EXHIBIT 10.20
SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") is made as of the 19th day of
December, 2001, by and between ANSWERTHINK, INC., a Florida corporation,
successor in interest to ANSWERTHINK CONSULTING GROUP, INC., a Florida
corporation ("Sublessor"), whose present address is 0000 Xxxxxxxx Xxx Xxxxx,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000 and EYETECH PHARMACEUTICALS, INC., a Delaware
corporation ("Sublessee"), whose present address is 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
A. Sublessor is the Tenant under that certain Agreement of Lease with
000-000 Xxxxxxx Xxxxxx Limited Partnership, a New York limited partnership
("Master Landlord") dated April 13, 2000, as amended by that certain First
Amendment to Lease by and between Sublessor and Master Landlord dated September,
2000 (the "Master Lease") covering certain premises (the "Master Lease
Premises") located on the seventeenth (17th ) and eighteenth (18th) floors of
the building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Building"). A copy of the Master Lease is attached hereto as Exhibit "A" and
hereby made a part of this Sublease.
B. Sublessor wishes to sublease to Sublessee, and Sublessee desires to
sublease from Sublessor, that certain portion of the Master Lease Premises
located on the eighteenth (18th) floor of the Building, consisting of
approximate 16,706 rentable square feet, as more particularly described on the
sketch attached hereto as Exhibit "B" and hereby made a part of this Sublease
(the "Subleased Premises").
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Sublease, and intending to be legally bound, Sublessor and Sublessee agree
as follows:
1. Recitals. The foregoing Recitals are true and correct and are
hereby incorporated herein by reference.
2. Definitions. Capitalized terms not defined in this Sublease
shall have the meanings given to them in the Master Lease.
3. Demise and Sublease Term. Sublessor hereby subleases the
Subleased Premises to Sublessee, and Sublessee hereby subleases the Subleased
Premises from Sublessor, for a term (the "Sublease Term") beginning on the date
(the "Sublease Commencement Date") of Substantial Completion (as hereinafter
defined) of the Sublease Improvements (as hereinafter defined), unless sooner
terminated in accordance herewith, and ending on October 31, 2010. Provided that
this Sublease is executed by Sublessee and delivered to Sublessor, and provided
the Security
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Letter (as described in Section 6(a)), in form and content satisfactory to
Sublessor is delivered to Sublessor, all by or before 5:00 P.M. EST, December
17, 2001, Sublessor shall use good faith efforts and reasonable diligence to
attempt to achieve Substantial Completion of the construction of the Sublease
Improvements (as that term is hereinbelow defined), by March 31, 2002, subject
to force majeure and Sublessee Delays. In the event Sublessor fails (whether by
reason of failure to Substantially Complete the Sublease Improvements or
otherwise) to deliver possession by or before April 30, 2002, Sublessee shall
have the option to terminate this Sublease Agreement by written notice given not
later than fifteen (15) days thereafter; upon such notice by Sublessee, this
Sublease Agreement shall terminate with the same force and effect as if such
date were set forth as the natural expiration of this Sublease Agreement and
Sublessor shall promptly (but in any event within thirty (30) days of the giving
of such notice by Sublessee) refund to Sublessee all rent, security deposits and
other sums paid by Sublessee to Sublessor on account of this Sublease Agreement.
Sublessor's obligation to refund such sums shall survive termination of this
Sublease Agreement. Sublessor and Sublessee shall enter into a memorandum
stipulating the actual Sublease Commencement Date within five (5) business days
following the determination of the Sublease Commencement Date.
4. Rent.
(a) All sums due under this Sublease in addition to Fixed
Annual Rent (as hereinafter defined) are herein referred to as "Additional
Rent"; Fixed Annual Rent and Additional Rent are herein collectively referred to
as "Rent". Sublessee's covenant to pay Rent is independent of any other
covenant, agreement, term or condition of this Sublease.
(b) All Rent payable to Sublessor hereunder shall be paid
to Sublessor at its offices located at 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx, Xxxxxxx
00000, Attention: Controller, or such other place as Sublessor may designate, in
writing, in lawful money of the United States of America, without demand,
deduction, offset or abatement, except as herein expressly provided. Sublessee
may, at its option, make payment to Sublessor by wire transfer in accordance
with the wire instructions on Exhibit "C" attached hereto and hereby made a part
hereof. The first full monthly installment of Rent shall be delivered to
Sublessor by Sublessee upon execution of this Sublease by Sublessee. If the
first month of the Sublease Term is a partial month, the installment of Rent
payable for the second month of the Sublease Term shall be prorated, based on
the number of days of the Sublease Term falling within the first calendar month
of the Sublease Term, and such prorated amount shall be payable as the second
monthly installment of Rent due and payable hereunder.
(c) Beginning on the Sublease Commencement Date, and
subject to abatements as hereinafter provided, Sublessee shall pay to Sublessor
annual fixed rent ("Fixed Annual Rent"), without notice or demand and without
deduction or set-
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off, in equal monthly installments on the first day of each calendar month
throughout the Sublease Term, in accordance with following schedule:
Sq. Ft.
Rental Annual Monthly
------- ------ -------
$45.00 $751,770.00 $62,647.50
Notwithstanding the amounts set forth above Sublessee shall have no liability
for the payment of the monthly installment of Fixed Annual Rent for the first
(1st) and the thirteenth (13th) months of the Sublease Term (the "First
Abatement") and the sixty-first (61st) and the sixty-second (62nd) months of the
Sublease Term (the "Second Abatement"), provided that if either Sublessor or
Sublessee exercises the right to terminate this Sublease pursuant to the terms
of Section 13 hereof, Sublessee shall have waived its right to the Second
Abatement. If Sublessee does not pay any installment of Fixed Annual Rent or
payment of Additional Rent (as hereinafter defined) within three (3) days of the
date such payment is due, then Sublessee shall pay to Sublessor interest thereon
at the Interest Rate, from the date when such installment or payment shall have
become due to the date of the payment thereof and such interest shall be deemed
Additional Rent. Sublessor's right to the aforementioned delinquent interest is
in addition to all of Sublessor's rights and remedies under this Sublease, at
law or in equity.
5. Sublease Improvements.
(a) Except as otherwise provided in this paragraph 5,
Sublessee shall accept the Subleased Premises in their "AS-IS" condition. The
Sublessor shall construct improvements in the Sublease Premises ("the Sublease
Improvements") in accordance with the Final Plans therefor, to be prepared and
developed in accordance with the provisions set forth in subsection(b), below,
with finishes, fixtures, hardware, lighting and materials of a standard
equivalent to that of Sublessor's premises in the western portion of the 17th
floor of the Building. The date of the Substantial Completion of the Sublease
Improvements shall be deemed to constitute the Sublease Commencement Date. The
term "Substantial Completion", as used herein shall mean that the work on the
Sublease Improvements is complete except for minor or insubstantial details of
construction, mechanical adjustment, decoration, or other punch-list items which
remain to be performed (the "Punch-List Items").
(b) Sublessor's architect (the "Architect") will prepare
architectural plans and specifications (the "Architectural Plans") for the
Sublease Improvements on the basis of the tenant fit-out outline and the space
plan prepared by Xxxxx Associates, Inc., dated October 24, 2001, Project Number
01329, attached hereto as Exhibit "D" and hereby made a part of the Sublease
(the tenant fit-out outline and space plan being herein collectively referred to
as the "Space Plan"). Within three (3) business days after the completed
Architectural Plans have been submitted to
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Sublessee, Sublessee agrees to provide Sublessor and the Architect with
Sublessee's approval of such Architectural Plans or written disapproval of such
Architectural Plans, stating in detail the specific reasons for such disapproval
and the corrections necessary thereto. Subject to the terms of this subsection,
the Architect shall make such corrections, if necessary. Following the approval
of the Architectural Plans by Sublessee, the Architect shall prepare
permit-ready plans and specifications (the "Final Plans") for the Sublease
Improvements. Within three (3) business days after the Final Plans have been
submitted to Sublessee, Sublessee agrees to provide Sublessor and the Architect
with Sublessee's written approval of such Final Plans or written disapproval of
such Final Plans, stating in detail the reasons for such disapproval and the
corrections necessary thereto. Subject to the term of this subsection, the
Architect shall make such corrections, if necessary. Sublessee shall have no
right to object to the Architectural Plans or the Final Plans for the Sublease
Improvements unless and to the extent such Architectural Plans or Final Plans,
as the case may be, shall be materially inconsistent with the Space Plan. Any
delay by Sublessee in the approval of the Architectural Plan or Final Plans or
any disapproval thereof which is not based on the foregoing standard of
inconsistency with the Space Plan shall be deemed a Sublessee's Delay (as such
term is hereinafter defined).
(c) Sublessee shall have the right to request changes to
the Final Plans ("Change Orders"). Any such request for a Change Order shall be
made only by the Sublessee's Coordinator (as such term is defined below). All
Change Orders initiated by Sublessee's Coordinator shall be forwarded to
Sublessor and Sublessor's general contractor. Within fifteen (15) business days
following receipt of any such request for a Change Order, Sublessor shall notify
Sublessee of its approval or disapproval thereof, which Sublessor shall not
unreasonably withhold. Sublessee shall be responsible for all net additional
costs to the Total Costs of the Sublease Improvements (as such term is defined
below) entailed by any such Change Order, and, to the extent that any such
Change Order shall delay the Substantial Completion of the Sublease
Improvements, such delay shall constitute a Sublessee's Delay (as such term is
defined below).
(d) On the date of Substantial Completion of the Sublease
Improvements, Sublessor and Sublessee shall inspect the Subleased Premises and
shall in good faith mutually agree upon a list of Punch-List Items.
(e) Sublessee shall designate in writing one (1) person
("Sublessee's Coordinator") who shall be responsible to review all aspects of
the Sublease Improvements, make periodic on-site inspections, monitor compliance
with the terms of the Sublease and approve and coordinate any Sublessee issues
with Sublessor on behalf of Sublessee.
(f) Sublessee hereby agrees that it shall contribute to
the cost of the Sublease Improvements an amount ("Sublessee's Contribution")
equal to the costs of
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all materials and labor in connection with the installation of (i) any and all
millwork, plumbing (except the plumbing for the sink in the pantry, as depicted
on the Space Plan) and appliances in the Premises and (ii) the feature wall in
the reception area as depicted on the Space Plan (the work described in (i) and
(ii) being herein referred to as "Sublessee's Additional Work"), including,
without limitation, all of the Sublessor's contractor's general conditions,
profit and overhead allocable to the Sublessee's Additional Work. Sublessor
shall submit requests for bids for each component of the Sublessee's Additional
Work to at least three (3) reputable subcontractors acceptable to Sublessor and
Sublessee. Sublessee shall review the bids and, within three (3) days following
receipt thereof, shall indicate to Sublessor Sublessee's choice(s) of
subcontractor(s) for Sublessee's Additional Work. Sublessee shall pay to
Sublessor the Sublessee's Contribution within three (3) business days following
receipt of an invoice therefor from Lessor, and such Sublessee's Contribution
shall be paid to Sublessor, in any event, prior to the commencement of
construction of the Sublease Improvements. Sublessee shall pay to Sublessor an
amount equal to the cost of any Change Order within three (3) business days
following receipt of an invoice therefor from Sublessor.
(g) If any Sublessee Delay shall occur, then the term of
this Sublease and Sublessee's obligation to pay rent hereunder will commence on
the date on which the Sublease Improvements would have been Substantially
Completed but for the Sublessee Delay. For purposes of this Sublease, each one
or more of the following shall constitute a "Sublessee Delay": (i) Sublessee's
failure to timely approve the Architectural Plans or the Final Plans or
Sublessee's expressing any disapproval thereof unless and to the extent such
disapproval shall be based upon material inconsistency thereof with the Space
Plan; (ii) Sublessee's request for materials, finishes or installations
constituting "long-lead time items," as reasonably determined by Sublessor;
(iii) Sublessee's request for a Change Order in the Sublease Improvements or in
the Final Plans (notwithstanding Sublessor's approval of any such changes), (iv)
any delays in the Substantial Completion of the Sublease Improvements or any
portion thereof resulting from Sublessee's Additional Work or caused by any
subcontractor selected to perform any of Sublessee's Additional Work, or (v) any
other act or omission by Sublessee or its agents, including, without limitation,
Sublessee's Coordinator, which directly or indirectly delays completion of the
Sublease Improvements or Sublessor's delivery to Sublessee of possession of the
Subleased Premises.
(h) Sublessee's acceptance of the Subleased Premises
shall be deemed its approval of the condition of the Subleased Premises,
including, without limitation, the Sublease Improvements.
6. Security Deposit
(a) Sublessee shall by not later than December 17, 2001
deliver to Sublessor and, shall, except as otherwise provided herein, maintain
in
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effect at all times during the Sublease Term, an irrevocable letter of credit,
in a form and with terms acceptable to Sublessor in its sole discretion, in the
amount of $939,705.00 as security for the faithful performance and observance by
Sublessee of the terms, provisions, covenants and conditions of this Sublease.
Such letter of credit shall be issued by a banking corporation reasonably
satisfactory to Sublessor and having its principal place of business or its duly
licensed branch or agency in the State of New York. Such letter of credit shall
have an expiration date no earlier than the first anniversary of the date of
issuance thereof and shall be automatically renewed from year to year unless
terminated by the issuer thereof by notice to Sublessor given not less than
forty-five (45) days prior to the expiration thereof. Except as otherwise
provided herein, Sublessee shall, throughout the Sublease Term, deliver to
Sublessor, in the event of the termination of any such letter of credit,
replacement letters of credit in lieu thereof (each such letter of credit and
such extensions or replacements thereof, as the case may be, is hereinafter
referred to as a "Security Letter") no later than forty-five (45) days prior to
the expiration date of the preceding Security Letter. The term of each such
Security Letter shall be not less than one (1) year and shall be automatically
renewable from year to year as aforesaid. If Sublessee shall fail to obtain any
replacement of a Security Letter within the time limits set forth in this
subparagraph (a), Sublessor may draw down the full amount of the existing
Security Letter and retain the same as security hereunder.
(b) In the event, Subtenant defaults in respect to any of
the terms, provisions, covenants and conditions of this Sublease after the
expiration of applicable notice and cure periods, including, but not limited to,
the payment of Rent, Sublessor may draw upon the Security Letter to the extent
required for the payment of any Rent or any other sum as to which Sublessee is
in default or for any sum which Sublessor may expend or may be required to
expend by reason of Sublessee's default in respect of any of the terms,
provisions, covenants and conditions of this Sublease, including but not limited
to, any damages or deficiency accrued before or after summary proceedings or
other re-entry by Sublessor. To insure that Sublessor may utilize the security
represented by the Security Letter in the manner, for the purpose, and to the
extent provided in this paragraph 6, each Security Letter shall provide that the
full amount thereof may be drawn down by Sublessor upon the presentation to the
issuing bank of Sublessor's draft drawn on the issuing bank without accompanying
memoranda on statement of beneficiary.
(c) In the event Sublessor draws any portion or all of
the security delivered hereunder, Sublessee shall forthwith restore the amount
so applied or retained by providing a supplemental Security Letter so that at
all times the amount deposited shall be not less than the security required by
subparagraph (a) hereof.
(d) In the event that (i) Sublessee shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Sublease; (ii) Sublessee
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shall not have been in monetary default hereunder more than one (1) time in any
given year or more than three (3) times in the aggregate and (iii) the
Sublessee's Financial Statements (as hereinafter defined) evidence a net worth
acceptable to Sublessor, in its sole discretion, the security shall be reduced
as follows: (x) upon the expiration of the thirty-seventh (37th) full calendar
month of the Sublease Term to $751,770.00 and (y) upon the expiration of the
sixty-first (61st) full calendar month of the Sublease Term to $563,827.50.
Sublessee agrees that on each anniversary of the date hereof, Sublessee shall
deliver to Sublessor an unconditional audited financial statement of Sublessee
(the "Financial Statement") for the prior year evidencing Sublessee's tangible
net worth prepared in accordance with GAAP, consistently applied from period to
period, by an independent certified public accounting firm acceptable to
Sublessor (the "Acceptable Firm"). Sublessor hereby agrees that
PricewaterhouseCoopers LLP or another so-called "Big 5" accounting firm shall be
deemed acceptable to Sublessor.
(e) Provided that Sublessee shall cure all defaults in
the performance of the terms, provisions, covenants and conditions of this
Sublease, within any applicable cure periods, the security shall be returned to
Sublessee within thirty (30) days after the date fixed as the end of the
Sublease or the date of earlier termination of this Sublease and after delivery
of entire possession of the Subleased Premises to Sublessor. Sublessee further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Sublessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
7. Brokers. Sublessor and Sublessee each represents and warrants
to the other that neither has dealt with any broker or other intermediary in
connection with this transaction other than Insignia/ESG, Inc. and Newmark &
Company Real Estate, Inc. (collectively, the "Brokers"), whose commission shall
be paid by Sublessor in accordance with the provisions of a separate commission
agreement. Each party agrees to, and hereby does, defend, indemnify and hold the
other harmless against and from any brokerage commissions or claims therefor by
any party, other than the Brokers, claiming to have dealt with the indemnifying
party, and all costs, expenses and liabilities in connection therewith,
including, without limitation, reasonable attorneys' fees and expenses for any
breach of the foregoing.
8. Notices. All notices and demands under this Sublease shall be
in writing and shall be effective by transmission to the applicable address set
forth below, (i) on the same day sent, by facsimile transmission with a
confirmation of transmission and receipt, or (ii) one (1) day after being sent
by overnight delivery with a nationally recognized overnight delivery service
that provides tracking and proof of receipt, or (iii) three (3) days after being
deposited in the U.S. mails, by registered or certified mail, return receipt
requested (except for notices to Master Landlord, which shall be given in
accordance with Section 31.01 of the Master Lease).
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If to Master Landlord: As required under the Lease.
If to Sublessor: At the address set forth in the opening
paragraph of this Sublease,
Attention: Controller.
If to Sublessee: At the address set forth in the opening
paragraph of this Sublease,
Attention: President and
Chief Operating Officer
Either party may change its address for notices and demands under this Sublease
by notice to the other party.
9. Subordination to Lease.
(a) This Sublease is subject and subordinate to the
Master Lease. Sublessee shall not cause a default under the Master Lease or
permit its employees, agents, contractors or invitees to cause a default under
the Master Lease. Sublessee shall have all of the rights and assume all the
responsibilities of Tenant under the lease with regard to the Subleased Premises
except as specifically modified by the Sublease Agreement (provided, however,
that Sublessee shall be obligated to pay, as Rent hereunder, only the Fixed
Annual Rent and Additional Rent set forth in the Sublease Agreement). If the
Master Lease terminates before the expiration of the term of this Sublease,
Sublessor shall not be liable to Sublessee for any damages arising out of such
termination.
(b) Except as set forth below, all the terms, covenants
and conditions in the Master Lease are incorporated as a part of this Sublease,
provided, however, all references in the Lease to "Landlord", "Tenant", "Lease",
"Demised Premises", "Commencement Date" and "Term" are hereby revised to read:
"Sublessor", "Sublessee", "Sublease", "Subleased Premises", "Sublease
Commencement Date" and "Sublease Term" and all derivatives thereof, and all
references in the Lease to "subletting", "sublease" and "sublessee" are hereby
revised to read: "Subsubletting", "Subsublease" and "Subsublessee",
respectively; further provided, however, that the following sections of the
Master Lease, as incorporated in this Sublease, are hereby revised as follows:
(i) in Section 3.01, Section 3.03(c), Section 4.01, the first instance in the
last sentence of Section 4.02, Section 4.03, Section 4.04, Section 4.05, Section
4.06, Section 5.02, Section 5.03, Section 6.01, Section 9.09, except in the last
sentence thereof, Section 10.02, the first instance in the first sentence of
Section 11.01, Section 11.06(d), Section 11.06(j), the last sentence of Section
14.01, Section 14.05, Section 15.02, Section 15.03, Section 21.03, Section
21.04, Section 21.07, the first paragraph of Section 29.01, Section 36 and
Section 44.01, all references therein to "Landlord" are hereby
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revised to read "Master Landlord"; (ii) in Section 8.02(a), Section 9.01,
Section 15.01, Section 15.04 and Section 15.05, the term "Landlord" is hereby
revised to read "Master Landlord or Sublessor"; (iii) in Section 6.01(vii)(2),
Section 9.02 and the second paragraph of Section 29.01, the term "Landlord" is
hereby revised to read "at Sublessor's discretion, Master Landlord and/or
Sublessor"; (iv) in the second line of Section 3.01(a), the year "2000" is
revised to read"2001," and the year "2001" is revised to read "2002"; (v) in the
second line of Section 3.01(b), the phrase "eight and fourteen hundredths
percent (8.14%) is revised to read "two and seventy-six hundredths percent
(2.76%)"; (vi) in the second line of Section 3.01(e), the year "2000" is revised
to read "2001"; (vii) in the second line of Section 3.01(i), the year "2000" is
revised to read "2001"; (viii) in Section 3.01(j), the following phrase is
hereby inserted at the end of the last sentence thereof: "to the extent
Sublessor shall have received same from Master Landlord."; (ix) in Section
3.01(k), the term "49,304 " is hereby revised to read "16,706"; (x) in Section
4.05, in the next to the last sentence thereof, the term "Tenant" is hereby
revised to read "Sublessor"; (xi) in Section 6.01, wherever the term
"$50,000.00" appears, such term is hereby revised to read "$10,000.00"; wherever
the term "$100,000.00" appears, such term is hereby revised to read
"$25,000.00"; wherever the term "fifteen (15) Business Days" appears, such term
is hereby revised to read "twenty (20) Business Days"; wherever the term "ten
(10) Business Days" appears, such term is hereby revised to read "fifteen (15)
Business Days," and the parenthetical phrase in the last sentence of the first
paragraph of this Section is hereby deleted; (xii) in Section 6.01(vii), Section
8.02(c) and in every other provision of the Master Lease as incorporated in this
Sublease, where there is required to be provided a bond, at the discretion of
Sublessor, Sublessee shall furnish such bond to Sublessor and/or Master
Landlord; (xiii) in Section 9.08(c), the phrase "the building and fixtures,
appurtenances and equipment therein" is hereby revised to read "the furniture,
furnishings, fixtures and other properties belonging to Sublessor"; (xiv) in the
eleventh line of Section 11.10(a), the amount "150,000,000" is revised to read
"25,000,000"; (xv) the language beginning with the word "provided" in the
thirteenth line of Section 11.10(a) and continuing through the end of the
subsection is revised to read: "and shall, on or before the effective date of
such assignment or sublease, deliver to Landlord as additional security
hereunder, a letter of credit in favor of Landlord, on the same terms and
conditions as required of the Sublessee under Section 6 of the Sublease
Agreement" (xvi) in Section 11.05(a) and Section 11.05(c), the term "forty five
(45) days" is hereby revised to read "twenty (20) days"; (xvii) in Section
15.01, the first sentence thereof is hereby revised to read "Sublessee shall
permit Master Landlord to erect, use and maintain pipes, ducts and conduits in
and through the Subleased Premises, provided the same are installed adjacent to
or concealed behind walls and ceilings of the Subleased Premises"; (xviii) in
Section 16.02(a) and Section 16.02(f), the term "five (5) days" is hereby
revised to read "two (2) days"; (xix) in Section 16.02(b), the term "fifteen
(15) days" is hereby revised to read "seven (7) days"; (xx) in Section 16.02(g),
the term "ten (10) days" is hereby revised to read "five (5) days"; (xxi) in
Section 21.02, the following phrase is hereby added, after the
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words "if possible", in the sixth line thereof: "provided Master Landlord shall
have notified Sublessor thereof"; (xxii) in Section 22.01, wherever the phrases
"Building" or "Land and Building" appears, such terms are hereby revised to read
"the leasehold interest of the Sublessor in the Master Lease Premises, under the
Master Lease"; (xxiii) in Section 29, the last sentence of the first paragraph
thereof is hereby amended by inserting the words: "by Master Landlord," after
the word "applied," therein; (xxiv) in Section 44.01, the last sentence thereof
is hereby deleted in its entirety; (xxv) in Section 51.02(a), the term "limited
partnership" is hereby amended to read: "corporation"; (xxvi) and in Section
51.02(c) the term "Land and Building" is hereby amended to read: "the leasehold
Interest of Sublessor in the Master Lease Premises." To the extent incorporated
into this Sublease, Sublessee shall perform each and every of the obligations of
the Sublessor, as the tenant under the Master Lease. Notwithstanding any other
provision of this Sublease, Sublessor, as sublessor under this Sublease, shall
have the benefit of all rights, remedies and limitations of liability enjoyed by
Master Landlord, as the landlord under the Master Lease, but, notwithstanding
the incorporation of certain of the terms, covenants and conditions of the
Master Lease as provided above, (i) Sublessor shall have no obligations under
this Sublease to perform the obligations of Master Landlord, as the landlord
under the Master Lease, including without limitation any obligation to provide
services, make repairs or maintain insurance, and Sublessee shall seek such
performance and obtain such services solely from the Master Landlord; (ii)
Sublessor shall not be bound by any representations or warranties of the Master
Landlord under the Master Lease; (iii) in any instance where the consent of
Master Landlord is required under the terms of the Master Lease, the consent of
Sublessor and Master Landlord shall be required; and (iv) Sublessor shall not be
liable to Sublessee for any failure or delay in Master Landlord's performance of
its obligations, as landlord under the Master Lease. Upon request of Sublessee,
Sublessor shall, at Sublessee's expense, use reasonable efforts to cooperate
with Sublessee in its efforts to cause Master Landlord to perform its
obligations under the Master Lease; provided that in no event shall Sublessor be
obligated to institute legal proceedings.
(c) Notwithstanding any contrary provision of this
Sublease, the following terms and conditions of the Lease (and references
thereto) are not incorporated as provisions of this Sublease: Section 1.01,
Section 1.05, Sections 2.01 through 2.03, Section 3.10, Section 3.11, Section
4.07, Section 9.10, Article 10, Section 21.01, Section 21.05, Section 21.06,
Article 24, Article 31, Article 40, Article 42, Article 45, Article 47, Article
48, Article 50, Article 52, Article 53, Exhibits X-0, X, X-0, X-0 and E-3 of the
Master Lease. Sublessee acknowledges and agrees that it has no right to or
interest in those rights created under the following provisions of the Master
Lease: Sections 47, 48, 50, 52 and 53.
10. Landlord's Approval. This Sublease is subject to the approval
of the Master Landlord pursuant to Article 11 of the Master Lease. Both parties
shall
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cooperate to timely furnish to Landlord any information necessary to Landlord's
decision.
11. Entire Agreement. This Sublease contains all of the
agreements, conditions, warranties and representations relating to the sublease
of the Subleased Premises and may be amended or modified only by written
instruments executed by both Sublessor and Sublessee.
12. Authority. Sublessor and Sublessee each represent and warrant
to the other that the individual(s) executing and delivering this Sublease on
its behalf is/are duly authorized to do so and that this Sublease is binding on
Sublessee and Sublessor in accordance with its terms. Simultaneously with the
execution of this Sublease, Sublessee shall deliver evidence of such authority
to Sublessor in a form reasonably satisfactory to Sublessor.
13. Option to Terminate. Sublessor and Sublessee shall each have
the right and option, exercisable by giving the other party a minimum of nine
(9) months prior written notice thereof, to terminate this Sublease at the
expiration of the sixty-first (61st) full month of the Sublease Term (the
"Option to Terminate") and, in the event the Sublessee exercises the Option to
Terminate, Sublessee shall pay to Landlord an amount equal to the sum of (x)
$125,295.00 (the amount of the First Abatement) plus (y) the sum of the
unamortized brokerage commissions, legal fees and costs and costs of
construction of the Sublease Improvements incurred by Sublessor (assuming
amortization on a straight-line basis over sixty-one (61) months. Sublessee
shall pay all Rent under the Sublease and abide by all of the terms and
conditions of the Sublease and the Master Lease through and including such early
termination date.
IN WITNESS WHEREOF, the parties have cause this agreement to be
executed as a sealed instrument and delivered as of the day and year first above
written.
11
WITNESSES: SUBLESSOR:
ANSWERTHINK, INC., a Florida
/s/ XXXXX XXXXXXX-XXXX corporation, successor in interest to
-------------------------------- ANSWER-THINK CONSULTING GROUP,
Print Name: Xxxxx Xxxxxxx-Xxxx INC. a Florida corporation
By: /s/ XXXXX X. XXXXXXXXX
--------------------------
/s/ XXXXXX XXXXXX Name: Xxxxx X. Xxxxxxxxx
-------------------------------- Title: Secretary
Print Name: Xxxxxx Xxxxxx
SUBLESSEE:
EYETECH PHARMACEUTICALS, INC.,
a Delaware corporation
/s/ XXXXXXX X'XXXXXX
--------------------------------
Print Name: Xxxxxxx X'Xxxxxx
By: /s/ XXXXX XXXXX
--------------------------
Name: Xxxxx Xxxxx
/s/ XXXX XXXXXXX Title: CEO
--------------------------------
Print Name: Xxxx xxXxxxx
12
AMENDMENT TO SUBLEASE
This Amendment to Sublease Agreement (the "Amendment") is made as of
the 22 day of February, 2002, by and between ANSWERTHINK, INC., a Florida
corporation, successor in interest to ANSWERTHINK CONSULTING GROUP, INC., a
Florida corporation ("Sublessor"), and EYETECH PHARMACEUTICALS, INC., a Delaware
corporation ("Sublessee").
