the amount of the net proceeds of the first party's insurance against such loss,
damage or destruction shall be offset against the second party's liability to
the first party thereof, or shall be made available to the second party to pay
for replacement, repair or restoration, as the case may be. Nothing contained in
this Section 8.04 shall relieve either party of any duty imposed elsewhere in
this Lease to repair, restore or rebuild or to nullify any abatement of rent
provided for elsewhere in this Lease.
Section 8.05. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York providing for such a contingency in the absence of express
agreement, and any other law of like import now or hereafter in force, shall
have no application in such case.
ARTICLE 9
Condemnation
Section 9.01. In the event that the whole of the Premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the Term and estate hereby granted shall forthwith cease and
Terminate as of the date of vesting of title. In the event that only a
non-material (i.e. less than 15%) part of the Building which does not negatively
impact Tenant's access to the Premises or Landlord's ability to operate the
Building shall be so condemned or taken, then, effective as of the date of
vesting of title, the Fixed Rent and Additional Rent hereunder shall be abated
in an amount thereof apportioned according to the area of the Building so
condemned or taken. In the event that more than thirty (30%) percent of the
Building shall be so condemned or taken, then, Landlord may, at Landlord's
option, Terminate this Lease and the Term and estate hereby granted as of the
date of such vesting of title by notifying Tenant of such Termination within 90
days following the date on which Landlord shall have received notice of vesting
of title. In the event that fifteen (15%) percent or more of the Premises shall
be so
14
condemned or taken, then, Tenant, at Tenant's sole option, may Terminate this
Lease and the Term and estate hereunder granted as of the date of such vesting
of title by notifying Landlord of such Termination within 90 days following the
date on which Tenant shall have received notice of vesting of title. If Tenant
does not elect to Terminate this Lease, as aforesaid, this Lease shall be and
remain unaffected by such condemnation or taking, except that the Fixed Rent and
Additional Rent payable hereunder shall be abated as hereinbefore provided in
this Article 9. In the event that only a part of the Premises shall be so
condemned or taken and this Lease and portion of the Premises are not terminated
as hereinbefore provided, Landlord will, with reasonable diligence and at its
expense, restore the remaining portion of the Premises as nearly as practicable
to the same condition as it was in prior to such condemnation or taking,
however, Landlord shall not be obligated to repair any damage to Tenant's
Property or replace the same.
Section 9.02. In the event of a Termination of this Lease pursuant
to Section 9.01, this Lease and the Term and estate hereby granted shall expire
as of the date of such Termination with the same effect as if that were the date
hereinbefore set for the expiration of the Term and the Fixed Rent and
Additional Rent payable hereunder shall be apportioned as of such date.
Section 9.03. In the event of any condemnation or taking
hereinbefore mentioned of all or a part of the Building, Landlord shall be
entitled to receive the entire award in the condemnation proceeding, including
any award made for the value of the estate vested by this Lease in Tenant, and
Tenant assigns to Landlord any and all right, title and interest of Tenant now
or hereafter arising in or to any such award or any part thereof, Tenant not
being entitled to receive any part of such award. The foregoing shall not
prohibit Tenant's independent claim for the value of Tenant's trade fixtures
actual costs of Tenants Improvements, alterations, changes and moving expenses
and any other claim permitted under law.
ARTICLE 10
Compliance with Laws
Section 10.01. Tenant, at Tenant's sole cost and expense, shall
comply with all laws and ordinances, and all rules, orders and regulations of
all governmental authorities and of all insurance bodies, at any time duly
issued or in force, applicable to the Premises or any part thereof or to
Tenant's use thereof, except that Tenant shall not hereby be under any
obligation to comply with any law, ordinance, rule, order or regulation
requiring any structural alteration of or in connection with the Premises
(including without limitation, any alteration of or to the electricity,
plumbing, HVAC and sprinkler systems), unless such alteration is required by
reason of a condition, has been created by, or at the instance of Tenant, or is
attributable to any use to which Tenant puts the Premises, if same is not
permitted by the Terms of this Lease, or is required by reason of a breach of
any of Tenant's covenants and agreements hereunder. Landlord will maintain the
Building in a first class manner and will comply with all laws and regulations
of governmental authorities and insurance bodies to the extent the failure to do
so would endanger life or limb or adversely affect Tenant's ability to use the
Premises except to the extent that such compliance is a duty of Tenant under
this Lease.
15
ARTICLE 11
Notices
Section 11.01. (A) Except as otherwise expressly provided in this
Lease, any bills, statements, consents, notices, demands, requests or other
communications given or required to be given under this Lease ("Notice(s)")
shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (against a signed receipt) or if deposited in a securely
fastened, postage prepaid envelope in a depository that is regularly maintained
by the U.S. Postal Service, sent by registered or certified mail (return receipt
requested) or if sent be nationally recognized overnight delivery service for
next day delivery and in either case addressed:
if to Tenant, Attn: Xx. Xxxxx Xxxxxxxxxx (a) at Tenant's address set
forth in this Lease, or with a copy to Shearman and Sterling, 000 Xxxxxxxxx
Xxxxxx Xxx Xxxx, XX Attn: Xxxxx X. Xxxxx, Esq. or if to Landlord, at Landlord's
address set forth in this Lease, Attn: Xxxxxxx Xxxxxxx, with a copy to Raphael
and Marks, 000 XX Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxx,
Esq., (c) any Mortgagee who may have requested the same, by Notice given in
accordance with the provisions of this Article 11, at the address designated by
such Mortgagee or (d) to such other address(es) as either Landlord or Tenant may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 11.
(B) Notices shall be deemed to have been rendered or given (a) on
the date delivered, if delivered by hand, or (b) three (3) Business Days after
mailing, if mailed as provided in Section 11 .01(A). Notice given by counsel for
either party on behalf of such party or by the Manager or Managing Agent on
behalf of Landlord shall be deemed valid notices if addressed and sent in
accordance with the provisions of this Article. However, all Tenant default
notices shall be sent by either the Landlord or its attorney.
Section 11.02. Notwithstanding the provisions of Section 11.01,
Notices requesting services for Overtime Periods pursuant to Section 16.04 may
be given by delivery to the Building superintendent or any other person in the
Building designated by Landlord to receive such Notices, and bills may be
rendered by delivering them to the Premises without the necessity of a receipt.
ARTICLE 12
Damage to and Defects in Building Equipment and Systems
Section 12.01. Subject to Section 20.02, Tenant shall give Landlord
prompt notice of any damage to, or defective condition in, any part or
appurtenance of the Building's plumbing, electrical, heating, air conditioning
or other equipment or systems serving, located in, or passing through the
Premises of which Tenant is aware. If such damage or defective condition was
caused by, or resulted from the improper use by, Tenant or by the employees,
agents, licensees or invitees of Tenant, all reasonable out-of-pocket costs and
expenses associated with the repair shall be paid by Tenant. Tenant shall not be
entitled to claim any damages arising from any such damage or defective
condition nor shall Tenant be entitled to a claim of eviction,real or
constructive by reason of any such damage or defective condition, unless the
same shall have been caused by the
16
intentional act or omission or the negligence of Landlord or its servants,
contractors, visitors, employees, agents, licensees or invitees in the operation
or maintenance of the Premises or the Building or the same shall not have been
repaired by Landlord with reasonable diligence after notice thereof from Tenant
to Landlord.
ARTICLE 13
Defaults
Section 13.01. The following are Acts of Default under this Lease:
(a) Tenant shall make an assignment of its property for the benefit
of creditors or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition under any bankruptcy or insolvency
law shall be filed against Tenant and such involuntary petition is not dismissed
within 120 days after the filing thereof,
(b) if a petition is filed by or against Tenant under the
reorganization provisions of the United States Bankruptcy Code (the "Bankruptcy
Code") or under the provisions of any law of like import, unless such petition
under said reorganization provisions be one filed against Tenant which is
dismissed within 120 days after its filing,
(c) if Tenant shall file a petition under the arrangement provisions
of the Bankruptcy Code or under the provisions of any law of like import,
(d) if a permanent receiver, trustee or liquidator shall be
appointed for Tenant or of or for the property of Tenant, and such receiver,
trustee or liquidator shall not have been discharged within 160 days from the
date of his appointment,
(e) if Tenant shall default in payment of any Fixed Rent or
Additional Rent or any other charge payable hereunder by Tenant to Landlord on
any date upon which the same becomes due, and such default shall continue for
five (5) days after notice from Landlord to Tenant.
(f) if Tenant shall default in the due keeping, observing or
performance of any covenant, agreement, Term, provision or condition of Article
3 or Article 26 hereof on the part of Tenant to be kept, observed or performed
and such default shall continue and shall not be remedied by Tenant within
twenty (20) business days after Landlord shall have given to Tenant a notice
specifying the same.
(g) if Tenant shall default in the keeping, observing or performance
of any covenant, agreement, Term, provision or condition of this Lease on the
part of Tenant to be kept, observed or performed (other than a default of the
character referred to in clauses (e) or (f) of this Section 13.01), and if such
default shall continue and shall not be remedied by Tenant within thirty (30)
days after Landlord shall have given to Tenant a notice specifying the same, or,
in the case of such a default which for causes beyond Tenant's control cannot
with due diligence be cured within said period of thirty (30) days, if Tenant
(i) shall not, promptly upon the giving of such notice, notify Landlord of
Tenant's intention to take all steps necessary to remedy such
17
default with due diligence, and (ii) shall not duly institute and thereafter
diligently prosecute to completion all steps necessary to remedy the same.
(h) if any event shall occur or any contingency shall arise (except
as expressly permitted by this Lease) whereby this Lease or the estate hereby
granted or the unexpired balance of the Term would, by operation of law or
otherwise, devolve upon or pass to any firm, association, corporation, person or
entity other than Tenant (except as expressly permitted by this Lease).
In the event that any of the Acts of Default in Sections
13.0l(a)-(h) occur, Tenant shall be in default of this Lease. Landlord may
thereafter give to Tenant a notice of intention to end the Term at the
expiration of 10 days from the date of the giving of such notice, and, in the
event such notice is given, this Lease and the Term and estate hereby granted
shall expire and Terminate upon the expiration of said 10 days with the same
effect as if that day were the date hereinbefore set for the expiration of the
full Term of this Lease ("Default Termination"), but Tenant shall remain liable
for damages as provided in this Lease or pursuant to law ("Default
Termination"). If the Term "Tenant", as used in this Lease, refers to more than
one person, then as used in clauses (a), (b), (c) and (d) of this Section 13.01,
said Term shall be deemed to include all of such persons or any one of them;
and, if this Lease shall have been assigned, the Term "Tenant", as used in said
clauses, shall be deemed to include the assignee and the assignor or either of
them under any such assignment unless Landlord shall, in connection with such
assignment, release the assignor from any further liability under this Lease, in
which event the Term "Tenant", as used in said clauses, shall not include the
assignor so released.
