EXHIBIT 10.11
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AGREEMENT OF LEASE
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000 XXXXXX XXXXXX LLC
LANDLORD
AND
FIBERNET TELECOM GROUP, INC.
TENANT
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Premises: Portion of the Third (3rd) Floor
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dated: February __, 2000
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TABLE OF CONTENTS
DEFINITIONS ............................................................... 1
Article 1. Demise, Premises, Term, Rent .................................. 4
Article 2. Use And Occupancy ............................................. 4
Article 3. Alterations ................................................... 5
Article 4. Condition of the Premises ..................................... 7
Article 5. Repairs; Floor Load ........................................... 8
Article 6. Real Estate Taxes and Labor Rate Increases .................... 9
Article 7. Legal Requirements ............................................ 14
Article 8. Subordination and Non-Disturbance; Estoppel Certificates ...... 15
Article 9. Services ...................................................... 17
Article 10. Insurance ..................................................... 24
Article 11. Destruction of the Premises; Property Loss or Damage .......... 26
Article 12. Eminent Domain ................................................ 28
Article 13. Assignment and Subletting ..................................... 28
Article 14. Access to Premises ............................................ 37
Article 15. Certificate of Occupancy ...................................... 38
Article 16. Default ....................................................... 38
Article 17. Remedies and Damages .......................................... 41
Article 18. Fees and Expenses ............................................. 43
Article 19. No Representations By Landlord ................................ 44
Article 20. End Of Term ................................................... 44
Article 21. Quiet Enjoyment ............................................... 45
Article 22. No Waiver; Non-Liability ...................................... 45
Article 23. Waiver Of Trial By Jury ....................................... 46
Article 24. Inability To Perform .......................................... 47
Article 25. Bills And Notices ............................................. 47
Article 26. Rules And Regulations ......................................... 47
Article 27. Broker ........................................................ 48
Article 28. Indemnity ..................................................... 48
Article 29. [Intentionally Deleted.] ...................................... 49
Article 30. Security Deposit .............................................. 49
Article 31. Relocated Premises ............................................ 52
Article 32. Miscellaneous ................................................. 52
Exhibit A: Floor Plan of the Premises
Exhibit B: Rules and Regulations
Exhibit C: Approved Contractors
Exhibit D: Form of Letter of Credit
AGREEMENT OF LEASE, made as of February ___, 2000, between 111
CHELSEA LLC (successor-in-interest to 000 Xxxxxx Xxxxxx LLC), a Delaware limited
liability company with an address c/o Taconic Investment Partners LLC, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and FIBERNET TELECOM GROUP,
INC., a corporation with an address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their legal representatives,
successors and assigns, covenant and agree as follows.
DEFINITIONS
"Additional Rent" means Tenant's Tax Payment, Tenant's Labor Rate
Payment, and any and all other sums, other than Fixed Rent, payable by Tenant to
Landlord under this Lease.
"Affiliate" means, with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person.
"Alterations" means alterations, installations, improvements,
additions or other physical changes (other than decorations, movable fixtures
and equipment) in or about the Premises.
"Base Rate" means the annual rate of interest publicly announced
from time to time by Citibank, N.A., New York, New York (or any successor
thereto) as its "base rate", or such other term as may be used by Citibank, N.A.
from time to time for the rate presently referred to as its base rate.
"Building" means all the buildings, equipment and other improvements
and appurtenances of every kind and description now located or hereafter
erected, constructed or placed upon the land and any and all alterations,
renewals, replacements, additions and substitutions thereto, presently known by
the address of 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
"Building Systems" means the mechanical, electrical, heating,
ventilating, air conditioning, elevator, plumbing, sanitary, life-safety and
other service systems of the Building, but shall not include the portions of
such systems installed in the Premises by Tenant.
"Business Days" means all days, excluding Saturdays, Sundays, and
all days observed by either the State of New York, the Federal Government or by
the labor unions servicing the Building as legal holidays.
"Commencement Date" means 12:01 a.m. on the day following the date
hereof, provided that Landlord delivers possession of the Premises to Tenant on
such date.
"Control" means: (i) the ownership, directly or indirectly, of more
than fifty per cent (50%) of the voting stock of a corporation, or (ii) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person.
"Default Rate" means a rate at all times four (4) percentage points
above the Base Rate.
"Environmental Laws" means any Legal Requirements now or hereafter
in effect relating to the environment, health, safety or Hazardous Materials.
"Expiration Date" means the date which is the last day of the month
in which the day before the fifteenth (15th) anniversary of the Commencement
Date occurs.
"Governmental Authority" means any of the United States of America,
the State of New York, the City of New York, any political subdivision thereof
and any agency, department, commission, board, bureau or instrumentality of any
of the foregoing, now existing or hereafter created, having jurisdiction over
the Real Property or any portion thereof or the curbs, sidewalks, and areas
adjacent thereto.
"Hazardous Materials" means any substances, materials or wastes
regulated by any Governmental Authority or deemed or defined as a "hazardous
substance", "hazardous material", "toxic substance", "toxic pollutant",
"contaminant", "pollutant", "solid waste", "hazardous waste" or words of similar
import under applicable Legal Requirements, including oil and petroleum
products, natural or synthetic gas, polychlorinated biphenyls, asbestos in any
form, urea formaldehyde, radon gas, or the emission of non-ionizing radiation,
microwave radiation or electromagnetic fields at levels in excess of those (if
any) specified by any Governmental Authority or which may cause a health hazard
or danger to property, or the emission of any form of ionizing radiation.
"Legal Requirements" means all present and future laws, rules,
orders, ordinances, regulations, statutes, requirements, codes, executive
orders, rules of common law, and any judicial interpretations thereof,
extraordinary as well as ordinary, of all Governmental Authorities, including
the Americans with Disabilities Act (42 U.S.C. ss.12,101 et seq.), New York City
Local Law 58 of 1987, and any law of like import, and all rules, regulations and
government orders with respect thereto, and any of the foregoing relating to
environmental matters, Hazardous Materials, public health and safety matters,
and of any applicable fire rating bureau, or other body exercising similar
functions, affecting the Real Property or the maintenance, use or occupation
thereof, or any street or sidewalk comprising a part of or in front thereof or
any vault in or under the same.
"Mortgage" means any mortgage or trust indenture which may now or
hereafter affect the Real Property, the Building or any Superior Lease and the
leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder; "Mortgagee" means any
mortgagee, trustee or other holder of a Mortgage.
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"Permitted Use" means the use of the Premises by Tenant as a
telecommunications switching center, and other uses normally related thereto,
and office and support facilities in connection therewith, and for no other
purpose.
"Person" means any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in-common or other entity,
or any Governmental Authority.
"Premises" means a portion of the third (3rd) floor of the Building,
as shown on the floor plan attached to this Lease as Exhibit A and made a part
hereof.
"Real Property" means the Building, together with the plot of land
upon which it stands.
"Rentable Square Feet" is agreed to mean and is deemed to be the
rentable area of the Premises, consisting of a total of 5,672 rentable square
feet. Rentable Square Feet have been computed on the basis of the current
standard employed by Landlord with respect to the calculation of the deemed
rentable square foot area of the Building; provided, however, that in no event
shall such deemed Rentable Square Footage constitute or imply any representation
or warranty by Landlord as to the actual size of the Premises or any other
portion of the Building.
"Rules and Regulations" means the rules and regulations annexed
hereto and made a part hereof as Exhibit B, and such other and further rules and
regulations as Landlord may from time to time adopt.
"Substantial Completion" means, as to any construction performed by
any party in the Premises, including any Alterations, that such work has been
completed substantially in accordance with (i) the provisions of this Lease
applicable thereto, (ii) the plans and specifications for such work, and (iii)
all applicable Legal Requirements and Insurance Requirements, except for minor
details of construction, decoration and mechanical adjustments, if any, the
noncompletion of which does not materially interfere with Tenant's use of the
Premises, or which, in accordance with good construction practice, should be
completed after the completion of other work to be performed in the Premises.
"Superior Lease(s)" means any ground or underlying lease of the Real
Property or any part thereof heretofore or hereafter made by Landlord and all
renewals, extensions, supplements, amendments and modifications thereof;
"Lessor" means a lessor under a Superior Lease.
"Tenant's Alterations" means all Alterations in and to the Premises
which may be made by or on behalf of Tenant prior to and during the Term, or any
renewal thereof.
"Tenant's Property" means Tenant's movable fixtures and movable
partitions, telephone and other communications equipment, cable grid system,
Tenant's HVAC System (as defined in Section 9.3(d)), computer systems,
furniture, trade fixtures, furnishings and other items of personal property
which are removable without material damage to the Premises or Building.
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"Term" means the term of this Lease, which shall commence on the
Commencement Date and shall expire on the Expiration Date.
ARTICLE 1. DEMISE, PREMISES, TERM, RENT
Section 1.1 Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the Premises, for the Term to commence on the Commencement
Date and to end on the Expiration Date, at an annual rent ("Fixed Rent") as
follows:
(a) Two Hundred Twenty Six Thousand Eight Hundred Eighty and 00/100
Dollars ($226,880.00) per annum ($18,906.67 per month) for the period commencing
on the Commencement Date and ending on the date (the "Rent Increase Date") which
is the last day of the month which contains the day prior to the fifth (5th)
anniversary of the Commencement Date;
(b) Two Hundred Forty Nine Thousand Five Hundred Sixty Eight and
00/100 Dollars ($249,568.00) per annum ($20,797.33 per month) for the period
commencing on the day following the Rent Increase Date and ending on the fifth
(5th) anniversary of the Rent Increase Date;
(c) Two Hundred Seventy Two Thousand Two Hundred Fifty Six and
00/100 Dollars ($272,256.00) per annum ($22,688.00 per month) for the period
commencing on the day following the fifth (5th) anniversary of the Rent Increase
Date and ending on the Expiration Date;
which Tenant agrees to pay to Landlord, without notice or demand, in lawful
money of the United States, in monthly installments in advance on the first
(1st) day of each calendar month during the Term, at the office of Landlord or
such other place as Landlord may designate, without any set-off, offset,
abatement or deduction whatsoever, except as expressly set forth herein. Fixed
Rent and Additional Rent shall be payable by check drawn upon a bank which is a
member of the New York Clearinghouse Association, or by wire transfer of
immediately available funds.
Section 1.2 Notwithstanding anything to the contrary contained
herein, upon execution and delivery of this Lease, Tenant shall pay to Landlord
the sum of Eighteen Thousand Nine Hundred Six and 67/100 Dollars ($18,906.67)
representing the installment of Fixed Rent for the first (1st) full calendar
month of the Term after the Commencement Date. If the Commencement Date shall
occur on a date other than the first (1st) day of any calendar month, Tenant
shall also pay to Landlord, on the Commencement Date, a sum equal to Six Hundred
Thirty and 22/100 Dollars ($630.22), multiplied by the number of calendar days
in the period from the Commencement Date to the last day of the month in which
the Commencement Date shall occur, both inclusive.
ARTICLE 2. USE AND OCCUPANCY
Section 2.1 Tenant shall use and occupy the Premises for the
Permitted Use and for no other purpose. Tenant shall not use or occupy or permit
the use or occupancy of any part of the Premises in any manner not permitted
hereunder, or which in Landlord's judgment would adversely affect (a) the proper
and economical rendition of any service required to be
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furnished to any tenant or other occupant of the Building, (b) the use or
enjoyment of any part of the Building by any other tenant or other occupant, or
(c) the appearance, character or reputation of the Building.
Section 2.2 Tenant shall not use or permit the Premises or any part
thereof to be used: (a) for the business of printing or other manufacturing of
any kind, (b) as a retail branch of a bank or savings and loan association, or
as a retail loan company, as a retail stock broker's or dealer's office, (c) for
the storage of merchandise, (d) for the distribution, by mail-order or
otherwise, of merchandise, (e) as a restaurant or bar or for the sale of food or
beverages, (f) as a news or cigar stand, (g) as an employment agency, labor
union office, school, physician's or dentist's office, dance or music studio,
(h) as a xxxxxx shop or beauty salon, (i) for the sale, at retail or otherwise,
of any goods or products, (j) by the United States Government, the City or State
of New York, any Governmental Authority, any foreign government, the United
Nations or any agency or department of any of the foregoing or any Person having
sovereign or diplomatic immunity, (k) for the rendition of medical, dental or
other therapeutic or diagnostic services, or (l) for the conduct of an auction.
Section 2.3 Landlord shall not be subject to any liability for
failure to give possession of the Premises on the Commencement Date and the
validity of this Lease shall not be impaired under such circumstances, nor shall
the same be construed to extend the term of this Lease, except that Fixed Rent
and Additional Rent shall be abated until possession of the Premises shall be
delivered to Tenant. The foregoing shall constitute an express negation of
Section 223-a of the New York Real Property Law or any successor law or
ordinance, which shall be inapplicable hereto, and Tenant hereby waives any
right to rescind this Lease which Tenant might otherwise have thereunder.
ARTICLE 3. ALTERATIONS
Section 3.1 Tenant shall not make any Alterations without Landlord's
prior written consent in each instance, provided that Tenant's changing of wall
coverings, carpeting or paint shall not be deemed to be Alterations requiring
such consent. Landlord's consent shall be granted or denied in Landlord's sole
discretion; provided, however, that Landlord shall not unreasonably withhold its
consent to Alterations proposed to be made by Tenant to adapt the Premises for
the Permitted Use provided that such Alterations (a) are non-structural and do
not affect the Building Systems or services, (b) are performed only by
contractors approved in writing by Landlord, (c) do not affect any part of the
Building other than the Premises, (d) do not adversely affect any service
required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building, and (e) do not reduce the value or utility of the
Building.
Section 3.2 (a) Prior to making any Alterations, Tenant shall (i)
submit to Landlord, for Landlord's written approval, detailed plans and
specifications therefor in form satisfactory to Landlord, (ii) if such
Alterations require a filing with Governmental Authority or require the consent
of such authority, then such plans and specifications shall (A) be prepared and
certified by a registered architect or licensed engineer, and (B) comply with
all Legal Requirements to the extent necessary for such governmental filing or
consent, (iii) at its expense, obtain all required permits, approvals and
certificates, and (iv) furnish to Landlord duplicate
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original policies or certificates of insurance which evidences worker's
compensation coverage (covering all persons to be employed by Tenant, and all
contractors and subcontractors supplying materials or performing work in
connection with such Alterations), comprehensive general liability insurance
(including property damage coverage), comprehensive form automobile liability
insurance and Builder's Risk coverage (issued on a completed value basis) all in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably require, naming Landlord and its employees and agents, and any
Lessor and any Mortgagee as additional insureds. All Alterations shall be
performed by Tenant at Tenant's sole cost and expense (A) in a good and
workmanlike manner using new materials of first class quality, (B) in compliance
with all Legal Requirements, and (C) in accordance with the plans and
specifications previously approved by Landlord. Tenant shall at its cost and
expense obtain all approvals, consents and permits from every Governmental
Authority having or claiming jurisdiction prior to, during and upon completion
of such Alterations. Tenant shall promptly reimburse Landlord, as Additional
Rent, upon demand, for any and all costs and expenses incurred by Landlord in
connection with Landlord's review of Tenant's plans and specifications for any
such Alteration.
(b) Landlord shall not unreasonably withhold, condition or delay its
approval of the contractors proposed to be used by Tenant for Tenant's
Alterations, provided that in the case of the mechanical, electrical, plumbing
and fire safety trades, Tenant shall select its contractors and sub-contractors
from Landlord's list of approved contractors. Attached hereto as Exhibit C is a
list of contractors currently approved by Landlord for the performance of work
in the Building, which list may be modified by Landlord from time to time.
(c) Notwithstanding the foregoing provisions of this Article 3,
Tenant shall be permitted to make minor, non-structural alterations to the
Premises ("Minor Alterations") upon prior notice to Landlord, but without the
necessity of procuring Landlord's consent thereto, provided that the estimated
cost of each such Minor Alteration does not exceed $25,000.00 in any one
instance. The provisions of Sections 3.2(a) and 3.2(b) shall be applicable to
Minor Alterations. Prior to commencing any Minor Alteration, Tenant shall
furnish Landlord with (i) working drawings or plans for such Minor Alteration in
sufficient detail to permit Landlord to determine that such Alteration complies
with the requirements hereof, and (ii) the names of the contractors proposed to
be used by Tenant for such Minor Alteration.
(d) Upon completion of any Alterations, Tenant, at its expense,
shall promptly obtain certificates of final approval of such Alterations as may
be required by any Governmental Authority, and shall furnish Landlord with
copies thereof, together with "as-built" plans and specifications for such
Alterations prepared on an Autocad Computer Assisted Drafting and Design System
(or such other system or medium as Landlord may accept) using naming conventions
issued by the American Institute of Architects in June, 1990 (or such other
naming convention as Landlord may accept) and magnetic computer media of such
record drawings and specifications, translated into DXF format or another format
acceptable to Landlord.
Section 3.3 All Alterations in and to the Premises which may be made
by or on behalf of Tenant, prior to and during the Term or any renewal thereof,
shall become the property of Landlord upon the expiration or sooner termination
of this Lease, and upon the Expiration Date
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or earlier termination of the Term or any renewal thereof (a) Tenant shall
remove Tenant's Property from the Premises, and (b) unless Landlord notifies
Tenant no later than twenty (20) days prior to the Expiration Date that any or
all items of Tenant's Alterations shall not be removed from the Premises, Tenant
shall remove Tenant's Alterations from the Premises, at Tenant's sole cost and
expense. Tenant shall repair and restore in a good and workmanlike manner
(reasonable wear and tear excepted) any damage to the Premises and the Building
caused by such removal of Tenant's Property and Tenant's Alterations. Any of
Tenant's Alterations or Tenant's Property not so removed by Tenant at or prior
to the Expiration Date or earlier termination of the Term shall be deemed
abandoned and may, at the election of Landlord, either be retained as Landlord's
property or be removed from the Premises by Landlord at Tenant's expense. The
covenants and agreements set forth in this Section 3.3 shall survive the
expiration or earlier termination of this Lease.
Section 3.4 If, because of any act or omission of Tenant, its
employees, agents, contractors, or subcontractors, any mechanic's lien, U.C.C.
financing statement or other lien, charge or order for the payment of money
shall be filed against Landlord, or against all or any portion of the Premises,
the Building or the Real Property, Tenant shall, at its own cost and expense,
cause the same to be discharged of record, by bonding or otherwise, within
thirty (30) days after the filing thereof, and Tenant shall indemnify, defend
and save Landlord harmless against and from all costs, expenses, liabilities,
suits, penalties, claims and demands (including reasonable attorneys' fees and
disbursements) resulting therefrom.
