STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc.
AGREEMENT OF LEASE, made as of this 21st day of June 2006, between FIFTH AND 38TH LLC, a
Delaware limited liability company having an office at c/x Xxxxxx Xxxx Properties LLC,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first part,
hereinafter referred to as OWNER, and ATARI, INC., having an address at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner, (a) the
entire seventh (7th) and eighth (8th) floors of the building (the “Building”) known as 000 Xxxxx Xxxxxx in the
Borough of Manhattan, City, County
and State of New York, consisting of approximately 70,000 rentable square feet (the
“Office Space”) and (b) certain
portions of the basement of the Building, consisting initially of approximately 2,500
square feet but subject to increase
pursuant to Section 49D hereof (the “Basement Space”), each as more particularly
identified on Exhibit A attached hereto
(but excluding elements of the Building that penetrate through the floor, all janitor or
electrical closets and all mechanical/electrical rooms), hereinafter referred to
collectively as the “Demised Premises” or the “demised premises”, together with the
non-exclusive right to use, in common with other tenants of the Building, all
appurtenances, areas and facilities intended generally for the common use of tenants in
the Building, for a term (“Term”) to commence on the “Commencement Date” (as defined in
Article 37) and to end on the “Expiration Date” (as defined in Article 37) (unless
extended or sooner terminated as hereinafter provided), both dates inclusive, at an
annual rental rate set forth in Article 37,
which Tenant agrees to pay in lawful money of the United States, which shall be legal tender in
payment of all debts and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, without previous
demand therefor, at the office of Owner or such other place as Owner may designate, without any
setoff or deduction whatsoever, (except as otherwise expressly set forth in this Lease).
If the Expiration Date occurs on a day other than the last day of a calendar month, then the Fixed
Annual Rent for such calendar month shall be prorated based on the applicable number of days.
The parties hereto, for themselves, their heirs, distributees, executors, administrators, legal
representatives, successors and assigns, hereby covenant as follows:
1. Tenant shall pay the rent as above and as hereinafter provided.
2. Tenant
shall use and occupy the demised premises only for general and executive offices and a product display room (the “Permitted Uses”).
Subject to the other terms of this Lease, Permitted Uses shall also include uses reasonably and customarily ancillary to general and
executive office use, including without limitation the following:
(a) customary computer and other electronic and technological support systems, electronic data processing equipment and business machines, including computer networks and printing and duplicating equipment used in connection with administrative, executive and general office use; (b) file storage; (c) standard office-style kitchens (i.e., a coffee maker, microwave, small refrigerator and vending machines) solely for the use by Tenant’s and its permitted
subtenant’s officers, directors, employees and guests; and (d) any private bathrooms or showers installed in the
Demised Premises prior to the date hereof. In no event shall the Demised Premises be used for manufacturing or
direct retail sales to the public. Notwithstanding the foregoing or any other provision of this Lease to the contrary,
Tenant shall be responsible for complying with all Laws (as defined herein) applicable to its use of the Demised Premises
(provided, however, that Tenant shall not be required to make any structural alterations to the Demised Premises or Building required by such Laws except as set forth in Article 50) and for obtaining, at Tenant’s sole
cost and expense, all consents, approvals and permits (including, without limitation, any amendment to the certificate of
occupancy for the Building and any public assembly permit) required by reason of any such use. Owner makes no representation to
Tenant as to the suitability of the Demised Premises for any particular use, but Owner shall be responsible for maintaining a certificate of
occupancy for the Building that permits the Demised Premises to be used for office use.
3. Except
as otherwise expressly set forth in this Lease, Tenant shall make no changes in or to the demised premises of any
nature without Owner’s prior written consent. Tenant shall, before making any alterations, additions, installations or improvements,
at its expense, obtain all permits, approvals and certificates required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof, and shall deliver promptly duplicates of all such permits, approvals and certificates to Owner, and
Tenant agrees to carry, and will cause Tenant’s contractors and sub-contractors to carry, such worker’s compensation, general
liability,
personal and property damage insurance as is specified in this Lease. If any mechanic’s lien is filed against the demised premises,
or the building
of which the same forms a part, for work claimed to have been done for, or materials furnished to, Tenant, whether or not done
pursuant to this article, the
same shall be discharged by Tenant within thirty days after notice thereof, at Tenant’s expense, by payment or filing a bond
as permitted by law or otherwise. All fixtures and all paneling, partitions, railings and like installations, installed in the demised
premises at any time, either by Tenant or by Owner on Tenant’s behalf, shall, upon installation, become the property of Owner and
shall remain upon and be surrendered with the demised premises. Nothing in this article shall be construed to
give Owner title to, or to prevent Tenant’s removal of, trade fixtures, moveable office furniture and equipment,
but upon removal of same from the demised premises or upon removal, of other installations as may be required by Owner
pursuant to the terms hereof. Tenant shall immediately, and at its expense, repair any damage to the demised premises or
the building due to such removal. Notwithstanding the foregoing, Tenant will (upon request of Owner given no more than ninety
(90) days prior to the Expiration Date) be required to remove any safes, vaults, raised computer floors,
library and file storage systems, antennas, dishes and internal stairways to the extent not existing in the Demised
Premises as of the Commencement Date (collectively, the “Non-Standard Alterations”). Except for Non-Standard
Alterations, Tenant shall have no obligation to remove any alterations or restore the Demised Premises. Tenant’s
obligation to remove Non-Standard Alterations, if so requested by Owner, shall survive
the termination of this Lease. All property permitted or required to be removed by Tenant at the end of
the term remaining in the demised premises after Tenant’s removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner’s property or may be removed from the demised premises by Owner, at Tenant’s expense.
4. Except as to those repair and replacement obligations which are the responsibility of
Owner under this Lease, Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be responsible for all
damage or injury to the demised premises or any other part of the building and the systems and
equipment thereof, whether requiring structural or nonstructural repairs caused by, or resulting
from, carelessness, omission, neglect or improper conduct of Tenant, Tenant’s subtenants, agents,
employees, invitees or licensees, or which arise out of any work, (except for work performed by
Owner or its contractors or other agents) labor, service or equipment done for, or supplied to,
Tenant or any subtenant, or arising out of the installation, use or operation of the property or
equipment of Tenant or any subtenant. Tenant shall also repair all damage to the building and the
demised premises caused by the moving of Tenant’s fixtures, furniture and equipment. Tenant shall
promptly make, at Tenant’s expense, all repairs in and to the demised premises for which Tenant is
responsible, and, if such repairs are structural or affect building systems, Tenant shall use only
contractors approved by Owner (such consent not to be unreasonably withheld) for such repairs. Any other repairs in or to the building or the facilities and systems thereof, for which Tenant is
responsible, shall be performed by Owner at the Tenant’s expense. Owner shall maintain in good
working order and repair the exterior and the structural portions of the building, including the
structural portions of the demised premises, and the public portions of the building interior and
the building plumbing, electrical, heating and ventilating systems (to the extent such systems
presently exist) serving the demised premises including, without limitation, the structural,
exterior and curtain walls, common areas, sanitary, mechanical, plumbing, electrical, sprinkler and
fire safety systems, and other base building systems of the Building. All such repairs shall be
made in a good and workerlike manner and performed with reasonable diligence and in a manner
reasonably intended to minimize interference with the conduct of Tenant’s business and access to
the Demised Premises; provided that Owner shall not be required to employ contractors or labor at
overtime or other premium pay rates unless Tenant, at Tenant’s request and expense, shall bear the
cost thereof. Tenant agrees to give prompt notice of any defective condition in the demised premises
for which Owner may be responsible hereunder. Except as expressly set
forth in Section 41B, there
shall be no allowance to Tenant for diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to business arising from Owner or others
making repairs, alterations, additions or improvements in or to any portion of the building or the
demised premises, or in and to the fixtures, appurtenances or equipment thereof. Except as
expressly set forth in Section 41B, it is specifically agreed that Tenant shall not be entitled to
any setoff or reduction of rent by reason of any failure of Owner to comply with the covenants of
this or any other article of this lease. Except as expressly set forth in Section 41B, Tenant
agrees that Tenant’s sole remedy at law in such instance will be by way of an action for damages
for breach of contract. The provisions of this Article 4 shall not apply in the case of fire or
other casualty, which are dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the demised premises to
be cleaned from the outside in violation of Section 202 of the Labor Law or any other applicable
law, or of the Rules of the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession, and at all times
thereafter, Tenant, at Tenant’s sole cost and expense, shall promptly comply with all present and
future laws, orders and regulations of all state, federal, municipal and local governments,
departments, commissions and boards and any direction of any public officer pursuant to law, and
all orders, rules and regulations of the New York Board of Fire Underwriters, Insurance Services
Office, or any similar body which shall impose any violation, order or duty upon Owner or Tenant
with respect to the demised premises, whether or not arising out of Tenant’s particular use or
manner of use thereof, (including Tenant’s permitted use) or, with respect to the building if arising out
of Tenant’s particular use or manner of use of the demised premises or the building (as opposed to
the mere use of the Demised Premises for office uses) as and to the extent provided in Article 50
hereof. Nothing herein shall require Tenant to make structural repairs or alterations or pay the
cost of any unless Tenant has, by its particular (as opposed to the mere use of the Demised
Premises for office uses) manner of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements with respect
thereto. Tenant may, after securing Owner to Owner’s reasonable satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable attorneys fees, by
cash deposit or by surety bond in an amount and in a company satisfactory to Owner, contest and
appeal any such laws, ordinances, orders, rules, regulations or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject Owner to prosecution for
a criminal offense, or constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be
condemned or vacated, Tenant
shall not do or permit any act or thing to be done in or to the demised premises which is contrary
to law, or which will invalidate or be in conflict with public liability, fire or other policies of
insurance at any time carried by or for the benefit of Owner with respect to the demised premises
or the building of which the demised premises form a part, or which shall or might subject Owner to
any liability or responsibility to any person, or for property damage, Tenant shall not keep
anything in the demised premises, except as now or hereafter permitted by the Fire Department,
Board of Fire Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to increase the rate for
fire insurance applicable to the building, nor use the demised premises in a manner which will
increase the insurance rate for the building or any property located therein over that in effect
prior to the commencement of Tenant’s occupancy. Tenant shall pay all costs, expenses, fines,
penalties, or damages, which may be imposed upon Owner by reason of Tenant’s failure to comply with
the provisions of this article, and if by reason of such failure the fire insurance rate shall, at
the beginning of this lease, or at any time thereafter, be higher than it otherwise would be, then,
Tenant shall reimburse Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such failure by Tenant.
In any action or proceeding wherein Owner and Tenant are parties, a schedule or “make-up” of rate
for the building or the demised premises issued by the New York Fire Insurance Exchange, or other
body making fire insurance rates applicable to said premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which it was designed to carry and which is allowed
by law. Owner reserves the right to reasonably prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant’s expense, in settings sufficient, in Owner’s reasonable judgement, to absorb
and prevent vibration, noise and annoyance.
Subordination:
7.
8. Owner or its agents shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss of or damage to any property of Tenant by
theft or otherwise, nor for any injury or damage to persons or property resulting from any cause of
whatsoever nature, unless caused by, or due to, the negligence or willful misconduct of Owner, its
agents, servants or employees or contractors. Owner or its agents will not be liable for any such
damage caused by other tenants or persons in, upon or about said building, or caused by operations
in construction of any private, public or quasi public work. Except as expressly set forth in
Section 41B, if at any time any windows of the demised premises are temporarily closed, darkened
or bricked up (or permanently closed, darkened or bricked up, if required by law) for any reason
whatsoever including, but not limited to, Owner’s own acts, Owner shall not be liable for any
damage Tenant may sustain thereby, and Tenant shall not be entitled to any compensation therefor,
nor abatement or diminution of rent, nor shall the same release Tenant from its obligations
hereunder, nor constitute an eviction.
9. (a)
If the demised premises or any part thereof shall be damaged by fire or other casualty,
Tenant shall give immediate notice thereof to Owner, and this lease shall continue in full force
and effect except as hereinafter set forth. (b) If the demised premises are partially damaged
or rendered partially unusable by fire or other casualty or are rendered inaccessible or
unusable in whole or in part for the normal conduct of Tenant’s business (including damage to
building systems which materially and adversely affects access to or the tenantability of the
Demised Premises), then (subject to the provisions of Section 41B), the damages thereto shall be
repaired by, and at the expense of, Owner, and the rent and other items of additional rent,
until such repair shall be substantially completed, shall be apportioned from the day following
the casualty, according to the part of the demises premises which is usable and accessible (c)
If the demised premises are totally damaged or rendered wholly unusable or inaccessible or
unusable for the normal conduct of Tenant’s business (including damage to the building systems
which materially and adversely affects access to or the tenantability of the Demised Premises)
by fire or other casualty, then the rent and other items of additional rent, as hereinafter
expressly provided, shall be proportionately paid up to the time of the casualty, and
thenceforth shall cease until the date when the demised premises, building services and access
to the Demised Premises shall have been repaired and restored by Owner (or if sooner reoccupied
in part by Tenant
for the conduct of its business then rent shall be apportioned as provided in subsection (b)
above), subject to Owner’s right to elect not to restore the same as hereinafter provided and
subject to the provisions of Section 41B, (d) If the demised premises are rendered wholly
unusable or (whether or not the demised premises are damaged in whole or in part) if the
building shall be so damaged that Owner shall decide to demolish it or to rebuild it and
provided that Owner shall terminate all other office tenants of the Building then, in any of
such events, Owner may elect to terminate this lease by written notice to Tenant, given within
ninety (90) days after such fire or casualty, or thirty (30) days after adjustment of the
insurance claim for such fire or casualty, whichever is sooner, specifying a date for the
expiration of the lease, which date shall not be less than thirty (30) nor more than sixty (60)
days after the giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date set forth above
for the termination of this lease, and Tenant shall forthwith quit, surrender and vacate the
demised premises without prejudice however, to Landlord’s rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent owing shall be paid
up to such date, and any payments of rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall
make the repairs and restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor troubles and causes
beyond Owner’s control. After any such casualty, Tenant shall cooperate with Owner’s restoration by
removing from the demised premises as promptly as reasonably possible, all of Tenant’s salvageable
inventory and moveable equipment, furniture, and other property, Tenant’s liability for rent shall
resume five (5) days after written notice from Owner that the demised premises are substantially
ready for Tenant’s occupancy, (e) Nothing contained hereinabove shall relieve Tenant from
liability, if any, that may exist as a result of damage from fire or other casualty. Notwithstanding the
foregoing, including Owner’s obligation to restore under subparagraph (b) above, each party shall
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, and to the extent that such
insurance is in force and collectible, and to the extent permitted by law, Owner and Tenant each
hereby releases and waives all right of recovery with respect to subparagraphs (b), (d), and (e)
above, against the other or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include any loss or damage
to the demised premises and/or to any personal property, equipment, trade fixtures, goods and
merchandise located therein. The foregoing release and waiver shall be in force only if both
releasors’ insurance policies contain a clause providing that such a release or waiver shall not
invalidate the insurance. If, and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions hereof with respect
to waiver of subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant’s
furniture and/or furnishings or any fixtures or equipment, improvements, or appurtenances removable
by Tenant, and agrees that Owner will not be obligated to repair any damage thereto or replace the
same, (f) Tenant hereby waives the provisions of Section 227 of the Real Property Law and agrees
that the provisions of this article shall govern and control in lieu thereof. If a casualty causing
at least fifty percent (50%) of the Demised Premises to be untenantable or inaccessible shall occur
and as a result thereof such portion of the Premises shall be unoccupied by Tenant or the permitted
occupants thereof (a “Material Casualty”) and Owner shall not elect to terminate this Lease as
provided in this Article 9, Owner shall send a notice to Tenant within sixty (60) days after such
casualty setting forth Owner’s estimate of the length of time necessary to restore the Demised
Premises to a tenantable and accessible condition (to the extent of Owner’s obligations therefor as
set forth in Section 44F). If Owner’s estimate exceeds two hundred seventy (270) days from the date
of the Material Casualty, then Tenant may elect to terminate this Lease upon written notice to
Landlord within thirty (30) days after receipt of Landlord’s notice. If Tenant does not elect to
terminate this Lease, and the Demised Premises is not so restored within such two hundred seventy
(270) day period, then Tenant shall have the right to terminate this Lease upon notice to Landlord
given at any time after such two hundred seventy (270) day period, provided the applicable
restoration has not been substantially completed on the date of such notice. In addition, if during
the last twelve (12) months of the Term a casualty causing at least thirty-three percent (33%) of
the Demised Premises to be untenantable or inaccessible shall occur and as a result thereof such
portion of the Premises shall be unoccupied by Tenant or the permitted occupants thereof, then
Tenant shall have the right to terminate this Lease by written notice to Owner within thirty (30)
days after such casualty.
10. If the whole or any part of the demised premises shall be acquired or condemned by Eminent
Domain for any public or quasi public use or purpose, then, and in that event, the term of this
lease shall cease and terminate from the date of title vesting in such proceeding, and Tenant shall
have no claim for the value of any unexpired term of said lease, and assigns to Owner, Tenant’s
entire interest in any such award. Tenant shall have the right to make an independent claim to the
condemning authority for the value of Tenant’s moving expenses and personal property, trade
fixtures and equipment, provided Tenant is entitled pursuant to the terms of the lease to remove
such property, trade fixture and equipment at the end of the term, and provided further such claim
does not reduce Owner’s award.
11. Except as otherwise expressly provided in Article 48 below, Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without the prior written
consent of Owner in each instance. If this lease be assigned, or if the demised premises or any
part thereof be underlet or occupied by anybody other than Tenant, Owner may, after default by
Tenant, beyond applicable notice and cure periods collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance
of the assignee, undertenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained. The consent by Owner to
an assignment or underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment or underletting when such consent
is required under this Lease.
12. Rates and conditions in respect to submetering or rent inclusion, as the case may be, to be
added in RIDER attached hereto. Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the building or the risers or wiring
installation, and Tenant may not use any electrical equipment which, in Owner’s opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by other tenants of
the building. The change at any time of the character of electric service shall in no wise make
Owner liable or responsible to Tenant, for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner’s agents shall have the right (but shall not be obligated) to enter the demised
premises in any emergency at any time, and, at other reasonable times, upon reasonable advance
notice to examine the same and to make such repairs, replacements and improvements as Owner may
deem necessary and reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. Tenant shall permit Owner, upon reasonable advance
notice, to use and maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein, provided they are concealed within the walls, floor, or
ceiling. Subject to Section 41B, Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without the same
constituting an eviction, nor shall the Tenant be entitled to any abatement of rent while such work
is in progress, nor to any damages by reason of loss or interruption of business or otherwise, and
provided further that (a) Owner shall not unreasonably interfere with or interrupt the business
operations of Tenant within the Demised Premises; (b) Owner shall not thereby reduce Tenant’s
usable space (except to a de minimis extent); (c) Owner shall box in any of the same
installed adjacent to existing walls, floors or ceilings, with construction materials substantially
similar to those existing at the time in the affected areas of the Demised Premises; and (d) Owner
shall repair all damage caused by the same and restore such areas of the Demised Premises to the
prior existing condition except as provided in this sentence. Throughout the term hereof, Owner
shall have the right to enter the demised premises at reasonable hours (provided Owner shall use
commercially reasonable efforts to minimize the disruption of Tenant’s use or occupancy of the
Demised Premises). for the purpose of showing the same to prospective purchasers or mortgagees of
the building, and during the last six months of the term, for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an entry into the demised
premises, Owner or Owner’s agents may enter the same whenever such entry may be necessary or
permissible by master key or forcibly, and provided reasonable care is exercised to safeguard
Tenant’s property, such entry shall not render Owner or its agents liable therefor, nor in any
event shall the obligations of Tenant hereunder be affected. In connection with any such entry,
except in the case of an emergency, Owner shall give Tenant reasonable prior written notice and, if
required by Tenant, Owner shall be accompanied by a representative of Tenant provided such
representative is made available. All work done during the course of such entry must be done by
Owner in a good and workerlike manner, with due diligence and in an manner reasonably intended to
minimize the interference with Tenant’s ability to use the Demised Premises as contemplated by this
Lease. If during the last month of the term Tenant shall have removed all or substantially all of
Tenant’s property therefrom, Owner may immediately enter, alter, renovate or redecorate the demised
premises without limitation or abatement of rent, or incurring liability to Tenant for any
compensation, and such act shall have no effect on this lease or Tenant’s obligations hereunder.