Section 13.02. If Tenant shall default in the payment of any Fixed
Rent or Additional Rent or any other charge payable hereunder by Tenant to
Landlord on any date upon which the same becomes due and after all applicable
grace periods, or if this Lease shall Terminate as in Article 13 provided,
Landlord or Landlord's agents and servants may immediately or at any time
thereafter reenter into or upon the Premises, or any part thereof, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
and may repossess the same, and may remove any persons therefrom, to the end
that Landlord may have, hold and enjoy the Premises again as and of its first
estate and interest therein. The words "reenter", "reentry" and "reentering" as
used in this Lease are not restricted to their technical legal meanings.
Section 13.03. In the event of any Termination of this Lease under
the provisions of Article 13 or in the event that Landlord shall reenter the
Premises under the provisions of this Article 13 or in the event of the
Termination of this Lease (or of reentry) by or under any summary dispossess or
other proceeding or action undertaken by Landlord for the enforcement of its
aforesaid right of reentry or any provision of law, Tenant shall thereupon pay
to Landlord the Fixed Rent, Additional Rent and any other charge payable
hereunder by Tenant to Landlord up to the time of such Default Termination or of
such recovery of possession of the Premises by Landlord, as the case may be, and
shall also pay to Landlord damages as provided in Article 14 or pursuant to law.
Also, in the event of a Default Termination, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but only to the extent such monies shall be credited by
Landlord first against any Fixed Rent, Additional Rent or any other charge due
from Tenant at the time of such Default Termination and then against any damages
18
payable by Tenant under Article 14 or pursuant to law, with the balance, if any,
being paid to the Tenant.
Section 13.04. The specified remedies to which Landlord may resort
hereunder are cumulative and are not intended to be inclusive of any other
remedies or means of redress to which Landlord may lawfully be entitled at any
time, and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not herein provided for.
ARTICLE 14
Damages
Section 14.01. In the event of a Default Termination of this Lease,
Tenant shall immediately pay to Landlord as damages:
(a) sums equal to the aggregate of the Fixed Rent and any Additional
Rent hereunder which would have been payable by Tenant had this Lease not
terminated by such Default Termination, payable upon the due date therefor
specified herein following such Default Termination and until the date
hereinbefore set for the expiration of the Term. If Landlord shall relet all or
any part of the Premises for all or any part of said period, which Landlord is
not obligated to do, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such reletting the
reasonable expenses actually incurred or paid by Landlord in terminating this
Lease and or reentering the Premises and of securing possession thereof, as well
as the reasonable out-of-pocket expenses of reletting, including altering and
preparing the Premises for new tenants, brokers' commissions and all other
reasonable expenses chargeable against the Premises and the rental therefrom for
the stated Term of this Lease in connection with such reletting, it being
understood that any such reletting may be for a period equal to or shorter or
longer than said period; provided, further that (i) in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by Tenant
to Landlord hereunder, (ii) in no event shall Tenant be entitled, in any suit
for the collection of damages pursuant to this clause (a), to a credit in
respect of any net rents from a reletting except to the extent that such net
rents are actually received by Landlord, and in no event for an amount greater
than the amount owed by Tenant and (iii) if the Premises or any part thereof
should be relet in combination with other space, then appropriate apportionment
on a square foot rentable area basis shall be made of the rent received from
such reletting and of the reasonable expenses of reletting.
Section 14.02. Nothing herein contained shall be construed as
limiting or precluding the recovery by Landlord against Tenant of any sums or
damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant.
19
ARTICLE 15
Waivers
Section 15.01. Tenant, for Tenant, and to the extent Tenant is able
on behalf of any and all firms, corporations, associations, persons or entities
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law to redeem the Premises or to
have a continuance of this Lease for the Term after Tenant is dispossessed or
ejected therefrom by process of law or under the Terms of this Lease or after
the expiration or Termination of this Lease as herein provided or pursuant to
law. If Landlord commences any summary proceeding, Tenant agrees that Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding unless the same is a compulsory counterclaim.
Section 15.02. Except in the case of any action, proceeding or
counterclaim brought by either of the parties against the other for personal
injury or property damage, the respective parties hereto waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and any emergency or any other statutory remedy.
ARTICLE 16
Utilities and Building Services
Section 16.01. Landlord will provide, at Landlord's cost, all of the
passenger elevators on the eastern side of the Building and accessible through
Tenant's Lobby; except the freight elevator, for the Tenant's dedicated use to
the Premises from 7:00 A.M. until 7:00 P.M., and the one most westerly elevator
in the Park Avenue lobby (as increased as provided in Section 3.06), on a
dedicated basis to the Premises at all times set forth in the first sentence of
Section 16.07 (and at a minimum from 7 A.M. to 7 P.M.). Landlord shall provide
heating, ventilation and air-conditioning (HVAC) in season as required for
Tenant's comfort, use and occupancy with effective performance during Business
Hours in accordance with the HVAC performance specifications provided in Exhibit
F attached hereto. "Business Hours", as used in this Lease, means between 8:00
A.M. until 6:00 P.M on days other than Saturdays, Sundays and holidays and
between 8:00 AM and 1:00 PM on Saturdays. "Holidays" as used in this Lease means
all days observed by the State or federal government as legal holidays (New
Year's Day, Xxxxxx Xxxxxx Xxxx'x Birthday, Lincoln's Birthday, Presidents' Day,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, and Christmas). Business days shall mean all days other than,
Sundays and Holidays.
Section 16.02. (a) Tenant shall, cause the Premises including
Tenant's Lobby to be kept clean and cause refuse and rubbish to be removed from
the Premises at Tenant's cost and expense by a vendor selected by Tenant who
shall have reasonable access to the Building and the Premises. Tenant's cleaning
contractor shall work in labor harmony with the Building's employees.
20
(b) Landlord shall clean the exterior windows at lease twice in each
year (and, at the reasonable expense of Tenant, more often if requested by
Tenant) and shall clean the Park Avenue lobby including Tenant's dedicated
elevators, the sidewalks, the stairwells, the loading dock, and other common
areas in a manner consistent with other first class office buildings.
Section 16.03. Landlord shall maintain all HVAC equipment and
systems. Landlord shall, at Landlord's Expense, keep the HVAC equipment and
systems within the Premises in good working order at Landlord's expense, and
operational during Business Hours, as that Term is defined in Section 16.01 of
this Lease.
Section 16.04. Landlord will, when and to the extent reasonably
requested by tenant, furnish additional elevator, heating and air conditioning
services, upon such terms and conditions as shall be reasonably determined by
Landlord; and Tenant shall pay to Landlord promptly on receipt of an invoice, as
Additional Rent, Landlord's charges for such additional services in accordance
with the Schedule of Building charges which may be amended from time to time to
reflect increases in Landlord's cost of providing such services. A copy of the
current Schedule is attached as Exhibit E hereto. Without limiting the
generality of the preceding sentence, Tenant shall pay to Landlord Landlord's
actual cost for all cleaning of the Building or any part thereof required
because of the carelessness or indifference of Tenant.
Section 16.05. At any time or times all or any of the elevators in
the Building may, at the option of Landlord, be manual and/or automatic
elevators, and Landlord shall be under no obligation to furnish an elevator
operator for any automatic elevator. If Landlord shall at any time or times
furnish any elevator operator for any automatic elevator, Landlord may
discontinue furnishing such elevator operator without any diminution, reduction
or abatement of rent. If Landlord switches from automatic to manual elevators,
Landlord shall provide, at no cost to Tenant, at least one elevator operator for
each manual elevator. Landlord shall provide the services to be provided by
Landlord in a manner comparable to those in other first class office buildings.
Section 16.06. Except as otherwise provided in this Lease, Landlord
reserves the right, without liability to Tenant and without constituting any
claim of constructive eviction, to stop or interrupt any heating, elevator,
escalator, lighting, ventilating, air conditioning, gas, steam, power,
electricity, water, cleaning or other service and to stop or interrupt the use
of any Building facilities at such times as may be reasonably necessary and for
as long as may reasonably be required by reason of accidents, strikes, or the
making of repairs, alterations or improvements, or inability to secure a proper
supply of fuel, gas, steam, water, electricity, labor or supplies, or by reason
of any other similar cause beyond the reasonable control of Landlord. Landlord
agrees to use reasonable diligence to restore any stopped or interrupted
services or Building facilities. Landlord will use best efforts to give Tenant
Notice of such interruption of services other than in emergencies.
Section 16.07. Tenant shall have access to the Premises twenty-four
(24) hours a day, seven (7) days a week and to the Building's electrical,
mechanical and telecommunication rooms, if any, which service the Premises
during normal business hours.
Section 16.08. During the period of Tenant's initial installation
and move-in, Landlord will provide Tenant with access to the freight elevator
and loading dock without cost to
21
Tenant on a non reserved first come, first served basis during business hours
without cost to the Tenant and at Landlord's actual cost for labor to man the
elevator during non-business hours. All large construction deliveries and
Tenant's "move in" must be after hours. Tenant will have such reasonable
priority use of the loading dock, serving the Building, as shall be consonant
with its occupancy of approximately two-thirds of the Building.
Section 16.09. The provisions of Exhibit F are incorporated herein
as fully as if set forth at length herein. Any conflict between the provisions
of Exhibit F and the provisions of the body of the Lease shall be resolved in
favor of Exhibit F.
Section 16.10. Landlord will provide the following security for the
Building which will consist of one security guard stationed in the Park Avenue
Lobby. Tenant must have a security person present during such hours as Tenant's
Lobby is open and unlocked. Landlord will maintain the sidewalks adjacent to the
Building.
Section 16.11. Landlord will provide (a) maintenance, painting and
electric lighting service for all public areas of the Building excluding the
Tenant's Lobby in the manner and to the extent appropriate for a first-class
office building; (b) non exclusive use of one telephone closet per floor of the
Premises. Tenant may not install any equipment (such as patch panels, telephone
switches or intermediate distribution frames) in the Building's telephone
service room. Landlord shall permit Tenant, subject to compliance with all
applicable provisions of Article 5 and at Tenant's cost to connect into the
Building's general exhaust system the exhaust systems for any smoking rooms,
pantries and printing/duplicating areas that may be built by Tenant in the
Premises. Landlord shall operate and maintain the Building's general exhaust
system so as to permit the same to accept exhaust from the aforesaid systems but
in no event shall Landlord be required to accept exhaust in excess of the
product of 200 cfm multiplied by the number of floors in the Premises. Landlord
shall permit Tenant, subject to compliance with all applicable provisions of
Article 5, and at Tenant's expense, to connect into the Building's toilet
exhaust system to accept exhaust from the toilet exhaust systems for the toilets
and showers that may be built by Tenant in the Premises.
Section 16.12. Landlord shall grant Tenant access to water and waste
lines for the installation of facilities permitted pursuant to Section 3.01.
Section 16.13. Landlord shall permit Tenant to tie into the existing
Class "E" life safety system. Tenant shall have the right to install its own
card key and other security system at Tenant's cost and expense.
Section 16.14. Landlord shall grant Tenant access to the broadband
system in the Building.
