EXHIBIT 10.4
________________________________________
622 BUILDING COMPANY LLC
Landlord,
iCAST, INC.
Tenant.
________________________________________
__________
LEASE
__________
Premises: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Entire 8/th/ Floor
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1. Premises; Term.......................................................................................... 1
2. Commencement of Term.................................................................................... 1
3. Rent.................................................................................................... 2
4. Use..................................................................................................... 4
5. Alterations, Fixtures................................................................................... 5
6. Repairs................................................................................................. 8
7. Floor Load; Noise....................................................................................... 9
8. Laws, Ordinances, Requirements of Public Authorities.................................................... 10
9. Insurance............................................................................................... 12
10. Damage by Fire or Other Cause.......................................................................... 14
11. Assignment, Subletting, Mortgaging..................................................................... 16
12. Liability and Indemnity by Landlord and Tenant........................................................ 25
13. Moving of Heavy Equipment.............................................................................. 27
14. Condemnation........................................................................................... 27
15. Entry, Right to Change Public Portions of the Building................................................. 28
16. Conditional Limitations, Etc........................................................................... 29
17. Mechanic's Liens....................................................................................... 35
18. Landlord's and Tenant's Right to Perform Obligations.................................................. 35
19. Covenant of Quiet Enjoyment............................................................................ 36
20. Excavation............................................................................................. 37
21. Services and Equipment................................................................................. 37
22. Escalation............................................................................................. 41
23. Electricity............................................................................................ 47
24. Broker................................................................................................. 50
25. Subordination and Ground Lease......................................................................... 50
26. Estoppel Certificate................................................................................... 54
27. Waiver of Jury Trial................................................................................... 54
28. Surrender of Premises.................................................................................. 55
29. Rules and Regulations.................................................................................. 55
30. Successors and Assigns and Definitions................................................................. 56
31. Notices................................................................................................ 57
32. No Waiver; Entire Agreement............................................................................ 57
33. Captions............................................................................................... 59
34. Inability to Perform................................................................................... 59
35. No Representations by Landlord......................................................................... 60
36. Security Deposit....................................................................................... 60
37. Rent Control........................................................................................... 63
38. Landlord's Contribution................................................................................ 63
39. Roof Equipment......................................................................................... 64
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TABLE OF CONTENTS
40. Additional Space................................................................................. 65
41. Option for Renewal Term.......................................................................... 68
42. Arbitration...................................................................................... 69
Testimonium and Signatures........................................................................... 71
Acknowledgments...................................................................................... 72
Schedule A Floor Plan............................................................................... 73
Schedule B Description of Land...................................................................... 74
Schedule C Rules and Regulations.................................................................... 75
Schedule D Cleaning Specifications.................................................................. 79
Schedule E Definitions.............................................................................. 81
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INDENTURE OF LEASE made as of this 16/th/ day of Aug, 1999, between
622 BUILDING COMPANY LLC, a New York limited liability company, having an office
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and iCAST, INC.,
a Delaware corporation having an office at 000 Xxxx Xxxxxx Xxxxx, 00/xx/ xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxxx").
W I T N E S S E T H :
ARTICLE 1
Premises; Term
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the following space ("Demised Premises"): the entire 8/th/ floor as shown
crosshatched on the floor plan (Schedule A) attached hereto, in the office
building known as and by the street number 000 Xxxxx Xxxxxx, in the Borough of
Manhattan, City and State of New York ("Building"), upon and subject to the
terms, covenants and conditions hereafter set forth.
TO HAVE AND TO HOLD the Demised Premises unto Tenant for a term
commencing on the date hereof (the "Commencement Date") and ending on a date
(the "Expiration Date") which shall be five (5) years and four (4) months after
the Commencement Date, plus the number of days required, if any, to have such
term expire on the last day of a calendar month, or on such earlier date upon
which said term may expire or terminate pursuant to the conditions of this Lease
or pursuant to law.
IT IS MUTUALLY COVENANTED AND AGREED between Landlord and Tenant as
follows:
ARTICLE 2
Commencement of Term
Section 2.01. The term of this Lease, for which the Demised Premises
are hereby leased, shall commence on the Commencement Date, and the Landlord
shall deliver possession of the Demised Premises on the Commencement Date.
Section 2.02. Tenant has fully inspected the Demised Premises, is
familiar with the condition thereof and agrees to accept possession of the same
on the Commencement Date. Except as hereinafter provided, Landlord shall not be
required to do any work therein to make the same suitable for the operation of
Tenant's business. However, Landlord, promptly following the execution of this
Lease and at its expense, shall (i) remove the dumbwaiter from the Demised
Premises and repair any damage to the Demised Premises caused by such removal
and (ii) do such work as may be required in the bathrooms on the 8/th/ floor so
that the same comply with the Americans' with Disabilities Act.
Landlord is presently refurbishing the Building lobby, and elevators.
If Landlord has not substantially completed such work by December 31, 1999,
subject to the provisions of Article 34, then Tenant shall be entitled to an
additional abatement of the minimum rent of one (1) day for each one (1)
business day thereafter until Landlord has substantially completed said work.
Section 2.03. Promptly after the Commencement Date, Landlord and
Tenant shall execute a statement in recordable form confirming the agreed upon
Commencement and Expiration Dates of this Lease, in accordance with the
foregoing provisions.
ARTICLE 3
Rent
Section 3.01. Tenant shall pay as rent for the Demised Premises, the
following:
(a) a fixed minimum rent (the "minimum rent") at the following annual
rates:
(i) $1,140,000.00 per annum (or $95,000.00 per month) for the first
year (inclusive of a partial month if the Commencement Date is not the
first day of a month) following the Commencement Date, provided if the
Commencement Date is not the first day of a month, then the minimum rent
for such month shall be prorated; and
(ii) $1,170,000.00 per annum (or $97,500.00 per month) for the
second year following the Commencement Date; and
(iii) $1,200,000.00 per annum (or $100,000.00 per month) for the
third year following the Commencement Date; and
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(iv) $1,230,000.00 per annum (or $102,500.00 per month) for the
fourth year remainder of the term following the Commencement date; and
(v) $1,260,000.00 per annum (or $105,000.00 per month) for the
remainder of the term; and
(b) all other sums and charges required to be paid by Tenant under
the terms of this Lease (including without limitation, the payments
required to be made under Article 22), which shall be deemed to be and are
sometimes referred to hereafter as additional rent.
Section 3.02. Notwithstanding the provisions of Section 3.01 hereof
and provided Tenant is not then in default under any of the provisions of this
Lease on its part to be performed, Tenant shall be entitled to an abatement of
the minimum rent only as follows: the amount of $97,500.00 for each of the
1/st/, 2/nd/, 3/rd/ and 4/th/ full months of the term succeeding the
Commencement Date. Tenant acknowledges that the consideration for the aforesaid
abatement of minimum rent is Tenant's agreement to perform all of the terms,
covenants and conditions of this Lease on its part to be performed. Tenant shall
be required to pay additional rent from and after the Commencement Date.
Section 3.03. The minimum rent shall be payable in equal monthly
installments in advance on the first day of each and every month during the term
of this Lease, except that the first installment of $97,500.00 shall be paid
upon the execution of this Lease and applied to the payment of minimum rent for
the fifth (5/th/) full month of the term.
Landlord and Tenant agree that Tenant shall pay minimum rent,
additional rent and other amounts now due or hereafter to become due to the
Landlord or its agents as provided for in this Lease, (as and when due) directly
to the following lock-box account:
622 Building Company LLC
X.X. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000-0000
All rent checks shall be made payable to 622 Building Company LLC.
Section 3.04. Tenant shall pay the minimum rent and additional rent in
lawful money of the United States which shall be legal tender for the payment of
all debts, public and private, at the time of payment.
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Section 3.05. The minimum rent and additional rent shall be payable by
Tenant without any set-off, abatement or deduction whatsoever and without notice
or demand, except as otherwise expressly provided herein.
ARTICLE 4
Use
Section 4.01. Tenant shall use and occupy the Demised Premises for
administrative, executive and general office purposes only, including a data
center and computer room.
Section 4.02. Notwithstanding the provisions of Section 4.01, Tenant
shall not use or allow the use of the Demised Premises or any part thereof (1)
for the cooking and/or sale of food, except that Tenant may have a coffee maker
and warm foods through a microwave; (2) for storage for sale of any alcoholic
beverage in the Demised Premises; (3) for the storage and/or sale of any product
or material from the Demised Premises; (4) for manufacturing or printing
purposes; (5) for the conduct of a school or training facility or similar type
of business which results in the presence of the general public in the Demised
Premises, except that Tenant may have training classes for its personnel
incidental to its business; (6) for the conduct of the business of an employment
agency or personnel agency; (7) for the conduct of any public auction or public
exhibition; (8) for occupancy by a foreign, United States, state, municipal or
other governmental or quasi-governmental body, agency or department or any
authority or other entity which is affiliated therewith or controlled thereby
and which has diplomatic or sovereign immunity or the like with respect to a
commercial lease; (9) for messenger or delivery service (excluding Tenant's own
employees or outside services); (10) as a public stenographer or typist; (11) as
a telephone or telegraph agency, except that Tenant as an incident to its
business may have audio visual and closed circuit television facilities and
other types of telecommunication equipment; (12) as a company engaged in the
business of renting office(s) or desk space in the Demised Premises; (13) as
medical offices or a laboratory; (14) as a travel agency; (15) as a dating
service; (16) as a restaurant; (17) as a night club, discotheque, arcade or like
kind establishments; (18) as a public or quasi-public health facility, radiation
treatment facility, methadone clinic or other drug related clinic, abortion
clinic, or for any practice conducted in or through the format of a clinic; (19)
as a pawn shop; (20) as an off-track betting parlor; (21) as a homeless shelter,
soup kitchen or similar use; (22) for the sale or display or pornographic
products or services; (23) for the use or storage of flammable liquids or
chemicals (unless incidental to a permitted use); (24) as a funeral parlor; (25)
for
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the sale or grooming of pets; or (26) for any form of spiritualist services,
such a fortune telling or reading. Furthermore, the Demised Premises shall not
be used for any purpose that would, in Landlord's reasonable judgment, create
unreasonable or excessive elevator or floor loads, impair or interfere with any
of the Building operations or the proper and economic heating, air-conditioning,
cleaning or any other services of the Building, interfere with the use of the
other areas of the Building by any other tenants, or impair the appearance of
the Building. Neither Tenant nor any person within Tenant's control shall use,
generate, store, treat and/or dispose of any Hazardous Materials (as hereinafter
defined) in, on, under or about the Demised Premises.
Section 4.03. If any governmental license or permit, other than a
Certificate of Occupancy or any license or permit required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof, and if failure to secure such license or permit would in any way affect
Landlord, Tenant, at its expense, shall duly procure and thereafter maintain
such license or permit and submit the same for inspection by Landlord. Tenant
shall at all times comply with the terms and conditions of each such license or
permit.
Section 4.04. Tenant shall not at any time use or occupy, or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy, for
the Demised Premises or for the Building, and will not permit or cause any act
to be done or any condition to exist on the Demised Premises which may be
dangerous unless safeguarded as required by law, or which in law constitutes a
nuisance, public or private, or which may make void or voidable any insurance
then in force covering the Building and building equipment.
Section 4.05. Landlord represents that the existing Certificate of
Occupancy permits the use of the Demised Premises for the purposes set forth in
Section 4.01, and that Landlord shall not change the Certificate of Occupancy to
prohibit such uses.
ARTICLE 5
Alterations, Fixtures
Section 5.01. Tenant, without Landlord's prior consent, shall make no
structural alterations, installations, additions, or improvements in or to the
Demised Premises ("work") including, but not limited to, an air-conditioning or
cooling
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system, or any unit or part thereof or other apparatus of like or other nature,
railings, mezzanine floors, galleries and the like. However, Tenant may make
non-structural interior work, subject to Landlord's prior written consent which
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing,
Tenant, without Landlord's consent but subject to Landlord's approval of
contractors, may make non-structural interior work which does not affect the
structural integrity of the Building or the Building systems, does not affect
the other tenants in the Building, does not violate any mortgage, does not cost
more than $50,000 in the aggregate during any twelve (12) month period, and
Tenant has given not less than ten (10) days prior notice thereof. With respect
to any work requiring Landlord's approval and performance by any contractor
other than Landlord, Tenant shall pay to Landlord ten (10%) percent of the cost
of such work for supervision, coordination and other expenses incurred by
Landlord in connection therewith. However, such ten (10%) percent charge shall
not apply to Tenant's initial work in the Demised Premises nor does it apply to
painting, wallcovering, carpeting or furnishings. Workers' compensation and
public liability insurance and property damage insurance, all in amounts and
with companies and/or forms reasonably satisfactory to Landlord, shall be
provided and at all times maintained by Tenant's contractors engaged in the
performance of the work, and before proceeding with the work, certificates of
such insurance shall be furnished to Landlord. If consented to by Landlord, all
such work shall be done at Tenant's sole expense and in full compliance with all
governmental authorities having jurisdiction thereover. Upon completion of such
work, Tenant shall deliver to Landlord full scale "as built" plans for the same.
Landlord upon request of Tenant, will waive its right to any lien upon Tenant's
trade fixtures and equipment, in such form as shall be reasonably acceptable to
Landlord. All work affixed to the realty or if not so affixed but for which
Tenant shall have received a credit, shall become the property of Landlord,
subject to Tenant's right to replace same during the term hereof with items of
equal quality class and value, and shall remain upon, and be surrendered with,
the Demised Premises as a part thereof at the end of the term or any renewal or
extension term, as the case may be, without allowance to Tenant or charge to
Landlord, unless Landlord elects otherwise on notice to Tenant given at the time
that Landlord has consented to the work. However, if Landlord shall elect at the
time Tenant requests consent to any work, otherwise, Tenant at Tenant's expense,
at or prior to any termination of this Lease, shall remove all such work or such
portion thereof as Landlord shall elect and Tenant shall restore the Demised
Premises to its original condition, reasonable wear and tear excepted, at
Tenant's expense. However, Tenant shall not be obligated to remove its initial
work in the Demised Premises. If any Building facilities or services, including
but not limited to air-conditioning and ventilating equipment installed by
Landlord, are adversely affected or damaged by reason of the work by Tenant,
Tenant, at its expense, shall repair such damage to the extent such damage has
been caused by Tenant's work and shall correct the work so as to prevent any
further damage or adverse effect on such facilities or services.
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Section 5.02. Prior to commencing any work pursuant to the provisions
of Section 5.01, Tenant shall furnish to Landlord:
(a) Plans and specifications for the work to be done. However,
if Landlord fails to respond to Tenant's request for Landlord's consent to
the work within ten (10) business days after its receipt of such request
together with all required information, then Landlord shall be deemed to
have consented thereto.
(b) Copies of all governmental permits and authorizations which
may be required in connection with such work.
(c) A certificate evidencing that Tenant (or Tenant's contractor)
has procured workers' compensation insurance covering all persons employed
in connection with the work who might assert claims for death or bodily
injury against Landlord, Tenant, any mortgagee or the Building.
(d) Such additional personal injury and property damage insurance
(over and above the insurance required to be carried by Tenant pursuant to
the provisions of Section 9.03) as Landlord may reasonably require because
of the nature of the work to be done by Tenant.
(e) With respect to Tenant's work, other than Tenant's initial
work, exceeding the cost of $50,000, a bond or other security satisfactory
to Landlord, in the amount of one hundred ten (110%) percent of the
aggregate cost of the work, to insure completion of such work.
Section 5.03. Where furnished by or at the expense of Tenant (except
the replacement of an item theretofore furnished and paid for by Landlord or for
which Tenant has received a credit), all movable property, furniture,
furnishings, roller files, equipment and trade fixtures ("personalty") other
than those affixed to the realty in such manner as to cause material damage upon
its removal, shall remain the property of and shall be removed by Tenant on or
prior to any termination or expiration of this Lease, and, in the case of damage
by reason of such removal, Tenant, at Tenant's expense, promptly shall repair
the damage. If Tenant does not remove any such personalty, Landlord, after two
(2) business days notice to Tenant, at its election, (a) may cause the
personalty to be removed and placed in storage at Tenant's expense or (b) may
treat the personalty as abandoned and may dispose of the personalty as it sees
fit without accounting to Tenant for any proceeds realized upon such disposal.
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Section 5.04. Tenant agrees that the exercise of its rights pursuant
to the provisions of this Article 5 shall not be done in a manner which would
create any work stoppage, picketing, labor disruption or dispute or violate
Landlord's union contracts affecting the Building or interfere with the business
of Landlord or any Tenant or occupant of the Building. In the event of the
occurrence of any condition described above arising from the exercise by Tenant
of its right pursuant to the provisions of this Article 5, Tenant shall,
immediately upon notice from Landlord, cease the manner of exercise of such
right giving rise to such condition. In the event Tenant fails to cease such
manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights available to it under this Lease and pursuant to law, shall have the
right to injunction. With respect to Tenant's work, Tenant shall make all
arrangements for, and pay all expenses incurred in connection with, use of the
freight elevators servicing the Demised Premises during those hours other than
as provided in Section 21.01(a) in accordance with Landlord's customary charges
therefor.