RECITALS:
A. Sublessor and Sublessee are parties to a certain Sublease
Agreement (the "Sublease") dated of as December 19, 2001, with respect to the
Subleased Premises described therein.
B. Pursuant to Section 10 of the Sublease, the Sublease is
subject to the approval of the Master Landlord identified therein and Sublessor
and Sublessee wish to enter into this Amendment in order make certain revisions
requested by Master Landlord as a condition to its approval of the Sublease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Amendment, and intending to be legally bound, Sublessor and Sublessee agree
as follows:
1. Recitals. The foregoing Recitals are true and correct and are
hereby incorporated herein by reference.
2. Definitions. Capitalized terms not defined in this Amendment
shall have the meanings given to them in the Sublease. All references to the
Sublease shall mean and refer to the Sublease, as amended by this Amendment.
3. Amendments to Sublease. Sublessor and Sublessee hereby
acknowledge and agree that the Sublease is hereby amended in the manner and to
the extent described on the copy of the Sublease attached hereto as Exhibit "1"
and hereby made a part hereof, to which the amendments to the Sublease which
Sublessor and Sublessee have agreed to are indicated by underscore, with respect
to additions, and by strike-through, with respect to deletions.
4. Modification. Sublessor and Sublessee hereby acknowledge and
agree that, except as expressly amended by this Amendment, the Sublease remains
in full force and effect, and that neither Sublessor nor Sublessee are in
default of any of the terms or conditions thereof.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as a sealed instrument and delivered as of the day and year first above
written.
WITNESSES: SUBLESSOR:
ANSWERTHINK, INC., a Florida
/s/ XXXXX X. XXXX corporation, successor in interest to
------------------ ANSWERTHINK CONSULTING
Print Name: Xxxxx X. Xxxx GROUP, INC. a Florida corporation
/s/ XXXXXXX XXXXXX By: /s/ XXXXX X. XXXXXXXXX
------------------ -----------------------
Print Name: Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Secretary and Corporate
Counsel
SUBLESSEE:
/s/ XXXXX XXXXXXXX EYETECH PHARMACEUTICALS,
------------------ INC., a Delaware corporation
Print Name: Xxxxx Xxxxxxxx
By: /s/ XXXXXXX X'XXXXXX
--------------------
/s/ XXXXXXXX XXXXXXXX Name: Xxxxxxx X'Xxxxxx
--------------------- Title: V.P. Finance
Print Name: Xxxxxxxx Xxxxxxxx
************************************************************
AGREEMENT OF LEASE
between
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
Landlord,
and
ANSWERTHINK CONSULTING GROUP, INC.
Tenant,
Dated: April 13, 2000
PREMISES:
---------
A portion of the seventeenth (17th) and
a portion of the eighteenth (18th) floors
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
********************************************************************************
-------------------------
EXHIBIT
"A"
-------------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1
RENT.................................................................................. 1
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES................................................... 3
ARTICLE 3
ADJUSTMENTS OF RENT................................................................... 5
ARTICLE 4
ELECTRICITY........................................................................... 11
ARTICLE 5
USE................................................................................... 14
ARTICLE 6
ALTERATIONS AND INSTALLATIONS......................................................... 15
ARTICLE 7
REPAIRS............................................................................... 20
ARTICLE 8
REQUIREMENTS OF LAW................................................................... 22
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY............................................. 23
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE......................................................... 29
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC............................................... 31
ARTICLE 12
CERTIFICATE OF OCCUPANCY.............................................................. 39
ARTICLE 13
ADJACENT EXCAVATION -- SHORING............................................... 40
ARTICLE 14
CONDEMNATION................................................................. 40
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES.......................................... 42
ARTICLE 16
CONDITIONS OF LIMITATION..................................................... 43
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION............................................. 45
ARTICLE 18
DAMAGES...................................................................... 46
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS............................. 48
ARTICLE 20
QUIET ENJOYMENT.............................................................. 49
ARTICLE 21
SERVICES AND EQUIPMENT....................................................... 49
ARTICLE 22
DEFINITIONS.................................................................. 52
ARTICLE 23
INVALIDITY OF ANY PROVISION.................................................. 53
ARTICLE 24
BROKERAGE.................................................................... 53
ARTICLE 25
SUBORDINATION................................................................ 53
ARTICLE 26
CERTIFICATE OF TENANT........................................................ 55
-ii-
ARTICLE 27
LEGAL PROCEEDINGS WAIVER OF JURY TRIAL................................. 56
ARTICLE 28
SURRENDER OF PREMISES.................................................. 56
ARTICLE 29
RULES AND REGULATIONS.................................................. 57
ARTICLE 30
CONSENTS AND APPROVALS................................................. 57
ARTICLE 31
NOTICES................................................................ 57
ARTICLE 32
NO WAIVER.............................................................. 58
ARTICLE 33
CAPTIONS............................................................... 59
ARTICLE 34
INABILITY TO PERFORM................................................... 59
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD......................................... 60
ARTICLE 36
NAME OF BUILDING....................................................... 60
ARTICLE 37
RESTRICTIONS UPON USE.................................................. 60
ARTICLE 38
ARBITRATION............................................................ 61
ARTICLE 39
INDEMNITY.............................................................. 61
ARTICLE 40
MEMORANDUM OF LEASE.................................................... 61
-iii-
ARTICLE 41
MISCELLANEOUS.......................................................... 62
ARTICLE 42
SECURITY DEPOSIT....................................................... 63
ARTICLE 43
PARTNERSHIP............................................................ 65
ARTICLE 44
SUBLEASE............................................................... 65
ARTICLE 45
FAILURE TO GIVE POSSESSION............................................. 66
ARTICLE 46
INTENTIONALLY OMITTED.................................................. 68
ARTICLE 47
FIRST OFFERING SPACE................................................... 68
ARTICLE 48
EXTENSION OF TERM OPTION............................................... 76
ARTICLE 49
INTENTIONALLY OMITTED.................................................. 79
ARTICLE 50
LAYOUT AND FINISH; TENANT WORK CREDIT.................................. 79
ARTICLE 51
TENANT'S AND LANDLORD'S REPRESENTATIONS................................ 85
ARTICLE 52
SATELLITE DISH INSTALLATION............................................ 86
-iv-
AGREEMENT OF LEASE made as of this 13th day of April, 2000,
between 000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, a New York limited
partnership, with its office at c/o Newmark & Company Real Estate, Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (hereinafter referred to as "Landlord"),
and ANSWERTHINK CONSULTING GROUP, INC., a Florida corporation, with its office
at 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
Landlord hereby leases and Tenant hereby hires from Landlord,
in the building (hereinafter called the "Building") known as 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, the following space: a portion of the seventeenth
(17th) floor and a portion of the eighteenth (18th) floor of the Building, as
shown hatched on the plans annexed hereto as Exhibit A (which space is
hereinafter referred to as "the demised premises"); for a term of approximately
fifteen (15) years, to commence on the date hereof (hereinafter referred to as
the "Commencement Date"), and to end on the last day of the month in which
occurs the fifteenth (15th) anniversary of the Rent Commencement Date (such date
on which the term of the Lease expires is hereinafter referred to as the
"Expiration Date") or on such date as such term shall sooner cease and terminate
as hereinafter provided. The Building is located on the land (herein called the
"Land") described on Exhibit B annexed hereto).
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, trustees, successors and
assigns, hereby covenant as follows:
ARTICLE 1
RENT
1.01 Subject to the provisions of Section 45 of this
Lease, Tenant shall pay to Landlord a fixed annual rent (hereinafter referred to
as "fixed annual rent") at the annual rate of:
(a) One Million Nine Hundred and Seventy-Two
Thousand One Hundred Sixty Dollars ($1,972,160.00) per annum (One Hundred
Sixty-Four Thousand Three Hundred Forty-Six and 67/100 Dollars ($164,346.67) per
month) during the period commencing on the Rent Commencement Date and ending on
the
1
last day of the month preceding the month in which occurs the fifth (5th)
anniversary of the Rent Commencement Date;
(b) Two Million Seventy Thousand Seven Hundred
Sixty-Eight Dollars ($2,070,768.00) per annum (One Hundred Seventy-Two Thousand
Five Hundred Sixty-Four and 00/100 Dollars ($172,564.00) per month) during the
period commencing on the first day of the month in which occurs the fifth (5th)
anniversary of the Rent Commencement Date and ending on the last day of the
month preceding the month in which occurs the tenth (10th) anniversary of the
Rent Commencement Date; and
(c) Two Million One Hundred Sixty-Nine Thousand
Three Hundred Seventy-Six Dollars ($2,169,376.00) per annum (One Hundred Eighty
Thousand Seven Hundred Eighty-One and 33/100 Dollars ($180,781.33) per month)
during the period commencing on the first day of the month in which occurs the
tenth (10th) anniversary of the Rent Commencement Date and ending on the
Expiration Date.
Tenant agrees to pay the fixed annual rent in lawful money of
the United States of America, in equal monthly installments in advance on the
first day of each calendar month during said term, at the office of Landlord or
such other place in the United States of America as Landlord may designate,
without any setoff or deduction whatsoever, except such deduction as may be
occasioned by the occurrence of any event permitting or requiring a deduction
from or abatement of rent as specifically set forth in Articles 10 and 14
hereof. Should the obligation to pay fixed annual rent commence on any day other
than on the first day of a month, then the fixed annual rent for such month
shall be prorated on a per diem basis.
The first month's installment of fixed annual rent due under
this Lease in the amount of One Hundred Sixty-Four Thousand Three Hundred
Forty-Six and 67/100 Dollars ($164,346.67) shall be paid by Tenant upon the
execution of this Lease.
If this Lease be a renewal of any existing lease any rent due
thereunder after the expiration of the term of such lease shall be deemed
additional rent under this Lease.
1.02 Tenant shall pay the fixed annual rent and additional
rent as above and as hereinafter provided, by good and sufficient check (subject
to collection) drawn on a bank having a banking office in New York City whose
checks will clear within three (3) days after deposit in Landlord's account. All
sums other than fixed annual rent payable by Tenant hereunder shall be deemed
additional rent (for default in the payment of which Landlord shall have the
same remedies as for a
2
default in the payment of fixed annual rent), and shall be payable on demand,
unless other payment dates are hereinafter provided.
1.03 If Tenant shall fail to pay when due any installment
of fixed annual rent or any payment of additional rent for a period of three (3)
days after such installment or payment shall have become due, Tenant shall pay
interest thereon at the Interest Rate (as such term is defined in Article 22
hereof), from the date when such installment or payment shall have become due to
the date of the payment thereof, and such interest shall be deemed additional
rent.
1.04 If any of the fixed annual rent or additional rent
payable under the terms and provisions of this Lease shall be or become
uncollectible, reduced or required to be refunded because of any Legal
Requirement (as such term is defined in Article 22 hereof), Tenant shall enter
into such agreement(s) and take such other steps (without additional expense to
Tenant) as Landlord may request and as may be legally permissible to permit
Landlord to collect the maximum rents which 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 rents 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, to the
maximum extent legally permissible, an amount equal to (i) the rents 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.
1.05 Notwithstanding any language to the contrary
contained herein, the fixed annual rent payable hereunder shall be abated during
the period (the "Abatement Period") commencing on the Commencement Date and
ending on October 31, 2000 (the date following the expiration of the Abatement
Period is herein called the "Rent Commencement Date").
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES
2.01 Tenant has examined the demised premises and agrees
to accept the same in their condition and state of repair existing as of the
date hereof subject to the representations and responsibilities of Landlord
under this Lease and to normal wear and tear and to the removal therefrom by
Landlord of the property of the existing tenant or occupant thereof, if any, and
understands and agrees that Landlord shall not be required to perform any work,
supply any materials or incur
3
any expense to prepare the demised premises for Tenant's occupancy, except that
Landlord, at Landlord's sole cost and expense, shall:
(a) provide to Tenant at least six (6)
connection points to the Building's fire safety system (at least one (1)
connection point on every third (3rd) floor of the Building) to which it may
connect its Class E subsystem (consisting of smoke detectors and other life
safety and security devices) to comply with applicable laws including, without
limitation, New York City Local Law, provided, however, Tenant shall solely be
responsible for the cost of making such connections;
(b) demolish all or portions of the demised
premises, including all of former tenant's wiring in the electrical closets
servicing the demised premises, other than core areas therein and in accordance
with Tenants's demolition plan prior to the commencement of performance of
Tenant's Work (as that term is hereinafter defined) provided that Landlord
approves such demolition plan which approval shall not be unreasonably withheld
or delayed and provided further that if Landlord fails to deliver its response
to such demolition plan within ten (10) Business Days of receipt thereof, then
such demolition plan shall be deemed approved by Landlord;
(c) remove asbestos in the demised premises in
accordance with applicable legal requirements to facilitate Tenant's Work in and
to the demised premises, including any vinyl asbestos tile ("VAT"), and deliver
to Tenant an original ACP-5 or ACP-7, as applicable, in connection therewith;
(d) remove all existing exterior windows in the
demised premises; and supply and install new Building Standard (as defined
herein) exterior windows throughout the demised premises by no later than
September 1, 2000;
(e) deliver all existing radiators within the
demised premises in proper working order; and
(f) deliver the demised premises with the
existing sprinkler loop in good working order.
For the purposes of this Section 2.01, "core areas" shall mean restrooms and the
distribution electrical panels.
2.02 If the Commencement Date is other than the specific
date hereinabove set forth then Tenant shall at Landlord's request, execute a
written agreement confirming the Commencement Date. Any failure of the parties
to execute such written agreement shall not affect the validity of the
Commencement Date as fixed and determined by Landlord as aforesaid.
4
2.03 (a) Subject to Article 45 of this Lease,
Landlord shall use all reasonable efforts to complete Landlord's work described
in Sections 2.01(b) and (c) within forty-five (45) days of the Commencement
Date.
(b) Landlord shall use reasonable efforts to
coordinate Landlord's work described in Sections 2.01 (a), (d), (e) and (f)
above to be completed in conjunction with Tenant's Work (as described in Article
50 of this Lease).
(c) If Landlord shall not have substantially
completed (i) the items of Landlord's work listed in Sections 2.01(b) and (c)
hereof in the demised premises (except for the Occupied Space as provided for in
Article 45 herein) on the express date set forth in this Section 2.03(a) for the
completion of such items or (ii) the items of Landlord's work listed in Sections
2.01(a), (d) (e) and (f) hereof in the demised premises (except for the Occupied
Space as provided for in Article 45 herein) by the date on which Tenant's Work
has been substantially completed and Tenant is ready to occupy the demised
premises, then the fixed rent and additional rent payable for any portion of the
demised premises in which an item of Landlord's work is not substantially
completed in accordance with the criteria set forth above shall be abated until
the date such item of work is substantially completed. Notwithstanding any
language to the contrary contained in this Lease, the completion date specified
for any item of Landlord's Work shall be extended by one (1) day for each day
that Landlord is prevented from performing or completing such work by reason of
a Tenant Delay. A "Tenant Delay" shall mean: (a) delays in submitting the final
plan(s) with respect to Tenant's Work, or in approving any drawings or
specifications, giving authorizations or supplying information; (b) additional
time needed by Landlord, as a result of Tenant requesting Landlord to make a
change or addition to Landlord's work or change in the final plan(s); or (c)
delays in hiring a general contractor, engineer and/or architect in connection
with the work described in Article 50 hereof. The term "substantially completed"
shall mean the work is completed except for minor or insubstantial details of
construction, mechanical adjustment, decoration, or other punch-list items which
remain to be performed.
5
ARTICLE 3
ADJUSTMENTS OF RENT
3.01 For the purposes of this Article 3, the following
definitions shall apply:
(a) The term "Base Tax" shall mean the Taxes for
the Tax Year commencing July 1, 2000, and ending on June 30, 2001 by (ii) the
real property tax rate for such Tax Year.
(b) The term "Tenant's Proportionate Share"
shall be deemed to mean eight. and fourteen hundredths percent (8.14%).
(c) The term "Taxes" shall mean (i) all real
estate taxes, assessments, sewer rents and water charges, governmental levies,
municipal taxes, county taxes or any other governmental charge, general or
special, ordinary or extraordinary, unforeseen as well as foreseen, of any kind
or nature whatsoever, which are or may be assessed levied or imposed upon all or
any part of the Land, the Building and the sidewalks, plazas or streets in front
of or adjacent thereto, including any tax, excise or fee measured by or payable
with respect to any rent, and levied against Landlord and/or the Land and/or
Building, under the laws of the United States, the State of New York, or any
political subdivision thereof, or by the City of New York or any political
subdivision thereof and any charge imposed by any business improvement district,
and (ii) any expenses incurred by Landlord in contesting any of the foregoing
set forth in clause (i) of this sentence or the assessed valuations of all or
any part of the Land and Building, etc. or collecting any refund to the extent
such expenses are less than or equal to the savings for the Tax Year in which
such expenses are incurred. If, due to a future change in the method of taxation
or in the taxing authority, a new or additional real estate tax, or a franchise,
income, transit, profit or other tax or governmental imposition, however
designated, shall be levied against Landlord, and/or the Land and/or Building,
in addition to, or in substitution in whole or in part for any tax which would
constitute "Taxes", or in lieu of additional Taxes, such tax or imposition shall
be deemed for the purposes hereof to be included within the term "Taxes". Except
as set forth in the immediately preceding sentence, Taxes shall not include
sales, transfer, income, franchise, estate or inheritance taxes or any penalties
or interest imposed on Landlord in connection with late payment thereof.
(d) The term "Tax Year" shall mean each period
of twelve (12) months, commencing on the first day of July of each such period,
in which occurs any part of the term of this Lease or such other period of
twelve months occurring during the term of this Lease as hereafter may be duly
adopted as the fiscal year for real estate tax purposes of the City of New York.
(e) The term "Operating Year" shall mean the
calendar year 2000 and each succeeding calendar year thereafter.
(f) The term "Wage Rate" with respect to any
Operating Year shall mean the regular average hourly wage rate required to be
paid to Porters in
6
Class A Office Buildings, without fringes, pursuant to any agreement between the
Realty Advisory Board on Labor Relations, Incorporated or any successor thereto
(hereinafter referred to as "R.A.B.") and Local 32B/32J of the Building Service
Employees International Union AFL-CIO, or any successor thereto (hereinafter
referred to as "Local 32B") in effect during such Operating Year, provided that
if any such agreement shall require Porters to be regularly employed on days or
during hours when overtime or other premium pay rates are in effect, then the
term "regular average hourly wage rate" shall mean the regular average hourly
wage rate for the hours in a calendar week which Porters are required to be
regularly employed (whether or not actually at work in the Building), e.g., if,
for example, as of January 1, 2000, an agreement between R.A.B. and Local 32B
would require the regular employment of Porters for 40 hours during a calendar
week at a regular average hourly wage of $4.00 for the first 30 hours and at an
overtime hourly average wage of $5.00 for the remaining 10 hours, then the
regular average hourly wage rate under this subsection, as of January 1, 2000,
would be the sum arrived at by dividing the total weekly average wages of
$170.00 by the total number of required hours of employment which is 40 and
resulting in a regular average hourly wage rate of $4.25. The computation of the
regular average hourly wage rate shall be on the same basis whether based on an
hourly or other pay scale but predicated on the number of hours in such
respective work weeks, whether paid by Landlord or any independent contractor.
If there is no such agreement in effect as of the date of any Escalation
Statement on which such regular average hourly wage rate is determinable, the
computations shall be made on the basis of the regular average hourly wage rate
being paid by Landlord or by the contractor performing xxxxxx or cleaning
services for Landlord as of the date of such Escalation Statement and
appropriate retroactive adjustments shall be made when the regular average
hourly wage rate paid as of such Escalation Statement is finally determined. If
length of service shall be a factor in determining any element of wages it shall
be conclusively presumed that all employees have at least three years of
service. The Wage Rate is intended to be an index in the nature of a cost of
living index, and is not intended to reflect the actual costs of wages or
expenses for the Building.
(g) The term "Porters" shall mean that
classification of employee engaged in the general maintenance and operation of
Class A Office Buildings most nearly comparable to the classification now
applicable to porters in the current agreements between R.A.B. and Local 32B/32J
(which classification is presently termed "others" in said agreement).
(h) The term "Class A Office Buildings" shall
mean office buildings in the same class or category as the Building under any
building operating agreement between R.A.B. and Local 32B/32J, regardless of the
designation given to such office buildings in any such agreement.
7
(i) The term "Base Wage Rate" shall mean the
Wage Rate in effect on January 1, 2000.
(j) The term "Escalation Statement" shall mean a
statement setting forth the amount payable by Tenant for a specified Tax Year or
Operating Year (as the case may be) pursuant to this Article 3. Upon Tenant's
request therefor, Landlord shall furnish to Tenant a copy of the tax bills and
other supporting evidence upon which an Escalation Statement was based.
(k) The term "Wage Rate Multiple" shall mean
49,304.
3.02 If the Wage Rate for any Operating Year shall be
greater than the Base Wage Rate, then Tenant shall in the case of such an
increase pay to Landlord as additional rent for the demised premises for such
Operating Year an amount equal to the product obtained by multiplying one
hundred percent (100%) of the difference of the Wage Rate for such Operating
Year less the Base Wage Rate, by the Wage Rate Multiple.
3.03 (a) Tenant shall pay as additional rent for each
Tax Year a sum (hereinafter referred to as "Tenant's Tax Payment") equal to
Tenant's Proportionate Share of the amount by which the Taxes for such Tax Year
exceed the Base Tax. Tenant's Tax Payment for each Tax Year shall be due and
payable in two (2) equal installments, in advance, (i.e., on the first day of
each June and December during each Tax Year) based upon the Escalation Statement
furnished prior to the commencement of such Tax Year, until such time as a new
Escalation Statement for a subsequent Tax Year shall become effective. If an
Escalation Statement is furnished to Tenant after the commencement of a Tax Year
in respect of which such Escalation Statement is rendered, Tenant shall, within
twenty (20) days thereafter, pay to Landlord an amount equal to the amount of
any underpayment of Tenant's Tax Payment with respect to such Tax Year and, in
the event of an overpayment, Landlord shall permit Tenant to credit against
subsequent payments under this Section 3.03 the amount of Tenant's overpayment,
or in the event this Lease has terminated, Landlord shall pay such overpayment
(if any) to Tenant within thirty (30) Business Days after the Escalation
Statement has been furnished, provided Tenant is not in default beyond any
applicable notice and cure periods. If there shall be any increase in Taxes for
any Tax Year, whether during or after such Tax Year, Landlord shall furnish a
revised Escalation Statement for such Tax Year, and Tenant's Tax Payment for
such Tax Year shall be adjusted and paid in the same manner as provided in the
preceding sentence. If during the term of this Lease, Taxes are required to be
paid (either to the appropriate taxing authorities or as tax escrow payments to
a superior mortgagee) in full or in monthly, quarterly, or other installments,
on any other date or dates than as presently required, then at Landlord's
option, Tenant's Tax Payments shall be correspondingly accelerated or
8
revised so that said Tenant's Tax Payments are due at least thirty (30) days
prior to the date payments are due to the taxing authorities or the superior
mortgagee. The benefit of any discount for any early payment or prepayment of
Taxes shall accrue to the benefit of Tenant and Landlord shall permit Tenant to
credit such discount against subsequent payments under this Section 3.03 (or if
there are no subsequent payments coming due under the Lease, Landlord shall pay
such amount to Tenant).
(b) If the real estate tax fiscal year of The
City of New York shall be changed during the term of this Lease, any Taxes for
such fiscal year, a part of which is included within a particular Tax Year and a
part of which is not so included, shall be apportioned on the basis of the
number of days in such fiscal year included in the particular Tax Year for the
purpose of making the computations under this Section 3.03.
(c) If Landlord shall receive a refund of Taxes
for any Tax Year, Landlord shall permit Tenant to credit against subsequent
payments under this Section 3.03 Tenant's Proportionate Share of the refund but
not to exceed Tenant's Tax Payment paid for such Tax Year, or in the event this
Lease has terminated, Landlord shall pay such refund (if any) to Tenant within
thirty (30) Business Days after Landlord receives such refund, provided Tenant
is not in default beyond any applicable notice and cure periods.
(d) If the Base Tax is reduced as a result of a
certiorari proceeding or otherwise Landlord shall adjust the amounts previously
paid by Tenant pursuant to the provisions of this Section 3.03 and Tenant shall
pay the amount of said adjustment within thirty (30) days after demand setting
forth the amount of said adjustment.
3.04 Tenant shall pay to Landlord upon demand, as
additional rent, any occupancy tax or rent tax now in effect or hereafter
enacted with respect to this Lease or the demised premises, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
3.05 Any such adjustment payable by reason of the
provisions of Section 3.02 shall commence as of the first day of the relevant
Operating Year and, after Landlord shall furnish Tenant with an Escalation
Statement relating to such Operating Year, all monthly installments of rental
shall reflect one-twelfth (1/12) of the annual amount of such adjustment until a
new adjustment becomes effective pursuant to the provisions of this Article 3,
provided, however, that if said Escalation Statement is furnished to Tenant
after the commencement of such Operating Year, there shall be promptly paid by
Tenant to Landlord, an amount equal to the portion of such adjustment allocable
to the part of such Operating Year which
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shall have elapsed prior to the first day of the calendar month next succeeding
the calendar month in which said Escalation Statement is furnished to Tenant.
3.06 In the event that the Commencement Date shall be
other than the first day of a Tax Year or an Operating Year or the date of the
expiration or other termination of this Lease shall be a day other than the last
day of a Tax Year or an Operating Year, then, in such event, in applying the
provisions of this Article 3 with respect to any Tax Year or Operating Year in
which such event shall have occurred, appropriate adjustments shall be made to
reflect the occurrence of such event on a basis consistent with the principles
underlying the provisions of this Article 3 taking into consideration the
portion of such Tax Year or Operating Year which shall have elapsed after the
term hereof commences in the case of the Commencement Date, and prior to the
date of such expiration or termination in the case of the Expiration Date or
other termination.
3.07 Payments shall be made pursuant to this Article 3
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the expiration of the term of this Lease.
3.08 In no event shall the fixed annual rent ever be
reduced by operation of this Article 3 and the rights and obligations of
Landlord and Tenant under the provisions of this Article 3 with respect to any
additional rent shall survive the termination of this Lease.
3.09 Landlord's failure to render an Escalation Statement
with respect to any Tax Year or Operating Year, respectively, shall not
prejudice Landlord's right to thereafter render an Escalation Statement with
respect thereto or with respect to any subsequent Tax Year or Operating Year.
Such Escalation Statement shall be reasonably detailed in Landlord's sole
discretion and judgment. Tenant's obligation to pay escalation for any Tax or
Operating Year during the term of this Lease and Landlord's obligation to repay
any overpayment to Tenant in accordance with Section 3.10 below, if any, shall
survive the expiration or earlier termination of this Lease.
3.10 Each Escalation Statement shall be conclusive and
binding upon Tenant unless within sixty (60) days after receipt of such
Escalation Statement Tenant shall notify Landlord that it disputes the
correctness of such Escalation Statement, specifying the particular respects in
which such Escalation Statement is claimed to be incorrect. Any dispute relating
to any Escalation Statement not resolved within sixty (60) days after the giving
of such notice of dispute by Tenant may be submitted to arbitration by either
party pursuant to Article 38 hereof. Pending the determination of such dispute,
Tenant shall pay additional rent in accordance with the Escalation Statement
that Tenant is disputing, without
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prejudice to Tenant's position. If the dispute shall be determined in Tenant's
favor, Landlord shall forthwith pay to Tenant the amount of Tenant's overpayment
of rents resulting from compliance with Landlord's Escalation Statement, and in
the event this Lease had terminated, Landlord shall pay such overpayment (if
any) to Tenant within thirty (30) Business Days after the determination of such
overpayment.
3.11 Notwithstanding any language to the contrary
contained in this Article 3, the additional rent payable by Tenant pursuant to
Section 3.02 hereof shall be abated until the first (1st) anniversary of the
Commencement Date.
ARTICLE 4
ELECTRICITY
4.01 Tenant agrees that Landlord shall furnish electricity
to Tenant on a "submetering" basis in accordance with the provisions of this
Article 4. Landlord shall, at Tenant's sole cost and expense, install one
totalizer for each floor of the demised premises and one demand submeter for
each disconnect switch in the demised premises prior to the date Tenant occupies
the demised premises for the regular conduct of its business therein.
Electricity and electric service, as used herein, shall mean any element
affecting the generation, transmission, and/or distribution or redistribution of
electricity, including, but not limited to, services which facilitate the
distribution of service.
4.02 Tenant covenants and agrees to purchase electricity
from Landlord or Landlord's designated agent at charges, terms and rates,
including, without limitation, fuel adjustments and taxes, equal to those
specified in the Con Edison SC#4-I rate schedule effective on the date Landlord
first provides electricity to the demised premises on a submetering basis (the
"effective" date), or any successor rate schedule or service classification,
plus ten percent (10%) for transmission line loss and other redistribution
costs. The term "Usage" shall mean Tenant's actual usage of electricity in the
demised premises as measured by the aforesaid meter(s) for each calendar month
or such other period as Landlord shall determine during the term of this Lease
and shall include the quantity and peak demand (kilowatt hours and kilowatts)
and all applicable taxes, surcharges, demand charges, energy charges, fuel
adjustment charges, and other adjustments made from time to time by the public
utility company supplying electric current to the Building or any governmental
authority having jurisdiction. Subject to the provisions of Section 4.01 above,
where more than one meter measures the amount of Usage, then the Usage
registered by each meter shall be aggregated and billed at the applicable rate
as if there were only one sub-meter measuring Tenant's aggregate
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Usage in the entire demised premises. Bills therefore shall be rendered at such
times as Landlord may elect and the amount, as computed from a meter, shall be
deemed to be, and be paid as, Additional Charges. In the event that such amounts
are not paid within fifteen (15) days after the same are rendered, Landlord may,
without further notice, discontinue the service, of electric current to the
demised premises without releasing Tenant from any liability under this Lease
and without Landlord or Landlord's agent incurring any liability for any damage
or loss sustained by Tenant by such discontinuance of service. If any tax is
imposed upon Landlord's receipt from the sale or resale of electrical energy or
gas or telephone service 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 amount of, and paid by,
Tenant to Landlord.