Vault, Vault Space, Area:
14. No vaults, vault space or area, whether or not enclosed or covered, not within the property
line of the building, is leased hereunder, anything contained in or indicated on any sketch, blue
print or plan, or anything contained elsewhere in this lease to the contrary notwithstanding. Owner
makes no representation as to the location of the property line of the building. All vaults and
vault space and all such areas not within the property line of the building, which Tenant may be
permitted to use and/or occupy, is to be used and/or occupied under a revocable license, and if any
such license be revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be subject to any
liability, nor shall Tenant be entitled to any compensation or diminution or abatement of rent, nor
shall such revocation, diminution or requisition be deemed constructive or actual eviction. Any
tax, fee or charge of municipal authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation of the certificate
of occupancy issued for the building of which the demised premises are a part. Tenant has inspected
the demised premises and accepts them as is, subject to the riders annexed hereto with respect to
Owner’s work, if any. In any event, Owner makes no representation as to the condition of the
demised premises, except as expressly set forth in this Lease, and Tenant agrees to accept the same
subject to violations, whether or not of record, that do not materially adversely affect Tenant’s
use or occupancy of the Demised Premises. Owner shall not amend the certificate of occupancy during
the term of this Lease to preclude the use of the Demised Premises for office use or to reduce the
number of persons who may lawfully occupy the Demised Premises.
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this lease may be
cancelled by Owner by the sending of a written notice to Tenant within a reasonable time after
the happening of any one or more of the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as the debtor (provided that, if same
is involuntary, it is not dismissed within forty-five (45) days after the commencement of such
proceeding) or (2) the making by Tenant of an assignment or any other arrangement for the
benefit of creditors under any state statute. Neither Tenant nor any person claiming through or
under Tenant, or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the demised premises.
If this lease shall be assigned in accordance with its terms, the provisions of this Article 16
shall be applicable only to the party then owning Tenant’s interest in this lease.
(b) it is stipulated and agreed that in the event of the termination of this lease pursuant
to (a) hereof, Owner shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages, an amount equal to
the difference between the rent reserved hereunder for the unexpired portion of the term demised
and the fair and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent becoming due hereunder
after the date of termination, and the fair and reasonable rental value of the demised premises
for the period for which such installment was payable, shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such demised premises or any part
thereof be re-let by the Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or tribunal, the amount
of rent reserved upon such re-letting shall be deemed to be the fair and reasonable rental value
for the part or the whole of the demised premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to prove for and obtain
as liquidated damages, by reason of such termination, 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, the
amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease; or if any execution or
attachment shall be issued against Tenant or any of Tenant’s property, whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this lease be rejected
under $365 of Title 11 of the U.S. Code (Bankruptcy Code); then, in any one or more of such
events, upon Owner serving a written thirty (30) days (or, for any monetary default, five (5) days)
notice upon Tenant specifying the nature of said default, and upon the expiration of said five
(5) days in the case of a monetary default or thirty (30) days (as to non-monetary defaults), if
Tenant shall have failed to comply with or remedy such default, or if the said default or omission
complained of shall be a non-monetary default and of a nature that the same cannot be completely
cured or remedied within said thirty (30) period, and if Tenant shall not have diligently commenced curing such
default within such thirty (30) period, and shall not thereafter with reasonable diligence and in
good faith, proceed to remedy or cure such default, then Owner may serve a written five (5) days
notice of cancellation of this lease upon Tenant, and upon the expiration of said five (5) days
this lease and the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof, and Tenant shall then quit and surrender the demised
premises to Owner, but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the term shall expire as
aforesaid; then, and in any of such events, Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the
legal representative of Tenant or other occupant of the demised premises, and remove their effects
and hold the demised premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to that end. If Tenant
shall make default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or extension agreement by
written notice.
18. In case of any such default, re-entry, expiration and/or dispossess by summary proceedings or
other wise, (a) the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Owner may re-let the demised premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which may at Owner’s option
be less than or exceed the period which would otherwise have constituted the balance of the term of
this lease, and may grant concessions or free rent or charge a higher rental than that in this
lease, and/or (c) Tenant or the legal representatives of Tenant shall also pay to Owner as
liquidated damages for the failure of Tenant to observe and perform said Tenant’s covenants herein
contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the demised premises, or any part or parts thereof, shall not
release or affect Tenant’s liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such reasonable expenses as Owner may incur in connection with
re-letting, such, as legal expenses, reasonable attorneys fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in
this lease, and any suit brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any subsequent month by a
similar proceeding. Owner, in putting the demised premises in good order or preparing the same for
re-rental may, at Owner’s option, make such alterations, repairs, replacements, and/or decorations
in the demised premises as Owner, in Owner’s sole judgement, considers advisable and necessary for
the purpose of re-letting the demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever for failure to
re-let the demised premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive
any excess, if any, of such net rents collected over the sums payable by Tenant to Owner hereunder.
In the event of a breach or threatened breach by Tenant of any of the covenants or provisions
hereof, Owner shall have the right of injunction and the right to invoke any remedy allowed at law
or in equity as if re-entry, summary proceedings and other remedies were not herein provided for,
Mention in this lease of any particular remedy, shall not preclude Owner or Tenant from any other
remedy, in law or in equity (except to the extent such remedy is expressly precluded by this
Lease). Tenant hereby expressly waives any and all rights or 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 Owner 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.
19. If Tenant shall default in the observance or performance of any term or covenant on Tenant’s
part to be observed or performed under, or by virtue of, any of the terms or provisions in any
article of this lease, after notice, if required, and upon expiration of any applicable grace
period, if any, (except in an emergency), then, unless otherwise provided elsewhere in this lease,
Owner may immediately, or at any time thereafter and without notice, perform the obligation of
Tenant thereunder. If Owner, in connection with the foregoing, or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs any obligations for
the payment of money, including but not limited to reasonable attorneys’ fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such action or proceeding,
then Tenant will reimburse Owner for such sums so paid, or obligations incurred, with interest and
costs. The foregoing expenses incurred by reason of Tenant’s default shall be deemed to be
additional rent hereunder, and shall be paid by Tenant to Owner within ten (10) days of rendition
of any xxxx or statement to Tenant therefor. If Tenant’s lease term shall have expired at the time
of making of such expenditures or incurring of such obligations, such sums shall be recoverable by
Owner, as damages.
20. Owner shall have the right at any time without the same constituting an eviction and without
incurring liability to Tenant therefor, to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets or other public
parts or the building, and to change the name, number or designation by which the building may be
known provided Tenant’s access to the Demised Premises is not adversely affected thereby except
to a de minimis extent. There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or other Tenants making any repairs in the building or any such alterations, additions
and improvements provided the same is performed with due diligence and in a manner reasonably
intended to minimize interference with Tenant’s use and enjoyment of the Demised Premises,
furthermore, Tenant shall not have any claim against Owner by reason of Owner’s imposition of such
reasonable controls of the manner of access to the building by Tenant’s social or business
visitors as the Owner may deem necessary for the security of the building and its occupants.
No Representations Owner:
21. Neither Owner nor Owner’s agents have made any representations or promises with respect to the
by physical condition of the building, the land upon which it is erected or the demised premises,
the rents, leases, expenses of operation or any other matter or thing affecting or related to the
demised premises, except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise, except as expressly set forth in the provisions of
this lease. Tenant has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same “as-is”, and acknowledges that the taking of
possession of the demised premises by Tenant shall be conclusive evidence that the said premises
and the building of which the same form a part were in good and satisfactory condition at the time
such possession was so taken, except as to latent defects. All understandings and agreements
heretofore made between the parties hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant, 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.
22. Upon the expiration or other termination of the term of this lease, Tenant shall quit and
surrender to Owner the demised premises, “broom-clean”, in good order and condition, damage by
casualty or condemnation, ordinary wear and damages which Tenant is not required to repair as
provided elsewhere in this lease excepted, and Tenant shall remove all its property to the extent
required hereunder. Tenant’s obligation to observe or perform this covenant shall survive the
expiration or other termination of this lease. If the last day of the term of this lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the preceding Saturday, unless
it be a legal holiday, in which case it shall expire at noon on the preceding business day.
23. Owner covenants and agrees with Tenant that as long as Tenant is not in default, beyond any
applicable notice and grace periods, in observing and performing all the terms, covenants and
conditions, on Tenant’s part to be observed and performed, Tenant may peaceably and quietly enjoy
the premises hereby demised, subject, never-
theless, to the terms and conditions of this lease including, but not limited to, Article 31
hereof, and to the ground leases, underlying leases and mortgages hereinbefore mentioned.
24. Tenant acknowledges that Tenant is currently in possession of the entirety of the Demised
Premises pursuant to the Existing Lease (as defined in Article 63 below). The provisions of this
article are intended to constitute “an express provision to the contrary” within the meaning of
Section 223-a of the New York Real Property Law.
No Waiver:
25. The failure of Owners or Tenant, as the case may be, to seek redress for violation
of, or to insist upon the strict performance of, any covenant or condition of this lease or of any
of the Rules or Regulations, set forth or hereafter adopted by Owner, 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 Owner or the payment by Tenant of rent and/or
additional rent with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach, and no provision of this lease shall be deemed to have been waived by Owner
or Tenant, as the case may be, unless such waiver be in writing signed by Owner or Tenant, as the
case may be. No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner’s right to recover the balance of such rent or pursue any other remedy in this
lease provided. No act or thing done by Owner or Owner’s agents during the term hereby demised
shall be deemed an acceptance of a surrender of the demised premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Owner. No employee of Owner or Owner’s
agent shall have any power to accept the keys of said premises prior to the termination of the
lease, and the delivery of the keys to any such agent or employee shall not operate as a
termination of the lease or a surrender of the demised premises.
26. It is mutually agreed by and between Owner and Tenant that the respective parties hereto
shall, and they hereby do, waive trial by jury in any action proceeding or counterclaim brought by
either of the parties hereto against the other (except for personal injury or property damage) on
any matters whatsoever arising out of, or in any way connected with, this lease, the relationship
of Owner and Tenant, Tenant’s use of, or occupancy of, the demised premises, and any emergency
statutory or any other statutory remedy.
27. This Except as otherwise expressly provided in this Lease, this lease and the obligation
of Tenant to pay rent hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease, or to supply, or is delayed in
supplying, any service expressly or impliedly to be supplied, or is unable to make, or is delayed
in making, any repair, additions, alterations, or decorations, or is unable to supply, or is
delayed in supplying, any equipment, fixtures, or other materials, if Owner is prevented or delayed
from so doing by reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption or restrictions or by reason of any rule, order or regulation of
any department or subdivision thereof of any government agency, or by reason of the conditions
which have been or are affected, either directly or indirectly, by war or other emergency.
Bills and Notices:
28.
(Intentionally Omitted)
Services Provided by Owners:
29. As long as this lease shall be in full force and effect, Owner shall provide (at Owner’s
cost and expense) (a) an adequate quantity of hot and cold water for cleaning, drinking, and core
lavatory purposes (including the supply of water to pantry areas in the Demised Premises, but
excluding any cafeteria or restaurant), 24 hours a day, 7 days a week, to the Demised Premises (it
being understood and agreed that if Tenant requires water for any other purpose in the Demised
Premises or in quantities in excess of that required for normal office occupancy and Owner (acting
reasonably) consents to such use or if Tenant uses or consumes water for any other purposes or in
unusual quantities (of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant’s expense, which Tenant shall thereafter maintain at Tenant’s expense in good working
order and repair, to register such water consumption, and Tenant shall pay for water consumed as
shown on said meter as additional rent, but only to the extent of such excess water usage, within
twenty (20) days after Tenant’s receipt of bills therefor, in an amount equal to 105% of the
charge actually paid by Owner to the entity furnishing such quantities of water; and; (b) cleaning service for the demised premises on business days at Owner’s expense
(including, but not limited to, trash removal and exterior window washing) as more particularly
described in the Cleaning Specification annexed hereto as Exhibit B to this Lease (subject to
Section 57B), and for the common areas of the Building, the Building’s exterior and the
sidewalks; (c) Subject to Section 41B hereof, Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, electric, power systems or cleaning or other
services, if any, when necessary by reason of accident, or for repairs, alterations, replacements
or improvements necessary or desirable in the reasonable judgment of Owner, or by reason of fire,
storm, explosion, strike, lockout, labor dispute, casualty, lack or failure of sources or supply of
fuel, act of God, act of a public enemy, riot, interference by civil or military authorities, or by
reason of any other cause beyond Owner’s control, or for emergency or for inspection or cleaning,
for as long as may be reasonably required by reason thereof. If the building of which the demised
premises are a part supplies manually operated elevator service, Owner at any time may substitute
automatic control elevator service and proceed diligently with alterations necessary therefor
without in any wise affecting this lease or the obligations of Tenant hereunder.
30. 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 provisions thereof.
31. The term “office,” or “offices”, wherever used in this lease, shall not be construed to
mean premises used as a store or stores, for the sale or display, at any time, of goods, wares or
merchandise, of any kind, or as a restaurant, shop, booth, bootblack or other stand, xxxxxx shop,
or for other similar purposes, or for manufacturing. The term “Owner” means a landlord or lessor,
and 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) of
which the demised premises form a part, so that in the event of any sale or sales of said land and
building, or of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be, and hereby is, entirely freed and relieved of all covenants and
obligations of Owner hereunder, accruing after any such sale or lease of the entire Building or
assignment of such lease and it shall be deemed and construed without further agreement between the parties or their successors in interest, or between the parties and the
purchaser, at any such sale, or the said lessee of the building, or of the land and building, that
the purchaser or the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words “re-enter” and “re-entry” as used in this
lease are not restricted to their technical legal meaning. The term "Lease" whenever used in this Lease shall mean the pre-printed portion of this Lease together with these inserts and the Rider attached thereto.
Adjacent Excavation-Shoring:
32. If an excavation 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, a license to enter upon the demised premises for the purpose of doing such work as said
person shall deem necessary to preserve the wall or the building, of which demised premises from a
part, from injury or damage, and to support the same by proper foundations, without any claim for damages or
indemnity against Owner, or diminution or abatement of rent.
33. Tenant and Tenant’s servants, employees, agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules and Regulations and such other and further
reasonable Rules and Regulations as Owner or Owner’s agents may from time to time adopt. At least
ten (10) days prior written notice in accordance with Article 58 of any additional Rules or
Regulations shall be given. In case Tenant disputes the reasonableness of any additional Rules or
Regulations hereafter made or adopted by Owner or Owner’s agents, the parties hereto agree to
submit the question of the reasonableness of such Rules or Regulations for decision to the New York
office of the American Arbitration Association, whose determination shall be final and conclusive
upon the parties hereto. The right to dispute the reasonableness of any additional Rules or
Regulations upon Tenant’s part shall be deemed waived unless the same shall be asserted by service
of a notice, in writing, upon Owner, within fifteen (15) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other lease, as against
any other tenant, and Owner shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees. Owner shall enforce the Rules and
Regulations against Tenant and the other occupants of the Building in a non-discriminatory manner.
In the event of any conflict or inconsistency between the provisions of this Lease and of any of
the Rules and Regulations, the provisions of this Lease shall control.
Security:
34. Tenant has deposited with Owner the sum required by Article 59 as security for the
faithful performance and observance by Tenant of the terms, provisions and conditions of this
lease; it is agreed that in the event Tenant defaults (beyond applicable notice and cure periods)
in respect of any of the terms, provisions and conditions of this lease, including, but not limited
to, the payment of rent and additional rent, Owner may use, apply or retain the whole or any part
of the security so deposited to the extent required for the payment of any rent and additional
rent, or any other sum as to which Tenant is in default, or for any sum which Owner may expend or
may be required to expend by reason of Tenant’s default in respect of any of the terms, covenants
and conditions of this lease, including but not limited to, any damages or deficiency in the
re-letting of the demised premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Owner. 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 forty-five (45) days after the date fixed as the end of the
lease and after delivery of entire possession of the demised premises to Owner. In the event of a
sale of the land and building, or leasing of the building, of which the demised premises form a
part, Owner shall transfer the security to the vendee or lessee, and owner shall thereupon be
released by Tenant from all liability for the return of such security; and Tenant agrees to look to
the new Owner
solely for the return of said security, and it is agreed that the provisions hereof shall
apply to every transfer or assignment made of the security to a new Owner. 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 Owner nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel Certificates:
35. (Intentionally
Omitted)
36. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs, distributees,
executors, administrators, successors, and except as otherwise provided in this lease, their
assigns. Tenant shall look only to Owner’s estate and interest in the land and building, for the
satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process)
against Owner in the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or undisclosed), shall
be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s
remedies under, or with respect to, this lease, the relationship of Owner and Tenant hereunder, or
Tenant’s use and occupancy of the demised premises.
[SEE ATTACHED RIDER HEREBY MADE A PART HEREOF]
| LANDLORD: | FIFTH AND 38TH LLC, a Delaware limited liability company |
|||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | President | |||
| TENANT: | ATARI, INC. |
|||
| By: | /s/ XXXXX XXXXXXX | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | Chairman, CEO & Chief Creative Officer | |||
On the 20 day of June, in the year 2006, before me, the undersigned, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
| /s/ XXXXX XXXXXX | ||||
| Notary Public |
||||
| XXXXX XXXXXX Notary Public, State Of New York No. 01SE6074886 Qualified in Nassau County Commission Expires May 27, 2008 |
||||
IMPORTANT-PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules, stairways,
corridors or halls shall not be obstructed or encumbered by Tenant or used for any purpose other
than for ingress or egress from the demised premises, and for delivery of merchandise and equipment
in a prompt and efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the building, either by
Tenant or by jobbers or others in the delivery or receipt of merchandise, any hand trucks, except
those equipped with rubber tires and sideguards. If said premises are situated on the ground floor
of the building, Tenant thereof shall further, at Tenant’s expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any purposes other than
those for which they were designed or constructed, and no sweepings, rubbish, rags, acids or other
substances shall be deposited therein, and the expense of any breakage, stoppage, or damage
resulting from the violation of this rule shall be borne by the Tenant, whether or not caused by
the Tenant, or its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any window of the building and
Tenant shall not sweep or throw, or permit to be swept or thrown,
from the demised premises any
dirt or other substances into any of the corridors or halls, elevators, or out of the doors or
windows or stairways of the building, and Tenant shall not use, keep or permit to be used or kept,
any foul or noxious gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner or other occupants
of the building by reason of noise, odors, and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any bicycles, vehicles, animals, fish, or birds be kept in or about the building. Smoking or carrying
lighted cigars or cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the building without
the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or
affixed by Tenant on any part of the outside of the demised premises or the building, or on the
inside of the demised premise if the same is visible from the outside of the demised premises,
without the prior written consent of Owner, except that the name of Tenant may appear on the
entrance door of the demised premises. In the event of the violation of the foregoing by Tenant,
Owner may remove same without any liability, and may charge the expense incurred by such removal to
Tenant. Interior signs on doors and directory tablet shall be inscribed, painted or affixed for
Tenant by Owner at the expense of Tenant, and shall be of a size, color and style acceptable to Owner.
6. Tenant shall not xxxx, paint, drill into, or in any way deface, any part of the demised premises or the building of which they form a part, except in
connection with normal decoration of the Demised Premises or any Alteration permitted hereunder. No
boring, cutting or stringing of wires shall be permitted, except with the prior written consent of
Owner, and as Owner may direct. Tenant shall not lay linoleum, or other similar floor covering, so
that the same shall come in direct contact with the floor of the demised premises, and, if linoleum
or other similar floor covering is desired to be used, an interlining of builder’s deadening felt
shall be first affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the doors or windows by Tenant, nor shall any changes be made in
existing locks or mechanism thereof. Tenant must, upon the termination of his tenancy, restore to
Owner all keys of stores, offices and toilet rooms, either furnished to, or otherwise procured by,
Tenant, and in the event of the loss of any keys, so furnished, Tenant shall pay to Owner the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any description shall be
delivered to and removed from the demised premises only on the freight elevators and through the
service entrances and corridors, and only during hours and in a manner reasonably approved by Owner. Owner
reserves the right to inspect all freight to be brought into the building and to exclude from the building all freight which violates any
of these Rules and Regulations of the lease, or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and Tenant shall cooperate to
prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not present a pass to
the building signed by Owner. Owner will furnish passes to persons for whom Tenant requests same in
writing. Tenant shall be responsible for all persons for whom he requests such pass, and shall be
liable to Owner for all acts of such persons. Tenant shall not have a claim against Owner by reason
of Owner excluding from the building any person who does not present such pass.