Section 3.5 Tenant shall not, at any time prior to or during the
Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with any
Alteration or otherwise, if in Landlord's sole judgment such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others, or the use and enjoyment of other tenants or
occupants of the Building.
ARTICLE 4. CONDITION OF THE PREMISES
Section 4.1 Tenant has examined the Premises and agrees to accept
possession of the Premises in their "as is" condition on the Commencement Date,
and further agrees that Landlord shall have no obligation to perform any work,
supply any materials, incur any expenses or make any installations in order to
prepare the Premises for Tenant's occupancy. The taking of possession of the
Premises by Tenant shall be conclusive evidence as against Tenant that at the
time such possession was so taken, the Premises were in good and satisfactory
condition.
Section 4.2 Tenant shall perform all work and assume all
responsibility to cause the fire suppression system currently installed in the
Premises to comply with all applicable Legal Requirements, and Tenant shall with
reasonable promptness obtain all requisite approvals and sign-offs with respect
to such system from Governmental Authorities, including the making of any
repairs or modifications to such system to cause the same to so comply with
applicable Legal Requirements.
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Section 4.3 Upon the request of Tenant, Landlord, at Tenant's cost
and expense, shall join in any applications for any permits, approvals or
certificates from any Governmental Authority required to be obtained by Tenant,
and shall sign such applications reasonably promptly after request by Tenant
(provided that (i) the provisions of the applicable Legal Requirement shall
require that Landlord join in such application, and (ii) is made in connection
with an Alteration approved by Landlord, or if such approval is not required
hereunder, such application is acceptable to Landlord) and shall otherwise
cooperate with Tenant in connection therewith, provided that Landlord shall not
be obligated to incur any cost or expense, including attorneys' fees and
disbursements, or suffer or incur any liability, in connection therewith.
ARTICLE 5. REPAIRS; FLOOR LOAD
Section 5.1 Landlord shall maintain and repair the Building Systems
and the public portions of the Building, both exterior and interior, and the
structural elements thereof, including the roof, foundation and curtain wall.
Tenant, at Tenant's expense, shall take good care of the Premises and the
fixtures, systems, equipment and appurtenances therein, and make all
non-structural repairs thereto as and when needed to preserve them in good
working order and condition, except for reasonable wear and tear, obsolescence
and damage for which Tenant is not responsible pursuant to the provisions of
Articles 10 and 11 hereof. Notwithstanding the foregoing, all damage or injury
to the Premises or to any other part of the Building, or to its fixtures,
equipment and appurtenances, caused by or resulting from carelessness, omission,
neglect or improper conduct of, or Alterations made by Tenant, Tenant's agents,
employees or licensees, shall be repaired at Tenant's expense, (a) by Tenant to
the satisfaction of Landlord (if the required repairs are non-structural and do
not affect any Building System), or (b) by Landlord (if the required repairs are
structural or affect any Building System). Tenant also shall repair all damage
to the Building and the Premises caused by the making of any Alterations by
Tenant or by the moving of Tenant's Property. All of such repairs shall be of
quality or class equal to the original work or construction. If Tenant fails
after fifteen (15) days notice to proceed with due diligence to make repairs
required to be made by Tenant, Landlord may make such repairs at the expense of
Tenant, and Tenant shall pay the costs and expenses thereof incurred by
Landlord, with interest at the Default Rate, as Additional Rent within ten (10)
days after rendition of a xxxx or statement therefor.
Section 5.2 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 which is allowed by law. Tenant shall not move any safe, heavy
equipment, business machines, freight, bulky matter or fixtures into or out of
the Building without Landlord's prior consent. If such safe, equipment, freight,
bulky matter or fixtures requires special handling, Tenant shall employ only
persons holding a Master Rigger's license to do such work.
Section 5.3 There shall be no allowance to Tenant for a diminution
of rental value, no constructive eviction of Tenant and no liability on the part
of Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or
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the Premises, or in or to fixtures, appurtenances or equipment thereof. Landlord
shall use reasonable efforts to minimize interference with Tenant's access to
and use and occupancy of the Premises in making any repairs, alterations,
additions or improvements, and Landlord shall endeavor to give Tenant reasonable
advance notice of any planned outage of electrical power, which notice shall
specify the time at which such outage will commence and the anticipated duration
thereof; provided, however, that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever.
Section 5.4 Tenant shall not require, permit, suffer or allow the
cleaning of any window in the Premises from the outside in violation of Section
202 of the New York Labor Law or any successor statute thereto, or of any other
Legal Requirement.
ARTICLE 6. REAL ESTATE TAXES AND LABOR RATE INCREASES
Section 6.1 The following terms shall have the meanings set forth
below:
(a) "Taxes" shall include the aggregate amount of (i) all real
estate taxes, assessments (special or otherwise), sewer and water rents, rates
and charges and any other governmental levies, impositions or charges, whether
general, special, ordinary, extraordinary, foreseen or unforeseen, which may be
assessed, levied or imposed upon all or any part of the Real Property, and (ii)
any expenses (including attorneys' fees and disbursements and experts' and other
witness' fees) incurred in contesting any of the foregoing or the Assessed
Valuation (as defined in Section 6.1(d)) of all or any part of the Real
Property. If at any time after the date hereof the methods of taxation
prevailing at the date hereof shall be altered so that in lieu of or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, rents, rates, charges, levies or impositions now assessed, levied
or imposed upon all or any part of the Real Property, there shall be assessed,
levied or imposed (A) a tax, assessment, levy, imposition or charge based on the
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise, (B) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Real Property and imposed
upon Landlord, (C) a license fee measured by the rents or (D) any other tax,
assessment, levy, imposition, charges or license fee however described or
imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be deemed to be
Taxes. Taxes shall not include franchise, gift, inheritance, estate, sales,
income or profit taxes imposed upon Landlord, any Lessor or any Mortgagee by any
Governmental Authority.
(b) "Tenant's Share" means 247/1000 of one percent (.247%).
(c) "Base Taxes" means an amount equal to the sum of (i) one-half
(1/2) of the Taxes payable for the Tax Year commencing on July 1, 1999 and
ending June 30, 2000, plus (ii) one-half (1/2) of the Taxes payable for the Tax
Year commencing on July 1, 2000 and ending June 30, 2001.
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(d) "Assessed Valuation" means the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of imposition of Taxes.
(e) "Tax Year" means the period July 1 through June 30 (or such
other period as may be duly adopted by the City of New York as its fiscal year
for real estate tax purposes).
(f) "Comparison Year" means (i) with respect to Taxes, any Tax Year
commencing subsequent to the 1999/2000 Tax Year, and (ii) with respect to Labor
Rates, any calendar year commencing subsequent to the Base Labor Year.
(h) "Landlord's Statement" means an instrument or instruments
containing a comparison of either (i) the Base Taxes and the Taxes payable for
any Comparison Year, or (ii) the Base Labor Rates and the Labor Rates applicable
to any Comparison Year.
(i) "Tenant's Projected Share of Taxes" means Tenant's Tax Payment
(as defined in Section 6.1(j)), if any, made by Tenant for the prior Comparison
Year, plus an amount equal to Landlord's estimate of the amount of increase in
Tenant's Tax Payment for the then current Comparison Year, divided by twelve
(12) and payable monthly by Tenant to Landlord as Additional Rent.
(j) "Tenant's Tax Payment" means Tenant's Share of the excess of the
Taxes payable for any Comparison Year over the Base Taxes.
Section 6.2 (a) If the Taxes payable for any Comparison Year (any
part or all of which falls within the Term) shall exceed the Base Taxes, Tenant
shall pay Tenant's Tax Payment to Landlord, as Additional Rent, within ten (10)
business days after demand from Landlord therefor, which demand shall be
accompanied by Landlord's Statement. Before or after the start of each
Comparison Year, Landlord shall furnish to Tenant a Landlord's Statement in
respect of Taxes. If there shall be any increase in Taxes payable for any
Comparison Year, whether during or after such Comparison Year or if there shall
be any decrease in the Taxes payable for any Comparison Year during such
Comparison Year, Landlord may furnish a revised Landlord's Statement for such
Comparison Year, and Tenant's Tax Payment for such Comparison Year shall be
adjusted and, within ten (10) business days after Tenant's receipt of such
revised Landlord's Statement, Tenant shall (i) with respect to any increase in
Taxes payable for such Comparison Year, pay such increase in Tenant's Tax
Payment to Landlord, or (ii) with respect to any decrease in Taxes payable for
such Comparison Year, Landlord shall credit such decrease in Tenant's Tax
Payment against the next installment of Tenant's Share of Taxes payable by
Tenant pursuant to this Section 6.2(a), provided that if such decrease in Taxes
is attributable to the final Comparison Year of the Term, Landlord shall pay the
amount of such decrease in Tenant's Tax Payment to Tenant. If, during the Term,
Landlord shall elect to collect Tenant's Tax Payments in full or in quarterly or
bi-annual or other installments on any other date or dates than as presently
required, then following Landlord's notice to Tenant, Tenant's Tax Payments
shall be correspondingly revised. The benefit of any discount for any early
payment or prepayment of Taxes relating to all or any part of the Real Property
shall accrue solely to the benefit of Landlord and Taxes shall be computed
without subtracting such discount.
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(b) With respect to each Comparison Year, on account of which
Landlord shall (or anticipates that it may) be entitled to receive Tenant's Tax
Payment, Tenant shall pay to Landlord, as Additional Rent for the then current
Tax Year, Tenant's Projected Share of Taxes. Upon each date that a Tax Payment
or an installment on account thereof shall be due from Tenant pursuant to the
terms of this Section 6.2, Landlord shall apply the aggregate of the
installments of Tenant's Projected Share of Taxes then on account with Landlord
against Tenant's Tax Payment or installment thereof then due from Tenant. In the
event that such aggregate amount shall not be sufficient to discharge such Tax
Payment or installment, Landlord shall so notify Tenant, and the amount of
Tenant's payment obligation with respect to such Tax Payment or installment
pursuant to this Section 6.2, shall be equal to the amount of the insufficiency
and shall be payable within ten (10) business days of demand by Landlord. If,
however, such aggregate amount shall be greater than the Tax Payment or
installment, Landlord shall credit the amount of such excess against the next
payment of Tenant's Projected Share of Taxes due hereunder.
(c) Only Landlord shall be eligible to institute Tax reduction or
other proceedings to reduce the Assessed Valuation of the Real Property, and the
filings of any such proceeding by Tenant without Landlord's prior written
consent shall constitute a default hereunder. If the Taxes payable for either
the 1999/2000 Tax Year or the 2000/2001 Tax Year are reduced by final
determination of legal proceedings, settlement or otherwise, then the Base Taxes
shall be correspondingly revised, the Additional Rent theretofore paid or
payable on account of Tenant's Tax Payment hereunder for all Comparison Years
shall be recomputed on the basis of such reduction, and Tenant shall pay to
Landlord, as Additional Rent within ten (10) business days after being billed
therefor, any deficiency between the amount of such Additional Rent theretofore
computed and paid by Tenant to Landlord and the amount thereof due as a result
of such recomputations. If the Base Taxes are increased by such final
determination of legal proceedings, settlement or otherwise, then, Landlord
shall either pay to Tenant, or at Landlord's election, credit against subsequent
payments due under this Section 6.2, an amount equal to the excess of the
amounts of such Additional Rent theretofore paid by Tenant over the amount
thereof actually due as a result of such recomputations. If Landlord shall
receive a refund or reduction of Taxes for any Comparison Year, Landlord shall,
within a reasonable time after such refund is actually received or such credit
is actually applied against Taxes then due and payable, either pay to Tenant,
or, at Landlord's election, credit against subsequent payments under this
Section 6.2, an amount equal to Tenant's Share of the refund or reduction,
provided that such amount shall not exceed Tenant's Tax Payment paid for such
Comparison Year. Nothing herein contained shall obligate Landlord to file any
application or institute any proceeding seeking a reduction in Taxes or Assessed
Valuation.
(d) Tenant's Tax Payment shall be made as provided in this Section
6.2 regardless of the fact that Tenant may be exempt, in whole or in part, from
the payment of any taxes by reason of Tenant's diplomatic or other tax exempt
status or for any other reason whatsoever.
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(e) Tenant shall pay to Landlord, as Additional Rent upon demand,
any occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
(f) If the Commencement Date or the Expiration Date shall occur on a
date other than July 1 or June 30, respectively, any Additional Rent payable by
Tenant to Landlord under this Section 6.2 for the Comparison Year in which such
Commencement Date or Expiration Date shall occur, shall be apportioned in that
percentage which the number of days in the period from the Commencement Date to
June 30 or from July 1 to the Expiration Date, as the case may be, both
inclusive, shall bear to the total number of days in such Comparison Year. In
the event of a termination of this Lease, any Additional Rent under this Section
6.2 shall be paid or adjusted within thirty (30) days after submission of
Landlord's Statement. In no event shall Fixed Rent ever be reduced by operation
of this Section 6.2 and the rights and obligations of Landlord and Tenant under
the provisions of this Section 6.2 with respect to any Additional Rent shall
survive the expiration or earlier termination of this Lease.
Section 6.3 The following terms shall have the meanings set forth
below:
(a) "Comparison Year" shall mean any calendar year subsequent to the
Base Labor Year.
(b) "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
(c) "Local 32B-32J" shall mean Local 32B-32J of the Building Service
Employees International Union, AFL-CIO, or its successor.
(d) "Class A Office Buildings" shall mean office buildings so
categorized under any agreement between R.A.B. and Local 32B-32J, regardless of
the designation given to such office buildings in any such agreement.
(e) "Labor Rates" shall mean a sum equal to the regular hourly wage
rate required to be paid to Others (hereinafter defined) employed in Class A
Office Buildings pursuant to an agreement between R.A.B. and Local 32B-32J;
provided, however, that:
(i) if, as of October 1st of any Comparison Year, any such
agreement shall require Others in Class A Office Buildings to be regularly
employed on days or during hours when overtime or other premium pay rates
are in effect pursuant to such agreement, then the term "regular hourly
wage rate", as used in this Section 6.3 shall mean the average hourly wage
rate for the hours in a calendar week during which Others are required to
be regularly employed;
(ii) if no such agreement is in effect as of October 1st of
any Comparison Year with respect to Others, then the term "regular hourly
wage rate", as used in this Section 6.3 shall mean the regular hourly wage
rate actually paid to Others
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employed in the Building by Landlord or by an independent contractor
engaged by Landlord; and
(iii) the term "regular hourly wage rate" shall exclude all benefits
of any kind, including those payable directly to taxing authorities or
others on account of the employment and all welfare, pension and fringe
employee benefits and payments of any kind paid or given pursuant to such
agreement.
(f) "Others" shall mean that classification of employee engaged in
the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to "others" in the current
agreement between R.A.B. and Local 32B-32J.
(g) "Base Labor Year" shall mean the calendar year 2000.
(h) "Base Labor Rates" shall mean the Labor Rates in effect for the
Base Labor Year.
(i) "Tenant's Labor Rate Payment" is defined in Section 6.4(a).
Section 6.4 (a) If the Labor Rates in effect for any Comparison Year
(any part or all of which falls within the Term) shall be greater than the Base
Labor Rates, then Tenant shall pay, as Additional Rent for such Comparison Year
and continuing thereafter until a new Landlord's Statement is rendered to
Tenant, an amount ("Tenant's Labor Rate Payment") equal to (i) 5,672 multiplied
by (ii) the number of cents (inclusive of any fractions of a cent) by which the
Labor Rates in effect for such Comparison Year exceed the Base Labor Rates.
(b) At any time prior to, during or after any Comparison Year
Landlord shall render to Tenant a Landlord's Statement showing (i) a comparison
of the Labor Rates for the Comparison Year with the Base Labor Rates, and (ii)
the amount of Tenant's Labor Rate Payment resulting from such comparison.
Landlord's failure to render a Landlord's Statement during or with respect to
any Comparison Year shall not prejudice Landlord's right to render a Landlord's
Statement during or with respect to any subsequent Comparison Year and shall not
eliminate or reduce Tenant's obligation to pay Tenant's Labor Rate Payment
pursuant to this Article 6 for such Comparison Year.
(c) Tenant's Labor Rate Payment shall be payable by Tenant on the
first day of the month following the furnishing to Tenant of a Landlord's
Statement, in equal monthly installments, each such installment to be equal to
1/12th of Tenant's Labor Rate Payment for such Comparison Year multiplied by the
number of months (and any fraction thereof) of the Term then elapsed since the
commencement of such Comparison Year, continuing monthly thereafter until
rendition of the next succeeding Landlord's Statement.
(d) The provisions of this Section 6.4 shall be effective
irrespective of whether or not (i) the Building is classified as a Class A
office building from time to time, or (ii) any Building employees are members of
Local 32B-32J. Tenant acknowledges and agrees that the
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computation of Labor Rates hereunder is intended to serve solely as a formula
for an agreed rental adjustment, rather than an actual operating expense
calculation, and is not intended to reflect the actual cost to Landlord of wages
at the Building or any increases or decreases in such cost.
Section 6.5 (a) If the Commencement Date or the Expiration Date
shall occur on a date other than January 1 or December 31, respectively, any
Additional Rent under this Article 6 for the Comparison Year in which such
Commencement Date or Expiration Date shall occur shall be apportioned in that
percentage which the number of days in the period from the Commencement Date to
December 31 or from January 1 to the Expiration Date, as the case may be, both
inclusive, shall bear to the total number of days in such Comparison Year. In
the event of a termination of this Lease, any Additional Rent under this Article
shall be paid or adjusted within thirty (30) days after submission of a
Landlord's Statement. In no event shall Fixed Rent ever be reduced by operation
of this Section 6.5 and the rights and obligations of Landlord and Tenant under
the provisions of this Article 6 with respect to any Additional Rent shall
survive the expiration or earlier termination of this Lease.
(b) The computations of Additional Rent under this Article 6 are
intended to constitute a formula for an agreed rental adjustment and may or may
not constitute an actual reimbursement to Landlord for costs and expenses paid
by Landlord with respect to the Building.
Section 6.6 Landlord's failure to render a Landlord's Statement with
respect to any Comparison Year shall not prejudice Landlord's right to
thereafter render a Landlord's Statement with respect thereto or with respect to
any subsequent Comparison Year, nor shall the rendering of a Landlord's
Statement prejudice Landlord's right to thereafter render a corrected Landlord's
Statement for that Comparison Year. Nothing herein contained shall restrict
Landlord from issuing a Landlord's Statement at any time there is an increase in
Taxes or Labor Rates during any Comparison Year or any time thereafter.