ARTICLE 6
Repairs
Section 6.01. Except as provided in Articles 10 and 14, Tenant shall
take good care of the Demised Premises and the fixtures wholly contained therein
and all portions of the HVAC, mechanical, plumbing and electrical systems wholly
contained within and exclusively serving the Demised Premises, and at its sole
cost and expense make all repairs thereto as and when needed to preserve them in
good working order and condition. All damage or injury to the Demised Premises
or the Building or to any building equipment or systems caused by Tenant moving
property in or out of the Building or by installation or removal of personalty
or resulting from negligence or conduct of Tenant, its employees, agents,
contractors, customers, invitees and visitors, shall be repaired, promptly by
Tenant at Tenant's expense, and whether or not involving structural changes or
alterations, to the satisfaction of Landlord. All repairs shall include
replacements or substitutions where necessary and shall be at least equal to
the quality, class and value of the property repaired, replaced or substituted
and shall be done in a good and workmanlike manner.
Section 6.02. Landlord, at its expense, shall maintain and make all
repairs and replacements, structural and otherwise, to the exterior and public
portions of the Building, the Building systems up to its connection with the
Demised Premises, and to the Demised Premises, unless Tenant is required to make
them under the provisions of Section 6.01 or unless required as a result of the
performance
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or existence of alterations performed by Tenant or on Tenant's behalf, in which
event Tenant, at its expense, shall perform such maintenance, repairs or
replacements. Tenant shall notify Landlord of the necessity for any repairs for
which Landlord may be responsible in the Demised Premises under the provisions
of this Section. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the Demised Premises. Notwithstanding the foregoing, Landlord
shall use reasonable efforts to make such repairs or changes in a manner to
minimize its interference with the normal conduct of Tenant's business, provided
Landlord shall not be required to employ overtime or premium labor.
Section 6.03. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk abutting the Building.
ARTICLE 7
Floor Load; Noise
Section 7.01. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor was
designed to carry (50 lbs. live per square foot).
Section 7.02. Business machines and mechanical equipment belonging to
Tenant which cause noise, vibration or any other nuisance that may be
transmitted to the structure or other portions of the Building or to the Demised
Premises, to such a degree as to be objectionable to Landlord or which interfere
with the use or enjoyment by other tenants of their premises or the public
portions of the Building, shall be placed and maintained by Tenant, at Tenant's
expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to eliminate such objectionable or interfering noise or vibration.
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ARTICLE 8
Laws, Ordinances, Requirements of Public Authorities
Section 8.01. (a) Subject to the provisions of this Article 8, Tenant, at
its expense, shall comply with all laws, orders, ordinances, rules and
regulations and directions of Federal, State, County and Municipal authorities
and departments thereof having jurisdiction over the Demised Premises and the
Building, including but not limited to the Americans With Disabilities Act
("Governmental Requirements"), referable to Tenant or the Demised Premises,
arising by reason of Tenant's particular manner of use of the Demised Premises
(other than in contradistinction merely for the office uses permitted in Section
4.01 ) or any installations made therein by or at Tenant's request, or any
default by Tenant under this Lease.
(b) Except as otherwise provided herein, Tenant covenants and agrees
that Tenant shall, at Tenant's sole cost and expense, comply at all times with
all Governmental Requirements governing the use, generation, storage, treatment
and/or disposal of any "Hazardous Materials" (which term shall mean any
biologically or chemically active or other toxic or hazardous wastes, pollutants
or substances, including, without limitation, asbestos, PCBs, petroleum products
and by-products, substances defined or listed as "hazardous substances" or
"toxic substances" or similarly identified in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601 et
seq., and as hazardous wastes under the Resource Conservation and Recovery Act,
42 U.S.C. (S) 6010 et seq., any chemical substance or mixture regulated under
the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. (S) 2601 et seq.,
any "toxic pollutant" under the Clean Water Act, 33 U.S.C. (S) 466 et seq., as
amended, any hazardous air pollutant under the Clean Air Act, 42 U.S.C. (S) 7401
et seq., hazardous materials identified in or pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. (S) 1802 et seq., and any hazardous or
toxic substances or pollutant regulated under any other Governmental
Requirements). Tenant shall agree to execute, from time to time, at Landlord's
request, affidavits, representations and the like concerning Tenant's best
knowledge and belief regarding the presence of Hazardous Materials in, on, under
or about the Demised Premises, the Building or the Land. Tenant shall indemnify
and hold harmless Landlord, its partners, officers, shareholders, members,
directors and employees, Overlandlord and
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any mortgagee (collectively, the "Indemnitees"), from and against any loss,
cost, damage, liability or expense (including attorneys' fees and disbursements)
arising by reason of any cleanup, removal, remediation, detoxification action or
any other activity required or recommended of any Indemnitees by any government
authority by reason of the presence in or about the Land, the Building or the
Demised Premises of any Hazardous Materials, as a result of or in connection
with the act or omission of Tenant or any person or entity within Tenant's
control or the breach of this Lease by Tenant or any person or entity within
Tenant's control. The foregoing covenants and indemnity shall survive the
expiration of any termination of this Lease. Tenant, at its own cost and
expense, may contest, in any manner permitted by Governmental Requirements
(including appeals to a court, governmental department or authority having
jurisdiction), the validity or the enforcement of any Government Requirements
which Tenant is required to comply, and may defer compliance, provided that (i)
such non-compliance shall not subject Landlord to criminal prosecution or
subject the Land and/or Building to sale or any lien, unless Tenant posts a bond
to remove such lien, (ii) Tenant shall indemnify Landlord against any cost,
damage or injury from such non-compliance, and if any mortgagee shall require,
Tenant shall deliver a surety bond by a surety company approved by such
mortgagee and Landlord with respect to such indemnity, and (iii) Tenant shall
promptly, diligently and continuously prosecute such contest. Landlord, at no
expense to Landlord, shall cooperate with Tenant and execute any required
documents, provided Landlord is reasonably satisfied that the facts set forth in
such documents are accurate.
(c) Landlord, at its expense, shall comply with and cure Governmental
Requirements relating to the public portions of the Building and to the Demised
Premises, provided that Tenant is not obligated to comply with them under the
provisions of subdivision (a) of this Section. Landlord, at its expense, may
contest the validity of any Governmental Requirements and postpone compliance
therewith pending such contest.
(d) Landlord represents that on the Commencement Date the Demised
Premises will be free of Hazardous Materials and in compliance with applicable
Governmental Requirements. Landlord, at its expense, agrees to remedy any
condition arising out of a breach of the representations contained in this
subdivision (d) and agrees to indemnify and hold Tenant harmless from and
against any costs,
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expenses and damages arising out of a breach of such representations.
Section 8.02. If Tenant receives written notice of any violation of
any Governmental Requirements applicable to the Demised Premises, it shall give
prompt notice thereof to Landlord.
Section 8.03. Tenant will not clean, nor allow any window in the
Demised Premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or the rules of the Board of Standards and Appeals or of any other
board or body having or asserting jurisdiction.
ARTICLE 9
Insurance
Section 9.01. Provided Tenant has notice of the applicable
provisions, Tenant shall not do or permit to be done any act or thing in or upon
the Demised Premises which will invalidate or be in conflict with the
Certificate of Occupancy for the Building or the terms of the insurance policies
covering the Building and the property and equipment therein; and, subject to
Section 8.01, Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of the New York Board of Fire Underwriters or any
other similar body having jurisdiction, and of the insurance carriers, and shall
not knowingly do or permit anything to be done in or upon the Demised Premises
in a manner which increases the rate of insurance for the Building or any
property or equipment therein over the rate in effect on the Commencement Date,
provided further that nothing in this Section shall prohibit the uses permitted
under Section 4.01.
Section 9.02. If, by reason of Tenant's failure to comply with the
provisions of Section 9.01 or any of the other provisions of this Lease, the
rate of insurance for the Building or the property and equipment of Landlord
shall be higher than on the Commencement Date, Tenant shall pay to Landlord any
additional or increased insurance premiums to the extent resulting therefrom
thereafter paid by Landlord, and Tenant shall make such payment forthwith on
demand of Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of any insurance rate for the Building or
Demised Premises issued by the New York Fire Insurance Exchange, or other body
establishing fire insurance rates for the Building, shall be conclusive evidence
of the facts therein stated and of the
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several items and charges in the insurance rates then applicable to the Building
or Demised Premises.
Section 9.03. (a) Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof, the
following insurance coverage:
(i) For the benefit of Landlord, Tenant and any mortgagee, a
commercial policy of liability insurance protecting and indemnifying
Landlord, Tenant and any mortgagee against any and all claims for
personal injury, death or property damage occurring upon, in or about
the Demised Premises, and the public portions of the Building in
connection with any act of Tenant, its employees, agents, contractors,
customers, invitees and visitors including, without limitation,
personal injury, death or property damage resulting from any work
performed by or on behalf of Tenant, with coverage of not less than
$5,000,000.00 combined single limit for personal injury, death and
property damage arising out of one occurrence or accident.
(ii) Fire and extended coverage in an amount adequate to
cover the cost of replacement of all personal property, fixtures,
furnishings and equipment, including Tenant's work (as referred to in
Section 5.01), located in the Demised Premises.
(b) All such insurance shall (i) be effected under valid and
enforceable policies, (ii) be issued by insurers of recognized
responsibility authorized to do business in the State of New York, (iii)
contain a provision whereby the insurer agrees not to cancel the insurance
without thirty (30) days' prior written notice to Landlord, and (iv)
contain a provision that no act or omission of Tenant shall result in
forfeiture of the insurance as against Landlord.
On or before the Commencement Date, Tenant shall deliver to Landlord
duplicate originals of the aforesaid policies or certificates evidencing the
aforesaid insurance coverage, and renewal policies or certificates shall be
delivered to Landlord at least thirty (30) days prior to the expiration date of
each policy with proof of payment of the premiums thereof.
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Section 9.04 Landlord shall maintain fire and extended coverage
insurance covering the Building in an amount required by the mortgagee, and
shall also maintain liability insurance.
Section 9.05. Landlord and Tenant shall each secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge, then, the party benefitting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.05, and insofar
as may be permitted by the terms of the insurance policies carried by it, (i)
each party hereby releases the other with respect to any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damages or destruction with respect to its property by fire or other
casualty (including rental value or business interruption, as the case may be)
occurring during the term of this Lease covered by insurance and (ii) Tenant
releases other tenants but only to the extent that the policies of such other
tenants permit a similar waiver for the benefit of Tenant and such other tenant
gives such a waiver.
ARTICLE 10
Damage by Fire or Other Cause
Section 10.01. If the Demised Premises shall be damaged by fire or
other casualty, the damage shall be repaired by and at the expense of Landlord
and the minimum rent and additional rent pursuant to the provisions of Article
22 until such repairs shall be made, shall be apportioned according to the part
of the Demised Premises which is usable and accessable by Tenant. Landlord
shall have no responsibility to repair any damage to Tenant's work (as referred
to in Section 5.01), the same being the responsibility of Tenant. No penalty
shall accrue for delays
14
which may arise by reason of adjustment of insurance by Landlord, unavoidable
delays (as hereinafter defined), or any other cause beyond Landlord's reasonable
control. Tenant shall give notice to Landlord promptly upon learning thereof in
case of fire or other damage to the Demised Premises. If the Demised Premises
are totally or substantially damaged or are rendered wholly or substantially
unusable by fire or any such other casualty, or if the Building shall be so
damaged that Landlord shall decide to demolish it or to rebuild it (whether or
not the Demised Premises shall have been damaged), Landlord at its election may
terminate this Lease by written notice to Tenant, within ninety (90) days after
such fire or other casualty, and thereupon the term of this Lease shall expire
by lapse of time upon the third (3rd) day after such notice is given, and Tenant
shall vacate and surrender the Demised Premises to Landlord. However, if more
than twenty-five (25%) percent of the rentable square feet of the Demised
Premises shall be damaged during the last year of the term hereof, either
Landlord or Tenant, at its election, may terminate this Lease by written notice
to the other within sixty (60) days after such fire or other casualty, and
thereupon the term of this Lease shall expire upon the third (3/rd/) day after
such notice is given and Tenant shall vacate and surrender the Demised Premises
to Landlord. Tenant shall not be liable under this Lease for anything accruing
after the date of such expiration. Notwithstanding the foregoing, if Landlord
does not substantially complete such repairs within six (6) months from the date
of such casualty (as such period may be extended pursuant to Article 34), then
Tenant may elect to terminate this Lease by notice to Landlord within ten (10)
days following the expiration of such time period, and thereupon the term of
this Lease shall expire on the thirtieth (30/th/) day after such notice is given
and Tenant shall vacate and surrender the Demised Premises to Landlord, unless
within such thirty (30) day period, Landlord substantially completes such
repairs, in which event this Lease shall remain in full force and effect. Tenant
hereby waives the provisions of Section 227 of the Real Property Law, and the
provisions of this Article shall govern and control in lieu thereof.
Section 10.02. No damages of compensation shall be payable by Landlord
nor shall Tenant make any claim for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Demised Premises or
of the Building. Landlord shall use its best efforts to commence and effect
such repairs promptly and in such manner as not to unreasonably interfere with
Tenant's occupancy.
15
ARTICLE 11
Assignment, Subletting, Mortgaging
Section 11.01. Tenant will not, by operation of law or otherwise,
assign, mortgage or encumber this Lease, or sublet or permit the Demised
Premises or any part thereof to be occupied or used by others for desk space,
mailing privileges or otherwise, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld or delayed
subject to the provisions of Section 11.07. If this Lease be assigned, or if
the Demised Premises or any part thereof be underlet or occupied by anybody
other than Tenant, Landlord, may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to any assignment, subletting, mortgage or
encumbrance shall not in any manner be construed to relieve Tenant from
obtaining Landlord's express consent to any other or further assignment,
subletting, mortgage or encumbrance. In no event shall any permitted sublessee
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, which consent shall not be unreasonably withheld or delayed
subject to the provisions of Section 11.07.
Section 11.02. If Tenant shall at any time or times during the term of
this Lease desire to assign this Lease or sublet all or part of the Demised
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than
thirty (30) nor more than 180 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, and (c) current financial information with respect to the
proposed assignee or subtenant, including, without limitation, its most recent
financial report. Such notice shall be deemed an offer from Tenant to Landlord
whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such
space (hereinafter called the "Leaseback Space") from Tenant upon the terms and
conditions hereinafter set forth (if the proposed transaction is a sublease of
all or part of the Demised Premises), (ii) terminate this Lease (if the proposed
transaction is an assignment or a sublease (whether by one sublease or a series
of related or unrelated subleases) of all or substantially all of the
16
Demised Premises, or (iii) terminate this Lease with respect to the Leaseback
Space (if the proposed transaction is a sublease of part of the Demised
Premises). Said options may be exercised by Landlord by notice to Tenant at any
time within twenty (20) days after such notice has been given by Tenant to
Landlord; and during such twenty (20) day period Tenant shall not assign this
Lease nor sublet such space to any person.
Section 11.03. If Landlord exercises its option to terminate this
Lease in the case where Tenant desires either to assign this Lease or sublet
(whether by one sublease or a series of related or unrelated subleases) all or
substantially all of the Demised Premises, then this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the minimum rent and additional rent shall be paid and
apportioned to such date.
Section 11.04. If Landlord exercises its option to terminate this
Lease in part in any case there Tenant desires to sublet part of the Demised
Premises, then (a) this Lease shall end and expire with respect to such part of
the Demised Premises on the date that the proposed sublease was to commence; and
(b) from and after such date the minimum rent and additional rent shall be
adjusted, based upon the proportion that the rentable area of the Demised
Premises remaining bears to the total rentable area of the Demised Premises; and
(c) Landlord shall pay the costs incurred by Landlord in physically separating
such part of the Demised Premises from the balance of the Demised Premises and
in complying with any laws and requirements of any public authorities relating
to such separation.
Section 11.05. If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of minimum rent
and additional rent then payable pursuant to this Lease or (iii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease:
(a) shall 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 otherwise expressly set forth
to the contrary in this Section;
(b) Such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in
this Section;
17
(c) Such sublease shall give the sublesee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or
any interest therein and/or to sublet the Leaseback Space and to make any
and all changes, alterations, and improvements in the space covered by such
sublease at no cost or liability to Tenant and if the proposed sublease
will result in all or substantially all of the Demised Premises being
sublet, grant Landlord or its designee the option to extend the term of
such sublease for the balance of the term of this Lease less one (1) day;
(d) Such sublease shall provide that any assignee or further
subtenant, of Landlord or its designee, may, at the election of Landlord,
be permitted to make alterations, decorations and installations in the
Leaseback Space or any part thereof and shall also provide in substance
that any such alterations, decorations and installations in the Leaseback
Space therein made by any assignee or subtenant of Landlord or its designee
may be removed, in whole or in part, by such assignee or subtenant, at its
option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall
repair any damage and injury to that portion of the Leaseback Space so
sublet caused by such removal and restore to the condition such space was
in at the beginning of the sublease term for other than customary office
installations; and
(e) Such sublease shall also 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 subletting by Landlord or its designee (as
the subtenant) may be for any purpose or purposes that Landlord, in
Landlord's reasonable discretion, shall deem suitable or appropriate, (iii)
Landlord, at Tenant's expense, may make such alterations as may be required
or deemed necessary by Landlord to physically separate the Leaseback Space
from the balance of the Demised Premises and to comply with any laws and
requirements of public authorities relating to such separation, and (iv)
that at the expiration of the term of such sublease, Tenant will accept the
space covered by such sublease in its then existing condition, subject to
the obligations of the sublessee to make such repairs thereto as may be
necessary to restore the premises demised by such sublease to a comparable
condition as such space was in at the beginning of the sublease term.