ARTICLE 17
Lease Contains All Agreements; Etc.
Section 17.01. This Lease contains all of the covenants, agreements,
terms, provisions and conditions relating to the leasing of the Premises
hereunder, and neither Landlord nor Tenant, in executing and delivering this
Lease is relying upon, any warranties, representations, promises or statements,
except to the extent that the same may expressly be set forth in this Lease.
22
Section 17.02. The failure of Landlord or Tenant to insist in any
instance upon the strict performance of any provision of this Lease or to
exercise any election herein contained shall not be construed as a waiver or
relinquishment for the future of such provision or election, but the same shall
continue and remain in full force and effect. No waiver or modification by
Landlord or Tenant of any provision of this Lease or other right or benefit
shall be deemed to have been made unless expressed in writing and signed by
Landlord or Tenant, as the case may be. No surrender of the Premises or of any
part thereof or of any remainder of the Term of this Lease shall be valid unless
accepted by Landlord in writing. Any breach by Tenant of any provision of this
Lease shall not be deemed to be waived by (a) the receipt and retention by
Landlord of Fixed Rent or Additional Rent from anyone other than Tenant or (b)
the acceptance of such other person as a tenant or (c) a release of Tenant from
the further performance by Tenant of the provisions of this Lease or (d) the
receipt and retention by Landlord of Fixed Rent or Additional Rent with
knowledge of the breach of any provision of this Lease. No payment by Tenant or
receipt or retention by Landlord of a lesser amount than any Fixed Rent or
Additional Rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment of such 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 No agreement hereafter made between Landlord and
Tenant shall be effective to change, modify, waive, release, discharge,
Terminate or effect an abandonment of this Lease, in whole or in part, unless
such agreement is in writing, refers expressly to this Lease and is signed by
the party against whom enforcement of the change, modification, waiver, release,
discharge or Termination or effectuation of the abandonment is sought.
ARTICLE 18
Parties Bound
Section 18.01. The covenants, agreements, Terms, provisions and
conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance where a party hereto is named or referred to,
except that no violation of the provisions of Article 22 hereof shall operate to
vest any rights in any successor, assignee or legal representative of Tenant and
that the provisions of this Article 18 shall not be construed as modifying the
conditions of limitation contained in Article 13 hereof. It is understood and
agreed, however, that the covenants and obligations on the part of Landlord
under this Lease thereafter to be performed shall not be binding upon Landlord
herein named accruing with respect to any period subsequent to the transfer of
its interest in the Building, that in the event of such a transfer said
covenants and obligations shall thereafter be binding upon each transferee of
such interest of Landlord herein named, but only with respect to the period
ending with a subsequent transfer of such interest, and that a lease of the
entire interest shall be deemed a transfer within the meaning of this Article
18.
23
ARTICLE 19
Curing Tenant's Defaults -- Additional Rent
Section 19.01. If Tenant shall be in default beyond an applicable
grace and or notice period in the keeping, observance or performance of any
provision or obligation of this Lease to be observed or performed by Tenant,
Landlord, without thereby waiving such default, may perform the same for the
account and at the expense of Tenant, without additional notice. Bills for any
out-of-pocket expense reasonably and actually incurred by Landlord in connection
with any such performance by Landlord for the account of Tenant, and bills for
all costs, expenses and disbursements of every kind and nature whatsoever,
including, but not limited to, reasonable attorneys' fees, involved in
collecting or endeavoring to collect the Fixed Rent or Additional Rent or other
charge or any part thereof or enforcing or endeavoring to enforce any rights
against Tenant, under or in connection with this Lease, or pursuant to law,
including (without being limited to) any such reasonable cost, expense and
disbursement involved in instituting and prosecuting any action or proceeding
(including any summary dispossess proceeding), as well as reasonable bills for
any property, material, labor or services provided, furnished or rendered, or
caused to be provided, furnished or rendered, by Landlord to Tenant including
(without being limited to) electric lamps and other equipment, construction work
done for the account of Tenant, as well as for any charges for any additional
elevator, heating, air conditioning or cleaning services incurred under Article
16 hereof and any charges for other similar or dissimilar services incurred
under this Lease, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and shall be due and payable in accordance with the Terms of
said bills within sixty (60) days after receipt, and if not paid when due, the
amounts thereof shall immediately become due and payable as Additional Rent
under this Lease. Tenant shall not be obligated to pay any legal fees or
expenses of any kind incurred by Landlord in connection with Landlord's
assertion against Tenant of claims that have no merit and are unsuccessfully
asserted. Tenant also shall not be obligated to pay any expenses of any kind for
services which Landlord is obligated to provide to Tenant pursuant to the terms
of this Lease or applicable law, unless this Lease expressly obligates Tenant to
pay such expenses pursuant to a provision of this Lease other than this Section
19.01. If any Fixed Rent, Additional Rent or any other costs, expenses or
disbursements payable under this Lease including all money owed under Section
1.04 by Tenant to Landlord are not paid within thirty (30) days after their
respective due dates, the same shall bear interest, from the respective due
dates, at the rate of prime plus 3% per month, (the Default Rate), or the
maximum rate permitted by law, whichever is less, until paid and the amount of
such interest shall be Additional Rent. If Tenant prevails in a legal action by
or against Landlord, then Landlord shall reimburse Tenant for all reasonable
legal costs and expenses incurred by Tenant and any amount not so paid within
thirty (30) days shall bear interest at the Default Rate.
Section 19.02. In the event that Tenant is in default in payment of
Fixed Rent or Additional Rent or any other charge, Tenant waives Tenant's right,
if any, to designate the items against which any payments made by Tenant are to
be credited, and Tenant agrees that Landlord may apply any payments made by
Tenant to any items currently due, as Landlord sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited.
24
ARTICLE 20
Inability to Perform
Section 20.01. This Lease and the obligations of Tenant to pay rent
hereunder and perform all of the other covenants, agreements, terms, provisions
and conditions hereunder on the part of Tenant to be performed shall in no way
be affected, impaired or excused because Landlord is unable to fulfill any of
its obligations under this Lease or because Landlord is unable to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make or is delayed in making any repairs, replacements, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from doing by reason
of strikes or labor troubles or any other cause beyond Landlord's control,
including, but not limited to, governmental preemption in connection with a
national emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
conditions of supply and demand which have been or are affected by war,
hostilities or other similar emergency, except as otherwise expressly provided
in the Lease it being agreed that lack of funds shall not be deemed to be beyond
Tenant's control.
Section 20.02. Notwithstanding anything else to the contrary
contained in this Lease, if by reason of an event beyond the reasonable control
of Landlord there is a failure, stoppage, interruption or suspension in the
furnishing of any service which Landlord is obligated to provide pursuant to
this Lease, and if such failure, stoppage, interruption or suspension renders
any portion of the Premises untenantable for period of five (5) consecutive
business days after Tenant gives Landlord written notice thereof, then provided
that Tenant shall not use or occupy that portion of the Premises for the conduct
of its business during such period of five (5) consecutive business days, the
Fixed Rent and Additional Rent payable with respect to such portion (s) of the
Premises shall be abated in the proportion that the tenantable rentable area of
the Premises bears to the total rentable area of the Premises for each day that
Tenant shall not use or occupy the Premises, or such portion thereof, for the
conduct of Tenant's business during the period beginning on the sixth (6th)
consecutive business day after such notice and terminating on the earlier of (a)
the date that such portion of the Premises shall become tenantable again and (b)
the date Tenant commences to use or occupy the Premises or such portion thereof
for the conduct of Tenant's business;
Section 20.03. If Landlord shall default in providing any service or
making any repairs or restorations on Landlord's part to be provided pursuant to
this Lease, (a) Tenant may remedy such default for the account of Landlord,
immediately and with telephonic notice in case of emergency, or in any other
case only provided that Landlord shall fail to remedy such default after Tenant
shall have notified Landlord in writing of such default and Landlord shall not
have cured such default within thirty (30) days after such notice or in the case
of a default which cannot with due diligence be cured within a period of thirty
(30) days if Landlord shall not within said thirty (30) day period have
instituted steps to remedy the situation and thereafter diligently prosecute the
same to completion; and (b) if Tenant makes any expenditures in connection with
such default, such sums, with interest at the Default Rate, shall be paid by
Landlord to Tenant upon rendition of a xxxx to Landlord therefor. Any dispute
with respect to sums Tenant claims are owed by Landlord under this Section shall
be resolved by arbitration in accordance with the provisions of Exhibit J. If
Landlord shall fail to pay such sums to Tenant, in accordance with Section 2.02
Tenant may offset such amount against the Fixed Rent and Additional Rent payable
under this Lease.
25
ARTICLE 21
Water and Electricity
Section 21.01. Landlord shall in no way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur by
reason of any failure, inadequacy or defect in the character, quantity or supply
of electricity or water furnished to the Premises, except if any such failure,
inadequacy or defect is the result of any negligent or willful act or omission
of Landlord or its agents, employees, servants, licensees, or contractors or the
breach by Landlord of this Lease.
Section 21.02. Landlord shall furnish hot and cold water for (a)
normal office use and in connection with the performance by Tenant of any
Tenant's Changes in accordance with clause (e) of Section 5.01, (b) Landlord's
air conditioning equipment during Business Hours, and (c) drinking, lavatory,
kitchen and toilet facilities, in or near the Premises and Tenant's
supplementary cooling system if applicable. When water is furnished by Landlord
for any other purpose, Tenant shall pay a reasonable amount for the same and for
any required pumping and heating thereof as well as any taxes, sewer rents or
other charges which may be imposed on any governmental authority or agency
thereof based on the quantity of water so used by Tenant.
Section 21.03. Subject to the provisions of Section 21.05,
electricity shall be furnished to Tenant through the electrical lines and
service presently servicing the Building, and Tenant shall purchase same from
Landlord on the basis provided in Section 21.04.
Section 21.04. Tenant shall pay Landlord a fixed monthly consumption
charge, commencing, at such time as rent commences pursuant to Section 1.08 of
this Lease, for all electricity consumed in the Premises. Such charge shall
initially be $41,978.29 (based on a $2.75 per square foot charge) (the "Base
Electrical Charge"). If the cost of electricity to Landlord is increased at any
time by reason of change in rates, charges, fuel adjustment or service
classification, or by taxes or charges of any kind imposed thereon, or for any
other reason, the Base Electrical Charge may be increased by Landlord
appropriately and proportionately to reflect fully the increased cost of
electricity, such increased fixed monthly consumption charge to be applicable
hereunder until the next such increase. Tenant shall pay Landlord Base
Electricity charge, in advance, on the first day of each month during the Term
hereof (with an equitable proration for any period of less than a full month as
to which the provisions hereof shall be applicable, except if the Term
Terminates by reason of Tenant's default hereunder).