4.03 If all or part of the submetering additional rent
payable in accordance with this Article 4 becomes uncollectible or reduced or
refunded by virtue of any law, order or regulation, the parties agree that, at
Landlord's option, in lieu of submetering Additional Charges, and in
consideration of Tenant's use of the Building's electrical distribution system
and receipt of redistributed electricity and payment by Landlord of consultant's
fees and other redistribution costs, the fixed annual rent to be paid under this
Lease shall be increased by an "alternative charge" which shall be a sum equal
to $3.00 per year per rentable square foot of the demised premises, changed in
the same percentage as any increases in the cost to Landlord for electricity for
the entire Building subsequent to January 1, 2000 because of electric rate or
service classification or market price changes. In no event shall the fixed
annual rent under this Lease be reduced below the amount set forth in Section
1.01 hereof by virtue of this Section 4.03.
4.04 Landlord shall not be liable for any loss or damage
or expense which Tenant may sustain or incur if either the quantity or character
of electric service is changed or is no longer available or suitable for
Tenant's requirements, unless due to Landlord's willful misconduct. Tenant
covenants and agrees that at all times its use of electric current shall never
exceed the capacity of the electrical service furnished to the demised premises
pursuant to Section 4.05 herein. Any riser or risers to supply Tenant's
electrical requirements (in addition to the capacity stipulated in Section 4.05
herein), upon written request of Tenant, will be installed by Landlord, at the
sole cost and expense of Tenant, if, in Landlord's sole judgment, the same are
necessary and will not cause permanent damage or injury to the Building or
demised premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expenses or otherwise
interfere with or disturb other tenants or occupants of the Building. In
addition to the installation of such riser or risers, Landlord will also at the
sole cost and expense of Tenant, install all other equipment proper and
necessary in connection therewith subject to the aforesaid terms and conditions.
The parties acknowledge that they
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understand that it is anticipated that electric rates, charges, etc., may be
changed by virtue of time-of-day rates or other methods of billing, electricity
purchases and the redistribution thereof, and that the references in the
foregoing paragraphs to changes in methods of or rules on billing are intended
to include any such changes. Anything hereinabove to the contrary
notwithstanding, in no event is the submetering additional rent or any
"alternative charge", to be less than an amount equal to the total of Landlord's
payment to public utilities and/or other providers for the electricity consumed
by Tenant (and any taxes thereon or on redistribution of same) plus ten percent
(10%) for transmission line loss and other redistribution costs. The Landlord
reserves the right to terminate the furnishing of electricity upon thirty (30)
days' written notice to Tenant (provided that Landlord is not adversely
discriminatory to Tenant with respect to exercising such right), in which event
the Tenant may make application direction to the public utility and/or other
providers for the Tenant's entire separate supply of electric current and
Landlord shall permit its wires and conduits, to the extent available and safely
capable, to be used for such purpose, but only to the extent of Tenant's then
authorized load. Any meters, risers, or other equipment or connections necessary
to furnish electricity on a submetering basis or to enable Tenant to obtain
electric current directly from such utility and/or other providers shall be
installed at Tenant's sole cost and expense. On rigid conduit or electrical
metal tubing (EMT) will be allowed. The Landlord, upon the expiration of the
aforesaid thirty (30) days' written notice to Tenant may discontinue furnishing
the electric current but this Lease shall otherwise remain in full force and
effect.
4.05 Tenant's use of electric energy in the demised
premises shall not at any time exceed the capacity furnished to or otherwise
serving the demised premises as provided in this Section 4.05. In order to
insure that such capacity is not exceeded and to avert possible adverse effect
upon the Building's distribution of electricity via the Building's electric
system, Tenant shall not, without Landlord's prior consent in each instance
(which consent shall not be unreasonably withheld or delayed), connect any
fixtures, appliances or equipment (other than lamps, normal business and small
office machines and personal computers, which do not materially increase
Tenant's electrical consumption) to the Building's electric system or make any
alterations or additions to the electric system of the demised premises existing
on the Commencement Date. Landlord shall make electrical energy available within
the demised premises at a level sufficient to accommodate a connected load of
eight (8) xxxxx per rentable square foot of the demised premises; provided,
however, such electrical energy shall be terminated at disconnect switches
within electrical closets located within the demised premises and designated by
Landlord. Landlord shall also make additional electrical energy available at a
level sufficient for normal operations of the Units (as defined in Section 21.05
herein) to be installed by Tenant in the demised premises pursuant to Section
21.05 herein; provided such level of electricity does not exceed a demand load
of four (4) xxxxx per rentable square foot
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of the demised premises. In the event Tenant requires an additional demand load
of one (1) watt for the operation of the Units, Landlord shall provide such
additional electricity for an additional One Dollar ($1.00) per annum per
rentable square foot of the demised premises, as additional rent throughout the
term of this Lease.
4.06 At Landlord's option, Tenant shall purchase from
Landlord or Landlord's agent all lighting tubes, lamps, bulbs and ballasts used
in the demised premises and Tenant shall pay Landlord's commercially reasonable
charges for providing and installing same, on demand, as additional rent.
4.07 Tenant shall pay $1.50 per annum per rentable square
foot of the demised premises for electricity, as additional rent, during the
initial construction period until submeters are installed to measure the usage
of electricity in the demised premises, as hereinabove provided.
ARTICLE 5
USE
5.01 The demised premises shall be used solely as and for
general, executive and administrative offices and for no other purposes.
5.02 Tenant shall not use or permit the use of the demised
premises or any part thereof in any way which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or for any
unlawful purposes or in any unlawful manner or in violation of the Certificate
of Occupancy for the demised premises or the Building, and Tenant shall not
suffer or permit the demised premises or any part thereof to be used in any
manner or anything to be done therein or anything to be brought into or kept
therein which, in the judgment of Landlord, shall in any way impair or tend to
impair the character, reputation or appearance of the Building as a high quality
office building, impair or interfere with or tend to impair or interfere with
any of the Building services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building or the demised premises, or
impair or interfere with or tend to impair or interfere with the use of any of
the other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building. Tenant
shall not install any electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment, interference,
discomfort, inconvenience or annoyance.
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5.03 Portions of the demised premises may be used for one
or more pantry areas for reheating, but not for cooking, of food and beverages
and for vending machines for Tenant's officers and directors, employees and
staff, subject to the provisions of Article 6 below. Tenant shall be
responsible, at Tenant's sole cost and expense, for maintaining Tenant's
pantries at all times in a clean and sanitary condition and free of rodents and
other vermin and for the removal of refuse and garbage therefrom on a daily
basis, using contractors therefor designated by Landlord.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01 Tenant shall make no alterations, installations,
additions or improvements in or to the demised premises without Landlord's prior
written consent and then only by contractors or mechanics first approved by
Landlord (of any five (5) proposed by Tenant, Landlord may reject two (2)
without cause and the approval for the remaining contractors or mechanics shall
not be unreasonably withheld or delayed). Notwithstanding anything to the
contrary contained herein, Landlord's prior written consent shall not be
required for purely decorative work (e.g., painting and carpeting) and other any
non-structural alterations not affecting Building systems and costing, in the
aggregate, less than Fifty Thousand Dollars ($50,000) over any twelve (12) month
period ("Ordinary Alterations"); provided that Tenant shall have delivered
reasonably detailed plans and specifications for the Ordinary Alterations to
Landlord at least ten (10) Business Days prior to the commencement of any work
in connection therewith. All such work, alterations, installations, additions
and improvements shall be done at Tenant's sole expense and at such times and in
such manner as Landlord may from time to time designate. Prior to commencement
of such work, Tenant shall obtain and deliver to Landlord written, unconditional
waivers of mechanic's or other liens on the real property in which the demised
premises are located, signed by all architects, engineers, contractors,
mechanics and designers to become involved in such work. In connection with any
alterations costing in excess of $100,000 (excluding Tenant's Work and Credit
Work, as hereinafter defined, provided Tenant shall use bondable contractors and
subcontractors in connection with the performance of same), Tenant shall also
provide at Landlord's request such financial security as Landlord shall require
to guarantee completion of work performed by Tenant pursuant to this Article 6
and payment of all contractors and suppliers utilized in connection therewith.
Any installations, materials and work which may be undertaken
by or for the account of Tenant, other than Ordinary Alterations, shall be
effected solely in
15
accordance with plans and specifications first approved in writing by Landlord.
Tenant shall reimburse Landlord promptly upon demand for any reasonable
out-of-pocket costs and expenses incurred by Landlord in connection with
Landlord's review of such Tenant's plans and specifications. Landlord agrees
that it shall respond to Tenant's request for approval of such plans and
specifications within fifteen (15) Business Days after Tenant's submission
thereof, and within ten (10) Business Days after the submission of any
subsequent revisions thereof, and in the event Landlord disapproves of such
final plan, Landlord shall set forth its objections in reasonable detail (which
may include by marking up the drawing(s)). Landlord will not unreasonably
withhold or delay its consent to requests for nonstructural alterations,
additions and improvements provided they will not affect the outside of the
Building or any area outside the demised premises or adversely affect its
structure, electrical, HVAC, plumbing or mechanical systems.
Any such approved alterations and improvements shall be
performed in accordance with the foregoing and the following provisions of this
Article 6:
(i) All work shall be done in a good and
workmanlike manner.
(ii) In the event Tenant shall employ any
contractor to do in the demised premises any
work permitted by this Lease, such
contractor and any subcontractor shall agree
to employ only such labor as will not result
in jurisdictional disputes or strikes or
result in causing disharmony with other
workers employed at the Building.
(iii) All such alterations shall be effected in
compliance with all applicable laws,
ordinances, rules and regulations of
governmental bodies having or asserting
jurisdiction in the demised premises and in
accordance with Landlord's Rules and
Regulations with respect to alterations.
Landlord's Alteration Rules and Regulations
are set forth in Exhibit F attached hereto
and made a part hereof.
(iv) Tenant shall keep the Building and the
demised premises free and clear of all liens
for any work or material claimed to have
been furnished to Tenant or to the demised
premises on Tenant's behalf, and all work to
be performed by Tenant shall be done in a
manner which will not unreasonably interfere
with or disturb other tenants or occupants
of the Building.
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(v) During the progress of the work to be done
by Tenant, said work shall be subject to
inspection by representatives of Landlord
who shall be permitted access to the demised
premises and the opportunity to inspect, at
all reasonable times on reasonable notice
(which may be oral and except in
emergencies), but this provision shall not
in any way whatsoever create any obligation
on Landlord to conduct such an inspection.
(vi) With respect to alteration or improvement
work costing more than Five Thousand Dollars
($5,000) other than Tenant's Work (as
defined in Section 50.03) and Ordinary
Alterations, Tenant agrees to pay to
Landlord's managing agent, as additional
rent, promptly upon being billed therefor, a
sum equal to seven percent (7%) of the cost
of such work or alteration, for Landlord's
indirect costs, field supervision and
coordination in connection with such work.
(vii) Prior to commencement of any work, Tenant
shall furnish to Landlord certificates
evidencing the existence of:
(1) workmen's compensation insurance
covering all persons employed for
such work; and
(2) reasonable comprehensive general
liability and property damage
insurance naming Landlord, its
designees and Tenant as insureds,
with coverage of at least Three
Million Dollars ($3,000,000) single
limit.
(viii) Before commencing any work costing in excess
of One Hundred Thousand Dollars
($100,000.00), Tenant shall furnish to
Landlord such bonds for payment and
completion or such other security for
completion thereof and payment therefor as
Landlord shall reasonably require and in
such form as is reasonably satisfactory to
Landlord and in an amount which will be one
hundred twenty percent (120%) of Landlord's
estimate of the cost of performing such work
as specified by Tenant's general contractor
in its contract with Tenant for the
performance of such work.
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(ix) Any work affecting any mechanical systems of
the Building, including, without limitation,
the electrical, plumbing and life safety
systems, shall be performed at Tenant's
expense by a contractor designated by
Landlord, provided charges of such
contractors shall be commercially
reasonable.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
6.02 Any mechanic's lien, filed against the demised
premises or the Building for work claimed to have been done for, or materials
claimed to have been furnished to, Tenant shall be discharged by Tenant at its
expense within thirty (30) days after such filing, by payment, filing of the
bond required by law or otherwise.
6.03 All alterations, installations, additions and
improvements made and installed by Landlord, including without limitation any
work referred to in Article 2 hereof shall be the property of Landlord and shall
remain upon and be surrendered with the demised premises as a part thereof at
the end of the term of this Lease, and Tenant shall not be responsible to remove
the same.
6.04 All alterations, installations, additions and
improvements made and installed by Tenant, or at Tenant's expense, upon or in
the demised premises which are of a permanent nature and which cannot be removed
without damage to the demised premises or Building shall become and be the
property of Landlord, and shall remain upon and be surrendered with the demised
premises as a part thereof at the end of the term of this Lease, except as
otherwise agreed at the time of Landlord's approval. For the purposes of this
Section 6.04, a "Nonstandard Alteration" shall mean auditoriums or similar type
special use areas, vaults, atriums, kitchen equipment and installations,
internal stairways, slab reinforcements, raised floors or other alterations
which impede the installation of duct work or other normal installations above
the finished ceiling or which are not suitable for normal office occupancy or
which would be unusually difficult or costly to remove in comparison to usual
alterations required for general office purposes. Provided that Landlord shall
have advised Tenant at the time it consented to any such Nonstandard Alteration
that Landlord may require its removal at the end of the Lease term (if and to
the extent that Tenant shall have requested in writing such advice from Landlord
when it requested Landlord's consent to such alteration), Landlord shall have
the right and privilege to serve at any time up to six (6) months prior to the
expiration of the term of this Lease, a notice upon Tenant that any "Nonstandard
Alterations" shall be removed and, in the event of service of such notice,
Tenant will, at Tenant's cost
18
and expense, remove the same in accordance with such request and repair any
damage to the demised premises caused by such removal. Except as otherwise
designated by Landlord at the time of Landlord's approval as hereinabove
provided, Tenant shall not be required to remove any alterations or improvements
made by Tenant to the demised premises.
6.05 Where furnished by or at the expense of Tenant all
furniture, furnishings and trade fixtures, including without limitation, murals,
business machines and equipment, counters, screens, grille work, special
panelled doors, cages, movable partitions, metal railings, movable closets,
panelling, lighting fixtures and equipment, drinking fountains, refrigeration
and air handling equipment, and any other movable property shall remain the
property of Tenant which may, at its option, remove all or any part thereof at
any time prior to the expiration of the term of this Lease. In case Tenant shall
decide not to remove any part of such property, Tenant shall notify Landlord in
writing not less than three (3) months prior to the expiration of the term of
this Lease, specifying the items of property which it has decided not to remove.
If, within thirty (30) days after the service of such notice, Landlord shall
request Tenant to remove any of the said property, Tenant shall, at its expense,
remove the same and either repair any damage caused by such removal, and, with
respect to any slab penetrations, restore the affected portion of the demised
premises to its original condition. As to such property which Landlord does not
request Tenant to remove, the same shall be, if left by Tenant, deemed abandoned
by Tenant and thereupon the same shall become the property of Landlord.
If any alterations, installations, additions, improvements or other property
which Tenant shall have the right to remove or be requested by Landlord to
remove as provided in Sections 6.04 and 6.05 hereof (herein in this Section 6.06
called the "property") are not removed on or prior to the expiration of the term
of this Lease, Landlord shall have the right to remove the property and to
dispose of the same without accountability to Tenant and at the sole cost and
expense of Tenant. In case of any damage to the demised premises or the Building
resulting from the removal of the property Tenant shall repair such damage or,
in default thereof, shall reimburse Landlord for Landlord's cost in repairing
such damage. This obligation shall survive any termination of this Lease.
6.06 Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of Five Thousand
Dollars ($5,000), and of the cost thereof. Tenant shall, within thirty (30) days
after demand by Landlord, furnish to Landlord copies of such records and cost if
Landlord shall require same in connection with any proceeding to reduce the
assessed valuation of the Building, or in connection with any proceeding
instituted pursuant to Article 16 hereof.
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ARTICLE 7
REPAIRS
7.01 Tenant shall take good care of the demised premises
and the fixtures, equipment and appurtenances therein and shall, at its sole
cost and expense, make such repairs (except as provided in this Lease and except
to the extent such repairs are necessitated by Landlord's negligence) to the
demised premises and the fixtures, equipment and appurtenances therein as are
necessitated by the (i) act, omission, occupancy or negligence of Tenant or
Tenant's employees, contractors, invitees, licensees or other occupants of the
demised premises or (ii) use of the demised premises in a manner contrary to the
purposes for which same are leased to Tenant, as and when needed to preserve
them in good working order and condition. Notwithstanding the foregoing, subject
to the provisions of Section 9.08 hereof, Tenant shall be responsible for all
damage or injury to the Building, or to its fixtures, equipment and
appurtenances, whether requiring structural or non-structural repairs, to the
extent caused by or resulting from the act, omission, occupancy or negligence of
Tenant or Tenant's employees, contractors, invitees, licensees or other
occupants of the demised premises, shall be repaired promptly by Tenant (or by
Landlord, if a structural repair), at Tenant's sole cost and expense. Except as
otherwise provided in Section 9.05 hereof, all damage or injury to the demised
premises and to its fixtures, appurtenances and equipment or to the Building or
to its fixtures, appurtenances and equipment to the extent caused by Tenant
moving property into or out of the Building or by installation or removal of
furniture, fixtures or other property, shall be repaired, restored or replaced
promptly by Tenant at its sole cost and expense, which repairs, restorations and
replacements shall be in quality and class equal to the original work or
installations. If Tenant fails to make such repairs, restoration or
replacements, the same may be made by Landlord at the expense of Tenant and such
expense shall be collectible as additional rent and shall be paid by Tenant
within fifteen (15) days after rendition of a xxxx therefor.
The exterior walls of the Building, the portions of any window
xxxxx outside the windows, the windows, the fire stairs, utility closets and any
shafts passing through the floor on which the demised premises are located are
not part of the premises demised by this Lease, and Landlord reserves all rights
to such parts of the Building.
7.02 Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which such floor
was designed to carry as indicated on the certificate of occupancy for the
Building and which is allowed by law.
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7.03 Business machines and mechanical equipment used by
Tenant which cause vibration, noise, cold or heat that may be transmitted to the
Building structure or to any leased space to such a degree as to be
objectionable to Landlord or to any other tenant in the Building shall be placed
and maintained by Tenant at its expense in settings of cork, rubber or spring
type vibration eliminators sufficient to absorb and prevent such vibration or
noise, or prevent transmission of such cold or heat. The parties hereto
recognize that the operation of elevators, air conditioning and heating
equipment will cause some vibration, noise, heat or cold which may be
transmitted to other parts of the Building and demised premises. Landlord shall
be under no obligation to endeavor to reduce such vibration, noise, heat or
cold.
7.04 Except as otherwise specifically provided in this
Lease, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises or in or to fixtures, appurtenances or equipment thereof.
7.05 Landlord, at its expense, shall keep and maintain the
Building and its systems and facilities serving the demised premises, in good
working order, condition and repair and shall make all repairs, structural and
otherwise, interior and exterior, as and when needed in or about the Building or
the demised premises, except for those repairs for which Tenant is responsible
pursuant to any other provisions of this Lease.
7.06 Notwithstanding any contrary provision contained in
this Lease, in the event that a portion of or the entire demised premises is
rendered untenantable due to an Abatement Event (as such term is hereinafter
defined) for a period of at least seven (7) consecutive days, then, provided
Tenant actually vacates (as to personnel and conduct of business) the demised
premises or a portion thereof so affected during such period of untenantability,
the fixed rent payable hereunder shall xxxxx in proportion to the portion that
is rendered untenantable for the remainder of such period of untenantability.
Tenant shall provide written notice (hereinafter called the "Abatement Event
Notice") of the Abatement Event on or before the second (2nd) Business Day
following the day on which the Abatement Event commences, and in the event that
Tenant shall fail to give the Abatement Event Notice on or before such second
(2nd) Business Day, the seven (7) day period referred to in the immediately
preceding sentence shall be extended by one (1) day for each day following such
second (2nd) Business Day until Tenant gives the Abatement Event Notice. As used
herein, the term "Abatement Event" shall mean one or more of the following
events or circumstances: a failure of Building services as provided for in
Article 21 of this Lease, the interruption of utilities or unreasonable
interference with Tenant's business caused by the making of the
21
repairs in accordance with this Article 7, provided that Tenant shall not have
necessitated such repairs.
ARTICLE 8
REQUIREMENTS OF LAW
8.01 Tenant, at Tenant's sole cost and expense, shall
comply with all laws, orders and regulations of federal, state, county and
municipal authorities, and with any direction of any public officer or officers,
pursuant to law, which shall impose any violation, order or duty upon Landlord
or Tenant with respect to the demised premises, or the use or occupation
thereof; provided, however, that it shall be Landlord's obligation to cure any
violation of law with respect to the demised premises existing prior to the
Commencement Date. Notwithstanding the foregoing, Tenant shall not be required
to make any structural alterations in the demised premises to comply with laws
unless the necessity for same shall arise from Tenant's manner of use of the
demised premises or the operation of its installations, equipment or other
property in the demised premises, any cause or condition created by or at the
instance of Tenant or any breach of Tenant's obligations under this Lease.
8.02 Notwithstanding the provisions of Section 8.01
hereof, Tenant, at its own cost and expense, may contest, in any manner
permitted by law (including appeals to a court, or governmental department or
authority having jurisdiction in the matter), the validity or the enforcement of
any governmental act, regulation or directive with which Tenant is required to
comply pursuant to this Lease, and may defer compliance therewith provided that:
(a) such non-compliance shall not subject
Landlord to criminal prosecution or subject the Land and/or Building to lien or
sale;
(b) such non-compliance shall not be in
violation of any fee mortgage, or of any ground or underlying lease or any
mortgage thereon;
(c) Tenant shall first deliver to Landlord a
surety bond issued by a surety company of recognized responsibility, or other
security satisfactory to Landlord, indemnifying and protecting Landlord against
any loss or injury by reason of such non-compliance; and
(d) Tenant shall promptly and diligently
prosecute such contest.
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Landlord, without expense or liability to it, shall cooperate
with Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01 Tenant shall not cause, do, or permit to be done any
act or thing upon the demised premises, which will invalidate or be in conflict
with New York standard fire insurance policies covering the Building, and
fixtures and property therein, or which would increase the rate of fire
insurance applicable to the Building to an amount higher than it otherwise would
be; and Tenant shall neither do nor permit to be done any act or thing upon the
demised premises which shall or might subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried on within the demised premises; but
nothing in this Section 9.01 shall prevent Tenant's use of the demised premises
for the purposes stated in Article 5 hereof.
9.02 If, as a result of any act or omission by Tenant or
violation of this Lease, the rate of fire insurance applicable to the Building
shall be increased to an amount higher than it otherwise would be, Tenant shall
reimburse Landlord for all increases of Landlord's fire insurance premiums so
caused; such reimbursement to be additional rent payable upon the first day of
the month following any outlay by Landlord for such increased fire insurance
premiums. In any action or proceeding wherein Landlord and Tenant are parties, a
schedule or "make-up" of rates for the Building or demised premises issued by
the body making fire insurance rates for the demised premises, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the fire insurance rate then applicable to the demised premises.
9.03 Landlord or 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 subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless any of the foregoing shall be caused by or
due to the negligence of Landlord, its agents, servants or employees.
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9.04 Landlord or its agents shall not be liable for any
damage which Tenant may sustain, if at any time any window of the demised
premises is broken, or temporarily or permanently (restricted to windows on a
lot line, if permanently) closed, darkened or bricked up for any reason
whatsoever, except only Landlord's arbitrary acts if the result is permanent,
and Tenant shall not be entitled to any compensation therefor or abatement of
rent or to any release from any of Tenant's obligations under this Lease, nor
shall the same constitute an eviction.
9.05 Subject to Section 9.08 herein, Tenant shall
reimburse Landlord for all expenses, damages or fines incurred or suffered by
Landlord, to the extent caused by any breach, violation or non-performance by
Tenant, or its agents, servants or employees, of any covenant or provision of
this Lease, or by reason of damage to persons or property caused by moving
property of or for Tenant in or out of the Building, or by the installation or
removal of furniture or other property of or for Tenant except as provided in
Section 6.05 of this Lease, or by reason of or arising out of the carelessness,
negligence or improper conduct of Tenant, or its agents, servants or employees,
in the use or occupancy of the demised premises. Subject to the provisions of
Section 8.02 hereof, where applicable, Tenant shall have the right, at Tenant's
own cost and expense, to participate in the defense of any action or proceeding
brought against Landlord, and in negotiations for settlement thereof if,
pursuant to this Section 9.05, Tenant would be obligated to reimburse Landlord
for expenses, damages or fines incurred or suffered by Landlord.
9.06 Tenant shall give Landlord notice in case of fire or
accidents in the demised premises promptly after Tenant is aware of such event.
9.07 Tenant agrees to look solely to Landlord's estate and
interest in the Land and Building, or the lease of the Building, or of the Land
and Building, and the demised premises, for the satisfaction of any right or
remedy of Tenant for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord, in the event of any liability by
Landlord, and no other property or assets of Landlord (or the partners or
members thereof if Landlord is other than an individual or corporation) shall be
subject to levy, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the demised premises, or any other liability of Landlord to Tenant.
9.08 (a) Landlord agrees that it will include in its
fire insurance policies appropriate clauses pursuant to which the insurance
companies (i) waive all right of subrogation against Tenant with respect to
losses payable under such policies and/or (ii) agree that such policies shall
not be invalidated should the insured waive in writing prior to a loss any or
all right of recovery against any party for
24
losses covered by such policies. But should any additional premiums be generally
imposed for any such clause or clauses, Landlord shall be released from the
obligation hereby imposed unless Tenant shall agree to pay such additional
premium.
(b) Tenant agrees to include in its fire
insurance policy or policies on its furniture, furnishings, fixtures and other
property removable by Tenant under the provisions of this Lease appropriate
clauses pursuant to which the insurance company or companies (i) waive the right
of subrogation against Landlord and any tenant of space in the Building with
respect to losses payable under such policy or policies and/or (ii) agree that
such policy or policies shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any party for
losses covered by such policy or policies. But should any additional premium be
generally imposed for any such clause or clauses, Tenant shall be released from
the obligation hereby imposed unless Landlord or the other tenants shall agree
to pay such additional premium.
(c) Subject to obtaining the waiver of
subrogation provided in Section 9.08 (a) hereof, Landlord hereby waives any and
all right of recovery which it might otherwise have against Tenant, its
servants, agents and employees, for loss or damage occurring to the Building and
the fixtures, appurtenances and equipment therein, to the extent the same is
covered by Landlord's insurance, notwithstanding that such loss or damage may
result from the negligence or fault of Tenant, its servants, agents or
employees. Subject to obtaining the waiver of subrogation provided in Section
9.08 (b) hereof, Tenant hereby waives any and all right of recovery which it
might otherwise have against Landlord, its servants, agents and employees, and
against every other tenant in the Building who shall have executed a similar
waiver as set forth in this Section 9.08(c) for loss or damage to, Tenant's
furniture, furnishings, fixtures and other property removable by Tenant under
the provisions hereof to the extent that same is covered by Tenant's insurance,
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or employees, or such other tenant and the
servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise
the other promptly if the clauses to be included in their respective insurance
policies pursuant to subdivisions 9.08 (a) and (b) hereof cannot be obtained.
Landlord and Tenant hereby also agree to notify the other promptly of any
cancellation or change of the terms of any such policy which would affect such
clauses.
9.09 Tenant covenants and agrees to provide on or before
the Commencement Date and to keep in force during the term hereof for the
benefit of Landlord and Tenant the following insurance policy naming Landlord,
Landlord's managing agent, lessors under superior leases and the holders of any
mortgages
25
affecting the Land and/or Building as additional insureds. Tenant covenants to
provide on or before the commencement of the term of this Lease:
LIABILITY INSURANCE: Tenant shall procure and at all times during the term of
this Lease shall maintain policies of commercial general and umbrella liability
insurance covering the demised premises on an occurrence basis and shall not
contain any deductibles or self-insured retentions. The policy shall provide
that general and specific aggregates are per location covered and shall further
provide minimum limits, as follows:
COMMERCIAL GENERAL LIABILITY:
$1,000,000 per occurrence; combined single limit bodily
injury and property damage
$5,000 medical payments coverage
$50,000 fire legal liability coverage
$2,000,000 general aggregate
$1,000,000 per occurrence
$2,000,000 annual aggregate; personal injury coverage
$1,000,000 per occurrence
$2,000,000 annual aggregate; products/completed operations
coverage
UMBRELLA LIABILITY:
$10,000,000 per occurrence
$10,000,000 general and specific aggregates
Policy shall cover excess of general and automobile liability and shall include
said policies as underlying and provisions of the umbrella shall apply in the
same manner as the primary policies.
WORKERS' COMPENSATION
Tenant shall procure and at all times during the term of this Lease shall
maintain a policy of statutory worker's compensation insurance covering Tenant's
employees with employer's liability coverage in accordance with statutory
limits.