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Section 11.06. (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.
(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 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 of this Lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord or by
any occupant thereof.
Section 11.07. In the event Landlord does not exercise an option
provided to it pursuant to Section 11.02 and provided that Tenant is not in
default in any of Tenant's obligations under this Lease, Landlord's consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld or
delayed, provided and upon condition that:
(a) Tenant shall have complied with the provisions of Section
11.02 and Landlord shall not have exercised any of its options under said
Section 11.02 within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant is
engaged in a business and the Demised Premises, or the relevant part
thereof, will be used in a manner which (i) is limited to the use expressly
permitted under Sections 4.01 and 4.02 of this Lease, and (ii) is in
keeping with the then standards of the Building;
(c) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(d) Neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by
19
or is under common control with, the proposed assignee or sublessee, is
then an occupant of any part of the Building other than the Demised
Premises;
(e) The proposed assignee or sublessee is not a person with whom
Landlord is currently negotiating to lease space in the Building;
(f) The proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the provisions of this
Article;
(g) At any one time there shall not be more than four (4)
unrelated subtenants (including Landlord or its designee) in the Demised
Premises;
(h) Tenant shall reimburse Landlord on demand for any reasonable
costs that may be incurred by Landlord in connection with said assignment
or sublease, including, without limitation, the reasonable costs incurred
in making investigations as to the acceptability of the proposed assignee
or subtenant, and reasonable legal costs incurred in connection with the
granting of any requested consent;
(i) Tenant shall not have (i) advertised in any way the
availability of the Demised Premises without prior notice to Landlord, or
(ii) listed the Demised Premises at a rental rate less than the minimum
rent or additional rent at which Landlord is then offering to lease other
space in the Building; and
(j) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in and the jurisdiction of the courts of
New York State.
Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment for the minimum rent and additional rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions
20
contained in this Lease on the part of Tenant to be performed and all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. Tenant
further agrees that notwithstanding any such subletting, no other person
claiming through or under Tenant (except as provided in Section 11.05) shall or
will be made except upon compliance with and subject to the provisions of this
Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease (provided landlord has not unreasonably withheld or
delayed its consent), or if Landlord shall exercise its option under Section
11.02, Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. Notwithstanding the foregoing, Tenant, without
Landlord's consent, may allow a portion of the Demised Premises to be occupied
by a wholly owned subsidiary or an affiliate or related entity controlled by or
under common control with Tenant, provided such occupancy shall not create any
landlord and tenant relationship or privity as between Landlord and any such
occupant and Tenant shall give Landlord prior reasonable notice of such proposed
occupancy. Such occupancies shall not be counted towards the total allowed under
Section 11.07(g), and Landlord has no rights of termination or recapture with
respect to such occupancies.
Section 11.08. In the event that (a) Landlord fails to exercise its
options under Section 11.02 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 ninety (90) days after the giving of such consent,
then, Tenant shall again comply with all of the provisions and conditions of
Section 11.02 before assigning this Lease or subletting all or part of the
Demised Premises.
Section 11.09. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
21
(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, re-entry or
dispossess by Landlord under this Lease Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except
that Landlord shall not (i) be liable for any previous act or omission of
Tenant under such sublease, (ii) be subject to any offset, not expressly
provided in such sublease, which thereto accrued to such subtenant against
Tenant, or (iii) be bound by any previous modification of such sublease or
by any previous prepayment of more than one month's rent.
Section 11.10. If Landlord gives its consent to any assignment of this
Lease or to any sublease, Tenant shall, in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment of this Lease or an assignment
by any sublease, an amount equal to one-half of all sums and other
considerations paid to Tenant from the assignee for such assignment or paid
to Tenant by any sublessee or other person claiming through or under Tenant
for such assignment (including, but not limited to sums paid for the sale
of Tenant's or sublessee's fixtures, leasehold improvements, less, in case
of a sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section 11.10(a) shall be
paid to Landlord as and when paid by such assignee to Tenant; and
(b) in the case of a sublease, an amount equal to one-half of the
rents and charges and other consideration payable under the sublease to
Tenant by the subtenant or paid to Tenant by any such sublessee or other
person claiming through or under Tenant in connection with such subletting
which is in excess of all rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by
Tenant hereunder or such sublessee) pursuant to the terms of this Lease
(including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, less, in the case of the sale
thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of Tenant's or sublessee's federal income tax returns). The
sums
22
payable to Landlord under this Section 11.10(b) shall be paid to Landlord
as and when paid by such subtenant to Tenant.
(c) For the purposes of computing the sums payable by Tenant to
Landlord under subparagraphs (a) and (b) hereof, there shall be first
excluded from the consideration payable to Tenant by any assignee or
sublessee any transfer taxes, rent concession, reasonable attorneys' fees,
reasonable brokerage commissions, advertising costs and fix-up costs paid
by Tenant with respect to such assignment or subletting, but only to the
extent any such sums are allocable to the period of this Lease (in the case
of any assignment), or the term of any sublease.
Section 11.11. If Tenant or any subtenant is a corporation,
partnership, limited liability company or other entity, the provisions of
Section 11.01 shall apply to a transfer (by one or more transfers) of a majority
of the stock, partnership, membership or other ownership interests or transfer
of all or substantially all of the assets of Tenant or such subtenant, as the
case may be, as if such transfer of a majority of the stock, partnership,
membership or other ownership interests or all or substantially all of the
assets of Tenant or such subtenant were an assignment of this Lease; but said
provisions and the provisions of Sections 11.02 and 11.10 shall not apply to
transactions with a corporation, partnership, limited liability company or
other entity into or with which Tenant or such subtenant is merged or
consolidated, or to which all or substantially all of the assets of Tenant are
transferred, or to any corporation, partnership, limited liability company or
other entity which controls or is controlled by Tenant or such subtenant or is
under common control with Tenant or such subtenant, provided that in any of such
events (i) the successor to Tenant or such subtenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant or such subtenant immediately prior to
such merger, consolidation or transfer, or (2) the net worth of Tenant herein
named on the date of this Lease or the net worth of such subtenant on the date
of such sublease, and (ii) 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. Notwithstanding the foregoing, without
Landlord's consent, subject to the provisions of Section 11.11 Tenant may assign
this Lease, or subject to the provision of the last paragraph of Section 11.07
and Section 11.09 Tenant may sublet a part of the Demised Premises, to a
controlled subsidiary or controlled affiliate of Tenant or of the Guarantor, or
to the Guarantor of this Lease, provided a duly executed counterpart of such
assignment together with the assumption by the assignee or duly executed
counterpart of such sublease, as the case may be, is delivered to Landlord at
least ten (10) days prior to its effective date. Such subleases shall not be
counted towards the total allowed under Section 11.07(g) and Landlord has no
rights of
23
termination or recapture with respect to the subleases or assignments permitted
in this Section 11.11.
Section 11.12. Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.06 or without Landlord's consent
pursuant to Section 11.10, 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 reasonably satisfactory to Landlord whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in this Article 11 shall, notwithstanding such assignment or transfer, continue
to be binding upon it in respect of all future assignments and transfers. The
original named Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of minimum rent and/or additional rent by
Landlord from an assignee, transferee, or any other party, the original named
Tenant shall remain fully liable for the payment of the minimum rent and
additional rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed.
Section 11.13. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
Section 11.14. The listing of any name ot her than that of Tenant,
whether on the doors of the Demised Premises, or the Building directory, if any,
or otherwise, shall not operate to vest any right or interest in this Lease or
in the Demised Premises, nor shall it be deemed to be the consent of Landlord to
any assignment or transfer of this Lease, to any sublease of the Demised
Premises, or to the use or occupancy thereof by others. Landlord at its cost,
shall provide Tenant up to thirty (30) listings in the main lobby for Tenant and
permitted occupants and subtenants.
24
ARTICLE 12
Liability and Indemnity by Landlord and Tenant
Section 12.01. Each party shall indemnify the other against and save
the other harmless from any liability to and claim by or on behalf of any
person, firm, governmental authority, corporation or entity for personal injury,
death or property damage, arising:
(a) (i) with respect to Tenant, from its use of the Demised
Premises, or from any work whatsoever done or omitted to be done by Tenant,
its employees, agents, contractors, customers, invitees or visitors, or
from any accident thereat, and (ii) with respect to Landlord, from any work
whatsoever done or omitted to be done in the Building by Landlord, its
agents, contractors or employees; and
(b) from any breach or default by either party of and under any
of the terms, covenants and conditions of this Lease on such party's part
to be performed.
Each party also shall indemnify the other against and save the other
harmless from all costs, reasonable counsel fees, expenses and penalties
incurred by the other in connection with any such liability or claim other than
such liability or claim incurred as a result of such party's negligence or
willful misconduct.
If any action or proceeding shall be brought against either party in
connection with any such liability or claim, the other party (the "Indemnitor")
, on notice from the party against whom such action or proceeding was commenced
(the "Indemitee"), shall defend such action or proceeding, at the Indemnitor's
expense, by counsel reasonably satisfactory to the Indemnitee, or by the
attorney for the Indemnitor's insurance carrier whose insurance policy covers
the liability or claim.
Section 12.02. Landlord shall not 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, except if due to
the negligence or willful act of Landlord, its agents, contractors or employees.
Landlord and its agents shall not be liable for any injury or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, except if due to the negligence or willful act of Landlord, its agents,
contractors or employees; nor shall Landlord be liable for
25
any such damage caused by other tenants or persons in the Building or caused by
operations in construction of any public or quasi-public work. If, at any time
any windows of the Demised Premises are permanently closed, darkened or bricked
up by reason of the requirements of law or temporarily closed or darkened by
reason of repairs, alterations or maintenance by 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 rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
Tenant shall give immediate notice to Landlord upon its discovery of
accidents in the Demised Premises.
Section 12.03. (a) If in this Lease it is provided that Landlord's
consent or approval as to any matter will not be unreasonably withheld, and
it is established by a court or body having final jurisdiction thereover
that Landlord has been unreasonable, the only effect of such finding shall
be that Landlord shall be deemed to have given its consent or approval; but
Landlord shall not be liable to Tenant in any respect for money damages by
reason of withholding its consent.
(b) In the event of any dispute under Section 11.07 relating to
the reasonableness of the withholding of a consent or approval by Landlord,
Tenant shall have the right to submit such dispute to binding arbitration
under the Expedited Procedures provisions (Rules 53 through 57 and, to the
extent applicable, Section 19, in the current edition) of the Commercial
Arbitration rules of the American Arbitration Association ("AAA") provided,
however, that with respect to any such arbitration: (i) the list of
arbitrators referred to in Rule 54 shall be returned within five (5)
business days from the date of mailing, (ii) the parties shall notify the
AAA, by telephone, within four (4) business days of any objections to the
arbitrator appointed and will have no right to object if the arbitrator so
appointed was on the list submitted by the AAA and was not objected to in
accordance with Rule 54, (iii) the Notice of Hearing referred to in Rule 55
shall be four (4) business days in advance of the hearing, and (iv) the
hearing shall be held within seven (7) business days after the appointment
of the arbitrator. The sole issue to be submitted to the arbitrator, which
shall be included as part of his oath shall be the reasonableness of
Landlord's determination to withhold consent or approval under the
provisions of this Lease. The decision of the arbitrator shall be final and
conclusive and the arbitrator shall not have any right or power to
consider, determine or resolve any other issue or dispute between the
parties, or
26
to alter, modify or amend any of the provisions of this Lease. The part
subject to an adverse arbitral determination shall be responsible for all
reasonable costs and fees of such arbitration.
ARTICLE 13
Moving of Heavy Equipment
Tenant shall not move any safe, heavy equipment or bulky matter in or
out of the Building without Landlord's written consent, which shall not be
unreasonably withheld. If the movement of such items requires special handling,
Tenant agrees to employ only persons holding a Master Rigger's License to do
said work and all such work shall be done in full compliance with the
Administrative Code of the City of New York and other municipal requirements.
All such movements shall be made during hours which will least interfere with
the normal operations of the Building, and all damage caused by such movement
shall be promptly repaired by Tenant at Tenant's expense.
ARTICLE 14
Condemnation
Section 14.01. In the event that the whole or more than ten (10%)
percent of the Demised Premises shall be condemned or taken in any manner for
any public or quasi-public use, this Lease and the term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting of title.
In the event that ten (10%) percent or less of the Demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the
minimum rent and additional rent hereunder for such part shall be equitably
abated and this Lease shall continue as to such part not so taken. In the event
that only a part of the Building shall be so condemned or taken, then (a) if
substantial structural alteration or reconstruction of the Building shall, in
the opinion of Landlord, be necessary or appropriate as a result of such
condemnation or taking (whether or not the Demised Premises be affected),
Landlord may, at its option, terminate this Lease and the term and estate hereby
granted as of the date of such vesting of title by notifying Tenant in writing
of such termination within sixty (60) days following the date on which Landlord
shall have received notice of the vesting of title, or (b) if Landlord does not
elect to terminate this
27
Lease, as aforesaid, this Lease shall be and remain unaffected by such
condemnation or taking, except that the minimum rent and additional rent shall
be abated to the extent, if any, hereinbefore provided. In the event that only a
part of the Demised Premises shall be so condemned or taken and this Lease and
the term and estate hereby granted are not terminated as hereinbefore provided,
Landlord, out of the portion of the award allocated for such purpose, will
restore with reasonable diligence the remaining structural portions of the
Demised Premises as nearly as practicable to the same condition as it was in
prior to such condemnation or taking.
Section 14.02. In the event of termination in any of the cases
hereinabove provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date and the rent hereunder shall be apportioned as of such date.
Section 14.03. In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award. Notwithstanding the
foregoing, Tenant may make a separate claim for Tenant's moveable trade fixtures
and moving expenses, provided the same shall not affect or reduce Landlord's
award.
ARTICLE 15
Entry, Right to Change Public Portions of the Building
Section 15.01. Tenant shall permit Landlord to erect, use and maintain
pipes and conduits in and through the walls, within the ceiling or below the
floors of the Demised Premises. Landlord, or its agents or designee shall have
the right, on prior written notice (except no notice in an emergency), to enter
the Demised Premises for the purpose of making such repairs or alterations as
Landlord shall desire, shall be required or shall have the right to make under
the provisions of this Lease; and shall also have the right to enter the Demised
Premises for the purpose of inspecting them or exhibiting them to prospective
purchasers or lessees of the entire Building or to prospective mortgagees or to
prospective assignees of any such mortgagees. Landlord shall, during the
progress of any work in the Demised Premises, be allowed to take all material
into and upon the Demised Premises that may be required for the repairs or
alterations above mentioned without the same
28
constituting an eviction of Tenant in whole or in part and the rent reserved
shall in no wise xxxxx, except as otherwise provided in this Lease, while said
repairs or alterations are being made. However, Landlord shall use reasonable
efforts to make such repairs or alterations in a manner to minimize its
interference with the normal conduct of Tenant's business, provided Landlord
shall not be required to employ overtime or premium labor.
Section 15.02. During the twelve (12) months prior to the expiration
of the term of this Lease, Landlord may exhibit the Demised Premises to
prospective tenants.
Section 15.03. Landlord shall have the right at any time without
thereby creating an actual or constructive eviction or incurring any liability
to Tenant therefor, to change the arrangement or location of such of the
following as are not contained within the Demised Premises: entrances,
passageways, doors and doorways, corridors, elevators, stairs, toilets, and
other like public service portions of the Building; and to put so-called "solar
film" or other energy-saving installations on the inside and outside of the
windows. All parts (except surfaces facing the interior of the Demised
Premises) of all walls, windows and doors bounding the Demised Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all space in or adjacent to the Demised 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 Demised Premises and Landlord shall have
the use thereof, as well as access thereto through the Demised Premises for the
purposes of operation, maintenance, alteration and repair. However, Landlord
shall use reasonable efforts to make such repairs or alterations in a manner to
minimize its interference with the normal conduct of Tenant's business, provided
Landlord shall not be required to employ overtime or premium labor.
Section 15.04. Landlord shall have the right at any time to name the
Building as it desires and to change any and all such names at any time
thereafter.
ARTICLE 16
Conditional Limitations, Etc.
Section 16.01. If at any time during the term of this Lease:
29
(a) Tenant or the guarantor of this Lease shall file a petition
in bankruptcy or insolvency or for reorganization or arrangement or for the
appointment of a receiver of all or a portion of Tenant's or such
guarantor's property, or
(b) Any petition of the kind referred to in subdivision (a) of
this Section shall be filed against Tenant or such guarantor and such
petition shall not be vacated, discharged or withdrawn within ninety (90)
days, or
(c) Tenant or such guarantor shall be adjudicated a bankrupt by
any court, or
(d) Tenant or such guarantor shall make an assignment for the
benefit of creditors, or
(e) a permanent receiver shall be appointed for the property of
Tenant or such guarantor by order of a court of competent jurisdiction by
reason of the insolvency of Tenant or such guarantor (except where such
receiver shall be appointed in an involuntary proceeding, if he shall not
be withdrawn within ninety (90) days after the date of his appointment),
then Landlord, at Landlord's option, may terminate this Lease on five (5) days'
notice to Tenant, and upon such termination, Tenant shall quit and surrender the
Demised Premises to Landlord.