Section 6.7 If any capital improvement is made to the Real Property
during any calendar year during the Term in compliance with any Legal
Requirements, then Tenant shall pay to Landlord, immediately upon demand
therefor, Tenant's Proportionate Share of the reasonable annual amortization,
with interest, of the cost of such improvement in each calendar year during the
Term during which such amortization occurs.
ARTICLE 7. LEGAL REQUIREMENTS
Section 7.1 Tenant, at its sole expense, shall comply with all Legal
Requirements applicable to the Premises or the use and occupancy thereof by
Tenant, and make all repairs or Alterations required thereby, whether structural
or nonstructural, ordinary or extraordinary, unless otherwise expressly provided
herein. Notwithstanding the foregoing, Tenant shall have no obligation to make
structural repairs or alterations in and to the Premises unless such obligation
shall arise as a result of the particular manner of use and occupancy of Tenant
or any alterations or improvements performed by Tenant in or to the Premises.
Tenant shall not do or permit to be done any act or thing upon the Premises
which will invalidate or be in conflict with Landlord's insurance policies, and
shall not do or permit anything to be done in
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or upon the Premises, or use the Premises in a manner, or bring or keep anything
therein, which shall increase the rates for casualty or liability insurance
applicable to the Building. If, as a result of any act or omission by Tenant or
by reason of Tenant's failure to comply with the provisions of this Article, the
insurance rates for the Building shall be increased, then Tenant shall desist
from doing or permitting to be done any such act or thing and shall reimburse
Landlord, as Additional Rent hereunder, for that part of all insurance premiums
thereafter paid by Landlord which shall have been charged because of such act,
omission or failure by Tenant, and shall make such reimbursement upon demand by
Landlord.
Section 7.2 Tenant, at its expense, shall comply with all
Environmental Laws and with any directive of any Governmental Authority which
shall impose any violation, order or duty upon Landlord or Tenant under any
Environmental Laws with respect to the Premises or the use or occupation
thereof. Tenant's obligations hereunder with respect to Hazardous Materials
shall extend only to those matters directly or indirectly based on, or arising
or resulting from (a) the actual or alleged presence of Hazardous Materials on
the Premises or in the Building which is caused or permitted by Tenant, and (b)
any Environmental Claim (defined below) relating in any way to Tenant's
operation or use of the Premises or the Building.
Section 7.3 Tenant shall provide Landlord with copies of all
communications and related materials regarding the Premises which Tenant shall
receive from or send to (a) any Governmental Authority relating in any way to
any Environmental Laws, or (b) any Person with respect to any claim based upon
any Environmental Laws or relating in any way to Hazardous Materials (any such
claim, an "Environmental Claim"). Landlord or its agents may perform an
environmental inspection of the Premises at any time during the Term, upon prior
notice to Tenant except in an emergency.
ARTICLE 8. SUBORDINATION AND NON-DISTURBANCE; ESTOPPEL CERTIFICATES
Section 8.1 This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all Mortgages and Superior
Leases. This Section 8.1 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute and deliver any instrument that Landlord or any Lessor or
Mortgagee may reasonably request to evidence such subordination.
Section 8.2 In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this Lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (a) until it has given written notice of such act
or omission to each Mortgagee and Lessor whose name and address shall previously
have been furnished to Tenant in writing, and (b) unless such act or omission
shall be one which is not capable of being remedied by Landlord or such
Mortgagee or Lessor within a reasonable period of time, until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Mortgagee or Lessor shall
have become entitled under such Mortgage or Superior Lease, as the case may be,
to remedy the same (which reasonable period shall in no event be less than the
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period to which Landlord would be entitled under this Lease or otherwise, after
similar notice, to effect such remedy), provided such Mortgagee or Lessor shall
with due diligence give Tenant written notice of its intention to remedy such
act or omission, and such Mortgagee or Lessor shall commence and thereafter
continue with reasonable diligence to remedy such act or omission. If more than
one Mortgagee or Superior Lessor shall become entitled to any additional cure
period under this Section 8.2, such cure periods shall run concurrently, not
consecutively.
Section 8.3 If a Mortgagee or Lessor shall succeed to the rights of
Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, then at the request of such party so succeeding
to Landlord's rights ("Successor Landlord") and upon Successor Landlord's
written agreement to accept Tenant's attornment, Tenant shall attorn to and
recognize Successor Landlord as Tenant's landlord under this Lease, and shall
promptly execute and deliver any instrument that Successor Landlord may
reasonably request to evidence such attornment. Upon such attornment this Lease
shall continue in full force and effect as, or as if it were, a direct lease
between Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease and shall be applicable after such
attornment except that Successor Landlord shall not:
(a) be liable for any previous act or omission of Landlord under
this Lease;
(b) be subject to any offset, not expressly provided for in this
Lease, which shall have theretofore accrued to Tenant against Landlord; or
(c) be bound by any previous modification of this Lease, not
expressly provided for in this Lease, or by any previous prepayment of
more than one month's Fixed Rent, unless such modification or prepayment
shall have been expressly approved in writing by such Mortgagee or Lessor.
Section 8.4 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a written statement executed and acknowledged
by such party (a) stating that this Lease is then in full force and effect and
has not been modified (or if modified, setting forth all modifications), (b)
setting forth the then annual Fixed Rent, (c) setting forth the date to which
the Fixed Rent and Additional Rent have been paid, (d) stating whether or not,
to the best knowledge of the signatory, the other party is in default under this
Lease, and if so, setting forth the specific nature of all such defaults, (e)
stating the amount of any security deposit held by Landlord, (f) stating whether
there are any subleases affecting the Premises, (g) stating the address of the
signatory to which all notices and communication under the Lease shall be sent,
(h) stating the Commencement Date and the Expiration Date, and (i) as to any
other matters reasonably requested by the party requesting such certificate. The
parties acknowledge that any statement delivered pursuant to this Section 8.4
may be relied upon by others with whom the party requesting such certificate may
be dealing, including any purchaser or owner of the Real Property or the
Building, or of Landlord's interest in the Real Property or the Building or any
Superior Lease, or by any Mortgagee or Lessor, or by any prospective or actual
sublessee of the Premises or assignee of this Lease, or permitted transferee of
or successor to Tenant.
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ARTICLE 9. SERVICES
Section 9.1 Landlord shall provide, at Landlord's expense, except as
otherwise set forth herein, the following services:
Section 9.2 Electricity. (a) Subject to the provisions of this
Article 9, Landlord will provide 600 amperes of 460 volt, 3-phase, 4-wire, AC
electrical capacity of submetered electric power to the Premises (the "Basic
Capacity"). Tenant covenants that Tenant's use and consumption of electric
current shall not at any time exceed the Basic Capacity, nor exceed the capacity
of any of the electrical facilities and installations in or otherwise serving or
being used in the Premises. Tenant shall pay Landlord, as Additional Rent, at
any time and from time to time, but no more frequently than monthly, for its
consumption of electrical energy at the Premises, as provided herein.
(b) In the event that Tenant's total power requirements at the
Premises, based on an annual review of Tenant's consumption following the first
anniversary of the Commencement Date, shall be less than the Basic Capacity,
Tenant shall pay to Landlord an annual sum equal to the fee, if any, which
Landlord is obligated to pay to the Electricity Provider (as defined in Section
9.1(d)), commonly known as a "use it or lose it" fee, for the availability of
such capacity, presently payable by Landlord to the Electricity Provider at the
rate of $25.00 per unused ampere per annum. Further, if as of the third (3rd)
anniversary of the Commencement Date, Tenant shall continue to require less than
the Basic Capacity, then Landlord shall have the right to reduce the level of
electric power supplied to the Premises to Tenant's actual power requirements as
reasonably determined by Landlord.
(c) The calculations and determinations of the charges for electric
energy consumed by Tenant shall be based on the readings of one or more
submeters currently installed at the Premises, applied to Landlord's Electricity
Cost, as defined in Section 9.2(d). Tenant shall pay for electricity consumed as
determined thereunder as measured and calculated from time to time by such
submeter or submeters, such payment to be equal to the amount Tenant would pay
for such consumption of electricity if it purchased that amount of electricity
from the public utility servicing the Building under the rate structure and/or
classification as set forth in this Section 9.2(c) pursuant to which Landlord
would purchase that quantity of electricity for the entire Building, plus
Landlord's charge for overhead and supervision, which charge shall not exceed
five percent (5%) of such payment by Tenant. In addition, Tenant shall pay to
Landlord, as Additional Rent (i) the fees and expenses of Landlord's electrical
contractor for services rendered by such contractor in the maintenance and
repair of such submeter(s), and (ii) the amount of any taxes imposed by any
Governmental Authority on Landlord's receipts from the sale of electricity to
Tenant. In the event that more that one submeter is used to measure Tenant's
consumption of electricity in the Premises, Tenant shall be billed only on the
basis of the "totalized" demand, i.e., as though a single meter were measuring
such usage.
(d) "Landlord's Electricity Cost" means the cost per kilowatt hour
and cost per kilowatt demand, adjusted by time of day factors, fuel adjustment
charges and other applicable rate adjustments, to Landlord for the purchase of
electricity from the public utility or other electricity provider furnishing
electricity service to the Building from time to time (the
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"Electricity Provider"), including sales and other taxes imposed by any
Governmental Authority on Landlord's purchase of electricity. If at any time
during the Term the cost elements comprising Landlord's Electricity Cost shall
be increased by the Electricity Provider, or Landlord's Electricity Cost shall
be increased for any other reason, then effective as of the date of such
increase, Tenant's payment for submetered electricity under this Section 9.2
shall be proportionately increased. Landlord reserves the right to contract with
different Electricity Providers from time to time in its sole judgment, and
without reference to whether any Electricity Provider selected by Landlord
provides lower rates than any other electricity supplier. Currently, Landlord's
Electricity Cost is based upon Consolidated Edison Company's Service
Classification rate schedule S.C. #4 Rate II as in effect on the Commencement
Date.
(e) Tenant covenants that Tenant's use and consumption of electric
current shall not at any time exceed the capacity of any of the electrical
facilities and installations in or otherwise serving or being used in the
Premises and Tenant shall, upon the submission by Landlord to Tenant of written
notice, promptly cease the use of any of Tenant's electrical equipment which
Landlord believes will cause Tenant to exceed such capacity. Any additional
feeders, risers, electrical facilities and other such installations required for
electric service to the Premises will be supplied by Landlord, at Tenant's
expense, upon Landlord's prior consent in each instance, provided that, in
Landlord's judgment, such additional electrical facilities and installations,
feeders or risers are necessary for Tenant's use of the Premises and are
permissible under Legal Requirements (including the New York State Energy
Conservation Construction Code) and insurance regulations and the installation
of such feeders or risers will not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations or repairs or interfere with, or
disturb, other tenants or occupants of the Building. In addition, Landlord shall
have no obligation to consent to such additional feeders, risers, electrical
facilities and installations if in Landlord's judgment, the same would give
Tenant a disproportionate amount of the electrical current supplied to the
Building at the expense of, or in derogation of the needs of other tenants or
occupants of the Building.
(f) Landlord shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur as a result of
the unavailability of or interruption in the supply of electric current to the
Premises or a change in the quantity or character or nature of such current and
such change, interruption or unavailability shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent (except that Tenant's liability to pay Landlord for
electricity under this Section 9.2 shall cease as of the date of such
disturbance), or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord, or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
(g) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than ninety (90) days notice
to Tenant. If Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that from and
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after the effective date of such discontinuance, Landlord shall not be obligated
to furnish electricity to Tenant, and Tenant shall have no further obligation to
pay Landlord for electricity supplied to the Premises. If Landlord so
discontinues furnishing electricity to Tenant, Tenant shall arrange to obtain
electricity directly from the Electricity Provider. Such electricity may be
furnished to Tenant by means of the then existing electrical facilities serving
the Premises to the extent that the same are available, suitable and safe for
such purposes. All meters and all additional panel boards, feeders, risers,
wiring and other equipment which may be required by Tenant to obtain electricity
directly from the Electricity Provider shall be installed by Landlord, at
Tenant's sole cost and expense.
(h) If submetering of electricity in the Building is hereafter
prohibited by any Legal Requirement, or by any order or ruling of the Public
Service Commission of the State of New York, then Tenant shall apply, within ten
(10) days of Tenant's receiving notice thereof, to the Electricity Provider in
order to obtain direct electric service, and Tenant shall bear all costs and
expenses, as set forth in Section 9.2(g), necessary to comply with all rules and
regulations of the Electricity Provider pertinent thereto, and from and after
the date upon which Tenant procures direct electric service, Landlord shall be
relieved of any further obligation to furnish electricity to Tenant pursuant to
this Section 9.2. Such electricity may be furnished to Tenant by means of the
then existing electrical facilities serving the Premises, including Building
feeders and risers, to the extent that the same are suitable and safe for such
purposes.
Section 9.3 Heat, Ventilation and Air Conditioning. (a) Landlord
shall provide heat to the Premises on Business Days from 8:00 A.M. to 6:00 P.M.,
when required in Landlord's judgment for the comfortable use and occupancy of
the Premises, through use of the Building standard heating system (the "Building
Heating System").
(b) Anything in this Section 9.3 to the contrary notwithstanding,
Landlord shall not be responsible if the normal operation of the Building
Heating System shall fail to provide heat at reasonable temperatures. Tenant at
all times shall cooperate fully with Landlord and shall abide by the regulations
and requirements which Landlord may prescribe for the proper functioning and
protection of the Building Heating System.
(c) Landlord shall not be required to furnish heat during periods
other than the hours and days set forth in this Section 9.3 for the furnishing
and distributing of such services ("Overtime Periods"), unless Landlord has
received advance notice from Tenant requesting such service not less than
twenty-four (24) hours prior to the time when such service shall be required.
Accordingly, if Landlord shall furnish heat to the Premises at the request of
Tenant during Overtime Periods, Tenant shall pay Landlord, as Additional Rent
within ten (10) days after demand, for such services at the standard rate then
fixed by Landlord for the Building. Failure by Landlord to furnish or distribute
heat or any other services during Overtime Periods shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Fixed Rent or Additional Rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise.
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(d) Landlord shall have no obligation to provide air-conditioning or
ventilation services to the Premises. Landlord agrees that Tenant shall have the
right to utilize the existing air-cooled package air-conditioning unit
("Tenant's HVAC System") serving the Premises, and to expand Tenant's HVAC
System, subject to the provisions of Article 3. Upon the expiration or sooner
termination of the Term, at Landlord's request, Tenant shall remove Tenant's
HVAC System and restore any damage to the Building and the Premises resulting
from such removal.
Section 9.4 Elevators. Landlord shall provide passenger elevator
service to the Premises on Business Days from 8:00 A.M. to 6:00 P.M. and freight
elevator facilities on a non-exclusive basis, on Business Days from 8:00 A.M. to
4:45 P.M., and shall have one passenger elevator available at all other times.
Such elevator service shall be subject to such rules and regulations as Landlord
may promulgate from time to time with respect thereto. Landlord shall have the
right to change the operation or manner of operation of any of the elevators in
the Building and/or to discontinue, temporarily or permanently, the use of any
one or more cars in any of the passenger, freight or truck elevator banks.
Section 9.5 Cleaning and Rubbish Removal. Tenant shall, at Tenant's
sole cost, provide cleaning services at the Premises pursuant to reasonable
rules and regulations established by Landlord from time to time, and use a
cleaning contractor approved by Landlord, or cause Tenant's personnel to perform
such cleaning subject to Tenant's compliance with Section 3.5 and other
provisions of this Lease and in accordance with rules and regulations imposed by
Landlord from time to time.
Section 9.6 Landlord's Generator.
(a) Landlord shall provide up to 800 amperes of 460-volt emergency
electric power service ("EPS") to Tenant for use in the Premises from the
Building emergency electric generator ("Landlord's Generator") as provided in
this Section 9.6, utilizing (i) the existing automatic transfer switch (the
"Transfer Switch") to supply a total connected load of up to 800 amperes of EPS
at 460 volts to the Premises, and (ii) the existing connection from Landlord's
Generator to the Transfer Switch. On the Commencement Date, Landlord shall make
600 amperes of EPS available to Tenant, and in the event that the Basic Capacity
shall be increased from time to time during the Term, Landlord shall increase
the quantity of EPS available to Tenant in accordance with such increase, up to
an aggregate of 800 amperes of EPS. If the Basic Capacity shall be increased to
a total in excess of 800 amperes, then, if Tenant shall request EPS in excess of
800 amperes, Landlord shall have the option to either (A) make available the
level of EPS requested by Tenant, or (B) permit Tenant to install Tenant's
Generator, pursuant to and as defined in Section 9.7.
(b) Tenant shall pay to Landlord an annual fee (the "EPS Fee") for
the period commencing on the Commencement Date through the Expiration Date,
irrespective of whether or not emergency power is ever required or used by
Tenant, in the amount of $150.00 per ampere per year, subject to increase
pursuant to Section 9.6(c) below. The EPS Fee shall be payable by Tenant to
Landlord as Additional Rent in advance in equal monthly installments on the
first day of each month during the Term. Tenant shall be responsible for the
payment of any occupancy
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tax, or any other tax (other than Landlord's income tax) imposed upon the
Additional Rent paid by Tenant pursuant to this Section 9.6.
(c) For purposes of this Lease, (i) the term "CPI" means the
Consumer Price Index for All Urban Consumers, New York, N.Y. - Northeastern,
N.J., 1982-84=100; provided, however, that if the CPI or any successor index
shall cease to be published, Landlord shall substitute therefor such other
comparable index as Landlord shall reasonably determine, and (ii) the term "CPI
Fraction" means, as of each January 1st during the Term (an "Adjustment Date"),
a fraction (A) the numerator of which is the sum of (1) the CPI in effect on the
immediately previous Adjustment Date (the "Base Index") plus (2) the amount by
which the CPI in effect on the Adjustment Date exceeds the Base Index, and (B)
the denominator of which is the Base Index. If, as of each Adjustment Date, the
CPI then in effect is greater than the Base Index, then the EPS Fee shall be
increased as of such Adjustment Date to an amount equal to the product of (I)
the EPS Fee then in effect for the immediately previous calendar year,
multiplied by (II) the CPI Fraction. In no event shall the EPS Fee ever be
reduced pursuant to this Section 9.6(c).
(d) Tenant understands and agrees that EPS will be supplied to
Tenant only if there is an interruption or failure in the supply of electric
current to the Premises, and under no other circumstances.
(e) The privilege of using the EPS service described in this Section
9.6 cannot be transferred or assigned by Tenant except with the express written
consent of Landlord, which may be withheld in Landlord's sole discretion, and
under no circumstances can this privilege be transferred or assigned to any
party who is not a tenant under this Lease.