11. Owner shall have the right to prohibit any advertising by Tenant which in Owner’s reasonable opinion tends to impair the reputation of the building or its desirability
as a building for offices, and upon written notice from Owner, Tenant shall refrain from or
discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised premises, any
inflammable, combustible, explosive, or hazardous fluid, material, chemical or substance, except
such ordinary quantities as are customarily maintained in office premises or cause or permit any odors of cooking or other processes, or any unusual or other
objectionable odors, to permeate in, or emanate from, the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant agrees to keep all
windows closed at all times and to abide by all rules and regulations issued by Owner with respect
to such services. Tenant shall cooperate with Owner in obtaining maximum effectiveness of the
cooling system by lowering and closing venetian blinds and/or drapes and curtains when the sun’s
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky matter, or fixtures
into or out of the building without Owner’s prior written consent. If such safe, machinery,
equipment, bulky matter or fixtures requires special handling, all work in connection therewith
shall comply with the Administrative Code of the City of New York and all other laws and
regulations applicable thereto, and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at its sole cost and
expense, to comply with all present and future laws, orders, and regulations, of all state,
federal, municipal, and local governments, departments, commissions and boards regarding the
collection, sorting, separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such categories as
provided by law. Each separately sorted category of waste products, garbage, refuse and trash shall
be placed in separate receptacles reasonably approved by Owner. Such separate receptacles may, at
Owner’s option, be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor acceptable to Owner,
at Owner’s sole discretion, such items as Owner may expressly designate. (2) Owner’s Rights in
Event of Noncompliance. Owner has the option to refuse to collect or accept from Tenant waste
products, garbage, refuse or trash (a) that is not separated and sorted as required by law or (b)
which consists of such items as Owner may expressly designate for Tenant’s removal, and to require
Tenant to arrange for such collection at Tenant’s sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties, or damages that may
be imposed on Owner or Tenant by reason of Tenant’s failure to comply with the provisions of this
Building Rule 15, and, at Tenant’s sole cost and expense, shall indemnity, defend and hold Owner
harmless (including reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory to Owner.
| 7 |
ADDITIONAL RULES AND REGULATIONS ATTACHED TO AND MADE A
PART OF THIS LEASE IN ACCORDANCE WITH ARTICLE 33
PART OF THIS LEASE IN ACCORDANCE WITH ARTICLE 33
No tenant shall obtain for use upon the demised premises ice, drinking water, towel and other
similar services, or accept barbering or bootblacking services in the demised premises, except from
persons reasonably approved by Owner and at hours and under regulations fixed by Owner. Canvassing,
soliciting and peddling in the building is prohibited and each tenant shall cooperate to prevent
the same.
Any person whose presence in the building at any time shall, in the reasonable judgment of
Owner, be prejudicial to the safety, character, security, reputation or interests of the building
or the tenants of the building may be denied access to the building or may be ejected from the
building. In the event of invasion, riot, public excitement or other commotion, Owner may prevent
all access to the building during the continuance of the same by closing the doors or otherwise,
for the safety of tenants and the protection of property in the building.
The sashes, sash doors, skylights, windows, and doors that reflect or admit light and air into
the halls, passageways or other public places in the building shall not be covered or obstructed by
any tenant, nor shall any bottles, parcels, or other articles be placed on the window xxxxx.
No showcases, merchandise, furniture or other articles shall be put in front of or affixed to
any part of the exterior of the building, nor placed in the common halls, corridors or vestibules
without the prior written consent of Owner.
No bicycles, vehicles or animals, other than seeing-eye dogs, of any kind shall be brought
into or kept in or about the building and/or the demised premises.
No tenant shall engage or pay any employees on the demised premises, except those actually
working for such tenant on the demised premises, nor advertise for laborers giving an address at
the demised premises.
Each tenant, before closing and leaving the demised premises at any time, shall close all
windows in the demised premises.
The demised premises shall not be used for lodging or sleeping or for any immoral or
illegal purpose.
The requirements of tenants will be attended to only upon application at the office of the
building. Employees of Owner shall not perform any work or do anything outside of the regular
duties, unless under special instructions from the office of Owner.
Each tenant shall, at the expense of such tenant, provide light, power and water for the
agents, contractors and employees of Owner, while doing janitor service or other cleaning in the
demised premises and while making repairs or alterations in or to the demised premises.
| 8 |
Whenever any tenant shall submit to Owner any plan, agreement or other document for the
consent or approval of Owner, such tenant shall pay to Owner, on demand, a processing fee in the
amount of the reasonable third party out-of-pocket fees for the review thereof, including the
services of any architect, engineer or attorney employed by Owner to review such plan, agreement or
document.
Owner reserves the right to rescind, alter, waive or add, as to one or more or all tenants,
any reasonable rule or regulation at any time prescribed for the building when, in the reasonable
judgment of Owner, Owner deems it necessary or desirable for the reputation, safety, character,
security, care, appearance or interest of the building, or the preservation of good order therein,
or the operation or maintenance of the building, or the equipment thereof, or the comfort of
tenants or others in the building. No rescission, alteration, waiver or addition of any rule or
regulation in respect of one tenant shall operate as a rescission, alteration or waiver in respect
of any other tenant. However, Owner shall not enforce any of the Rules and Regulations in such
manner as to discriminate against Tenant or anyone claiming under or through Tenant.
No noise, including, but not limited to, music, the playing of musical instruments, recording,
radio or television, which, in the reasonable judgment of Owner, might disturb other tenants in the
building, shall be made or permitted by any tenant. Nothing shall be done or permitted by any
tenant which would impair or interfere with the use or enjoyment by any other tenant or any other
space in the building. Tenant shall not be precluded from customary and reasonable noise during
reasonable periods of performance of alterations, provided Tenant shall cause its contractors to
use their best efforts to minimize such noise during business hours on business days.
In the event of any conflict between the Lease and these Rules and Regulations, the
provisions of the Lease shall prevail.
RIDER TO AGREEMENT OF LEASE DATED AS OF JUNE 21, 2006 BETWEEN FIFTH AND 38TH LLC, AS
OWNER, AND ATARI, INC., AS TENANT.
IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN ANY PROVISION OF THIS RIDER AND ANY PROVISION
OF THE PRINTED FORM OF LEASE TO WHICH THIS RIDER IS ATTACHED (OR THE INSERTS THERETO), THE
PROVISION OF THIS RIDER SHALL GOVERN.
37. Basic Provisions: The definitions set forth above, herein and in this
Article 37 are an integral part of this Lease and all of the terms hereof are incorporated into
this Lease. In addition to the other terms which are elsewhere defined in this Lease, the following
capitalized terms, whenever used in this Lease, shall have the meanings set forth in this Article,
and only such meanings, unless such meanings are expressly contradicted, limited or expanded
elsewhere herein:
A. “ADA” shall mean the Americans with Disabilities Act of 1990 (42 U.S.C. §
12101 et seq.),
as amended from time to time.
B. “Additional Insureds” shall mean Owner, Fifth and 38th Mezz LLC, Big Apple Funding
LLC, MHP
000 Xxxxx Xxxxxx LLC, GEBAM, Inc., Xxxxxx Xxxx Properties Real Estate Investment II L.P., Xxxxxx
Xxxx XX, LLC and Xxxxxx Hill Properties LLC and any additional or other parties as Owner may
designate from time to time upon not less than ten (10) Business Days prior written notice to
Tenant.
C. “Brokers” shall mean Xxxxxx Xxxx Properties LLC and CB Xxxxxxx Xxxxx, Inc.
D. “Business Day” shall mean any day excluding Saturdays, Sundays and all days
observed as
holidays by either the federal or New York State governments and/or any of the labor unions
servicing the Building, from time to time.
E. “Business Hours” shall mean 8:00 a.m. to 6:00 p.m. on Business Days.
F. “Commencement Date” shall mean July 1, 2006.
G. “CPI” shall mean the Consumer Price Index for All Urban Consumers published by the
Bureau
of Labor Statistics of the United States Department of Labor, New York, N.Y. — Northeastern N.J.
Area, All Items (1982-84 = 100), or any successor or substitute index thereto, appropriately
adjusted.
H. “CPI Increase” shall mean the percent of increase, if any, in the CPI for the
month
in which the applicable date occurs over the CPI for the month in which the Commencement Date
occurs.
I. “Expiration Date” shall mean the day preceding the fifteen
(15) year anniversary of the Commencement Date, or such other date upon which the
2
Term shall cease and expire pursuant to the provisions of this Lease (pursuant to Article 17 or
Article 60 or otherwise).
J. “Fixed Annual Rent” (subject to the Credit, as set forth in
Section 46C) shall be:
(i) With respect to the Office Space:
(1) from the Commencement Date
through and
including June 30, 2011, Two Million Three Hundred Eighty Thousand and 00/100 Dollars
($2,380,000.00) per annum ($198,333.33 per month);
(2) from July 1, 2011 through
and including
June 30, 2016, Two Million Six Hundred Sixty-six Thousand and 00/100 Dollars ($2,660,000.00)
per annum ($221,666.67 per month); and
(3) from July 1, 2016 through
and including the
Expiration Date, Two Million Nine Hundred Forty Thousand and 00/100 Dollars ($2,940,000.00)
per annum ($245,000.00 per month).
(ii) With respect to the Basement Space, from the
Commencement Date through and including the Expiration Date, at a rate per annum equal to Ten
Dollars ($10.00) per rentable square foot of Basement Space demised at such time.
K. “Person” (whether or not capitalized) shall mean any individual, sole
proprietorship, corporation, partnership, limited liability company, unincorporated organization,
mutual company, joint stock company, trust, estate, union or other entity.
L. “Rent Commencement Date” shall mean July 1, 2007.
M. “Tenant’s Percentage” shall mean 17.00%.
A. Real Estate Tax Increase Payment.
(1) For each Tax Year (hereinafter defined) during the
Term after the Base Tax Year, Tenant shall pay, as Additional Rent (hereinafter defined), the Tax
Payment (hereinafter defined) for such Tax Year.
(2) Tax Definitions:
(a) The term “Real
Estate Taxes” shall mean
(i) the sum of the real estate taxes and assessments, Business Improvement District taxes,
charges and assessments, and special assessments imposed upon the Building and the plot of
land on which the Building stands (the “Land”) and
3
any rights or interests appurtenant thereto payable by Owner during any Tax Year and (ii)
reasonable attorneys’ fees, court, or other administrative costs and disbursements incurred
by Owner in connection with any reduction in Real Estate Taxes which is obtained prior to
the date such Real Estate Taxes are payable. If at any time during the Term the methods of
taxation prevailing at the time of the commencement thereof shall be altered so that in
lieu of or as an addition to or as a substitute for the whole or any part of the real
estate taxes, assessments, levies, impositions or charges now levied, assessed or imposed,
there shall be levied, assessed or imposed a tax, assessment, levy, imposition or charge
wholly or partially as a capital levy or on the rents, licenses or other charges received
with respect to the Demised Premises, the Land or the Building, then all such taxes,
assessments, levies, impositions or charges payable shall be deemed to be included within
the term “Real Estate Taxes” for the purposes hereof. A copy of the tax xxxx of The City of
New York or other taxing authority imposing Real Estate Taxes on the Land or the Building
shall be sufficient evidence of the amount of Real Estate Taxes and (to the extent
available to Owner) shall be delivered to Tenant together with the Tax Statement.
Notwithstanding the fact that the aforesaid Additional Rent is measured by Real Estate
Taxes, such amount is Additional Rent and shall be paid by Tenant as provided herein
regardless of the fact that Tenant may be exempt, in whole or in part, from the payment of
any Real Estate Taxes for any reason whatsoever. Real Estate Taxes also shall not include
any penalties or interest that derive from Owner’s failure to pay Real Estate Taxes to the
applicable governmental authority on a timely basis, except to the extent (if any) that
Landlord incurred such penalties or interest because Tenant failed to make a Tax Payment
hereunder when due.
(b) The term “Base
Real Estate Taxes” shall mean the Real Estate Taxes for the Base
Tax Year.
(c) The term “Base
Tax Year” shall the twelve (12) month period commencing on July 1,
2007 and ending on June 30, 2008.
(d) The term “Tax
Year” shall mean each
twelve (12) month fiscal period commencing on July 1 and ending on June 30 of the following
year, any portion of which fiscal period occurs during the Term.
(e) The term “Tax
Payment” shall mean
Tenant’s Percentage of the amount by which the Real Estate Taxes payable for a Tax Year
exceed the Base Real Estate Taxes, whether such increase results from a higher tax rate or
an increase in the assessed valuation of the Land or the Building, or both, or from any
other cause or reason whatsoever.
(3) With respect to each Tax Year after the Base Tax
Year occurring in whole or in part during the Term, Tenant shall pay to Owner the Tax Payment in
the manner described in this Section 38A(3) and in accordance with Section 38C. At any time after
the date which is sixty (60) days prior to the commencement of each such Tax Year, Owner may
furnish to Tenant a written statement (a “Tax
4
Statement”) setting forth the amount of Real Estate Taxes for such Tax Year, the amount of
Base Real Estate Taxes and the amount of the Tax Payment for such Tax Year. Tenant shall pay the
Tax Payment for each such Tax Year to Owner as Additional Rent in two (2) semi-annual installments,
the first (i.e., with respect to the first half of the Tax Year) within thirty (30) days after
receipt by Tenant of such Tax Statement (together with a copy of the applicable tax xxxx) and the
second (i.e., with respect to the second half of the Tax Year) not later than thirty (30) days
prior to the date on which the payment of Real Estate Taxes with respect to the second half of the
Tax Year is due to the taxing authority (it being understood that the second installment shall
reflect any corrected amount of Real Estate Taxes set forth on any corrected Tax Statement, such
that Tenant shall pay the entire Tax Payment, as so corrected, for the applicable Tax Year).
(4) Only Owner shall be entitled to institute tax
reduction or other proceedings to reduce the assessed valuation of the Land or the Building. Should
Owner be successful in any such reduction proceedings and obtain a rebate for any Tax Year for
which Tenant has paid the Tax Payment, Owner, after deducting the expenses incurred in obtaining
such rebate (but only to the extent not already included in Taxes) including, without limitation,
attorneys’ fees, court, or other administrative costs and disbursements, shall credit Tenant’s
Percentage of such rebate against the next monthly installments of the Fixed Annual Rent payable
under this Lease (or, if this Lease shall terminate prior to the full application of such credit,
then Owner shall pay any remaining portion of Tenant’s Percentage of such rebate to Tenant). In the
event that the assessed valuation which had been utilized in computing the Base Real Estate Taxes
is reduced (as a result of settlement, final determination of legal proceedings or otherwise) then
(i) the Base Real Estate Taxes shall be retroactively adjusted to reflect such reduction, (ii) all
Tax Payments theretofore made by Tenant shall be recalculated based on the reduced amount of Base
Real Estate Taxes and (iii) all amounts due from Tenant to Owner by reason of such recalculation
shall be payable by Tenant to Owner within thirty (30) days after the rendition of a xxxx therefor.
(5) If the Building or Land is subject to any tax
abatement during the Base Tax Year or any succeeding Tax Year, the Taxes for the Base Tax Year and
each succeeding Tax Year shall be determined as if such abatement were not applicable and the
Building and Land were fully assessed.
(6) If any assessment may be paid in installments, only
the installment(s) actually paid in a particular Tax Year shall be included in Real Estate Taxes
for such Tax Year.
B. Operating Expense Increase Payment.
(ii) For each Operating Year (as hereinafter defined)
during the Term, Tenant shall pay, as Additional Rent, the Operating Payment (as hereinafter
defined) for such Operating Year, in accordance with the further provisions of this Section 38B.
5
(iii) For purposes hereof, the following definitions shall apply:
(1) The term “Operating
Year” shall mean
calendar year 2007 and each succeeding calendar year thereafter occurring in whole or in part
during the Term.
(2) The term “Wage Rate”
shall mean the
undiscounted regular hourly wage rate (excluding, however, fringe benefits) payable to or in
respect of Porters (as hereinafter defined) of Class A office buildings in New York County, in
effect as of January 1 of the Operating Year in question, pursuant to agreement(s) (herein
individually or collectively called “Agreement”) between the Real Estate Advisory Board on Labor
Relations, Incorporated (“RAB”) and Local 32B-32J of the Service Employees International Union,
AFL-CIO (“Local 32B-32J”) (or, if either or both of such entities is not in existence or acting in
respect of such matters, then, by any successor(s) or substitute(s) performing similar functions).
(3) The term “Class A
office buildings” shall
mean the class of office buildings defined as such under the current Agreement with Local
32B-32J.
(4) The term “regular hourly
wage rate” shall
include all payments of every kind (excluding, however, fringe benefits) then payable to or in
respect of Porters, computed on the basis of the total annual amount payable to or in respect of
Porters pursuant to the Agreement, provided, however, if any union agreement shall require the
regular employment of Porters on days or during hours when overtime or other premium pay rates are
in effect, then the “regular hourly wage rate,” as used above and subject to the other adjustments
provided for herein, shall be deemed to mean the actual weekly wage rate, divided by the actual
hours in a calendar week during which Porters are required to be employed (if, for example, as of
the Commencement Date, an agreement between RAB and Local 32B-32J shall require the regular
employment of Porters for forty (40) hours during a calendar week at a minimum hourly wage rate of
$3.00 for the first thirty (30) hours, and premium or overtime hourly wage rate of $4.50 for the
remaining ten (10) hours, the minimum regular hourly wage rate under this Article, as of the
Commencement Date, shall be deemed to be the total weekly wage rate of $135.00 divided by the total
number of required hours of employment, forty (40), or $3.375). If no Agreement shall be in effect
as of any such January 1 with reference to which the regular hourly wage rate for Porters is to be
determined, then the applicable computations and payments under this Lease shall be made upon the
basis of the regular hourly wage rate (determined in accordance with the preceding provisions of
this Article) being paid by Owner or by the contractor performing the cleaning services for Owner
on such January 1 to or in respect of Porters, and thereafter appropriate retroactive adjustment
shall be made when the regular hourly wage rate payable to or in respect of such Porters is
determined pursuant to Agreement. For the purposes hereof, if the regular hourly wage rate of
Porters shall increase during any Operating Year the regular hourly wage rate “in effect as of
January 1” of such Operating Year shall be adjusted for the
6
portion of the year for which the increase shall be effective. The Wage Rate and Base Wage Rate
shall be calculated by dividing the annual undiscounted cost for a Xxxxxx receiving the regular
hourly wage rate, by 2,080 hours for each full calendar year involved. In calculating the regular
hourly wage rate Owner shall apply such procedures and practices as are generally applied in such
calculations by the owners of Class A office buildings in the midtown area of the County, City and
State of New York, and any dispute or controversy as to or relating to the calculation of the “Wage
Rate” shall be determined by arbitration, which arbitration shall be by three independent
arbitrators each of whom shall have at least ten years’ experience in the supervision of the
operation and management of Class A office buildings in New York County.
(5) The term “Porters”
shall mean that
classification of employee engaged in the general maintenance and operation of office buildings
currently classified as “others” in the current Agreement, or failing such classification in any
subsequent Agreement, the most nearly comparable classification in such Agreement.
(6) The term “Base Wage
Rate” shall mean the Wage Rate in effect as of January 1, 2007.
(7) The term “Wage Rate
Multiple” shall mean 70,000.
(8) In the event that the Wage Rate
in effect as
of January 1 of any Operating Year commencing January 1, 2008 shall exceed the Base Wage Rate,
Tenant shall pay to Owner, as Additional Rent for such Operating Year, an amount (the “Operating
Payment”) equal to the product obtained by multiplying (a) the number of cents (including any
fraction of a cent) by which the Wage Rate exceeds the Base Wage Rate, by (b) the Wage Rate
Multiple. By or after the start of the Operating Year commencing January 1, 2007 and by or after
the start of each Operating Year thereafter, Owner shall furnish to Tenant a statement relating to
such Operating Year and a statement of the Base Wage Rate, showing the escalation, if any, which
shall be due hereunder from Tenant to Owner and the additional rent then payable by Tenant to Owner
shall be paid as provided below (each such statement, an “Escalation Statement”). The obligation of
Tenant to pay additional rent pursuant to this Section 38B is not predicated upon the rendition by
Owner of any cleaning service to the Premises or upon the employment by Owner of Porters or
cleaners or by the application to Owner or to the Building of the collective bargaining agreements
referred to above. Tenant acknowledges that the payment of Additional Rent to Owner pursuant to the
provisions of this Section 38B is intended to be an escalation payment to provide additional rent
to Owner and is not a measurement of actual increased costs incurred by Owner in the operation of
the Building.