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UMBRELLA LIABILITY
Umbrella liability shall cover in the same manner as the primary commercial
general liability policy above and shall contain no additional exclusions or
limitations than those of the general liability policy.
PROPERTY INSURANCE
Tenant shall procure and at all times during the term of this Lease shall
maintain a policy of all risk property insurance in an amount adequate to cover
the cost of replacement of all Tenant's decorations, improvements, fixtures,
furniture, stock and other contents; time element coverage including extra
expense to cover Tenant's loss as a result of a loss sustained by a peril
covered under the policy.
GENERAL
Commercial general liability and any umbrella policy will provide coverage for
and on behalf of the Landlord and its designees pursuant to the provisions of
this Lease as additional insured and will reflect that sixty (60) days prior
written notice of cancellation, modification or non-renewal be provided to
Landlord at the address so designated by Landlord.
Policy will provide that Tenant pays all premium under the policy. Landlord or
its agents shall not be responsible for the payment of any premiums for such
insurance.
Tenant will provide a binder of insurances to Landlord prior to occupancy of the
demised premises followed by a copy of the policies and a minimum of twenty (20)
days in advance for each renewal or replacement policy. If the policy contains
more than one location, Tenant may provide a certificate of insurance reflecting
and confirming that the insurance is provided in accordance with the insurance
provisions of this Lease and shall also include thereon a copy of all
endorsements specifically applicable to Landlord and the demised premises.
The minimum limits of insurance coverage required by the insurance provisions of
this Lease shall be subject to increase by Landlord from time to time, after the
Commencement Date if Landlord, in its reasonable judgment, shall deem the same
necessary for adequate protection. Within thirty (30) days of demand for such
increased coverage, Tenant shall deliver to Landlord evidence of such increased
coverage in the form of an endorsement or replacement insurance policy or
certificate and in keeping with all other insurance provisions contained herein.
In the event of Tenant's failure to procure or maintain the coverages required
hereunder in accordance with the insurance provisions contained herein, Landlord
may, but is not obligated to, procure said insurance at the cost and expense of
Tenant to be deemed
27
additional rent hereunder, payable on demand. The minimum limits of insurance
coverage required by the insurance provisions of this Lease shall in no way
limit or diminish Tenant's liability.
Insurance companies must be satisfactory to Landlord as to an acceptable
Standard & Poor's or A.M. Best Rating with a minimum A. M. Best Rating of A +
VIII.
In the event of Tenant's failure to procure or maintain the coverages required
hereunder in accordance with the insurance provisions contained herein, Landlord
may, but is not obligated to, procure said insurance at the cost and expense of
Tenant to be deemed additional rent hereunder, payable on demand.
Tenant will not do or permit anything to be done (other than Tenant's permitted
use of the demised premises as set forth in Section 5.01 herein) in or upon the
demised premises or the Building or bring or keep anything therein which shall
in any way increase the rates of all risk property or other insurance in respect
of the Building or on the property kept therein.
Prior to the time such insurance is first required to be carried by Tenant and
thereafter, at least thirty (30) days prior to the effective date of any such
policy, Tenant agrees to deliver to Landlord either a duplicate original of the
aforesaid policy or a certificate evidencing such insurance. Said certificate
shall contain an endorsement that such insurance may not be cancelled except
upon ten (10) days' notice to Landlord. Tenant's failure to provide and keep in
force the aforementioned insurance, within three (3) Business Days after notice
from Landlord shall be regarded as a material default hereunder entitling
Landlord to exercise any or all of the remedies provided in this Lease in the
event of Tenant's default.
9.10 Landlord shall from and after the date of this Lease
through the last day of the term hereof, procure and maintain (or cause to be
procured or maintained) fire and extended coverage insurance, in good and
solvent insurance companies authorized to do business in the State of New York,
on the Building (exclusive of foundations and footings) in an amount equal to
the full replacement value thereof as required by the terms of any existing
ground lease or first mortgage affecting the Building. Such insurance may be
carried under a blanket policy covering the Building and any other buildings or
other properties of Landlord, provided that the required amount of coverage is
expressly reserved and allocated to the Building, and may contain commercially
reasonable deductibles. Notwithstanding anything contained in this Section 9.10
to the contrary, if at any time an "institutional lender" (as such term is
hereinafter defined) shall succeed to the rights of Landlord under this Lease
whether through sale, exchange, lease, possession, foreclosure action, deed in
lieu thereof, or otherwise, the obligations of Landlord set forth in this
Section 9.10 shall not apply to such institutional lender.
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For the purposes of this Section 9.10, an "institutional lender" shall mean any
bank, savings and loan association, trust company, insurance company, pension
fund or similar institutional lender, which in the ordinary course of its
business, owns or operates first-class office buildings and, in connection with
such ownership or operation, is self-insured with respect to fire and extended
coverage and which has a "Standard & Poor's" or "Moody's" (or any successor
rating service or substitute rating service (if either of the "Standard &
Poor's" and "Xxxxx'x" services are not then available)) "claims paying ability
rating" or "debt rating" of AA or Aa (or better) or a "Best's Insurance" (or any
successor rating service or substitute rating service, if "Best's insurance" is
not then available) rating of A (or better). If the rating scales of any of such
rating services (or their successors or substitutes) are changed, then the
required rating shall be that rating which is most nearly comparable to the
current rating of "AA" (for Standard & Poor's), "Aa" (for Moody's) or "A" (for
Best's Insurance).
9.11 Landlord and Tenant shall each look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01 If the Building or the demised premises shall be
partially or totally damaged or destroyed by fire or other cause, then whether
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents or visitors (and if this Lease shall not
have been terminated as in this Article 10 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the demised
premises, at its expense (without limiting the rights of Landlord under any
other provisions of this Lease), with reasonable dispatch after notice to it of
the damage or destruction; provided, however, that Landlord shall not be
required to repair or replace any of Tenant's property.
10.02 If the Building or the demised premises shall be
partially damaged or partially destroyed by fire or other cause, then unless
such fire or damage shall have resulted from the negligence of Tenant, the rents
payable hereunder shall be abated to the extent that the demised premises shall
have been rendered untenantable for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored. If the demised
premises or a major part thereof shall be totally (which shall be deemed to
include substantially totally) damaged or destroyed or rendered completely
(which shall be deemed to
29
include substantially completely) untenantable on account of fire or other
cause, the rents shall xxxxx as of the date of the damage or destruction and
until Landlord shall repair, restore and rebuild the Building and the demised
premises, provided, however, that should Tenant beneficially reoccupy a portion
of the demised premises during the period the restoration work is taking place
and prior to the date that the same are made completely tenantable, rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
10.03 If the Building or the demised premises shall be
totally damaged or destroyed by fire or other cause, or if the Building shall be
so damaged or destroyed by fire or other cause (whether or not the demised
premises are damaged or destroyed) as to require a reasonably estimated
expenditure of more than forty percent (40%) of the full insurable value of the
Building immediately prior to the casualty, then in either such case Landlord
may terminate this Lease by giving Tenant notice to such effect within ninety
(90) days after the date of the casualty; and if Tenant is then in occupancy of
the demised premises, the termination shall be effective as of the earlier of
Tenant's vacating of the demised premises or ninety (90) days after Landlord's
termination notice. In case of any damage or destruction mentioned in this
Article 10, (i) Landlord, within sixty (60) days after such damage or
destruction, shall deliver to Tenant an estimate (the "Estimate") of the time
(the "Estimated Time") required to repair or restore the damage or destruction,
prepared by an independent contractor or architect selected by Landlord, and if
the Estimated Time set forth in the Estimate exceeds twelve (12) months from the
date of such damage or destruction, Tenant may terminate this Lease by notice to
Landlord sent by Tenant and received by Landlord within thirty (30) days after
Tenant's receipt of the Estimate, or (ii) Tenant may terminate this Lease by
notice to Landlord (which shall be effective as of the earlier of Tenant's
vacating of the demised premises or ninety (90) days after such notice), if
Landlord has not completed the making of the required repairs and restored and
rebuilt the Building and the demised premises within twelve (12) months from the
date of such damage or destruction, or within such period after such date (not
exceeding six (6) months) as shall equal the aggregate period Landlord may have
been delayed in doing so by adjustment of insurance, labor trouble, governmental
controls, act of God, or any other cause beyond Landlord's reasonable control.
10.04 No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the demised premises or of the Building
pursuant to this Article 10.
10.05 Notwithstanding any of the foregoing provisions of
this Article 10, if Landlord or the lessor of any superior lease or the holder
of any superior mortgage shall be unable to collect all of the insurance
proceeds (including
30
rent insurance proceeds) applicable to damage or destruction of the demised
premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, there shall be no abatement of Tenant's rents, but the total amount of
such rents not abated (which would otherwise have been abated) shall not exceed
the amount of uncollected insurance proceeds.
10.06 Landlord will not carry separate insurance of any
kind on Tenant's property, and, except as provided by law or by reason of its
breach of any of its obligations hereunder, shall not be obligated to repair any
damage thereto or replace the same. Tenant shall maintain insurance on Tenant's
property, and Landlord shall not be obligated to repair any damage thereto or
replace the same.
10.07 The provisions of this Article 10 shall be considered
an express agreement governing any cause of damage or destruction of the demised
premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York, providing for such a contingency in the absence of an
express agreement, and any other law of like import, now or hereafter in force,
shall have no application in such case.
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01 Tenant shall not (a) assign or otherwise transfer
this Lease or the term and estate hereby granted, (b) sublet the demised
premises or any part thereof or allow the same to be used or occupied by others
or in violation of Article 5 hereof (except that if Landlord allows a particular
use in the Building not provided in Article 5 hereof to tenants comprising, in
the aggregate, over forty percent (40%) of the rentable square feet in the
Building, such use shall be allowed under this Lease with respect to any
assignments and subletting of the demised premises), (c) mortgage, pledge or
encumber this Lease or the demised premises or any part thereof in any manner or
permit any lien to be filed against the Lease, the demised premises or the
Building by reason of any act or omission on the part of Tenant or enter into
any agreement which would permit the filing of a lien by any broker, or (d)
advertise, or authorize a broker to advertise, for a subtenant or an assignee,
without, in each instance, obtaining the prior consent of Landlord, except as
otherwise expressly provided in this Article 11. For purposes of this Article
11, (i) the transfer of a majority of the issued and outstanding capital stock
of any corporate tenant, or of a corporate subtenant, or the transfer of a
majority of the total interest in any partnership tenant or subtenant, however
accomplished,
31
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this Lease, or of such sublease,
as the case may be, except that the transfer of the outstanding capital stock of
any corporate tenant, or subtenant, shall be deemed not to include the sale of
such stock by persons or parties through the "over-the-counter market" or
through any recognized stock exchange, other than those deemed "insiders" within
the meaning of the. Securities Exchange Act of 1934 as amended, (ii) a takeover
agreement shall be deemed a transfer of this Lease, (iii) any person or legal
representative of Tenant, to whom Tenant's interest under this Lease passes by
operation of law, or otherwise, shall be bound by the provisions of this Article
11, and (iv) a modification, amendment or extension of a sublease shall be
deemed a sublease.
11.02 The provisions of Section 11.01 hereof shall not
apply to transactions pursuant to which Tenant is merged or consolidated with
another corporation or entity or in which substantially all of Tenant's assets
are transferred (provided such merger or transfer of assets is for a good
business purpose and not principally for the purpose of transferring the
leasehold estate created hereby, and provided further, that the assignee has a
net worth at least equal to or in excess of the net worth of Tenant immediately
prior to such merger or transfer) or, if Tenant is a partnership, with a
successor partnership.
11.03 Any assignment or transfer, whether made with
Landlord's consent as required by Section 11.01 or without Landlord's consent
pursuant to Section 11.02, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord a
recordable agreement, in form and substance reasonably satisfactory to Landlord,
whereby the assignee shall assume the obligations and performance of this Lease
and agree to be personally bound by and upon all of the covenants, agreements,
terms, provisions and conditions hereof on the part of Tenant to be performed or
observed and whereby the assignee shall agree that the provisions of Section
11.01 hereof shall, notwithstanding such an assignment or transfer, continue to
be binding upon it in the future. Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of fixed annual rent by Landlord from
an assignee or transferee or any other party, Tenant shall remain fully and
primarily liable for the payment of the fixed annual rent and additional rent
due and to become due under this Lease and for the performance of all of the
covenants, agreements, terms, provisions and conditions of this Lease on the
part of Tenant to be performed or observed.
11.04 The liability of Tenant, and the due performance by
Tenant of the obligations on its part to be performed under this Lease, shall
not be discharged, released or impaired in any respect by an agreement or
stipulation made by Landlord or any grantee or assignee of Landlord, by way of
mortgage, or
32
otherwise, extending the time of, or modifying any of the obligations contained
in this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations on Tenant's part to be performed under this Lease, and Tenant shall
continue to be liable hereunder. If any such agreement or modification operates
to increase the obligations of a tenant under this Lease, the liability under
this Section 11.04 of, the tenant named in the Lease or any of its successors in
interest, (unless such party shall have expressly consented in writing to such
agreement or modification) shall continue to be no greater than if such
agreement or modification had not been made. To charge Tenant named in this
Lease and its successors in interest, no demand or notice of any default shall
be required. Tenant and each of its successors in interest hereby expressly
waive any such demand or notice.
11.05 (a) Should Tenant agree, subject to the
provisions of this Lease, to assign this Lease, other than by an assignment
contemplated by Section 11.02, Tenant shall as soon as that agreement is
consummated, but no less than forty-five (45) days prior to the effective date
of the contemplated assignment, deliver to Landlord a duplicate original of such
agreement, and all ancillary agreements with the proposed assignee, and Landlord
shall then have the right to elect, by notifying Tenant within thirty (30) days
of such delivery, to (i) terminate this Lease, as of such effective date as if
it were the Expiration Date set forth in this Lease or (ii) accept an assignment
of this Lease from Tenant, and Tenant shall then promptly execute and deliver to
Landlord, or Landlord's designee if so elected by Landlord, in form reasonably
satisfactory to Landlord's counsel, an assignment which shall be effective as of
such effective date. Notwithstanding anything to the contrary herein, in the
case of a termination under clause (i) of this subsection (a), Tenant shall be
released from all of its obligations under this Lease to the same extent as if
the effective date of such termination were the Expiration Date. Notwithstanding
anything to the contrary herein, Tenant shall not be liable to Landlord for any
default by any assignee designated by Landlord under clause (ii) of this
subsection (a).
(b) In the event that this Lease shall be
assigned to Landlord or Landlord's designee or if the demised premises shall be
sublet to Landlord or Landlord's designee pursuant to this Section 11.05, the
provisions of any such sublease or assignment and the obligations of Landlord
and the rights of Tenant with respect thereto shall not be binding upon or
otherwise affect the rights of any holder of a superior mortgage or of a lessor
under a superior lease unless such holder or lessor shall elect by written
notice to Tenant to succeed to the position of Landlord or its designee, as the
case may be, thereunder.
(c) Should Tenant agree, subject to the
provisions of this Lease, to sublet the demised premises or any portion thereof,
other than by a sublease contemplated by Section 11.02, Tenant shall, as soon as
that agreement is
33
consummated, but no less than forty-five (45) days prior to the effective date
of the contemplated sublease, deliver to Landlord, a duplicate original of the
proposed sublease and all ancillary agreements with the proposed sublessee, and
Landlord shall then have the right to elect, by notifying Tenant within thirty
(30) days of such delivery, to (i) terminate this Lease as to the portion of the
demised premises affected by such subletting or as to the entire demised
..premises, in the case of a subletting thereof for all or substantially the
remainder of the Term, as of such effective date, (ii) in the case of a proposed
subletting of the entire demised premises for all or substantially the remainder
of the Term, or any lesser period, either terminate this Lease or enter into an
assignment of this Lease or a subletting of the demised premises to Landlord
from Tenant for the remainder of the term, at Landlord's option, and Tenant
shall then promptly execute and deliver to Landlord, or Landlord's designee if
so elected by Landlord, in form reasonably satisfactory to Landlord's counsel,
an assignment, or subletting as the case may be, which shall be effective as of
such effective date (there being no need to execute an agreement more than
merely confirming the date of termination in the event of Landlord's election of
same, this clause being self-operative) or, (iii) accept a sublease from Tenant
of the portion of the demised premises affected by such proposed subletting if
less than all or substantially all of the entire demised premises in the case of
a proposed subletting thereof for less than the remaining term hereof, and
Tenant shall then promptly execute and deliver a sublease to Landlord, or
Landlord's designee if so elected by Landlord, in reasonably satisfactory form,
for the proposed term thereof, at Landlord's option, commencing with such
effective date, at either (x) the rental terms reflected in the proposed
sublease or (y) the rental terms contained in this Lease on a per rentable
square foot basis, as elected by Landlord in such notice. Notwithstanding
anything to the contrary herein, in the case of a termination under clause (i)
of this subsection (c), Tenant shall be released from all of its obligations
under this Lease with respect to the portion of the demised premises affected by
Tenant's proposed subletting or as to the entire demised premises in the case of
a proposed subletting thereof to the same extent as if the effective date of
such termination were the Expiration Date. Notwithstanding anything to the
contrary herein, Tenant shall not be liable to Landlord for any default by any
subtenant designated by Landlord under clause (ii) or (iii) of this subsection
(c).
(d) If Landlord should elect to have Tenant
execute and deliver a sublease to Landlord or its designee pursuant to any of
the provisions of this Section 11.05, said sublease shall be in a form
reasonably satisfactory to Landlord's counsel and on all the terms contained in
this Lease, except that:
(i) The rental terms, if elected by Landlord,
may be either as provided in item (x) or
item (y) of subsection 11.05(c) hereof,
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(ii) The sublease shall not provide for any work
to be done for the subtenant or for any
initial rent concessions or contain
provisions inapplicable to a sublease,
except that in the case of a subletting of a
portion of the demised premises Tenant shall
reimburse subtenant for the cost of erecting
such demising walls as are necessary to
separate the subleased premises from the
remainder of the demised premises and to
provide access thereto,
(iii) The subtenant thereunder shall have the
right to underlet the subleased premises, in
whole or in part, without Tenant's consent,
(iv) The subtenant thereunder shall have the
right to make, or cause to be made, any
changes, alterations, decorations, additions
and improvements that such subtenant may
desire or authorize,
(v) Such sublease shall expressly negate any
intention that any estate created by or
under such sublease be merged with any other
estate held by either of the parties
thereto,
(vi) Any consent required of Tenant, as lessor
under that sublease, shall be deemed granted
if consent with respect thereto is granted
by Landlord,
(vii) There shall be no limitation as to the use
of the sublet premises by the subtenant
thereunder,
(viii) Such sublease shall provide that Tenant's
obligations with respect to vacating the
demised premises and removing any changes,
alterations, decorations, additions or
improvements made in the subleased premises
shall be limited to those which accrued and
related to such as were made prior to the
effective date of the sublease.
(e) If pursuant to the exercise of any of Landlord's
options pursuant to Section 11.05 hereof this Lease is terminated as to only a
portion of the demised premises, then the fixed annual rent payable hereunder
and the additional rent payable pursuant to Article 3 hereof shall be adjusted
in proportion to the portion of the demised premises affected by such
termination.
35
11.06 In the event that Landlord does not exercise any of
the options available to it pursuant to Section 11.05 hereof, Landlord shall not
unreasonably withhold or delay its consent to an assignment of this Lease or a
subletting of the whole or any part of the demised premises, provided:
(a) Tenant shall furnish Landlord with the name
and business address of the proposed subtenant or assignee, information with
respect to the nature and character of the proposed subtenant's or assignee's
business, or activities, such references and current financial information with
respect to net worth, credit and financial responsibility as are reasonably
satisfactory to Landlord, and an executed counterpart of the sublease or
assignment agreement;
(b) The proposed subtenant or assignee is a
reputable party whose financial net worth, credit and financial responsibility
is, considering the responsibilities involved, reasonably satisfactory to
Landlord;
(c) The nature and character of the proposed
subtenant or assignee, its business or activities and intended use of the
demised premises is, in Landlord's reasonable judgment, in keeping with the
standards of the Building and the floor or floors on which the demised premises
are located;
(d) The proposed subtenant or assignee is not
then an occupant of any part of the Building or a party who dealt with Landlord
or Landlord's agent (directly or through a broker) with respect to space in the
Building during the twelve (12) months immediately preceding Tenant's request
for Landlord's consent;
(e) All costs incurred with respect to providing
reasonably appropriate means of ingress and egress from the sublet space or to
separate the sublet space from the remainder of the demised premises shall,
subject to the provisions of Article 6 with respect to alterations,
installations, additions or improvements be borne by Tenant or such subtenant;
(f) Each sublease shall specifically state that
(i) it is subject to all of the terms, covenants, agreements, provisions, and
conditions of this Lease, (ii) the subtenant or assignee, as the case may be,
will not have the right to a further assignment thereof or sublease or
assignment thereunder, or to allow the demised premises to be used by others,
without the consent of Landlord in each instance, (iii) a consent by Landlord
thereto shall not be deemed or construed to modify, amend or affect the terms
and provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the premises involved, and the occupants thereof, as if the
sublease or assignment had not been made;
36
(g) Tenant shall together with requesting
Landlord's consent hereunder, have paid Landlord any reasonable costs incurred
by Landlord to review the requested consent including any reasonable attorneys
fees incurred by Landlord (not to exceed $2,500 in any instance);
(h) The proposed subtenant or assignee is not
(i) a bank trust company, safe deposit business, savings and loan association or
loan company; (ii) employment or recruitment agency; (iii) school, college,
university or educational institution whether or not for profit; (iv) a
government or any subdivision or agency thereof;
(i) In the case of a subletting of a portion of
the demised premises, the portion so sublet shall be regular in shape and
suitable for normal renting purposes and such subletting will not result in more
than two (2) occupants (including Tenant) occupying the portion of the demised
premises on any floor of the Building, or more than four (4) occupants
(including Tenant), in the aggregate, occupying the demised premises;
(j) The proposed assignment shall be for a
consideration or the proposed subletting shall be at a rental rate not less than
the rental rates then being charged under leases being entered into by Landlord
for comparable space in the Building and for a comparable term, and in no event
shall Tenant advertise or list with brokers at such lower rental rate.
11.07 If Tenant shall assign this Lease or sublease all or
any part of the demised premises, Tenant shall pay to Landlord, as additional
rent:
(a) in the case of an assignment, an amount
equal to sixty percent (60%) of all sums and other considerations paid to Tenant
by the assignee for or by reason of such assignment or otherwise (including, but
not limited to, sums paid for the sale of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then fair market value), less
reasonable advertising costs and expenses, customary brokerage commissions and
reasonable legal fees actually incurred in connection with such assignment; and
(b) in the case of a sublease, an amount equal
to sixty percent (60%) of any rents, additional charge or other consideration
payable under the sublease or otherwise to Tenant by the subtenant which is in
excess of the fixed annual rent and additional rent accruing during the term of
the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms hereof (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other
37
personal property, less, in the case of the sale thereof, the then fair market
value), less reasonable advertising costs and expenses, customary brokerage
commissions and reasonable legal fees actually incurred in connection with such
subletting and amortized over the term of the sublease.
The sums payable under this Section 11.07 shall be paid to Landlord as and when
paid by the subtenant or assignee, as the case may be, to Tenant.
11.08 If Tenant defaults in the payment of any rent,
Landlord is authorized to collect any rents due or accruing from any assignee,
subtenant or other occupant of the demised premises and to apply the net amounts
collected to the fixed annual rent and additional rent reserved herein. The
receipt by Landlord of any amounts from an assignee or subtenant, or other
occupant of any part of the demised premises shall not be deemed or construed as
releasing Tenant from Tenant's obligations hereunder or the acceptance of that
party as a direct tenant.
11.09 In connection with any proposed assignment or
sublease, Tenant shall grant to Landlord's then managing agent the exclusive
right to sublease or to assign this Lease, as the case may be, for a period of
thirty (30) days after Tenant's notice of its intent to assign or sublease.
11.10 (a) Tenant may assign this Lease or sublet the
entire demised premises for substantially the balance of the term of this Lease
to any corporation into or with which Tenant may be merged or consolidated or to
any corporation which shall be an affiliate, subsidiary, parent or successor of
Tenant, subject to Landlord's consent (which consent shall not be unreasonably
withheld or delayed), provided and on condition that (i) such transaction is for
a bona fide business purpose and not, either directly or indirectly, principally
for the purpose of transferring the leasehold created hereby, and (ii) the
successor to the Tenant or the transferee on the effective date of such proposed
assignment or the proposed sublessee of such sublease or the Tenant shall have a
tangible net worth of at least $150,000,000 and proof thereof, reasonably
satisfactory to Landlord shall have been delivered to Landlord at least ten (10)
days prior to the effective date of such assignment or sublease; provided that
if such assignee or sublessee or Tenant has a tangible net worth of less than
$150,000,000 on the effective date of such assignment or sublease, then as a
condition to such assignment or sublease (1) such assignee or sublessee shall,
on or before the effective date of such assignment or sublease, deliver to
Landlord as additional security hereunder, a letter of credit in favor of
Landlord, in the form of Exhibit D attached hereto, in an amount equal to the
product of (x) $1,000,000 multiplied by (y) a fraction, the numerator of which
is the difference between such assignee's or sublessee's or Tenant's then
tangible net worth (proof of which reasonably satisfactory to Landlord having
been delivered to Landlord at least ten (10) days prior to the effective date of
such assignment or
38
sublease) and $150,000,000 and the denominator of which is $10,000,000 and, (2)
the amount of the security then held by Landlord in accordance with the
provisions of Article 42 herein, as increased pursuant to this Section 11 shall
not be reduced below the amount set forth in said Article 42 (i.e., $2,000,000).
(b) For the purpose of this Section 11.10(a), a
"subsidiary" or "affiliate" or "successor" of Tenant shall mean the following:
(i) An "affiliate" shall mean any corporation
which, directly or indirectly, controls or
is controlled by or is under common control
with Tenant. For this purpose, "control"
shall mean the possession, directly or
indirectly, of the power to direct or cause
the direction of the management and policies
of such corporation, whether through the
ownership of voting securities or by
contract or otherwise.
(ii) A "subsidiary" shall mean any corporation
not less than fifty percent (50%) of whose
outstanding stock shall, at the time, be
owned directly or indirectly by Tenant. Any
cessation of the affiliate or subsidiary
relationship between Tenant and the entity
in question shall constitute an assignment
or subletting, as the case may be, which
shall be subject to all of the terms,
provisions and conditions of this Article.
(iii) A "successor" of Tenant shall mean (x) a
corporation or other entity in which or with
which Tenant, its successors or assigns, is
merged or consolidated, in accordance with
applicable statutory provisions for merger
or consolidation of entities, provided that
by operation of law or by effective
provisions contained in the instruments of
merger or consolidation, the liabilities of
the entities participating in such merger or
consolidation are assumed by the entity
surviving such merger or created by such
consolidation, or (y) a transferee of not
less than eighty percent (80%) of the issued
and outstanding stock of Tenant.
ARTICLE 12
CERTIFICATE OF OCCUPANCY
12.01 Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy issued for the Building. A
copy of the existing certificate of occupancy has been furnished to Tenant.
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ARTICLE 13
ADJACENT EXCAVATION -- SHORING
13.01 If an excavation or other substructure work shall be
made upon land adjacent to the demised premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the purpose of doing
such work as shall be necessary to preserve the wall of or the Building of which
the demised premises form a part from injury or damage and to support the same
by proper foundations without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent.
ARTICLE 14
CONDEMNATION
14.01 In the event that the whole of the demised premises
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title Landlord shall
notify Tenant within ten (10) Business Days following receipt of Tenant's
written request for information whether Landlord has received any notice of a
proposed condemnation or taking. In the event that only a part of the demised
premises shall be so condemned or taken, then, effective as of the date of
vesting of title, the fixed annual rent under Article 1 hereunder and additional
rents under Article 3 hereunder shall be abated in an amount thereof apportioned
according to the area of the demised premises so condemned or taken. In the
event that only a part of the Building (but not less than thirty percent (30%)
thereof in value) shall be so condemned or taken, then (a) Landlord (whether or
not the demised premises be affected) may, at Landlord's option, terminate this
Lease and the term and estate hereby granted as of the date of such vesting of
title by notifying Tenant in writing of such termination within sixty (60) days
following the date on which Landlord shall have received notice of vesting of
title, or (b) if such condemnation or taking shall be of a substantial part of
the demised premises or of a substantial part of the means of access thereto,
Tenant may, at Tenant's option, by delivery of notice in writing to Landlord
within thirty (30) days following the date on which Tenant shall have received
notice of vesting of title, terminate this Lease and the term and estate hereby
granted as of the date of vesting of title, or (c) if neither Landlord nor
Tenant elects to terminate this Lease, as aforesaid, this Lease shall be and
remain unaffected by such condemnation or taking, except that the fixed annual
rent payable under Article 1 and additional rents payable under Article 3 shall
be abated to the extent
40
hereinbefore provided in this Article 14. 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 with respect to the remaining portion of the demised
premises are not terminated as hereinbefore provided, Landlord will, with
reasonable diligence and at its expense, restore the remaining portion of the
demised premises as nearly as practicable to the same condition as it was in
prior to such condemnation or taking.