Section 16.02 (a) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. (S)
101 et seq. (the "Bankruptcy Code") to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment, setting
forth (i) the name and address of such person, (ii) all of the terms and
conditions of such offer, and (iii) the adequate assurance to be provided
Landlord to assure such person's future performance under the Lease,
including, without limitation, the assurance referred to in section
365(b)(1) of the Bankruptcy Code, shall be given to Landlord by Tenant not
later than twenty (20) days after receipt by Tenant but in no event later
than ten (10) days prior to the date that Tenant shall make application to
a court of competent jurisdiction for authority and approval to enter into
such assignment and assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept
30
an assignment of this Lease upon the same terms and conditions and for the
same consideration, if any, as the bona fide offer made by such person,
less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
(b) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting Landlord's Property
under the preceding sentence not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly paid to
Landlord.
(c) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed without further
act or deed to have assumed all of the obligations arising under this Lease
on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such
assumption.
(d) Nothing contained in this Section shall, in any way,
constitute a waiver of the provisions of this Lease relating to assignment.
Tenant shall not, by virtue of this Section, have any further rights
relating to assignment other than those granted in the Bankruptcy Code.
(e) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of Section 502(b)(6) of the Bankruptcy Code.
(f) The term "Tenant" as used in this Section includes any
trustee, debtor in possession, receiver, custodian or other similar
officer.
Section 16.03. If this Lease shall terminate pursuant to the
provisions of Section 16.01:
31
(a) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the difference between the minimum rent and
additional rent for the unexpired portion of the term of this Lease which
had been in force immediately prior to the termination effected under
Section 16.01 of this Article and the fair and the reasonable rental value
of the Demised Premises, on the date of termination, for the same period,
both discounted at the rate of eight (8%) percent per annum to the date of
termination; or
(b) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the maximum allowed by statute or rule of law
in effect at the time when and governing the proceedings in which such
damages are to be proved, whether or not such amount be greater or less
than the amount referred to in subdivision (a) of this Section.
Section 16.04. (a) If Tenant shall fail to make any payment of any
minimum rent or additional rent when the same becomes due and payable, or
if the Demised Premises become deserted, or if Tenant shall fail to cancel
or discharge any mechanic's lien or other lien within the time period as
provided in Section 17.02, and if any of the foregoing defaults shall
continue for a period of seven (7) days after notice thereof by Landlord,
or
(b) If Tenant shall be in default in the performance of any of
the other terms, covenants and conditions of this Lease and such default
shall not have been remedied within thirty (30) days after notice by
Landlord to Tenant specifying such default and requiring it to be remedied;
or where such default reasonably cannot be remedied within such period of
thirty (30) days, if Tenant shall not have commenced the remedying thereof
within such period of time and shall not be proceeding with due diligence
to remedy it,
then Landlord, at Landlord's election, may terminate this Lease on five (5)
days' notice to Tenant, and upon such termination Tenant shall quit and
surrender the Demised Premises to Landlord.
Section 16.05. If this Lease shall terminate as provided in this
Article or if Tenant shall be in default in the payment of minimum rent or
additional rent when the same become due and payable, and such default shall
continue for a period of seven (7) days after notice by Landlord to Tenant,
32
(a) Landlord may re-enter and resume possession of the Demised
Premises and remove all persons and property therefrom either by summary
dispossess proceedings or by a suitable action or proceeding, at law or in
equity, or by force or otherwise, without being liable for any damages
therefor, and
(b) Landlord may re-let the whole or any part of the Demised
Premises for a period equal to, greater or less than the remainder of the
then term of this Lease, at such rental and upon such terms and conditions
as Landlord shall deem reasonable to any tenant it may deem suitable and
for any use and purpose it may deem appropriate. Landlord shall not be
liable in any respect for failure to re-let the Demised Premises or, in the
event of such re-letting, for failure to collect the rent thereunder and
any sums received by Landlord on a re-letting in excess of the rent
reserved in this Lease shall belong to Landlord.
Section 16.06. If this Lease shall terminate as provided in this
Article or by summary proceedings (except as to any termination under Section
16.01), Landlord shall be entitled to recover from Tenant as damages, in
addition to arrears in minimum rent and additional rent,
(a) an amount equal to (i) all expenses incurred by Landlord in
recovering possession of the Demised Premises and in connection with the
reletting of the Demised Premises, including, without limitation, the cost
of repairing, renovating or remodeling the Demised Premises, (ii) the cost
of performing any work required to be done by Tenant under this Lease,
(iii) the cost of placing the Demised Premises in the same condition as
that in which Tenant is required to surrender them to Landlord under this
Lease, and (iv) all brokers' commissions and legal fees incurred by
Landlord in reletting the Demised Premises, which amounts set forth in this
subdivision (a) shall be due and payable by Tenant to Landlord at such time
or times as they shall have been incurred; and
(b) an amount equal to the deficiency between the minimum rent
and additional rent which would have become due and payable had this Lease
not terminated and the net amount, if any, of rent collected by Landlord on
re-letting the Demised Premises. The amounts specified in this subdivision
shall be due and payable by Tenant on the several days on which such
minimum rent and additional rent would have become due and payable had this
Lease not terminated. Tenant consents that Landlord shall be entitled to
institute
32
separate suits or actions or proceedings for the recovery of such amount or
amounts, and Tenant hereby waives the right to enforce or assert the rule
against splitting a cause of action as a defense thereto.
Landlord, at its election, which shall be exercised by the
service of a notice on Tenant, at any time after such termination of this Lease,
may collect from Tenant and Tenant shall pay, in lieu of the sums becoming due,
under the provisions of subdivision (b) of this Section, an amount equal to the
difference between the minimum rent and additional rent which would have become
due and payable had this Lease not terminated (from the date of the service of
such notice to the end of the term of this Lease which had been in force
immediately prior to any termination effected under this Article) and the then
fair and reasonable rental value of the Demised Premises for the same period,
both discounted to the date of the service of such notice at the rate of eight
(8%) percent per annum.
Section 16.07. Tenant, for itself and for all persons claiming through
or under it, hereby waives any and all rights which are or may be conferred upon
Tenant by any present or future law to redeem the Demised Premises after a
warrant to dispossess shall have been issued or after judgment in an action of
ejectment shall have been made and entered.
Section 16.08. The words "re-enter" and "re-entry", as used in this
Article, are not restricted to their technical legal meanings.
Section 16.09. Landlord shall not be required to give any notice of
its intention to re-enter, except as otherwise provided in this Lease.
Section 16.10. In any action or proceeding brought by Landlord against
Tenant, predicated on a default in the payment of minimum rent or additional
rent, Tenant shall not have the right to and shall not interpose any set-off or
counterclaim of any kind whatsoever, other than a claim which would be legally
barred for failure to raise as a counterclaim in such action or proceeding. If
Tenant has any claim, Tenant shall be entitled only to bring an independent
action therefor; and if such independent action is brought by Tenant, Tenant
shall not be entitled to and shall not consolidate it with any pending action or
proceeding brought by Landlord against Tenant for a default in the payment of
minimum rent or additional rent.
34
ARTICLE 17
Mechanic's Liens
Section 17.01. If, subject to and notwithstanding Landlord's consent
as required under this Lease, Tenant shall cause any changes, alterations,
additions, improvements, installations or repairs to be made to or at the
Demised Premises or shall cause any labor to be performed or material to be
furnished in connection therewith, neither Landlord nor the Demised Premises,
under any circumstances, shall be liable (except for Landlord's payment
obligations pursuant to Article 38) for the payment of any expense incurred or
for the value of any work done or material furnished, and all such changes,
alterations, additions, improvements, installations and repairs and labor and
material shall be made, furnished and performed upon Tenant's credit alone and
at Tenant's expense, and Tenant shall be solely and wholly responsible to
contractors, laborers, and materialmen furnishing and performing such labor and
material. Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, to
any contractor, laborer or materialman to furnish or to perform any such labor
or material.
Section 17.02. If, because of any act or omission (or alleged act or
omission) of Tenant any mechanic's or other lien, charge or order for the
payment of money shall be filed against the Demised Premises or the Building or
Landlord's estate as tenant under any ground or underlying lease (whether or not
such lien, charge or order is valid or enforceable as such), for work claimed to
have been for, or materials furnished to, Tenant, Tenant, at Tenant's expense,
shall cause it to be cancelled or discharged of record by bonding or otherwise
within twenty (20) days after such filing, and Tenant shall indemnify Landlord
against and save Landlord harmless from and shall pay all reasonable costs,
expenses, losses, fines and penalties, including, without limitation, reasonable
attorneys' fees, resulting therefrom.
ARTICLE 18
Landlord's and Tenant's Right to Perform Obligations
Section 18.01. If Tenant shall default in the performance of any of
the terms or covenants and conditions of this Lease, Landlord, without being
under any obligation to do so and without hereby waiving such default, may
remedy such default for the account and at the expense of Tenant. Any payment
made or
35
expense incurred by Landlord for such purpose (including, but not limited to,
reasonable attorneys' fees) with interest at the maximum legal rate, shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Landlord
on demand, or at Landlord's election, added to any subsequent installment or
installments of minimum rent.
Section 18.02. If Landlord shall fail to perform any repair or
maintenance obligation required to be performed by Landlord in the Demised
Premises pursuant to the provisions of this Lease, then Tenant shall give
Landlord written notice (the "Repair Notice") stating the repair or maintenance
obligation which affects the Demised Premises. If Landlord fails to remedy the
condition set forth in the Repair Notice within thirty (30) days after it was
given, then to the extent such repair or maintenance may be performed by Tenant
solely within the Demised Premises, Tenant may perform the same. Landlord shall
reimburse Tenant for the reasonable, actual costs and expenses of performing the
same, within twenty (20) after receipt from Tenant of paid receipts therefor,
together with waivers of liens with respect thereto.
ARTICLE 19
Covenant of Quiet Enjoyment
Landlord covenants that upon Tenant paying the minimum rent and
additional rent and observing and performing all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, Tenant
and all persons claiming through or under Tenant may peaceably and quietly enjoy
the Demised Premises, subject nevertheless to the terms and conditions of this
Lease, and provided, however, that no eviction of Tenant by reason of the
foreclosure of any mortgage now or hereafter affecting the Demised Premises,
whether such termination is by operation of law, by agreement or otherwise,
shall be construed as a breach of this covenant nor shall any action be brought
against Landlord by reason thereof.
36
ARTICLE 20
Excavation
In the event that construction is to be commenced or an excavation is
made or authorized for building or other purposes upon land adjacent to the
Building, Tenant shall, if necessary, afford to the person or persons causing or
authorized to commence construction or cause such excavation or to engage in
such other purpose, license to enter upon the Demised Premises for the purpose
of doing such work as shall reasonably be necessary to protect or preserve the
Building, from injury or damage and to support the Building and any new
structure to be built by proper foundations, pinning and/or underpinning, or
otherwise. However, Landlord shall cause reasonable efforts to be made to have
such work performed in a manner to minimize any interference with the normal
conduct of Tenant's business, provided overtime or premium labor shall not be
required to be employed to perform such work.
ARTICLE 21
Services and Equipment
Section 21.01. Landlord shall, at its cost and expense:
(a) Provide operatorless passenger elevator service Mondays
through Fridays from 8:00 A.M. to 6:00 P.M., holidays excepted. A passenger
elevator will be available at all other times. A freight elevator shall be
available Mondays through Fridays, holidays excepted, only from 8:00 to
6:00 P.M. The freight elevator shall be available on a "first come, first
served" basis during the said days and hours and on a reservation "first
come, first served" basis other than on said days and hours at Landlord's
customary charges therefor.
(b) Maintain and repair the Building standard heating,
ventilating and air conditioning system servicing the Demised Premises (the
"HVAC System") installed by Landlord, except for those repairs which are
the obligation of Tenant pursuant to Article 6 of this Lease. The HVAC
System will be operated by Landlord as and when required by law, or for the
comfortable occupancy of the Demised Premises (as determined by Landlord)
throughout the year on Mondays through Fridays, holidays excepted, from
8:00 A.M. to 6:00 P.M.; provided that
37
Tenant shall draw and close the draperies or blinds for the windows of the
Demised Premises whenever the HVAC system is in operation and the position
of the sun so requires and shall, at all times, cooperate fully with
Landlord and abide by all of the Rules and Regulations which Landlord may
prescribe for the proper functioning of the HVAC System. Landlord agrees to
operate the HVAC System servicing the Demised Premises in accordance with
their design criteria unless energy and/or water conservation programs,
guidelines or laws and/or requirements of public authorities, shall provide
for any reduction in operations below said design criteria in which case
such equipment shall be operated so as to provide reduced service in
accordance therewith. Tenant expressly acknowledges that some or all
windows are or may be hermetically sealed and will not open and Landlord
makes no representation as to the habitability of the Demised Premises at
any time the HVAC System is not in operation. Tenant hereby expressly
waives any claims against Landlord arising out of the cessation of
operation of the HVAC System, or the suitability of the Demised Premises
when the same is not in operation, whether due to normal scheduling or the
reasons set forth in Section 21.03. Said system is designed to be capable
of manufacturing, within tolerances normal in first-class office buildings,
inside space conditions averaging 78 degrees Fahrenheit dry bulb and 50%
relative humidity when outside conditions are 95 degrees Fahrenheit dry
bulb and 75 degrees Fahrenheit wet bulb, and a temperature of not lower
than an average of 68 degrees Fahrenheit when outside temperature is 50
degrees Fahrenheit or lower. Landlord will not be responsible for the
failure of the HVAC System if such failure results from the occupancy of
the Demised Premises by more than an average of one (1) person for each one
hundred (100) square feet in any separate room or area, and upon a combined
lighting and standard electrical load not to exceed three (3) xxxxx per
usable square foot (excluding the Building HVAC), or if Tenant shall
install and operate machines, incandescent lighting and appliances the
total connected electrical load in excess of the Building's electrical
specifications, as determined by Landlord's consulting engineers. If Tenant
shall occupy the Demised Premises at an occupancy rate of greater than that
for which the HVAC System was designed, or if the total connected
electrical load is in excess of the Building's electrical specifications,
as determined by Landlord's consulting engineers, or if Tenant's partitions
shall be arranged in such a way as to interfere with the normal operation
of the HVAC System, Landlord may elect to make changes to the HVAC System
or the ducts through which it operates required by reason thereof, and the
cost thereof shall be reimbursed by Tenant to Landlord, as additional rent,
38
within twenty (20) days after presentation of a xxxx therefor. Landlord,
throughout the term, shall have free access to all mechanical installations
of Landlord, including but not limited to air-cooling, fan, ventilating and
machine rooms and electrical closets, and Tenant shall not construct
partitions or other obstructions that may interfere with Landlord's free
access thereto, or interfere with the moving of Landlord's equipment to and
from the enclosures containing said installations. Neither Tenant nor any
person or entity within Tenant's control shall at any time enter the said
enclosures or tamper with, adjust, touch or otherwise in any manner affect
said mechanical installations, except as set forth herein with respect to
the thermostatic controls within the Demised Premises.
(c) Provide Building standard cleaning services in Tenant's
office space and public portions of the Building, except no services shall
be performed Saturdays, Sundays and holidays, in accordance with Schedule
"D" annexed hereto and made part hereof. If, however, any additional
cleaning of the Demised Premises is to be done by Tenant, it shall be done
at Tenant's sole expense, in a manner reasonably satisfactory to Landlord
and no one other than persons approved by Landlord shall be permitted to
enter the Demised Premises or the Building for such purpose. Tenant, at its
own cost, may utilize its own employees or outside contractors to perform
additional cleaning services in the Demised Premises, provided such
employees or outside contractors do not cause any labor disruption or
dispute or violate Landlord's union contracts affecting the Building.
However, such use of outside contractors shall be subject to the right of
Landlord to match the costs chargeable by such outside contractors, in
which event Landlord shall perform such services at such cost, to be paid
by Tenant within twenty (20) days after being billed therefor. Tenant shall
pay to Landlord the cost of removal of any of Tenant's refuse and rubbish
from the Demised Premises and the Building (i) to the extent that the same,
in any one day, exceeds the average daily amount of refuse and rubbish
usually attendant upon the use of such Demised Premises as offices, as
described and included in Landlord's cleaning contract for the Building or
recommended by Landlord's cleaning contractor, and (ii) related to or
deriving from the preparation or consumption of food or drink, excluding
food or drink for normal business use. Bills for the same shall be rendered
by Landlord to Tenant at such time as Landlord may elect and shall be due
and payable as additional rent within twenty (20) days after the time
rendered. Tenant, at Tenant's expense, shall cause the Demised Premises to
be exterminated from time to time to the satisfaction of
39
Landlord and additionally shall cause all portions of the Demised Premises
used for the storage, preparation, service or consumption of food or
beverages to be cleaned daily in a manner reasonably satisfactory to
Landlord, and to be treated against infestation by vermin, rodents or
roaches, whenever there is evidence of any infestation. Tenant shall not
permit any person to enter the Demised Premises or the Building for the
purpose of providing such extermination services, unless such persons have
been approved by Landlord. If so requested by Landlord, Tenant shall store
any refuse generated by the consumption of food or beverages on the Demised
Premises in a cold box or similar facility.
(d) Furnish hot and cold water for lavatory and drinking
purposes. If Tenant requires, uses or consumes water for any other
purposes, Landlord may install a meter or meters or other means to measure
Tenant's water consumption, and Tenant shall reimburse Landlord for the
cost of the meter or meters and the installation thereof, and shall pay for
the maintenance of said meter equipment and/or pay Landlord's cost of other
means of measuring such water consumption by Tenant. Tenant shall pay to
Landlord on demand the cost of all water consumed as measured by said meter
or meters or as otherwise measured, including sewer rents.