(iv) Any such adjustment payable by reason of the
provisions of this Section 38B shall commence to be payable in equal monthly installments, as of
the first day of the period commencing on or after January 1, 2008 for which the Wage Rate shall
exceed the Base Wage Rate, and after Owner shall furnish
7
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 Section 38B; provided, however,
that if said Escalation Statement is furnished to Tenant after the commencement or effective date
of any change in the Wage Rate, there shall be due from Tenant to Owner within thirty (30) days
after such Escalation Statement, an amount equal to the portion of such adjustment allocable to the
period prior to the date upon which said Escalation Statement is furnished to Tenant. In the event
that the Wage Rate shall be changed or shall change more frequently than once a year, the
adjustment hereunder shall similarly be made by Owner in a supplemental Escalation Statement
furnished by Owner to Tenant, so as to reflect such change in the monthly installments due
hereunder, and to reflect the effective date of each such change.
C. All Escalation Payments.
(1) Subject to Tenant’s rights as set forth herein to
dispute the correctness of any statement, xxxx or demand furnished by Owner with respect to any
item of Additional Rent provided for in this Article 38, Tenant’s obligation to make any payment
provided for in this Article 38 shall be absolute and not conditioned on the happening of any act,
thing or occurrence, including without limitation the time or timeliness at or with which such
statement, xxxx or demand is furnished to or made upon Tenant. Owner’s failure during the Term to
prepare and deliver any statements or bills required to be delivered to Tenant hereunder, or
Owner’s failure to make a demand under this Article 38 or under any other provisions of this Lease
shall not in any way be deemed to be a waiver of, or cause Owner to forfeit or surrender its rights
to collect, any Additional Rent which may have become due pursuant to this Article 38 during the
Term. Except as otherwise expressly set forth above, Tenant’s liability for the Additional Rent due
under this Article 38 and Owner’s obligation to make payments and refunds to Tenant hereunder,
shall continue unabated during the remainder of the Term and shall survive the expiration or sooner
termination of this Lease.
(2) In no event shall any adjustment of any payments
payable by Tenant in accordance with the provisions of this Article 38 result in a decrease in
Fixed Annual Rent nor shall any adjustment of any Additional Rent payable by Tenant pursuant to any
provision of this Article 38 result in a decrease in any other Additional Rent payable by Tenant
pursuant to any other provision of this Article 38 or any other provisions of this Lease, it being
agreed and understood that the payment of Additional Rent under this Article 38 is an obligation
supplemental to Tenant’s obligations to pay Fixed Annual Rent and any Additional Rent pursuant to
any other provision of this Lease.
(3) Notwithstanding any provision hereof to the
contrary, if a Tax Year or an Operating Year shall end after the expiration or termination of the
Term, the Additional Rent payable by Tenant in respect thereof shall be prorated to correspond to
that portion of such year occurring within the Term.
8
(4) Owner’s failure to render any Tax Statement or
Escalation Statement with respect to any Tax Year or Operating Year shall not prejudice Owner’s
right to thereafter render a Tax Statement or Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year, nor shall the rendering of a Tax Statement or
Escalation Statement prejudice Owner’s right to thereafter render a corrected Tax Statement or
Escalation Statement for that Tax Year or Operating Year. Nothing herein contained shall restrict
Owner from issuing a Tax Statement at any time there is an increase in Real Estate Taxes during any
Tax Year or any time thereafter. Notwithstanding any provision of this Article 38 to the contrary,
if Owner renders a Tax Statement or Escalation Statement (or correction thereto) to Tenant with
respect to any Tax Year or Operating Year more than twenty-four (24) months after the last day
thereof (except with respect to any amounts for which Owner is first billed after the last day of
such Operating Year or Tax Year and for which Owner bills Tenant within sixty (60) days after
Owner’s receipt of such xxxx), then Tenant shall not be obligated to pay any such amounts (or
corrected amounts) set forth therein that was not included in a previous Tax Statement or
Escalation Statement (or correction thereto).
(5) Each Tax Statement and each Escalation Statement
shall be conclusive and binding upon Tenant unless (i) Tenant shall notify Owner (on or before the
date that is the later of (x) the date which is ninety (90) days after the end of the applicable
fiscal or calendar year to which such Tax Statement relates and (y) the date which is ninety (90)
days after Tenant’s receipt of such Escalation Statement, as applicable), that Tenant disputes the
correctness thereof and stating in general terms how such statement is claimed to be incorrect.
Pending the determination of such dispute, Tenant shall pay to Owner (as and when otherwise payable
to Owner under this Article 38) all Tax Payments and operating payments (whether disputed or
undisputed) in accordance with the applicable Tax Statement or Escalation Statement (and, promptly
following the determination of such dispute, Owner shall refund or credit any overpayment by
Tenant).
(6) At Tenant’s request, Owner shall provide Tenant
with a copy of any tax xxxx in question, together with a copy of such backup information as shall
be reasonably necessary so as to permit Tenant to determine the accuracy of Owner’s calculation of
the Tax Statement. Tenant and its representatives shall agree to treat all such information in a
confidential manner.
(7) Tenant shall pay to Owner upon demand, as
Additional Rent, any occupancy tax or rent tax now in effect or hereafter enacted, which Owner is
now or hereafter is required to pay with respect to the Demised Premises or this Lease.
A. Tenant’s use of electric energy in the Demised Premises shall not at any time exceed
the capacity of any of the electrical conductors and equipment in or otherwise serving the Demised
Premises, as set forth in Section 39D. Should Owner consent to the installation of additional
risers or other equipment required
9
by Tenant above the present capacity of the connections, risers, switches, wiring installations or
other electrical facilities serving the Demised Premises, which consent shall not be unreasonably
withheld or delayed, same shall be provided by Owner and the reasonable cost of such installation
thereof shall be paid by Tenant upon Owner’s demand. If Owner provides additional electricity above
the capacity of the existing transformers serving the Demised Premises through a high voltage
riser, Tenant shall pay a one-time reasonable fee reasonably determined by Owner for the right to
each 200 additional amps. If Owner provides such additional electricity, Tenant shall, at its sole
cost and expense, step down the voltage in the riser.
B. For purposes of this Article 39:
(i) “Tenant’s consumption” shall mean the kilowatt
hours of electric current consumed in the Office Space (exclusive of the HVAC System (as
hereinafter defined)), as measured by submeters through which the electric current supplied to the
Office Space is drawn, during the Term, commencing immediately upon the Commencement Date (or, if
later, the installation and activation of the applicable submeter).
(ii) “Rate” shall mean the amount per kilowatt hour
(including energy and demand) that is charged by the public utility company supplying electric
current to the Building, at the average cost per kilowatt hour at which Owner then purchases
electricity utilized in the Building for the same period from the utility company, taking into
consideration time of day rates, volume and other applicable discounts. The Rate shall include
taxes, energy charges, demand charges, fuel adjustment charges, rate adjustment charges and other
charges actually imposed in connection therewith.
(iii) “Tenant’s Cost” shall mean one hundred three
percent (103%) of an amount determined by applying the Rate to Tenant’s consumption demand and
hours of use.
C. (i) Submeters shall measure the supply of electrical energy furnished to the Office
Space, exclusive of the HVAC System. Owner, at Owner’s sole cost and expense shall keep all such
submeters in good working order and repair and if more than one (1) submeter is used then Tenant
shall have the right to install, at its own sole cost and expense, a totalizer so that same
approximates a single meter charge. Owner shall, from time to time, furnish Tenant with a statement
indicating the appropriate period during which the Tenant’s consumption was measured and the amount
of Tenant’s Cost payable by Tenant to Owner for furnishing electrical current. Within thirty (30)
days after receipt of each such statement, Tenant shall pay the amount of Tenant’s Cost set forth
thereon to Owner as Additional Rent. If any tax is imposed upon Owner’s receipts from the sale or
resale of electrical energy to Tenant by any federal, state, city or local authority, the pro-rata
share of such tax allocable to the electrical energy service received by Tenant shall be passed
onto and paid by Tenant as Additional Rent if and to the extent permitted by law (but without
duplication of the amounts payable pursuant to Section 39B above). If at any time any submeter is
out of
10
service or requires repair, Tenant shall pay for electricity with respect to the portion of
the Demised Premises covered by such inoperable submeter at a charge reasonably estimated by an
independent engineer designated by Owner and approved by Tenant (such approval not to be
unreasonably withheld or delayed) based on prior readings of the particular inoperable submeter
during comparable periods (or otherwise fairly and appropriately adjusted), provided that pending
receipt of such estimate Tenant shall pay for electricity at a charge reasonably estimated by Owner
(with credit or debit, as applicable, after receipt of the engineer’s estimate).
(ii) With respect to the Basement Space, Tenant shall
pay to Owner an annual charge for electricity (the “Basement Electricity Fee”) using a
factor of One Dollar ($1.00) per rentable square foot of such space, which factor was based on
certain mutually-acceptable theoretical assumptions incorporating approximate estimates of the
probable consumption of electrical energy in such space assuming the use thereof in accordance with
this Lease and the cost of furnishing such electrical energy as of the date of this Lease. At any
time and from time to time during the Term (but no more often than once per six (6) months), Owner
may have the Basement Electricity Fee then in effect adjusted as reasonably determined by an
independent engineer designated by Owner and approved by Tenant (such approval not to be
unreasonably withheld or delayed) to take into account any increase in the rates charged by the
public utility serving the Building or any increase in taxes based on the amounts charged by said
public utility, since the effective date of the Basement Electricity Fee then in effect (taking
into account any prior adjustments). Upon any determination of a new Basement Electricity Fee,
Owner shall deliver to Tenant a statement in writing recomputing and adjusting the Basement
Electricity Fee, which statement shall include reasonably sufficient detail to enable Tenant to
verify the determination of the amount of the adjustment referred to therein. The new Basement
Electricity Fee shall take effect on a day designated by Owner that is not less than thirty (30)
days after the date of such statement. The parties shall cooperate in good faith to resolve any
dispute regarding such adjustment to the Basement Electricity Fee. Notwithstanding the foregoing,
each of Owner and Tenant shall have the right to install (at the sole cost and expense of the party
pursuing such installation) a submeter to measure the use of electrical energy furnished to the
Basement Space, in which event Tenant shall thereafter pay for electricity in the Basement Space in
the manner set forth in Section 39C(i) instead of through the Basement Electricity Fee.
D. Owner will provide a basic electric capacity of six (6) xxxxx (demand load) per
rentable
square foot in the Office Space, exclusive of the floor air conditioning units servicing the
Demised Premises as of the Commencement Date (such units and any replacements thereof, the “HVAC
System”), and shall furnish electric capacity to the HVAC System.
E. If either the quantity or character of electrical service is
changed by the public utility corporation supplying electrical service to the Building, or is no
longer available or suitable for Tenant’s requirements, no such change, unavailability or
unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
11
obligations under this Lease, or impose any liability upon Owner or Owner’s agents unless
such change, unavailability or unsuitability (i) renders the Demised Premises untenantable or not
reasonably usable for office use and (ii) is not due to acts or omissions of Tenant or Tenant’s
contractors, licensees, invitees, agents and employees. Owner shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electric energy furnished to the
Demised Premises unless resulting solely from the improper or wrongful acts or gross negligence of
Owner.
F. Owner’s failure during the Term to prepare and deliver any statements or bills under
this
Article 39, or Owner’s failure to make a demand under this Article 39 or any other provisions of
this Lease, shall not in any way be deemed to be a waiver of, or cause Owner to forfeit or
surrender its rights to collect, any amount of Additional Rent which may have become due pursuant
to this Article 39 during the Term. Notwithstanding the foregoing, if Landlord renders a statement
under this Article 39 with respect to any period of electrical use more than twenty-four (24)
months after such period (unless Landlord is first billed for such electrical use thereafter and
bills Tenant therefor within sixty (60) days of Landlord’s receipt of such xxxx), then Tenant shall
not be obligated to pay amounts in such statement to the extent not included in a previous
statement rendered to Tenant. Except as otherwise set forth herein, Tenant’s liability for any
amounts due under this Article 39 shall continue unabated during the remainder of the Term and
shall survive the expiration or sooner termination of this Lease.
G. All determinations under this Article 39 which turn on the
public utility rate shall be based on the rate schedule pursuant to which Owner purchases electric
current for the Building in effect during the period for which Tenant is billed.
H. Owner shall furnish and install all replacement lighting
tubes, lamps, bulbs and ballasts required in the Demised Premises, at Tenant’s reasonable expense,
unless Tenant elects to provide its own service using suppliers and installers approved by Owner,
which approval shall not be unreasonably withheld.
40. End of Term.
Article 22 hereof is hereby amended to add the following: If Tenant remains in possession of
all or any portion of the Demised Premises after the Expiration Date or sooner termination of the
Term, then in addition to any other rights or remedies Owner may have hereunder or at law, and
without in any manner limiting Owner’s right to demonstrate and collect any damages (excluding
consequential damages except as expressly set forth below) suffered by Owner and arising from
Tenant’s failure to surrender the Demised Premises as provided herein, Tenant shall pay to Owner as
damages for each month or portion of a month during which Tenant holds over in all or any portion
of the Demised Premises after the Expiration Date or sooner termination of this Lease, a sum equal
to one hundred fifty percent (150%) (which percentage shall be increased, from and after the first
thirty (30) days of any holdover, to one hundred seventy-five percent (175%), and, from and after
the first sixty (60) days of any holdover, to two hundred percent (200%)) of the aggregate of that
portion of the Fixed Annual Rent
12
and Additional Rent which was payable under this Lease during the last month of the Term.
Nothing herein contained shall be deemed to permit Tenant to retain possession of all or any
portion of the Demised Premises after the Expiration Date or sooner termination of this Lease or to
limit in any manner Owner’s right to regain possession of the Demised Premises through summary
proceedings, or otherwise, and no acceptance by Owner of payments from Tenant after the Expiration
Date or sooner termination of the Term shall be deemed to be other than on account of the amount to
be paid by Tenant in accordance with the provisions of this Article. In addition, if such holdover
exceeds thirty (30) days, Tenant agrees to indemnify and save Owner harmless from all costs,
claims, losses or liability (including consequential damages) resulting from delay by Tenant in
surrendering all or any portion of the Demised Premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The provisions of this Article 40 shall
survive the Expiration Date or sooner termination of the Lease. The preceding shall be deemed to be
an “agreement expressly providing otherwise” within the meaning of Section 232-c of the Real
Property Law of the State of New York.
A. Supplementing the provisions of Articles 15 and 21 hereof, Tenant shall take
possession of the Demised Premises “AS IS,” it being expressly agreed that Owner shall have no
obligation to alter, improve, decorate or otherwise prepare the Demised Premises for Tenant’s
occupancy other than (a) to demolish and slab over the staircase between the 8th and 9th floors of
the Building and (b) to remove any friable asbestos and any other asbestos or asbestos-containing
materials required by law to be removed or encapsulated, in each case to the extent discovered
within the Demised Premises provided that (i) Tenant notifies Owner of such asbestos in writing
promptly after the discovery thereof, (ii) Owner shall not be responsible for removing any floor
tiles containing asbestos, (iii) the discovery of such asbestos did not occur in connection with
the negligence, improper act or omission or violation of this Lease by Tenant or Tenant’s
contractors or subcontractors or any other party claiming by, through or under Tenant, (iv) such
asbestos-containing materials were not brought in to the Demised Premises by Tenant or any party
claiming by, through or under Tenant and (v) Tenant shall cooperate as reasonably requested by
Owner in connection with such removal (including by vacating such portions of the Demised Premises
as shall be reasonably necessary therefor) (such items of work to be done by Owner pursuant to such
clauses (a) and (b), collectively, “Owner’s Work”). Owner’s Work shall be done at Owner’s sole cost
and expense, in a good and workerlike manner and in compliance with all applicable Laws, and to the
extent Owner’s Work shall not be completed by the Commencement Date, Owner and Tenant shall
cooperate reasonably and in good faith to coordinate the performance and completion of Owner’s Work
and Tenant’s Changes (as hereinafter defined) such that one shall not unreasonably delay the other.
If Owner’s Work is not substantially completed on or before the day that is ninety (90) days after
Tenant’s written request to Owner to commence Owner’s Work (subject to Force Majeure (as
hereinafter defined) and delays caused by the improper acts or omissions of Tenant) (the “Fixed
Substantial Completion Date”), then the Rent Commencement Date shall be
13
extended by one (1) day for each day (or portion of a day) from and after the Fixed Substantial
Completion Date through and including the day Owner’s Work is substantially completed. As used
herein, “substantially completed” shall mean achieving the stage of progress of Owner’s Work as
shall not prevent or materially impair Tenant’s Initial Changes (as hereinafter defined) due to
unfinished aspects of Owner’s Work. Tenant, at its sole cost and expense and in compliance with all
applicable requirements of insurance bodies having jurisdiction and the provisions of this Lease
(including, without limitation, Articles 3 and 42), may make such Tenant’s Changes in the Demised
Premises as Tenant may consider necessary or desirable to prepare the same for Tenant’s occupancy.
B. Notwithstanding anything to the contrary contained in any other provision of this
Lease, in the event that at any time during the Term (a) Tenant is unable to use or have access to
the Demised Premises or any portion thereof for the ordinary conduct of Tenant’s business solely
due to (I) the failure by Owner to provide repairs, heat, air cooling, water, elevator, electric
and/or other services expressly required to be furnished by Owner under this Lease, or to comply
with Laws expressly required to be complied with by Owner under this Lease, or (II) Owner’s
performance of any alterations, restorations, work, installations or repair in the Building or the
Demised Premises (other than any such alteration, restoration, work, installation or repair that
Owner performs at Tenant’s request or by reason of Tenant’s failure to perform such alteration,
restoration, work, installation or repair) and any such condition continues for a period in excess
of ten (10) consecutive days (or, if such condition is the result of Force Majeure, thirty (30)
consecutive Business Days) after Tenant gives a notice to Owner (the “Abatement Notice”) stating
that Tenant’s inability to use the Demised Premises or such portion thereof is solely due to such
condition, (b) neither Tenant nor any party claiming by, through or under Tenant actually uses or
occupies the Demised Premises or such portion thereof during such period, and (c) such condition
has not resulted from a casualty or condemnation or from the default, negligence or willful
misconduct of Tenant, Tenant’s agents or employees or any subtenant or other occupant of the
Demised Premises, then Fixed Annual Rent and Additional Rent under Article 38 shall be abated as to
the Demised Premises or affected portion (pro rata according to the proportion of the rentable
square footage of the Demised Premises so affected) on a per diem basis for the period commencing
on the eleventh (11th) day (or thirty-first (31st) Business Day, in the case of Force Majeure)
after Tenant gives the Abatement Notice, and ending on the earlier of (i) the date Tenant or any
party claiming by, through or under Tenant reoccupies the Demised Premises or such portion thereof
for the ordinary conduct of its business, or (ii) the date on which such condition is substantially
remedied such the Demised Premises can be reoccupied for the ordinary conduct of business. As used
herein, “Force Majeure” shall mean strike, lockouts or other labor or industrial troubles,
governmental pre-emption in connection with a national emergency, any enforcement or adoption of a
Law in connection with an emergency or other catastrophic event, conditions of supply or demand
that are affected by declared war or other national, state or municipal emergency, fire or other
casualty, such as (by way of example) civil disturbance, acts of the public enemy, riot, sabotage,
blockade, embargo, explosion or any other cause beyond a party’s reasonable control, whether or not
similar to any of the
14
causes hereinabove stated. Notwithstanding the foregoing, a party’s failure to make a payment of
money, or any other event that derives from such party’s lack of funds, shall not constitute a
“Force Majeure” event for purposes hereof.
A. Tenant, at its sole cost and expense (but subject to Section 42F), shall cause any
permitted alterations, decorations, installations, additions or improvements in or about the
Demised Premises (“Tenant’s Changes”), including any changes which Tenant intends to make on or
before the Commencement Date, to be performed in a good and workerlike manner and in compliance
with all applicable legal and other requirements of insurance bodies having jurisdiction over the
Building, the provisions of Article 3 hereof and this Article 42 and in such manner as not to
interfere with, delay, or impose any additional expense upon Owner in the maintenance or operation
of the Building or the performance of Owner’s Work. Tenant, at its expense, and with diligence and
dispatch, but in any event within thirty (30) days after the receipt of notice thereof, shall
procure the cancellation or discharge of all notices of violation arising from or otherwise
connected with Tenant’s Changes which shall be issued by the Department of Buildings or any other
public authority having or asserting jurisdiction over the Building; provided, however, that if the
same cannot be reasonably cancelled or discharged within such thirty (30) day period, then Tenant
shall not be in default of such requirement so long as Tenant commences diligent efforts to cancel
or discharge the same within such thirty (30) day period and causes the same to be removed as
promptly as reasonably practicable. Owner shall promptly forward notice of any such violations to
Tenant received by Owner.