14.02 In the event of its termination in any of the cases
hereinbefore 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 fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
14.03 In the event of any condemnation or taking
hereinbefore mentioned of all or a part of the Building, Landlord shall be
entitled to receive the entire award in the condemnation proceeding, including
any award, made for the value of the estate vested by this Lease in Tenant, and
Tenant 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. Tenant
shall be permitted to make a separate claim with the condemning authority for
its moving and relocation expenses and the cost of its fixtures, provided such
claim shall not have an adverse affect upon the award Landlord is entitled to
receive, as herein provided.
14.04 It is expressly understood and agreed that the
provisions of this Article 14 shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period.
14.05 In the event of any taking of less than the whole of
the Building which does not result in a termination of this Lease, or in the
event of a taking for a temporary use or occupancy of all or any part of the
demised premises which does not result in a termination of this Lease, Landlord,
at its expense, and whether or not any award or awards shall be sufficient for
the purpose, shall proceed with reasonable diligence to repair, alter and
restore the remaining parts of the Building and the demised premises to
substantially their former condition to the extent that the same may be feasible
and so as to constitute a complete and tenantable Building and demised premises.
14.06 In the event any part of the demised premises be
taken to effect compliance with any law or requirement of public authority other
than in the manner hereinabove provided in this Article 14, then, (i) if such
compliance is the obligation of Tenant under this Lease, Tenant shall not be
entitled to any diminution or abatement of rent or other compensation from
Landlord therefor, but (ii) if such
41
compliance is the obligation of Landlord under this Lease, the fixed annual rent
hereunder shall be reduced and additional rents under Article 3 shall be
adjusted in the same manner as is provided in Section 14.01 according to the
reduction in rentable area of the demised premises resulting from such taking.
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01 If Tenant shall permit Landlord to erect, use and
maintain pipes, ducts and conduits in and through the demised premises, provided
the same are installed adjacent to or concealed behind walls and ceilings of the
demised premises, Landlord shall to the extent practicable (except as required
by law or for the safety of the occupants of the Building) install such pipes,
ducts and conduits by such methods and at such locations as will not materially
interfere with or impair Tenant's layout or use of the demised premises.
Landlord or its agents or designees shall have the right to enter the demised
premises, at reasonable times during business hours, upon not less than
twenty-four (24) hours prior notice (which may be oral), except in the case of
an emergency, for the making of such repairs or alterations as Landlord may deem
necessary for the Building or which Landlord shall be required to or shall have
the right to make by the provisions of this Lease or any other lease in the
Building and; subject to the foregoing, 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 of the fee or of Landlord's interest in the property of which the
demised premises are a part or to prospective assignees of any such mortgages or
to the holder of any mortgage on the Landlord's interest in the property, its
agents or designees. Landlord shall be allowed to take all material into and
upon the demised premises that may be required for the repairs or alterations
above mentioned as the same is required for such purpose, without the same
constituting an eviction of Tenant in whole or in part, and the rent reserved
shall in no wise xxxxx while said repairs or alterations are being made by
reason of loss or interruption of the business of Tenant because of the
prosecution of any such work. Landlord shall exercise reasonable diligence so as
to minimize the disturbance but nothing contained herein shall be deemed to
require Landlord to perform the same on an overtime or premium pay basis.
15.02 Landlord reserves the right, without the same
constituting an eviction and without incurring liability to Tenant therefor, to
renovate and/or change the arrangement and/or location of public entrances,
lobbies passageways, doors, doorways, corridors, elevators, stairways, toilets
and other public parts of the Building; provided, however, that access to the
Building shall not be cut off and that
42
there shall be no unreasonable obstruction of access to the demised premises or
unreasonable interference with the use or enjoyment thereof.
15.03 Landlord reserves the right to light from time to
time all or any portion of the demised premises at night for display purposes
without paying Tenant therefor; provided such lighting shall not unreasonably
disturb or interfere with Tenant's use or occupancy of the demised premises.
15.04 Landlord may, during the twelve (12) months prior to
expiration of the term of this Lease, exhibit the demised premises to
prospective tenants.
15.05 If Tenant shall not be personally present to open and
permit an entry into the demised premises at any time when for any reason an
entry therein shall be urgently necessary by reason of fire or other emergency,
Landlord or Landlord's agents may forcibly enter the same without rendering
Landlord or such agents liable therefor (if during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's property) and without
in any manner affecting the obligations and covenants of this Lease; provided
Landlord shall, in the event of an emergency, attempt to call Tenant's 24-hour
representative, provided further that Tenant shall have given the name and phone
number for such representative to Landlord.
ARTICLE 16
CONDITIONS OF LIMITATION
16.01 This Lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make an assignment of the
property of Tenant for the benefit of creditors, or shall file a voluntary
petition under any bankruptcy or insolvency law or any involuntary petition
alleging an act of bankruptcy or insolvency shall be filed against Tenant under
any bankruptcy or insolvency law, or whenever a petition shall be filed by or
against Tenant under the reorganization provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
petition shall be filed by Tenant under the arrangement provisions of the United
States Bankruptcy Act or under the provisions of any law of like import, or
whenever a permanent receiver of Tenant or of or for the property of Tenant
shall be appointed, then, Landlord may, (a) at any time after receipt of notice
of the occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for thirty (30)
days, give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention,
43
and upon the expiration of said five (5) day period, this Lease and the term and
estate hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if that day were the Expiration Date,
but Tenant shall remain liable for damages as provided in Article 18.
16.02 This Lease and the term and estate hereby granted are
subject to further limitation as follows:
(a) whenever Tenant shall default in the payment
of any installment of fixed annual rent, or in the payment of any additional
rent or any other charge payable by Tenant to Landlord, on any day upon which
the same ought to be paid, and such default shall continue for five (5) days
after Landlord shall have given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything
to be done, whether by action or inaction, contrary to any of Tenant's
obligations hereunder, and if such situation shall continue and shall not be
remedied by Tenant within fifteen (15) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of fifteen (15) days
and the continuation of which for the period required for cure will not subject
Landlord to the risk of criminal liability (as more particularly described in
Article 8 hereof) or termination of any superior lease or foreclosure of any
superior mortgage, if Tenant shall not, (i) within said fifteen (15) day period
advise Landlord of Tenant's intention to duly institute all steps necessary to
remedy such situation, (ii) duly institute within said fifteen (15) day period,
and thereafter diligently and continuously prosecute to completion all steps
necessary to remedy the same and (iii) complete such remedy within such time
after the date of the giving of said notice to Landlord as shall reasonably be
necessary, or
(c) whenever any event shall occur or any
contingency shall arise whereby this Lease or the estate hereby granted or the
unexpired balance of the term hereof would, by operation of law or otherwise,
devolve upon or pass to any person, firm or corporation other than Tenant,
except as expressly permitted by Article 11, or
(d) Intentionally omitted.
(e) whenever in case any other lease held by
Tenant from Landlord shall expire and terminate (whether or not the term thereof
shall then have commenced) as a result of the default of Tenant thereunder or of
the occurrence of an event as therein provided (other than by expiration of the
fixed term thereof or pursuant to a cancellation or termination option therein
contained), or
44
(f) whenever Tenant shall default in the due
keeping, observing or performance of any covenant, agreement, provision or
condition of Article 5 hereof on the part of Tenant to be kept, observed or
performed which default threatens the health or safety of any occupant of or
visitor to the Building or affects any other tenants' rights to occupy the
Building and if such default shall continue and shall not be remedied by Tenant
within five (5) Business Days after Landlord shall have given to Tenant a notice
specifying the same,
(g) if during any consecutive eighteen (18)
month period during the term of this Lease (i) Tenant shall have on three (3) or
more occasions paid any installment of fixed annual rent or any additional rent
more than ten (10) days after the same was due hereunder and (ii) Landlord shall
have given Tenant notice of such default pursuant to subsection (a) hereof
before such default was cured,
then in any of said cases set forth in the foregoing subsections (a), (b), (c),
(e), (f) and (g) Landlord may give to Tenant a notice of intention to end the
term of this Lease at the expiration of three (3) days from the date of the
service of such notice of intention, and upon the expiration of said three (3)
days this Lease and the term and estate hereby granted, whether or not the term
shall theretofore have commenced, shall terminate with the same effect as if
that day were the Expiration Date, but Tenant shall remain liable for damages as
provided in Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.01 If Tenant shall default in the payment of any
installment of fixed annual rent, or of any additional rent, on any date upon
which the same ought to be paid, and if such default shall continue for five (5)
days after Landlord shall have given to Tenant a notice specifying such default,
or if this Lease shall expire as in Article 16 provided, Landlord or Landlord's
agents and employees may immediately or at any time thereafter re-enter the
demised premises, or any part thereof, either by summary dispossess proceedings
or, by any suitable action or proceeding at law, or by force or otherwise,
without being liable to indictment, prosecution or damages therefrom, to the end
that Landlord may have, hold and enjoy the demised premises again as and of its
first estate and interest therein. The word re-enter, as herein used, is not
restricted to its technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 16 or if Landlord shall re-enter the
demised premises under the provisions of this Article 17 or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by
45
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the fixed annual rent and additional rent payable by Tenant to Landlord
up to the time of such termination of this Lease, or of such recovery of
possession of the demised premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 18.
17.02 In the event of a breach or threatened breach by
Tenant of any of its obligations under this Lease, Landlord shall also have the
right of injunction. The special remedies to which Landlord may resort hereunder
are cumulative and are not intended to be exclusive of any other remedies or
means of redress to which Landlord may lawfully be entitled at any time and
Landlord may invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein.
17.03 If this Lease shall terminate under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of this Article 17, or in the event of the termination of this Lease,
or of re-entry, by or under any summary dispossess or other proceeding or action
or any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such moneys shall
be credited by Landlord against any fixed annual rent or additional rent due
from Tenant at the time of such termination or re-entry or, at Landlord's option
against any damages payable by Tenant under Articles 16 and 18 or pursuant to
law.
17.04 Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise.
ARTICLE 18
DAMAGES
18.01 If this Lease is terminated under the provisions of
Article 16, or if Landlord shall re-enter the demised premises under the
provisions of Article 17, or in the event of the termination of this Lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall pay to Landlord as damages, at the election of Landlord, either
46
(a) a sum which at the time of such termination
of this Lease or at the time of any such re-entry by Landlord, as the case may
be, represents the then present value discounted at the rate of a United States
Treasury obligation having a maturity equivalent to the then remaining balance
of the term of this Lease, of the excess, if any, of
(1) the aggregate of the fixed annual
rent and the additional rent payable hereunder which
would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was
payable for the year immediately preceding such
termination except that additional rent on account of
increases in Taxes and the Wage Rate shall be
presumed to increase at the average of the rates of
increase thereof previously experienced by Landlord
during the period (not to exceed 3 years) prior to
such termination) for the period commencing with such
earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with
the Expiration Date, had this Lease not so terminated
or had Landlord not so re-entered the demised
premises, over
(2) the aggregate rental value of the
demised premises for the same period, or
(b) sums equal to the fixed annual rent and the
additional rent (as above presumed) payable hereunder which would have been
payable by Tenant had this Lease not so terminated, or had Landlord not so
re-entered the demised premises, payable upon the due dates therefor specified
herein following such termination or such re-entry and until the Expiration
Date, provided, however, that if Landlord shall re-let the demised premises
during said period, Landlord shall credit Tenant with the net rents received by
Landlord from such re-letting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
re-letting, the expenses incurred or paid by Landlord in terminating this Lease
or in re-entering the demised premises and in securing possession thereof, as
well as the expenses of re-letting, including altering and preparing the demised
premises for new tenants, brokers' commissions, and all other expenses properly
chargeable against the demised premises and the rental thereof; it being
understood that any such re-letting may be for a period shorter or longer than
the remaining term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, or shall Tenant be entitled in any suit for the collection of damages
pursuant to this subsection to a credit in respect of any net rents from a
re-letting, except to the extent that such net rents are actually received by
Landlord. If the demised premises or any part thereof should be re-let in
combination with
47
other space, then proper apportionment on a square foot basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
If the demised premises or any part thereof be re-let by Landlord for the
unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie, be the fair and
reasonable rental value for the demised premises, or part thereof, so re-let
during the term of the re-letting.
18.02 Suit or suits for the recovery of such damages, or
any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 16, or under any
provision of law, or had Landlord not re-entered the demised premises. Except as
otherwise expressly provided herein, nothing herein contained shall be construed
to limit or preclude recovery by Landlord against Tenant of any sums or damages
to which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
Nothing herein contained shall be construed to limit or prejudice the right of
Landlord to prove for and obtain as liquidated damages by reason of the
termination of this Lease or re-entry of the demised premises for the default of
Tenant under this Lease, an amount equal to the maximum allowed by any 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,
equal to, or less than any of the sums referred to in Section 18.01.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01 If Tenant shall default, beyond any applicable notice
and cure periods, in the observance or performance of any term or covenant on
Tenant's part to be observed or performed under or by virtue of any of the terms
or provisions in any Article of this Lease, (a) Landlord may remedy such default
for the account of Tenant, immediately and without notice in case of emergency,
or in any other case only provided that Tenant shall fail to remedy such default
with all reasonable dispatch after Landlord shall have notified Tenant in
writing of such default and the applicable grace period for curing such default
shall have expired; and (b) if Landlord makes any expenditures or incurs any
obligations for the payment of money in connection with such default including,
but not limited to, reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding,
48
such sums paid or obligations incurred, with interest at the Interest Rate,
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord upon rendition of a xxxx to Tenant therefor.
ARTICLE 20
QUIET ENJOYMENT
20.01 Landlord covenants and agrees that subject to the
terms and provisions of this Lease, if, and so long as, Tenant keeps and
performs each and every covenant, agreement, term, provision and condition
herein contained on the part or on behalf of Tenant to be kept or performed,
then Tenant's rights under this Lease shall not be cut off or ended before the
expiration of the term of this Lease, subject however, to: (i) the obligations
of this Lease, and (ii) the provisions of Article 25 hereof with respect to
ground and underlying leases and mortgages which affect this Lease.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01 So long as Tenant is not in default, beyond any
applicable notice and cure periods, under any of the covenants of this Lease,
Landlord shall, at its cost and expense:
(a) Provide necessary elevator facilities during
Business Hours of Business Days and shall have at least one elevator subject to
call at all other times. At Landlord's option, the elevators shall be operated
by automatic control or by manual control, or by a combination of both of such
methods. Tenant shall make all arrangements for, and pay all expenses incurred
in connection with, use of the freight elevators servicing the demised premises.
All scheduling of the freight elevators shall be done by advanced reservation on
a first come, first serve basis. Landlord agrees that during the Business Hours
on Business Days there shall be no charge for Tenant's normal use of the freight
elevators servicing the demised premises. However, Tenant acknowledges that (x)
Tenant's use of such freight elevator is non-exclusive and subject to scheduling
by Landlord, (y) if Tenant's use of such freight elevator for transporting
materials, supplies, equipment, machinery, furniture or furnishings will, in
Landlord's reasonable opinion, disrupt the operation of the Building (including
the normal use of the freight elevators), then Tenant will only be permitted to
use such freight elevator during non-Business Hours. Tenant shall be obligated
to pay for any usage of the freight elevator during hours other
49
than Business Hours on Business Days at Landlord's actual cost therefor and (z)
there is a four (4) hour minimum usage of the freight elevator during hours
other than Business Hours on Business Days.
(b) Furnish heat to the demised premises during
Business Hours of Business Days. Landlord shall have no responsibility or
liability for the ventilating conditions and/or temperature of the demised
premises during the hours or days Landlord is not required to furnish heat
pursuant to this paragraph.
(c) Furnish cold water for lavatory and drinking
and office cleaning purposes. Tenant, at Tenant's sole cost and expense, shall
have the right to install a hot water heater to provide hot water to the demised
premises. If Tenant requires, uses or consumes water for any other purposes,
Tenant agrees to Landlord installing a meter or meters or other means to measure
Tenant's water consumption, and Tenant further agrees to reimburse Landlord for
the cost of the meter or meters and the installation thereof, and to pay for the
maintenance of said meter equipment and/or to pay Landlord's cost of other means
of measuring such water consumption by Tenant. Tenant shall reimburse Landlord
on demand for the cost of all water consumed, as measured by said meter or
meters or as otherwise measured, including sewer rents.
(d) Provide Tenant with up to ten (10) listings
in the Building's lobby directory; provided such number is not more than
Tenant's percentage share of the Building.
21.02 Landlord reserves the right without any liability
whatsoever, or abatement of fixed annual rent, or additional rent, to stop the
heating, air-conditioning, elevator, plumbing, electric and other systems when
necessary by reason of accident or emergency or for repairs, alterations,
replacements or improvements, provided that except in case of emergency,
Landlord will notify Tenant in advance, if possible, of any such stoppage and,
if ascertainable, its estimated duration, and will proceed diligently with the
work necessary to resume such service as promptly as possible and in a manner so
as to minimize interference with Tenant's use and enjoyment of the demised
premises.
21.03 Tenant shall clean and maintain the demised premises
and shall contract directly with the cleaner and a carting company for rubbish
removal designated by Landlord from time to time to render such services to
tenants of the Building, provided the rates charged by the cleaner and carting
company shall be commercially reasonable.
21.04 It is expressly agreed that only Landlord or any one
or more persons, firms or corporations reasonably authorized in writing by
Landlord will
50
be permitted to furnish laundry, linen, towels, drinking water and other similar
supplies and services to tenants and licensees in the Building. Landlord may
fix, in its reasonable discretion, at any time and from time to time, the hours
during which and the regulations under which such supplies and services are to
be furnished and under which, foods and beverages may be brought into Building
by persons other than regular employees of Tenant.
21.05 Tenant shall, at its sole cost and expense, install,
operate and maintain in good working order throughout the term of this Lease
Building Standard (as defined in Section 50.05(i)) air cooled packaged air
conditioning units (hereinafter the "Units") to be installed by Tenant, in
accordance with plans and specifications approved by Landlord (in accordance
with Article 50 below), on the seventeenth (17th) and eighteenth (18th) floors
of the demised premises pursuant to Section 50.06 hereof. Such maintenance
obligations shall be performed throughout the term of this Lease, on Tenant's
behalf and at Tenant's expense, by a reputable air conditioning maintenance
company, first approved by Landlord. Tenant's obligation to maintain the Units
shall include, but not be limited to, the periodic cleaning and/or replacement
of filters, replacements of fuses and belts, the calibration of thermostats and
all startup and shut down of the Units. Tenant shall, at its sole cost and
expense, perform any and all necessary repairs, and cause any and all
replacements of, the Units. The Units and any replacements thereof shall be and
remain at all times the property of Landlord, and Tenant shall surrender the
Units and all such replacements to Landlord on the Expiration Date.
21.06 Landlord shall provide to Tenant reasonable riser and
shaft space, as designated by Landlord, in the Building and provide Tenant with
reasonable access to telephone closets serving the demised premises on the
seventeenth (17th) and eighteenth (18th) floors.
21.07 Tenant shall have access to the Building 24-hours a
day, 7-days a week, 52-weeks a year, subject to Landlord's reasonable security
procedures, force majeure and any other conditions and circumstances beyond
Landlord's control.
21.08 Landlord will not be required to furnish any other
services, except as otherwise provided in this Lease.
51
ARTICLE 22
DEFINITIONS
22.01 The term "Landlord" as used in this Lease means only
the owner, or the mortgagee in possession, for the time being of the Land and
Building (or the owner of a lease of the Building or of the Land and Building),
so that in the event of any transfer of title to said Land and Building or said
lease, or in the event of a lease of the Building, or of the Land and Building,
upon notification to Tenant of such transfer or lease the said transferor
Landlord shall be and hereby is entirely freed and relieved of any and all
covenants, obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest, or between the
parties and the transferee of title to said Land and Building or said lease, or
the said lessee of the Building, or of the Land and Building, that the
transferee or the lessee has assumed and agreed to carry out any and all such
covenants, obligations and liabilities of Landlord hereunder.
22.02 The term "Business Days" as used in this Lease shall
exclude Saturdays, Sundays and all days observed by the Federal, State or local
government as legal holidays as well as all other days recognized as holidays
under applicable union contracts. The term "Business Hours" as used in this
Lease shall mean the hours between 8:00 a.m. and 6:00 p.m.
22.03 "Interest Rate" shall mean a rate per annum equal to
the lesser of (a) three percent (3%) above the commercial lending rate announced
from time to time by Citibank, N.A., as its prime rate for 90-day unsecured
loans, or (b) the maximum applicable legal rate, if any.
22.04 "Legal Requirements" shall mean laws, statutes and
ordinances (including building codes and zoning regulations and ordinances) and
the orders, rules, regulations, directives and requirements of all federal,
state, county, city and borough departments, bureaus, boards, agencies; offices,
commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Land or Building or the
demised premises or any part thereof, or the sidewalks, curbs or areas adjacent
thereto and all requirements, obligations and conditions of all instruments of
record on the date of this Lease.
52
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01 If any term, covenant, condition or provision of this
Lease or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
ARTICLE 24
BROKERAGE
24.01 Tenant covenants, represents and warrants that Tenant
has had no dealings or communications with any broker, or agent other than
Newmark & Company Real Estate, Inc. (which is representing Landlord) and
Insignia/ESG, Inc. (collectively, the "Brokers") in connection with the
consummation of this Lease, and Tenant covenants and agrees to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges claimed by any broker or agent, other than the Brokers
set forth in this Section 24.01, with respect to this Lease or the negotiation
thereof. Landlord shall pay the brokerage fees due to the Brokers pursuant to
separate agreements. This Article 24 shall survive the expiration or sooner
termination of this Lease.
ARTICLE 25
SUBORDINATION
25.01 This Lease is and shall be subject and subordinate to
all ground or underlying leases which may now or hereafter affect the real
property of which the demised premises form a part and to all mortgages which
may now or hereafter affect such leases or such real property, and to all
renewals, modifications, replacements and extensions thereof. The provisions of
this Section 25.01 shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute and deliver at its
53
own cost and expense any instrument, in recordable form if required, that
Landlord, the lessor of the ground or underlying lease or the holder of any such
mortgage or any of their respective successors in interest may request to
evidence such subordination.
25.02 In the event of a termination of any ground or
underlying lease, or if the interests of Landlord under this Lease are
transferred by reason of, or assigned in lieu of, foreclosure or other
proceedings for enforcement of any mortgage, or if the holder of any mortgage
acquires a lease in substitution therefor, then Tenant under this Lease will, at
the option to be exercised in writing by the lessor under such ground or
underlying lease or such mortgagee or purchaser, assignee or lessee, as the case
may be, either (i) attorn to it and will perform for its benefit all the terms,
covenants and conditions of this Lease on Tenant's part to be performed with the
same force and effect as if said lessor, such mortgagee or purchaser, assignee
or lessee, were the landlord originally named in this Lease, or (ii) enter into
a new lease with said lessor or such mortgagee or purchaser, assignee or lessee,
as landlord, for the remaining term of this Lease and otherwise on the same
terms and conditions and with the same options, if any, then remaining. The
foregoing provisions of clause (i) of this Section 25.02 shall enure to the
benefit of such lessor, mortgagee, purchaser, assignee or lessee, shall be
self-operative upon the exercise of such option, and no further instrument shall
be required to give effect to said provisions. Tenant, however, upon demand of
any such lessor, mortgagee, purchaser, assignee or lessee agrees to execute,
from time to time; instruments in confirmation of the foregoing provisions of
this Section 25.02, satisfactory to any such lessor, mortgagee, purchaser,
assignee or lessee, acknowledging such attornment and setting forth the terms
and conditions of its tenancy.
25.03 Anything herein contained to the contrary
notwithstanding, under no circumstances shall the aforedescribed lessor under
the ground lease or mortgagee or purchaser, assignee or lessee, as the case may
be, whether or not it shall have succeeded to the interests of the landlord
under this Lease, be
(a) liable for any act, omission or default of
any prior landlord, except to the extent the same are of a continuing nature; or
(b) subject to any offsets, claims or defenses
which the Tenant might have against any prior landlord, except to the extent the
same are of a continuing nature; or
(c) bound by any fixed annual rent or additional
rent which Tenant might have paid to any prior landlord for more than one month
in advance or
54
for more than three months in advance where such rent payments are payable at
intervals of more than one month; or
(d) bound by any modification, amendment or
abridgement of this Lease, or any cancellation or surrender of the same, made
without its prior written approval.
25.04 If, in connection with the financing of the Building,
the holder of any mortgage shall request reasonable modifications in this Lease
as a condition of approval thereof, Tenant will not unreasonably withhold, delay
or defer making such modifications, provided the same do not increase Tenant's
obligations or reduce Tenant's rights beyond a de minimis extent.
25.05 Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future ground lease
or mortgage to which this Lease is subordinated or by an assignment of this
Lease to the ground lessor or the holder of such mortgage, and, in the event of
any act or omission by Landlord, Tenant will not exercise any right to terminate
this Lease or to remedy the default and deduct the cost thereof from rent due
hereunder until Tenant shall have given written notice of such act or omission
to the ground lessor and to the holder of any mortgage on the fee or the ground
lease who shall have furnished such lessor's or holder's last address to Tenant,
and until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notices, during which time such lessor or
holder shall have the right, but shall not be obligated, to remedy or cause to
be remedied such act or omission. Tenant shall not exercise any right pursuant
to this Section 26.02 if the holder of any mortgage or such aforesaid lessor
commences to cure such aforesaid act or omission within a reasonable time and
diligently prosecutes such cure thereafter.
ARTICLE 26
CERTIFICATE OF TENANT
26.01 Landlord and Tenant agree, at any time and from time
to time, as requested by the other, upon not less than ten (10) days prior
notice, to execute and deliver to the other a statement 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 as modified and stating the
modifications), certifying the dates to which the annual fixed rent and
additional rent have been paid, and stating whether or not, to the best of its
knowledge, the other party is in default in performance of any of its
obligations under the Lease, and, if so, specifying each such default of which
it
55
has knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by others with whom the requesting party may be
dealing.
ARTICLE 27
LEGAL PROCEEDINGS WAIVER OF JURY TRIAL
27.01 Landlord and Tenant do hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the demised premises, and/or any other claims (except claims for
bodily injury or damage to physical property), and any emergency statutory or
any other statutory remedy. It is further mutually agreed that in the event
Landlord commences any summary proceeding for non-payment of rent, Tenant will
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding, except with respect to
compulsory counterclaims.
ARTICLE 28
SURRENDER OF PREMISES
28.01 Upon the expiration or other termination of the term
of this Lease, Tenant shall quit and surrender to Landlord the demised premises,
broom clean, in good order and condition, ordinary wear and tear and damage by
fire, the elements or other casualty excepted, and Tenant shall remove all of
its property as herein provided. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the term of this
Lease.
28.02 In the event Tenant remains in possession of the
demised premises after the Expiration Date or the date of sooner termination of
this Lease, Tenant, at the option of Landlord, shall be deemed to be occupying
the demised premises as a holdover tenant from month-to-month, at a monthly rent
equal to two (2) times the higher of (x) the sum of (i) the monthly installment
of fixed annual rent payable during the last month of the term of this Lease,
and (ii) one-twelfth (1/12th) of the additional rent payable during the last
year of the term of this Lease of (y) the fair market value of the demised
premises, calculated on a monthly basis, subject to all of the other terms and
obligations of this Lease insofar as the same are applicable to a month-to-month
tenancy.
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ARTICLE 29
RULES AND REGULATIONS
29.01 Tenant and Tenant's servants employees and agents
shall observe faithfully and comply strictly with the Rules and Regulations set
forth in Exhibit C attached hereto and made part hereof entitled "Rules and
Regulations" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant. The Rules and
Regulations shall be applied to all office tenants in the Building in a
non-discriminatory manner.
Nothing in this Lease contained shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 30
CONSENTS AND APPROVALS
30.01 Wherever in this Lease Landlord's consent or approval
is required, if Landlord shall delay or refuse such consent or approval, Tenant
in no event shall be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim or defense) based upon any claim
or assertion by Tenant that Landlord unreasonably withheld or unreasonably
delayed its consent or approval. Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, for specific performance, injunction
or declaratory judgment.
ARTICLE 31
NOTICES
31.01 Any notice or demand, consent, approval or
disapproval, or statement required to be given by the terms and provisions of
this Lease, or by
57
any law or governmental regulation, either by Landlord to Tenant or by Tenant to
Landlord, shall be in writing. Unless otherwise required by such law or
regulation, such notice or demand shall be deemed to have been served and given
three (3) Business Days after such notice or demand is mailed by registered or
certified mail, return receipt requested, deposited enclosed in a securely
closed post-paid wrapper, in a United States Government general or branch post
office, or official depository within the exclusive care and custody thereof, or
upon acceptance or refusal of delivery if sent via Federal Express or like
nationally recognized overnight courier, addressed to either party, at its
address set forth on page 1 of this Lease. After Tenant shall occupy the demised
premises, the address of Tenant for notices, demands, consents, approvals or
disapprovals shall be the address provided on page 1 of this Lease, Attention:
General Counsel. Either party may, by notice as aforesaid, designate a different
address or addresses for notices, demands, consents, approvals or disapprovals.
Copies of notices sent by Tenant to Landlord shall be sent to Arent Fox Xxxxxxx
Xxxxxxx & Xxxx PLLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxx, Esq.
31.02 In addition to the foregoing, either Landlord or
Tenant may, from time to time, request in writing that the other party serve a
copy of any notice or demand, consent, approval or disapproval, or statement, on
one other person or entity designated in such request, such service to be
effected as provided in Section 31.01 hereof.