(e) If Tenant shall require and request any of the foregoing
services at times other than above provided, and if such request is made at
least twenty-four (24) hours prior to the time when such additional
services are required, Landlord will provide them and Tenant shall pay to
Landlord promptly thereafter the charges therefor at the then Building
standard rate charged to other tenants in the Building.
Section 21.02. Holidays shall be deemed to mean all federal holidays,
state holidays and Building Service Employees Union Contract holidays.
Section 21.03. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Lease when
necessary by reason of accident, emergency, mechanical breakdown or when
required by any law, order or regulation of any Federal, State, County or
Municipal authority, or for any other cause beyond the control of Landlord.
Landlord shall use due diligence to complete all required repairs or other
necessary work as quickly as possible so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will reasonably
permit. Except as otherwise provided in this Lease, Tenant shall not be
entitled to nor shall Tenant make claim for any
40
diminution or abatement of minimum rent or additional rent or other
compensation, nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of such interruption, curtailment, suspension,
work or inconvenience.
Section 21.04. Tenant shall reimburse Landlord promptly for the actual
out-of-pocket cost to Landlord of removal from the Demised Premises and the
Building of any refuse and rubbish of Tenant not covered by the Cleaning
Specifications (Schedule D) and Tenant shall pay all bills therefor when
rendered.
Section 21.05. If Tenant shall request Landlord to furnish any
services in addition to those hereinabove provided or perform any work not
required under this Lease, and Landlord agrees to furnish and/or perform the
same, Tenant shall pay to Landlord promptly thereafter the charges therefor,
which charges are deemed to be additional rent and payable as such.
Section 21.06. Landlord shall provide security in the Building lobby
and Tenant shall have access to the Demised Premises twenty-four (24) hours per
day, seven (7) days per week, subject to emergencies, police power and Article
34.
Section 21.07. Landlord represents that the Building facility
equipment is Y2K ready and the Building shall be operated and maintained as a
first-class building similar to other first-class buildings in the vicinity of
the Building.
ARTICLE 22
Escalation
Section 22.01. Taxes. Tenant shall pay to Landlord, as additional
rent, tax escalation in accordance with this Section:
(a) Definitions: For the purpose of this Section, the following
definitions shall apply:
(i) The term "Tax Base Factor" shall mean the average
of the real estate taxes for the Building Project for the
periods from July 1, 1998 to June 30, 1999, and from July 1,
1999 to June 30, 2000, as finally determined.
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(ii) The term "The Building Project" shall mean the
parcel of Land described in Schedule B of this Lease with
all improvements erected thereon.
(iii) The term "Comparative Tax Year" shall mean the
New York City real estate tax year commencing on July 1,
2000 and each subsequent New York City real estate tax year.
If the present use of July 1-June 30 New York City real
estate tax year shall hereafter be changed, then such
changed tax year shall be used with appropriate adjustment
for the transition.
(iv) The term "Real Estate Taxes" shall mean the total
of all taxes and special or other assessments and charges of
any Special Business Improvement District levied, assessed
or imposed at any time by any governmental authority: (a)
upon or against the Building Project, and (b) in connection
with the receipt of income or rents from the Building
Project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or
additions or increases thereof. Income, franchise, transfer,
inheritance, corporate, mortgage recording or capital stock
taxes of Landlord, or penalties or interest thereon, shall
be excluded from "Real Estate Taxes" for the purposes
hereof. If, due to a future change in the method of taxation
or in the taxing authority, or for any other reason, a
franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied
against Landlord in substitution in whole or in part for the
Real Estate Taxes, or in lieu of or addition to or increase
of Real Estate Taxes, then such franchise, income, transit,
profit or other tax or governmental imposition shall be
included within "Real Estate Taxes." Tenant acknowledges
that the Tax Escalation Payment (as hereinafter defined)
constitutes a method by which Landlord is seeking to
compensate for increases in expenses and that the Tax
Escalation Payment shall be calculated and paid by Tenant to
Landlord whether or not Real Estate Taxes have then been
paid by Landlord.
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(v) The term "the Percentage" for purposes of computing
tax escalation, shall mean 3.429%.
(b) (i) In the event that the Real Estate Taxes payable for
any Comparative Tax Year shall exceed the Tax Base Factor, Tenant
shall pay to Landlord, as additional rent for such Comparative
Tax Year, an amount for tax escalation ("Tax Escalation
Payment")equal to the Percentage of the excess. Before or after
the start of each Comparative Tax Year, Landlord shall furnish to
Tenant a statement of the Tax Escalation Payment payable for such
Comparative Tax Year, together with a copy of the tax xxxx.
Tenant shall make its aforesaid Tax Escalation Payment to
Landlord, in installments in the same manner and not later than
thirty (30) days prior to the last date that Real Estate Taxes
are payable by Landlord to the governmental authority. If a
statement is furnished to Tenant after the commencement of the
Comparative Tax Year in respect of which such statement is
rendered, Tenant shall, within twenty (20) days thereafter, pay
to Landlord an amount equal to those installments of the total
Tax Escalation Payment then due. If, during the term of this
Lease, Real Estate Taxes are required to be paid, in full or in
monthly or other installments, on any other date or dates than as
presently required, or if Landlord shall be required to make
monthly deposits of Real Estate Taxes to the holder of any
mortgage, then Tenant's Tax Escalation Payment(s) shall be
correspondingly adjusted so that the same are due to Landlord in
corresponding installments not later than thirty (30) days prior
to the last date on which the applicable installment of such Real
Estate Taxes shall be due and payable to the governmental
authority or such mortgagee.
(ii) If in any tax certiorari proceeding regarding Real
Estate Taxes payable for any Comparative Tax Year or in otherwise
establishing such taxes, Landlord has incurred expenses for legal
and/or consulting services rendered in applying for, negotiating
or obtaining a reduction of the assessment upon which
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the Real Estate Taxes are predicated, Tenant shall pay an amount
equal to the Percentage of such expenses.
(iii) The statements of the Tax Escalation Payment to
be furnished by Landlord as provided above shall constitute a
final determination as between Landlord and Tenant of the Tax
Escalation Payment for the periods represented thereby, except
for mathematical error in computation.
(iv) In no event shall the fixed minimum rent under
this Lease be reduced by virtue of this Section 22.01.
(v) Upon the date of any expiration or termination of
this Lease, whether the same be the date hereinabove set forth
for the expiration of the term or any prior or subsequent date, a
proportionate share of the Tax Escalation Payment for the
Comparative Tax Year during which such expiration or termination
occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid, or
due and payable by Landlord to Tenant if the amount paid by
Tenant exceeded such proportionate share. The said proportionate
share shall be based upon the length of time that this Lease
shall have been in existence during such Comparative Tax Year.
Prior to or promptly after said expiration or termination,
Landlord shall compute the Tax Escalation Payment due from or
owed to Tenant, as aforesaid and Tenant shall promptly pay
Landlord any amount unpaid. If Landlord shall receive a refund or
a tax credit of any amount of Real Estate Taxes for any
Comparative Tax Year for which Tenant has made a payment,
Landlord shall pay to Tenant within fifteen (15) days of its
receipt of such refund the Percentage of any such refund, less
the Percentage of any legal fees and other expenses provided for
in Section 22.01(b)(ii) to the extent the same have not
theretofore been paid by Tenant.
(vi) Landlord's and Tenant's obligations to make the
adjustments referred to in subdivision (v)
44
above shall survive any expiration or termination of this Lease.
(vii) Any delay or failure of Landlord in billing any
Tax Escalation Payment hereinabove provided shall not
constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such Tax Escalation Payment
hereunder.
Section 22.02. Xxxxxx'x Wage Rate. Tenant shall pay to the Landlord,
as additional rent, a xxxxxx'x wage rate escalation in accordance with this
Section:
(a) For the purpose of this Section, the following definitions
shall apply:
(i) "Wage Rate" shall mean the minimum regular
hourly rate of wages in effect as of January 1st of each
year (whether paid by Landlord or any contractor employed by
Landlord) computed as paid over a forty hour week to Porters
in Class A office buildings pursuant to an Agreement between
Realty Advisory Board on Labor Relations, Incorporated, or
any successor thereto, and Local 32B-32J of the Building
Service Employees International Union, AFL-CIO, or any
successor thereto; and provided, however, that if there is
no such agreement in effect prescribing a wage rate for
Porters, computations and payments shall thereupon be made
upon the basis of the regular hourly wage rate actually
payable in effect as of January 1st of each year, and
provided, however, that if in any year during the term, the
regular employment of Porters shall occur on days or during
the hours when overtime or other premium pay rates are in
effect pursuant to such Agreement, then the term "hourly
rate of wages" as used herein shall be deemed to mean the
average hourly rate for the hours in a calendar week during
which Porters are regularly employed (e.g., if pursuant to
an agreement between Realty Advisory Board and the Local the
regular employment of Porters for forty hours during a
calendar week is at a regular hourly wage rate of $3.00 for
the first thirty hours, and premium or overtime hourly wage
rate of $4.50 for the remaining ten hours, then the hourly
rate
45
of wages under this Article during such period shall be the
total weekly rate of $135.00 divided by the total number of
regular hours of employment, forty or $3.375).
Notwithstanding the foregoing, if at any time such hourly
wage rate is different for new hire and old hire Porters,
then thereafter such hourly wage rate shall be based on the
weighted average of the wage rates for the different
classifications of Porters.
(ii) "Base Wage Rate" shall mean the average of the
Wage Rates in effect on January 1, 1999 and January 1, 2000.
(iii) The term "Porters" shall mean that classification
of non-supervisory employees employed in and about the
Building who devote a major portion of their time to general
cleaning, maintenance and miscellaneous services essentially
of a non-technical and non-mechanical nature and are the
type of employees who are presently included in the
classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board and the
aforesaid Union.
(iv) The term "minimum regular hourly rate of wages"
shall not include any payments for fringe benefits or
adjustments of any kind.
(v) The term "Multiplication Factor" shall mean
30,000.
(b) If the Wage Rate for any calendar year during the term shall be
increased above the Base Wage Rate, then Tenant shall pay, as additional
rent, an amount equal to the product obtained by multiplying the
Multiplication Factor by 100% of the number of cents (including any
fraction of a cent) by which the Wage Rate is greater than the Base Wage
Rate, such payment to be made in equal one-twelfth (1/12th) monthly
installments commencing with the first monthly installment of minimum rent
falling due on or after the effective date of such increase in Wage Rate
(payable retroactive from said effective date) and continuing thereafter
until a new adjustment shall have become effective in accordance with the
provisions of this Article. Landlord shall give Tenant notice of each
change in Wage Rate which
46
will be effective to create or change Tenant's obligation to pay additional
rent pursuant to the provisions of this Section 22.02 and such notice shall
contain Landlord's calculation in reasonable detail and certified as true
by an authorized partner of Landlord or of its managing agent, of the
annual rate of additional rent payable resulting from such increase in Wage
Rate. Such amounts shall be prorated for any partial calendar years during
the term.
(c) Every notice given by Landlord pursuant to Section 22(b)
hereof shall be conclusive and binding upon Tenant, except for manifest
error.
(d) The "Wage Rate" is intended to be a substitute comparative
index of economic costs and does not necessarily reflect the actual costs
of wages or other expenses of operating the Building. The Wage Rate shall
be used whether or not the Building is a Class A office building and
whether or not Porters are employed in the Building and without regard to
whether such employees are members of the Union referred to in subsection
(a) hereof.
ARTICLE 23
Electricity
Section 23.01.
(a) Landlord shall provide electricity to the Demised Premises on
a submetering basis from the existing risers and switches on the floor.
Tenant's consumption of electricity shall be measured by one independent
time of day (or use) submeter furnished and installed by Landlord, at the
cost of Tenant, and read by Landlord. If Tenant shall require electricity
exceeding the available service capacity, any additional risers, feeders
and similar electrical equipment which may be required, shall be installed
by Landlord, at the expense of Tenant, to and for the use of Tenant in the
Demised Premises during the term hereof. Any riser(s) shall terminate at a
disconnect switch to be located at a point designated by Landlord in
electrical closet(s) on the floor of the Demised Premises. Such disconnect
switch shall be the sole source from which Tenant is to obtain electricity.
Such submeter shall at all times be maintained by Tenant, at its expense,
unless damaged due to the negligence of Landlord, its agents, employees or
47
contractors. Tenant covenants and agrees to purchase electric power from
Landlord or Landlord's designated agent at charges, terms and rates set,
from time to time, during the term of this Lease by Landlord but not more
than those specified in the service classification in effect from time to
time pursuant to which Landlord then purchases electric current from the
Electric Service Provider or Alternate Service Provider (as said terms are
hereinafter defined), as the case may be, plus a fee equal to five (5%)
percent of such charges, representing agreed upon administrative and
overhead costs to Landlord. Bills therefor shall be rendered monthly or at
such other times as Landlord may elect together with copies of the submeter
printouts showing the totalized demand for the meter and copies of the
applicable public utility rate schedule pursuant to which Landlord is then
purchasing electricity for the Building, and the amount, as computed from
such meter, shall be deemed to be, and be paid as, additional rent, within
ten (10) days thereafter, without any set-off or deduction. If any tax is
imposed upon Landlord's receipt from the sale or resale of electric energy
to Tenant by any federal, state or municipal authority, Tenant covenants
and agrees that, where permitted by law, Tenant's pro rata share of such
taxes shall be passed on to, and included in the xxxx of, and paid by,
Tenant to Landlord.
(b) Landlord has advised Tenant that presently Con Edison
("Electric Service Provider") is the utility company selected by Landlord
to provide electricity service for the Building. Notwithstanding the
foregoing, if permitted by law, Landlord shall have the right at any time
and from time to time during the term of this Lease to either contract for
service from a different company or companies providing comparable
electricity service at comparable or lower rates (each such company shall
hereinafter be referred to as an "Alternate Service Provider") or continue
to contract for service from the Electric Service Provider.
(c) Tenant shall cooperate with Landlord, the Electric Service
Provider, and any Alternate Service Provider at all times and, as
reasonably necessary, shall allow Landlord, Electric Service Provider, and
any Alternate Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, and any other machinery within the Demised
Premises.
Section 23.02. Landlord shall not be liable in any way for any loss,
damage or expense that Tenant may sustain or incur by reason of or any failure,
48
change, interruption or defect in the supply or character of electric energy
furnished to the Demised Premises by reason of any requirement, act or omission
of the Electric Service Provider or Alternate Service Provider (as said terms
are hereinafter defined) serving the Building with electricity and no such
failure, change, interruption or defect shall constitute an act of constructive
eviction, in whole or in part, or entitle Tenant to any abatement of minimum
rent or additional rent or relieve Tenant of its obligations under this Lease.
Tenant shall furnish and install, at its sole cost and expense, all lighting
fixtures, tubes, lamps, bulbs, ballasts and outlets relating to Tenant's
electrical equipment.
Section 23.03. Tenant's connected electrical load in the Demised
Premises, including lighting, shall not at any time exceed the capacity of any
of the electrical conductors and equipment in or servicing the Demised Premises
which capacity Landlord represents to be six (6) xxxxx per usable square foot
(excluding the Building HVAC). In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall not, without Landlord's prior consent in each instance,
make any alteration or addition to the electric system of the Demised Premises
existing on the Commencement Date, nor connect any additional fixtures,
appliances or equipment that would exceed the electrical capacity of the Demised
Premises represented by Landlord. Should Landlord grant such consent, all
additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant.
Section 23.04. Landlord reserves the right to discontinue furnishing
electric energy at any time, whether or not Tenant is in default under this
Lease, upon not less than thirty (30) days' notice to Tenant, provided Landlord
discontinues furnishing electricity to all other tenants in the Building. If
Landlord exercises such right of discontinuance, this Lease shall continue in
full force and effect and shall be unaffected thereby, except only that, from
and after the effective date of such discontinuance, Landlord shall not be
obligated to furnish electric energy to Tenant. If Landlord so elects to
discontinue furnishing electric energy to Tenant, Tenant shall arrange to obtain
electric energy directly from the public utility company furnishing electric
service to the Building. Notwithstanding the foregoing, Landlord shall not
discontinue furnishing electric energy until Tenant is able to obtain such
electric energy directly from said public utility. Such electric energy may be
furnished to Tenant by means of the then existing Building system feeders,
risers and wiring to the extent that they are available, suitable and safe for
such purposes. All meters and additional panel boards, feeders, risers, wiring
and other conductors and equipment which may be required to obtain electric
energy directly from such public utility company, and which are to be located
within the Demised Premises, shall be installed by Landlord at its expense if
such discontinuance was voluntary, or installed by Landlord at Tenant's expense
if such discontinuance was required by law or the
49
utility company. Thereafter, all of such equipment shall be maintained by Tenant
at its expense.
ARTICLE 24
Broker
Landlord and Tenant covenant and represent that the sole brokers who
negotiated and brought about this transaction were Xxxxxxx Realty Corporation,
CRF Partners, Inc. and Xxxxx Brothers Realty Corporation. Landlord agrees to
pay a commission therefor to Xxxxxxx Realty Corporation and Xxxxx Brothers
Realty Corporation as per separate agreements and Landlord shall not be
responsible for any separate payment to CRF Partners, Inc.. Landlord and
Tenant agree to hold the other harmless against any claims for a brokerage
commission arising out of a breach by the other of the representations contained
in this Article.