(f) Landlord shall have the right, in Landlord's sole discretion, at
any time and from time to time during the Term, upon not less than thirty (30)
days prior written notice to Tenant, to relocate Landlord's Generator to another
area of the Building, and/or to substitute another Building generator in lieu of
Landlord's Generator, provided that there shall be no interruption in the
availability of EPS to Tenant at the level provided in Section 9.6(a). Tenant
shall cooperate with Landlord to effectuate any such relocation or substitution
of Landlord's Generator. All costs involved in such relocation or substitution
shall be borne by Landlord.
(g) Tenant acknowledges that Landlord's Generator (and any
replacement or substitute therefor), the Transfer Switch, and all connections
thereto, are and shall remain the sole property of Landlord and may not be
removed by Tenant.
(h) Upon and subject to the provisions of this Lease, Landlord shall
(i) maintain, repair and test Landlord's Generator in accordance with the
manufacturer's recommend procedural and sound industry practice and (ii) at all
times maintain all service contracts and take such other actions as may be
necessary to keep Landlord's Generator in good working order. Unless caused by
Landlord's gross negligence or willful misconduct, or by Landlord's failure to
diligently comply with the provisions of this Section 9.6(h), Landlord shall not
be liable in any way to Tenant for any delay, interruption, failure, variation
or defect in or with regard to Landlord's Generator and/or EPS, and in no event
shall Landlord be liable to Tenant for special,
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indirect or consequential damages which may result from any such delay,
interruption, failure, variation or defect.
(i) Landlord hereby agrees not to offer to Building tenants any
amounts of EPS which shall, in the aggregate be in excess of the total capacity
of power available from Landlord's Generator.
Section 9.7 Tenant's Emergency Generator.
(a) If Landlord elects, in accordance with the provisions of Section
9.6(a), to permit Tenant to install an emergency generator, then Landlord will
grant to Tenant, for Tenant's own use and not for resale purposes, a
non-exclusive license of sufficient space in the Building, at a location
designated by Landlord in its sole discretion (the "Generator Space"), for the
construction, installation, operation and use by Tenant of a diesel-powered
electric generator with a capacity adequate for Tenant's additional emergency
power requirements, in Landlord's reasonable judgment, and other related
equipment, including mountings and supports (collectively, "Tenant's
Generator"). Subject to the availability of diesel fuel in the Building's fuel
system, Tenant shall have the right to connect Tenant's Generator to one of the
Building's diesel fuel tanks as designated by Landlord and to reserve a minimum
of four thousand (4,000) gallons of diesel fuel. Tenant shall pay to Landlord a
one-time fee at Landlord's then-current rates for the diesel fuel so reserved
for Tenant, as Additional Rent within ten (10) Business Days after demand by
Landlord; Landlord's current fee for diesel fuel is Fifty and 00/100 Dollars
($50.00) per gallon of fuel reserved. Tenant shall reimburse Landlord for
Landlord's actual cost for diesel fuel consumed by Tenant's Generator, as
indicated on a meter to be installed by Landlord, at Tenant's expense, at a
point designated by Landlord along the fuel line connecting such fuel tank to
Tenant's Generator. Tenant shall pay for all fuel lines, pumps, piping, meters
and other equipment or installations necessary for the operation of Tenant's
Generator as provided in this Section 9.7. Landlord shall make available to
Tenant reasonable access to the Generator Space for the construction,
installation, maintenance, repair, operation and use of Tenant's Generator.
Tenant shall be responsible for all reinforcement and bracing necessary to
enable the floor of the Generator Space to support Tenant's Generator. If Tenant
requires riser space for electrical conduits connecting Tenant's Generator to
the Premises, or for fuel lines connecting Tenant's Generator to the Building
fuel tank designated by Landlord, then, subject to availability of riser space
in the Building, Landlord shall make such riser space available to Tenant as
provided in Section 9.8. References herein to Tenant's Generator shall be deemed
to include such riser and the electrical conduits and fuel lines appurtenant
thereto. If Tenant's Generator generates noise or exhaust likely, in Landlord's
judgment, to disturb other tenants or occupants of the Building, then Tenant
shall install sound attenuated acoustic enclosures or additional venting, as the
case may be.
(b) Tenant shall pay a license fee to Landlord for the Generator
Space, as Additional Rent in equal monthly installments in advance on the first
day of each month during the Term, as follows: (i) during the period from the
Commencement Date through the day before the fifth (5th) anniversary of the
Commencement Date, an amount per year equal to the product of the usable square
foot area of the Generator Space, multiplied by Forty and 00/100 Dollars
($40.00),
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(ii) during the period from the fifth (5th) anniversary of the Commencement Date
through the day before the tenth (10th) anniversary of the Commencement Date, an
amount per year equal to the product of the usable square foot area of the
Generator Space, multiplied by Forty-Four and 00/100 Dollars ($44.00), and (iii)
during the period from the tenth (10th) anniversary of the Commencement Date
through the Expiration Date, an amount per year equal to the product of the
usable square foot area of the Generator Space, multiplied by Forty-Eight and
00/100 Dollars ($48.00).
(c) Tenant's Generator shall be treated for all purposes of this
Lease as a Tenant Alteration, provided that Tenant shall in no event remove
Tenant's Generator on the Expiration Date or sooner termination of this Lease.
Tenant's Generator shall be treated for all purposes of this Lease as Tenant's
Alterations. If requested by Landlord, Tenant shall cause Tenant's Generator and
all equipment and installations appurtenant thereto to be designated as one or
more separate tax lots by the City of New York for all purposes of assessment
and payment of Taxes, and Tenant shall pay all Taxes imposed thereon directly to
the taxing authorities, without deduction or offset against Rent under this
Lease. If for any reason Tenant fails (with or without Landlord's consent
thereto) to so cause Tenant's Generator to be designated as one or more separate
tax lots, Tenant shall pay to Landlord monthly, as Additional Rent within thirty
(30) days after demand, the amount, determined by Landlord in its reasonable
discretion, by which Taxes imposed upon the Building have been increased on
account of Tenant's installation of Tenant's Generator.
Section 9.8 Riser Space. Landlord will make available to Tenant,
without additional charge, riser space (vertical and horizontal) sufficient to
accommodate the following: (a) the electrical conduits required to deliver the
Basic Capacity to the Premises, and (b) the electrical conduits required to
connect Landlord's Generator to the Premises. If Tenant requires additional
riser space for electrical, telecommunications, or other conduits, then upon
request by Tenant, subject to availability of riser space in the Building,
Landlord will make available riser space at Landlord's then-current rates for
riser space in the Building, which rates are currently as follows: (i) for riser
space not exceeding two inches (2") in diameter, an annual charge of $4.50 per
lineal foot, and (ii) for riser space in excess of two inches (2") in diameter
but not exceeding four inches (4") in diameter, an annual charge of $7.50 per
lineal foot. Landlord agrees that the foregoing rates for riser space will not
be increased prior to the first (1st) anniversary of the Commencement Date.
Tenant shall pay such charges for riser space monthly on the first day of each
month during the Term. All work in connection with the installation of such
conduit, including core drilling, if required, shall be performed by Tenant at
Tenant's sole cost and expense, including the cost of a fire watch and related
supervisory costs relating to any core drilling, which shall be performed in
such a manner and at such times as Landlord shall prescribe. Landlord shall make
available to Tenant reasonable access within the Building core for purposes of
such installation work.
Section 9.9 Water. Landlord shall furnish hot and cold water in such
quantities as Landlord deems sufficient for ordinary drinking, lavatory and
cleaning purposes to the Premises. If Tenant requires, uses or consumes water
for any purpose in addition to ordinary lavatory, cleaning and drinking
purposes, Landlord may install a hot water meter and a cold water meter and
thereby measure Tenant's consumption of water for all purposes. Tenant shall (a)
pay to Landlord the cost of any such meters and their installation, (b) at
Tenant's sole cost
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and expense, keep any such meters and any such installation equipment in good
working order and repair, and (c) pay to Landlord, as Additional Rent, as and
when billed therefor for water consumed, together with a charge for any required
pumping or heating thereof, all sewer rents, charges or any other taxes, rents,
levies or charges which now or hereafter are assessed, imposed or shall become a
lien upon the Premises or the Real Property pursuant to law, order or regulation
made or issued in connection with any such metered use, consumption, maintenance
or supply of water, water system, or sewage or sewage connection or system, and
in default in making such payment Landlord may pay such charges and collect the
same from Tenant.
Section 9.10 Rubbish and Removal. Tenant shall, at Tenant's sole
cost, provide refuse and rubbish removal service at the Premises at times, and
pursuant to regulations, established by Landlord from time to time.
Section 9.11 No Warranty of Landlord. Landlord does not warrant that
any of the services to be provided by Landlord to Tenant hereunder, or any other
services which Landlord may supply (a) will be adequate for Tenant's particular
purposes or as to any other particular need of Tenant or (b) will be free from
interruption, and Tenant acknowledges that any one or more such services may be
interrupted or suspended by reason of Unavoidable Delays. In addition, Landlord
reserves the right to stop, interrupt or reduce service of the Building Systems
by reason of Unavoidable Delays, or for repairs, additions, alterations,
replacements, decorations or improvements which are, in the judgment of
Landlord, necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed. Any such interruption or discontinuance
of service, or the exercise of such right by Landlord to suspend or interrupt
such service shall not (i) constitute an actual or constructive eviction, or
disturbance of Tenant's use and possession of the Premises, in whole or in part,
(ii) entitle Tenant to any compensation or to any abatement or diminution of
Fixed Rent or Additional Rent, (iii) relieve Tenant from any of its obligations
under this Lease, or (iv) impose any responsibility or liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise. Landlord shall use reasonable
efforts to minimize interference with Tenant's access to and use and occupancy
of the Premises in making any repairs, alterations, additions, replacements,
decorations or improvements; provided, however, that Landlord shall have no
obligation to employ contractors or labor at "overtime" or other premium pay
rates or to incur any other "overtime" costs or additional expenses whatsoever.
Landlord shall not be required to furnish any services except as expressly
provided in this Article 9.
ARTICLE 10. INSURANCE
Section 10.1 Tenant, at its expense, shall obtain and keep in full
force and effect a policy of commercial general liability insurance, including
premises operations and contractual liability under which the insurer agrees to
insure Tenant's obligations under Article 28, under which Tenant is named as the
insured and Landlord, Landlord's asset manager, Landlord's managing agent for
the Building, and any Lessors and any Mortgagees (whose names shall have been
furnished to Tenant) are named as additional insureds, which insurance shall
provide primary coverage without contribution from any other insurance carried
by or for the benefit of
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Xxxxxxxx, Xxxxxxxx'x managing agent or any Lessors or Mortgagees named as
additional insureds. Tenant's primary commercial general liability policy shall
contain a provision that the policy shall be noncancellable unless twenty (20)
days written notice shall have been given to Landlord and Landlord shall
similarly receive twenty (20) days notice of any material change in coverage.
The minimum limits of liability shall be a combined single limit with respect to
each occurrence in an amount of not less than $5,000,000 per location general
aggregate limit; provided, however, that Landlord shall retain the right to
require Tenant to increase said coverage to that amount of insurance which in
Landlord's reasonable judgment is then being customarily required by prudent
landlords of comparable buildings in the City of New York, and provided further
that Landlord shall require similar increases of other tenants of space in the
Building comparable to the Premises, to the extent Landlord shall then have the
right to do so under applicable leases. Tenant shall also obtain and keep in
full force and effect during the Term, (a) insurance against loss or damage by
fire, and such other risks and hazards as are insurable under then available
standard forms of "all risk" insurance policies with extended coverage
(including theft, sprinkler leakage and boiler and machinery, if applicable), to
Tenant's Property and Tenant's Alterations for the full insurable value thereof
or on a replacement cost basis; (b) Business Interruption Insurance; (c)
Workers' Compensation Insurance, as required by law; (d) New York Disability
Benefits Law Policy; and (e) such other insurance in such amounts as Landlord,
any Mortgagee or Lessor may reasonably require from time to time. All insurance
required to be carried by Tenant pursuant to the terms of this Lease shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating" of "A-"
and a "Financial Size Category" of at least "XI" or if such ratings are not then
in effect, the equivalent thereof.
Section 10.2 (a) The parties hereto do hereby waive, any and all
rights of recovery against the other, or against the officers, employees,
partners, agents and representatives of the other, for loss of or damage to the
property of the waiving party to the extent such loss or damage is insured
against under any insurance policy carried by Landlord or Tenant hereunder. In
addition, the parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Premises,
the Building and personal property, fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and subject to obtaining such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, hereby agree not to make any claim against or seek to recover from the
other for any loss or damage to its property or the property of others resulting
from fire or other hazards covered by such fire and extended coverage insurance;
provided, however, that the release, discharge, exoneration and covenant not to
xxx herein contained shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation clause or endorsements or clauses or
endorsements consenting to a waiver of right of recovery. If the payment of an
additional premium is required for the inclusion of such waiver of subrogation
or consent to waiver provision, each party shall advise the other of the amount
of any such additional premiums and the other party at its own election may, but
shall not be obligated to, pay the same. If such other party shall not elect to
pay such additional premium, the first party shall not be required to obtain
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such waiver of subrogation or consent to waiver provision. Tenant acknowledges
that Landlord shall not carry insurance on and shall not be responsible for
damage to, Tenant's Alterations (if any) or Tenant's Property, and that Landlord
shall not carry insurance against, or be responsible for any loss suffered by
Tenant due to, interruption of Tenant's business.
(b) As to each party hereto, provided such party's right of full
recovery under the applicable insurance policy is not adversely affected, such
party hereby releases the other (its servants, agents, contractors, employees
and invitees) with respect to any claim (including a claim for negligence) which
it might otherwise have against the other party for loss, damages or destruction
of the type covered by such insurance with respect to its property by fire or
other casualty i.e. in the case of Landlord, as to the Building, and, in the
case of Tenant, as to Tenant's Property and Tenant's Alterations (including
rental value or business interruption, as the case may be) occurring during the
Term.
Section 10.3 On or prior to the Commencement Date, Tenant shall
deliver to Landlord appropriate certificates of insurance required to be carried
by Tenant pursuant to this Article 10, including evidence of waivers of
subrogation required pursuant to Section 10.2. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least twenty
(20) days prior to the expiration of such policy.
ARTICLE 11. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE
Section 11.1 (a) If the Premises shall be damaged by fire or other
casualty, or if the Building shall be so damaged that Tenant shall be deprived
of reasonable access to the Premises, Tenant shall give prompt notice thereof to
Landlord, and the damage shall be repaired by and at the expense of Landlord to
substantially the condition prior to the damage, including Tenant's Alterations,
but excluding Tenant's Property. Until such repairs shall be substantially
completed, Fixed Rent and Additional Rent shall, so long as Tenant shall not be
in default beyond applicable grace or notice provisions in the payment or
performance of its obligations under this Section 11.1, be reduced in the
proportion which the area of the part of the Premises which is neither usable
nor used by Tenant bears to the total area of the Premises. Tenant shall pay to
Landlord all proceeds of insurance policies covering Tenant's Alterations, and
such proceeds shall be used by Landlord in the repair of Tenant's Alterations.
Landlord shall have no obligation to repair any damage to, or to replace, any of
Tenant's Property.
(b) Concurrently with the collection of any insurance proceeds
attributable to damage to Tenant's Alterations (or the payment by the Tenant to
Landlord of an amount equal to such insurance proceeds, pending collection of
such proceeds from its insurer), and as a condition precedent to Landlord's
obligation to commence those repairs to Tenant's Alterations required to be
performed by Landlord pursuant to this Section 11.1, Tenant shall pay to
Landlord (i) the amount of any deductible under the policy insuring Tenant's
Alterations, and (ii) the amount, if any, by which the cost of repairing and
restoring Tenant's Alterations, as estimated by a reputable independent
contractor designated by Landlord, exceeds the available insurance proceeds
therefor. The amounts due in accordance with the preceding sentence constitute
Additional Rent under this Lease and shall be payable by Tenant to Landlord upon
demand.
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Section 11.2 (a) Anything contained in Section 11.1 to the contrary
notwithstanding, if the Premises are totally damaged or are rendered wholly
untenantable, and if Landlord shall decide not to restore the Premises, or if
the Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, substantial alteration, demolition, or reconstruction of the Building
shall be required (whether or not the Premises shall have been damaged or
rendered untenantable), then in any of such events, Landlord may, not later than
sixty (60) days following the date of the damage, give Tenant a notice in
writing terminating this Lease. If this Lease is so terminated, the Term shall
expire upon the tenth (10th) day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord. Upon the termination of
this Lease under the conditions provided for in this Section 11.2, Tenant's
liability for Fixed Rent and Additional Rent shall cease as of the date of such
fire or other casualty, and any prepaid portion of Fixed Rent or Additional Rent
for any period after such date shall be refunded by Landlord to Tenant.
(b) If this Lease is terminated pursuant to the provisions of this
Article 11, then Landlord shall collect the insurance proceeds of policies
providing coverage for Tenant's Alterations as provided in Section 11.1(a)
hereof. Landlord shall retain such proceeds to the extent of sums, if any,
advanced by Landlord to Tenant with respect to any of Tenant's Alterations. The
balance of such proceeds, if any, shall be paid to Tenant.
Section 11.3 If the Premises are damaged by fire or other casualty
and are rendered wholly untenantable thereby, or if the Building shall be so
damaged that Tenant shall be deprived of reasonable access to the Premises, and
if Landlord shall elect to restore the Premises, Landlord shall, within sixty
(60) days following the date of the damage, cause a contractor or architect
selected by Landlord to give notice (the "Restoration Notice") to Tenant of the
date by which such contractor or architect believes the restoration of the
Premises shall be substantially completed. If the Restoration Notice shall
indicate that the restoration shall not be substantially completed on or before
the date which shall be ten (10) months following the date of such damage or
destruction, Tenant shall have the right to terminate this Lease by giving
written notice (the "Termination Notice") to Landlord not later than thirty (30)
days following receipt of the Restoration Notice. If Tenant gives a Termination
Notice, this Lease shall be deemed cancelled and terminated as of the date of
the giving of the Termination Notice as if such date were the Expiration Date,
and Fixed Rent and Additional Rent shall be apportioned and shall be paid or
refunded, as the case may be up to and including the date of such damage or
destruction. Notwithstanding anything set forth to the contrary in this Article
11, in the event that a fire or other casualty rendering the Premises wholly
untenantable shall occur during the final year of the Term, either Landlord or
Tenant may terminate this Lease by giving the other party a Termination Notice
as set forth herein.