ARTICLE 32
NO WAIVER
32.01 No agreement to accept a surrender of this Lease
shall be valid unless in writing signed by Landlord. No employee of Landlord or
of Landlord's agents shall have any power to accept the keys of the demised
premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agent shall not operate as a termination
of this Lease or a surrender of the demised premises. In the event of Tenant at
any time desiring to have Landlord sublet the premises for Tenant's account,
Landlord or Landlord's agents are authorized to receive said keys for such
purpose without releasing Tenant from any of the obligations under this Lease.
The failure of Landlord to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this Lease or any of the
Rules and Regulations set forth herein, or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with or without knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. The failure
of
58
Landlord to enforce any of the Rules and Regulations set forth herein, or
hereafter adopted, against Tenant and/or any other tenant in the Building shall
not be deemed a waiver of any such Rules and Regulations. No provision of this
Lease shall be deemed to have been waived by Landlord, unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on the account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment of rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
32.02 This Lease contains the entire agreement between the
parties, and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
ARTICLE 33
CAPTIONS
33.01 The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope
of this Lease nor the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.01 If, by reason of (1) strike, (2) labor troubles, (3)
governmental pre-emption in connection with a national emergency, (4) any rule,
order or regulation of any governmental agency, (5) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause or (6) any cause beyond Landlord's reasonable
control, Landlord shall be unable to fulfill its obligations under this Lease or
shall be unable to supply any service which Landlord is obligated to supply,
Landlord shall have no liability therefor and this Lease and Tenant's obligation
to pay rent hereunder shall in no wise be affected, impaired or excused.
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ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01 Landlord or Landlord's agents have made no
representations or promises with respect to the Building or demised premises
except as herein expressly set forth.
ARTICLE 36
NAME OF BUILDING
36.01 Landlord shall have the full right at any time to
name and change the name of the Building and to change the designated address of
the Building. The Building may be named after any person, firm, or otherwise,
whether or not such name is, or resembles, the name of a tenant of the Building.
ARTICLE 37
RESTRICTIONS UPON USE
37.01 It is expressly understood that no portion of the
demised premises shall be used as, by or for (i) a bank, trust company, savings
bank, industrial bank, savings and loan association or personal loan bank (or
any branch office or public accommodation office of any of the foregoing), or
(ii) a public stenographer or typist, xxxxxx shop, beauty shop, beauty parlor or
shop, telephone or telegraph agency, telephone or secretarial service, messenger
service, travel or tourist agency, employment agency, public restaurant or bar,
commercial document reproduction or offset printing service, public vending
machines, retail, wholesale or discount shop for sale of merchandise, retail
service shop, labor union, school or classroom, governmental or
quasi-governmental bureau, department or agency, including an autonomous
governmental corporation, an advertising agency, a firm whose principal business
is real estate brokerage, or a company engaged in the business of renting office
or desk space, provided Tenant shall be permitted to maintain certain of these
foregoing services for the demised premises for the sole benefit of Tenant's
officers and employees.
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ARTICLE 38
ARBITRATION
38.01 In each case specified in this Lease in which resort
to arbitration shall be required, such arbitration (unless otherwise
specifically provided in other Sections of this Lease) shall be in New York City
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association and the provisions of this Lease. The decision and award of the
arbitrators shall be in writing, shall be final and conclusive on the parties,
and counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and awards, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrators so rendered in any court of competent
jurisdiction.
ARTICLE 39
INDEMNITY
39.01 Tenant shall indemnify, defend and save Landlord, its
agents and employees and any mortgagee of Landlord's interest in the Land and/or
the Building and any lessor under any superior lease harmless from and against
any liability or expense arising from the use or occupation of the demised
premises by Tenant or anyone in the demised premises with Tenant's permission,
or from any breach of this Lease by Tenant.
39.02 Landlord shall indemnify, defend and save Tenant, its
agents and employees harmless from and against any liability or expense arising
from the negligence or willful misconduct of Landlord or its agents or
employees. Tenant shall promptly notify Landlord of any such claim and Tenant
shall cooperate with Landlord with respect to any such defense.
ARTICLE 40
MEMORANDUM OF LEASE
40.01 Tenant shall, at the request of Landlord execute and
deliver a statutory form of memorandum of this Lease for the purpose of
recording, but said memorandum of this Lease shall not in any circumstances be
deemed to modify or to change any of the provisions of this Lease. In no event
shall Tenant record this Lease or a memorandum thereof.
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ARTICLE 41
MISCELLANEOUS
41.01 Irrespective of the place of execution or
performance, this Lease shall be governed and construed in accordance with the
laws of the State of New York.
41.02 This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
41.03 Except as otherwise expressly provided in this Lease,
each covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.
41.04 All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
41.05 Time shall be of the essence with respect to the
exercise of any option granted under this Lease.
41.06 Except as otherwise provided herein whenever payment
of interest is required by the terms hereof it shall be at the Interest Rate.
41.07 In the event that Tenant is in arrears in payment of
fixed annual rent or additional rent hereunder, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
41.08 This Lease shall not be binding upon Landlord until
the same is executed by Landlord and Tenant and an executed copy thereof has
been delivered to Tenant.
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ARTICLE 42
SECURITY DEPOSIT
42.01 Tenant shall simultaneously upon execution of this
Lease deliver to Landlord and, shall, except as otherwise provided herein,
maintain in effect at all times during the term hereof, an irrevocable letter of
credit, in the form annexed hereto as Exhibit D and in the amount of $2,000,000
as security for the faithful performance and observance by Tenant of the terms,
provisions, covenants and conditions of this Lease. Such letter of credit shall
be issued by a banking corporation reasonably satisfactory to Landlord and
having its principal place of business or its duly licensed branch or agency in
the State of New York. Such letter of credit shall have an expiration date no
earlier than the first anniversary of the date of issuance thereof and shall be
automatically renewed from year to year unless terminated by the issuer thereof
by notice to Landlord given not less than forty-five (45) days prior to the
expiration thereof. Except as otherwise provided herein, Tenant shall,
throughout the term of this Lease, deliver to Landlord, in the event of the
termination of any such letter of credit, replacement letters of credit in lieu
thereof (each such letter of credit and such extensions or replacements thereof,
as the case may be, is hereinafter referred to as a "Security Letter") no later
than forty-five (45) days prior to the expiration date of the preceding Security
Letter. The term of each such Security Letter shall be not less than one (1)
year and shall be automatically renewable from year to year as aforesaid. If
Tenant shall fail to obtain any replacement of a Security Letter within the time
limits set forth in this Section 42.01, Landlord may draw down the full amount
of the existing Security Letter and retain the same as security hereunder.
42.02 In the event Tenant defaults in respect to any of the
terms, provisions, covenants and conditions of this Lease after the expiration
of applicable notice and cure periods, including, but not limited to, the
payment of rent and additional rent, Landlord may draw upon the Security Letter
to the extent required for the payment of any rent and additional rent or any
other sum as to which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, provisions, covenants, and conditions of this Lease, including
but not limited to, any damages or deficiency accrued before or after summary
proceedings or other reentry by Landlord. To insure that Landlord may utilize
the security represented by the Security Letter in the manner, for the purpose,
and to the extent provided in this Article, each Security Letter shall provide
that the full amount thereof may be drawn down by Landlord upon the presentation
to the issuing bank of Landlord's draft drawn on the issuing bank without
accompanying memoranda on statement of beneficiary.
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42.03 In the event Landlord draws any portion or all of the
security delivered hereunder, Tenant shall forthwith restore the amount so
applied or retained by providing a supplemental Security Letter so that at all
times the amount deposited shall be not less than the security required by
Section 42.01 hereof.
42.04 In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this Lease
and shall not have been in monetary default hereunder more than two (2) times in
any given year or more than four (4) times in the aggregate, the security shall
be reduced after the fifth (5th) anniversary of the Rent Commencement Date to
One Million Dollars ($1,000,000). Tenant agrees that if at any time after the
reduction of security pursuant to this Section 42.04 (if any) Tenant shall
default more than two (2) times in any given year or more than four (4) times in
the aggregate, under this Lease, Tenant shall restore the security to Two
Million Dollars ($2,000,000). Tenant agrees that on each anniversary of the date
hereof, Tenant shall deliver to Landlord an unconditional audited financial
statement of Tenant for the prior year evidencing Tenant's tangible net worth,
prepared in accordance with GAAP, consistently applied from period to period, by
an independent certified public accounting firm acceptable to Landlord (an
"Acceptable Firm"). Landlord hereby agrees that PricewaterhouseCoopers LLP or
another so-called "Big 5" accounting firm shall be deemed acceptable to
Landlord.
42.05 In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the security shall be returned to Tenant within thirty (30) days after
the date fixed as the end of the Lease and after delivery of entire possession
of the demised premises to Landlord. In the event of a sale of the Land and
Building or leasing of the Building, Landlord shall have the right to transfer
any interest it may have in the Security Letter to the vendee or lessee and
Landlord shall thereupon be released by Tenant from all liability for the return
of such Security Letter, provided such vendee or lessee assumes any
responsibilities of Landlord with respect to such Security Letter, and Tenant
agrees to look solely to the new landlord for the return of said Security
Letter; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Letter to a new landlord. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. In the event of a sale of the
Building Landlord shall have the right to require Tenant to deliver a
replacement Security Letter naming the new landlord as beneficiary and, if
Tenant shall fail to timely deliver the same, to draw down the existing Security
Letter and retain the proceeds as security hereunder until a replacement
Security Letter is delivered.
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ARTICLE 43
PARTNERSHIP
43.01 If Tenant is a partnership, the liability of each of
the partners comprising the partnership Tenant shall be joint and several. The
technical dissolution of Tenant by reason of the death, retirement, resignation,
bankruptcy or adjudication of incompetency of one or more partners, shall not
affect this Lease or the liability thereunder of the partners, and Tenant agrees
that the partnership shall nevertheless continue as Tenant with respect to the
remaining partners. Similarly, a merger or consolidation with another firm shall
not be deemed a sublease or assignment or a violation of the provisions of this
Lease.
43.02 Upon execution of this Lease by Landlord and Tenant
shall promptly deliver to Landlord a list of the names and residence addresses
of all existing partners comprising the partnership Tenant. In the event Tenant
admits any new partners, Tenant agrees, within thirty (30) days thereafter, to
give notice to Landlord of that fact and of the name and residence address of
each new partner, together with such reasonable proof as Landlord shall require
that all of such new partners have in writing assumed performance of Tenant's
obligations under this Lease.
43.03 In the event of a merger or consolidation, Tenant
agrees, within thirty (30) days thereafter, to give notice to Landlord of that
fact and all of the names and residence addresses of the partners of the merged
or consolidated firm, together with such reasonable proof as Landlord shall
require that all of such partners have in writing assumed performance of
Tenant's obligations under this Lease.
ARTICLE 44
SUBLEASE
44.01 Notwithstanding anything to the contrary contained
herein, Tenant acknowledges that this Lease is a sublease of the demised
premises and is subject and subordinate to all of the terms, covenants,
conditions, agreements and provisions in the lease dated May 1, 1957 between
Prudential Insurance Company of America, as landlord and Landlord's
predecessor-in-interest, as tenant, and in the sublease dated June 27, 1958
between 000-000 Xxxxxxx Xxxxxx Associates, as sublessor and Landlord's
predecessor-in-interest (such lease and sublease as the same has been amended
and assigned are hereinafter severally
65
and collectively called the "Superior Documents"). Landlord warrants and
represents that nothing in the Superior Documents prohibits the making of this
Lease or the terms thereof and that the Superior Documents are in full force and
effect.
44.02 Landlord and Tenant agree that the leasehold estate
created by this Lease shall not merge with any other estate held by Landlord or
an affiliate of Landlord in the property of which the demised premises form a
part or any other interest of Landlord in the demised premises and the Building,
unless Landlord shall expressly elect to have such estates merge.
ARTICLE 45
FAILURE TO GIVE POSSESSION
45.01 (a) Notwithstanding anything to the contrary
contained in this Lease, Tenant acknowledges that it has been advised by
Landlord that certain portions of the demised premises initially demised to
Tenant hereunder which are designated "Occupied" on Exhibit A-1 annexed hereto
(such space is hereinafter called "Occupied Space") are currently under lease
and/or occupied by tenants. For purposes of this Lease, (i) the Occupied Space
shall be deemed to be comprised of 7,171 rentable square feet and (ii) Tenant's
Proportionate Share allocable to the Occupied Space shall be deemed to be one
and eighteen hundredths percent (1.18%). Tenant agrees that the term of this
Lease shall commence on the date hereof notwithstanding Landlord's inability to
deliver to Tenant on the Commencement Date vacant possession of the Occupied
Premises. Except as otherwise expressly set forth in this Lease, Tenant shall
have no claim against Landlord, and Landlord shall have no liability to Tenant
by reason of the delivery of possession of the Occupied Space to Tenant after
the Commencement Date. The parties hereto further agree that the failure to have
the Occupied Space available for occupancy by Tenant on the Commencement Date
shall in no way affect the obligations of Tenant hereunder except as hereinafter
expressly set forth, nor shall the same be construed in any way to extend the
term of this Lease. Landlord agrees to use reasonable efforts to obtain
possession of the Occupied Space, including, without limitation, where
applicable, the institution and diligent prosecution of holdover proceedings, in
the event of a holdover. This Section 45.01 shall be deemed to be an express
provision to the contrary of Section 223-a of the Real Property Law of the State
of New York and any other law of like import now or hereafter in force.
(b) If Landlord shall not have delivered vacant
possession of the Occupied Space to Tenant on or before January 1, 2001 with all
of the Landlord's
66
work specified in Section 2.01 completed, then Tenant shall, as its sole remedy
therefor, have the right exercisable by February 1, 2001 (TIME BEING OF THE
ESSENCE) to surrender and terminate any rights it then or hereinafter may have
in and to the Occupied Space, as herein provided, by written notice (the
"Occupied Space Notice") to Landlord. If Tenant fails to send the Occupied Space
Notice to Landlord on or before February 1, 2001, Tenant shall no longer have a
right to surrender and terminate its rights in and to the Occupied Space. If
Tenant shall send the Occupied Space Notice prior to February 1, 2001, then
Landlord shall have no further rights to include the Occupied Space as the
demised premises under this Lease and this Lease shall, without further action
on the part of either party hereto, be deemed appropriately modified and the
fixed rent and additional rent shall be appropriately adjusted; except that,
upon request of either party hereto, the parties shall execute and deliver an
amendment to this Lease memorializing the foregoing.
(c) There shall be no fixed rent or additional
rent payable with respect to any portion of the Occupied Space until the later
of (i) November 1, 2000, or (ii) the date which is three (3) months after the
date such portion of such Occupied Space shall be delivered to Tenant vacant
with the items of Landlord's Work specified in Section 2.01 completed.
45.02 Without limiting anything contained in Section 45.01
above, if the demised premises shall not be available for occupancy by Tenant on
the date hereinbefore designated for the commencement of the term of this Lease
or if any additional space to be included within the demised premises shall not
be available for occupancy by Tenant on the date hereinafter designated for the
inclusion of such space for any reason whatsoever, then this Lease shall not be
affected thereby but, in such case, said specific date shall be deemed to be
postponed until the date when the demised premises or such additional space
shall be available for occupancy by Tenant, and Tenant shall not be entitled to
possession of the demised premises or such additional space until the same are
available for occupancy by Tenant, provided, however, that Tenant shall have no
claim against Landlord, and Landlord shall have no liability to Tenant by reason
of any such postponement of said specific date, and the parties hereto further
agree that any failure to have the demised premises or such additional space
available for occupancy by Tenant on said specific date or on the Commencement
Date shall in no wise affect the obligations of Tenant hereunder nor shall the
same be construed in any wise to extend the term of this Lease unless
specifically provided to the contrary herein and furthermore, this Section 45.02
shall be deemed to be an express provision to the contrary of Section 223-a of
the Real Property Law of the State of New York and any other law of like import
now or hereafter in force. Notwithstanding the foregoing, Landlord shall,
subject to force majeure, deliver possession of the entirety of the demised
premises, except the Occupied Space, on the date hereof.
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ARTICLE 46
INTENTIONALLY OMITTED
ARTICLE 47
FIRST OFFERING SPACE
47.01 (a) For purposes of this Lease, the term "First
Offering Space A" shall mean a portion of the seventeenth (17th) floor of the
Building as shown hatched on the plan annexed hereto as Exhibit E-1; the term
"First Offering Space B" shall mean the entire sixteenth (16th) floor of the
Building as shown on the plan annexed hereto as Exhibit E-2; and the term "First
Offering Space C" shall mean a portion of the eighteenth (18th) floor of the
Building as shown hatched on the plan annexed hereto as Exhibit E-3.
(b) Provided (i) Tenant is not, and has not been
in default beyond any applicable notice and cure periods under the terms and
conditions of this Lease either as of the date of the giving of "Tenant's First
Notice A" or the "First Offering Space A Inclusion Date" (as such terms are
hereinafter defined) and (ii) as of either the date of the giving of Tenant's'
First Notice A or the First Offering Space A Inclusion Date, the Tenant is in
actual occupancy of not less than one hundred percent (100%) of the demised
premises, if at any time during the term of this Lease Landlord anticipates that
First Offering Space A shall become available for leasing within the following
twelve (12) months to anyone other than a "Superior Occupant" as that term is
hereinafter defined), then Landlord, before leasing such First Offering Space A
to anyone other than a Superior Occupant, shall offer to Tenant, subject to the
provisions of this Article 47, the right to include First Offering Space A
within the demised premises upon all the terms and conditions of this Lease
(including the provisions of Article 3 with the base year periods specified
therein but excluding Articles 2 and 50 hereof), except that:
(i) the fixed annual rent with respect to the
First Offering Space A shall be at the higher of (x) the fair market
rent for the First Offering Space A, which shall be determined by
Landlord as of the date occurring thirty (30) days prior to the First
Offering Space A Inclusion Date (as such term is hereinafter defined)
taking into account all then relevant factors and shall be set forth in
a written notice to Tenant, or (y) the product obtained by multiplying
(A) the monthly amount of fixed annual rent (determined on a rentable
square foot basis) for the last full calendar month prior to the First
Offering Space A Inclusion Date (as hereinafter defined) computed on an
annualized basis without giving effect to any abatement,
68
credit or offset in effect, by (B) 12, and by (C) the amount of
rentable square feet included within the First Offering Space A
(hereinafter called the "First Offering Space A Escalated Rent");
(ii) effective as of the First Offering Space A
Inclusion Date for purposes of calculating the additional rent payable
pursuant to Article 3 allocable to the First Offering Space A, Tenant's
Proportionate Share shall be increased by a fraction, expressed as a
percentage, the numerator of which shall be the number of rentable
square feet included within the First Offering Space A, and the
denominator of which shall be 605,574;
(iii) the term "Wage Rate Multiple" shall be
increased by the number of rentable square feet of the First Offering
Space A; and
(iv) the security required to be maintained
pursuant to Article 42 hereof shall be increased by an amount equal to
the fixed annual rent for the First Offering Space A.
For the purposes of this Section 47.01(b), the term "Tenant" shall mean either
the Tenant on the date hereof or such other entity becoming an occupant
hereunder pursuant to either Section 11.02 or 11.10 above.
(c) Such offer shall be made by Landlord to
Tenant in a written notice (hereinafter called the "First Offer Notice A") which
offer shall specify the fixed annual rent payable with respect to the First
Offering Space A, determined in accordance with the provisions of subsection (b)
hereof.
(d) Tenant may accept the offer set forth in the
First Offer Notice A by delivering to Landlord an unconditional acceptance
(hereinafter called "Tenant's First Notice A") of such offer within ten (10)
Business Days after delivery by Landlord of the First Offer Notice A to Tenant.
Such First Offering Space A shall be added to and included in the demised
premises on the later to occur (herein called the "First Offering Space A
Inclusion Date") of (i) the day that Tenant exercises its option as aforesaid,
or (ii) the date such First Offering Space A shall become available for Tenant's
possession. Time shall be of the essence with respect to the giving of Tenant's
First Notice.
(e) If Tenant does not accept (or fails to
timely accept) an offer made by Landlord pursuant to the provisions of this
Article 47 with respect to all or any portion of the First Offering Space A, (i)
Tenant shall have no further right under this Article 47 to lease all or any
part of the First Offering Space A, and (ii) Landlord shall have no further
obligations under this Article 47, which shall be deemed null and void.
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47.02 (a) Provided (i) Tenant is not, and has not been
in default beyond applicable notice and cure periods under the terms and
conditions of this Lease either as of the date of the giving of "Tenant's First
Notice B" or the "First Offering Space B Inclusion Date" (as such terms are
hereinafter defined) and (ii) as of either the date of the giving of Tenant's,
First Notice B or the First Offering Space B Inclusion Date, the Tenant is in
actual occupancy of not less than one, hundred percent (100%) of the demised
premises, if at any time during the term of this Lease Landlord anticipates that
all or a portion of the First Offering Space B shall become available for
leasing within the following twelve (12) months to anyone other than a "Superior
Occupant" as that term is hereinafter defined), then Landlord, before leasing
such First Offering Space B to anyone other than a Superior Occupant, shall
offer to Tenant, subject to the provisions of this Article 47, the right to
include all or a portion of (at Landlord's option) First Offering Space B within
the demised premises upon all the terms and conditions of this Lease (including
the provisions of Article 3 with the base year periods specified therein but
excluding Articles 2 and 50 hereof), except that:
(i) the fixed annual rent with respect to the
First Offering Space B shall be at the higher of (x) the fair market
rent for the First Offering Space B, which shall be determined by
Landlord as of the date occurring thirty (30) days prior to the First
Offering Space B Inclusion Date (as such term is hereinafter defined)
taking into account all then relevant factors and shall be set forth in
a written notice to Tenant, or (y) the product obtained by multiplying
(A) the monthly amount of fixed annual rent (determined on a rentable
square foot basis) for the last full calendar month prior to the First
Offering Space B Inclusion Date (as hereinafter defined) computed on an
annualized basis without giving effect to any abatement, credit or
offset in effect, by (B) 12, and by (C) the amount of rentable square
feet included within the First Offering Space (hereinafter called the
"First Offering Space B Escalated Rent");
(ii) effective as of the First Offering Space B
Inclusion Date for purposes of calculating the additional rent payable
pursuant to Article 3 allocable to the First Offering Space B, Tenant's
Proportionate Share shall be increased by a fraction, expressed as a
percentage, the numerator of which shall be the number of rentable
square feet included within the First Offering Space B, and the
denominator of which shall be 605,574;
(iii) the term "Wage Rate Multiple" shall be
increased by the number of rentable square feet of the First Offering
Space B; and
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(iv) the security required to be maintained
pursuant to Article 42 hereof shall be increased by an amount equal to
the fixed annual rent for the First Offering Space B.
For the purposes of this Section 47.02(a); the term "Tenant" shall mean either
the Tenant on the date hereof or such other entity becoming an occupant
hereunder pursuant to either Section 11.02 or 11.10 above.
(b) Such offer shall be made by Landlord to
Tenant in a written notice (hereinafter called the "First Offer Notice B") which
offer shall specify the fixed annual rent payable with respect to the First
Offering Space B, determined in accordance with the provisions of subsection (i)
hereof.
(c) Tenant may accept the offer set forth in the
First Offer Notice B by delivering to Landlord an unconditional acceptance
(hereinafter called "Tenant's First Notice B") of such offer within ten (10)
Business Days after delivery by Landlord of the First Offer Notice B to Tenant.
Such First Offering Space B shall be added to and included in the demised
premises on the later to occur (herein called the "First Offering Space B
Inclusion Date") of (i) the day that Tenant exercises its option as aforesaid,
or (ii) the date such First Offering Space B shall become available for Tenant's
possession. Time shall be of the essence with respect to the giving of Tenant's
First Notice B.
(d) If Tenant does not accept (or fails to
timely accept) an offer made by Landlord pursuant to the provisions of this
Article 47 with respect to all or any portion of the First Offering Space B, (i)
Tenant shall have no further right under this Article 47 to lease all or any
part of the First Offering Space B, and (ii) Landlord shall have no further
obligations under this Article 47, which shall be deemed null and void.
47.03 (a) Provided (i) Tenant is not, and has not been
in default beyond applicable notice and cure periods under the terms and
conditions of this Lease either as of the date of the giving of "Tenant's First
Notice C" or the "First Offering Space C Inclusion Date" (as such terms are
hereinafter defined) and (ii) as of either the date of the giving of Tenant's
First Notice C or the First Offering Space C Inclusion Date, the Tenant is in
actual occupancy of not less than one hundred percent (100%) of the demised
premises, if at any time during the term of this Lease Landlord anticipates that
First Offering Space C shall become available for leasing within the following
twelve (12) months to anyone other than a "Superior Occupant" as that term is
hereinafter defined), then Landlord, before leasing such First Offering Space C
to anyone other than a Superior Occupant, shall offer to Tenant, subject to the
provisions of this Article 47, the right to include First Offering Space C
within the demised premises upon all the terms and conditions of this
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Lease (including the provisions of Article 3 with the base year periods
specified therein but excluding Articles 2 and 50 hereof), except that:
(i) the fixed annual rent with respect to the
First Offering Space C shall be at the higher of (x) the fair market
rent for the First Offering Space C, which shall be determined by
Landlord as of the date occurring thirty (30) days prior to the First
Offering Space C Inclusion Date (as such term is hereinafter defined)
taking into account all then relevant factors and shall be set forth in
a written notice to Tenant, or (y) the product obtained by multiplying
(A) the monthly amount of fixed annual rent (determined on a rentable
square foot basis) for the last full calendar month prior to the First
Offering Space C Inclusion Date (as hereinafter defined) computed on an
annualized basis without giving effect to any abatement, credit or
offset in effect, by (B) 12, and by (C) the amount of rentable square
feet included within the First Offering Space (hereinafter called the
"First Offering Space C Escalated Rent");
(ii) effective as of the First Offering Space C
Inclusion Date for purposes of calculating the additional rent payable
pursuant to Article 3 allocable to the First Offering Space C, Tenant's
Proportionate Share shall be increased by a fraction, expressed as a
percentage, the numerator of which shall be the number of rentable
square feet included within the First Offering Space B, and the
denominator of which shall be 605,574;
(iii) the term "Wage Rate Multiple" shall be
increased by the number of rentable square feet of the First Offering
Space C; and
(iv) the security required to be maintained
pursuant to Article 42 hereof shall be increased by an amount equal to
the fixed annual rent for the First Offering Space C.
For the purposes of this Section 47.03(a), the term "Tenant" shall mean either
the Tenant on the date hereof or such other entity becoming an occupant
hereunder pursuant to either Section 11.02 or 11.10 above.
(b) Such offer shall be made by Landlord to
Tenant in a written notice (hereinafter called the "First Offer Notice C") which
offer shall specify the fixed annual rent payable with respect to the First
Offering Space C, determined in accordance with the provisions of subsection (i)
hereof.
(c) Tenant may accept the offer set forth in the
First Offer Notice C by delivering to Landlord an unconditional acceptance
(hereinafter called "Tenant's First Notice C") of such offer within ten (10)
Business Days after
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delivery by Landlord of the First Offer Notice C to Tenant. Such First Offering
Space C shall be added to and included in the demised premises on the later to
occur (herein called the "First Offering Space C Inclusion Date") of (i) the day
that Tenant exercises its option as aforesaid, or (ii) the date such First
Offering Space C shall become available for Tenant's possession. Time shall be
of the essence with respect to the giving of Tenant's First Notice C.
(d) If Tenant does not accept (or fails to
timely accept) an offer made by Landlord pursuant to the provisions of this
Article 47 with respect to all or any portion of the First Offering Space C, (i)
Tenant shall have no further right under this Article 47 to lease all or any
part of the First Offering Space C, and (ii) Landlord shall have no further
obligations under this Article 47, which shall be deemed null and void.
47.04 In the event that Tenant disputes the amount of the
fair market rent specified in the First Offer Notice A and/or First Offer Notice
B and/or First Offer Notice C, as applicable, then at any time on or before the
date occurring ten (10) Business Days after Tenant has received the First Offer
Notice A and/or First Offer Notice B and/or First Offer Notice C, as applicable,
and provided that Tenant shall have given Tenant's First Notice A and/or
Tenant's First Notice B and/or Tenant's First Notice C, as applicable, Tenant
may initiate the arbitration process provided for herein by giving notice to
that effect to Landlord, and, if Tenant so initiates the arbitration process,
such notice shall specify the name and address of the person designated to act
as an arbitrator on its behalf. Within ten (10) Business Days after the
Landlord's receipt of notice of the designation of Tenant's arbitrator, Landlord
shall give notice to Tenant specifying the name and address of the person
designated to act as an arbitrator on its behalf. If Landlord fails to notify
Tenant of the appointment of its arbitrator within the time above specified,
then Tenant shall provide an additional notice to Landlord requiring Landlord's
appointment of an arbitrator within two (2) Business Days after Landlord's
receipt thereof. If Landlord fails to notify Tenant of the appointment of its
arbitrator within the time specified by the second notice, the appointment of
the second arbitrator shall be made in the same manner as hereinafter provided
for the appointment of a third arbitrator in a case where the two arbitrators
appointed hereunder and the parties are unable to agree upon such appointment.