Section 21.05. Landlord shall not be liable to Tenant for any loss,
damage or expense which Tenant may sustain or incur if either the quantity or
character of electric service is changed or is no longer available or suitable
for Tenant's requirements unless caused by the negligence, willful misconduct or
breach of this Lease by Landlord. Tenant agrees that its use of electric current
shall never exceed the capacity of existing feeders to the Building or the
risers or existing wiring installation in the Building. Any riser or risers to
supply Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord at the sole reasonable cost and expense of Tenant if, in
Landlord's reasonable judgment, the same are necessary and will not cause
permanent damage or injury to the Building or the Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense
26
or interfere with or disturb other tenants or occupants. Landlord reserves the
right to terminate the furnishing of electricity on the basis provided in this
Article 21 at any time, upon 90 days' notice to Tenant, in which event Tenant
shall make application directly to the public utility for its own completely
separate supply of electric current and Landlord shall permit its wires,
feeders, conduits and risers, to the extent available and safely capable, to be
used by Tenant for such purpose. Any meters, risers, feeders or other equipment
or connections necessary to enable Tenant to obtain electric current directly
from such utility shall be installed at Landlord's sole cost and expense;
provided, however, and anything hereinbefore contained to the contrary
notwithstanding, Landlord shall not terminate the furnishing of electricity as
aforesaid following the expiration of such 90 day period, and thereafter, for so
long as Tenant does not have its own separable electric service, so long as
Tenant is diligently pursuing the aforesaid application and the installation of
its separate electric service. Rigid conduit or EMT with set screw couplings, if
allowed by applicable law, only will be allowed. Tenant may at any time upon
written notice to Landlord install a sub meter or direct meter at its own
expense, for the entire Premises in which event all costs associated with the
sub-metering or direct metering shall be fully paid by Tenant and the provisions
of Section 21.04 shall not apply. This Lease shall otherwise remain in full
force and effect at the time Landlord terminates the furnishing of electricity
as aforesaid. Commencing when Tenant is directly metered or sub-metered and as
long as Tenant shall continue to receive such service, Landlord shall no longer
be entitled to charge or receive the Base Electrical Charge referred to in
Section 21.04 and any payment made by Tenant for periods after Tenant's receipt
of direct service shall be promptly refunded. If Tenant obtains separately
metered service, is being provided sub-metered service by Landlord, Tenant shall
pay Landlord one hundred three (103%) percent of such charges as are indicated
by the metered service at Landlord's average cost per kilowatt hour for the
Building. The Landlord represents that the Building has 8,000 amps of power and
service on each floor of 400 amps.
ARTICLE 22
Assignment, Subletting, Etc.
Section 22.01. Tenant, other than pursuant to the provisions of this
Lease, shall not, whether voluntarily, involuntarily, by operation of law or
otherwise (a) assign or otherwise transfer this Lease or the Term and estate
hereby granted, (b) sublet the Premises or any part thereof, or allow the same
to be used, occupied or utilized by any one other than Tenant, or (c) mortgage,
pledge, encumber or otherwise hypothecate this Lease or the Premises or any part
thereof in any manner whatsoever, without in each instance obtaining the prior
consent of Landlord which consent as to (a) and (b) above shall not be
unreasonably withheld conditioned or delayed, provided that Tenant has strictly
complied with the provisions of Section 22.03, 22.04 and 22.06 of this Lease.
The consent by Landlord to an assignment, subletting or use or occupancy by
others shall not in any way be considered to relieve Tenant from obtaining the
express consent of Landlord to any other or further assignment, or subletting or
use or occupancy by others not expressly permitted by this Article. If Landlord
fails to respond to request for consent within fifteen (15) days after Tenant's
written request and no Act of Default exists at such time, consent shall be
deemed given.
Section 22.02. If this Lease be assigned in violation of the
provisions of this Lease or, in the event the assignor is released from all
liability pursuant to this Lease, Landlord may collect rent due to the Landlord
from the assignee. If the Premises or any part hereof are sublet or used or
occupied by anybody other than Tenant, whether or not in violation of this
Lease, Landlord
27
may, after default by Tenant, and expiration of Tenant's time to cure such
default, collect rent from the subtenant or occupant. In either event, Landlord
shall apply the net amount collected to the Fixed Rent and Additional Rent
herein reserved and the charges herein provided for, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 22.01, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance by Tenant of
Tenant's obligations under this Lease. References in this Lease to use or
occupancy by other than Tenant shall not be construed as limited to subtenants
and those claiming under or through subtenants but as including also licensees
and other claiming under or through Tenant, immediately or remotely.
Section 22.03. If Tenant shall at any time or times during the Term
of this Lease desire to assign this Lease or to sublet all or any part of the
Premises, Tenant shall, prior to the execution of any assignment or sublet, give
notice thereof to Landlord, which notice shall be accompanied by (a) a conformed
or photostatic copy of the proposed assignment or sublease, the effective or
commencement date of which shall be at least fifteen (15) days after the giving
of such notice, (b) 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, and (c) current financial information, with
respect to the proposed assignee or subtenant, including, without limitation,
its most recent financial report.
Section 22.04. Provided that Tenant is not in default of any of
Tenant's obligations under this Lease, beyond expiration of notice and cure
periods, Landlord's consent shall not be unreasonably withheld, conditioned or
delayed, provided and upon condition that;
(a) Tenant shall have complied with the provisions of this Section
22.04;
(b) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Premises, or the relevant part
thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building, and (ii) is limited to the use expressly permitted
under Section 3.01;
(c) The proposed assignee or subtenant has sufficient income or
financial worth considering the responsibility involved and that Tenant shall
remain liable under this Lease and Landlord has been furnished with reasonable
proof thereof;
(d) Neither (i) the proposed assignee nor (ii) any person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed assignee or subtenant or any person who controls the proposed
assignee or subtenant, is then an occupant of any part of the Building unless
Landlord does not have a recapture right under the applicable lease and Landlord
has been unable to procure such space or comparable space for a comparable term
for sixty (60) days following notice by Tenant to Landlord that it desires so to
sublet such space.
(e) The proposed assignee or subtenant is not a person with whom
Landlord is then actually negotiating to lease space in the Building;
(f) The form of the proposed sublease shall comply with the
applicable provisions of this Article;
28
(g) There shall be no more than two (2) sub-lessees per floor, with
no more than two entrances per floor at any time. All subdivision of Tenant's
premises must be in compliance with all applicable laws, codes and regulations.
(h) Tenant shall reimburse Landlord on demand for any reasonable
out-of-pocket costs that may be actually incurred by Landlord in connection with
said assignment or sublease, including, without limitation, the reasonable
out-of-pocket costs of making investigations as to the acceptability of the
proposed assignee or subtenant not exceeding $1,000.00 in the aggregate and
reasonable legal costs incurred in connection with the granting of any requested
consent;
(i) Any assignment or transfer of this Lease or Tenant's entire
interest in the Premises, made with or without Landlord's consent pursuant to
Section 22.01, shall not be effective until the assignee shall execute,
acknowledge and deliver to Landlord an agreement, in form and substance
reasonably satisfactory to Landlord, whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed or observed from
and after the effective date of the assignment and agree that the provisions of
Article 22 shall, notwithstanding such assignment or transfer, continue to be
binding upon it. 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 Fixed 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 Fixed Rent and
Additional Rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed unless such liability is waived in a writing
signed by Landlord.
(j) With respect to each and every sublease or subletting under the
provisions of this Lease, it is further agreed:
(i) The subletting shall be for a Term ending on or prior to
the expiration of this Lease.
(ii) No subletting shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord.
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is
or shall be subordinate, including all existing mortgages and that
in the event of Termination, re-entry or dispossess by Landlord of
the right, title and interest of Tenant, as sublessor, under such
sublease, such subtenant shall attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord
shall not (i) be liable for any previous act or omission of Tenant
under such sublease, (ii) be subject to any offset, not expressly
provided in such sublease which theretofore accrued to such
subtenant against Tenant, or (iii) be bound by any previous
modification of such sublease or by any previous prepayment of more
than one month's rent, unless received by Landlord. Sublessee shall
promptly execute, on request of the
29
Landlord and without cost to the Landlord, estoppel letters in a
form reasonably satisfactory to the Landlord and Mortgagee.
Each subletting pursuant to this Article shall be subject to all of
the covenants, agreements, Terms, provisions and conditions contained in this
Lease. Notwithstanding 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 Fixed 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, and any such
violations 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 (except as
provided in Section 22.08) shall or will be made except upon compliance with and
subject to the provisions of this Article. If Landlord shall rightly decline to
give its consent to any proposed assignment or sublease in accordance with the
Terms of this Lease, Tenant shall indemnify, defend and hold harmless Landlord
against and from any and all loss, liability, damages, costs and expenses
(including reasonable attorneys' 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.
Section 22.05. In the event that (a) Landlord consents to a proposed
assignment or sublease and (b) Tenant fails to execute and deliver the
assignment or sublease substantially identical in all material terms to the
assignment or sublease to which Landlord consented within one hundred eighty
(180) days after the giving of such consent then Tenant shall again comply with
all of the provisions and conditions of Section 22.04 before assigning this
Lease or subletting all or part of the Premises.
Section 22.06. Except for a sublease or assignment in accordance
with Section 22.08, if Landlord shall give its consent to a subletting or
assignment, Tenant shall in consideration therefor, pay to Landlord, as
Additional Rent from the date the sublet or assignment takes effect:
(a) in the case of assignment, an amount equal to fifty (50%)
percent all sums and other considerations actually received by Tenant from the
assignee for or by reason of such assignment (excluding, however, sums paid for
the sale of Tenant's fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property, so long as same is sold or rented on a
basis reasonably related to the value thereof after deducting Tenant's
reasonable costs of brokerage commissions, legal fees, construction performed or
funded by Tenant, free rent given and any other cost or expense incurred in
regard to the assignment; and
(b) in the case of either a sublease or assignment, fifty (50%)
percent of any rents, Additional Rent or other consideration actually received
under the sublease by Tenant from the subtenant which is in excess of the Fixed
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 for the Term thereof hereof excluding, however, sums
30
paid for the sale or rental of Tenant's fixtures, leasehold improvements,
equipment, furniture, or other personal property so long as same is sold or
rented on a basis reasonably related to the value thereof) and Tenant's
reasonable costs of brokerage commissions, legal fees, legal, construction
performed or funded by Tenant, and free rent given and any other cost or expense
incurred in regard to the sublease. The sums payable under this Section 22.06(b)
shall be paid to Landlord within ten (10) days after received by Tenant; and
(c) Sub-sections (a) and (b) above shall not apply to any subleases
entered into prior to August 31, 2002 under which the sub-tenant takes
possession prior to July 31, 2002. for the then current use of the space for the
Term thereof.
Section 22.07. The placement of or any person or entity name whether
on the doors of the Premises, on the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises or be
deemed to be the written consent of Landlord mentioned in this Article 22.