ARTICLE 25
Subordination and Ground Lease
Section 25.01. This Lease is subject and subordinate to (a) all ground
and underlying leases on the Land and/or Building now or hereafter existing, and
(b) to all mortgages which may now or hereafter affect any such ground and
underlying leases or the Land and/or the Building, and to all renewals,
modifications, amendments, consolidations, replacements or extensions of any of
the foregoing. This clause shall be self-operative and no further instrument of
subordination shall be required. However, in confirmation of such
subordination, Tenant, at any time and from time to time, shall execute
promptly, and within fifteen (15) days of such request, any certificate and
document that Landlord may reasonably request which reasonably evidences such
subordination. Landlord, within forty-five (45) days from the date hereof,
agrees to obtain from Credit Suisse First Boston Mortgage Capital, LLC, the
holder of the existing mortgage which is a lien on the Building Project, an
agreement (the "non-disturbance and attornment agreement") providing in
substance that Tenant's possession of and rights in the Demised Premises and
under this Lease shall remain undisturbed, so long as Tenant is not in default
under the provisions of this Lease, after any notice and the expiration of any
applicable periods of grace, and provided Tenant agrees in said instrument to
attorn to such mortgagee as its landlord
50
under this Lease. If a fully executed and acknowledged original copy of such
non-disturbance and attornment agreement is not delivered to Tenant within such
forty-five (45) day period, Tenant, as its sole remedy for Landlord's failure to
obtain the non-disturbance and attornment agreement, may by notice given within
fifteen (15) days after the expiration of such forty-five (45) day period,
terminate this Lease on a date specified in such notice which shall not be later
than thirty (30) days after the date of said notice, unless prior to such
termination date all such copies are delivered to Tenant or Tenant elects to
rescind such notice. In the event of such termination, neither Landlord nor
Tenant shall have any further liability to each other except that Landlord shall
return to Tenant all moneys given to Landlord upon the execution of this Lease.
Concurrently with the execution of this Lease, Tenant has executed a non-
disturbance and attornment agreement with respect to such mortgagee. It is
further agreed that this Lease shall not be subject and subordinate to and
Tenant shall not be required to attorn to any mortgages or any ground or
underlying leases which may hereafter affect the Building Project, unless the
holder of each such mortgage or lessor under each such lease executes such non-
disturbance and attornment agreement in the then customary form of such
mortgagee or lessor.
Section 25.02. (a) The Tenant covenants and agrees that if
by reason of a default under any underlying lease, or under any
mortgage, such underlying lease and the leasehold estate of the
Landlord in the Demised Premises is terminated, or the Land
and/or the Building are foreclosed upon or transferred in lieu of
a foreclosure, the Tenant will attorn to the then holder of the
reversionary interest in the premises demised by this Lease or
the foreclosure purchaser or transferee in lieu of foreclosure,
and will recognize such holder, purchaser or transferee as the
Tenant's Landlord under this Lease, unless, subject to any non-
disturbance agreement, the lessor under such underlying lease or
the holder of any such mortgage shall, in any proceeding to
terminate such underlying lease or foreclose such mortgage,
elects to terminate this Lease and the rights of Tenant hereunder
provided, however, the holder of the reversionary interest or the
foreclosure purchaser or transferee in lieu of foreclosure shall
not be (i) liable for any act or omission or negligence of
Landlord under this Lease; (ii) subject to any counterclaim,
defense or offset, not expressly provided for in this Lease and
asserted with reasonable promptness which theretofore shall have
accrued to Tenant against Landlord; (iii) obligated to perform,
undertake or complete any work in the Demised Premises or to
prepare it for occupancy; (iv) bound by any previous modification
or amendment of this Lease or by any previous prepayment of more
than one (1) month's rent, unless such modification or prepayment
shall have been approved in writing by the holder of such
Mortgage; (v) obligated to repair the Demised Premises,
51
or the Building, or any part thereof, in the event of any damage
beyond such repair as can reasonably be accomplished from the net
proceeds of insurance actually made available to the then holder
of the reversionary interest or the foreclosure purchaser or
transferee in lieu of foreclosure; (vi) obligated to repair the
Demised Premises or the Building, or any part thereof, in the
event of partial condemnation of the Demised Premises or the
Building; (vii) required to account for any security deposit of
Tenant unless actually delivered to such holder, purchaser or
transferee by Landlord; (viii) bound by any obligation to make
any payment to Tenant or grant any credits, except for services,
repairs, maintenance and restoration provided for under this
Lease to be performed by Landlord after the date of attornment;
or (ix) responsible for any monies owing by Landlord to Tenant.
Nothing contained in this subparagraph shall be construed to
impair any right otherwise exercisable by any such holder,
purchaser or transferee. Tenant agrees to execute and deliver, at
any time and from time to time, upon the request of the Landlord
of or the lessor under any such underlying lease or the holder of
any such mortgage any instrument which may be necessary or
appropriate to evidence such attornment. The Tenant further
waives the provisions of any statute or rule or law now or
hereafter in effect which may give or purport to give Tenant any
right of election to terminate this Lease or to surrender
possession of the premises demised hereby in the event any
proceeding is brought by the lessor under any underlying lease or
the holder of any such mortgage to terminate the same, and agrees
that, subject to any non-disturbance agreement, unless and until
any such lessor or holder, in connection with any such
proceeding, shall elect to terminate this Lease and the rights of
Tenant hereunder, this Lease shall not be affected in any way
whatsoever by any such proceeding.
(b) Upon Tenant's receipt of a written notice from the
lessor under any underlying lease or the holder of any such
mortgage to the effect that (i) the lessor of said underlying
lease or the holder of any such mortgage is entitled to send a
notice to the Landlord, as tenant under said underlying lease,
terminating said lease, or such holder is entitled to performance
by Tenant under the Lease, and (ii) the Tenant should pay the
minimum rent and additional rent thereafter due and payable under
this Lease to said lessor or the holder of any such mortgage at a
place designated in such notice, Tenant shall pay such minimum
rent and additional rent to said lessor under said underlying
lease or the holder of any such mortgage at such designated place
until such time as said lessor or holder shall notify Tenant that
Landlord is no longer in default under said underlying lease
52
or such mortgage and that Tenant may resume paying all minimum
rent and additional rent thereafter due and payable under this
Lease to Landlord. Tenant shall have no liability to the Landlord
for paying any minimum rent or additional rent to said lessor
under the underlying lease or holder of any such mortgage or
otherwise acting in accordance with the provisions of any notice
sent to it under this paragraph and shall be relieved of its
obligations to pay Landlord any minimum rent or additional rent
under this Lease to the extent such payments are made to said
lessor under the underlying lease.
Section 25.03. In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, pursuant to the terms of this Lease, if any, Tenant will not
exercise any such right until:
(a) it has given a written notice to cure (concurrently
with any notice given to Landlord), regarding such act or
omission to the holder of any mortgage and to the landlord of any
ground or underlying lease, whose names and addresses shall
previously have been furnished to Tenant, addressed to such
holder and landlord at the last addresses so furnished, and
(b) a reasonable period of time (not to exceed the
period in this Lease or the ground lease or the mortgage, as the
case may be) for remedying such act or omission shall have
elapsed following such giving of notice and the expiration of any
grace period applicable thereto in favor of Landlord hereunder,
during which such holder and landlord, or any of them, with
reasonable diligence, following the giving of such notice, shall
not have commenced and is or are not continuing to remedy such
act or omission or to cause the same to be remedied.
Section 25.04. If, in connection with obtaining financing for the
Building, or of Landlord's interest in any ground or underlying lease, a
banking, insurance or other recognized institutional lender shall request
modifications in this Lease as a condition to such financing, Tenant will not
withhold, delay or defer its consent thereto and its execution and delivery of
such modification agreement, provided that such modifications do not increase
the obligations (including the monetary obligations) of Tenant hereunder or
adversely affect the leasehold interest hereby created or Tenant's use and
enjoyment of the Demised Premises or reduce the Building's services.
53
Section 25.05. Landlord represents that the only mortgage covering the
Land and Building is the existing mortgage held by Credit Suisse First Boston
Mortgage Capital, LLC, that there are no defaults thereunder by Landlord, and
that there is no present ground or underlying lease covering the Land and
Building.
ARTICLE 26
Estoppel Certificate
Landlord and Tenant shall at any time, and from time to time, within
ten (10) business days after so requested by the other execute, acknowledge and
deliver to the other , a statement addressed to the other or its designee or
the holder of any mortgage encumbering the Land and/or Building (a) certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), (b) stating the dates to which the minimum rent and
additional rent have been paid, (c) stating whether or not there exists any
default by the other under this Lease, and, if so, specifying each such
default, and (d) such other information as may be required by Landlord, Tenant
or any mortgagee, it being intended that any such statement may be relied upon
by Landlord, Tenant, by any mortgagee or prospective mortgagee of any mortgage
affecting the Building or the leasehold estate under any ground or underlying
lease affecting the land described in Schedule B and/or Building and
improvements thereon, or may be relied upon by the landlord under any such
ground or underlying lease or a purchaser of Lessee's estate under any such
ground or underlying lease or any interest therein, or any assignee of Tenant.
ARTICLE 27
Waiver of Jury Trial
Tenant hereby waives the right to trial by jury in any summary
proceeding that may hereafter be instituted against it or in any action or
proceeding that may be brought by Landlord on matters which are connected with
this Lease, or any of its provisions or Tenant's use or occupancy of the Demised
Premises, including any claims for injury or damage, or any emergency or other
statutory remedy with respect thereto.
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ARTICLE 28
Surrender of Premises
Section 28.01. Upon the expiration or other termination of the term of
this Lease, Tenant shall quit and surrender the Demised Premises, vacant, broom
clean, in good order and condition, ordinary wear and tear and damage by fire or
other casualty excepted, and shall remove all its personal property therefrom.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
Section 28.02. In the event Tenant shall remain in possession of the
Demised Premises after the expiration or other termination of the term of this
Lease, such holding over shall not constitute a renewal or extension of this
Lease. Landlord, may, at its option, elect to treat Tenant as one who is not
removed at the end of the term, and thereupon be entitled to all of the remedies
against Tenant provided by law in that situation or Landlord may elect to
construe such holding over as a tenancy from month-to-month, subject to all of
the terms and conditions of this Lease, except as to the duration thereof, and
the minimum rent shall be due, in either of such events, at a monthly rental
rate equal to two (2) times the monthly installment of minimum rent which would
otherwise be payable for such month, together with any and all additional rent.
Tenant shall also be responsible for and hereby indemnifies Landlord against any
claims made by any succeeding tenant or prospective tenant founded upon Tenant's
delay in surrendering the Demised Premises to Landlord.
ARTICLE 29
Rules and Regulations
Section 29.01. Tenant, its servants, employees, agents, visitors and
licensees shall observe faithfully and comply with the rules and regulations set
forth in Schedule "C" attached hereto and made a part hereof. Landlord shall
have the right from time to time during the term of this Lease to make
reasonable changes in and additions to the rules thus set forth provided such
changes and additions are applicable to all other office tenants in the
Building. All rules and regulations shall be enforced in a non-discriminatory
manner.
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Section 29.02. Any failure by Landlord to enforce any rules and
regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a breach hereunder or waiver of any
such rules and regulations.
ARTICLE 30
Successors and Assigns and Definitions
Section 30.01. The covenants, conditions and agreements contained in
this Lease shall bind and enure to the benefit of Landlord and Tenant and their
respective distributees, legal representatives, successors and, except as
otherwise provided herein, their assigns.
Section 30.02. The term "Landlord" as used in this Lease, so far as
the covenants and agreements on the part of Landlord are concerned shall be
limited to mean and include only the owner or owners at the time in question of
the tenant's estate under any ground or underlying lease covering the Land
described in Schedule B hereto annexed and/or the fee title of Landlord covering
the Land and/or the Building and improvements thereon. In the event of any
assignment or assignments of such tenant's estate or transfer of such title,
Landlord herein named (and in case of any subsequent assignment or transfer, the
then assignor or transferor) shall be automatically freed and relieved from and
after the date of such assignment or transfer of all personal liability as
respects to performance of any of Landlord's covenants and agreements thereafter
to be performed, and such assignee or transferee shall be bound by all of such
covenants and agreements; it being intended that Landlord's covenants and
agreements shall be binding on Landlord, its successors and assigns only during
and in respect of their successive periods of such ownership.
However, in any event, the members in Landlord shall not have any
personal liability or obligation by reason of any default by Landlord under any
of Landlord's covenants and agreements in this Lease. In case of such default,
Tenant will look only to Landlord's estate, as tenant, under such ground or
underlying lease and/or its interest in the Land and/or Building, to recover any
loss or damage resulting therefrom; and Tenant shall have no right to nor shall
Tenant assert any claim against nor have recourse to Landlord's other property
or assets to recover such loss or damage.
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Section 30.03. All pronouns or any variation thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural as the identity of
the person or persons may require; and if Tenant shall consist of more than one
(1) person, the obligations of such persons, as Tenant, under this Lease, shall
be joint and several.
Section 30.04. The definitions contained in Schedule E annexed hereto
are hereby made a part of this Lease.
ARTICLE 31
Notices
Any notice, statement, certificate, request, approval, consent or
demand required or permitted to be given under this Lease shall be in writing
sent by registered or certified mail (or reputable, commercial overnight courier
service) return receipt requested, addressed, as the case may be, to Landlord,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Tenant prior to its
occupancy of the Demised Premises at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Chief Financial Officer and after its occupancy at the Demised
Premises with a copy to General Counsel, CMGI, Inc. 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses as Landlord or Tenant
respectively shall designate in the manner herein provided. Such notice,
statement, certificate, request, approval, consent or demand shall be deemed to
have been given on the date when mailed, as aforesaid, or on the date of
delivery by overnight courier.
ARTICLE 32
No Waiver; Entire Agreement
Section 32.01. The specific remedies to which Landlord may resort
under the provisions of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may be
lawfully entitled in case of any breach or threatened breach by Landlord of any
of the terms, covenants and conditions of this Lease. The failure of Landlord
or Tenant to insist upon the strict performance of any of the terms, covenants
and conditions of this Lease, or to exercise any right or remedy herein
contained, shall not be
57
construed as a waiver or relinquishment for the future of such term, covenant,
condition, right or remedy. A receipt by Landlord of minimum rent or additional
rent with knowledge of the breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such breach. This Lease may not be changed
or terminated orally. In addition to the other remedies in this Lease provided,
Landlord shall be entitled to seek to restrain by injunction, the violation or
attempted or threatened violation of any of the terms, covenants and conditions
of this Lease or to a decree, any court having jurisdiction in the matter,
compelling performance of any such terms, covenants and conditions.
Section 32.02. No receipt of monies by Landlord from Tenant, after any
re-entry or after the cancellation or termination of this Lease in any lawful
manner, shall reinstate the Lease; and after the service of notice to terminate
this Lease, or after commencement of any action, proceeding or other remedy,
Landlord may demand, receive and collect any monies due, and apply them of
account of Tenant's obligations under this Lease but without in any respect
affecting such notice, action, proceeding or remedy, except that if a money
judgment is being sought in any such action or proceeding, the amount of such
judgment shall be reduced by such payment.
Section 32.03. If Tenant is in arrears in the payment of minimum rent
or additional rent, Tenant waives its right, if any, to designate the items in
arrears against which any payments made by Tenant are to be credited and
Landlord may apply any of such payments to any such items in arrears as
Landlord, in its sole discretion, shall determine, irrespective of any
designation or request by Tenant as to the items against which any such payments
shall be credited.
Section 32.04. No payment by Tenant nor receipt by Landlord of a
lesser amount than may be required to be paid hereunder shall be deemed to be
other than on account of any such payment, nor shall any endorsement or
statement on any check or any letter accompanying any check tendered as payment
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
payment due or pursue any other remedy in this Lease provided.
Section 32.05. This Lease and the Schedules annexed hereto constitute
the entire agreement between Landlord and Tenant referable to the Demised
Premises, and all prior negotiations and agreements are merged herein.
Section 32.06. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid
58
or unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
ARTICLE 33
Captions
The captions of Articles in this Lease are inserted only as a matter
of convenience and for reference and they in no way define, limit or describe
the scope of this Lease or the intent of any provision thereof.
ARTICLE 34
Inability to Perform
If the performance or observance by Landlord or Tenant of any of the
terms, covenants and conditions of this Lease on the part of Landlord or Tenant
to be performed shall be delayed by reason of unavoidable delays (as hereinafter
defined), then the time for the performance or observance thereof shall be
extended for the period of time as Landlord or Tenant shall have been so
delayed, provided Tenant shall continue, notwithstanding unavoidable delays, to
be obligated to pay minimum rent and additional rent without abatement.
Notwithstanding anything to the contrary contained in this Lease, if
Landlord shall fail to provide services or perform work or repairs, as provided
in this Lease (collectively, an "Interruption"), and such Interruption shall
materially impair the customary operation of Tenant's business in all or any
part of the Demised Premises (other than a de minimis part), and if (i) such
Interruption shall continue for a period in excess of thirty (30) consecutive
days following receipt by Landlord of notice from Tenant describing such
Interruption and (ii) such Interruption shall not have been caused by an act or
omission in violation of this Lease by or the negligence of Tenant, or of Tenant
agents, servants, employees or contractors (an Interruption that satisfied all
of the foregoing conditions being referred to hereinafter as a "Material
59
Interruption"), then Tenant shall be entitled to an abatement of the minimum
rent and escalation rent payable under Article 22 (such abatement to be prorated
if only a part of the Demised Premises shall be so affected by such Material
Interruption),which shall begin on the 31/st/ consecutive day of such Material
Interruption and shall end upon the date such Material Interruption has been
terminated.