Section 11.4 This Article 11 constitutes an express agreement
governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
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ARTICLE 12. EMINENT DOMAIN
Section 12.1 If (a) all of the floor area of the Premises, or so
much thereof as shall render the Premises wholly untenantable, shall be acquired
or condemned for any public or quasi-public use or purpose, or (b) a portion of
the Real Property, not including the Premises, shall be so acquired or
condemned, but by reason of such acquisition or condemnation, Tenant no longer
has means of access to the Premises, then this Lease and the Term shall end as
of the date of the vesting of title with the same effect as if that date were
the Expiration Date. In the event of any termination of this Lease and the Term
pursuant to the provisions of this Article 12, Fixed Rent and Additional Rent
shall be apportioned as of the date of sooner termination and any prepaid
portion of Fixed Rent or Additional Rent for any period after such date shall be
refunded by Landlord to Tenant.
Section 12.2 In the event of any such acquisition or condemnation of
all or any part of the Real Property, Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation. Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term or Tenant's Alterations, and Tenant hereby
expressly assigns to Landlord all of its right in and to any such award. Nothing
contained in this Section 12.2 shall be deemed to prevent Tenant from making a
separate claim in any condemnation proceedings for the then value of any
Tenant's Property included in such taking and for any moving expenses, provided
such award shall be made by the condemning authority in addition to, and shall
not result in a reduction of, the award made by it to Landlord.
Section 12.3 If only a part of the Real Property shall be so
acquired or condemned then, subject to Section 12.1, this Lease and the Term
shall continue in force and effect. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned so as to constitute tenantable Premises. From and after
the date of the vesting of title, Fixed Rent and Additional Rent shall be
reduced in the proportion which the area of the part of the Premises so acquired
or condemned bears to the total area of the Premises immediately prior to such
acquisition or condemnation.
ARTICLE 13. ASSIGNMENT AND SUBLETTING
Section 13.1 Except as otherwise expressly provided herein, Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet
(nor underlet), nor suffer, nor permit the Premises or any part thereof to be
used or occupied by others (whether for desk space, mailing privileges or
otherwise), without the prior written consent of Landlord in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, or if this Lease or the Premises or
Tenant's personal property are encumbered (whether by operation of law or
otherwise) without Landlord's consent, then Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to Fixed Rent and Additional Rent, but no assignment,
subletting, occupancy or collection shall be deemed a waiver by Landlord of the
provisions hereof, the acceptance by Landlord of the assignee,
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subtenant or occupant as a tenant, or a release by Landlord of Tenant from the
further performance by Tenant its obligations under this Lease, and Tenant shall
remain fully liable therefor. The consent by Landlord to any assignment or
subletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
subletting. In no event shall any permitted subtenant assign or encumber its
sublease or further sublet all or any portion of its sublet space, or otherwise
suffer or permit the sublet space or any part thereof to be used or occupied by
others, without Landlord's prior written consent in each instance. Any
assignment, sublease, mortgage, pledge, encumbrance or transfer in contravention
of the provisions of this Article 13 shall be void.
Section 13.2 If Tenant shall, at any time or from time to time,
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice (a "Tenant's Notice") thereof to Landlord,
which Tenant's Notice shall set forth: (a) with respect to an assignment of this
Lease, the date Tenant desires the assignment to be effective and any
consideration Tenant would receive under such assignment, (b) with respect to a
sublet of all or a part of the Premises (i) the dates upon which Tenant desires
the sublease term to commence and expire, (ii) the rental rate and other
material business terms upon which Tenant would sublet such premises, and (iii)
a description of the Premises showing the portion to be sublet, the effective or
commencement date of which shall be not less than sixty (60) nor more than one
hundred and eighty (180) days after the giving of such notice, (c) 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, (d)
current financial information with respect to the proposed assignee or
subtenant, including its most recent financial report, (e) a true and complete
copy of the proposed assignment or sublease and any other agreements relating
thereto, and (f) an agreement by Tenant to indemnify Landlord against liability
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any brokers or other Persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease.
Tenant's Notice shall be deemed an offer from Tenant to Landlord whereby
Landlord (or Landlord's designee) may, at its option, (I) sublease such space
(the "Leaseback Space") from Tenant upon the terms and conditions set forth in
Section 13.4, or terminate the Lease with respect to only the Leaseback Space,
or (II) if the proposed transaction is (1) an assignment of this Lease or (2) a
subletting of fifty percent (50%) or more of the rentable area of the Premises,
terminate this Lease. Said options may be exercised by Landlord by notice given
to Tenant at any time within sixty (60) days after Tenant's Notice has been
given by Tenant to Landlord, and during such sixty-day period, Tenant shall not
assign this Lease nor sublet such space to any Person other than Landlord.
Section 13.3 If Landlord exercises its option to terminate this
Lease with respect to all or a portion of the Premises pursuant to Section 13.2
hereof, then this Lease shall end and expire on the date that such assignment or
sublease was to be effective or commence, as the case may be, and the Fixed Rent
and Additional Rent due hereunder shall be paid and apportioned to such date. In
such event, Landlord and Tenant, upon request of either party, shall enter into
an amendment of this Lease ratifying and confirming such total or partial
termination, and setting forth appropriate modifications, if any, to the terms
and provisions hereof. Following such
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termination, Landlord shall be free to and shall have no liability to Tenant if
Landlord should lease the Premises (or any part thereof) to Tenant's prospective
assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at a rental rate equal to the product of (i) the lesser of (A) the rental
rate per rentable square foot of Fixed Rent and Additional Rent then payable
pursuant to this Lease, or (B) the rental rate per rentable square foot of rent
and additional rent set forth in Tenant's Notice, multiplied by (ii) the number
of rentable square feet of the Leaseback Space, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are contained
in Tenant's Notice, and be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease, except such as
are irrelevant or inapplicable, and except as expressly set forth in this
Article 13 to the contrary;
(b) give the subtenant the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the space covered by such sublease or any part or
parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease, and if the proposed
sublease will result in all or substantially all of the Premises being
sublet, grant Landlord or its designee the option to extend the term of
such sublease for the balance of the Term less one day;
(c) provide that any assignee or further subtenant of Landlord
or its designee, may, at Landlord's option, be permitted to make
alterations, decorations and installations in such space or any part
thereof and shall also provide in substance that any such alterations,
decorations and installations in such space therein made by any assignee
or subtenant of Landlord or its designee may be removed, in whole or in
part, by such assignee or subtenant, at its option, prior to or upon the
expiration or other termination of such sublease; provided, however, that
such assignee or subtenant shall, at its sole cost and expense, repair any
damage and injury caused by such removal; and
(d) provide that (i) the parties to such sublease expressly
negate any intention that any estate created under such sublease be merged
with any other estate held by either of said parties, (ii) any assignment
or sublease by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's uncontrolled discretion,
shall deem suitable or appropriate, (iii) Tenant shall, at Tenant's sole
cost and expense, at all times provide and permit reasonably appropriate
means of ingress to and egress from such space so sublet by Tenant to
Landlord or its designee, (iv) Landlord may, at Tenant's sole cost and
expense, make such alterations as may be required or deemed necessary by
Landlord to physically separate the subleased space from the balance of
the Premises and to comply with any legal or insurance requirements
relating to such separation, and (v) that at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease in
its then existing condition,
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subject to the obligations of the subtenant to make such repairs thereto
as may be necessary to preserve the premises demised by such sublease in
good order and condition.
Section 13.5 (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord, except as to any obligation which arises out of or
results from the negligence or willful misconduct of Tenant, or any of its
agents, servants or employees.
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease nor
shall Tenant be liable for any default under this Lease or deemed to be in
default hereunder if such default is occasioned by or arises from any act or
omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease.
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the Term, to remove any alteration, installation or improvement
made in the Leaseback Space by Landlord (or Landlord's designee).
(d) Any consent required of Tenant, as Landlord under the sublease,
shall be deemed granted if consent with respect thereto is granted by Landlord
under this Lease, and any failure of Landlord (or its designee) to comply with
the provisions of the sublease other than with respect to the payment of Fixed
Rent and Additional Rent to Tenant, shall not constitute a default thereunder or
hereunder if Landlord shall have consented to such non-compliance.
Section 13.6 In the event Landlord does not exercise either option
provided to it pursuant to Section 13.2 hereof, and provided that no Event of
Default shall have occurred and be continuing under this Lease as of the time
Landlord's consent is requested by Tenant, Landlord's consent (which must be in
writing and in form and substance satisfactory to Landlord) to the proposed
assignment or sublease shall not be unreasonably withheld or delayed; provided,
however, that:
(a) Tenant shall have complied with the provisions of Section
13.2 hereof and Landlord shall not have exercised any of its options
thereunder within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant
is engaged in a business or activity, and the Premises, or the relevant
part thereof, will be used in a manner, which (i) is in keeping with the
then standards of the Building, and (ii) does not violate the restrictions
set forth in Article 2 hereof;
(c) The proposed assignee or subtenant is a reputable Person
with sufficient financial worth considering the responsibility involved,
and Landlord has been furnished with evidence thereof;
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(d) In the event Landlord has space in the Building available
for lease, then (i) neither the proposed assignee or subtenant nor any
Person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or subtenant, is then an
occupant of any part of the Building, and (ii) the proposed assignee or
subtenant is not a Person (or Affiliate of a Person) with whom Landlord or
Landlord's agent is then, or has been within the previous six (6) month
period, negotiating in connection with rental of space in the Building;
(e) The form of the proposed sublease or instrument of
assignment shall be satisfactory to Landlord and shall comply with the
applicable provisions of this Article 13, and Tenant shall deliver a true
and complete original, fully executed counterpart of such sublease or
other instrument to Landlord promptly upon the execution and delivery
thereof;
(f) Tenant and its proposed subtenant or assignee, as the case
may be, shall execute and deliver to Landlord an agreement, in form and
substance satisfactory to Landlord, setting forth the terms and conditions
upon which Landlord shall have granted its consent to such assignment or
subletting, and the agreement of Tenant and such subtenant or assignee, as
the case may be, to be bound by the provisions of this Article 13;
(g) There shall not be more than two (2) unaffiliated
occupants of the Premises (including Tenant);
(h) The amount of the aggregate rent to be paid by the
proposed subtenant shall not be less than the then current market rent per
rentable square foot for the Premises, determined as though the Premises
were vacant, and the rental and other terms and conditions of the sublease
shall be substantially the same as those contained in Tenant's Notice;
(i) Tenant shall reimburse Landlord, as Additional Rent upon
demand, for (A) the costs and expenses incurred by Landlord in connection
with the assignment or sublease, including the costs of making
investigations as to the acceptability of the proposed assignee or
subtenant and the cost of reviewing plans and specifications proposed to
be made in connection therewith, and (B) Landlord's legal fees and
disbursements incurred in connection with the granting of any requested
consent and the preparation of Landlord's written consent to the sublease
or assignment;
(j) Tenant shall not have (i) advertised or publicized in any
way the availability of the Premises without prior notice to and approval
by Landlord, or (ii) listed the Premises for sublease or assignment with a
broker, agent or otherwise at a rental rate less than the fixed rent and
additional rent at which Landlord is then offering to lease comparable
space in the Building;
(k) The proposed occupancy shall not impose an extra burden
upon services to be supplied by Landlord to Tenant, unless Tenant and such
proposed
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subtenant or assignee shall agree with Landlord in writing to pay the
costs of such additional services; and
(l) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts
of New York State.
Except for any sublease by Tenant to Landlord or its designee
pursuant to this Article 13, each sublease pursuant to this Section 13.6 shall
be subject to all of the covenants, agreements, terms, provisions and conditions
contained in this Lease. Notwithstanding any such sublease to Landlord or any
such sublease to any other subtenant, or any acceptance of Fixed Rent or
Additional Rent by Landlord from any subtenant, Tenant 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 Tenant's part to be
observed and performed, and for 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 violation shall
be deemed to be a violation by Tenant. If Landlord shall decline to give its
consent to any proposed assignment or sublease, or if Landlord shall exercise
either of its options under Section 13.2 hereof, Tenant shall indemnify, defend
and hold harmless Landlord against and from any and all losses, liabilities,
damages, costs, and expenses (including attorneys' fees and disbursements)
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant arising from or in connection with such proposed
assignment or subletting, or by any brokers or other Persons (with whom Tenant
or its proposed assignee or subtenant may have dealt) claiming a commission or
similar compensation in connection with the proposed assignment or sublease.
Section 13.7 In the event that (a) Landlord fails to exercise either
of its options under Section 13.2 hereof and consents to a proposed assignment
or sublease, and (b) Tenant fails to execute and deliver the assignment or
sublease to which Landlord consented within one hundred twenty (120) days after
the giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of Section 13.2 hereof before assigning this Lease or
subletting all or part of the Premises.
Section 13.8 With respect to each and every sublease authorized by
Landlord under the provisions of this Lease, it is further agreed that:
(a) No sublease shall be for a term ending later than one day prior
to the Expiration Date;
(b) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord and approved
in writing by Landlord; and
(c) Each sublease shall be subject and subordinate to this Lease and
to the matters to which this Lease is or shall be subordinate, and each
subtenant by entering into a sublease is deemed to have agreed that in the
event of termination, re-entry or
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dispossession by Landlord under this Lease, Landlord may, at its option,
take over all of the right, title and interest of Tenant, as sublandlord,
under such sublease, and such subtenant shall, at Landlord's option,
attorn to Landlord pursuant to the then executory provisions of such
sublease, except that Landlord shall not (i) be liable for any previous
act or omission of Tenant under such sublease, (ii) be subject to any
counterclaim, offset or defense, not expressly provided in such sublease,
which theretofore accrued to such subtenant against Tenant, (iii) be bound
by any previous modification of such sublease or by any previous
prepayment of more than one month's Fixed Rent or of any Additional Rent,
or (iv) be obligated to perform any work in the subleased space or to
prepare it for occupancy, and in connection with such attornment, the
subtenant shall execute and deliver to Landlord any instruments Landlord
may reasonably request to evidence and confirm such attornment. Each
subtenant or licensee of Tenant shall be deemed, automatically upon and as
a condition of its occupying or using the Premises or any part thereof, to
have agreed to be bound by the terms and conditions set forth in this
Article 13. The provisions of this Article 13 shall be self-operative and
no further instrument shall be required to give effect to this provision.
Section 13.9 If Landlord shall consent to any assignment of this
Lease or to any sublease, or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall, in consideration therefor, pay to
Landlord, as Additional Rent:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to (i) all sums and other consideration paid
to Tenant by the assignee for or by reason of such assignment (including
sums paid for Tenant's Property, less, in the case of a sale thereof, the
then net unamortized or undepreciated cost thereof, determined on the
basis of Tenant's federal income tax returns) less (ii) all expenses
reasonably and actually incurred by Tenant on account of brokerage
commissions and attorneys' fees in connection with such assignment; or
(b) In the case of a sublease, an amount equal to (i) all rents,
additional charges or other consideration payable to Tenant under the
sublease 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 hereof
(including sums paid for the sale or rental of Tenant's Property, less, in
the case of the sale thereof, the then net unamortized or undepreciated
cost thereof, determined on the basis of Tenant's federal income tax
returns) less (ii) all expenses reasonably and actually incurred by Tenant
on account of brokerage commissions and attorneys' fees in connection with
such sublease. The sums payable under this clause shall be paid by Tenant
to Landlord as Additional Rent as and when payable by the subtenant to
Tenant.
Section 13.10 (a) If Tenant is a corporation (but not a public
corporation), the provisions of Section 13.1 hereof shall apply to a transfer
(by one or more transfer(s)), of a majority of the stock of Tenant as if such
transfer of a majority of the stock of Tenant were an assignment of this Lease,
provided, however, that the sale of Tenant's publicly traded securities
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on a nationally recognized securities exchange shall not be deemed an assignment
for the purpose of this Article 13. It is expressly understood that the term
"transfer(s)" shall be deemed to include the issuance of new stock which results
in a majority of the stock of Tenant being held by Persons which do not hold a
majority of the stock of Tenant on the date hereof. The foregoing shall not
apply to transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred;
provided, however, that (i) such transfer shall have been made for a legitimate
independent business purpose and not for the principal purpose of transferring
this Lease, (ii) the successor to Tenant shall have a net worth, computed in
accordance with generally accepted accounting principles, at least equal to the
greater of (A) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (B) the net worth of Tenant herein named on the
date of this Lease, and (iii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
(b) If Tenant is a partnership, the provisions of Section 13.1
hereof shall apply to a transfer (by one or more transfers) of a majority
interest in the partnership, as if such transfer were an assignment of this
Lease.
(c) The limitations set forth in this Section 13.10 shall be deemed
to apply to subtenant(s) and assignee(s) of this Lease, if any, and any transfer
by any such Person in violation of this Section 13.10 shall be deemed to be a
transfer in violation of Section 13.1.
(d) A modification, amendment or extension of a sublease shall be
deemed a sublease for the purposes of Section 13.1 hereof, and a takeover
agreement shall be deemed a transfer of this Lease for the purposes of Section
13.1 hereof.
Section 13.11 Tenant may, without Landlord's consent, but upon not
less than ten (10) days' prior notice to Landlord, permit any Affiliate of
Tenant to sublet all or part of the Premises for any Permitted Use, or assign
this Lease to any Affiliate, subject however to compliance with Tenant's
obligations under this Lease. Such sublease shall not be deemed to vest in any
such Affiliate any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder.
Section 13.12 (a) Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 13.1 hereof or without Landlord's consent
to the extent permitted under Sections 13.10 and 13.11 hereof, shall be made
only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed from and after the
effective date of such assignment or transfer, and whereby the assignee shall
agree that the provisions in Section 13.1 hereof shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future
assignments and transfers.
(b) The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any
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respect by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord by way of mortgage or otherwise, extending the time, or
modifying any of the obligations of this Lease, or by any waiver or failure of
Landlord, or any grantee or assignee of Landlord by way of mortgage or
otherwise, to enforce any of the obligations of this Lease.
(c) The listing of any name other than that of Tenant, whether on
the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of Premises or to the use or occupancy thereof
by others. Any such listing shall constitute a privilege extended by Landlord,
revocable at Landlord's will by notice to Tenant, provided that Landlord shall
not unreasonably revoke such privilege as to any Affiliate of Tenant, or any
subtenant of Tenant or assignee of this Lease approved by Landlord pursuant to
this Article 13.