B. Supplementing the provisions of Article 3 hereof, prior to making any proposed
Tenant’s
Changes, Tenant, at Tenant’s expense, (a) shall submit to Owner and shall obtain Owner’s approval
(not to be unreasonably withheld, delayed or conditioned) of detailed plans and specifications
(including scaled layout, architectural, mechanical and structural drawings) in three (3) hard
copies and diskette form (except in the case of Tenant’s Changes that are purely cosmetic or
decorative, do not affect the mechanical, electrical, plumbing, sanitary or other service systems
of the Building and do not require filing of any plans with any governmental agency (collectively,
“Cosmetic Changes”)), (b) shall obtain all permits, approvals and certifications required by any
governmental authorities having jurisdiction (Owner hereby agreeing to execute such documents and
applications as may be reasonably required to obtain the same, provided same is at no cost or
obligation to Owner), and (c) shall furnish to Owner duplicate original policies or certificates
thereof of worker’s compensation insurance (covering all persons to be employed by Tenant, and
Tenant’s contractors and subcontractors, in connection with such Tenant’s Changes) and commercial
general liability insurance (including premises operation, bodily injury, personal injury, death,
independent contractors, products and completed operations, broad form contractual liability and
broad form property damage coverages) in such form, with such companies, for such periods and in
such amounts, as Owner may require, naming Owner and its agents, the other Additional Insureds,
each Superior Lessor (as hereinafter defined) as to which
15
Tenant has previously been notified in writing and each Superior Mortgagee (as hereinafter defined)
as to which Tenant has previously been notified in writing, as additional insureds. Owner, prior to
the granting of its consent to any Tenant’s Changes, may impose such conditions (in addition to
those expressly provided in this Lease) as to such Tenant’s Changes as Owner may reasonably
consider desirable (provided that no supervisory fee or surcharges and no bonding or other security
shall be required for any Alterations). Owner shall have the right, in its sole discretion, to
withhold consent to any Tenant’s Changes which would physically affect any part of the Building
outside of the Demised Premises (other than standard connections to tap-in points, points of entry
and roof rights granted to Tenant in this Lease, as to which Owner shall exercise reasonable
discretion), would in Owner’s reasonable judgment materially and adversely affect the proper
functioning of any of the mechanical, electrical, plumbing, sanitary or other service systems of
the Building, or would require filing of any plans with any governmental agency (unless Tenant
shall reimburse Owner for the cost of any such filing). Tenant shall reimburse Owner for any
actual, reasonable out-of-pocket third party costs incurred by Owner in connection with any
Tenant’s Changes, including, without limitation, costs incurred in connection with Owner’s review
and/or approval of Tenant’s plans and specifications for any Tenant’s Changes. Owner shall provide
Tenant with copies of supporting documentation for any such payments required by Owner from Tenant,
promptly after Tenant’s request therefor. In the event Tenant shall employ any contractor to do any
work in the Demised Premises 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. Owner and Tenant shall attempt
(and shall endeavor to cause all affected parties to attempt) to resolve promptly any labor
disputes in a commercially reasonable manner. In the event of any such dispute, strike or
disharmony, Tenant, upon the demand of Owner, shall cause all contractors, subcontractors,
mechanics or laborers causing same to vacate the Building immediately. Tenant shall inform Owner in
writing of the names of any contractor or subcontractor(s) Tenant proposes to use in the Demised
Premises at least fifteen (15) days prior to the beginning of work by such contractor or
subcontractor and Owner shall have the right to approve any such contractor(s) or subcontractor(s)
in Owner’s reasonable discretion (subject to Section 42D). Subject to the foregoing provisions of
this Section 42B, Tenant shall be permitted to use non-union labor in the Demised Premises.
C. Notwithstanding anything contained in this Article 42 or Article 3 to the
contrary,
Owner’s consent shall not be required with respect to Tenant’s Changes which (i) do not materially
and adversely affect any part of the Building other than the Demised Premises and the building
systems exclusively serving the Premises (the “Premises Systems”) or require any alterations,
installations, improvements, additions or other physical changes to be performed in or made to any
portion of the Building other than the Demised Premises and the Premises Systems, (ii) do not
affect in any material and adverse respect the proper functioning of any other mechanical,
electrical, plumbing, sanitary or other service systems of the Building, (iii) do not affect the
structure of the Building, (iv) do not involve a perforation to a floor slab of the Premises, (v)
do not violate or otherwise require an amendment to the certificate of
16
occupancy for the Building, (vi) are not reasonably expected to have a cost for labor and materials
of more than One Hundred Thousand Dollars ($100,000.00), either individually or in the aggregate
with other reasonably related Tenant’s Changes constructed within any twelve (12) month period as
part of the same project (other than for Cosmetic Changes, as to which no such dollar amount shall
apply) and (vii) are performed by union labor and in accordance with all applicable Law. At least
five (5) Business Days prior to making any such Tenant’s Changes, Tenant shall notify Owner thereof
and submit to Owner (x) reasonable evidence that such Tenant’s Changes comply with the provisions
of this Section 42C (including reasonable evidence of the projected project cost, except with
respect to Cosmetic Changes) and (y) detailed plans and specifications for such Tenant’s Changes to
the extent that any governmental authority requires such plans or specifications or Tenant
otherwise prepares such plans and specifications. Any Tenant’s Changes described in this Section
42C shall otherwise be performed in compliance with the provisions of Article 3 and this Article
42.
D. With respect to any item requiring Owner’s consent or approval pursuant to this
Article 42,
if Owner fails to grant or deny such consent or approval within ten (10) Business Days after
submission (or seven (7) Business Days in the case of a resubmission), provided such submission
complies with the requirements above, Tenant shall have the right to send Owner a second written
request for consent or approval (a “Second Request”), which shall specifically identify the item(s)
to which such request relates, and set forth in bold capital letters the following statement: “IF
OWNER FAILS TO RESPOND WITHIN THREE (3) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN OWNER’S
CONSENT OR APPROVAL SHALL BE DEEMED GRANTED.” In the event that Owner fails to grant or deny
consent or approval to a Second Request within three (3) Business Days after receipt thereof by
Owner, the item(s) for which the Second Request is submitted shall be deemed to be approved by
Owner.
E. Upon completion of any of Tenant’s Changes, Tenant, at
Tenant’s expense, shall obtain any certificates of final approval of such Tenant’s Changes required
by any governmental authority and shall furnish Owner with copies thereof, together with the
“as-built” plans and specifications for such Tenant’s Changes (other than Cosmetic Changes), which
“as-built” plans shall be in hard copy and diskette form. All Tenant’s Changes shall be made and
performed substantially in accordance with the plans and specifications therefor as approved by
Owner (if required), all applicable Law and the Rules and Regulations. All materials and equipment
to be incorporated in the Demised Premises as a result of any Tenant’s Changes shall be of good
quality and no such materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage, title retention or security agreement.
F. (i) Subject to the terms and conditions set forth below, Owner shall pay to or on
behalf of Tenant up to a maximum amount of Four Million Four Hundred Eighty Thousand and 00/100
Dollars ($4,480,000.00) (“Owner’s Contribution”) for costs and expenses incurred by Tenant for
goods, materials and labor in connection with the design, installation and construction of Tenant’s
Changes in connection with
17
Tenant’s occupancy of the Demised Premises promptly after the Commencement Date (“Tenant’s
Initial Changes”), provided that Tenant shall have the right to use up to a maximum of Eight
Hundred Ninety-six Thousand and 00/100 Dollars ($896,000.00) of Owner’s Contribution on account of
so-called “soft costs” in connection with Tenant’s Initial Changes, including architectural,
engineering, expediting and other consulting fees, office furniture and all necessary building
department permits and approvals, but in no event shall Owner’s Contribution be applied to
expenditures on personal property not constituting a permanent leasehold improvement (other than
office furniture). Except with Owner’s prior written approval (not to be unreasonably withheld),
Tenant shall not remove from the Demised Premises any Tenant’s Initial Changes or personalty made
or purchased with Owner’s Contribution unless replaced with property of equal or greater value to
the Tenant’s Initial Changes or personalty removed and which substituted property will be deemed to
have been installed in the Demised Premises with Owner’s Contribution.
(ii) Owner shall disburse from time to time, but not
more often than once in any thirty (30) day period, within ten (10) Business Days after receipt of
Tenant’s requisition therefor, to or on behalf of Tenant and/or (at Tenant’s request) to its
contractor, that portion of Owner’s Contribution equal to the amount set forth in Tenant’s
requisition minus ten percent (10%) thereof (the “Holdback”); provided, however, that no such
disbursement shall be made (a) if, and for so long as, Tenant shall be in non-monetary default
under this Lease beyond any applicable notice and cure period or in any monetary default under this
Lease and (b) until Owner’s receipt of (i) a requisition therefor from Tenant, (ii) a certification
of performance (AIA G702 REQ form) from the architect of record and (ii) each of the following:
(x) A certificate signed by Tenant
and Tenant’s
architect dated not more than ten (10) days prior to such request setting forth (a) the sum then
justly due to contractors, subcontractors, materialmen, engineers, architects and other persons who
have rendered services or furnished materials in connection with Tenant’s Initial Changes, (b) a
brief description of such services and materials and the amounts paid or to be paid from such
requisition to each of such persons in respect thereof, (c) that to such architect’s knowledge, the
work described in the certificate has been completed substantially in accordance with the final
plans therefor previously approved by Owner (statement (c) need not be made by Tenant, but rather
only by Tenant’s architect), (d) that to Tenant’s knowledge, there has not been filed with respect
to the Demised Premises or the Building or any part thereof or any improvements thereon, any
vendor’s, mechanic’s, laborer’s, materialmen’s or other like liens arising out of Tenant’s Initial
Changes which has not been discharged of record and (e) that Tenant has complied with all of the
conditions set forth in this Lease applicable to alterations, including the requirement that Tenant
comply with all applicable legal requirements (statements (d) and (e) need not be made by Tenant’s
architect, but rather only by Tenant). Upon request of Tenant, Owner shall make payments of Owner’s
Contribution directly to Tenant’s contractors; and
18
(y) Partial lien waivers, paid
receipts or such
other proof of payment as Owner shall reasonably require for all work done and materials supplied
by all trade contractors, subcontractors and materialmen through the current requisition; it being
agreed that Tenant need not have paid an expense in order to make a requisition therefor, and
instead may requisition an advance from Owner which Tenant then uses to pay such expense;
provided, however, that in no event may any one (1) requisition by Tenant (other than the final
requisition) cover more than twenty-five percent (25%) of Owner’s Contribution.
(iii) Notwithstanding anything in Article 3 or this
Article 42 to the contrary, Owner shall not be required to disburse the Holdback to Tenant until
Owner (a) has received from Tenant’s architect all certificates of final approval required by any
governmental or quasi-governmental body in respect of Tenant’s Initial Changes and (b) has received
final lien waivers, paid receipts or such other proof of payment as Owner shall reasonably require
for all work done and materials supplied by all trade contractors, subcontractors and materialmen
as part of Tenant’s Initial Changes. In the event Tenant (i) fails to obtain the certificates,
approvals and proof of payment described above within six (6) months following the date Tenant has
commenced occupancy of the Demised Premises for the conduct of its business, or (ii) fails to bond
or discharge any mechanic’s lien filed against the Demised Premises or the Building or Owner’s
interest therein for work claimed to have been done for or materials claimed to have been furnished
to Tenant in connection with any portion of Tenant’s Changes within the time period provided
therefor in Article 3 above, then and in either such event, Owner, upon ten (10) days prior notice
to Tenant, shall have the right to hire its own contractors or expediters to obtain said
certificates and/or approvals and/or to obtain such proof of payment and discharge such lien(s), by
filing of the bond required by Law or otherwise, and, at Owner’s option, to use all or any portion
of the Holdback in its reasonable attempt to do so, and Tenant, upon Owner’s demand, shall
reimburse Owner for all unreimbursed costs so incurred in obtaining said certificates, approvals
and/or proof of payment, and/or in canceling, bonding and/or discharging such liens, and to the
extent Tenant so reimburses Owner the Holdback amount shall be restored.
(iv) Notwithstanding anything to the contrary contained
in this Section 42D, if, at the time any payment by Owner to Tenant of all or any portion of
Owner’s Contribution is required to be made, Tenant is in default in the payment of Fixed Annual
Rent or any item of Additional Rent, Owner may offset the amount of such arrearages against the
payment then due from Owner hereunder.
(v) Notwithstanding anything to the contrary contained in this
Section 42D, Tenant’s
right to request, and Owner’s obligation to disburse, Owner’s Contribution shall expire on the date
that is twelve (12) months after the Rent Commencement Date, except to the extent that Tenant is
reasonably delayed in requesting or obtaining same due to Owner’s wrongful acts or omissions.
G. All Tenant’s personalty shall remain the property of Tenant and upon the Expiration
Date, shall be removed from the Demised Premises by Tenant.
19
H. Any modifications, changes or alterations to the Class E
fire safety system of the Demised Premises (the “Fire Safety System”), including without
limitation, speakers, strobes and pull stations, are deemed to be a Tenant’s Change. Tenant may use
only the contractor or contractors designated by Owner with respect to any Tenant’s Changes to the
Fire Safety System. Subsequent to any Tenant’s Changes to the Fire Safety System, such system shall
be repaired and maintained only by the contractors designated by Owner from time to time, at
Tenant’s cost.
I. Tenant shall have the right to install an internal security system, provided such
installation complies in all respects with this Article 42.
J. Notwithstanding any provision of this Lease to the
contrary, only such window shades as are supplied or permitted by Owner shall be installed or
used on the exterior windows of the Demised Premises.
K. Owner shall not unreasonably withhold its approval of
Tenant’s installation of an internal security system in the Demised Premises, provided same is
installed as a Tenant’s Change in accordance with the applicable provisions of this Article 42.
A. Subject to the further provisions of this Article 43 and to the terms of any
agreement entered into pursuant to this Article 43, this Lease, and all rights of Tenant hereunder,
are and shall be subject and subordinate to all ground and underlying leases now or hereafter
existing (hereinafter collectively referred to as “Superior Leases” and the holder of the lessor’s
interest therein shall be referred to as a “Superior Lessor”) and to all mortgages and building
loan agreements including, without limitation, leasehold mortgages and building loan agreements,
which may now or hereafter affect the Land or the Building or a Superior Lease (hereinafter
collectively referred to as “Superior Mortgages” and the holder of the mortgagee’s interest therein
shall be referred to as a “Superior Mortgagee”), to each and every advance made or hereafter to be
made under Superior Mortgages and to all renewals, modifications, replacements and extensions of
Superior Leases and Superior Mortgages. This Article shall be self-operative and no further
instrument of subordination shall be required in confirmation of such subordination. Tenant shall
promptly execute and deliver in recordable form any instrument that Owner, the lessor of any
Superior Lease or the holder of any Superior Mortgage may reasonably request to evidence such
subordination. Tenant covenants and agrees (subject to any applicable Non-Disturbance Agreement (as
hereinafter defined)) that if by reason of a default under any Superior Mortgage or Superior Lease,
such Superior Mortgage is foreclosed or such Superior Lease and the leasehold estate of the Owner
in the Demised Premises is terminated, then at the election of the purchaser at the foreclosure
sale or the then holder of the reversionary interest in the Demised Premises:
(i) Tenant will attorn and will recognize such purchaser or
holder as the
Tenant’s landlord under this Lease, and the holder of such
20
Superior Mortgage or the lessor under such Superior Lease shall recognize such attornment and
accept Tenant as a direct tenant upon all of the terms and provisions of this Lease. Tenant agrees
to execute and deliver, at any time and from time to time, upon the request of Owner, the holder of
any Superior Mortgage or the lessor under any such Superior Lease, any instrument which may be
necessary or appropriate to evidence such attornment, except that such successor landlord shall not
be (a) bound by any prepayment of rent more than one month in advance except pursuant to the
provisions of this Lease, (b) bound to pay any portion of Owner’s Contribution, (c) bound by any
modification of this Lease made without the consent of such Superior Mortgagee or Superior Lessor,
of whose identity Tenant has received written notice or (d) subject to any offsets or defenses
against or liable for any previous act or omission of any prior landlord (including Owner) under
this Lease, except if such act or omission continues after the date of such succession and then
only for so much as has accrued subsequent to the date of such succession, or
(ii) this Lease will be terminated.
Tenant further waives the provisions of any statute or rule of law now or hereafter in effect which
may give or purport to give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event any proceeding is brought by (i) the holder of any
Superior Mortgage to foreclose such Mortgage or (ii) by a Superior Lessor under any Superior Lease
to terminate the same, and agrees that this Lease shall not be affected in any way whatsoever by
any such proceeding unless such Superior Mortgagee or Superior Lessor elects to terminate this
Lease.
B. Notwithstanding anything in Section 43A above to the
contrary, Owner shall use commercially reasonable efforts to obtain for Tenant’s benefit, from each
current and future Superior Lessor and/or Superior Mortgagee, an agreement (hereinafter, a
“Non-Disturbance Agreement”) in favor of Tenant, in reasonable and customary form, which provides
generally that so long as this Lease shall be in full force and effect (a) Tenant shall not be
named or joined in any action or proceeding to foreclose the Superior Mortgage or terminate the
Superior Lease in question, or to otherwise enforce its rights thereunder, unless required by law,
(b) no such foreclosure or termination, or any action or proceeding brought in pursuance thereof,
shall result in a cancellation or termination of this Lease, nor shall Tenant’s possession or
rights hereunder be disturbed, by enforcement of any rights given to the holder pursuant to the
terms of such mortgage or lease by law or otherwise, nor by the termination or expiration of such
lease, and this Lease shall continue in full force and effect, and in any of such events, such
holder will accept the attornment by Tenant to such holder, and (c) if any such Superior Mortgagee
or Superior Lessor shall become the owner of Owner’s interest in the Building, this Lease shall
continue in full force and effect as a direct lease between Tenant and the then owner of Owner’s
interest in the Building, upon all of the terms, provisions, conditions and obligations of this
Lease, except that such successor landlord shall not be (i) bound by any prepayment of rent more
than one month in advance, except to the extent that (x) such prepayment was expressly required
under this Lease or (y) such Superior Mortgagee or Superior Lessor has actually received such
prepayment, (ii) bound
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by any modification of this Lease made without the consent of such Superior Mortgagee or
Superior Lessor, of whose identity Tenant has received written notice or (iii) subject to any
offsets or defenses against or liable for any previous act or omission of any prior landlord
(including Owner) under this Lease, except if such act or omission continues after the date of such
succession and then only for so much as has accrued subsequent to the date of such succession.
Tenant shall promptly execute and deliver any such Non-Disturbance Agreement described above
reasonably requested by Owner, a Superior Lessor or Superior Mortgagee. The failure of Owner to
obtain a Non-Disturbance Agreement from any Superior Lessor or Superior Mortgagee shall not
constitute a default by Owner hereunder, so long as Owner shall have made commercially reasonable
efforts to obtain the same as required by this Section 43B.
C. If, in connection with the procurement, continuation or
renewal of any financing for which the Land or the Building or the interest of the lessee under a
Superior Lease represents collateral in whole or in part, any institutional lender shall request
reasonable modifications of this Lease as a condition of such financing, Tenant will not withhold
or delay its consent thereto and shall execute and deliver without charge such conforming documents
therefor as such institutional lender may reasonably require, provided that such modifications do
not increase the obligations of Tenant under this Lease (other than to a merely administrative or
de minimis extent) or adversely affect any rights of Tenant under the Lease (other than to a merely
administrative or de minimis extent).
D. Supplementing Section 43 A and Section 43B above, Owner
represents that, as of the date hereof, (i) there is no Superior Lessor and (ii) the only
Superior Mortgagee is LaSalle Bank National Association, as Trustee for the Registered
Holders of Bank of America Commercial Mortgage Inc. Commercial Mortgage Pass-through Certificates, Series 2005-5.
A. Tenant shall obtain and keep in full force and effect at all times during the Term,
at Tenant’s sole cost and expense, (i) insurance against loss or damage by fire and other casualty
to all betterments and improvements (including Tenant’s Changes) and all personal property of
Tenant in the Demised Premises, under then available standard forms of “all-risk” insurance
policies, in an amount equal to one hundred percent (100%) of the replacement value thereof, with
commercially reasonable deductible(s), (ii) commercial general liability insurance with a broad
form liability endorsement including coverage for contractual liability, (iii) worker’s
compensation insurance as required by law and (iv) business income (interruption) insurance in an
amount (x) until the Rent Commencement Date, not less than Two Million Dollars ($2,000,000) and (y)
from and after the Rent Commencement Date, not less than twelve (12) months of Fixed Annual Rent
and Additional Rent under Article 38. Said commercial general liability insurance shall provide
coverage on an occurrence basis with a minimum limit of liability of (x) $10,000,000 per occurrence
for bodily injury (including death), whether involving one or more persons and (y) $10,000,000 per
22
occurrence in respect of property damage, is to be written without a policy annual aggregate limit
of liability (unless umbrella coverage is in place), and without the inclusion of any defense costs
within the limit of liability, and shall name the Additional Insureds as additional insureds
against any claims. All of the aforesaid insurance coverage shall be written in form reasonably
satisfactory to Owner by one or more good and solvent insurance companies of recognized standing
admitted to do business in the State of New York, determined by A.M. Best Co., Inc., or any
successor thereto, to have a rating of at least “A-” and a financial size of at least “Class XI.”