The two arbitrators so chosen shall meet within ten (10) Business Days after the
second arbitrator is appointed, and if, within fifteen (15) Business Days after
the second arbitrator is appointed, the two arbitrators shall not agree upon a
determination of the fair market rent for the First Offering Space A and/or
First Offering Space B and/or First Offering Space C, as applicable, they shall
together appoint a third arbitrator. In the event of their being unable to agree
upon such appointment within ten (10) Business Days after the appointment of the
second arbitrator, the third arbitrator shall be selected by the parties
themselves if they can agree thereon within a further period of five (5)
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Business Days. If the parties do not so agree, then either party, on behalf of
both and on notice to the other, may request such appointment by the American
Arbitration Association (or any organization successor thereto) in accordance
with its rules then prevailing or if the American Arbitration Association (or
such successor organization) shall fail to appoint said third arbitrator within
five (5) Business Days after such request is made, then either party may apply,
on notice to the other, to the Supreme Court, New York County, New York (or any
other court having jurisdiction and exercising functions similar to those now
exercised by said Court) for the appointment of such third arbitrator. The third
arbitrator shall determine the fair market rent for the First Offering Space A
and/or First Offering Space B and/or First Offering Space C, as applicable, and
render a written certified report of its determination to both Landlord and
Tenant within fifteen (15) Business Days of the appointment of the first two
arbitrators or fifteen (15) Business Days from the appointment of the third
arbitrator if such third arbitrator is appointed pursuant to this Section 47.04,
and the determination of Landlord's or Tenant's arbitrator which is closest to
the determination of the third arbitrator, shall be applied to determine as
above provided, however, in no event shall the fixed annual rent with respect to
the First Offering Space A and/or First Offering Space B and/or First Offering
Space C, as applicable, be less than the First Offering Space A Escalated Rent
and/or First Offering Space B Escalated Rent and/or First Offering Space C
Escalated Rent, as applicable.
(a) Each party shall pay the fees and expenses
of the one of the two original arbitrators appointed by or for such party, and
the fees and expenses of the third arbitrator and all other expenses (not
including the attorneys' fees, witness fees and similar expenses of the parties
which shall be borne separately by each of the parties) of the arbitration shall
be borne by the parties equally.
(b) Each of the arbitrators selected as herein
provided shall have at least ten (10) years' experience in the leasing and
renting of office space in Midtown Manhattan.
(c) If Tenant fails to initiate the arbitration
process within the aforesaid ten (10) Business Day period, time being of the
essence, then Landlord's determination of the fixed annual rent set forth in the
First Offer Notice A and/or First Offer Notice B and/or First Offer Notice C, as
applicable, shall be conclusive. In the event Landlord notifies Tenant that the
fixed annual rent for the First Offering Space A and/or First Offering Space B
and/or First Offering Space C, as applicable, shall be the First Offering Space
A Escalated Rent and/or First Offering Space B Escalated Rent and/or First
Offering Space C Escalated Rent, as applicable, then the provisions of this
Section 47.04 shall be inapplicable.
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(d) In the event the Tenant initiates the
aforesaid arbitration process and, as of the First Offering Space A Inclusion
Date and/or First Offering Space B Inclusion Date and/or First Offering Space C
Inclusion Date, as applicable, the amount of the fair market rent has not been
determined, Tenant shall pay the amount determined by Landlord to be the fair
market rent for the First Offering Space A and/or First Offering Space B and/or
First Offering Space C, as applicable, and when the determination has actually
been made, an appropriate retroactive adjustment shall be made as of the First
Offering Space A Inclusion Date and/or First Offering Space B Inclusion Date
and/or First Offering Space C Inclusion Date, as applicable.
(e) The provisions of this Article 47 shall be
effective only if, on the date on which Tenant accepts possession of the First
Offering Space A and/or First Offering Space B and/or First Offering Space C, as
applicable, the Tenant is in actual occupancy of the entire demised premises.
For the purposes of this Section 47.04(e), the term "Tenant" shall mean either
the Tenant on the date hereof or such other entity becoming an occupant herewith
pursuant to either Section 11.02 or 11.10 above.
(f) Tenant agrees to accept the First Offering
Space A and/or First Offering Space B and/or First Offering Space C, as
applicable, in its condition and state of repair existing as of the First
Offering Space A Inclusion Date and/or First Offering Space B Inclusion Date
and/or First Offering Space C Inclusion Date, as applicable, and understands and
agrees that Landlord shall not be required to perform any work, supply any
materials or incur any expense to prepare such space for Tenant's occupancy.
(g) The fixed annual rent for the First Offering
Space A and/or First Offering Space B and/or First Offering Space C, as
applicable, as determined pursuant to this Article 47 shall be subject to
periodic increases for any period during the term of this Lease for which such
fixed annual rent would otherwise be less (on a per rentable square foot basis)
than the fixed annual rent payable pursuant to Section 1.01 hereof (on a per
rentable square foot basis) for such period, so that the fixed annual rent
payable during such periods with respect to the First Offering Space A and/or
First Offering Space B and/or First Offering Space C, as applicable, shall be
equal (on a per rentable square foot basis) to the fixed annual rent payable
pursuant to Section 1.01 hereof during such periods.
47.05 The term "Superior Occupant" shall mean for the
purposes of this Article 47, any tenant of the First Offering Space A and/or
First Offering Space B and/or First Offering Space C, as applicable, or any
subsidiary or affiliate thereof or any other person or entity to which Landlord
prior to the Commencement Date, shall have granted any option, right of first
offer or other right to lease or occupy the
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First Offering Space A and/or First Offering Space B and/or First Offering Space
C, as applicable.
ARTICLE 48
EXTENSION OF TERM OPTION
48.01 (a) Subject to the provisions of subsection (k)
hereof, Tenant shall have the right to extend the term of this Lease for one (1)
additional term of five (5) years commencing on the day following the Expiration
Date (hereinafter referred to as the "Commencement Date of the Extension Term")
and ending on the last day of the calendar month in which occurs the day
preceding the fifth (5th) anniversary of the Commencement Date of the Extension
Term (such additional term is hereinafter called the "Extension Term") provided
that:
(i) Tenant shall give Landlord notice
(hereinafter called the "Extension Notice") of its election to extend
the term of this Lease at least twelve (12) months prior to the
Expiration Date, and
(ii) Tenant is not in default under this
Lease, and has not been in monetary default beyond any applicable
notice end cure periods more than two (2) times per annum or more than
four (4) times during the initial term of this Lease as of the time of
the giving of the Extension Notice and as of the Commencement Date of
the Extension Term, and
(iii) as of the time of the giving of the
Extension Notice and as of the Commencement Date of the Extension Term,
the Tenant named herein is in actual occupancy of not less than one
hundred percent (100%) of the demised premises (including any
additional space in the Building leased by Tenant after the
Commencement Date). For the purposes of this Section 48.01 (a)(iii),
the term "Tenant" shall mean either the Tenant on the date hereof or
such other entity becoming an occupant herewith pursuant to either
Section 11.02 or 11.10 above.
(b) The fixed annual rent payable by Tenant to
Landlord during the Extension Term shall be the higher of:
(i) the fair market rent for the
demised premises determined as of the date occurring six (6) months
prior to the Commencement Date of the Extension Term (such date is
hereinafter
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called the "Determination Date") taking into account all then relevant
factors and which determination shall be made within a reasonable
period of time after the occurrence of the Determination Date pursuant
to the provisions of subsection (d) hereof, or
(ii) the product obtained by multiplying
the rentable square foot area of the demised premises by the fixed
annual rent and additional rent payable by Tenant to Landlord pursuant
to Articles 1 and 3, respectively, hereof for the last month of the
initial term of this Lease on an annualized basis (including the most
recent rate of additional rent calculated on a monthly basis payable
pursuant to Article 3 hereof) with respect to the demised premises
(without giving effect to any abatements, set offs or concessions then
in effect) determined on a per rentable square foot basis.
(c) Effective as of the Commencement Date of the
Extension Term:
(i) the "Base Tax" set forth in Section
3.01 (a) hereof shall be deemed to be the product of (x) the amount for
which the Land and the Building are assessed for the purpose of
establishing the real estate taxes to be paid by Landlord for the Tax
Year ending on the June 30 immediately preceding the Determination
Date, multiplied by (y) the real estate tax rate for such Tax Year, and
(ii) the "Base Wage Rate" set forth in
Section 3.01(1) hereof shall be deemed to mean the Wage Rate in effect
on January 1st of the calendar year immediately preceding the calendar
year in which occurs the Determination Date.
(d) Landlord and Tenant shall endeavor to agree
as to the amount of the fair market rent for the demised premises pursuant to
the provisions of clause (i) of subsection (a) hereof, during the ten (10)
Business Day period following the Determination Date. In the event that Landlord
and Tenant cannot agree as to the amount of the fair market rent within such ten
(10) Business Day period following the Determination Date, then Landlord or
Tenant may initiate the arbitration process provided for herein by giving notice
to that effect to the other, and the party so initiating the appraisal process
(such party hereinafter referred to as the "Initiating Party") shall specify in
such notice the name and address of the person designated to act as an
arbitrator on its behalf. Within ten (10) Business Days after the designation of
such arbitrator, the other party (hereinafter referred to as the "Other Party")
shall give notice to the Initiating Party specifying the name and address of the
person designated to act as an arbitrator on
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its behalf. If the Other Party fails to notify the Initiating Party of the
appointment of its arbitrator within the time above specified, then the
appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree upon
such appointment. The two arbitrators so chosen shall meet within seven (7)
Business Days after the second arbitrator is appointed and if, within fifteen
(15) Business Days after the second arbitrator is appointed, the two arbitrators
shall not agree, they shall together appoint a third arbitrator. In the event of
their being unable to agree upon such appointment within (10) Business Days
after the appointment of the second arbitrator, the third arbitrator shall be
selected by the parties themselves if they can agree thereon within a further
period of seven (7) Business Days. If the parties do not so agree, then either
party, on behalf of both and on notice to the other, may request such
appointment by the American Arbitration Association (or organization successor
thereto) in accordance with its rules then prevailing or if the American
Arbitration Association (or such successor organization) shall fail to appoint
said third arbitrator within seven (7) Business Days after such request is made,
then either party may apply on notice to the other, to the Supreme Court, New
York County, New York (or any other court having jurisdiction and exercising
functions similar to those now exercised by said Court) for the appointment of
such third arbitrator.
(e) Each party shall pay the fees and expenses
of the one of the two original arbitrators appointed by or for such party, and
the fees and expenses of the third arbitrator and all other expenses (not
including the attorneys' fees, witness fees and similar expenses of the parties
which shall be borne separately by each of the parties) of the arbitration shall
be borne by the parties equally.
(f) The third arbitrator shall determine the
fair market rent of the demised premises and render a written certified report
of its determination to both Landlord and Tenant within fifteen (15) Business
Days of the appointment of the first two arbitrators or fifteen (15) Business
Days from the appointment of the third arbitrator if such third arbitrator is
appointed pursuant to subsection (d) hereof, and the determination of Landlord's
or Tenant's arbitrator which is closest to the determination of the third
arbitrator, shall be applied to determine as above provided, whether the fixed
annual rent shall be increased pursuant to clause (i) of subsection (b) hereof
for the Extension Term.
(g) Each of the arbitrators selected as herein
provided shall have at least ten (10) years' experience in the leasing and
renting of office space in first class office buildings in Midtown Manhattan,
New York County.
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(h) If Landlord notifies Tenant that the fixed
annual rent for the Extension Term shall be equal to the amount set forth in
clause (ii) of subsection (b) hereof, then the provisions of subsection (d)
hereof shall be inapplicable and have no force or effect.
(i) In the event Landlord or Tenant initiates
the appraisal process pursuant to subsection (d) hereof and as of the
Commencement Date of the Extension Term the amount of the fair market rent has
not been determined, Tenant shall pay the amount determined by Landlord to be
the fair market rent for the demised premises and when such determination has
been made, an appropriate retroactive adjustment shall be made as of the
Commencement Date of the Extension Term.
(j) Except as provided in subsections (b) and
(c) hereof, Tenant's occupancy of the demised premises during the Extension Term
shall be on the same terms and conditions as are in effect immediately prior to
the expiration of the initial term of this Lease, provided, however, Tenant
shall have no further right to extend the term of this Lease pursuant to this
Article.
(k) If Tenant does not send the Extension Notice
pursuant to provisions of subsection (a) hereof, this Article shall have no
force or effect and shall be deemed deleted from this Lease.
(l) If this Lease is renewed for the Extension
Term, then Landlord or Tenant can request the other party hereto to execute an
instrument in form for recording setting forth the exercise of Tenant's right to
extend the term of this Lease and the last day of the Extension Term.
(m) If Tenant exercises its right to extend the
term of this Lease for the Extension Term pursuant to this Article, the phrases
"the term of this Lease" or "the term hereof" as used in this Lease, shall be
construed to include, as applicable, the Extension Term.
ARTICLE 49
INTENTIONALLY OMITTED
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ARTICLE 50
LAYOUT AND FINISH; TENANT WORK CREDIT
50.01 Tenant hereby covenants and agrees that Tenant will,
at Tenant's own cost and expense, and in a good and workmanlike manner, make and
complete the work and installations in and to the demised premises set forth
below in such manner so that the demised premises will be tasteful and dignified
executive and administrative offices.
50.02 Tenant, at Tenant's expense, shall prepare a final
plan or final set of plans and specifications (which said plan or set of plans,
as the case may be, and specifications are hereinafter called the "final plan")
which shall contain complete information and dimensions necessary for the
construction and finishing of the demised premises. The final plan shall be
submitted to Landlord for Landlord's written approval which approval shall not
be unreasonably withheld or delayed with respect to work which is interior,
non-structural and does not adversely affect Building systems, the exterior of
the Building or any area of the Building outside the demised premises. Landlord
shall not be deemed unreasonable in withholding its consent to the extent that
the final plan prepared by Tenant pursuant hereto involves the performance of
work or the installation in the demised premises of materials or equipment which
do not equal or exceed the standard of quality of Building Standard
installations. Tenant shall reimburse Landlord promptly upon demand for all
actual reasonable out-of-pocket costs and expenses incurred by Landlord in
connection with Landlord's review of the final plan. Landlord agrees that it
shall respond to Tenant's request for approval of such final plan within ten
(10) Business Days after Tenant's submission thereof, and within seven (7)
Business Days after the submission of any subsequent revisions thereof, and in
the event Landlord disapproves of such final plan, Landlord shall set forth its
objections in reasonable detail (which may include by marking up the
drawing(s)).
50.03 In accordance with the final plan, Tenant, at
Tenant's expense, will make and complete in and to the demised premises the work
and installations (hereinafter called "Tenant's Work") specified in the final
plan. Tenant agrees that Tenant's Work will be performed with the least possible
disturbance to the occupants of other parts of the Building and to the
structural and mechanical parts of the Building and Tenant will, at its own cost
and expense, leave all structural and mechanical parts of the Building which
shall or may be affected by Tenant's Work in good and workmanlike operating
condition. Tenant, in performing Tenant's Work will, at its own cost and
expense, promptly comply with all laws, rules and regulations of all public
authorities having jurisdiction in the Building with reference to Tenant's Work.
If any act or omission of Tenant or its general contractor, subcontractors or
agents render the Building of which the demised premises are a part liable to
any mechanic's lien or other lien and if any such lien or liens be filed against
the Building of which the demised premises are a part, or against Tenant's Work,
or any part thereof, Tenant will, at Tenant's own cost and expense, promptly
remove the same of record within thirty (30) days after the filing of such lien
or
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liens; or in default thereof, Landlord may cause any such lien or liens to be
removed of record by payment of bond or otherwise, as Landlord may elect, and
Tenant shall reimburse Landlord for all costs and expenses incidental to the
removal of any such lien or liens incurred by Landlord. Tenant shall indemnify
and save harmless Landlord of and from all claims, counsel fees, loss, damage
and expenses whatsoever by reason of any liens, charges or payments of any kind
whatsoever that may be incurred or become chargeable against Landlord or the
Building of which the demised premises are a part, or Tenant's Work or any part
thereof, by reason of any work done or to be done or materials furnished or to
be furnished to or upon the demised premises in connection with Tenant's Work.
Tenant hereby covenants and agrees to indemnify and save harmless Landlord of
and from all claims, counsel fees, loss, damage and expenses whatsoever by
reason of any injury or damage, howsoever caused, to any person or property
occurring prior to the completion of Tenant's Work or occurring after such
completion, as a result of anything done or omitted in connection therewith or
arising out of any fine, penalty or imposition or out of any other matter or
thing connected with any work done or to be done or materials furnished or to be
furnished in connection with Tenant's Work. At any and all times during the
progress of Tenant's Work, Landlord shall be entitled to have a representative
or representatives on the site to inspect Tenant's Work and such representative
or representatives shall have free and unrestricted access to any and every part
of the demised premises upon reasonable notice and provided such access shall
not unduly disrupt Tenant's Work. Tenant shall advise Landlord in writing of
Tenant's general contractor who are to do Tenant's Work, and such general
contractor shall be subject to Landlord's prior written approval which approval
shall not be unreasonable withheld or delayed; such contractor shall, to the
extent permitted by law, use subcontractors and employees for Tenant's Work who
will work harmoniously with other employees on the job. Landlord hereby approves
the following contractors for Tenant's Work: (i) Xxxxxxx; (ii) XxXxxx; (iii)
Xxxxxxx; (iv) Xxxx; (v) Xxxxxx; (vi) Bovis; (vii) MBI or (viii) Anchor.
Notwithstanding the foregoing, Tenant shall use the life safety system
subcontractor designated by Landlord to perform any work to connect Tenant's
installations to the Building's life safety system, provided the charge for such
services shall be a commercially reasonable amount.
50.04 Tenant shall, at Tenant's sole cost and expense, file
all necessary architectural plans and obtain all necessary approvals and permits
in connection with Tenant's Work being performed by it pursuant to this Article
50. Tenant shall submit to Landlord Tenant's final plans for Landlord's review
no later than July 15, 2000.
50.05 The following conditions shall also apply to Tenant's
Work:
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(i) all Tenant's Work shall be of good material,
manufacture, design, capacity, quality and color at least equal to the
reasonable standard adopted by Landlord for the Building (hereinafter
called "Building Standard");
(ii) Tenant, at Tenant's expense, shall (i) file
all required architectural, mechanical and electrical drawings and
obtain all necessary permits, and (ii) furnish and perform all
engineering and engineering drawings in connection with Tenant's Work.
Tenant shall obtain Landlord's approval of the drawings referred to in
(i) and (ii) hereof, which approval shall not be unreasonably withheld
or delayed, in accordance with the terms of Section 50.02 herein;
(iii) Tenant shall use an engineer reasonably
approved by Landlord with respect to the preparation of Tenant's
engineering drawings for Tenant's Work, which approval shall not be
unreasonably withheld or delayed;
(iv) All of the provisions of Articles 6 and 8
hereof shall apply to Tenant's performance of Tenant's Work; and
(v) Tenant's Work (for space initially delivered
hereunder, as opposed to the Occupied Space) shall be completed no
later than December 31, 2000 subject to delays beyond Tenant's control.
50.06 Tenant agrees to install the Units (as defined in
Section 21.05) as part of Tenant's Work and to perform all work necessary to
upgrade the restrooms on the seventeenth (17th) and eighteenth (18th) floors of
the demised premises in compliance with the Building standards, with Local Law
58 and with the Americans with Disabilities Act of 1990 (collectively "Credit
Work"). Landlord shall allow Tenant a credit not to exceed the amount of Three
Hundred Forty-Five Thousand One Hundred Twenty-Eight Dollars ($345,128.00)
(hereinafter called the "Work Credit"), which credit shall be applied solely
against the cost and expense incurred in connection with the Credit Work.
Notwithstanding anything contained in this Lease to the contrary, up to ten
percent (10%) of the Work Credit may be used for architectural, engineering,
space planning, expediter and inspection fees, fees for all municipal and other
permits, licenses and approvals and fees, directly relating to Credit Work (as
opposed to being related to furniture, furnishings or other non "hard cost"
items). In the event that the cost and expense of the Credit Work shall exceed
the amount of the Work Credit, Tenant shall be entirely responsible for such
excess. In the event that the cost and expense of Credit Work shall be less than
the amount of the Work Credit, then the amount of the Work Credit shall be
reduced accordingly.
50.07 Landlord shall allow Tenant a credit not to exceed
the amount of One Million Seven Hundred Twenty-Five Thousand Six Hundred Forty
Dollars
82
($1,725,640.00) (hereinafter called the "Tenant's Work Credit"), which credit
shall be applied solely against the cost and expense incurred in performing
Tenant's Work other than the Credit Work. Notwithstanding anything contained in
this Lease to the contrary, up to ten percent (10%) of Tenant's Work Credit may
be used for architectural, engineering, space planning, expediter and inspection
fees, fees for all municipal and other permits, licenses and approvals and fees,
directly relating to Tenant's Work (as opposed to being related to furniture,
furnishings or other non "hard cost" items). In the event that the cost and
expense of the Tenant's Work (exclusive of the Credit Work) shall exceed the
amount of Tenant's Work Credit, Tenant shall be entirely responsible for such
excess. In the event that the cost and expense of Tenant's Work (exclusive of
the Credit Work) shall be less than the amount of Tenant's Work Credit, then the
amount of Tenant's Work Credit shall be reduced accordingly.
50.08 (a) Provided Tenant shall not be in default
under the terms of this Lease beyond applicable notice and cure periods,
Landlord hereby agrees to make periodic payments of up to ninety percent (90%)
of the Tenant's Work Credit and/or Work Credit shall be paid to Tenant as
Tenant's Work and Credit Work progresses, in accordance with the terms and
conditions hereinafter set forth (the "Work Payment Conditions") in this
subsection (a). Tenant shall submit to Landlord from time to time, but not more
often than once per month with respect to Tenant's Work or the Credit Work,
requisitions (herein referred to as "Tenant's Request") for such periodic
payment with respect to the portion(s) of Tenant's Work and Credit Work
performed subsequent to the immediately preceding Tenant's Request (if any),
together with the following:
(i) copies of invoices from the contractors and
subcontractors who performed the portions of Tenant's Work and Credit
Work referred to in such Tenant's Request, and from the materialmen and
suppliers who supplied the materials and supplies referred to in such
Tenant's Request;
(ii) a certificate from Tenant's architect or
general contractor or construction manager that (1) such portion of the
Tenant's Work and Credit Work has been substantially completed in
accordance with the final plan and revisions thereto theretofore
approved by Landlord; and (2) there are no uncured violations of record
as a result of such portion of the Tenant's Work and Credit Work; and
(iii) lien waivers from Tenant's general
contractor and construction manager, and each major (for purposes
hereof, a contract amount in excess of $10,000.00) subcontractor,
materialman and supplier to the extent of the amount paid to such
parties through the requisition preceding such Tenant's Request.
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Promptly following any Tenant's Request together with the aforesaid
accompanying documentation, Landlord shall have the right to enter the demised
premises for the purpose of reasonably verifying that such portion of Tenant's
Work and Credit Work covered by Tenant's Request has been performed
substantially in accordance with the Tenant's Plans and revisions thereto
theretofore approved by Landlord, provided Landlord shall respond to Tenant's
revisions to Tenant's Plans within ten (10) Business Days of receipt thereof. If
the Work Payment Conditions have been satisfied, then within thirty (30) days
after Landlord's receipt of Tenant's Request, together with the accompanying
documentation, Landlord shall pay to Tenant the amount shown on the "Current
Payment Due" on the Tenant's Request. The balance of the Tenant's Work Credit
and/or Work Credit, if any, after the completion of Tenant's Work and Credit
Work, shall be paid to Tenant in accordance with the terms and conditions set
forth in paragraph (b) below.
(b) Subject to the provisions of this Section,
Landlord hereby agrees to pay the balance of the Tenant's Work Credit and/or
Work Credit, in accordance with the terms and conditions hereinafter in this
subsection (b) (the "Final Work Payment Conditions"). After the completion of
the Tenant's Work and Credit Work, Tenant shall submit to Landlord a requisition
(herein referred to as the "Final Request") for the balance of the Tenant's Work
Credit and/or Work Credit, together with the following:
(i) a certificate from Tenant's architect or
general contractor or construction manager that (1) all Tenant's Work
and Credit Work has been completed in substantial accordance with the
final plans and revisions thereto theretofore approved by Landlord; (2)
there are no uncured violations of record, as a result of any of the
Tenant's Work; and all Tenant's Work and Credit Work has been paid for
in full;
(ii) a general release and lien waivers from
Tenant's general contractor, and each major (for purposes hereof, a
contract amount in excess of $10,000.00) subcontractor, materialman and
supplier and any other lien waiver Tenant has received in connection
with Tenant's Work and Credit Work;
(iii) copies of all Xxx Xxxx Xxxx Xxxxxxxx
Xxxxxxxxxx xxx Xxx Xxxx Xxxx Fire Department sign-offs, inspection
certificates and/or self-certifications by Tenant's subcontractors
and/or any permits required to be issued by any governmental entity
having jurisdiction thereover to the extent required to permit the
lawful occupancy of the demised premises by Tenant; and
(iv) two (2) copies of CAD "as built" plans of
the demised premises, together with the final plan as finally approved
by Landlord and filed with the New York City Department of Buildings,
legibly marked with all field changes
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made during the performance of Tenant's Work and Credit Work (other than de
minimis changes) and certified by Tenant's architect as containing all such
field changes.
(c) Promptly following the Final Request
together with the aforesaid accompanying documentation, Landlord shall have the
right to enter the demised premises for the purpose of reasonably verifying that
all of the Tenant's Work and Credit Work has been completed and performed
substantially in accordance with the final plan and revisions thereto
theretofore approved by Landlord, provided Landlord shall respond to Tenant's
revisions to Tenant's Plans within ten (10) Business Days of receipt thereof. If
the Final Work Payment Conditions have been satisfied, then within thirty (30)
days after Landlord's receipt of the Final Request together with the
accompanying documentation, Landlord shall pay to Tenant the balance of the
Tenant's Work Credit and/or Work Credit.
50.09 Tenant acknowledges that as of the date hereof there
are separate Class E systems and sprinkler risers for the Building and for that
certain building known and located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(the "512 Building"). Tenant further acknowledges that during the term of this
Lease, Landlord in its sole election, may combine the lobbies of the Building
and the 512 Building into a single lobby in a location to be selected by
Landlord, in its sole discretion, and unify the Class E systems for the
Building. In the event Landlord shall elect to combine the lobbies of the
Building and the 512 Building and unify the Class E systems, then Tenant shall,
at Landlord's cost and expense make all necessary modifications and install all
necessary devices within the demised premises to comply with applicable laws and
regulations. Landlord agrees to use reasonable efforts to the extent practicable
to perform the alterations permitted under this Section 50.10 in a manner so as
to not unreasonably interfere with the conduct of Tenant's business in the
demised premises, provided that Landlord shall not be required to effect the
same on an overtime or premium-pay basis.
ARTICLE 51
TENANT'S AND LANDLORD'S REPRESENTATIONS
51.01 (a) Tenant represents that is a duly formed
corporation in good standing and has all power and authority required to
execute, deliver and perform the obligations under this Lease.
(b) Tenant's execution, delivery and performance
of this Lease have been duly authorized by all necessary action.
85
51.02 (a) Landlord represents that is a duly formed
limited partnership in good standing and has all power and authority required to
execute, deliver and perform the obligations under this Lease.
(b) Landlord's execution, delivery and
performance of this Lease have been duly authorized by all necessary action.
(c) Landlord owns the leasehold interest in the
Land and Building.
ARTICLE 52
SATELLITE DISH INSTALLATION
52.01 For the period (the "Dish Term") commencing on the
Commencement Date and ending on the last day of the term of this Lease, Tenant
shall have the right, in accordance with, and subject to, the provisions of this
Article, to install, maintain, repair, use and operate on the roof of the
Building, at its sole cost and expense one (1) satellite dish up to eighteen
(18) inches in diameter (which dish shall be used for receiving and transmitting
for the sole use of Tenant) and support equipment (such satellite dish and
support equipment being hereinafter collectively referred to as the
"Equipment"), which Equipment shall be cabled to the demised premises through a
riser reasonably designated by Landlord and shall not penetrate the roof of the
Building, for the exclusive use by Tenant, subject to all of the applicable
terms, covenants and provisions of this Lease, and subject to Landlord's prior
written approval (which approval shall not be unreasonably withheld or delayed)
including, without limitation, approval as to location, which approval shall
also be required for modifications to the same. In connection with such
installation, maintenance, repair, use and operation (collectively, the "Dish
Permitted Uses"), Tenant shall comply with all laws, ordinances, orders, rules,
regulations and requirements of all governmental and quasi-governmental
authorities having jurisdiction of or over the installation, maintenance,
repair, use, operation or removal of the Equipment, or the use of the Roof Space
(as hereinafter defined) or any other portion of the Building (collectively,
"Dish Laws"), regardless of whether such compliance requires, at any time during
the Dish Term, the making of alterations to the Building (which alterations may
only be made in accordance with, and subject to, the applicable provisions of
this Article) or other expenditures, whether foreseen or unforeseen, ordinary or
extraordinary. Tenant shall procure, maintain and pay for all permits,
certificates, consents, authorizations and licenses required therefor, including
all renewals thereof (collectively, "Dish Permits"). All reasonable costs and
expenses paid or incurred by or on behalf of Landlord in connection with the
86
Equipment, the Installation (as hereinafter defined) and the Dish Permitted
Uses, shall be reimbursed to Landlord, from time to time, within thirty (30)
days after Landlord gives to Tenant Landlord's invoice therefor, together with
reasonable evidence of the amounts so paid or incurred by Landlord.
52.02 The portion of the roof of the Building on which the
Equipment is to be located, which portion shall be reasonably designated by
Landlord so as to permit the Equipment to be usable for its intended purpose, is
herein referred to as the "Roof Space." All applicable provisions of this Lease
including, without limitation, those provisions relating to Tenant's obligations
to maintain, repair and insure the demised premises and to comply with laws
therein shall apply to Roof Space as if the same were part of the demised
premises. Tenant shall use the Roof Space for the Dish Permitted Uses, as
hereinbefore and hereinafter provided, and for no other purpose. Tenant shall
not make, or permit to be made, any alteration, installation, improvement,
substitution or addition to the Roof Space or any other portion of the Building,
except as expressly permitted under this Article.