Section 13.13 Notwithstanding any of the foregoing to the contrary,
where Landlord has herein expressly agreed that its consent to an assignment of
this Lease or a subletting of the Premises shall not be unreasonably withheld,
Tenant may dispute the reasonableness of the withholding by Landlord of its
consent to an assignment of this Lease or to a subletting of the Premises by
Tenant, by arbitration of the issue in The City of New York in accordance with
the rules and regulations for commercial matters then obtaining of the American
Arbitration Association ("AAA") or its successor pursuant to a submission
effected within ten (10) business days after written notice of the withholding
of consent has been given by Landlord to Tenant. If the AAA is not then in
existence or does not desire to act, then Tenant may apply within said ten (10)
business day period to any judge of any court of competent jurisdiction in The
City of New York for the appointment of an arbitrator to hear the parties and
determine the matter. Provided the rules and regulations of the AAA, or of the
court, as the case may be, so permit, the AAA, or such court, shall select a
single arbitrator within two (2) business days after such submission or
application, the arbitration shall commence two (2) business days thereafter and
shall be conducted for at least seven (7) hours on the date of commencement
until completion, each party shall have no more than a total of two (2) hours to
present its case and to cross examine or interrogate persons supplying
information or documentation on behalf of the other party, and the arbitrator
shall make a determination within three (3) business days after conclusion of
the arbitration. The arbitrator shall have at least ten (10) years' experience
in leasing of commercial properties in New York City similar to the Building.
Any such determination shall be final and binding upon the parties, whether or
not a judgment shall be entered in any court; and all actions necessary to
implement the decision of the AAA shall be undertaken as soon as possible, but
in no event later than ten (10) business days after the rendering of said
decision. The judgment upon the dispute or any award rendered may be entered in
any court having jurisdiction thereof. All fees payable to the AAA or of the
court, as the case may be, for services rendered in connection with the
resolution of the dispute shall be paid by the party suffering the adverse
decision of the AAA,, or of the court, as the case may be. If Landlord shall
fail to take any action hereunder which shall cause any delay in the
commencement or completion of the arbitration proceeding herein described beyond
the number of days provided for above, then Tenant shall be deemed to be the
prevailing party in the dispute and a decision shall be rendered in Tenant's
favor.
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Section 13.14 Landlord acknowledges that the colocation of
communications equipment not owned by Tenant at the Premises shall not
constitute an assignment or sublease requiring the consent of Landlord
hereunder. For purposes of this Lease, "colocation" means the installation by
Tenant's customers of communications equipment in Tenant's facilities, in the
ordinary course of Tenant's business, for which such customers pay fees based
upon the use of and access to such facilities, as distinct from the renting of
floor area. In no event shall any colocation arrangement entered into by Tenant
entail the construction of a separate entrance to the Premises from the Building
common corridor for any party thereto other than Tenant.
ARTICLE 14. ACCESS TO PREMISES
Section 14.1 Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use and maintain concealed
ducts, pipes and conduits in and through the Premises, provided that such use
shall not reduce the usable square footage of the Premises by an amount in
excess of one percent (1%) of the rentable square footage of the Premises.
Landlord or Landlord's agents shall have the right to enter the Premises at all
reasonable times upon reasonable prior notice (except no such prior notice shall
be required in case of emergency), which notice may be oral, to examine the
same, to show them to prospective purchasers, Mortgagees, Lessors or lessees of
the Building and their respective agents and representatives or prospective
tenants of the Premises, and to make such repairs, alterations, improvements or
additions (a) as Landlord may deem necessary or desirable to the Premises or to
any other portion of the Building, or (b) which Landlord may elect to perform
following Tenant's failure to make repairs or perform any work which Tenant is
obligated to make or perform under this Lease, or (c) for the purpose of
complying with Legal Requirements, and Landlord shall be allowed to take all
material into and upon the Premises that may be required therefor without the
same constituting an eviction or constructive eviction of Tenant in whole or in
part and Fixed Rent and Additional Rent will not be abated while said repairs,
alterations, improvements or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise.
Section 14.2 If Tenant shall not be present when for any reason
entry into the Premises shall be necessary, Landlord or Landlord's agents may
enter the same without rendering Landlord or such agents liable therefor (if
during such entry Landlord or Landlord's agents shall accord reasonable care to
Tenant's property), and without in any manner affecting this Lease. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever for the care, supervision
or repair of the Building or any part thereof, other than as herein provided.
Notwithstanding the foregoing, Landlord hereby recognizes that the Premises will
include a telecommunications switch area which contains privileged and
confidential telecommunications and computer equipment and that such equipment
is highly susceptible to damage. Landlord agrees to use reasonable efforts not
to compromise such confidentiality and/or cause damage to such equipment.
Therefore, Landlord agrees, except in the event of an emergency, Landlord may
enter upon or pass through the switch area of the Premises only when accompanied
by a representative of Tenant, provided that Tenant shall make such
representative available upon such notice from Landlord as shall be reasonable
in light of the circumstances.
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Section 14.3 Landlord shall have the right from time to time to
alter the Building and, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building and
to change the name, number or designation by which the Building is commonly
known. All parts (except surfaces facing the interior of the Premises) of all
walls, windows and doors bounding the Premises (including exterior Building
walls, exterior core corridor walls, exterior doors and entrances other than
doors and entrances solely servicing the Premises), all balconies, terraces and
roofs adjacent to the Premises, all space in or adjacent to the Premises used
for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms,
heating, air cooling, plumbing and other mechanical facilities, service closets
and other Building facilities are not part of the Premises, and Landlord shall
have the use thereof, as well as access thereto through the Premises for the
purposes of operation, maintenance, alteration and repair.
Section 14.4 In the performance of any work in the Premises referred
to in this Article 14, Landlord shall use all reasonable efforts to minimize
interference with Tenant's use of the Premises, subject to Unavoidable Delays,
and without any obligation to employ overtime labor.
ARTICLE 15. CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in violation
of the certificate of occupancy at such time issued for the Premises or for the
Building and in the event that any department of the City or State of New York
shall hereafter contend or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such certificate of occupancy, Tenant shall, upon five (5) days' written
notice from Landlord or any Governmental Authority, immediately discontinue such
use of the Premises. Failure by Tenant to discontinue such use after such notice
shall be considered a default in the fulfillment of a material covenant of this
Lease and Landlord shall have the right to terminate this Lease immediately, and
in addition thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord by and pursuant to the provisions of
Articles 16 and 17 hereof.
ARTICLE 16. DEFAULT
Section 16.1 Each of the following events shall be an "Event of
Default" hereunder:
(a) if Tenant defaults in the payment when due of any
installment of Fixed Rent, and such default shall continue for a period of
five (5) days, or in the payment when due of any Additional Rent, and such
default continues for a period of five (5) days after notice thereof from
Landlord; provided, however, that if Tenant shall default in the timely
payment of Fixed Rent or Additional Rent, and any such default shall occur
more than two times in any period of twelve (12) consecutive months, then,
notwithstanding that such defaults shall have each been cured within the
applicable period provided above, upon any further similar default,
Landlord may serve a three days'
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notice of termination upon Tenant without affording to Tenant an
opportunity to cure such further default; or
(b) if Tenant's interest in this Lease is transferred in
violation of Article 13 hereof; or
(c) if the Premises or a substantial portion thereof becomes
vacant or abandoned; or
(d) (i) if Tenant admits in writing its inability to pay its
debts as they become due; or
(ii) if Tenant commences or institutes any case, proceeding or
other action (A) seeking relief as a debtor, or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
property; or
(iii) if Tenant makes a general assignment for the benefit of
creditors; or
(iv) if any case, proceeding or other action is commenced or
instituted against Tenant (A) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (B) seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property,
which either (1) results in any such entry of an order for relief,
adjudication of bankruptcy or insolvency or such an appointment or
the issuance or entry of any other order having a similar effect, or
(2) remains undismissed for a period of ninety (90) days; or
(v) if any case, proceeding or other action is commenced or
instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
any substantial part of its property which results in the entry of
an order for any such relief which has not been vacated, discharged,
or stayed or bonded pending appeal within ninety (90) days from the
entry thereof; or
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(vi) if Tenant takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clauses (ii), (iii), (iv) or (v) of this
Section 16.1(d); or
(vii) if a trustee, receiver or other custodian is appointed
for any substantial part of the assets of Tenant, which appointment
is not vacated or effectively stayed within seven (7) Business Days,
or if any such vacating or stay does not thereafter remain in
effect; or
(e) if Tenant defaults in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be
observed or performed and Tenant fails to remedy such default within
thirty (30) days after notice by Landlord to Tenant of such default, or,
if such default is of such a nature that it cannot be completely remedied
within said period of thirty (30) days, if Tenant fails to commence to
remedy such default within such thirty-day period, or fails thereafter to
diligently prosecute to completion all steps necessary to remedy such
default; or
(f) if Tenant or any Affiliate of Tenant defaults beyond
applicable grace and notice periods in the payment of any fixed rent or
additional rent under any other lease of space in the Building, or if any
such lease is terminated by Landlord as a result of a default by the
tenant thereunder.
Section 16.2 (a) If an Event of Default occurs, Landlord may at any
time thereafter give written notice to Tenant stating that this Lease and the
Term shall expire and terminate on the date specified in such notice, which date
shall not be less than seven (7) days after the giving of such notice. If
Landlord gives such notice, this Lease and the Term and all rights of Tenant
under this Lease shall expire and terminate as if the date set forth in such
notice were the Fixed Expiration Date and Tenant immediately shall quit and
surrender the Premises, but Tenant shall remain liable as hereinafter provided.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(d), or by federal or state statute, then, following
the expiration of any such stay, or if the trustee appointed in any such
proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease, Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on seven (7) days' notice to Tenant, Tenant as
debtor-in-possession or said trustee and upon the expiration of said seven (7)
day period this Lease shall cease and expire as set forth above and Tenant,
Tenant as debtor-in-possession or said trustee shall immediately quit and
surrender the Premises as aforesaid.
Section 16.3 If, at any time, (a) Tenant shall comprise two (2) or
more Persons, (b) Tenant's obligations under this Lease shall have been
guaranteed by any Person other than
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Tenant, or (c) Tenant's interest in this Lease shall have been assigned, the
word "Tenant," as used in Section 16.1(d), shall be deemed to mean any one or
more of the Persons primarily or secondarily liable for Tenant's obligations
under this Lease. Any monies received by Landlord from or on behalf of Tenant
during the pendency of any proceeding of the types referred to in Section
16.1(d) shall be deemed paid as compensation for the use and occupation of the
Premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of Fixed Rent and/or Additional Rent or a waiver on the
part of Landlord of any rights under this Lease.
ARTICLE 17. REMEDIES AND DAMAGES
Section 17.1 (a) If an Event of Default shall occur, and this Lease
and the Term shall expire and come to an end as provided in Article 16:
(i) Tenant shall quit and peacefully surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time
after such Event of Default or after the date upon which this Lease and
the Term shall expire and come to an end, re-enter the Premises or any
part thereof, without notice, either by summary proceedings, or by any
other applicable action or proceeding, or by legal force or other legal
means (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any
other Persons from the Premises and remove any and all of their property
and effects from the Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or any part
or parts of the Premises from time to time, either in the name of Landlord
or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and
upon such other conditions, which may include concessions and free rent
periods, as Landlord, in its sole discretion, may determine; provided,
however, that Landlord shall have no obligation to relet the Premises or
any part thereof and shall in no event be liable for refusal or failure to
relet the Premises or any part thereof, or, in the event of any such
reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant
of any liability under this Lease or otherwise affect any such liability,
and Landlord, at Landlord's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical
changes in and to the Premises as Landlord, in its sole discretion,
considers advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Tenant of any liability under this
Lease or otherwise affecting any such liability.
(b) Tenant hereby waives the service of any notice of intention to
re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all Persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such Persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (i) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge,
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(ii) any re-entry by Landlord, or (iii) any expiration or termination of this
Lease and the Term, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. The
words "re-enter," re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings. In the event of a
breach or threatened breach by Tenant, or any Persons claiming through or under
Tenant, of any term, covenant or condition of this Lease, Landlord shall have
the right to enjoin such breach and the right to invoke any other remedy allowed
by law or in equity as if re-entry, summary proceedings and other special
remedies were not provided in this Lease for such breach. The rights to invoke
the remedies hereinbefore set forth are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in equity.
Section 17.2 (a) If this Lease and the Term shall expire and come to
an end as provided in Article 16, or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent and Additional Rent
payable under this Lease by Tenant to Landlord to the date upon which this
Lease and the Term shall have expired and come to an end or to the date of
re-entry upon the Premises by Landlord, as the case may be;
(ii) Tenant also shall be liable for and shall pay to Landlord, as
damages, any deficiency (the "Deficiency") between (A) Fixed Rent and
Additional Rent for the period which otherwise would have constituted the
unexpired portion of the Term (conclusively presuming the Additional Rent
for each year thereof to be the same as was payable for the year
immediately preceding such termination or re-entry), and (B) the net
amount, if any, of rents collected under any reletting effected pursuant
to the provisions of Section 17.1(a)(ii) for any part of such period
(first deducting from the rents collected under any such reletting all of
Landlord's expenses in connection with the termination of this Lease,
Landlord's re-entry upon the Premises and with such reletting including
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees and disbursements, alteration costs and other expenses of preparing
the Premises for such reletting). Tenant shall pay the Deficiency in
monthly installments on the days specified in this Lease for payment of
installments of Fixed Rent, and Landlord shall be entitled to recover from
Tenant each monthly Deficiency as the same shall arise. No suit to collect
the amount of the Deficiency for any month shall prejudice Landlord's
right to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency as and for liquidated and agreed final damages, a sum
equal (A) to the amount by which the Fixed Rent and Additional Rent for
the period which otherwise would have constituted the unexpired portion of
the Term (conclusively presuming the Additional Rent for each year thereof
to be the same as was payable for the year immediately preceding such
termination or re-entry) exceeds
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(B) the then fair and reasonable rental value of the Premises, including
Additional Rent for the same period, both discounted to present value at
the rate of four percent (4%) per annum less (C) the aggregate amount of
Deficiencies previously collected by Landlord pursuant to the provisions
of Section 17.2(a)(ii) for the same period. If, before presentation of
proof of such liquidated damages to any court, commission or tribunal,
Landlord shall have relet the Premises or any part thereof for the period
which otherwise would have constituted the unexpired portion of the Term,
or any part thereof, the amount of net rents collected in connection with
such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Premises so relet during the
term of the reletting.
(b) If Landlord shall relet the Premises, or any part thereof,
together with other space in the Building, the net rents collected under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Nothing contained
in Article 16 or this Article 17 shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section
17.2.
ARTICLE 18. FEES AND EXPENSES
Section 18.1 If an Event of Default shall occur under this Lease or
if Tenant shall do or permit to be done any act or thing upon the Premises which
would cause Landlord to be in default under any Superior Lease or Mortgage, or
if Tenant shall fail to comply with its obligations under this Lease and the
preservation of property or the safety of any tenant, occupant or other person
is threatened, Landlord may, after reasonable prior notice to Tenant except in
an emergency, perform the same for the account of Tenant or make any expenditure
or incur any obligation for the payment of money for the account of Tenant. All
amounts expended by Landlord in connection with the foregoing, including
reasonable attorneys' fees and disbursements in instituting, prosecuting or
defending any action or proceeding or recovering possession, and the cost
thereof, with interest thereon at the Default Rate, shall be deemed to be
Additional Rent hereunder and shall be paid by Tenant to Landlord within ten
(10) days of rendition of any xxxx or statement to Tenant therefor.
Section 18.2 If Tenant shall fail to pay any installment of Fixed
Rent and/or Additional Rent when due, Tenant shall pay to Landlord, in addition
to such installment of Fixed Rent and/or Additional Rent, as the case may be, as
a late charge and as Additional Rent, a sum equal to interest at the Default
Rate on the amount unpaid, computed from the date such payment was due to and
including the date of payment.
ARTICLE 19. NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents have made no warranties,
representations, statements or promises with respect to (a) the rentable and
usable areas of the Premises or the
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Building, (b) the amount of any current or future Labor Rates or Taxes, (c) the
compliance with applicable Requirements of the Premises or the Building, or (d)
the suitability of the Premises for any particular use or purpose. No rights,
easements or licenses are acquired by Tenant under this Lease, by implication or
otherwise, except as expressly set forth herein. This Lease (including any
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all understandings
and agreements previously made between Landlord and Tenant are merged in this
Lease, which alone fully and completely expresses their agreement. Tenant is
entering into this Lease after full investigation, and is not relying upon any
statement or representation made by Landlord not embodied in this Lease.
ARTICLE 20. END OF TERM
Section 20.1 Upon the expiration or other termination of this Lease,
Tenant shall quit and surrender to Landlord the Premises, vacant, broom clean,
in good order and condition, ordinary wear and tear and damage for which Tenant
is not responsible under the terms of this Lease excepted, and Tenant shall
remove all of Tenant's Property from the Premises, and this obligation shall
survive the expiration or sooner termination of the Term. If the last day of the
Term or any renewal thereof falls on Saturday or Sunday, this Lease shall expire
on the Business Day immediately preceding. Tenant expressly waives, for itself
and for any Person claiming through or under Tenant, any rights which Tenant or
any such Person may have under the provisions of Section 2201 of the New York
Civil Practice Law and Rules and of any successor law of like import then in
force in connection with any holdover summary proceedings which Landlord may
institute to enforce the foregoing provisions of this Article 20.
Section 20.2 Tenant acknowledges that Tenant or any subtenant of
Tenant remaining in possession of the Premises after the expiration or earlier
termination of this Lease would create an unusual hardship for Landlord and for
any prospective tenant. Tenant, therefore, covenants that if for any reason
Tenant or any subtenant of Tenant shall fail to vacate and surrender possession
of the Premises or any part thereof on or before the expiration or earlier
termination of this Lease and the Term, then Tenant's continued possession of
the Premises shall be as a "month-to-month" tenant, during which time, without
prejudice and in addition to any other rights and remedies Landlord may have
hereunder or at law, Tenant shall pay to Landlord for each month and for each
portion of any month during which Tenant holds over, an amount equal to two (2)
times the total monthly amount of Fixed Rent and Additional Rent payable
hereunder. The provisions of this Section 20.2 shall not in any way be deemed to
(a) permit Tenant to remain in possession of the Premises after the Expiration
Date or sooner termination of this Lease or (b) imply any right of Tenant to use
or occupy the Premises upon expiration or termination of this Lease and the
Term, and no acceptance by Landlord of payments from Tenant after the Expiration
Date or sooner termination of the Term shall be deemed to be other than on
account of the amount to be paid by Tenant in accordance with the provisions of
this Article 20. Tenant's obligations under this Article shall survive the
expiration or earlier termination of this Lease.