The words "unavoidable delays", as used in this Lease shall mean (a)
the enactment of any law or issuance of any governmental order, rule or
regulation (i) prohibiting or restricting performance of work of the character
required to be performed by Landlord under this Lease, or (ii) establishing
rationing or priorities in the use of materials, or (iii) restricting the use of
labor, and (b) strikes, lockouts, acts of God, inability to obtain labor or
materials, enemy action, civil commotion, fire, unavoidable casualty or other
similar types of causes beyond the reasonable control of Landlord, other than
financial inability.
ARTICLE 35
No Representations by Landlord
Neither Landlord nor any agent or employee of Landlord has made any
representation whatsoever with respect to the Demised Premises except as
expressly set forth in this Lease.
ARTICLE 36
Security Deposit
Section 36.01. Concurrently with the execution of this Lease, Tenant
shall deposit with Landlord the sum of $195,000.00, by Letter of Credit as
provided in Section 36.02, as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this Lease.
Tenant agrees that, in the event that Tenant defaults in respect of any of the
terms, provisions and conditions of this Lease (including the payment of minimum
rent and additional rent), after any applicable notice and expiration of any
applicable cure period, Landlord may notify the "Issuing Bank" (as such term is
defined in Section 36.02) and thereupon receive all of the monies represented by
the said Letter of Credit and use, apply, or retain the whole or any part of
such proceeds, as the case may be, to the extent
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required for the payment of any rent, additional rent, or any other sum as to
which Tenant is in default, or for any sum that Landlord may expend or may be
required to expend by reason of Tenant's default, in respect of any of the
terms, covenants and conditions of this Lease (including any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord). In the event that Landlord applies or retains any portion or all of
the proceeds of such Letter of Credit Tenant shall, within five (5) business
days after demand by Landlord, restore the amount so applied or retained so
that, at all times, the amount deposited shall be $195,000.00. If Tenant shall
fail or refuse to make such additional deposit, Landlord shall have the same
rights in law and in equity and under this Lease as it has with respect to a
default by Tenant in the payment of minimum rent. In the event that Tenant shall
fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the cash security or Letter of Credit, as the case may
be, shall be returned to Tenant within twenty (20) days after the expiration
date and after delivery of possession of the entire Demised Premises to Landlord
in the condition provided in this Lease for such delivery of possession.
Section 36.02. Such letter of credit (the "Letter of Credit") shall be
a clean, irrevocable and unconditional Letter of Credit issued by and drawn upon
any commercial bank (the "Issuing Bank") with offices for banking purposes in
the City of New York or The Bank of Boston, and having a net worth reasonably
acceptable to Landlord , which Letter of Credit shall have an initial term of
not less than one year or thereafter having a term expiring not less than sixty
(60) days following the expiration of the term of this Lease, shall permit
multiple drawings, shall be transferable by the beneficiary at one or more
occasions at no charge to the beneficiary and otherwise be in form and content
satisfactory to Landlord, be for the account of Landlord and be in the amount of
$195,000.00. Notwithstanding the foregoing, if at any time the net worth of the
Issuing Bank is reasonably unacceptable to Landlord or its rating is downgraded
from its current rating, and provided Tenant does not replace the existing
Letter of Credit with a Letter of Credit meeting the criteria of Section 36.02
within the sooner of thirty (30) days following Tenant's receipt of Landlord's
notice to Tenant of either of the foregoing events or the number of days
remaining until the expiration date of the existing Letter of Credit, Landlord
shall have the right, at any time thereafter, to draw down the entire proceeds
pursuant to the terms of Section 36.01 as cash security pending the replacement
of such Letter of Credit. The Letter of Credit shall provide that:
(a) the Issuing Bank shall pay to Landlord or its duly
authorized representative an amount up to the face amount of the
Letter of Credit upon presentation of the Letter of Credit and a
sight draft, in the amount to be drawn, with a statement by
Landlord that a default has occurred under the Lease.
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(b) it shall be deemed automatically renewed, without
amendment, for consecutive periods of one (1) year each
thereafter during the term of this Lease, unless Issuing Bank
sends written notice (hereinafter referred to as the Non-Renewal
Notice) to Landlord by certified or registered mail, return
receipt requested, not less than sixty (60) days next preceding
the expiration date of the Letter of Credit that it elects not to
have the Letter of Credit renewed, and it being agreed that the
giving of such Non-Renewal Notice shall for the purpose of this
Article 37 be deemed a default under this Lease, unless Tenant
replaces the Letter of Credit with a substitute Letter of Credit
meeting the criteria of this Section 36.02 or with a cash deposit
at least thirty (30) days prior to the expiration date of the
Letter of Credit.
(c) Landlord, subsequent to its receipt of a Non-
Renewal Notice, and subsequent to the thirty-day period during
which Tenant is required to replace the Letter of Credit pursuant
to subdivision (b) above, shall have the right, exercisable by
means of sight draft, to receive the monies represented by the
Letter of Credit and hold such proceeds pursuant to the terms of
Section 36.01 as cash security pending the replacement of such
Letter of Credit; and
(d) upon Landlord's sale or assignment of its estate as
Tenant under any ground or underlying lease, the Letter of Credit
shall be transferred by Landlord, as provided in Section 36.03.
Section 36.03. In the event Landlord's estate as tenant under any
ground or underlying Lease is sold or assigned, or the fee title of Landlord
covering the Land and/or Building is transferrable or conveyed, Landlord shall
transfer the Letter of Credit then held by Landlord to the vendee, transferee or
assignee, and Landlord shall thereupon be released by Tenant from all liability
for the return of such Letter of Credit. In such event, Tenant agrees to look
solely to the new Landlord for the return of said Letter of Credit. It is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the Letter of Credit to a new Landlord.
Section 36.04. Tenant covenants that it will not assign or encumber,
or attempt to assign or encumber, the Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance.
Section 36.05. The use of the security, as provided in this Article,
shall not be deemed or construed as a waiver of Tenant's default or as a waiver
of any other rights and remedies to which Landlord may be entitled under the
provisions
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of this Lease by reason of such default, it being intended that Landlord's
rights to use the whole or any part of the security shall be in addition to but
not in limitation of any such other rights and remedies; and Landlord may
exercise any of such other rights and remedies independent of or in conjunction
with its rights under this Article.
ARTICLE 37
Rent Control
In the event the minimum rent and/or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this Lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any federal, state, county or city law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, code or regulations of any organization or entity
formed pursuant to law, Tenant shall enter into such agreement(s) and take such
other steps (without additional expense or liability to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the minimum rent and/or additional rent shall become and
thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination, and (b) Tenant shall pay to Landlord
promptly upon being billed, to the maximum extent legally permissible, an amount
equal to (i) minimum rent and/or additional rent which would have been paid
pursuant to this Lease but for such legal rent restriction less (ii) the rents
paid by Tenant during the period such legal rent restriction was in effect.
ARTICLE 38
Landlord's Contribution
Subject to the provisions of Article 5 of this Lease, and except for
the work to be performed by Landlord pursuant to Section 2.02, Tenant agrees to
perform the initial work and installations required to make the Demised Premises
suitable for the conduct of Tenant's business. Tenant agrees to deliver to
Landlord, for Landlord's approval the plans and specifications for Tenant's
initial work within sixty (60) days following the Commencement Date (the
"initial work"). Landlord
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agrees to contribute up to the sum of $525,000.00 ("Landlord's Contribution")
toward the cost of such work, which shall include hard and soft costs. Landlord
shall pay to Tenant, from time to time, but not more often that once a month,
ninety (90%) percent of the cost of the work requested by Tenant theretofore
performed by the contractor, provided Tenant delivers to Landlord concurrently
with its request, receipted bills of the contractor involved approved by Tenant,
a certificate by Tenant's architect that such bills have been approved and the
work or materials evidenced by such bills have been satisfactorily performed or
delivered and a waiver of mechanic's lien signed by the contractor with respect
to the amount paid as evidenced by the receipted xxxx, such payment to be made
to Tenant within ten (10) days after receipt of Tenant's request together with
the aforesaid documentation. Within ten (10) days after Landlord receives a
certificate from Tenant's architect stating that Tenant's work has been
substantially completed, that the same has been performed in compliance with all
applicable Governmental Requirements and the approved plans and specifications
and delivery to Landlord, if applicable, of the final "sign-off" letters and
equipment use permits (as necessary) for all work performed from the applicable
municipal authorities, Landlord shall pay to Tenant the aggregate of the ten
(10%) percent sums retained by Landlord. Landlord shall have no obligation or
responsibility to pay any cost exceeding the amount of Landlord's Contribution.
If the amount Tenant expends for the cost exceeds the amount of Landlord's
Contribution, Tenant shall be responsible for the payment to the contractors of
the excess. If said amount is less than the amount of Landlord's Contribution,
Landlord shall apply such difference to the payment of minimum rent as and when
the same would otherwise become due and payable under this Lease. Tenant shall
indemnify and hold Landlord harmless from and against any and all claims, costs
and expenses in connection with such work exceeding the amount of Landlord's
Contribution.
ARTICLE 39.
Roof Equipment
Tenant shall have the right to use its prorata share of the available
area on the roof designated by Landlord for the purpose of locating and/or
installing, at its own cost and expense, a satellite dish, antenna and/or
telecommunications equipment (collectively "Equipment"). However, if Landlord
thereafter is required to use additional area on the roof in connection with the
operation of the Building, and no other area on the roof is then available for
such purpose, Tenant's prorata share thereof shall be reduced accordingly and
Tenant shall remove its Equipment from such area and repair any damage caused
thereby. Tenant shall also have the right, subject to the provisions of Article
5, to install in the Building core area, risers, ducts, conduits or other
facilities, necessary to connect such Equipment to the Demised
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Premises or the Additional Space (as hereinafter defined) then leased by Tenant.
All such Equipment and connecting facilities shall be installed and maintained
in a manner not to disturb the other tenants in the Building, the operation of
the Building systems therein, in compliance with all applicable Governmental
Requirements, and subject to plans showing the type of Equipment and connecting
facilities to be installed and its location and manner of installation, such
plans to be approved by Landlord. Tenant shall cause the Equipment to be covered
under Tenant's liability insurance policy. Tenant shall indemnify and hold
Landlord harmless from and against any loss, claim, damage or expense in
connection with or relating to the installation, maintenance and operation of
such Equipment and connecting facilities. Tenant, at its own cost, shall repair
any damage to the Building, roof and/or Demised Premises caused by such work,
and shall at all times maintain and repair the Equipment and wiring, including
any required replacements thereof.
ARTICLE 40
Additional Space
Section 40.01. So long as this Lease is then in full force and effect
and Tenant is not then in default in performing any of the conditions of this
Lease on its part to be performed, both at the time of Landlord's Availability
Notice (as hereinafter defined) and on the Effective Date (as hereinafter
defined) for the Additional Space (as hereinafter defined), at the time during
the term of this Lease that Landlord becomes aware of the potential
availability, after the first leasing thereof, of the entire 7/th/ and/or the
entire 9/th/ floor in the Building (each such floor hereunder called the
"Additional Space"), which Landlord anticipates will become available for lease
and future occupancy by Tenant during the term of this Lease, Landlord shall
then give Tenant notice thereof (the "Availability Notice"). Such notice shall
also state the rentable square feet of the Additional Space (which for the
purpose of this Article is agreed to be 30,000) and Landlord's reasonable
estimation of the date when such Additional Space will be available for Tenant"s
occupancy (the "Occupancy Date"). If the same is subject to the prior right of
the then tenant thereof to renew the term thereof or of another existing tenant
to lease the same (collectively, the "Prior Right"), Landlord shall include in
its Availability Notice the existence of such Prior Right and the date by which
the same must be exercised by the existing tenant having such Prior Right.
Concurrently with giving the Availability Notice to Tenant, Landlord shall give
to the existing tenant notice to exercise its Prior Right. Landlord thereafter
shall notify Tenant of the exercise or non-exercise of such Prior Right.
Tenant shall have the one time right to exercise its option to lease such
Additional Space by giving Landlord notice of its election to do so (the
"Exercise Notice"), within thirty (30) days from the date of its receipt of the
Availability Notice, with TIME OF THE ESSENCE. However, if such Additional
Space is subject to a Prior Right,
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Tenant may exercise its option by giving the Exercise Notice within thirty (30)
days from the date of its receipt of notice from Landlord of the non-exercise of
such Prior Right, with TIME OF ESSENCE. If Landlord does not receive the
Exercise Notice within the applicable thirty (30) day period, then Tenant shall
have no further rights under this Article 40 with respect to the Additional
Space set forth in the Availability Notice, and Landlord may lease such
Additional Space to any other party upon such terms and conditions as Landlord
may deem desirable.
Section 40.02. Tenant shall take possession of the Additional Space
and Landlord shall deliver possession thereof to Tenant on the later of the
Occupancy Date and the actual date on which Landlord shall have delivered such
Additional Space to Tenant vacant (the "Effective Date"), and from and after the
Effective Date such Additional Space shall automatically be deemed added to and
made part of the Demised Premises upon all of the terms, covenants and
conditions as are contained in this Lease (except those which by their terms are
no longer applicable), except as follows:
(a) Tenant agrees to accept possession of the
Additional Space in its then "As Is" condition and Landlord shall
not be required to do any work therein to prepare the same for
Tenant"s occupancy.
(b) The amounts of the minimum rent provided in Section
3.01 (a) shall be increased by the amount equal to the fair
market annual rental value ("Rental Value") of the Additional
Space as of the Effective Date, but not less than at the
aggregate rate per square foot payable for minimum rent and
additional rent payable under Article 22 of this Lease
immediately prior to the Effective Date. In the event the parties
fail to agree on such Rental Value within ninety (90) days prior
to the Effective Date, such Rental Value shall be determined by
arbitration in the manner as hereinafter provided in Article 42;
and the determination of such arbitration shall be conclusive and
binding on the parties. If for any reason such Rental Value shall
not be determined prior to the commencement of the Effective
Date, Tenant, in the meantime shall pay the monthly installments
of minimum rent at the rate per square foot payable for minimum
rent and said additional rent immediately prior to the Effective
Date. If the Rental Value shall be greater than the amount paid
by Tenant for the Additional Space following the Effective Date,
Tenant forthwith after the arbitrators' decision, shall pay to
Landlord the difference between the monthly installments actually
paid and the monthly installments which should have been paid
from the commencement of the Effective Date, and
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thereafter Tenant shall pay the monthly installments of the new
minimum rent.
(c) In Section 22.01(a), with respect to the Additional
Space only, in subdivision (i) the "Tax Base Factor" shall mean
the July 1 - June 30 fiscal year in which the Effective Date
occurs; in subdivision (iii) the "Comparative Tax Year" shall
mean the July 1 - June 30 fiscal year immediately following the
Tax Base Factor; and in subdivision (v) the "Percentage" shall
mean 3.429%.
(d) In Section 22.02(a), with respect to the Additional
Space only, in subdivision (ii), the "Base Wage Rate" shall mean
the Wage Rate in effect for the calendar year in which the
Effective Date occurs; and in subdivision (v) the "Multiplication
Factor" shall mean 30,000.
Section 40.03. Notwithstanding the provisions of Section 40.02, if
Landlord is unable to give possession of the Additional Space on the Effective
Date because of the holding-over of the tenant thereof, Landlord shall not be
subject to any liability for failure to give possession on the Effective Date,
but the Effective Date shall not be deemed to have occurred for any purpose
whatsoever until the date that Landlord shall actually deliver possession of the
Additional Space to Tenant. In any event, Landlord shall promptly commence and
diligently prosecute holdover proceedings or such other legal proceedings as may
be required in order to obtain prompt possession of the Additional Space as
promptly thereafter as may be practical.
Section 40.04. Following the determination of the Effective Date, the
minimum rent and the escalation rents of the Additional Space, Landlord and
Tenant shall execute an agreement amending this Lease to reflect the foregoing,
but the provisions of this Article 40 shall be effective with respect to the
Additional Space effective from and after the Effective Date whether or not such
an amendment is executed.
Section 40.05. Except as specifically amended in this Article 40,
all of the terms, covenants and conditions of this Lease shall continue in full
force and effect and unchanged.
67
ARTICLE 41
Option for Renewal Term
Section 41.01. So long as this Lease is then in full force and effect
and Tenant is not then in default beyond the expiration of any applicable cure
period, both at the time it exercises the Renewal Option (as hereinafter
defined) and at the commencement of the Renewal Term (as hereinafter defined)
under any of the terms, covenants and conditions hereunder on the part of Tenant
to be performed, Tenant, at its option (the "Renewal Option"), shall have the
right to extend the Expiration Date of this Lease for one additional period of
five (5) years (the "Renewal Term"), provided Tenant gives Landlord notice of
its exercise of its option at least twelve (12) months but not more than fifteen
(15) months prior to the expiration of the initial term hereof, with TIME OF THE
ESSENCE. If Landlord does not receive Tenant's exercise notice prior to such
date, then Tenant shall have no further rights under this Article 41 and this
Article shall be of no further force or effect. If the Demised Premises are
subject to the right of another existing tenant to lease the same at any time
during the Renewal Term, Landlord shall advise Tenant of the existence of such
Prior Right and the date by which the same must be exercised by the existing
tenant having such Prior Right. Landlord shall thereafter notify Tenant of the
exercise or non-exercise of such Prior Right. Upon the exercise of such Prior
Right, Tenant's exercise of the Renewal Option shall automatically be deemed of
no force or effect and Tenant shall have no further rights under this Article
41. Upon the non-exercise of such Prior Right, Tenant's exercise of its Renewal
Option shall remain in full force and effect and the following sections of this
Article 41 shall be applicable.