Tenant shall pay all premiums and charges therefor and upon failure to do so after ten (10) days
prior written notice, Owner may, but shall not be obligated to, make such payments, in which event
Tenant agrees to pay the amount thereof to Owner within twenty (20) days after demand, as
Additional Rent. A duplicate original insurance policy or appropriate certificate evidencing the
aforesaid insurance coverage shall be delivered to Owner together with any endorsements thereto, on
the Commencement Date and thereafter renewals or replacements thereof shall be delivered to Owner
at least thirty (30) days prior to the expiration of any expiring policy. Such insurance policy or
certificate shall contain a provision that no act or omission of Tenant will affect or limit the
obligation of the insurance company to pay the amount of any loss sustained and that the insurance
afforded thereunder shall not be canceled, nonrenewed, or coverage thereunder reduced except upon
thirty (30) days’ prior written notice to Owner (or ten (10) days’ prior written to Owner in the
case of cancellation by reason of non-payment of premiums). Such insurance policy shall also
specifically provide coverage for Tenant’s indemnification and hold harmless obligations set forth
in Article 45 hereof. Any certificate delivered to Owner shall also specifically reflect coverage
of Tenant’s aforementioned indemnification obligation. The proceeds of policies providing “all
risk” property insurance for Tenant’s property, betterments and improvements shall be payable to
Tenant. In the event Tenant shall fail to obtain such insurance after ten (10) days’ prior written
notice, Owner may, but shall not be obligated to, obtain the same, in which event the reasonable
amount of the premium paid shall be paid by Tenant to Owner within twenty (20) days after demand as
Additional Rent. The insurance limits described herein for liability coverage may be achieved using
umbrella coverage reasonably approved by Owner. The insurance required hereunder may be carried
under blanket policies covering the Demised Premises and other locations of Tenant, so long as such
blanket policies otherwise comply with the provisions of this Lease and allocate to the Demised
Premises the specified coverage, without possibility of reduction or coinsurance by reason of, or
because of damage to, any other properties named therein. Notwithstanding any provision of this
Article 44 to the contrary, Owner shall also have the right, at any time and from time to time
during the Term on not less than thirty (30) days’ prior written notice to Tenant, to require that
Tenant increase the amounts and/or kinds of coverage required to be maintained under this Article
44 to the amounts and/or kinds of coverages then required generally by other landlords of office
space in comparable buildings in midtown Manhattan.
B. Each party agrees to use commercially reasonable efforts to include in each of its
policies insuring against loss, damage or destruction by fire, a waiver of the insurer’s right of
subrogation against the other party in connection with any
23
loss or damage covered by any such policy or permission to release third parties from liability
resulting from such casualties. If such waiver or permission shall not be, or shall cease to be,
obtainable without additional charge or at all, the insured party shall promptly so notify the
other party. In any case in which such waiver or permission shall cease to be obtainable without
additional charge, if the other party shall so elect and shall pay the insurer’s additional charge
therefor, such waiver or permission shall be included in the policy.
C. Each party hereby releases the other party, its partners,
members, officers, agents and employees with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party, its partners, members, officers,
agents or employees for loss, damage or destruction with respect to its property (including rental
value or business interruption) occurring during the Term but only if and to the extent to which
(assuming no deductibles) such party is covered under a policy of insurance containing a waiver of
subrogation provision or permission as provided in Article 9 hereof or this Article 44 or would be
insured if it complied with its obligations under this Article. If notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of its property (or rental value
or business interruption) the other party is liable to the first party with respect thereto or is
obligated under this Lease to make replacement, repair or restoration, then provided the first
party’s right of full recovery under its insurance policies is not thereby prejudiced or otherwise
adversely affected, the amount of the net proceeds of the first party’s insurance against such
loss, damage or destruction shall be offset against the second party’s liability to the first party
therefor, or shall be made available to the second party to pay for replacement, repair or
restoration, as the case may be.
D. The waiver of subrogation or permission referred to in
Sections B and C of this Article shall extend to the partners, members, agents and
employees of each party and, in the case of Tenant, shall also extend to all other
permitted occupants of the Demised Premises, but only if and to the extent that such
waiver or permission can be obtained without additional charge (unless such party shall
pay such charge). Nothing contained in this Article shall be deemed to relieve either
party from any duty imposed elsewhere in this Lease to repair, restore or rebuild or to
nullify any abatement of Fixed Annual Rent provided for elsewhere in this Lease.
E. Any employee of the Building to whom property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agent with
respect to such property and neither Owner nor its agents shall be liable for any damage
to such property nor for the loss of or damage to any property of Tenant by theft or
otherwise.
F. Notwithstanding anything in Sections 9(b) and (c) of this
Lease to the contrary, Owner’s obligation to repair and restore the Demised Premises
following a fire or other casualty shall mean and be limited to the mechanical systems
and structural elements of the Building and the outer walls and windows, ceilings and
floors of the Demised Premises, it being understood that (i) Tenant alone shall be
24
required to repair and restore all betterments and improvements (including Tenant’s Changes)
and all personal property of Tenant in the Demised Premises, with reasonable dispatch after any
casualty, and (ii) any abatement of Fixed Annual Rent and Additional Rent provided for in this
Lease following a casualty affecting the Demised Premises shall continue only until such time as
Owner shall have repaired and restored the foregoing elements of the Demised Premises for which
Owner is responsible to the limited extent hereinabove set forth.
G. Owner, at its sole cost and expense, shall obtain and
maintain in effect as long as this Lease remains in effect, property insurance insuring the
Building (but not Tenant’s property) against those risks then generally encompassed in an “all
risk” policy and providing for the payment of full replacement cost in the event of a casualty to
the Building, with commercially reasonable deductibles.
H. For avoidance of doubt, in the event of any conflict
between the terms of this Article 44 and the terms of Article 9, the terms of this Article 44 shall
govern and control.
A. Subject to the applicable provisions of Sections 9 and 44 hereof, Tenant shall
indemnify and save harmless Owner and Owner’s partners, members, officers, agents and employees
and, at Owner’s option, defend Owner and/or Owner’s partners, members, officers, agents and
employees against and from (i) any and all claims against Owner or its partners, members, officers,
agents or employees directly or indirectly of whatever nature arising wholly or in part from any
act, omission or negligence of any of Tenant, any subtenant or Tenant’s or any subtenant’s
licensees, agents, servants, contractors, officers, employees, invitees or visitors; (ii) all
claims against Owner or its partners, members, officers, agents or employees arising directly or
indirectly from any accident, injury or damage whatsoever caused to any person or to the property
of any person and occurring during the term of this Lease in or about the Demised Premises, or
occurring outside of the Demised Premises but anywhere within or about the Land or the Building,
where such accident, injury or damage results or is claimed to have resulted wholly or in part from
any act, omission or negligence of any of Tenant, any subtenant or Tenant’s or any subtenant’s
licensees, agents, servants, contractors, officers, employees, invitees or visitors (provided that,
in the case of an omission, a duty to act existed at law or under this Lease); (iii) any breach,
violation or non-performance of any covenant, condition or agreement in this Lease set forth and
contained on the part of Tenant to be fulfilled, kept, observed and performed; and (iv) any cost,
liability or responsibility for the payment of any sales tax with respect to any installations,
furniture, furnishings, fixtures or other improvements located, installed or constructed in the
Demised Premises, or the filing of any tax return in connection therewith (although Owner agrees to
execute any such return if required by law) regardless of whether such tax is imposed upon Owner or
Tenant. This indemnity and hold harmless agreement shall include indemnity from and against any and
all liability, fines, suits, demands, costs, damages and expenses of any kind or nature (including
25
without limitation reasonable attorney’s and other professional fees and disbursements)
incurred in or in connection with any such claims (including any settlement thereof) or proceeding
brought thereon, and the defense thereof but specifically excludes any claims attributable wholly
or in part from the negligence or willful misconduct of Owner, or its partners, members, officers,
agents or employees.
B. Owner shall indemnify and save harmless Tenant and
Tenant’s partners, members, officers, agents and employees and, at Tenant’s option,
defend Tenant and/or Tenant’s partners, members, officers, agents and employees against
and from (i) any and all claims against Tenant or its partners, members, officers, agents
or employees directly or indirectly of whatever nature arising wholly or in part from any
gross negligence or willful misconduct of Owner, its contractors, licensees, agents,
servants, officers, employees or invitees or (ii) any breach, violation or non-performance
of any covenant, condition or agreement in this Lease expressly set forth and contained
on the part of Owner to be fulfilled, kept, observed and performed. This indemnity and
hold harmless agreement shall include indemnity from and against any and all liability,
fines, suits, demands, costs, damages and expenses of any kind or nature (including
without limitation attorney’s and other professional fees and disbursements) incurred in
or in connection with any such claims (including any settlement thereof) or proceeding
brought thereon, and the defense thereof but specifically excludes any claims attributable
wholly or in part from the negligence or willful misconduct of Tenant, or its partners,
members, officers, agents or employees.
C. In case of any action or proceeding is brought by reason of
any claim for which indemnification is provided pursuant to this Lease, the indemnifying
party (upon notice from the indemnified party) shall at the indemnifying party’s expense
resist or defend such action or proceeding by counsel approved by the indemnified party
in writing (such approval not to be unreasonably withheld, and with the indemnifying
party’s insurer’s counsel being approved except in case of conflict).
D. The provisions of this Article 45 shall survive the
expiration or termination of this Lease. Nothing contained in this Article 45 shall entitle Owner
or Tenant to consequential, punitive, special or indirect damages or lost profits.
A. As used in this Lease, “Additional Rent” (whether
capitalized or not) shall be and consist of all sums of money, costs, expenses, or charges of any
kind or amount whatsoever (other than Fixed Annual Rent) which become due and payable by Tenant to
Owner pursuant to this Lease. Except as otherwise expressly provided in this Lease with respect to
the timing for specific payments of items of Additional Rent, Additional Rent shall be due and
payable within thirty (30) days after Tenant’s receipt of an invoice therefor. If Tenant fails to
pay any Additional Rent, Owner shall have the same rights and remedies under this Lease as in the
case of non-payment of Fixed Annual Rent.
26
B. In every case in which Tenant is required by the terms of
this Lease to pay to Owner a sum of money and payment is not made (i) within five (5)
days after the same becomes due in the case of Fixed Annual Rent or payments under
Article 38 or (ii) on the date the same becomes due in the case of any other amounts due
under this Lease, Tenant shall pay to Owner interest on the amount outstanding from the
date it initially becomes due until it is paid at an annual rate which shall be four (4)
percentage points in excess of the prime or base rate set by the New York City office of
Citibank, N.A. or any successor thereof, but in no event more than the highest rate of
interest which at such time shall be permitted under the laws of the State of New York
(hereinafter, the “Default Rate”). The foregoing provision for such payments shall not be
construed to extend the date for payment of any sums required to be paid by Tenant
hereunder or to relieve Tenant of its obligations to pay all such sums at the time or times
herein stipulated and, accordingly, notwithstanding the imposition of such payments,
Tenant shall be in default under this Lease if any or all payments required to be made by
Tenant are not made at the time herein stipulated, and neither the demand for, nor
collection by Owner of, such payments shall be construed as a curing of such default on
the part of Tenant.
C. Notwithstanding anything to the contrary set forth
elsewhere in this Lease, provided that at the time of application no monetary default and no
material non-monetary default on the part of Tenant shall have occurred and be continuing beyond
applicable notice and cure periods, Owner will allow Tenant a credit against the Fixed Annual Rent
with respect to the Office Space (but not against any other amounts payable under this Lease), in
the aggregate amount of Two Million Three Hundred Eighty Thousand and 00/100 Dollars
($2,380,000.00) (the “Credit”), to be applied at the rate of One Hundred Ninety-eight Thousand
Three Hundred Thirty-three and 33/100 Dollars ($198,333.33) per month until the Credit shall have
been fully liquidated.
Tenant shall have the right (at Tenant’s sole cost and expense) to install an identification
sign in the 7th and 8th floor elevator lobbies, of a size and appearance reasonably satisfactory to
Owner.
A. Except as otherwise expressly provided in this Article 48, neither this Lease nor
any part hereof nor the interest of Tenant hereunder or in any sublease or the rentals thereunder,
shall, by operation of law or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant, Tenant’s legal representatives or successors in interest and neither the
Demised Premises nor any part thereof shall be encumbered in any manner by reason of any act or
omission on the part of Tenant or anyone claiming under or through Tenant or shall be sublet or be
used, occupied or utilized for desk space or for mailing privileges by anyone other than Tenant,
without the prior consent of Owner in each instance. For purposes of this Article 48, (i)
27
the issuance of interests in Tenant or any subtenant (whether stock, partnership interest or
otherwise) to any person or group of related persons, whether in a single transaction or a series
of related or unrelated transactions, in such quantities that after such issuance such person or
group shall have control (as defined in Section 48C) of Tenant or such subtenant, shall be deemed
an assignment of this Lease or such sublease, as the case may be, if such issuance of interests is
intended to circumvent the restrictions on assignment and subletting set forth herein and does not
have a valid primary independent business purpose, (ii) a transfer of more than 50% in interest of
Tenant or any subtenant (whether stock, partnership interest or otherwise) by any party or parties
in interest whether in a single transaction or a series of related or unrelated transactions shall
be deemed an assignment of this Lease, or such sublease, as the case may be, if such transfer is
intended to circumvent the restriction on assignment and subletting set forth herein and does not
have a valid primary independent business purpose except that the transfer of the outstanding
capital stock of any corporate Tenant, or subtenant, by persons or parties (other than persons or
parties owning 5% or more of the voting stock of such corporation) through the “over-the-counter”
market or any recognized national securities exchange, shall not be included in the calculation of
such 50%, (iii) a “take-over agreement” pursuant to which any person or persons shall agree to
assume the obligations of Tenant hereunder in consideration of Tenant (or any affiliate of Tenant)
leasing space in another building, shall be deemed an assignment of this Lease, (iv) 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 48, and (v) any modification or
amendment of a sublease that changes a material term thereof, or any extension or assignment of a
sublease, shall each be deemed a sublease. Any assignment, sublease, mortgage, pledge, encumbrance
or transfer by Tenant in contravention of this Article 48 shall be void. Notwithstanding the
generality of the foregoing, no assignment of a sublease or sub-subletting in violation of this
Section 48A shall be a default under this Lease so long as Tenant has commenced and is diligently
pursuing commercially reasonable steps (at Tenant’s sole cost and expense) to enforce the terms of
this Section 48A against the subtenant.
B. If this Lease shall be assigned, whether or not in violation of the terms of this
Lease, Owner may collect rent from the assignee. If the Demised Premises or any part thereof shall
be sublet or shall be used or occupied by anybody other than Tenant, whether or not in violation of
this Lease, Owner may, after default by Tenant and expiration of Tenant’s time to cure such
default, if any, collect rent from the subtenant or occupant. In either event Owner may apply the
net amount collected to the Fixed Annual Rent and Additional Rent herein reserved. The consent by
Owner to an assignment, transfer, encumbering or subletting pursuant to any provision of this Lease
shall not in any way be considered to relieve Tenant from obtaining the express prior consent of
Owner to any other or further assignment, transfer, encumbering or subletting if same is required
hereunder. References in this Lease to use or occupancy by anyone other than Tenant shall not be
construed as limited to subtenants and those claiming under or through subtenants, but as including
also licensees and others claiming under Tenant, immediately or remotely. The listing of any name
other than that of Tenant on any door of the Demised Premises or on any directory or in any
elevator in the Building,
28
or otherwise, shall not operate to vest in the person so named any right or interest in this
Lease or the Demised Premises, or be deemed to constitute or serve as a substitute for, any consent
of Owner required under this Article, and it is understood that any such listing (in the absence of
such consent) shall constitute a privilege extended by Owner, revocable at Owner’s will by notice
to Tenant. Tenant agrees to pay to or reimburse Owner for all actual, reasonable out-of-pocket
third party costs which may be incurred by Owner in connection with any proposed assignment of this
Lease or any proposed subletting of the Demised Premises or any part thereof, including reasonable
attorneys’ fees and disbursements and, if applicable, the cost of making investigations as to the
acceptability of a proposed subtenant or assignee. Neither any assignment of this Lease nor any
subletting, occupancy or use of the Demised Premises or any part thereof by any person other than
Tenant, nor any collection of rent by Owner from any person other than Tenant, nor any application
of any such rent as provided in this Article, nor a direct dealing by Owner with any subtenant,
occupant or assignee, shall under any circumstances be deemed a waiver of any of the provisions of
this Article or, except as set forth in this Article 48, relieve, impair, release or discharge
Tenant of its obligations fully to perform the terms of this Lease on Tenant’s part to be performed
and Tenant shall remain fully and primarily liable therefor.
C. Tenant may, without Owner’s consent and without
complying with Section 48F or Section 48G, permit any corporations or other business entities which
control, are controlled by, or are under common control with Tenant (each herein referred to as a
“related entity”) to use or sublet all or part of the Demised Premises for any of the purposes
permitted to Tenant, or Tenant may assign this Lease to a related entity without Owner’s consent,
subject in each case however to compliance with Tenant’s obligations under this Lease and provided
that (i) Tenant shall not then be in default in the performance of any of its obligations under
this Lease beyond applicable periods of notice and grace, (ii) prior to such use, subletting or
assignment Tenant furnishes Owner with the name of any such related entity, together with a
certification of Tenant, and such other proof as Owner may reasonably request, that such user,
sublessee or assignee is a related entity of Tenant, (iii) such use, subletting or assignment has a
valid primary independent business purpose and is not intended to circumvent the restrictions on
assignment and subletting set forth herein and (iv) the term of any such use or subletting shall
terminate if at any time the sublessee shall no longer be a related entity. Such use, subletting or
assignment shall not relieve, release, impair or discharge any of Tenant’s obligations hereunder.
For the purposes hereof, “control” shall be deemed to mean ownership of not less than fifty percent
(50%) of all of the voting stock of such corporation or not less than fifty percent (50%) of all of
the legal and equitable interest in any other business entities.
D. Tenant may, without Owner’s consent and without
complying with Section 48F or Section 48G, assign or transfer its entire interest in this Lease and
the leasehold estate hereby created to a successor entity of Tenant (as hereinafter defined),
provided that Tenant shall not then be in default in the performance of any of its obligations
under this Lease beyond applicable periods of notice and grace. A “successor entity”, as used in
this Section, shall mean (i) an entity into which or with
29
which Tenant, its successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions for the merger or consolidation of business or governmental
entities, provided that by operation of law or by effective provisions contained in the instruments
of merger or consolidation the obligations of the Tenant under this Lease are assumed by the entity
surviving such merger or consolidation, (ii) an entity acquiring this Lease and the estate hereby
granted and substantial other property and assets of Tenant, its corporate successors or assigns,
and assuming substantial other liabilities of Tenant, its successors and assigns, including all
obligations under this Lease, or (iii) any entity that purchases all or substantially all of the
issued and outstanding shares of Tenant, or (iv) any successor to a successor entity becoming such
by either of the methods described in subdivisions (i), (ii) and (iii) above, provided that, (a)
such merger or consolidation, or such acquisition and assumption, or such purchase, as the case may
be, is not principally for the purpose of transferring the leasehold estate created hereby, and (b)
immediately after giving effect to any such merger or consolidation, or such acquisition and
assumption, or such purchase, as the case may be, the entity surviving such merger or created by
such consolidation or acquiring such shares or assets and assuming such liabilities, as the case
may be, shall have a net worth (excluding goodwill), as determined in accordance with generally
accepted accounting principles and certified to Owner by a reputable nationally-recognized
independent certified public accounting firm having no less than twenty (20) partners, at least
equal to those of Tenant immediately prior to such transaction. In addition, any entity that is
then the Tenant may “go public” without same being deemed an assignment of this Lease.
E. No assignment made pursuant to Section 48D and no
assignment otherwise consented to by Owner shall be valid unless, within twenty (20) days after the
execution thereof, Tenant shall deliver to Owner a duplicate original instrument of assignment and
assumption in form and substance reasonably satisfactory to Owner, duly executed by Tenant, and by
the assignee, in which such assignee shall assume performance of all terms of this Lease on
Tenant’s part to be performed.