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ARTICLE 21. QUIET ENJOYMENT
Provided no Event of Default has occurred and is continuing, Tenant
may peaceably and quietly enjoy the Premises without hindrance by Landlord or
any Person lawfully claiming through or under Landlord, subject, nevertheless,
to the terms and conditions of this Lease.
ARTICLE 22. NO WAIVER; NON-LIABILITY
Section 22.1 No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender shall be valid unless in writing and
signed by Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Premises prior to the termination of this
Lease. The delivery of keys to any employee of Landlord or of Landlord's agents
shall not operate as a termination of this Lease or a surrender of the Premises.
Any Building employee to whom any property shall be entrusted by or on behalf of
Tenant shall be deemed to be acting as Tenant's agent with respect to such
property and neither Landlord nor its agents shall be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise.
Section 22.2 The failure of Landlord to seek redress for violation
of, or to insist upon the strict performance of, any covenant or condition of
this Lease, or any of the Rules and Regulations set forth or hereafter adopted
by Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all of the force and effect of an original
violation. The receipt by Landlord of Fixed Rent and/or Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant or any other tenant
in the Building shall not be deemed a waiver of any such Rules and Regulations.
Landlord shall not enforce the Rules and Regulations against Tenant in a
discriminatory manner. No provision of this Lease shall be deemed to have been
waived by Landlord, unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
Fixed Rent or any Additional Rent shall be deemed to be other than on account of
the next installment of Fixed Rent or Additional Rent, as the case may be, or as
Landlord may elect to apply same, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Fixed Rent or
Additional 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 Fixed Rent or Additional Rent or pursue any other remedy in this
Lease provided. Any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of this Lease in whole or in
part unless such executory agreement is in writing and signed by the party
against whom enforcement of the change, modification, discharge or abandonment
is sought. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean the written consent or approval of Landlord and no
consent or approval of
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Landlord shall be effective for any purpose unless such consent or approval is
set forth in a written instrument executed by Landlord.
Section 22.3 (a) Neither Landlord nor its agents shall be liable for
any injury or damage to persons or property or interruption of Tenant's business
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
resulting from the gross negligence or willful misconduct of Landlord or its
agents; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
latent defect in the Premises or in the Building (except that Landlord shall be
required to repair the same to the extent provided in Article 5). Nothing in the
foregoing shall affect any right of Landlord to the indemnity from Tenant to
which Landlord may be entitled under Article 28 in order to recoup for payments
made to compensate for losses of third parties.
(b) If, at any time or from time to time, any windows of the
Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever, or any of such windows are permanently closed, darkened or
bricked-up if required by any Legal Requirement or related to any construction
upon property adjacent to the Real Property by parties other than Landlord,
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 Fixed
Rent or Additional Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction or constructive eviction of Tenant from the
Premises.
ARTICLE 23. WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, or for the enforcement of any remedy under any statute, emergency or
otherwise. If Landlord commences any summary proceeding against Tenant, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of
such counterclaim), and will not seek to consolidate such proceeding with any
other action which may have been or will be brought in any other court by
Tenant.
ARTICLE 24. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Fixed Rent and
Additional Rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed will not be affected, impaired
or excused because Landlord is unable to fulfill any of its obligations under
this Lease expressly or impliedly to be performed by Landlord or because
Landlord is unable to make, or is delayed in making any repairs, additions,
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alterations, improvements or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures, if Landlord is prevented or delayed from so
doing by reason of strikes or labor troubles or by accident, or by any cause
whatsoever reasonably beyond Landlord's control, including laws, governmental
preemption in connection with a national emergency or by reason of any Legal
Requirements or by reason of the conditions of supply and demand which have been
or are affected by war or other emergency ("Unavoidable Delays").
ARTICLE 25. BILLS AND NOTICES
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 shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt),
sent by a nationally recognized overnight courier service, or sent by registered
or certified mail (return receipt requested) and addressed:
if to Tenant, as follows: (a) at Tenant's address at the Premises,
with a copy to (b) Fried Frank, Harris, Xxxxxxx & Xxxxxxxx, Attention:
Xxxxxxxx Mechanic, Esq., or (c) at any place where Tenant or any agent or
employee of Tenant may be found if mailed subsequent to Tenant's
abandoning or surrendering the Premises;
if to Landlord, as follows: 111 Chelsea LLC, c/o Taconic Investment
Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxx
Xxxxxxx, with a copy to: Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.
Any such xxxx, statement, consent, notice, demand, request or other
communication given as provided in this Article 25 shall be deemed to have been
rendered or given (i) on the date when it shall have been hand delivered, (ii)
seven (7) Business Days from the date when it shall have been mailed, or (iii)
one (1) Business Day from the date when it shall have been sent by overnight
courier service.
ARTICLE 26. RULES AND REGULATIONS
Landlord reserves the right, from time to time, to adopt additional
reasonable and non-discriminatory Rules and Regulations and to amend the Rules
and Regulations then in effect. Tenant and Tenant's contractors, employees,
agents, and licensees shall comply with the Rules and Regulations, as so
supplemented or amended. Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and Regulations
or terms, covenants or conditions in any other lease against any other tenant,
and Landlord shall not be liable to Tenant for violation of the same by any
other tenant, its employees, agents, visitors or licensees. If there shall be
any inconsistencies between this Lease and the Rules and Regulations, the
provisions of this Lease shall prevail.
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ARTICLE 27. BROKER
Section 27.1 Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with any broker in connection with this Lease
other than Insignia/ESG, Inc. ("Broker") and that to the best of its knowledge
and belief, no other broker, finder or similar Person procured or negotiated
this Lease or is entitled to any fee or commission in connection herewith.
Section 27.2 Each of Landlord and Tenant shall indemnify, defend,
protect and hold the other party harmless from and against any and all losses,
liabilities, damages, claims, judgments, fines, suits, demands, costs, interest
and expenses of any kind or nature (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than Broker) arising out
of any dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, or the above representation being false.
The provisions of this Article 27 shall survive the expiration or earlier
termination of the Term.
ARTICLE 28. INDEMNITY
Section 28.1 Tenant shall not do or permit any act or thing to be
done upon the Premises which may subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of law or of any Legal Requirement, but shall exercise
such control over the Premises as to fully protect Landlord against any such
liability. Tenant shall defend, indemnify and save harmless Landlord from and
against (a) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors; (b) all claims against Landlord arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in or about the Premises,
provided, however, that Tenant shall have no obligation to indemnify Landlord
for any damage arising from the negligent or intentional acts or omissions of
Landlord resulting from Landlord's or Landlord's contractors', subcontractors'
or agents' entry into the Premises, if and to the extent such damage shall not
be covered by the insurance required to be maintained by Tenant hereunder; (c)
all claims against Landlord arising from any accident, injury or damage
occurring outside of the Premises but anywhere within or about the Real
Property, where such accident, injury or damage results or is claimed to have
resulted from an act, omission or negligence of Tenant or Tenant's agents,
employees, and (d) any breach, violation or nonperformance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
(including attorneys' fees and disbursements) incurred in or in connection with
any such claim or proceeding brought thereon, and the defense thereof.
Section 28.2 Tenant agrees to defend, indemnify and hold harmless
Landlord and any partner, shareholder, director, officer, principal, employee or
agent, directly and indirectly, of Landlord, from and against all obligations
(including removal and remedial
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actions), losses, claims, suits, judgments, liabilities, penalties, damages
(including consequential and punitive damages), costs and expenses (including
attorneys' and consultants' fees and expenses) of any kind or nature whatsoever
that may at any time be incurred by, imposed on or asserted against Landlord or
any such party directly or indirectly based on, or arising or resulting from (a)
the actual or alleged presence of Hazardous Materials on the Premises or in the
Building which is caused or permitted by Tenant, and (b) any Environmental Claim
relating in any way to Tenant's operation or use of the Premises or the
Building. The provisions of this Section 28.2 shall survive the expiration or
sooner termination of this Lease.
Section 28.3 Landlord agrees to defend, indemnify and hold harmless
Tenant and any partner, shareholder, director, officer, principal, employee or
agent, directly and indirectly, of Tenant, from and against all obligations,
losses, claims, suits, judgments, liabilities, penalties, damages (including
consequential and punitive damages), costs and expenses (including attorneys'
and consultants' fees and expenses) of any kind or nature whatsoever that may at
any time be incurred by, imposed on or asserted against Tenant or any such party
arising from any accident, injury or damage whatsoever caused to any person or
to the property of any person and occurring prior to, during or (if Tenant shall
continue to use and occupy the Premises) after the expiration of the Term,
occurring in or about the common areas of the Building.
ARTICLE 29 INTENTIONALLY DELETED.
ARTICLE 30. SECURITY DEPOSIT
Section 30.1 Tenant has deposited with Landlord the sum of One
Hundred Thirteen Thousand Four Hundred Forty and 00/100 Dollars ($113,440.00) as
security for the full and faithful performance of every provision of this Lease
to be performed by Tenant (all or any part of such amount, the "Security
Deposit"). If an Event of Default shall have occurred with respect to any
provision of this Lease, including the provisions relating to the payment of
Fixed Rent and Additional Rent, Landlord may use, apply or retain all or any
part of this Security Deposit for the payment of any Fixed or Additional Rent or
any other sum in default or for the payment of any other amount which Landlord
may spend or become obligated to spend by reason of such Event of Default, or to
compensate Landlord for any other loss, cost or damage which Landlord may suffer
by reason of such Event of Default. Landlord shall give Tenant notice
contemporaneously with such use or application of any portion of the Security
Deposit. Tenant shall, within five (5) days after the giving of such notice,
deposit with Landlord cash in an amount sufficient to restore the Security
Deposit to the amount then required pursuant to the terms of this Article 30
(Tenant's obligation to make such payment shall be deemed a requirement that
Tenant pay an item of Additional Rent) and Tenant's failure to do so shall be a
breach of this Lease. Landlord shall deposit the Security Deposit in a standard
interest-bearing security deposit account in a bank located in New York State.
The interest shall be paid to Tenant annually, within a reasonable time
following the date upon which the depository bank customarily makes interest
payments. Landlord shall not be required to credit Tenant with any interest for
any period during which Landlord does not receive interest on the Security
Deposit. Tenant shall not assign or encumber any part of the Security Deposit,
and no assignment or encumbrance by Tenant of all of any part of the Security
Deposit shall be binding upon
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Landlord, whether made prior to, during, or after the Term. Landlord shall not
be required to exhaust its remedies against Tenant or against the Security
Deposit before having recourse to any other form of security held by Landlord
and recourse by Landlord to any Security Deposit shall not affect any remedies
of Landlord which are provided in this Lease or which are available to Landlord
in law or in equity. So long as no Event of Default shall have occurred and be
continuing, the Security Deposit or any balance thereof shall be returned to
Tenant reasonably promptly after the expiration or sooner termination (other
than a termination pursuant to Article 16 hereof) of the Term and Tenant's
surrender to Landlord of the Premises. In the event the Building is sold,
Landlord shall transfer the Security Deposit to the new owner and Landlord shall
thereupon be released by Tenant from all liability for the return of said
Security Deposit; and Tenant agrees to look to the new owner solely for the
return of the Security Deposit. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Landlord shall use
reasonable efforts to notify or cause Tenant to be notified in the event of any
transfer of the Building.
Section 30.2 In lieu of a cash deposit, Tenant may deliver to
Landlord a clean, irrevocable, non-documentary and unconditional Letter of
Credit issued by and drawn upon any commercial bank, trust company, national
banking association or savings and loan association having offices for banking
purposes in the City of New York and which is a member of the New York
Clearinghouse Association (the "Issuing Bank") and which (or the parent company
of which) shall have outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by Xxxxx'x Investors Service and "AA" or better by
Standard & Poor's Corporation, and has combined capital, surplus and undivided
profits of not less than $500,000,000.00, which Letter of Credit shall have a
term of not less than one year, be in form and content satisfactory to Landlord
(and substantially as shown on Exhibit E annexed hereto and made a part hereof),
be for the account of Landlord, be in the amount of the Security Deposit then
required to be deposited hereunder, and be fully transferable by Landlord to
successor owners of the Building without the payment of any fees or charges, it
being agreed that if any such fees or charges shall be so imposed, then such
fees or charges, shall be paid by Tenant. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the term of this Lease,
unless the Issuing Bank sends notice (the "Non-Renewal Notice") to Landlord by
certified mail, return receipt requested, not less than thirty (30) days next
preceding the then expiration date of the Letter of Credit that it elects not to
have such Letter of Credit renewed. Additionally, the Letter of Credit shall
provide that Landlord shall have the right, exercisable within twenty (20) days
of its receipt of the Non-Renewal Notice, by sight draft on the Issuing Bank, to
receive the monies represented by the existing Letter of Credit and to hold such
proceeds pursuant to the terms of this Section 30.2 as a cash security pending
the replacement of such Letter of Credit. If an Event of Default shall have
occurred and be continuing with respect to any provision of this Lease,
including the provisions relating to the payment of Fixed Rent and Additional
Rent, Landlord may apply or retain the whole or any part of the cash security so
deposited or may notify the Issuing Bank and thereupon receive all the monies
represented by the Letter of Credit and use,
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apply, or retain the whole or any part of such proceeds, as provided in this
Section 30.2. Any portion of the cash proceeds of the Letter of Credit not so
used or applied by Landlord in satisfaction of the obligations of Tenant as to
which such Event of Default shall have occurred shall be deposited by Landlord
and retained in an interest-bearing account as provided in Section 30.1. If
Landlord applies or retains any part of the cash security or proceeds of the
Letter of Credit, as the case may be, Tenant shall, within five (5) days after
written demand therefor, deposit with Landlord the amount so applied or retained
so that Landlord shall have the full Security Deposit required pursuant to
Section 30.1 hereof on hand at all times during the Term. So long as no Event of
Default shall have occurred and be continuing, the Letter of Credit shall be
returned to Tenant after the Expiration Date and after delivery of possession of
the Premises to Landlord. In the event of a sale of Landlord's interest in the
Premises, within thirty (30) days of notice of such sale or leasing, Tenant, at
Tenant's sole cost and expense, shall arrange for the transfer of the Letter of
Credit to the new landlord, as designated by Landlord, or have the Letter of
Credit reissued in the name of the new landlord and Landlord shall thereupon be
released by Tenant from all liability for the return of the Letter of Credit;
provided, however, that if the Letter of Credit is reissued, Landlord shall
return the original Letter of Credit issued in Landlord's name to Tenant.
Section 30.3 (a) Notwithstanding anything set forth in this Article
30 to the contrary, and provided that each of the Reduction Conditions, as
defined in Section 30.3(b), shall have been satisfied, then after notice from
Tenant to Landlord, signed by the chief financial officer of Tenant and
certifying that the Reduction Conditions have been satisfied, the Security
Deposit shall be reduced to the sum of Fifty-Six Thousand Seven Hundred Twenty
and 00/100 Dollars ($56,720.00).
(b) The following are the conditions precedent to the reduction of
the Security Deposit as provided in this Section 30.3:
(i) no Event of Default shall have occurred at any time during the
Term;
(ii) Tenant shall have submitted to Landlord true and complete
copies of Tenant's annual financial statements for the preceding three (3)
fiscal years of Tenant (the "Financial Statements"), as follows: (A) if
Tenant is a publicly traded corporation, Tenant's annual financial
statements as filed with the Securities and Exchange Commission, or (B) if
Tenant is not a publicly traded corporation, Tenant's annual financial
statements audited by a firm of certified public accountants reasonably
satisfactory to Landlord, in either case showing that:
(A) for the three (3) immediately preceding calendar years
(which shall not include 1999), Tenant shall have achieved positive
"Net Cash Flow from Operating Activities", as evidenced in the
Statement of Cash Flows contained in the Financial Statements; and
(B) the Accumulated Deficit, as shown in the Statement of
Shareholders' Equity set forth in the Financial Statements, shall
have been eliminated, and the
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Financial Statements shall indicate a positive Retained Earnings
Balance, after adjustment for accumulated depreciation and
amortization.
(c) If Tenant has deposited the Security Deposit in cash, and not in
the form of the Letter of Credit, Landlord shall refund to Tenant the amount by
which the Security Deposit is reduced pursuant hereto. If Tenant has provided
the Letter of Credit, then, provided that Tenant tenders to Landlord a
replacement Letter of Credit or an amendment thereof in the appropriately
reduced amount of the Security Deposit, Landlord shall exchange the Letter of
Credit then held by Landlord for the Letter of Credit tendered by Tenant, or
countersign such amendment, if required.
ARTICLE 31. RELOCATED PREMISES.
Section 31.1 (a) Landlord shall have the right at any time during
the Term, upon giving Tenant not less than ninety (90) days prior written notice
(a "Relocation Notice"), to provide and furnish Tenant with space elsewhere in
the Building of approximately the same size as the Premises (the "Substitute
Premises") and remove and place Tenant in such space, and Landlord will pay all
reasonable costs and expenses incurred by Tenant in connection with such
relocation. Notwithstanding the foregoing, Tenant shall have no obligation to
relocate to the Substitute Promises unless or until (i) Tenant shall have
approved the Substitute Premises as being reasonably feasible in terms of layout
and location for use by Tenant, which approval shall not be unreasonably
withheld, (ii) Landlord pays to Tenant in advance the full costs estimated by
Tenant for purchase, installation, testing and implementation of new
Alterations, facilities and equipment in the Substitute Premises which duplicate
all of the Initial Alterations, Alterations and Tenant's Property in the
Premises provided, however, that Tenant shall deliver to Landlord reasonable
evidence of the costs of same, and (iii) Tenant has confirmed that such new
facilities and equipment have been fully installed, tested and placed into
service and are fully capable of substituting for Tenant's operations in the
Premises. Landlord shall promptly reimburse Tenant for any costs or expenses
exceeding the estimated amounts paid by Landlord in advance provided that Tenant
delivers to Landlord reasonable evidence of same.
(b) If Landlord moves Tenant to the Substitute Premises, this Lease
and each of its terms, covenants and conditions shall remain in full force and
effect and be deemed applicable to the Substitute Premises, and the Substitute
Premises shall thereafter be deemed to be the Premises as though Landlord and
Tenant had entered into an express written amendment of this Lease with respect
thereto.
ARTICLE 32. MISCELLANEOUS
Section 32.1 (a) The obligations of Landlord under this Lease shall
not be binding upon Landlord named herein after the sale, conveyance, assignment
or transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and the transferee of Landlord's interest in the Building or the Real
Property, as the case may be, shall be deemed to have assumed all obligations
under this Lease. Prior to any such sale,
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conveyance, assignment or transfer, the liability of Landlord for Landlord's
obligations under this Lease shall be limited to Landlord's interest in the Real
Property and Tenant shall not look to any other property or assets of Landlord
or the property or assets of any of the Exculpated Parties (defined below) in
seeking either to enforce Landlord's obligations under this Lease or to satisfy
a judgment for Landlord's failure to perform such obligations.