Section 22.08. Anything contained in this Lease to the contrary
notwithstanding Tenant shall have the right to assign this Lease or sublet any
portion of the Premises to any subsidiary Affiliate or Qualified Assignee upon
notice to the Landlord and provided that the Premises continue to be used in
accordance with Section 3.01 of this Lease. Such assignment or sublet shall not
relieve Tenant of its obligations under this Lease. For the purposes of this
Section 22.08, the Term "Affiliate" means with respect to any Person, a second
Person which is controlled by, controls or is under common control with such
first Person and, with respect to Tenant, includes any shareholder of Tenant.
For purposes of the foregoing, "person" means an individual partnership
corporation limited liability company business trust joint stock company estate
trust unincorporated association, joint venture, governmental (or
quasigovernmental) authority or other entity of whatever nature and "control"
of any person means the power to direct the management and policies of such
person, whether by the ownership of voting securities or other beneficial
interest, by contract or otherwise. Such assignment or sublet shall not relieve
Tenant of its obligations under this Lease. "Qualified Assignee" means any
Person or entity into or with which Tenant is merged or consolidated or which
purchases a controlling interest in Tenant or which purchases all or
substantially all of the assets of Tenant (provided the principal purpose of
such merger, consolidation or purchase is not as a device for the assignment of
this Lease).
Section 22.09. Anything contained in this Lease to the contrary
notwithstanding, if Tenant as a debtor in possession under the Bankruptcy Code
or Tenant's trustee under the Bankruptcy Code contemplates an assignment of this
Lease pursuant to the Bankruptcy Code to any person, firm or corporation which
shall have made a bona fide offer to accept such an assignment on Terms and
conditions which are acceptable to such debtor in possession or trustee, then
notice of such proposed assignment shall be given to Landlord at least 15 days
prior to the date that an application to a court of competent jurisdiction for
approval of and authority to enter into such proposed assignment is
contemplated. Such notice shall set forth the name and address of the proposed
assignee, all of the Terms and conditions of the proposed assignment, including
any consideration therefor, and the nature of the adequate assurance to be
provided Landlord to assure the future performance under this Lease of such
proposed assignee. Landlord may thereupon elect, by notice to Tenant given at
any time prior to the later of the date upon which the aforesaid application for
approval and authority is contemplated or the effective date of the proposed
31
assignment, to accept, for itself or on behalf of a nominee, an assignment of
this Lease upon the same Terms and conditions as are contemplated by the
aforesaid offer. If Landlord does not so elect to accept such an assignment,
then (a) upon the effective date of the proposed assignment, the proposed
assignee shall be deemed to have assumed all of the obligations of Tenant
arising hereunder from and after such effective date, without further action on
the part of such proposed assignee (but such proposed assignee shall
nevertheless at Landlord's request, execute and deliver, at its own cost and
expense, to Landlord such an instrument confirming such assumption as Landlord
may reasonably require), and (b) any consideration payable or otherwise to be
delivered in connection with such proposed assignment shall be paid or delivered
to Landlord, shall be and remain the exclusive property of Landlord and shall
not constitute property or Tenant of Tenant's bankruptcy estate.
Section 22.10. Each sublessee or assignee shall have the right to
further sublet or assign its sublease or lease only upon compliance with the
provisions of this Article 22. No subtenant shall have the right to exercise any
options pursuant to this Lease. In the event Tenant (or any future holder of the
tenant's interest) assigns this Lease, Tenant shall be bound to perform all
terms, covenants, conditions and obligations of the tenant hereunder during the
Term, and, if any expansion or renewal option is exercised, in respect of such
additional space or renewal term.
ARTICLE 23
Escalation
Section 23.01. As used in this Article 23, the words and terms which
follow mean and include the following:
(a) "Tax Year" shall mean each fiscal year (July 1 through the
succeeding June 30) subsequent to the Base Tax Year in which occurs any part of
the Term
(b) Base Year shall mean January 1, 2000 through December 31, 2000.
(c) Base Tax Year shall mean the fiscal year 2000/2001.
(d) "Tenant's Proportionate Share" shall mean fifty-six (56%)
percent.
(e) "Taxes" shall mean the aggregate amount of real estate taxes and
any general or special assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property (including, without limitation, (i) assessments
made upon or with respect to any "air" and "development" rights now or hereafter
appurtenant to or affecting the Real Property, (ii) any fee, tax or charge
imposed by any Government Authority for any vaults, vault safe or other space
within or outside the boundaries of the Real Property existing on the date
hereof, and (iii) any assessments levied after the date of this Lease for public
benefits to the Real Property or the Building); provided that if, because of any
change in the taxation of real estate, any other tax or assessment, however
denominated (including, without limitation, any franchise, income, profit,
sales, use, occupancy, gross receipts or rental tax), is imposed upon Landlord
or the owner of the Real Property or the Building, or the occupancy, rents or
income therefrom, in substitution for any of the foregoing Taxes such other tax
or assessment shall be deemed part of Taxes computed as if Landlord's sole asset
were the Real Property. Anything contained herein to the
32
contrary notwithstanding, Taxes shall not be deemed to include (a) any taxes on
Landlord's income, (b) franchise taxes, (c) estate or inheritance taxes, or (d)
any similar taxes imposed on Landlord, unless such taxes are levied, assessed or
imposed as a substitute for the whole or any part of, taxes, assessments,
levies, fees, charges and impositions that now constitute Taxes.
(f) "Real Estate Tax Base" shall mean Real Estate Taxes for the City
of New York for the Base Tax Year as payable according to the tax xxxx issued in
June, 2000 for the Base Tax Year (and undiminished by the effect of any tax
certiori proceeding or judicial contests subsequent to the issuance of the such
tax xxxx) in the amount of $1,361,301.12.
(g) Operating Year shall mean each calendar year ending on the
succeeding December 31, subsequent to calendar year 2000, which occurs during
any part of the Term.
(h) Wage Escalation shall mean an amount of money which is equal to
the difference between the Wage Rate for the Operating Year and the Wage Rate
for the Base Year multiplied by 215,444 (the square footage of the Premises)
{For example, if the Wage Rate for the Base Year 2000 was $5.00 and the Wage
Rate for 2001 was $5.50, the Wage Escalation would be calculated by multiplying
0.50 ($5.50 - $5.00) X 215,444 = 107,722} The Wage Rate for the Base Year is
$16.43.
(i) The Term "Wage Rate" with respect to the Base Year and any
Operating Year shall mean the regular average hourly wage rate (excluding
so-called "fringe benefits") required to be paid to Porters in Class A Office
Buildings pursuant to any agreement between the Realty Advisory Board on Labor
Relations, Incorporated or any successor thereto (hereinafter referred to as
"R.A.B.") and Local 32B/32J of the Building Service Employees International
Union AFL-CIO, or any successor thereto (hereinafter referred to as Local 32B)
in effect during such Base Year and Operating Year, provided that if any such
agreement shall require Porters to be regularly employed on days or during hours
of overtime or when other premium pay rates are in effect, then the Term
"regular average hourly wage rate" shall mean the regular average hourly wage
rate for the hours in a calendar week which Porters are required to be
regularly employed (whether or not actually at work in the Building), e.g., if,
for example, as of December 31, 2000, an agreement between R.A.B. and Local 32B
would require the regular employment of Porters for 40 hours during a calendar
week at a regular average hourly wage of $4.00 for the first 30 hours and an
overtime hourly average wage of $5.00 for the remaining 10 hours, then the
regular average hourly wage rate under this subsection, as of December 31, 2000,
would be the sum arrived at by dividing the total weekly average wages of
$170.00 by the total number of required hours of employment which is 40 and
resulting in a regular average hourly wage rate of $4.25. The computation of the
regular average hourly wage rate shall be on the same basis whether based on an
hourly or other pay scale but predicated on the number of hours in such
respective work weeks, whether paid by Landlord or any independent contractor.
If there is no such agreement in respect of the applicable Operating Year on
which such regular average hourly wage rate is determined, the computations
shall be made on the basis of the regular average hourly wage rate being paid by
Landlord or by the contractor performing xxxxxx or cleaning services for
Landlord as of the date for the applicable Operating Year and appropriate
retroactive adjustments shall be made when the regular average hourly wage rate
paid for such Operating Year is finally determined. If length of service shall
be a factor in determining any element of wages, such as vacation pay, it shall
be conclusively presumed that
33
all employees have two years of service. The Wage Rate is intended to be an
index in the nature of a cost of living index, and is not intended to reflect
the actual costs of wages or expenses for the Building.
(j) The term "Porters" shall mean that classifications of employee
engaged in the general maintenance and operation of Class A Office Buildings
most nearly comparable to the classification now applicable to porters in the
current agreements between R.A.B. and Local 32B (which classification is
presently termed "others" in said agreement).
(k) The term "Class A Office Buildings" shall mean office buildings
in the same class category as the Building under any building operating
agreement between R.A.B. and Local 32B, regardless of the designation given to
such office buildings in any such agreement.
(l) The Term "Escalation Statement" shall mean a statement setting
forth the amount payable by Tenant for a specified Tax Year or Operating Year
(as the case may be) pursuant to this Article 36.
(m) Tenant shall pay as Additional Rent for each Operating Year an
amount ("Tenant's Operating Payment") equal to the Wage Escalation for such
Operating Year.
(n) Landlord shall furnish to Tenant, with respect to each Operating
Year after December 31, 2000, a Landlord's Escalation Statement setting forth
Landlord's reasonable estimate of Tenant's Operating Payment for such Operating
Year ("Tenant's Projected Operating Share"). Tenant shall pay to Landlord on the
first day of each month during such Operating Year occurring at least thirty
(30) days after such Operating Statement is received, as Additional Rent, an
amount equal to one-twelfth of Tenant's Projected Operating Share for such
Operating Year. If, however, Landlord furnishes any such Landlord's Escalation
Statement for an Operating Year subsequent to the commencement of such Operating
Year, then (a) until the first day of the month following the month in which
such Landlord's Escalation Statement is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under Section 23.01 in respect of the last month
of the preceding Operating Year; (b) after such Landlord's Escalation Statement
is furnished to Tenant or together therewith, Landlord shall give notice to
Tenant stating whether the installments of Tenant's Projected Operating Share
previously made for such Operating Year were greater or less than the
installments of Tenant's Projected Operating Share to be made for such Operating
Year in accordance with such estimate, and (i) if there is a deficiency, Tenant
shall pay the amount thereof within thirty (30) days after demand thereof, or
(ii) if there was an overpayment, Landlord shall credit the amount thereof
against subsequent payments of Fixed Rent and Additional Rent or, if this Lease
shall have terminated or expired there shall not be any further installments of
Fixed Rent and Additional Rent remaining against which Landlord can credit any
such overpayment due Tenant, Landlord shall deliver to Tenant Landlord's good
check in the amount of the refund due Tenant within thirty (30) days after
Tenant shall first be entitled to a credit for the overpayment of the Wage
Escalation Expenses; and (c) on the first day of the month following the month
in which such Landlord's Operating Escalation Statement is furnished to Tenant,
and monthly thereafter throughout the remainder of such Operating Year, Tenant
shall pay to Landlord an amount equal to one-twelfth of Tenant's Projected
Operating Share shown in such Landlord's Escalation Statement with a new
estimate of Tenant's Projected
34
Operating Share for such shall be adjusted and paid or credited, as the case
may be, substantially, in the same manner as provided in the preceding
sentence.