F. (i) Notwithstanding anything contained in Sections
48A and 48B to the contrary, but subject to the rights of Tenant under Section 48C and 48D, in the
event that at any time Tenant desires to sublet all or any part of the Demised Premises or to
assign its interest in this Lease, Tenant:
(a) shall submit to Owner (x) in the case of a
sublease, the name and address of the proposed subtenant and a reasonably detailed
description of such person’s business (but if such subtenant has not yet been identified,
Tenant shall submit such name, address and description to Owner promptly after such
identification) and (y) in the case of an assignment, the name and address of the proposed
assignee, a reasonably detailed description of such person’s business, reasonably detailed
business and financial references for such person (including its most recent balance sheet
and income statements certified by its chief financial officer or a certified public
accountant) and any other business information reasonably requested by Owner (but if such
assignee has not yet been
30
identified, Tenant shall submit such name, address, description and references to Owner promptly
after such identification);
(b) shall submit to Owner (1) either (x) a term
sheet setting forth all the proposed terms of the proposed sublease or assignment, it being
understood that Tenant may deliver such term sheet to Owner in advance of having identified a
potential assignee or subtenant or (y) a conformed or photostatic copy of the proposed assignment
or sublease, the effective date of which shall be at least thirty (30) days after the date of the
giving of such notice and which shall be conditioned on Owner’s consent thereto, and (2) an
agreement by Tenant to indemnify Owner against liability resulting from any claims that may be made
against Owner by the proposed assignee or sublessee or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment or sublease, to the
extent such claims are arising from the actions of Tenant;
(c) in the case of a proposed sublease that
(whether individually or together with any other subleases then in effect or submitted to
Owner for Owner’s consent) demises more than fifty percent (50%) of the Demised Premises (except if
such subletting is permitted without Owner’s consent pursuant to Section 48C), shall be deemed to
have granted Owner the option, to be exercised within thirty (30) days after receipt of all items
to be submitted by Tenant pursuant to this Section 48F(i) (other than, if applicable, the name,
address, description and references that Tenant is permitted, pursuant to Section 48F(i)(a), to
submit after the initial submission of information), to terminate this Lease with respect to the
space that is the subject of such proposed sublease upon the terms and conditions hereinafter set
forth (provided that if Owner shall elect to terminate this Lease pursuant to this clause (c), then
Tenant shall have the right, not later than five (5) Business Days after Owner’s termination
notice, to retract its request for consent and this Lease shall continue in full force and effect);
(d) in the case of a proposed assignment of this
Lease (except if such assignment is permitted without Owner’s consent pursuant to Section 48C or
48D), shall be deemed to have granted Owner the option, to be exercised within thirty (30) days
after receipt of all items to be submitted by Tenant pursuant to this Section 48F(i) (other than,
if applicable, the name, address, description and references that Tenant is permitted, pursuant to
Section 48F(i)(a), to submit after the initial submission of information), to terminate this Lease
upon the terms and conditions hereinafter set forth (provided that if Owner shall elect to
terminate this Lease pursuant to this clause (d), then Tenant shall have the right, not later than
five (5) Business Days after Owner’s termination notice, to retract its request for consent and
this Lease shall continue in full force and effect); and
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(e) shall not offer such space for assignment or
subletting to anyone other than the proposed assignee or subtenant (unless no such proposed
assignee or subtenant was identified and Tenant delivered a term sheet to Owner in advance
of having identified a potential assignee or subtenant pursuant to Section 48F(i)(b)) until
after thirty (30) days have elapsed after receipt by Owner of all items to be submitted by
Tenant pursuant to this Section 48F(i).
(iii) If Owner shall exercise an option to terminate this
Lease in whole or in part (as applicable) pursuant to subsections (c) or (d) of Section 48F(i),
such termination shall be effective as of the date specified in said notice (“termination date”)
which shall be not earlier than one (1) day before the effective date of the proposed assignment or
subletting nor later than ten (10) days after said proposed effective date. Tenant shall then
vacate and surrender the part of the Demised Premises proposed to be sublet (in the case of a
proposed sublease) or the entire Demised Premises (in the case of a proposed assignment), on or
before the termination date and the Term of this Lease as to the part of the Demised Premises
thereof proposed to be sublet (in the case of a proposed sublease) or as to the entire Demised
Premises (in the case of a proposed assignment) shall end on the termination date as if that date
were the Expiration Date. Owner shall be free to, and shall have no liability to Tenant if Owner
should, lease the part of the Demised Premises proposed to be sublet or the entire Demised
Premises, as the case may be, to Tenant’s prospective assignee or subtenant. If a part of the
Demised Premises is surrendered to Owner pursuant hereto, Owner, at Tenant’s sole cost and expense,
shall make such alterations as may be reasonably required physically to separate such surrendered
space from the remainder of the Demised Premises and shall repair or restore to tenantable
condition any part of the remainder of the Demised Premises which is physically affected by such
separation (in each case, in compliance with all laws and ordinances and all requirements of
mortgagees and insurance carriers); if necessary, Tenant shall afford Owner and its agents,
tenants, under tenants or licensees reasonably appropriate means of ingress and egress to and from
such surrendered space; and Owner and Tenant shall execute and deliver a supplementary agreement
modifying this Lease, as of the day following such surrender, by eliminating such surrendered space
from the Demised Premises, equitably reducing the rent allocable to the remaining portion of the
Demised Premises and appropriately modifying the other terms of this Lease to reflect the
elimination of such surrendered space from the Demised Premises. Failure by either party to execute
such an agreement shall not affect the foregoing provisions of this subsection 48F(ii).
(iv) In the event that Tenant shall have requested
Owner’s consent to any such subletting or assignment and shall have submitted to Owner all items
required by Section 48F(i), and Owner does not exercise its option to terminate this Lease, in
whole or in part (as applicable), as referred to in Section 48F(i), or if Owner does not have such
termination option, Owner’s consent to any such subletting or assignment, as the case may be, shall
be granted or denied within thirty (30) days after Owner’s receipt from Tenant of all items to be
submitted by Tenant pursuant to Section 48F(i) (other than, if applicable, the name, address,
description and references that Tenant is permitted, pursuant to Section 48F(i)(a), to submit after
the initial submission of
32
information) and shall not be unreasonably withheld, provided that all of the following conditions
have been satisfied:
(a) In the reasonable judgment of Owner the
proposed subtenant or assignee, as the case may be, is of a business character, and the
proposed assignee has a financial worth, such as is in keeping with the standards of Owner
for the Building, and the nature of the proposed subtenant’s or assignee’s business is in
keeping with the character of the Building and its tenancies;
(b) The purposes for which the proposed
subtenant or assignee intends to use the Demised Premises or the applicable portion thereof
are uses expressly permitted by and not prohibited by this Lease or by any other lease in
the Building;
(c) Tenant shall not have publicly advertised all
or any part of the proposed premises for subletting or assignment, whether
through a broker, agent, representative or otherwise, at a rental rate less than the
rent at which Owner is then offering to lease comparable space in the Building;
however, Tenant may negotiate and consummate a sublease or assignment at a
lesser rate of rent (conditional on Owner’s consent);
(d) The proposed occupancy shall not materially
increase the office cleaning requirements or impose a material extra burden upon the
Building equipment or building services beyond in each case the requirements of Tenant;
(e) Any such subletting will result in there
being no more than two (2) subtenants, in addition to Tenant and Tenant’s related
corporations, on any single floor of the Demised Premises;
(f) The proposed sublease or assignment shall
prohibit any further assignment or subletting without Owner’s consent (which consent shall
not be required if this Article states that such consent would not be required if such
sublease or assignment were with respect to this Lease, and which consent shall not be
unreasonably withheld if this Article states that such consent would not be unreasonably
withheld if such sublease or assignment were with respect to this Lease) and without a true
copy thereof having been submitted to Owner;
(g) The proposed sublease shall be expressly
subject and subordinate to all of the terms of this Lease;
(h) Tenant shall not be in default beyond
applicable notice and grace periods in the performance of any of its monetary or material
non-monetary obligations under this lease at the time Owner’s consent to
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such subletting or assignment is requested or at the commencement of the term of any
proposed sublease or upon the effective date of any such assignment;
(i) Tenant shall reimburse Owner for any
reasonable out-of-pocket third party costs that may be incurred by Owner in
connection with said sublease or assignment as set forth in Section 48B;
(j) The proposed subtenant or assignee shall not
be entitled, directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts of, New York
State;
(k) The proposed subtenant or assignee shall not
be party who is negotiating or within the four (4) months immediately preceding Tenant’s
request for Owner’s consent, has negotiated, with Owner or Owner’s agent (either directly
or through a broker) for the rental of any space in the Building, unless Owner does not
then have comparable space available for the proposed subtenant or assignee;
(l) The term of any proposed sublease shall not
be less than the shorter of (x) twelve (12) months or (y) substantially all the
remainder of the Term;
(m) Tenant or the subtenant, at its sole cost and
expense, (x) shall provide to the subleased premises an independent means of access to and
from the elevators and/or staircase on the floor as shall be necessary to comply with all
applicable legal requirements and insurance requirements, and (y) shall be responsible for
making any alterations to the Demised Premises to comply with the ADA as may be required as
a result of such subletting; and
(n) In the case of any proposed sublease for
which Tenant has submitted a term sheet pursuant to Section 48F(i)(b)(l)(x), such sublease
is entered into within six (6) months after such submission on substantially the same terms
as set forth in such term sheet (provided that the net effective rental in such sublease
shall be no less than ninety-three percent (93%) of the net effective rental set forth in
such term sheet).
(v) [Intentionally omitted.]
(vi) With respect to each and every sublease or
assignment authorized by the provisions of this Section, it is further agreed and
understood between Owner and Tenant as follows:
(a) No subletting shall be for a term ending later
than one day prior to the Expiration Date and that part, if any, of the proposed term of
any sublease or any renewal or extension thereof which shall extend
34
beyond a date one day prior to the Expiration Date or the sooner termination of the
Term shall be a nullity; and
(b) There shall be delivered to Owner, within
twenty (20) days after the effective date of the assignment or commencement of the term of
the proposed sublease, as the case may be, notice of such commencement, in the case of a
sublease, or notice of the effectiveness of such assignment, in the case of an assignment.
(vii) In the event that (a) Owner fails to exercise any of
its options under Section 48F(i) and 48F(ii) and consents to the proposed sublease or assignment
and (b) the assignment or sublease to which Owner shall have consented does not become effective on
or before the date which is ninety (90) days after the effective date set forth in the conformed or
photostatic copy thereof furnished to Owner pursuant to Section 48F(i)(b), then Tenant shall again
comply with all of the provisions and conditions of this Article 48 before assigning this Lease or
subletting all or any part of the Demised Premises.
G. Notwithstanding anything to the contrary contained herein, if Owner shall consent to
any assignment or subletting and Tenant shall either (i) receive any consideration from its
assignee for the assignment of this Lease, Tenant shall pay over to Owner fifty percent (50%) of
such consideration (including, without limitation, sums designated by the assignee as paid for the
purchase of Tenant’s property in the Demised Premises, including Tenant’s alterations less the then
net unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income
tax returns, or, if Tenant does not file such returns, on the same basis as carried on Tenant’s
books) as shall exceed the reasonable brokerage commissions, free rent, tenant improvement costs
and attorneys’ fees and disbursements actually incurred by Tenant for such assignment or (ii)
sublet the Demised Premises or any portion thereof to anyone for rents, additional charges or other
consideration (including, without limitation, sums designated by the subtenant as paid for the
purchase of Tenant’s property in the Demised Premises, including Tenant’s alterations less the then
net unamortized or undepreciated cost thereof determined on the basis of Tenant’s federal income
tax returns or, if Tenant does not file such returns, on the same basis as carried on Tenant’s
books) which for any period shall exceed the rents payable for the subleased space under this Lease
for the same period, Tenant shall pay Owner, as Additional Rent, fifty percent (50%) of such excess
less reasonable brokerage commissions, free rent, tenant improvement costs and attorneys’ fees and
disbursements actually incurred by Tenant for such subletting, which shall be recouped from the
first revenues received. All sums payable to Owner pursuant to clause (i) of this Section 48G shall
be paid on the effective date of such assignment and all sums payable to Owner pursuant to clause
(ii) of this Section 48G shall be paid on the date or dates such sums are paid to Tenant.
H. If Owner shall recover or come into possession of the
Demised Premises before the Expiration Date, Owner shall have the right, at its option, to take
over any and all subleases of the Demised Premises or any part thereof made by
35
Tenant and to succeed to all the rights of said subleases or such of them as it may elect to take
over. Tenant hereby expressly assigns and transfers to Owner such of the subleases as Owner may
elect to take over at the time of such recovery of possession, such assignment and transfer not to
be effective until the termination of this Lease or reentry by Owner hereunder or if Owner shall
otherwise succeed to Tenant’s estate in the Demised Premises, at which time Tenant shall upon
request of Owner, execute, acknowledge and deliver to Owner such further assignments and transfers
as may be necessary to vest in Owner the then existing subleases. Every sublease hereunder is
subject to the condition that by its acceptance of and entry into a sublease, each subtenant
thereunder shall be deemed conclusively to have thereby agreed from and after the termination of
this Lease or reentry by Owner hereunder or if Owner shall otherwise succeed to Tenant’s estate in
the Demised Premises, that such subtenant shall waive any right to surrender possession or to
terminate the sublease and, at Owner’s election, such subtenant shall be bound to Owner for the
balance of the term of such sublease and shall attorn to and recognize Owner, as its Owner, under
all of the then executory terms of such sublease, except that Owner shall not (i) be liable for any
previous act, omission or negligence of Tenant under such sublease, (ii) be subject to any
counterclaim, defense or offset which theretofore accrued to such subtenant against Tenant, (iii)
be bound by any previous modification or amendment of such sublease or by any previous prepayment
of more than one month’s rent and additional rent which shall be payable as provided in the
sublease, unless such modification or prepayment shall have been approved in writing by Owner, (iv)
be obligated to repair the subleased space or the Building or any part thereof, in the event of
total or substantial total damage beyond such repair as can reasonably be accomplished from the net
proceeds of insurance actually made available to Owner, (v) be obligated to repair the subleased
space or the Building or any part thereof, in the event of partial condemnation beyond such repair
as can reasonably be accomplished from the net proceeds of any award actually made available to
Owner as consequential damages allocable to the part of the subleased space or the Building not
taken or (vi) be obligated to perform any work in the subleased space or the Building or to prepare
them for occupancy beyond Owner’s obligations under this Lease, and the subtenant shall execute and
deliver to Owner any instruments Owner may reasonably request to evidence and confirm such
attornment. If Owner so elects to have such subtenant attorn to Owner, Tenant shall deliver to
Owner any security deposit which Tenant is then holding under such sublease and such subtenant
shall reimburse Owner for any costs that may be incurred by Owner in connection with such
attornment, including reasonable attorneys’ fees and disbursements and the cost of making
investigations as to the acceptability of such subtenant. Each subtenant or licensee of Tenant
shall be deemed automatically upon, and as a condition of occupying or using the Demised Premises
or any part thereof, to have given a waiver of the type described in, and to the extent and upon
the conditions set forth in, Article 9(f).
I. If, at any time after the Tenant named herein may have assigned its interest in
this Lease, this Lease shall be disaffirmed or rejected in any proceeding of the types described in
Article 16 or in any similar proceeding, or in the event of termination of this Lease by reason of
any such proceeding or by reason of lapse of time following notice of termination given pursuant to
Article 16 based upon any of
36
the conditions of limitation set forth in said subdivisions, then (except to the extent the
Tenant named herein has been expressly released from liability hereunder) the Tenant named herein
upon request of Owner given within thirty (30) days after such disaffirmance, rejection or
termination (and actual notice thereof to Owner in the event of a disaffirmance or rejection or in
the event of termination other than by act of Owner), shall (i) pay to Owner all Fixed Annual Rent,
Additional Rent and other charges due and owing by the assignee to Owner under this Lease to and
including the date of such disaffirmance, rejection or termination, and (ii) as “tenant,” enter
into a new lease with Owner of the Demised Premises for a term commencing on the effective date of
such disaffirmance, rejection or termination and ending on the Expiration Date, unless sooner
terminated as in such lease provided at the same Fixed Annual Rent and upon the then executory
terms, covenants and conditions as are contained this Lease, except that (a) the rights of Tenant
named herein under the new lease shall be subject to the possessory rights of the assignee under
this Lease and the possessory rights of any persons claiming through or under such assignee or by
virtue of any statute or of any order of any court, (b) such new lease shall require all defaults
existing under this Lease to be cured by Tenant named herein with due diligence, and (c) such new
lease shall require Tenant named herein to pay all additional rent which, had this Lease not been
so disaffirmed, rejected or terminated, would have become due under the provisions of this Lease
after the date of such disaffirmance, rejection or termination with respect to any period prior
thereto at the time same would have been paid. In the event Tenant named herein shall default for a
period of ten (10) days after Owner’s request in its obligations to enter into said new lease then,
in addition to all other rights and remedies by reason of such default, either at law or in equity,
Owner shall have the same rights and remedies against Tenant named herein as if it had entered into
such new lease and such new lease had thereafter been terminated as at the commencement date
thereof by reason of the default thereunder of Tenant named herein.
J. Tenant shall indemnify and hold harmless Owner of and
from any and all loss, costs, damage or expense (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by Owner by reason of any claim of or liability to any
real estate broker or other finder for a commission which may be due or payable on account of any
proposed assignment or subletting.
A. HVAC. (i) Owner shall provide heating, ventilation and air conditioning to
the Demised Premises during Business Hours through the HVAC System. The proper performance of the
HVAC System is based upon a design to maintain interior conditions of 72 - 77 degrees Fahrenheit in
the cooling season and 66 - 74 degrees Fahrenheit in the heating system, and to provide fresh air
in a quantity not less than .14 (14/100) cubic feet per minute per square foot of floor area
provided that in any given room the occupancy does not exceed one (1) person for each one hundred
(100) square feet of usable area. Owner shall not be responsible if the normal operation of such
systems shall fail to provide conditioned or heated air at reasonable temperatures, pressures or
degrees of humidity or in reasonable volumes or velocities in any portions of
37
the Demised Premises (a) which shall have an electrical load in excess of 4.5 xxxxx per square foot
of usable area for all purposes (including lighting and power), or which shall have a human
occupancy factor in excess of one (1) person per one hundred (100) square feet of usable area or
(b) if Tenant fails to abide by any of the provisions of this Article 49.
(ii) Use of the Demised Premises, or any part thereof, in a
manner exceeding the design conditions (including occupancy and connected electrical load) for air
conditioning service in the Demised Premises, or the use of computer or data processing machines
(other than desktop or personal computers or similar equipment), may require changes in the air
conditioning system servicing the Demised Premises. Such changes so occasioned shall be made by
Tenant, at its expense, as Tenant’s Changes pursuant to Article 3 and Article 42.
(iii) Owner shall be responsible for the maintenance of the HVAC System and replacing the
same at the end of each such unit’s useful life in accordance with generally accepted accounting
principles (GAAP), consistently applied, or at such earlier time as the same shall require
replacement in accordance with customary and prudent building management.
(iv) Tenant agrees to keep and cause to be kept closed all
windows in the Demised Premises whenever the air cooling system is in operation and Tenant at all
times agrees to cooperate fully with Owner and to abide by all reasonable regulations and
requirements which Owner may prescribe for the proper functioning and protection of its air
conditioning system and Tenant agrees to keep the blinds closed at the appropriate times of day.
Subject to the express provisions of this Lease governing Owner’s access rights in and to the
Demised Premises, Owner shall have free access to any and all mechanical installations of Owner in
the Demised Premises, including but not limited to air conditioning, fan ventilating and machine
room and electrical closets. Tenant agrees that there shall be no construction or partitions or
other obstructions which might interfere with Owner’s free access thereto, or interfere with the
moving of Owner’s equipment to and from the enclosures containing said installations. Tenant agrees
that neither Tenant, its agents, employees or contractors shall at any time enter the said
enclosures or adjust, touch or otherwise in any manner tamper with Owner’s mechanical
installations.
(v) If Tenant shall have installed a supplemental cooling
system to service the Premises, then said system shall be maintained in accordance with the terms
and conditions set forth in Article 42 and at the sole cost and expense of Tenant, and Tenant shall
pay to Owner, as Additional Rent, a per ton hook-up fee at Owner’s then-prevailing building
standard charge therefor. In connection with any such system, Owner shall make available
twenty-five (25) tons of condenser water per floor, on a 24/7 basis, and Owner’s condenser water
system shall provide for wintertime waterside economizer operation.