52.03 Before commencing the installation of the Equipment
or any other alterations, improvements, additions or other work or changes
related thereto (such installation and other alterations, improvements,
additions and other work and changes being hereinafter referred to as the
"Installation"), Tenant, at its sole cost and expense, shall prepare and submit
to Landlord for Landlord's approval, reasonably detailed plans and
specifications therefor, which approval shall not be unreasonably withheld or
delayed, and which response shall be given by Landlord within fifteen (15)
business days after submission of said Tenant's Plans, and within ten (10)
Business Days after the submission of any subsequent revisions thereof. The
out-of-pocket cost and expense reasonably incurred and/or paid by Landlord in
connection with the review of said plans and specifications (and all revisions
thereto), and the inspection of the work in respect thereof, by Landlord and
Landlord's architects, engineers and other consultants and professionals shall
be reimbursed by Tenant to Landlord within ten (10) days after Landlord gives to
Tenant Landlord's an invoice therefor (together with reasonable evidence of the
amounts so paid or incurred by Landlord), Tenant agrees that neither Landlord's
approval of plans or specifications, nor its inspection of such work, nor its
right to inspect such work, shall impose upon Landlord any obligation or
liability whatsoever with respect thereto, including, without limitation, any
obligation or liability that might arise as a result of such work not being
performed in accordance with applicable laws and requirements or with the plans
and specifications approved by Landlord or otherwise. Landlord may, as a
condition of its approval, require Tenant to make revisions in and to such plans
and specifications. Tenant shall not use, employ or retain any contractor or
mechanic, or permit the use, employment or retention of any subcontractor, that
has not been first approved by Landlord, which approval shall not be
unreasonably withheld or delayed.
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52.04 For the period commencing on the date Tenant shall
have completed the Installation of Equipment pursuant to this Article 52 until
the Expiration Date or such earlier date on which the Equipment shall be removed
from the Building pursuant to this Article 42, Tenant shall pay Landlord as
additional rent hereunder an amount equal to Three Thousand Dollars ($3,000) per
annum per diameter foot payable in the same manner as fixed annual rent.
52.05 All of Tenant's obligations and liabilities under
Article 9 of this Lease shall apply to the Equipment and the Roof Space as if
the Roof Space were a part of the demised premises. In addition, Tenant shall
procure, maintain and pay for such liability and property damage insurance as
Landlord shall reasonably require in connection with the Installation and the
maintenance, repair and operation of the Equipment, in form, substance and with
limits of liability reasonably approved, in writing, by Landlord. Tenant shall
have Landlord, the holders of all superior mortgages and the lessors under all
superior leases named as additional insureds on all such insurance policies.
52.06 Other than the electricity that Landlord is expressly
obligated to supply to the demised premises pursuant to Article 4 of this Lease,
Landlord shall not be obligated to provide any electricity for the operation of
the Equipment. Tenant, at its sole cost and expense, shall bring the electricity
required to operate the Equipment from the demised premises to the Roof Space,
in accordance with, and subject to, the provisions of Article 4 of this Lease.
The electricity used for the operation of the Equipment shall be part of "Usage"
(as such term is defined and used in Article 4 of this Lease) and Tenant shall
pay for such Usage in accordance, and subject to, the provisions of said Article
4.
52.07 (a) Tenant covenants and agrees that the
installation, maintenance, repair, operation and removal of the Equipment on the
roof of the Building or in any other part of the Building shall be at the sole
risk and expense of Tenant. Landlord shall repair any and all damage to the roof
of the Building and to any part of the Building caused by or resulting from the
installation, maintenance, repair, operation or removal of the Equipment;
provided Tenant shall pay Landlord reasonable costs and expenses paid or
incurred by Landlord as a result thereof, within thirty (30) days after Landlord
gives to Tenant Landlord's invoice therefor, together with reasonable evidence
of the amounts so paid or incurred by Landlord.
(b) In the manner provided in and subject to the
provisions of Article 39 Tenant shall indemnify and hold Landlord harmless from
and against any and all actions, proceedings, liabilities, obligations, claims,
damages, deficiencies, losses, judgments, suits, expenses and costs (including,
without limitation, reasonable legal fees and disbursements) in connection with
or resulting from the Dish Permitted Uses or the presence or removal of the
Equipment or other use thereof. Tenant further covenants and agrees that the
Equipment and any related equipment erected or installed by Tenant
88
pursuant to the provisions of this Article shall be erected, installed,
repaired, maintained and operated by Tenant at the sole cost and expense of
Tenant and without charge, cost or expense to Landlord.
(c) Tenant hereby acknowledges that Landlord has
made no representations or warranties as to whether the roof of the Building is
suitable for the installation, maintenance or operation of the Equipment, or
whether the Equipment can be used for its intended purpose.
52.08 The parties agree that Tenant's use of the roof of
the Building is non-exclusive and Landlord may use, and/or permit any other
person or entity to use, any other portion of the Building for any purpose,
including the installation of other satellite dishes, antennae, generators
and/or communications systems, provided that such use does not interfere with
the use of the Equipment for the Dish Permitted Uses. Tenant shall not permit
its use of the roof of the Building, or the installation, operation,
maintenance, repair or removal of the Equipment, to impair, unreasonably
interfere with or materially adversely affect Landlord's or such other person's
or entity's data transmission and reception via their respective antennas or
satellite dishes, and support equipment, if any, or the operation or use of any
of the Building's systems or services. In no event shall the maximum level of
microwave emissions from the Equipment, when combined with all other microwave
emissions from the Building, exceed an amount equal to the total microwave
emissions allowable for the Building as determined by the governmental
authorities having jurisdiction thereof.
52.09 Notwithstanding anything to the contrary contained in
this, Landlord shall have no obligation to repair any damage to, or to replace
the Equipment or any fixtures, furniture, furnishing, equipment or other
property or effects of Tenant related to the Equipment, except to the extent
such repair is necessitated by the act or omission of Landlord, its principals,
officers, agents, contractors, servants, employees, licensees, agents or
invitees. In no event shall Tenant be entitled to receive any portion of
insurance proceeds or award for, or have any claim whatsoever against Landlord
or the condemning authority in connection with, any such damage, destruction,
acquisition or condemnation.
52.10 Tenant shall not directly or indirectly, by operation
of law, or otherwise, assign or otherwise transfer its rights under this
Article, or underlet, sublet, or sublicense any of such rights, or any portion
of the Roof Space, except in connection with an assignment of this lease or
subletting of the entire demised premises. Tenant acknowledges and agrees that
the rights granted to Tenant pursuant to this Article, are granted exclusively
for the enjoyment of the Tenant (and permitted successors in interest and
subtenants), and for no other persons or entities and only during such time as
such Tenant (and permitted successors in interest) is
89
the tenant under this lease and occupies the entire demised premises, less the
Occupied Space if the same is not delivered.
52.11 The Equipment and related equipment installed by
Tenant pursuant to the provisions of this Article shall be and remain Tenant's
property, and, upon the expiration of the Dish. Term, or such earlier date
selected by Tenant, shall be removed by Tenant, at Tenant's sole cost and
expense, and Tenant shall repair any damage to the roof of the Building, or any
other portion or portions of the Building caused by or resulting from said
removal.
52.12 Landlord, upon thirty (30) days' prior written notice
to Tenant, may reasonably relocate the Equipment and related equipment to other
areas of the Building and roof thereof, which relocation shall be at Landlord's
cost and expense, which cost and expense shall include the removal of the
Equipment and related equipment, conduits and cables, the purchasing of
materials and equipment necessary for the relocation thereof and the
reinstallation of the Equipment and such related equipment, conduits and cables
at such other location on the roof as shall be designated by Landlord, which
other location shall be no less favorable for the reception and transmission of
signals to and from the Equipment as the previous location. Landlord shall
perform the relocation so as to minimize interference with the reception of
and/or transmission of signals to and from the Equipment. Landlord's right of
relocation shall be in addition to any and all of Landlord's other rights and
remedies available at law or in equity if the necessity therefor results from
any failure of Tenant to observe, perform or comply with any of the terms,
covenants or conditions contained in this Article. If the necessity of such
relocation results from such failure, then the cost and expense of such
relocation shall be paid by Tenant to Landlord within ten (10) days after
Landlord's demand therefor. If this Lease terminates prior to the Expiration
Date, then Tenant, upon thirty (30) days prior written notice from Landlord,
must remove the Equipment at its sole cost and expense.
52.13 Landlord shall have the right to assign or transfer
its rights and obligations under this Article, separate and apart from its
interest, obligations and liabilities in, under and to this lease, to an entity
responsible for the management of the roof of the Building, or any other third
party, at any time.
* * * * *
90
IN WITNESS WHEREOF, Landlord and Tenant have respectively
executed this Lease as of the day and year first above written.
LANDLORD:
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
By: 500-512 ArCap LLC
By: Archon Capital, L.P.
By: WH MezzCo GP, L.L.C., its General Partner
By: /s/ [illegible]
-------------------------------
Name:
Title:
By: GS MezzCo GP., L.L.C., its General Partner
By: /s/ [illegible]
------------------------------
Name:
Title:
TENANT:
ANSWERTHINK CONSULTING GROUP, INC.
By: /s/ [illegible]
-----------------------------------------------
Name: [illegible]
Title: CEO
Tenant's Tax Identification Number is 00-0000000
91
FIRST AMENDMENT TO LEASE
BETWEEN
500-512 SEVENTH AVENUE LIMITED PARTNERSHIP, LANDLORD
AND
ANSWERTHINK, INC., TENANT
(F/K/A ANSWERTHINK CONSULTING GROUP, INC.)
PREMISES:
A PORTION OF THE SEVENTEENTH (17TH) AND
A PORTION OF THE EIGHTEENTH (18TH) FLOORS
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") made as of the 13th
day of September, 2000, by and between 000-000 XXXXXXX XXXXXX LIMITED
PARTNERSHIP, a New York limited partnership, having an office c/o Newmark &
Company Real Estate, Inc. ("Landlord", and ANSWERTHINK, INC. (f/k/a AnswerThink
Consulting Group, Inc., a Florida corporation, having an office at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H
WHEREAS, by Agreement of Lease dated as of April 13, 2000 (such lease,
as the same may hereafter be amended, is hereinafter called the "Lease"),
Landlord did demise and let unto Tenant and Tenant did hire and take from
Landlord a portion of the seventeenth (17th) and eighteenth (18th) floors
(collectively, the "demised premises") as more particularly described in the
Lease in the building (the "Building") known by the street address 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx; and
WHEREAS, Tenant desires to use and Landlord agrees to allow Tenant to
use certain roof space for its mechanical equipment in addition to the Roof
Space designated for the Equipment pursuant to Article 52 of the Lease; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as
hereinafter provided and Landlord is agreeable thereto on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained and other good and valuable consideration, the adequacy and receipt of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. All capitalized terms used herein shall have the meanings
ascribed to them in the Lease unless otherwise specifically set forth herein to
the contrary.
2. As of the date hereof:
a. The following shall be added to the end of Section
52.13 of the Lease: "...; provided that Landlord is not adversely discriminatory
to Tenant with respect to exercising such right".
b. The following is hereby added as Article 53 of the
Lease:
53.01 For the period (the "Mechanical Equipment Term")
commencing on the date hereof and ending on the Expiration Date, Tenant
shall have the right, in accordance with, and subject to, the
provisions of this Amendment, to install, maintain, repair, use and
operate on the roof of the Building, at its sole cost and expense, such
of Tenant's mechanical equipment as shall be approved by Landlord
(collectively, the "Mechanical Equipment"). Landlord has approved the
Mechanical Equipment described on Exhibit A attached hereto and hereby
made a part hereof. In connection with such installation, maintenance,
repair, use and operation (collectively, the "Mechanical Equipment
Permitted Uses"), Tenant shall comply with all laws, ordinances,
orders, rules, regulations and requirements of all governmental and
quasi-governmental authorities having jurisdiction of or over the
installation, maintenance, repair, use, operation or removal of the
Mechanical Equipment, or the use of the Mechanical Equipment Roof Space
(as hereinafter defined) or any other portion of the Building
(collectively, "Mechanical Equipment Laws"), regardless of whether such
compliance requires, at any time during the Mechanical Equipment Term,
the making of alterations to the Building (which alterations may only
be made in accordance with, and subject to, the applicable provisions
of this Amendment) or other expenditures, whether foreseen or
unforeseen, ordinary or extraordinary. Tenant shall procure, maintain
and pay for all permits, certificates, consents, authorizations and
licenses required therefor, including all renewals thereof
(collectively, "Mechanical Equipment Permits"). Any and all costs and
expenses paid or incurred by or on behalf of Landlord in connection
with the Mechanical Equipment, the Mechanical Equipment Installation
(as hereinafter defined) and the Mechanical Equipment Permitted Uses,
shall be reimbursed to Landlord, from time to time, within ten (10)
days after Landlord gives to Tenant Landlord's invoice therefor,
together with reasonable evidence of the amounts so paid or incurred by
Landlord.
-2-
53.02 The portion of the roof of the Building on which the
Mechanical Equipment is to be located is shown on the plan annexed
hereto as Exhibit C (the "Mechanical Equipment Roof Space"). All
applicable provisions of this Lease including, without limitation,
those provisions relating to Tenant's obligations to maintain, repair
and insure the demised premises and to comply with laws therein shall
apply to the Mechanical Equipment Roof Space as if the same were part
of the demised premises, except that Tenant may not assign or sublet
the Mechanical Equipment RoofSpace, except as provided in Section 53.10
below. Tenant shall use the Mechanical Equipment Roof Space for the
Mechanical Equipment Permitted Uses, as hereinbefore and hereinafter
provided, and for no other purpose. Tenant shall not make, or permit to
be made, any alteration, installation, improvement, substitution or
addition to the Mechanical Equipment Roof Space or any other portion of
the Building, except as expressly permitted under this Amendment.
53.03 Before commencing the installation of the Mechanical
Equipment or any other alterations, improvements, additions or other
work or changes related thereto (such installation and other
alterations, improvements, additions and other work and changes being
hereinafter referred to as the "Mechanical Equipment Installation"),
Tenant, at its sole cost and expense, shall prepare and submit to
Landlord for Landlord's approval, detailed plans and specifications
therefor, and which response thereto shall be given by Landlord within
fifteen (15) Business Days after submission of said Tenant's Plans, and
within ten (10) Business Days after the submission of any subsequent
revisions thereof. Tenant has submitted to Landlord plans and
specifications for the Mechanical Equipment described on Exhibit A,
which plans and specifications are described on Exhibit B attached
hereto and hereby made a part hereof and Landlord has approved the
same. Tenant agrees to retain Xxxxxxx Waterproofing for any and all
work on the roof of the Building to preserve the warranty applicable
thereto. The out-of-pocket cost and expense reasonably incurred and/or
paid by Landlord in connection with the review of said plans and
specifications (and all revisions thereto), and the inspection of the
work in respect thereof, by Landlord and Landlord's architects,
engineers and other consultants and professionals shall be
reimbursed by Tenant to Landlord within ten (10) days after Landlord
gives to Tenant
-3-
Landlord's invoice therefor (together with reasonable evidence of the
amounts so paid or incurred by Landlord), Tenant agrees that neither
Landlord's approval of plans or specifications, nor its inspection of
such work, nor its right to inspect such work, shall impose upon
Landlord any obligation or liability whatsoever with respect thereto,
including, without limitation, any obligation or liability that might
arise as a result of such work not being performed in accordance with
applicable laws and requirements or with the plans and specifications
approved by Landlord or otherwise. Landlord may, as a condition of its
approval, require Tenant to make revisions in and to such plans and
specifications. Tenant shall not use, employ or retain any contractor
or mechanic, or permit the use, employment or retention of any
subcontractor, that has not been first approved by Landlord.
53.04 Commencing on the Rent Commencement Date until the
Expiration Date, Tenant shall pay Landlord as additional rent hereunder
an amount equal to Fifty Thousand Dollars ($50,000) per annum, or Four
Thousand One Hundred Sixty Six and 67/100 Dollars ($4,166.67) per
month, payable in the same manner as fixed annual rent.
53.05 All of Tenant's obligations and liabilities under
Article 9 of the Lease shall apply to the Mechanical Equipment and the
Mechanical Equipment Roof Space as if the Mechanical Equipment Roof
Space were a part of the demised premises. In addition, Tenant shall
procure, maintain and pay for such liability and property damage
insurance as Landlord shall reasonably require in connection with the
Mechanical Equipment Installation and the maintenance, repair and
operation of the Mechanical Equipment, in form, substance and with
limits of liability as set forth in the Lease, approved, in writing, by
Landlord. Tenant shall have Landlord, the holders of all superior
mortgages and the lessors under all superior leases named as additional
insureds on all such insurance policies.
53.06 Other than the electricity that Landlord is expressly
obligated to supply to the demised premises pursuant to Article 4 of
the Lease, Landlord shall not be obligated to provide any electricity
for the operation of the Mechanical Equipment. Tenant, at its sole cost
and expense, shall bring the electricity required to operate the
Mechanical Equipment from the demised premises to the
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Mechanical Equipment Roof Space, in accordance with, and subject to,
the provisions of Article 4 of this Lease. The electricity used for the
operation of the Mechanical Equipment shall be part of "Usage" (as such
term is defined and used in Article 4 of the Lease) and Tenant shall
pay for such Usage in accordance, and subject to, the provisions of
said Article 4.
53.07 (i) Tenant covenants and agrees that the
installation, maintenance, repair, operation and removal of the
Mechanical Equipment on the roof of the Building or in any other part
of the building shall be at the sole risk and expense of Tenant.
Landlord shall repair any and all damage to the roof of the Building
and to any part of the Building caused by or resulting from the
installation, maintenance, repair, operation or removal of the
Mechanical Equipment; provided Tenant shall pay Landlord any and all
costs and expenses paid or incurred by Landlord as a result thereof,
within thirty (30) days after Landlord gives to Tenant Landlord's
invoice therefor, together with reasonable evidence of the amounts so
paid or incurred by Landlord.
(ii) In the manner provided in and subject to the
provisions of Article 39 Tenant shall indemnify and hold Landlord
harmless from and against any and all actions, proceedings,
liabilities, obligations, claims, damages, deficiencies, losses,
judgments, suits, expenses and costs (including, without limitation,
reasonable legal fees and disbursements) in connection with or
resulting from the Mechanical Equipment Permitted Uses or the presence
or removal of the Mechanical Equipment or other use thereof. Tenant
further covenants and agrees that the Mechanical Equipment and any
related equipment erected or installed by Tenant pursuant to the
provisions of this Amendment shall be erected, installed, repaired,
maintained and operated by Tenant at the sole cost and expense of
Tenant and without charge, cost or expense to Landlord.
(iii) Tenant hereby acknowledges that Landlord has
made no representations or warranties as to whether the roof of the
Building is suitable for the installation, maintenance or operation of
the Mechanical Equipment, or whether the Mechanical Equipment can be
used for its intended purpose.
-5-
53.08 The parties agree that Tenant's use of the roof of
the Building is non-exclusive and Landlord may use, and/or permit any
other person or entity to use, any other portion of the Building for
any purpose, including the installation of other mechanical equipment,
satellite dishes, antennae, generators and/or communications systems,
provided that such use does not interfere, except to a de minimis
extent, with the use of the Mechanical Equipment for the Mechanical
Equipment Permitted Uses. Tenant shall not permit its use of the roof
of the Building, or the installation, operation, maintenance, repair or
removal of the Mechanical Equipment, to impair, unreasonably interfere
with or materially or adversely affect Landlord's or such other
person's or tenant's use of the roof of the Building or the operation
or use of any of the Building's systems or services.
53.09 Notwithstanding anything to the contrary contained in
this Article, Landlord shall have no obligation to repair any damage
to, or to replace the Mechanical Equipment or any fixtures, furniture,
furnishing, equipment or other property or effects of Tenant related to
the Mechanical Equipment, except to the extent such repair is
necessitated by the act or omission of Landlord, its principals,
officers, agents, contractors, servants, employees, licensees, agents
or invitees. In no event shall Tenant be entitled to receive any
portion of insurance proceeds or award for, or have any claim
whatsoever against Landlord or the condemning authority in connection
with, any such damage, destruction, acquisition or condemnation.
53.10 Tenant shall not directly or indirectly, by operation
of law, or otherwise, assign or otherwise transfer its rights under
this Amendment or underlet, sublet, or sublicense any of such rights,
or any portion of the Mechanical Equipment Roof Space, except in
connection with an assignment of this lease or subletting of the entire
demised premises. Tenant acknowledges and agrees that the rights
granted to Tenant pursuant to this Amendment, are granted exclusively
for the enjoyment of the Tenant (and permitted successors in interest
and subtenants), and for no other persons or entities and only during
such time as such Tenant (and permitted successors in interest) is the
tenant under this lease and occupies the entire
-6-
demised premises, less the Occupied Space if the same is not delivered.
53.11 The Mechanical Equipment and related equipment
installed by Tenant pursuant to the provisions of this Article shall be
and remain Tenant's property and, upon the expiration of the Mechanical
Equipment Term, or such earlier date selected by Tenant, shall be
removed by Tenant, at Tenant's sole cost and expense, and Tenant shall
repair any damage to the roof of the Building, or any other portion or
portions of the Building caused by or resulting from said removal.
Notwithstanding the foregoing, Tenant shall not be obligated to remove
the existing steel structure identified on Exhibit C as the "Existing
Steel Structure" (the "Dunnage") which is to be used by Tenant pursuant
to the provisions of this Article 53, provided the Dunnage be returned
to Landlord in its original condition, subject to ordinary wear and
tear and damage by casualty. Tenant agrees, at its sole cost and
expense, to demolish and remove the existing equipment on the Dunnage
prior to installing the Mechanical Equipment and related equipment as
described in this Article 53. In the event the Dunnage is modified or
altered in connection with the installation of the Mechanical Equipment
or otherwise by Tenant or by Tenant's use of the Dunnage, the Dunnage
shall be removed by Tenant upon the expiration of the Mechanical
Equipment Term or such earlier termination, at Tenant's sole cost and
expense, and Tenant shall repair any damage to the roof of the
Building, or any other portion or portions of the Building caused by or
resulting from such removal.
53.12 Landlord, upon thirty (30) days' prior written notice
to Tenant, may reasonably relocate the Mechanical Equipment and related
equipment to other areas of the Building and roof thereof, which
relocation shall be at Landlord's cost and expense, which cost and
expense shall include the removal of the Mechanical Equipment and
related equipment, conduits and cables, the purchasing of materials and
equipment necessary for the relocation thereof and the reinstallation
of the Mechanical Equipment and such related equipment, conduits and
cables at such other location on the roof as shall be designated by
Landlord. In the event of a relocation of the Mechanical Equipment by
Landlord (and not by reason of Tenant's failure to observe, perform or
comply with the provisions of this
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Amendment), and upon Tenant's written request, Landlord shall provide,
at its sole cost and expense, reasonably adequate cooling ("Substitute
Cooling") to the demised premises until the relocation of the
Mechanical Equipment is complete. To satisfy Landlord's obligation to
provide Substitute Cooling to the demised premises under this Section
53.12, Landlord may, at its sole discretion and provided the Substitute
Cooling does not adversely impact (except to a de minimis extent)
Tenant's air-conditioning system, (i) use a device(s) known as "spot
cooler(s)", (ii) connect an alternative water supply from the existing
water tower on the roof of the Building, so as not to unreasonably
disturb the normal cooling to the demised premises, until the
relocation is complete, or (iii) propose a reasonable alternative to
provide the Substitute Cooling to the demised premises, provided such
reasonable alternative is subject to Tenant's approval, which approval
shall not be unreasonably withheld or delayed. Landlord's right of
relocation shall be in addition to any and all of Landlord's other
rights and remedies available at law or in equity if the necessity
therefor results from any failure of Tenant to observe, perform or
comply with any of the terms, covenants or conditions contained in this
Amendment. If the necessity of such relocation results from such
failure, then the cost and expense of such relocation shall be paid by
Tenant to Landlord within ten (10) days after Landlord's demand
therefor and Landlord shall not be obligated to provide any Substitute
Cooling to Tenant as provided in this Section 53.12. If this Lease
terminates prior to the Expiration Date, then Tenant, upon thirty (30)
days prior written notice from Landlord, must remove the Mechanical
Equipment at Tenant's sole cost and expense.
53.13 Tenant hereby represents that it has made a thorough
inspection of the Mechanical Equipment Roof Space and agrees to take
the same in its condition "as is" as of the date hereof, and that
Landlord shall have no obligation to alter, repair, or otherwise
prepare the same for Tenant's use.
53.14 If any of the Taxes are increased as a result of the
Tenant's use of the Mechanical Equipment on the roof of the Building or
Tenant's use of the Mechanical Equipment Roof Space, then Tenant shall,
in the case of any such increase in Taxes, pay to Landlord, within
twenty (20) days of demand thereof, an amount
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equal to said increase in Taxes. In the event,(i) the increase in Taxes
are not itemized and/or identified in the tax xxxx, (ii) Tenant
disputes that the increase in Taxes are attributable to Tenant's use of
the Mechanical. Equipment Roof Space, and (iii) Landlord and Tenant
cannot come to an agreement as to whether the increase in Taxes are
attributable to Tenant's use of the Mechanical Equipment Roof Space,
such dispute shall be resolved by arbitration in accordance with
Article 38 of the Lease.
3. Each party hereto covenants, warrants and represents to the
other party that it has had no dealings, conversations or negotiations with any
broker or agent other than Newmark & Company Real Estate, Inc. and Insignia/ESG,
Inc. concerning the execution and delivery of this Amendment. Each party hereto
agrees to defend, indemnify and hold harmless the other party against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, reasonable attorneys'
fees and disbursements, arising out of its respective representations and
warranties contained in this Paragraph 3 being untrue.
4. Except as expressly set forth in this Amendment, the terms and
conditions of the Lease shall continue in full force and effect without any
change or modification and shall apply for the balance of the term of the Lease.
In the event of a conflict between the terms of the Lease and the terms of this
Amendment, the terms of this Amendment shall govern.
5. This Amendment shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no consent or
approval required pursuant to this Amendment shall be effective, unless the same
shall be in writing and signed by or on behalf of the party to be charged.
6. This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns.
7. All prior statements, understandings, representations and
agreements between the parties, oral or written, are superseded by and merged in
this Amendment, which alone fully and completely expresses the agreement between
them in connection with this transaction and which is entered into after full
investigation, neither party relying upon any statement, understanding,
representation or agreement made by the other not embodied in this Amendment.
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8. No failure or delay of either party in the exercise of any
right or remedy given to such party hereunder or the waiver by any party of any
condition hereunder for its benefit (unless the time specified herein for
exercise of such right or remedy has expired) shall constitute a waiver of any
other or further right or remedy nor shall any single or partial exercise of any
right or remedy preclude other or further exercise thereof or any other right or
remedy. No waiver by either party of any breach hereunder or failure or refusal
by the other party to comply with its obligations shall be deemed a waiver of
any other or subsequent breach, failure or refusal to so comply.
9. This Amendment shall be interpreted and enforced in accordance
with the laws of the state of New York without reference to principles of
conflicts of laws.
10. If any provision of this Amendment shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this Amendment
and to this end the provisions of this Amendment are intended to be and shall be
severable. Notwithstanding the foregoing sentence, if (i) any provision of this
Amendment is finally determined by a court of competent jurisdiction to be
unenforceable or invalid in whole or in part, (ii) the opportunity for all
appeals of such determination expired, and (iii) such unenforceability or
invalidity alters the substance of this Amendment (taken as a whole) so as to
deny either party, in a material way, the realization of the intended benefit of
its bargain, such party may terminate this Amendment within thirty (30) days
after the final determination by notice to the other. If such party so elects to
terminate this Amendment then this Amendment shall be terminated and neither
party shall have any further rights, obligations or liabilities hereunder,
except those obligations which expressly survive the termination of this
Amendment.
11. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT
OR CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AMENDMENT OR ANY OTHER DOCUMENT EXECUTED AND
DELIVERED BY EITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO
RESCIND OR CANCEL THIS AMENDMENT ON THE GROUNDS THAT THIS AMENDMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
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12. This Amendment may be executed in any number of counterparts.
It is not necessary that all parties sign all or any one of the counterparts,
but each party must sign at least one counterpart for this Amendment to be
effective.
13. Tenant and Landlord, and each of the persons executing this
Amendment on behalf of Tenant and Landlord, do hereby warrant that the party for
which they are executing this Amendment (i) is a duly authorized and existing
entity, (ii) is qualified to do business in New York, and (iii) has full right
and authority to enter into this Amendment, and that any person signing on
behalf of such party is authorized to do so. Upon either party's request, the
other party shall provide evidence reasonably satisfactory to the requesting
party confirming the foregoing warranties.
14. This Amendment shall not be binding upon either party unless
and until it is fully executed and delivered to both parties.
* * * * *
[The remainder of this page is intentionally left blank; the
signature page follows.]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Amendment as of the day and year first above written.
LANDLORD:
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
By: 500-512 ArCap LLC
By: ____________________________________
Name:
Title: Authorized Representative
TENANT:
ANSWERTHINK, INC.
By: /s/ XXXXX X. XXXXXXXXX
------------------------
Name: XXXXX X. XXXXXXXXX
Title: SECRETARY & CORPORATE COUNSEL
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