(o) After the end of each Operating Year, Landlord shall furnish to
Tenant a Landlord's Wage Escalation Statement for such Operating Year prepared
by or a certified public accountant designated by Landlord from which Landlord
shall make the computation of Additional Rent due in respect of Operating
Expenses hereunder. In If the Landlord's Wage Escalation Statement shows that
the sums paid by Tenant under Section 23.01 exceeded Tenant's payments required
to be paid by Tenant for such Operating Year, Landlord shall credit the amount
of such excess against subsequent payments of Fixed Rent and Additional Rent or,
if the Lease shall have expired or terminated and shall not be any further
installments of Fixed Rent and Additional Rent remaining against which Landlord
can credit such overpayments due Tenant, Landlord shall deliver to Tenant
Landlord's good check in the amount of the refund due Tenant within thirty (30)
days after Tenant shall be entitled to a credit or if the overpayment of
Landlord's Wage Escalation Statement shows that the sums so paid by Tenant were
less than Tenant's Operating Payment due for such Operating Year, Tenant shall
pay the amount of such deficiency within thirty (30) days after demand therefor.
Section 23.02. If the Real Estate Taxes for any Tax Year after the
Base Tax Year shall be greater than the Real Estate Tax Base, Tenant shall pay
Landlord, as Additional Rent for the Premises for such Tax Year, an amount
(herein called the "Tax Payment") equal to Tenant's Proportionate Share of the
amount by which Real Estate Taxes for such Tax Year are greater than the Real
Estate Tax Base. If the Real Estate Taxes for any Tax Year after the Base Tax
Year shall be less than the Real Estate Tax Base, Tenant shall not be entitled
to any credit, refund, set off or other payment.
Section 23.03. Landlord shall furnish Tenant, at the commencement of
each Tax Year an Escalation Statement of the actual Tax Payment, pursuant to
Section 23.02 hereof, and Tenant shall pay to Landlord on the first day of each
month during such Tax Year one-twelfth (1/12) of same on the first day of the
month. If, however, Landlord shall furnish any such Escalation Statement for a
Tax Year subsequent to the commencement thereof, then (a) until the first day of
the month following the month in which such Escalation Statement is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this Section in
respect of the last month of the preceding Tax Year; (b) promptly after such
Escalation Statement is furnished to Tenant, Landlord shall give notice to
Tenant stating whether the installments of the Tax Payment Tax Year, as the case
may be, were greater or less than the respective installments thereof to be made
for such Tax Year in accordance with such Escalation Statement, and (i) if there
shall be a deficiency, Tenant shall pay the amount thereof within thirty (30)
days after demand therefor, or (ii) if there shall have been an overpayment,
Landlord shall refund to Tenant the amount thereof within thirty (30) days of
Landlord's furnishing to Tenant such Escalation Statement; and (c) on the first
day of the month following the month in, commencing at least thirty (30) days
after which such Escalation Statement is furnished to Tenant, and monthly
thereafter throughout the remainder of such Tax Year, as the case may be, Tenant
shall pay to Landlord an amount equal to one-twelfth of the amount shown on such
Escalation Statement. Landlord shall furnish to Tenant within 30 days of the
commencement of each Tax Year a copy of the xxxx or bills for Real Estate Taxes
applicable to the Tax Year as to which each such Escalation Statement relates.
If the Landlord's Tax Escalation Statement shows
35
that the sums paid by Tenant under Section 23.01 exceeded Tenant's Tax Payments
required to be paid by Tenant for such Tax Year, Landlord shall credit the
amount of such excess against subsequent payments of Fixed Rent and Additional
Rent or, if at the end of the Term there shall not be any further installments
of Fixed Rent and Additional Rent remaining against which Landlord can credit
such overpayments due Tenant, Landlord shall pay the amount of the refund due
Tenant within thirty (30) days after Tenant shall be entitled to a credit for
the overpayment of and if the Escalation Statement shows that the sums so paid
by Tenant were less than Tenant's Tax Payment due for such Tax Year, Tenant
shall pay the amount of such deficiency within thirty (30) days after demand
therefor.
Section 23.04. Payments shall be made pursuant to this Article 23
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the expiration of the Term of this Lease, provided the Escalation
Statement is furnished within one year thereafter.
Section 23.05. In case the Real Estate Taxes for any Tax Year or
part thereof shall be reduced after Tenant shall have paid Tenant's
Proportionate Share of any increase thereof in respect of such Tax Year,
Landlord shall credit or refund to Tenant Tenant's Proportionate Share of the
refund of such taxes received by or credited to Landlord (after deduction of
reasonable out of pocket expenses, including reasonable counsel fees, paid by
Landlord in connection with reducing the assessed valuation and/or in obtaining
such refund of taxes). Only Landlord and not Tenant shall have the right to
initiate, contest or resolve proceedings involving the assessed valuation or
refund of taxes. Landlord shall initiate tax certiorari proceeding during every
year of the Term and shall use attorneys experienced in the field to pursue such
claims. Before settling any such proceeding Landlord shall notify Tenant of its
intent. If Tenant rents or has committed to rent sixty-five percent (65%) of the
Building its consent which shall not be unreasonably withheld or delayed, shall
be required prior to settlement of the proceeding. This Section 23.05 shall
survive the expiration or termination of this Lease.
Section 23.06. In no event shall the Fixed Rent under this Lease
(exclusive of the Additional Rent under this Article) be reduced by virtue of
this Article other than to the extent that Landlord has received overpayments of
either Tax or Wage Escalations.
ARTICLE 24
Subordination
Section 24.01. Provided that Tenant has received a commercially
reasonable SNDA from such mortgagee or ground lessee, as is applicable, this
Lease is and shall be subject and subordinate in all respects to all underlying
leases now or hereafter covering the real property or any portion thereof of
which the Premises form a part and to all mortgages and trust indentures which
may now or hereafter be placed on or affect such leases and/or the real property
of which the Premises form a part, or any part or parts of such real property,
and/or Landlord's interest therein, and to each advance made and/or hereafter to
be made under any such mortgages, or indentures, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions of and for such ground leases and/or underlying leases and/or
mortgages or indentures. This Section 24.01 shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute, at its sole cost and expense,
36
and deliver promptly any certificate or other document that Landlord and/or
their respective successors in interest may reasonably request. Tenant agrees
that, in the event any proceedings are brought for the foreclosure of any
mortgage or indenture referred to herein, to attorn to the purchaser upon any
such foreclosure sale and to recognize such purchaser as the landlord under this
Lease. In the event of the enforcement by any mortgagee of the Building of
remedies provided for by law or by such mortgage, any person succeeding to the
interest of the Landlord as the result of such enforcement shall not be bound by
any payment of Fixed Rent or Additional Rent for more than one month in advance
not received by it. As a condition to the effectiveness of this Lease Landlord
will obtain a Subordination Non-Disturbance Agreement (SNDA) from the current
two mortgagees, Xxxx Xxxxxxx Life Insurance Company and WEA Associates by the
Commencement Date in the form set forth in Exhibit D attached herewith. Landlord
represents there are currently no ground leases currently encumbering the real
property.
ARTICLE 25
Quiet Enjoyment
Section 25.01. Landlord covenants that if and so long as Tenant
keeps and performs each and every covenant, agreement, Term, provision and
condition herein contained on the part and on behalf of Tenant to be kept and
performed, Tenant shall quietly enjoy the Premises without hindrance or
molestation by Landlord or by any other person claiming by, through or under the
Landlord, subject to the covenants, agreements, Terms, provisions and conditions
of this Lease and to the mortgages to which this Lease is subject and
subordinate as hereinbefore set forth.
ARTICLE 26
Insurance
Section 26.01. Tenant covenants to provide prior to entry upon the
Premises and to keep in force and effect during the Term: (1) comprehensive
general liability insurance relating to the Premises and its appurtenances on an
occurrence basis against claims for bodily injury or death on account of
accident upon the Premises with minimum limits of liability in amount of
$5,000,000 per occurrence; and (2) worker's compensation insurance to cover all
persons engaged in Tenant's Changes. Tenant agrees to deliver to Landlord, at
least three (3) days prior to taking possession of the Premises and thereafter
at least 15 days prior to the expiration of any such policy, either a duplicate
original or a certificate of all policies produced by Tenant in compliance with
its obligations hereunder, together with evidence of payment therefor and
including an endorsement which states that such property insurance may not be
canceled except upon thirty (30) days' written notice to Landlord and any
designee(s) of Landlord.
Section 26.02. All of the aforesaid insurance shall be issued in the
name of Tenant and all property insurance shall name Landlord and any
designee(s) of Landlord, with an insurable interest in the Building as an
additional insured and shall be written by responsible insurance companies
licensed or authorized to do business in New York State; all such insurance may
be carried under a blanket policy covering the Premises and any other of
Tenant's locations and shall contain endorsements that: (1) such insurance may
not be canceled or amended with respect to Landlord (or its designee(s), except
upon 30 days written notice to Landlord and such designee(s)
37
by the insurance company; and (2) Tenant shall be solely responsible for payment
of premiums and that Landlord (or its designee(s) shall not be required to pay
any premiums for such insurance. The minimum limits of the comprehensive general
liability policy of insurance shall in no way limit or diminish Tenant's
liability under other provisions of this Lease.
Section 26.03. The minimum limits of the comprehensive general
liability policy of insurance shall be subject to increase at any time, and from
time to time, after the commencement of the third (3rd) year of the Term hereof
if Landlord in the exercise of its reasonable judgment shall deem the same
necessary for adequate protection and the amount thereof shall not exceed that
customarily required be carried by other Tenants in a first class office
buildings and has been requested by the then existing mortgagees. Within 30 days
after demand therefor by Landlord, Tenant shall furnish Landlord with evidence
that such demand has been complied with.
Section 26.04. Landlord will maintain one hundred (100%) percent
replacement cost property insurance on the Building during the Term.
ARTICLE 27
Miscellaneous
Section 27.01. If at any time or times during the Term of this
Lease, the Rental reserved in this Lease is not fully collectible by reason of
any governmental law, regulation or requirement, Tenant shall enter into such
agreements and take such other steps (without additional expense to Tenant) as
Landlord may request and as may be legally permissible to permit Landlord to
collect the maximum rents that may from time to time during the continuance of
such legal rent restriction be legally permissible (and not in excess of the
amounts reserved under this Lease). Upon the Termination of such legal rent
restriction (a) the rent shall become and thereafter be payable hereunder in
accordance with the amounts reserved in this Lease for the remainder of the
Term, and (b) Tenant shall pay to Landlord, if legally permissible, an amount
equal to (i) the items of Rental that would have been paid pursuant to this
Lease but for such legal rent restriction less (ii) the rents paid by Tenant to
Landlord during the period or periods such legal rent restriction was in effect.