Section 41.02. The Renewal Term shall be upon all of the same terms,
covenants and conditions as are contained in this Lease, except as follows:
(a) Tenant shall have no further right to extend the term of this
Lease.
(b) Landlord shall not be required to do any work in the Demised
Premises or obligated to pay any commission and there shall be no rent
abatement.
(c) (i) The minimum rent for the Renewal Term shall be an
amount equal to of the fair market annual rental value of the
Demised Premises as at the commencement of the Renewal Term
(exclusive of the additional rent payable under Article 22 which
shall continue to be payable as provided in said Article), but in
68
no event less than the amount of the minimum rent then
payable during the last year of the initial term ("Renewal
Rental Value"). In the event the parties fail to agree on
such Renewal Rental Value within four (4) months prior to
the Expiration Date of the initial term hereof, then such
Renewal Rental Value shall be determined by arbitration in
the manner as provided in Article 42, and the results of
such arbitration shall be conclusive and binding on the
parties.
(ii) If for any reason the Renewal Rental Value for
the Renewal Term shall not be determined prior to the
commencement of the Renewal Term, Tenant, in the meantime,
shall pay the monthly installments of minimum rent at the
then rate as provided in Section 3.01(a) including the
additional rent then payable under Article 22. If the
Renewal Rental Value as determined by arbitration shall be
greater than the amount of the annual minimum rent
(exclusive of additional rent under Article 22) then being
payable, then within twenty (20) days after the arbitrators'
decision, the difference between the monthly installments
for minimum rent actually paid and the monthly installments
for minimum rent which should have been paid from the
commencement of the Renewal Term shall be determined and
paid by Tenant to Landlord and thereafter Tenant shall pay
the monthly installments of minimum rent at the new rate.
Section 41.03. Following the determination of the minimum rent,
Landlord and Tenant shall execute an agreement amending this Lease to reflect
the foregoing, but the provisions of this Article 41 shall be effective with
respect to the Renewal Term effective from the commencement of the Renewal Term
whether or not such an amendment is executed.
ARTICLE 42.
Arbitration
Section 42.01. The arbitration provided for in Articles 40 and 41
shall be settled by arbitration in the Borough of Manhattan, City, County and
State of New York, conducted to the extent consistent with this Article 42 in
accordance
69
with the rules then obtaining of the American Arbitration Association, or any
successor body of similar function, governing commercial arbitration, except
that the foregoing shall not be deemed or construed to require that such
arbitration actually be conducted by or before the American Arbitration
Association or any successor body of similar function. The arbitration shall be
conducted before arbitrators selected as follows: The party desiring arbitration
shall appoint a disinterested person complying with the provisions of Section
42.02 hereof as arbitrator on its behalf and give notice thereof to the other
party who shall, within twenty (20) days thereafter, appoint a second
disinterested person as arbitrator on its behalf and give written notice thereof
to the first party. The arbitrators thus appointed shall, within twenty (20)
days after the date of the appointment of the second arbitrator, appoint a third
disinterested person, who shall be a person licensed by the State of New York
(if such license is required by law) or otherwise qualified and having the
necessary expertise, including at least ten (10) year's experience, in the
matter or discipline which is the primary subject or is primarily involved in
such arbitration. If the arbitrators thus appointed shall fail to appoint such
third disinterested person within said twenty (20) day period, then either party
may, by application to the presiding Justice of Appellate Division of the
Supreme Court of the State of New York for the First Judicial Department, which
application shall be made within fifteen (15) days after the end of said twenty
(20) day period, seek to appoint such third disinterested person, such
appointment being made not later than thirty (30) days after the date of said
application. Upon such appointment, such person shall be the third arbitrator as
if appointed by the original two arbitrators. The decision of the majority of
the arbitrators shall be final, non-appealable, conclusive and binding on all
parties and judgment upon the award may be entered in any court having
jurisdiction. If a party who shall have the right pursuant to the foregoing, to
appoint an arbitrator, fails or neglects to do so, then and in such event the
other party shall select the arbitrator not so selected by the first party, and
upon such selection, such arbitrator shall be deemed to have been selected by
the first party. The expenses of arbitration shall be shared equally by Landlord
and Tenant, unless this Lease expressly provides otherwise, but each party shall
pay and be separately responsible for its own counsel and witness fees and
disbursements, unless this Lease expressly provides otherwise. Landlord and
Tenant agree to sign all documents and to do all other things reasonably
necessary to submit any such matter to arbitration and further agree to, and
hereby do, waive any and all rights they or either of them may at any time have
to revoke their agreement hereunder to submit to arbitration and to abide by the
decision rendered thereunder and agree that a judgment or order may be entered
in any court of competent jurisdiction based on an arbitration award (including
the granting of injunctive relief).
Section 42.02. The arbitrators shall have the right to retain and
consult experts and competent authorities skilled in the matters under
arbitration, but any such consultation shall be made in the presence of both
parties, with full right on
70
their part to cross-examine such experts and authorities. The arbitrators shall
render their decision and award upon the concurrence of at least two (2) of
their number, not later than sixty (60) days after appointment of the third
arbitrator. Their decision and award shall be in writing and counterpart copies
thereof shall be delivered to each of the parties. In rendering their decision
and award, the arbitrators shall have no power to modify or in any manner alter
or reform any of the provisions of this Lease, and the jurisdiction of the
arbitrators is limited accordingly.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
622 BUILDING COMPANY LLC,
By: 622 Building Corp.,
its managing member
By: /s/ Xxxxxxx Xxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxxx Xxxxx, President
Landlord
iCAST, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Tenant
00
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the 16 day of August, 1999, before me personally came Xxxxxxx
Xxxxxx Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; that he is the
President of 622 Building Corp., the corporation described in and which executed
the foregoing instrument as the managing member of 622 Building Company LLC, a
limited liability company; and that he signed his name thereto by authority of
the members of said limited liability company.
/s/ Xxxxxx Xxxxxxxxx
----------------------
Notary Public
[STAMP AFFIXED HERE]
STATE OF Massachusetts)
: ss.:
COUNTY OF Essex)
On the 16/th/ day of August, 1999, before me personally came
Xxxxxx X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is the of iCAST, INC., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------
Notary Public
[STAMP AFFIXED HERE]
72
SCHEDULE A
----------
Floor Plan
[FLOOR PLAN APPEARS HERE]
73
SCHEDULE B
----------
Description of Land
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of 00xx
Xxxxxx with the westerly side of 0xx Xxxxxx;
RUNNING THENCE northerly along the westerly side of 3rd Avenue, 74 feet 3/4 of
an inch;
THENCE westerly parallel with northerly side of 40th Street, 100 feet;
THENCE northerly parallel with the westerly side of 3rd Avenue, 123 feet 5 1/4
inches to the southerly side of 00xx Xxxxxx;
RUNNING THENCE westerly along the southerly side of 41st Street, 228 feet 4
inches to a point distant 91 feet 8 inches east of the easterly side of
Lexington Avenue;
THENCE southerly parallel with the westerly side of 3rd Avenue, 80 feet;
THENCE westerly parallel with the southerly side of 41st Street, 16 feet 8
inches;
THENCE southerly parallel with the westerly side of 3rd Avenue, 18 feet 9
inches;
THENCE easterly parallel with the southerly side of 41st Street, 50 feet;
THENCE southerly parallel with the westerly side of 3rd Avenue, 23 feet 9
inches;
THENCE easterly parallel with the southerly side of 41st Street, 45 feet;
THENCE southerly and parallel with the westerly side of 3rd Avenue, 75 feet to
the northerly side of 00xx Xxxxxx; and
THENCE easterly along the northerly side of 40th Street, 250 feet to the point
or place of BEGINNING.
74
SCHEDULE C
----------
Rules and Regulations
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees, guests,
customers and invitees, and no tenant shall use, or permit the use of, the
entrances, corridors, escalators or elevators for any other purpose. No tenant
shall invite to the 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 plazas, entrances, corridors, escalators, elevators and other
facilities of the Building by other tenants. Fire exits and stairways are for
emergency use only, and they 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,
plazas, entrances, corridors, escalators, elevators, fire exits or stairways of
the Building. The 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 the tenants, in such manner as it deems best for
the benefit of the tenants generally, so long as the same does not materially
unreasonably interfere with Tenant's use and occupancy of the Demised Premises.
Landlord further reserves the right, at any time, to install a message/package
center in an area in the Building designated by Landlord and reasonably
accessible to and for the common use of tenant's, and the tenants shall comply
with the procedures for the same set forth by the Landlord.
2. The reasonable 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.
3. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not known to the watchman in charge or not
having a pass issued by the Landlord or not properly identified, and may require
all persons admitted to or leaving the Building outside of ordinary business
hours to register. Each tenant shall be responsible for all persons for whom he
requests such permission and shall be liable to the Landlord for all acts of
such persons. Any person whose presence in the Building at any time shall, in
the judgment of the 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 the Landlord may prevent all access to the
Building during the continuance of the same,
75
by closing the doors or otherwise, for the safety of the tenants and protection
of property in the Building. The Landlord may require any person leaving the
Building with any package or other object to exhibit a pass from the tenant from
whose premises the package or object is being removed, but the establishment and
enforcement of such requirement shall not impose any responsibility on the
Landlord for the protection of any tenant against the removal of property from
the premises of the tenant. The Landlord shall, in no way, be liable to any
tenant for damages or loss arising from the admission, exclusion or ejection of
any person to or from the tenant's premises or the Building under the provisions
of this rule.
4. No tenant shall obtain or accept for use in its premises towel,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning or
other similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided always that the charges for such
services by persons authorized by the Landlord are comparable to the industry
charge. Such services shall be furnished only at such hours, in such places
within the tenant's premises and under such reasonable regulations as may be
fixed by the Landlord.
5. No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of
the Building, either by the Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
7. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left open
at any time. All windows in each tenant's premises shall be kept closed at all
times and all blinds therein above the ground floor shall be lowered when and as
reasonably required because of the position of the sun, during the operation of
the Building air conditioning system to cool or ventilate the tenant's premises.
8. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of the Landlord, might disturb other
tenants in the Building shall be made or permitted by any tenant. Nothing shall
be done or permitted in any tenant's premises, and nothing shall be brought into
or kept in any tenant's premises, which would impair or interfere with any of
the Building services or the proper and economic heating, cleaning or other
servicing of the Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of the Landlord, might cause any
76
such impairment or interference. Landlord hereby acknowledges that Tenant's
initial build-out does not violate this provision. No dangerous, flammable,
combustible or explosive object or material shall be brought into the Building
by any tenant or with the permission of any tenant.
9. Tenant shall not permit any cooking or food odors emanating
within the Demised Premises to seep into other portions of the Building.
10. No acids, vapor or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash 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.
11. No signs, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside the premises or the Building without the prior written consent
of the Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule. Interior
signs and lettering on doors and elevators shall be inscribed, painted, or
affixed for each tenant by Landlord at the expense of such tenant, (the charge
not to exceed that which a reputable outside contractor would charge), and shall
be of a size, color and style reasonably acceptable to Landlord. Landlord shall
have the right to prohibit any advertising by any tenant which impairs the
reputation of the building or its desirability as a building for offices, and
upon written notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Upon the termination of a tenant's
lease, all keys of the tenant's premises and toilet rooms shall be delivered to
the Landlord.
13. No tenant shall xxxx, paint, drill into or in any way deface any
part of the Building or the premises demised to such tenant. Except as otherwise
provided with respect to Tenant's initial build-out, no boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, which will not be unreasonably withheld or delayed, and as Landlord
may reasonably direct. No tenant shall install any resilient tile or similar
floor covering in the premises demised to such tenant except in a manner
approved by Landlord.
77
14. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a xxxxxx or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any time,
as a store for the sale or display of goods, wares or merchandise of any kind,
or as a restaurant, shop, booth, bootblack or other stand, or for the conduct of
any business or occupation which predominantly involves direct patronage of the
general public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
16. The requirements of tenants will be attended only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the Landlord.
17. 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 in said premises.
18. The 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.
19. If the premises demised to any tenant become infested with
vermin, such tenant, at its sole cost and expense, shall cause its premises to
be exterminated, from time to time, to the satisfaction of Landlord and shall
employ such exterminators therefor as shall be approved by Landlord.
20. No bicycle or other vehicle and no animals shall be allowed in
the showrooms, offices, halls, corridors or any other parts of the Building.
21. If there is any conflict between these rules and regulations and
the provisions of the Lease, the provisions of the Lease shall govern.
78
SCHEDULE D
----------
Cleaning Specifications
for
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Landlord will perform cleaning services in the Demised Premises and related
areas as follows:
NIGHTLY
-------
Empty and wipe clean all ash trays.
Empty and wipe clean all waste receptacles.
Wipe clean all areas within hand high reach; including but not limited
to window xxxxx, wall ledgers, chairs, desks, tables, baseboards, file
cabinets, convector enclosures, pictures and all manner of office
furniture.
Wipe clean all glass top desks and tables.
Sweep with treated cloths all composition tile flooring.
Carpet sweep all carpeted areas, and vacuum clean weekly.
LAVATORIES WITHIN PREMISES (Nightly or as otherwise designated)
--------------------------
Wash and dry all bowls, seats urinals, washbasins and mirrors.
Wash and wipe dry all metal work.
Insert toilet tissue, toweling and soap in dispensers; materials to be
supplied by Tenant.
79
Empty paper towel and sanitary napkin disposal receptacles and remove
to designated area.
Sweep and wash floors.
Wipe clean all xxxxx, partitions and ledges.
Wipe clean exterior of waste cans and dispensing units.
Wash both partitions monthly.
Wash tile walls monthly.
Wash and dry interior of waste cans and sanitary disposal containers
weekly. Machine scrub flooring monthly.
Dust exterior of light fixtures monthly.
FLOOR MAINTENANCE
-----------------
High Dusting Public Areas.
High dust all walls, ledges, pictures, anemostats, registers, grilles,
etc., not reached in normal nightly cleaning quarterly.
WINDOW CLEANING SERVICES
------------------------
Clean all exterior windows, inside and out periodically during the
year, as Landlord deems necessary.
RUBBISH REMOVAL SERVICES
------------------------
Remove all ordinary dry rubbish and paper only from the office
premises of the Demised Premises daily, Monday through Friday,
holidays excepted.
80
SCHEDULE E
----------
Definitions
(a) The term mortgage shall include an indenture of mortgage and deed
--------
of trust to a trustee to secure an issue of bonds, and the term mortgagee shall
---------
include such a trustee.
(b) The terms include, including and such as shall each be construed
------- --------- -------
as if followed by phrase "without being limited to".
(c) The term obligations of this lease, and words of like import,
-------------------------
shall mean the covenants to pay rent and additional rent under this lease and
all of the other covenants and conditions contained in this lease. Any
provision in this lease that one party or the other or both shall do or not do
or shall cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term Tenant's obligations hereunder, and words of like import,
------------------------------
and the term Landlord's obligations hereunder, and words of like import, shall
--------------------------------
mean the obligations of this lease which are to be performed or observed by
Tenant, or by Landlord, as the case may be. Reference to performance of either
-----------
party's obligations under this lease shall be construed as "performance and
observance".
(e) Reference to Tenant being or not being in default hereunder, or
--------------------
words of like import, shall mean that Tenant is in default (beyond any
applicable notice and cure periods) in the performance of one or more of
Tenant's obligations hereunder, or that Tenant is not in default (beyond any
applicable notice and cure periods) in the performance of any of Tenant's
obligations hereunder, or that a condition of the character described in Section
25.01 has occurred and continues or has not occurred or does not continue, as
the case may be.
(f) References to Landlord as having no liability to Tenant or being
----------------------
without liability to Tenant, shall mean that Tenant is not entitled to terminate
---------------------------
this lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated for loss or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this lease or with respect to Tenant's use or occupancy
of the Demised Premises.
81
(g) The term laws and/or requirements of public authorities and words
----------------------------------------------
of like import shall mean laws and ordinances of any or all of the Federal,
state, city, county and borough governments and rules, regulations, orders
and/or directives of any or all departments, subdivisions, bureaus, agencies or
offices thereof, or of any other governmental, public or quasi-public
authorities, having jurisdiction in the premises, and/or the direction of any
public officer pursuant to law.
(h) The term requirements of insurance bodies and words of like import
--------------------------------
shall mean rules, regulations, orders and other requirements of the New York
Board of Fire Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(i) The term repair shall be deemed to include restoration and
------
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(j) Reference to termination of this lease includes expiration or
-------------------------
earlier termination of the term of this lease or cancellation of this lease
pursuant to any of provisions of this lease or to law. Upon a termination of
this lease, the term and estate granted by this lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this lease, may be, performed
after such termination, and, in any event, unless expressly otherwise provided
in this lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this lease.
(k) The term Tenant shall mean Tenant herein named or any assignee or
------
other successor in interest (immediate or remote) of Tenant herein named, while
such Tenant or such assignee or other successor in interest, as the case may be,
is in possession of the Demised Premises as owner of the Tenant's estate and
interest granted by this lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
(l) Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
82