(b) Notwithstanding anything contained herein to the contrary,
Tenant shall look solely to Landlord to enforce Landlord's obligations hereunder
and no partner, shareholder, director, officer, principal, employee or agent,
directly and indirectly, of Landlord (collectively, the "Exculpated Parties")
shall be personally liable for the performance of Landlord's obligations under
this Lease. Tenant shall not seek any damages against any of the Exculpated
Parties.
Section 32.2 Wherever in this Lease Landlord's consent or approval
is required, if Landlord shall refuse such consent or approval, Tenant in no
event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall Tenant claim any money
damages by way of set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
its consent or approval. Tenant's sole remedy shall be an action or proceeding
to enforce any such provision, for specific performance, injunction or
declaratory judgment
Section 32.3 (a) All of the Exhibits attached to this Lease are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Exhibits hereto, the terms and provisions of this Lease shall
control. This Lease may not be changed, modified, terminated or discharged, in
whole or in part, except by a writing, executed by the party against whom
enforcement of the change, modification, termination or discharge is to be
sought. As used in this Lease: (a) the word "or" is not exclusive and the word
"including" is not limiting, (b) references to a law include any rule or
regulation issued under the law and any amendment to the law, rule or
regulation, (c) whenever the words "include", "includes", or "including" appear,
they shall be deemed to be followed by the words "without limitation", (d)
personal pronouns shall be deemed to include the other genders and the singular
to include the plural, and (e) all Article and Section references shall, unless
otherwise expressly stated, be deemed references to the Articles and Sections of
this Lease. The captions hereof 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.
(b) This Lease shall be governed in all respects by the laws of the
State of New York applicable to agreements executed in and to be performed
wholly within said State.
(c) If any term, covenant, condition or provision of this Lease, or
the application thereof to any person or circumstance, shall ever be held to be
invalid or unenforceable, then in each such event the remainder of this Lease or
the application of such term, covenant, condition or provision to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
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(d) If at the commencement of, or at any time or times during the
Term, the Fixed Rent and Additional Rent reserved in this Lease shall not be
fully collectible by reason of any Legal 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 which may from time to time during the continuance of
such legal rent restriction be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction prior to the expiration of the Term, (i) Fixed Rent and
Additional Rent shall become and thereafter be payable hereunder in accordance
with the amounts reserved in this Lease for the periods following such
termination, and (ii) Tenant shall pay to Landlord, if legally permissible, an
amount equal to (A) the items of Fixed Rent and Additional Rent which would have
been paid pursuant to this Lease but for such legal rent restriction less (B)
the rents paid by Tenant to Landlord during the period or periods such legal
rent restriction was in effect.
(e) 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 32.4 Except as expressly provided to the contrary in this
Lease, Tenant agrees that all disputes arising, directly or indirectly, out of
or relating to this Lease, and all actions to enforce this Lease, shall be dealt
with and adjudicated in the state courts of New York or the Federal courts
sitting in New York City; and for that purpose hereby expressly and irrevocably
submits itself to the jurisdiction of such courts. Tenant hereby irrevocably
appoints the Secretary of the State of New York as its authorized agent upon
which process may be served in any such action or proceeding.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
LANDLORD:
111 CHELSEA LLC
By: Taconic Chelsea Holdings LLC, managing member
By: Taconic SL Principals LLC, managing member
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx, Principal
TENANT:
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: President and CEO
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Tenant's Federal Tax Identification Number: 00-0000000
-00-
XXXXX XX XXX XXXX)
)ss.:
COUNTY OF NEW YORK)
On the 28th day of February in the year 2000 before me, the
undersigned, personally appeared Xxxxxxx X. Xxxx, 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.
Xxxx X. Xxxx
________________________________
Notary Public
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EXHIBIT A
Floor Plan of the Premises
The floor plan which follows is intended solely to identify the
general outline of the Premises, and should not be used for any other purpose.
All areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
EXHIBIT B
Rules and Regulations
1. The rights of tenants in the entrances, corridors, elevators of
the Building are limited to ingress to and egress from tenants' premises for
tenants and their employees, licenses and invitees, and no tenant shall use, or
permit the use of, the entrances, corridors, or elevators for any other purpose.
No tenant shall invite to such tenant's premises, or permit the visit of,
persons in such numbers or under such conditions as to interfere with the use
and enjoyment of any of the entrances, corridors, elevators and other facilities
of the Building by other tenants. Fire exits and stairways are for emergency use
only, and shall not be used for any other purposes by the tenants, their
employees, licensees or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of, any of the sidewalks, entrances,
corridors, elevators, fire exits or stairways of the Building. Landlord reserves
the right to control and operate the public portions of the Building and the
public facilities, as well as facilities furnished for the common use of
tenants, in such manner as it reasonably deems best for the benefit of tenants
generally.
2. Tenant's employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
3. Tenant shall not alter the exterior appearance of the Building by
installing signs, advertisements, notices or other graphics on exterior walls,
or interior surfaces visible from outside, without prior written permission from
Landlord. Similarly, electrical fixtures hung in offices or other spaces along
the perimeter of the Building which affect its exterior appearance must be
fluorescent and a quality, type, design and bulb color, previously approved in
writing by Building management.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
5. The requirements of tenants will be attended to only upon
application at the Building Management Office. Employees of the Building shall
not perform any work or do anything outside of their regular assigned duties,
unless under special instructions from the Building Management Office.
6. Except as specifically provided in the Lease, Tenant shall have
no right of access to the roof of the Building and shall not install, repair or
replace any satellite dish, antennae, fan, air conditioner or other devices on
the roof of the Building without the prior written consent of Landlord. Any such
device installed without such written consent shall be subject to removal, at
Tenant's expense, without notice, at any time.
7. Exterior signs on doors and any directory tablet must be approved
by Landlord.
8. No awnings or other projections over or around the windows shall
be installed by any tenant and only such window blinds as are permitted by
Landlord shall be used in any tenant's premises.
9. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building.
The water and service closets and other plumbing fixtures in or serving any
tenant's premises shall not be used for any purpose other than the purpose for
which they were designed or constructed and no sweepings, rubbish, rags, acids
or other foreign substances shall be deposited therein. All damages resulting
from any misuse of the fixtures shall be borne by the tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused the same.
10. Tenant shall not disturb others. This rule prohibits any noise
audible from the hallway, adjoining office suites or outside whether created by
musical instruments, radios, television sets, group activities or any other
source.
11. All hand trucks used in the Building shall be equipped with
rubber tires and side guards.
12. No tenant shall install wires, conduit, sleeves or similar
installations in Building shaftways without prior written consent of Landlord,
and as Landlord may direct.
13. Each tenant shall, at its expense, provide artificial light in
the premises demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and making
repairs or alterations therein.
14. Tenants shall not permit any cooking or food odors emanating
from their demised premises to be detectable in any other portions of the
Building.
15. Tenants shall coordinate entrance door locks with the Building's
master lock system. Upon vacating the Building, tenants must return keys to
storerooms, offices and toilets or pay replacement costs.
16. All entrance doors in each tenant's premises shall be left
locked when the tenant's premises are not in use. Entrance doors shall not be
left open at any time.
17. Tenants shall not keep pets, bicycles, or other vehicles in
their premises without prior written approval by Landlord. Exceptions are made
for seeing-eye dogs and conveyances required by handicapped persons.
18. Regular suppliers of outside services must be approved by
Building management, which may establish hours or other conditions for entrance
to the Building. Such suppliers include vendors of food, spring water, ice,
towels, barbering, shoe shining and other products and services.
19. Canvassing, soliciting and peddling of products or services are
prohibited in the Building, and tenants shall cooperate with Landlord in
attempting to prevent such acts in the Building.
20. Landlord may refuse admission to the Building outside of normal
hours to any person not having a pass issued by Landlord or not properly
identified, and may require all persons admitted to or leaving the Building
outside of normal business hours to register. Tenant's employees, agents and
visitors shall be permitted to enter and leave the Building whenever appropriate
arrangements have been previously made between Landlord and Tenant. Each tenant
shall be responsible for all persons for whom such person requests such
permission and shall be liable to Landlord for all acts of such persons. Any
person whose presence in the Building at any time shall, in the reasonable
judgment of Landlord, be prejudicial to the safety, character, reputation and
interests of the Building or its tenants may be denied access to the Building or
may be rejected therefrom. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. Landlord may require any
person leaving the Building with any package or other object to exhibit a pass
from the tenant from whose premises the package or object is being removed, but
the establishment and enforcement of such requirements shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. Landlord shall in no way be liable
to any tenant for injury or loss arising from the admission, exclusion or
ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule.
21. Tenant, at its sole cost and expense, shall cause the Premises
to be exterminated from time to time to the reasonable satisfaction of the
Building Management Office, and shall employ such exterminators therefor as
shall be approved by the Building Management Office.
22. Tenants shall not serve or permit the serving of alcoholic
beverages in the its premises unless Tenant shall have procured host liquor
liability insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord and its managing agent as additional insureds.
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23. The Building loading docks may be used only for loading and
unloading procedures. Tenants may not use the loading dock area for parking.
Tenants may not place any dumpsters at the loading docks or any other portion of
the Building without the prior written approval of Landlord.
24. No shutdowns of any Building systems will be permitted without
prior written approval of Landlord and supervision by the Building engineer.
25. Tenant's contractors or vendors may not use any space within the
Building outside the Premises for storage or moving of materials or equipment or
for the location of a field office or facilities for the employees of such
contractors or vendors without obtaining Landlord's prior written approval for
each such use. Landlord shall have the right to terminate such use and remove
all such contractor's or vendor's materials, equipment and other property from
such space, without Landlord being liable to tenant or to such contractor or
vendor, and the cost of such termination and removal shall be paid by Tenant to
Landlord.
26. Tenants are required to have a full service maintenance contract
covering their supplemental HVAC, Uninterrupted Power Supply (UPS) and Automatic
Transfer systems, and to provide copies of such contracts to the Building
management office.
27. The Building reserves the right to restrict the use of certain
materials (for example, Omega sprinkler heads and piping manufactured in The
Republic of China) in the Building based on notifications that declare the
materials unsafe.
28. Trucks using the Tenant Shipping Platforms on the ground floor
of the Building, and the upper floor truck lobbies, will load and discharge at
the place or places thereat and therein as indicated by the duly authorized
representative of Landlord in charge of such operation.
29. Elevators for freight handling service will be operated during
Business Hours on Business Days, unless special arrangement is made with
Landlord for operation at other times.
30. The use of the private right of way and the truck elevators will
be subject to and under the reasonable direction and control of the duly
authorized representative of Landlord in charge of such operation. When in the
interest of continuity of service or in the interest of the common service,
Tenant's freight departing from or arriving at the Building by truck may at the
direction of Landlord be handled over and through the Tenant Shipping Platforms
on the ground floor and the freight elevators. Landlord reserves the right to
direct such handling in lieu of truck elevator service.
31. In the interest of preserving the continuity of freight elevator
service, freight will not be floored upon the freight elevator, but will at all
times be handled and moved upon suitable vehicles of the indoor industrial
xxxxxxx type permitting such freight to be economically and expeditiously
wheeled on and off the freight elevators. Freight which cannot be handled upon
such equipment will be handled in such alternative manner as may be approved by
Landlord.
32. (a) The Tenant Shipping Platforms located on first or ground
floor of the Building are designed to accomplish the immediate transfer and
movement of freight between the freight elevators and trucks. The use of such
facility by Tenant or any of its agents, servants, employees, representatives or
contractors will be confined to such purpose, under the reasonable direction and
control of the duly authorized representative of Landlord in charge of such
operation.
(b) No storage or holding of freight on such Tenant Shipping
Platforms awaiting the arrival of trucks, or awaiting transfer by Tenant from
such Tenant Shipping Platforms to the Premises, will be permitted. No
automobiles of Tenant or any Tenant Party may enter on or be stored in any
portion of the Building, except in areas designated by Landlord, and provided
Tenant pays for such parking at rates designated by Landlord, its agents or
parking lessees.
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(c) Any violation of this rule or disregard of directions issued by
Landlord will give Landlord the right to handle, transfer, remove or store such
freight in or to other premises in the Building. When such handling, transfer,
removal or storage is performed by Landlord, and when it shall be deemed
necessary by Landlord to preserve the continuity of common service provided by
this facility, any and all expense will be at Tenant's sole cost and expense.
Landlord will not be responsible for any loss or damage which any such freight
may suffer by such handling, removing or storage.
33. Neither Tenant nor any Tenant Party will at any time be
permitted to operate any freight, passenger or truck elevator.
34. The Building is equipped with scuppers for carrying off water
which may result from sprinkler operation or other causes. Tenant shall not,
under any circumstances, deposit or permit to be deposited sweepings or any
other rubbish in such scuppers, and Tenant will keep the scuppers within the
Premises at all times free of any and all rubbish, sweepings, and other
obstructions of any nature whatsoever.
35. Tenant shall not, under any circumstances, permit the
accumulation of sweepings or any other rubbish in the expansion joints of the
Building, or in any other portions of the Building outside of the Premises, and
all such sweepings or rubbish shall be removed daily by Tenant in such manner as
Landlord shall direct. Tenant will keep the Building's expansion joints free of
any and all rubbish, sweepings and any other obstruction of any nature
whatsoever. Tenant will not place machinery or equipment in a position so that
such machinery or equipment straddles an expansion joint, or erect a partition
which intersects an expansion joint, unless one end of such machinery, equipment
or partition is free to permit the expansion and contraction of such expansion
joint.
36. If any electrical or telephone installations made or operated by
Tenant shall emit any electromagnetic interference, Tenant shall immediately
discontinue use of such installations until such electromagnetic interference is
eliminated to Landlord's satisfaction.
37. Landlord reserves the right at any time and from time to time,
to rescind, alter, waive, modify, add to or delete, in whole or in part, any of
these Rules and Regulations in order to protect the comfort, convenience and
safety of all tenants at the Building. Tenant shall not have any rights or
claims against Landlord by reason of non-enforcement of these rules and
regulations against any tenant, and such non-enforcement will not constitute a
waiver as to Tenant.
38. If there shall be any inconsistencies between the text of the
main body of the Lease and these Rules and Regulations, the provisions of the
Lease shall prevail.
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EXHIBIT C
Approved Contractors
Xx. Xxxxx Xxxxxx, President Mr. Al Hot, President
X.X. Xxxxxx Construction Co., Inc. Fast Track Construction
00 Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10001
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxxxxx, Executive Vice President Xxxxxxxxxxx X. Xxxxxx
HRH Construction Interiors, Inc. Xxxx Xxxxxx & Sons, Inc.
Xxx Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, X.X. 10016 New York, N.Y. 10018
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxxx Xxxxx Xx. Xxxxx Xxxx
Ambassador Construction Co., Inc. Dominant Construction
00 Xxxx 00xx Xxxxxx 000 Xxxxx 00
Xxx Xxxx, X.X. 00000 Xxxxxxxxxx, N.Y. 10962
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxx Xxxxxxx, Vice President Xx. Xxxxxxx X. Xxxxxxx
Tishman Construction Corp. Xxxxxxx Construction Co., Inc.
000 Xxxxx Xxxxxx 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10014
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xxxxxx XxXxxxxx Bovis Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx Xxx Xxxx Xxxx Builders Group
Xxx Xxxx, X.X. 00000 One Xxxx Xxxxxx, 0xx Xxxxx
Tel: (000) 000-0000 Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxx Xxxxx Xxxxxx X. Xxxxx, Regional
Westside Interiors Manager
000 Xxxxxxx Xxxx Gnome Group, Inc.
Rock Tavern, N.Y. 00000 000 0xx Xxxxxx
Tel: (000) 000-0000 Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
Drill Construction
Xxxxxx X. Drill-SVP
00 Xxxx Xxxxxx
Xxxx Xxxxxx,XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxxxx@xxx.xxx
EXHIBIT D
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
Issue Date: _________ ___, 200_
Our Number: __________________
No.________________________________________
Irrevocable Commercial Letter of Credit
Applicant: __________________ [Tenant, generally]
Beneficiary: 111 Chelsea LLC
c/o Taconic Investment Partners LLC
0000 Xxxxxxxx, Xxx Xxxx, XX 00000
Amount (U.S.): $______________
Expiry: ____________ ___, 200_
[The initial expiry date must occur at least one
year after the Commencement Date.]
Gentlemen:
For the account of Applicant we hereby establish this Irrevocable
Letter of Credit No. _____________________ in your favor for an amount of up to
$_______________ effective immediately, available by your drafts at sight when
accompanied by (a) this Irrevocable Letter of Credit and (b) Beneficiary's
statement purportedly signed by an officer of Beneficiary or Beneficiary's
authorized managing agent, stating: "The amount of this drawing under
Irrevocable Letter of Credit No. _____________ is being drawn pursuant to Lease
dated __________________ ____ 200_, by and between 111 Chelsea LLC as Landlord
and _____________________ as Tenant."
All drafts must be marked "Drawn under ____________________ Bank,
Irrevocable Letter of Credit No. ____________ dated ______ __, 200_."
It is a condition of this Irrevocable Letter of Credit that it shall
be fully transferable by Beneficiary without any fees or charges payable by
Beneficiary in connection therewith.
It is a condition of this Irrevocable Letter of Credit that it shall
be automatically extended for additional periods of one year from the present or
future expiry date, unless at least thirty (30) days prior to such expiry date
we notify you in writing by certified or registered mail, return receipt
requested, at the above address, that we elect not to renew this Irrevocable
Letter of Credit for such additional period. Upon receipt by you of such notice
you may draw drafts on us at sight for an amount not to exceed the balance
remaining in this Irrevocable Letter of Credit within the then applicable expiry
date.
We hereby agree with you that drafts drawn under and in accordance
with the terms of this Irrevocable Letter of Credit will be duly honored by us
on delivery of this Irrevocable Letter of Credit and the document so specified,
when presented at _____________________________ _____________________________
[address of Bank issuing this Letter of Credit - THIS ADDRESS MUST BE LOCATED IN
MANHATTAN, OR WITHIN A REASONABLE DISTANCE THEREOF AS DETERMINED BY LANDLORD].
This credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500; provided, however, that in the event an expiry date occurs
during an interruption of our business of the type described in Article 17 of
such publication, then such expiry date shall be deemed to be automatically
extended until the date which shall be five (5) days after the resumption of our
business.
________________________________
Authorized Signature
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