This provision shall survive the expiration or earlier Termination of this Lease
to the maximum enforceable extent.
Section 27.02. If, in connection with Landlord's obtaining financing
for the Building, a banking, insurance or other recognized institutional lender
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay, condition or defer its
consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder, reduce Tenant's rights or remedies or to other
than in a de minimus extent, adversely affect the leasehold interest hereby
created.
Section 27.03. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot which such floor was designed
to carry and any permitted load must be placed by Tenant, at Tenant's sole cost
and expense, so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant, at Tenant's sole cost and
expense, in settings sufficient in Landlord's reasonable judgment to absorb and
prevent vibration, noise and annoyance which would not be customary in a first
class office
38
building. If the Premises be or becomes infested with vermin as a result of any
misuse or neglect of the Premises by Tenant, its agents, employees, visitors or
licensees, Tenant shall at Tenant's expense cause the same to be exterminated
from time to time to the reasonable satisfaction of Landlord and shall employ
such exterminators and such exterminating company or companies as shall be
reasonably approved by Landlord.
Section 27.04. Tenant shall not be entitled to exercise any option
if any granted to it by this Lease, if at the time the option is to be exercised
or consummated Tenant is in default beyond all applicable grace periods in the
performance or observance of any of the material covenants, agreements, Terms,
provisions or conditions on its part to be performed or observed under this
Lease and Landlord has previously given Tenant notice of such default.
Section 27.05. If Landlord has comparable space available in the
Building at a comparable rent, Tenant shall not occupy any space in the Building
(by assignment, sublease or otherwise) other than the Premises hereby demised,
except with the prior written consent of Landlord in each instance.
Section 27.06. Landlord and Tenant each represent that it has not
dealt with any person, firm or corporation in connection with this transaction
other than Insignia/ESG and Co., Inc. and CB Xxxxxxx Xxxxx Inc. and whose
commissions Landlord agrees to pay and each party agrees to indemnify, defend
and hold the other party harmless from any damage or claim suffered by that
other party as a result of any breach of this representation.
Section 27.07. The Term "Landlord" as used in this Lease means only
the owner, or the mortgagee in possession, for the time being of the Land and
Building (or the owner of a lease of the Building or the Land and Building), so
that in the event of any sale or sales of the Land and Building, or in the event
of a lease of the Building, or of the Land and Building, the Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, thereafter to be performed except for any and all
liabilities and obligation incurred by Landlord prior to such sale or lease, 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, at
any such sale, or the said lessee of the Building, or of the Land and Building,
that the purchaser or such lessee of the Building has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder. Such
purchaser or lessee shall be required by Landlord to give notice to Tenant of
its assumption. No general or limited partner or shareholder of Landlord
(including any general or limited partner or shareholder, any assignee or
successor of Landlord) or other holder of any equity interest in Landlord shall
be personally liable for the performance of Landlord's obligations under this
Lease. The liability of Landlord (including any assignee or successor of
Landlord) for Landlord's obligations under this Lease shall be limited to
Landlord's interest in the Land and Building (and the proceeds thereof or of any
title, property or other insurance) and Tenant shall not look to any of
Landlord's other assets in seeking either to enforce Landlord's obligations
under this Lease or to satisfy a judgment for Landlord's failure to perform such
obligations.
Section 27.08. Such submission shall have no binding force or effect
and shall confer no rights nor impose any obligations on either party unless and
until both Landlord and Tenant shall have executed this Lease and duplicate
originals thereof shall have been delivered to the respective parties.
39
Section 27.09. The acknowledgments of the execution of this Lease by
Landlord and Tenant are solely for the purpose of manifesting the respective
authorizations for execution. Neither Landlord nor Tenant shall record this
Lease and the violation of the provision shall be deemed a substantial default
hereunder. The parties shall execute a memorandum of lease which Tenant shall
have the right to record if Tenant, in good faith, is of the opinion that it
needs to do so to protect its position.
Section 27.10. If Tenant shall remain in possession of the Premises
after the Expiration Date, without the execution by both Tenant and Landlord of
a new lease, Tenant, at the election of Landlord, shall be deemed to be
occupying the Premises as a Tenant from month-to-month, at a monthly rent equal
to one and one-half times the Rent (including both Fixed and Additional Rent) as
set forth above in Section 2.01 payable during the last month of the Term,
subject to all the other conditions, provisions and obligations of this Lease
insofar as the same are applicable to a month-to-month tenancy.
Section 27.11. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. If any words or phrases in this Lease are stricken out or
otherwise eliminated, whether or not any other words or phrases have been added,
this Lease shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Lease and no implication or
inference shall be drawn from the fact that such words or phrases were stricken
out or otherwise eliminated.
Section 27.12. Landlord shall make available to Tenant on the
directory in the Park Avenue lobby of the Building one hundred forty (140)
listings, which listings may include subtenants or others occupying the
Premises in accordance with the Terms hereof. The initial listing shall be
without charge to Tenant. From time to time, Landlord shall revise the directory
to reflect such changes in the listings therein as Tenant may request, and
Tenant within thirty (30) days after demand by Landlord shall pay to Landlord,
as Additional Rent, Landlord's reasonable out-of-pocket cost in making each
revision that Tenant requests. Tenant may install a sign on the entry doors to
the Premises on all floors.
Section 27.13. If any of the provisions of this Lease, or the
application thereof to any person or circumstance, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby and shall
remain valid and enforceable, and every provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
Section 27.14. Tenant hereby represents to Landlord that it is not
entitled, directly or indirectly, to diplomatic or sovereign immunity and
Landlord and Tenant both agree that in all disputes arising directly or
indirectly out of this Lease Landlord and Tenant shall be subject to service of
process at its offices located within the building and that the exclusive
jurisdiction for such actions shall be either in the United States Court for the
Southern District of New York or the New York State Supreme Court for the County
of New York or in arbitration as set forth in the Arbitration Procedure (Exhibit
H). The provisions of this Section 27.14 shall survive the expiration of this
Lease
40
Section 27.15. This Lease contains the entire agreement between the
parties and all prior negotiations and agreements are merged into this Lease.
This Lease may not be changed, modified or discharged, in whole or in part, nor
may any of its provisions be waived except by a written agreement that (a)
expressly refers to this Lease, and (b) is executed by the party against whom
enforcement of the change, modification discharge or waiver is sought
Section 27.16. Any apportionment or prorations of Rental to be made
under this Lease shall be computed on the basis of a three hundred sixty-five
(365) day year.
Section 27.17. The laws of the State of New York applicable to
contracts made and to be performed wholly within the State of New York shall
govern and control the validity, interpretation, performance and enforcement of
this Lease, without reference to New York State's choice of law rules.
Section 27.18. Tenant hereby covenants, represents and warrants that
Tenant is a duly incorporated or duly qualified (if foreign) corporation and is
authorized to do business in the State of New York (a copy of evidence thereof
to be supplied to Landlord promptly following request); and that each person
executing this Lease on behalf of Tenant is an officer of Tenant and that he or
she is duly authorized to execute, acknowledge and deliver this Lease to
Landlord. Landlord warrants that it is a New York limited partnership authorized
to do business in the State of New York and that each person executing this
Lease on behalf of Landlord is an officer of Landlord and that he or she is duly
authorized to execute acknowledge and deliver this Lease to Tenant.
Section 27.19. The captions and article headings 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.
Section 27.20. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors, and, except as otherwise provided
in this Lease, their assigns.
Section 27.21. For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The words "herein", "hereof", "hereunder" and "hereby" and words
of similar import shall be construed to refer to this Lease as a whole and not
to any particular Article or Section unless expressly so stated.
(b) Reference to Landlord as having "no liability" or being "without
liability" shall mean that Tenant shall not be entitled to Terminate this Lease,
or to claim actual or constructive eviction, partial or total, or to receive any
abatement or diminution of rent, or to be relieved in any manner of any of its
other obligations hereunder, or to be compensated for loss or injury suffered or
to enforce any other right or liability whatsoever against Landlord under or
with respect to this Lease or with respect to Tenant's use or occupancy of the
Premises, except as otherwise expressly provided in this Lease and provided that
Tenant does not waive any rights under law that are not expressly waived in this
Lease.
41
(c) Reference to "termination of this Lease" or "expiration of this
Lease" and words of like import includes expiration or sooner termination of
this Lease and the Term and the estate hereby granted or cancellation of this
Lease pursuant to any of the provisions of this Lease or to law. Upon the
termination of this Lease, the Term and estate granted by this Lease shall end
at noon on the date of termination as if such date were the Expiration Date, and
neither party shall have any further obligation or liability to the other after
such termination except (i) as shall be expressly provided for in this Lease,
and (ii) for such obligations as by their nature under the circumstances can
only be, or by the provisions of this Lease, may be, performed after such
termination, and, in any event, unless expressly otherwise provided in this
Lease, any liability for a payment (which shall be apportioned as of such
termination) which shall have accrued to or with respect to any period ending at
the time of termination shall survive the termination of this Lease.
(d) Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender.
Section 27.22. Tenant will provide to Landlord from time to time its
current financial statements and those of the prior two years. These statements
will be maintained by Landlord on a confidential basis to be shared with the
Building's mortgagees or potential mortgagees.
Section 27.23. Provided no Act of Default exists at the time of
exercise, Tenant may on not less than eighteen (18) month's written notice but
not earlier than May 1, 2014 renew this Lease for 9 contiguous full floors or
more and Tenant's Lobby for a further five (5) year term commencing May 1, 2017
and terminating April 30, 2022. The rent for the renewal Term shall be one
hundred (100%) percent of the Fair Market Rent (FMR), for comparable spaces for
a ten (10) year term on April 30, 2017 taking into account that the space is in
"as is" condition, no break in the rental stream for lease construction time,
free rent or other concessions and the last sentence hereof. Each party shall
provide the other with its estimate of the FMV. If the parties can not agree on
the FMR they shall submit the issue to arbitration as set forth in Exhibit K of
this Lease. Until the FMR is determined, Tenant shall pay to Landlord a monthly
rent, which is equal to the rent paid by Tenant during the last month of the
Term. The Base Year and the Tax Year in Article 23 of this Lease shall remain
the same in the new Lease.
Section 27.24. Provided no Act of Default exists at the time of
exercise, Tenant may on not less than eighteen (18) month's written notice but
not earlier than May 1,2019 renew this Lease for 9 full contiguous floors or
more for a further five (5) year term commencing May 1, 2022 and terminating
April 30, 2027. The rent for the renewal Term shall be one hundred (100%)
percent of the Fair Market Rent (FMR), for comparable spaces on April 30, 2022
for a ten (10) year term taking into account that the space is in "as is"
condition, no break in the rental stream for lease construction time, free rent
or other concessions and the last sentence hereof. Each party shall provide the
other with its estimate of the FMV. If the parties can not agree on the FMR they
shall submit the issue to arbitration as set forth in Exhibit K of this Lease.
Until the FMR is determined, Tenant shall pay to Landlord a monthly rent, which
is equal to the rent paid by Tenant during the last month of the Term of this
Lease. The Base Year and the Tax Year in Article 23 of this Lease shall remain
the same in the new Lease.
42
Section 27.25. During the Term, Landlord shall ten (10) days prior
to marketing any full floor space other than the lobby or the basement ("New
Space") but not earlier than fifteen (15) months prior to the date the same
becomes available, give Notice to Tenant of the availability of such New Space
and the Terms upon which the New Space will be offered. If the New Space is
subject to any right of renewal or right of first refusal or right of first
offer by any other tenant in the Building existing on the date hereof or
contained in any lease executed by Landlord in accordance with this Section,
such notice may be sent simultaneously with the notice to the other tenants and
shall be subject to the exercise of such rights by such other tenants. Tenant
shall, subject to any rights of renewal or rights of first refusal by other
tenants in the Building existing on the date hereof or contained in any lease
executed by Landlord in accordance with this Section, have the right to rent
such New Space for the balance of the Term at one hundred (100%) percent of the
Fair Market Rent (FMR), for comparable spaces for a ten (10) year term on the
date of such Notice taking into account that the space is in "as is" condition,
no break in the rental stream for Lease construction time, free rent or other
concessions. Each party shall provide the other with its estimate of the FMV. If
the parties can not agree on the FMR they shall submit the issue to arbitration
as set forth in Exhibit K of this Lease. Until the FMR is determined, Tenant
shall pay to Landlord a monthly rent on a per square foot basis, which is equal
to the rent paid by Tenant under Lease. The Base Year and, the Tax Year in
Article 23 of this Lease shall remain the same in the new Lease. This Lease will
be amended to add the New Space to this Lease on the terms set forth above and
otherwise as is appropriate to reflect the addition of such New Space. Landlord
will not renew any other tenant's lease beyond the renewal terms contained in
the Tenant's current Lease other than the present Twentieth Floor Tenant
(Leucadia). This provision shall not apply if Tenant does not have at least 11
floors under lease.
Section 27.26. When the existing leases for each of the ninth,
tenth, eleventh, sixteenth and seventeenth floors of the Building expire, Tenant
shall rent such space, upon the current tenant vacating such space, at a rent
per square foot equal to the rent that Tenant is paying under this Lease, within
the Term, commencing once possession of the same is delivered. All other terms
of this Lease, including Additional Rent, shall apply to the New Lease for the
floors including but not limited to the Landlord's work in Schedule C (Phases I
and II), the Term; the Renewal Rights and the Base Years for Tax And Wage
Escalation. The two month's free rent and the $15.00 per square foot Tenant
Improvement allowance shall be prorated by a fraction, the numerator of which
will be the number of months remaining under the Lease and the denominator will
be two hundred (200). Each of the floors shall be delivered as full floors with
the staircase between sixteen and seventeen removed if the existing tenant is
required to remove the same pursuant to the terms of its existing lease and each
shall be deemed to have 16,288 square feet.
Section 27.27. If the Landlord decides to sell the Land and
Building, fifteen days prior to listing the Land and the Building with Brokers
or advertising the Land and Building for sale, Landlord shall notify Tenant in
writing of its intent to sell. This paragraph shall not be construed as giving
Tenant any right to purchase the Land and Building or imposing any duty on
Landlord to sell the Land and Building to Tenant. For the purposes of this
paragraph "sell" shall only mean a sale of the fee title to the Land and
Building and shall not include any sale of interests in the Landlord, financing
of the Land and Building, profit participations or any other transfer of
economic or beneficial interest in the Landlord or the Land and Building. Once
the notice to Tenant has been given it does not have to be given again to Tenant
at any time.
43
Section 27.28. During the Term, if Landlord leases the first floor
of the Building for retail purposes then such space shall be used solely for
retail purposes as limited by this Section (the "Landlord Permitted Retail Use")
and for no other purpose. Any establishment serving food in the Landlord's
retail premises shall serve the general public, have tablecloths in at least a
significant part of the premises, and shall not be a fast food restaurant
(including a national chain) serving principally hamburgers, chicken, nuts,
pizza or hot dogs. Landlord shall use commercially reasonable efforts to
require that the restaurant be open nights and weekends. Landlord's retail
premises shall not be used in any manner which is not in keeping with an office
building with retail space and in no circumstances shall be used for retail
stock/securities brokerage, dry cleaners, photo-processors (if photo processing
is the primary business of such retail tenant), printers which employ "wet"
printing or printing presses, schools, government offices labor union office,
physician, dentist medical or pediatric office or lab, dance or music studio,
employment agency massage parlor, barbershop, beauty salon, gambling, conduct
of obscene, pornographic or similar business (including, the sale of
pornographic magazines, periodicals, films, or software), long distance calling
stores for off-the-street customers, comic book store, bar, discotheque, fresh
foods market, grocery store, "head" shop, video game arcade, video store, shoe
repair, pet store, cinema, pool hall or billiard parlor and quick in and out
convenience store (such as 7-11, WAWA or Quickcheck).
Section 27.29. Tenant will furnish Landlord with its annual
financial statements on a confidential basis to be shared only with Landlord's
mortgagees, lenders, partners, investors and potential mortgagees, lenders,
partners and investors.
Section 27.30. Subject to the requirements of applicable law,
Landlord and Tenant both agree to maintain the terms of this Lease and the
negotiating attendant to its execution confidential and no to publicly note the
execution thereof with either a press release or advertisement describing the
same.
Section 27.31. This Lease may be executed in counterparts, each of
which shall be deemed an original but all of which, together, shall constitute
one agreement.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed the lease
as of the year and date first above written.
LANDLORD:
TM PARK AVENUE ASSOCIATES
By:____________________________
44
TENANT:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:____________________________
XXXXX XXXXXXXXXX
Director
45
State of New York )
County of New York ) ss.:
On the l5th day of August in the year 2000 before me, a Notary Public of the
state of New York the undersigned, a Notary Public in and for said State,
personally appeared __________________________, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
_____________________________
Notary Public
State of New York )
County of New York ) ss.:
On the 15th day of August in the year 2000 before me, a Notary Public of the
State of New York undersigned, a Notary Public in and for said State, personally
appeared Xxxxx X. Xxxxxxxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
_____________________________
Notary Public
[LETTERHEAD OF TM Park Avenue Associates]
August 15, 2000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Re: Lease between TM Park Avenue Associates (TM), Landlord and
Credit Suisse First Boston Corporation (CSFBC), Tenant for a portion
of the Building located at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000
(the Building)
Dear Xx. Xxxxxxxxxx:
This letter agreement is being executed simultaneously with a lease (this
"Lease") between TM and CSFBC for the Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Fourteenth and Fifteenth
Floors and a portion of the Lobby Floor of the Building.
TM and Vanguarde Media Inc., the current Tenant on the Eleventh Floor,
executed a lease in June, 2000 for the Ninth and Tenth Floors for a ten year
period with a five year renewal option, similarly extending the lease for the
Eleventh Floor. That lease provided that if TM could not deliver a subordination
and non-disturbance agreement (SNDA) from the Building's mortgagees by August 1,
2000, Vanguarde could cancel that Lease. As of this date, TM has not been able
to obtain such SNDAs. TM will use its best efforts without incurring any cost to
obtain the cancellation of the Vanguarde lease for the Ninth and Tenth Floors.
In the event that by September 30, 2000, TM is unable to cancel the Vanguarde
Lease, this Lease shall be amended in the manner set forth in the appended
amended lease. The amended lease has the following changes:
1. The references to the Ninth and Tenth Floors have been be
deleted.
2. The square footage of the Premises (Section 1.07) shall be
reduced by 32,576 square feet to 183,178 square feet.
3. Sections 1.03(a), 1.03(b), 1.03(c), 1.03(d), 1.08, 7.02(a),
7.02(d) and 21.04 have been changed so that the dollar amounts
in these sections which were based upon so many dollars per
square foot have been proportionately reduced.
Page 2 of 2
4. Section 3.06 has been amended to provide for only the one most
westerly elevator on the Park Avenue side of the Building and
an increased elevator for each two floors occupied by Tenant
until Tenant occupies fifteen floors and then one additional
elevator when Tenant occupies eighteen floors.
5. In Section 23.01(d), Tenant's proportionate share has been
reduced to fifty-six (56%) percent.
6. In Section 23.05, Tenant's consent to tax settlements shall be
required after Tenant rents or has committed to rent
sixty-five (65%) of the Building.
7. Section 27.26, the first sentence reads "when the existing
leases for the Ninth, Tenth, Eleventh, Sixteenth and
Seventeenth Floors expire, Tenant shall rent such space..."
This Lease is subject to the approval of and the issuance of an acceptable
SNDA by Xxxx Xxxxxxx Life Insurance Company and WEA Associates, the Building's
mortgagees. If Landlord cannot obtain both the lease approvals and the SNDA by
August 31, 2000 either party may cancel this Lease upon written notice given at
any time prior to the obtaining of the same. Any payment due at the time of
execution of this Lease by Tenant shall be paid to Landlord's attorney in escrow
and shall be released to Landlord as soon as Landlord delivers both the lease
approvals and SNDAs to CSFBC. If this Lease is canceled by either party,
escrowee shall return all escrow funds, including interest, to Tenant within one
business day after lease cancellation.
Sincerely,
TM Park Avenue Associates
By:
-------------------------
Agreed to by:
Credit Suisse First Boston Corporation
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxxx, Director
Page 2 of 2
4. Section 3.06 has been amended to provide for only the one most
westerly elevator on the Park Avenue side of the Building and
an increased elevator for each two floors occupied by Tenant
until Tenant occupies fifteen floors and then one additional
elevator when Tenant occupies eighteen floors.
5. In Section 23.01(d), Tenant's proportionate share has been
reduced to fifty-six (56%) percent.
6. In Section 23.05, Tenant's consent to tax settlements shall be
required after Tenant rents or has committed to rent
sixty-five (65%) of the Building.
7. Section 27.26, the first sentence reads "when the existing
leases for the Ninth, Tenth, Eleventh, Sixteenth and
Seventeenth Floors expire, Tenant shall rent such space..."
This Lease is subject to the approval of and the issuance of an acceptable
SNDA by Xxxx Xxxxxxx Life Insurance Company and WEA Associates, the Building's
mortgagees. If Landlord cannot obtain both the lease approvals and the SNDA by
August 31, 2000 either party may cancel this Lease upon written notice given at
any time prior to the obtaining of the same. Any payment due at the time of
execution of this Lease by Tenant shall be paid to Landlord's attorney in escrow
and shall be released to Landlord as soon as Landlord delivers both the lease
approvals and SNDAs to CSFBC. If this Lease is canceled by either party,
escrowee shall return all escrow funds, including interest, to Tenant within one
business day after lease cancellation.
Sincerely,
TM Park Avenue Associates
By: /s/ [ILLEGIBLE]
-------------------------
Agreed to by:
Credit Suisse First Boston Corporation
By:
----------------------------------
Xxxxx Xxxxxxxxxx, Director