38
(vi) So long as the same is at no cost to Owner (other than
through the Owner’s Contribution) and does not materially adversely affect the operation of the
HVAC System, the operation of any Building system or the Building, upon prior written notice to
Owner Tenant shall have the right (a) to retrofit the HVAC System with variable speed controls for
the fans to have VAV operation and (b) to install louvers, dampers and controls as may be required
to provide adequate ventilation air to the Demised Premises.
B. Access / Elevators.
(i) Tenant shall have access to the Demised Premises seven (7) days a week, twenty-four
(24) hours a day, three hundred sixty-five (365) days a year, subject to Owner’s reasonable rules
regarding identification for access.
(ii) Upon reasonable prior notice to Owner, Tenant shall have reasonable access to any
and all installations or equipment of Tenant in the Building outside of the Demised Premises,
including but not limited to the mechanical/electrical rooms on the 7th and 8th floors and any of
Tenant’s telecommunications lines. All such access shall be made in a manner reasonably intended to
minimize inconvenience to Owner, the Building and any other tenants or occupants of the Building,
and that complies with then-existing security and safety policies. Tenant agrees that none of
Tenant, its agents, employees or contractors shall at any time enter adjust, touch or otherwise in
any manner tamper with Owner’s installations or property, and Tenant shall be responsible, at
Tenant’s cost and expense, for avoiding and promptly remedying any and all damage resulting from or
in connection with any access under this Section 49B(ii).
(iii) Owner shall provide automatic operator-less passenger elevator service to the
Office Space between the hours of 7:00 a.m. and 7:00 p.m. on Business Days. At all other times, at
least one (1) elevator shall be in operation. Tenant understands that during construction, move-in
and move-out times and in the event of other long usage periods, Tenant may be required to use the
freight elevator before or after Business Hours. The use of freight elevator service during
Business Hours is without additional charge, on a first-come first-served basis.
C. Overtime Periods.
(i) The Fixed Annual Rent does not reflect or include any
charge to Tenant for the furnishing of any necessary freight elevator facilities or heating,
ventilation and/or air-conditioning (“HVAC”) to the Demised Premises during periods (“Overtime
Periods”) other than (a) during Business Hours, when seasonally required in respect of HVAC, and
(b) from 9:00 a.m. to 12:00 noon and 1:00 p.m. to 5:00 p.m. in respect of freight elevator
facilities. Accordingly, if Owner furnishes any such freight elevator facilities or HVAC to the
Premises at the request of Tenant during Overtime Periods, Tenant shall pay Additional Rent to
Owner for such services (except as otherwise provided in Section 49C(ii) below with respect to
overtime HVAC), within thirty (30) days after demand, at Owner’s then established reasonable rates
for the
39
Building (which, as of the date hereof, are set forth in Exhibit E annexed hereto and made a
part hereof, but such charges shall be subject to increase, from time to time, to reflect any
increases in the then established rates charged by Owner to other tenants of the Building,
provided, however that, in the case of freight elevator charges, such charges shall not exceed
Ninety Dollars ($90.00) per hour (as adjusted by CPI from time to time)). Owner shall not be
required to furnish any such services during any Overtime Periods unless Tenant shall notify Owner
in writing of its requirement for such services prior to 2:00 p.m. of the day upon which such
services are requested or by 2:00 p.m. of the last preceding Business Day if such Overtime Periods
are to occur on a day other than a Business Day (but Owner will use reasonable efforts to
accommodate Tenant’s requests if made after such time). If Tenant fails to give Owner such advance
notice, then the failure by Owner to furnish or distribute any such services during such Overtime
Periods shall not constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rental, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant’s business or otherwise. Anything
hereinabove to the contrary notwithstanding, Owner will not be required to provide any such
services during Overtime Periods if Tenant is then in monetary default hereunder or in material
non-monetary default hereunder beyond any applicable notice, grace and cure periods.
(ii) If Tenant shall so request by written notice to Owner on or prior to November 30 of
any calendar year during the Term, then for the following calendar year Owner shall provide
heating, ventilation and air conditioning to one or both full floors of the Office Space (as
directed by Tenant in such written notice) on a 24/7/365 basis. In consideration therefor, Tenant
shall pay to Owner, as Additional Rent, an annual amount of Fifty Thousand and 00/100 Dollars
($50,000.00) per such floor, payable in equal monthly installments of $4,166.67 per such floor,
commencing on the first day of such 24/7/365 service, and the overtime charge for HVAC set forth in
Section 49C(i) shall no longer apply. After Tenant has made such request, unless Tenant shall
notify Owner to the contrary by written notice prior to any succeeding November 30, then Tenant
shall be deemed to have requested such 24/7/365 service for the following calendar year. Any
request (or deemed request) by Tenant under this Section 49C(ii) shall be irrevocable with respect
to the applicable calendar year. The charge set forth in this Section 49C(ii) shall be subject to
CPI Increase on each five (5) year anniversary of the Commencement Date.
D. Basement Space.
(i) Tenant shall have one (1) option to lease an additional area of approximately 2,500
rentable square feet in the basement of the Building, provided that if Tenant shall so desire to
lease such additional space Tenant shall so notify Owner on or prior to August 30, 2006. If Tenant
shall so timely notify Owner, then this Lease shall be deemed amended as of the date that is five
(5) Business Days after Owner’s receipt of such notice to increase the Basement Space, for all
purposes of this Lease (including without limitation the Fixed Annual Rent payable therefor
pursuant to Section
40
37J(ii)), to include space in the basement, designated by Owner in a written notice to
Tenant (which space may or may not be contiguous to the Basement Space denoted in the preamble to
this Lease, and which space shall contain approximately 2,500 rentable square feet). Promptly
thereafter, Owner and Tenant shall execute and deliver to each other a written agreement to confirm
the same (but failure to execute and deliver such written agreement shall not vitiate the demise of
such space).
(ii) Notwithstanding any provision of this Lease to the
contrary, Tenant’s occupancy of the Basement Space is subject to the following terms and
conditions: (i) Tenant shall make no alterations, installations, additions or improvements of any
kind in or to the Basement Space without Owner’s consent in each instance and except as otherwise
is in accordance with the provisions of Article 42, (ii) Tenant shall use the Basement Space
exclusively for storage and for no other purpose, (iii) Tenant shall in no event assign its rights
with respect to the Basement Space or sublease the same or allow the same to be used by others
without the prior written consent of Owner (except that such consent shall not be required for
assignments or subleases undertaken as part of (and to the assignee or sublessee under) any
assignment or sublease not requiring Owner’s consent pursuant to Article 48 or as to which Owner
has provided consent pursuant to Article 48) and (iv) except for electricity for storage lighting
purposes, Owner shall not be responsible for the rendition or delivery of any services or utilities
to the Basement Space whatsoever, including without limitation electricity, water, heating, air
cooling or cleaning. Tenant shall have no obligation to make repairs to the Basement Space unless
(subject to Sections 9 and 44) Tenant or Tenant’s employees, contractors, agents, invitees or other
representatives caused such damage.
E. Directory. Owner, at Tenant’s request, shall maintain
listings on any Building directory of the names of Tenant, permitted assignees or
subtenants, and the names of any of Tenant’s officers and employees, provided, however,
that the aggregate number of names so listed shall not exceed Tenant’s Proportionate
Share of such directory (unless such directory is electronic). The reasonable charge of
Owner for any changes in such listings requested by Tenant shall be paid by Tenant to
Owner promptly after demand.
F. Standards. Except to the extent that specific standards are
set forth in this Lease, Owner shall operate, manage and maintain the Building, and
provide services (including security) therein at a standard not less than that generally
prevailing in the Building as of the date hereof.
Supplementing the provisions of Article 6 hereof, Tenant shall give prompt notice to Owner of
any notice it receives of the violation of any law or requirement of any public authority with
respect to the Demised Premises or the use or occupation thereof. Tenant shall promptly comply with
all present and future laws, orders and regulations of all state, federal, municipal and local
governments,
41
departments, commissions and boards or any direction of any public officer pursuant to law, and all
orders, rules and regulations of the New York Board of Fire Underwriters or any similar body which
shall impose any violation, order or duty upon Owner or Tenant (any of the foregoing, a “Law”) with
respect to the Demised Premises or any portion thereof, including any objection under the ADA (in
any of which events Tenant shall effect such compliance at Tenant’s sole cost and expense), except
that Tenant shall not be responsible for (i) any structural alterations required by any Law (other
than the ADA) unless required by Tenant’s particular manner of use (as distinguished from general
office use) or by reason of Tenant’s making any Tenant’s Changes or, subject to Section 9 or
Section 44 hereof, Tenant’s default under this Lease, or (ii) the Building outside the Demised
Premises (in which case, notwithstanding anything herein to the contrary, Owner shall effect such
compliance at Owner’s sole cost and expense (except that Owner shall effect such compliance at the
sole cost and expense of Tenant if and to the extent the need for such compliance arose out of
Tenant’s particular use or manner of use of the Demised Premises or Tenant’s particular use or
manner of use of the Building outside the Demised Premises)).
Each of Owner and Tenant represents and warrants to the other that the sole brokers with whom
it has dealt in connection with this Lease were the Brokers (as defined in Article 37), whose
commission Owner agrees to pay, pursuant to separate agreement(s). Each of Owner and Tenant does
hereby agree to indemnify and hold the other harmless of and from any and all loss, costs, damage
or expense (including, without limitation, attorneys’ fees and disbursements) incurred by such
other party by reason of any claim of or liability to any broker other than the Brokers who shall
claim to have dealt with the indemnifying party in connection with the negotiation or consummation
of this Lease.
A. Tenant shall not at any time prior to or during the Term
either directly or indirectly use any contractors or labor or materials whose use in
Owner’s sole judgment would create or creates any difficulty with other contractors or
labor employed by Tenant or Owner or others in the construction, maintenance or
operation of the Demised Premises or the Building.
B. If more than one person executes this Lease as Tenant, each
of them understands and hereby agrees that the obligations of each of them under this
Lease are and shall be joint and several, that the term “Tenant” as used in this Lease shall
mean and include each of them jointly and severally and that the act of or notice from, or
notice or refund to, or the signature of any one or more of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease shall be binding upon each and all of the
persons executing this Lease as Tenant with the same force and effect as if each and all of
42
the persons executing this Lease had so acted or so given or received such notice or
refund or so signed.
C. Except with respect to the Existing Lease (as hereinafter
defined), as to which the provisions of Article 63 shall apply, (i) this Lease supersedes all prior
leases and agreements between Owner and Tenant with respect to space at the Building and (ii) all
prior conversations or writings between the parties hereto or their representatives with respect to
this Lease or the Demised Premises are merged herein and extinguished.
D. Except as otherwise expressly set forth herein, this Lease
may not be extended, renewed, terminated or otherwise modified except by an instrument in writing
signed by the party against whom enforcement of any such modification is sought.
E. Wherever in this Lease it is provided that either party shall
not unreasonably withhold consent or approval or shall exercise its judgment reasonably,
and if no specific time period is given, such consent or approval or exercise of judgment
shall also not be unreasonably delayed or conditioned.
F. This Lease is offered to Tenant for signature with the
understanding that it shall not be binding upon Owner unless and until Owner shall have executed
and unconditionally delivered to Tenant a fully executed copy of this Lease.
G. Tenant hereby irrevocably waives any and all right(s) it
may have in connection with any zoning lot merger or transfer or development rights
with respect to the Demised Premises including, without limitation, any rights it may
have to be a party to, to contest, or to execute, any Declaration of Restrictions (as such
term is defined in Section 12-10 of the Zoning Resolution of the City of New York
effective December 15, 1961, as amended) with respect to the Demised Premises, which
would cause the Demised Premises to be merged with or unmerged from any other
zoning lot pursuant to such Zoning Resolution or to any document of a similar nature and
purpose, and Tenant agrees that this Lease shall be subject and subordinate to any
Declaration of Restrictions or any other document of similar nature and purpose now or
hereafter affecting the Land or the Building. In confirmation of such subordination and
waiver, Tenant shall execute and deliver promptly any certificate or instrument that
Owner may reasonably request.
H. Nothing contained in Article 17 of the printed form shall be deemed to require Owner
to give the notices therein provided for prior to the commencement of a summary proceeding for
nonpayment of rent or a plenary action for the recovery of rent on account of any default in the
payment of the same, it being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate and if Tenant
thereafter remains in possession or occupancy, it shall become a holdover tenant.
43
I. Subject to Section 41B, Owner reserves the right to
suspend, delay or stop any of the services to be furnished and provided by Owner pursuant to the
provisions of this Lease and/or extend the date for the performance by Owner of any obligation or
undertaking provided for herein whenever necessary and for as long as reasonably required by reason
of Force Majeure. Subject to Section 41B, Owner, from time to time, shall also have the right to
interrupt the level of service provided by the Building systems to the extent reasonably necessary
to accommodate the performance of repairs, additions, alternations, replacements or improvements
that in Owner’s reasonable judgment are desirable or necessary. Owner shall use diligent efforts to
give Tenant reasonable advance notice of any such interruption or curtailment and schedule any such
interruption or curtailment at times that minimize, to the extent reasonably practicable, the
effect of such interruption or curtailment on or curtailment on Tenant’s ability to conduct its
business in the Demised Premises during Business Hours.
J. In the event of a lease termination, default, re-entry or
dispossess by summary proceedings pursuant to Article 17 of the printed form, the Owner may elect
as damages, in lieu of liquidated damages under Section 18(c), accelerated rent (“Accelerated
Rent”), discounted to present value as provided below:
(a) Accelerated Rent shall be a sum equal to the
aggregate of the Fixed Annual Rent and the Additional Rent payable hereunder which would have been
payable by Tenant 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 Owner not so re-entered the Demised Premises, less the aggregate fair rental
value of the Demised Premises for the same period.
(b) The Accelerated Rent shall be discounted to the
date payable at an annual interest rate equal to four percent (4%) per annum.
(c) The amount of Additional Rent payable under
clause (i) above shall be the Additional Rent payable pursuant to this Lease during the twelve
month period immediately preceding the event of default, increased at the rate of 5% per annum for
the balance of the Term.
(d) If the Demised Premises or any part thereof be relet
by Owner for the unexpired portion of the Term, or any part thereof, before presentation of proof
of such damages to any court, commission or tribunal, the amount of rent reserved upon such
reletting shall, prima facie, be the fair rental value for the Demised Premises, or part thereof,
so relet during the term of the reletting.
K. This Lease shall not be modified except by a writing signed by the party to be
charged, and which writing expressly refers to this Lease, nor (except as otherwise expressly
provided herein) may this Lease be cancelled by Tenant or the Demised Premises surrendered except
with the written express authorization of Owner.
44
L. The Article numbers, captions and table of contents
appearing herein are inserted only as a matter of convenience and are not intended to define,
limit, construe or describe the scope or intent of any Article, nor in any way affect this Lease.
M. If any provision of this Lease or the application thereof to any person or
circumstances shall to any extent be held void, unenforceable or invalid, then the remainder of
this Lease or the application of such provisions to persons or circumstances other than those as to
which it is held void, unenforceable or invalid shall not be affected thereby, and each provision
of this Lease shall be valid and enforceable to the fullest extent permitted by law.
N. Words and phrases in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular gender shall be
deemed to include any other gender.
O. The rule of “ejusdem generis” shall not be applicable to
limit a general statement following or referable to an enumeration of specific matters to matters
similar to the matters specifically mentioned.
P. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this Lease to be
drafted. In the event of any action, suit, dispute or proceeding affecting the terms of this Lease,
no weight shall be given to any deletions or striking out of any of the terms of this Lease
contained in any draft of this Lease and no such deletion or strike out shall be entered into
evidence in any such action, suit, dispute or proceeding nor given any weight therein.
Q. Tenant hereby acknowledges that (i) any statement of square footage set forth in
this Lease is intended only as a reasonable approximation thereof and (ii) no representation is or
shall in any way be deemed to have been made by Owner in this Lease with respect to any such
statements.
R. In the event any payment under this Lease shall be made in the form of a check from
any person, firm or corporation other than the person, firm or corporation named in this Lease, the
acceptance of same by Owner shall not, under any circumstances, be deemed recognition of a
subletting or an assignment of this Lease, regardless of the number of times that such payment
shall be made by such other person, firm or corporation.
S. In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions of this Lease, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and
other remedies were not herein provided for. Mention in this Lease of any particular remedy shall
not preclude Owner or Tenant from any other remedy, at law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or future laws in the event
of Tenant’s being evicted or
45
dispossessed, or in the event of Owner’s obtaining possession of the Demised Premises by
reason of Tenant’s violation of the provision of this Lease. Tenant further agrees that it shall
not interpose any counterclaim or counterclaims in a summary proceeding or in any other action or
proceeding to evict the Tenant or otherwise recover possession of the Demised Premises and Tenant
hereby waives the right to interpose any counterclaim or counterclaims in any such proceeding(s)
except for statutory mandatory counterclaims.
A. Tenant shall, without charge, at any time and from time to
time, within ten (10) Business Days after request by Owner, the lessor under any Superior Lease
and/or the holder of a Superior Mortgage, as the case may be, execute, acknowledge and deliver to
Owner or any other person, firm or corporation reasonably specified by Owner, a written instrument
(an “Estoppel Certificate”) in the form attached hereto as Exhibit C (with such changes as are
reasonably necessary to make the provisions thereof true), having attached thereto a copy of this
Lease and all amendments hereto, if any, or such other form as may be reasonably requested by
Owner, the lessor under any such Superior Lease and/or the holder of any such Superior Mortgage.
B. Owner shall, without charge, at any time and from time to time, within ten
(10) Business
Days after request by Tenant, execute, acknowledge and deliver to Tenant such estoppel certificate
regarding this Lease as may be reasonably requested by Tenant.
If any of the rents payable under the terms of this Lease shall be or become uncollectible,
reduced or required to be refunded because of any applicable law, ordinance, order, rule,
requirement or regulation, Tenant shall enter into such agreement(s) and take such other steps
(without additional expense to Tenant) as Owner may request and as may be legally permissible to
permit Owner 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 Owner, 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.
If Tenant shall fail to comply fully with any of its obligations
under this Lease (including, without limitation, its obligations to make repairs, maintain public
liability and other insurance and comply with all legal requirements), Owner, without thereby
waiving such default and without liability to Tenant, may, but shall not be obligated to, perform
the same for the account and at the expense of Tenant without
46
notice in case of emergency and upon five (5) days’ prior notice in all other cases. Owner may
enter the Demised Premises at any time to cure any default. Bills for expenses incurred by Owner in
connection with any such performance or involved in collecting or endeavoring to collect rent or
enforcing or endeavoring to enforce any rights against Tenant under or in connection with this
Lease or pursuant to law, including any costs, expense and disbursement involved in instituting and
prosecuting summary proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, including reasonable attorneys’ fees and disbursements, together
with interest on the amount of such costs, expenses and disbursements at the Default Rate, shall be
paid by Tenant as Additional Rent upon demand.
56. Consents.
Wherever in this Lease Owner’s consent or approval is required and Owner agrees that such
consent or approval shall not be unreasonably withheld, if Owner shall refuse such consent or
approval Tenant in no event shall be entitled to and shall not 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 assertion by Tenant that Owner unreasonably withheld or
unreasonably delayed its consent or approval. Tenant’s sole remedy in such circumstance shall be an
action or proceeding to enforce any such provision by way of specific performance, injunction or
declaratory judgment (except that Tenant shall be entitled to recover its actual reasonable
out-of-pocket legal fees from Owner if it is finally judicially determined that Owner withheld or
delayed its consent or approval in bad faith).
57. Cleaning.
A. During the Term, Owner, at no additional charge to Tenant, shall provide janitorial and
cleaning services to the Office Space substantially in accordance with the Cleaning Specifications
set forth in Exhibit B annexed hereto and made a part hereof. Owner shall not be required to
provide janitorial or cleaning services to the Basement Space.
B. Owner reserves the right to charge Tenant for the cost of removal of any of Tenant’s
refuse
and rubbish in excess of that typically resulting from ordinary office use (including, but not
limited to, wooden or metal packaging materials) from the Building.
C. If Owner permits Tenant to store, prepare, serve or
consume food or beverages in the Demised Premises other than in ordinary pantry use, Tenant, at
Tenant’s expense, shall cause all portions of the Demised Premises used for such storage,
preparation, service or consumption of food or beverages to be cleaned daily in a manner reasonably
satisfactory to Owner, and to be exterminated against infestation by vermin, roaches or rodents
regularly and, in addition, whenever there shall be evidence of any infestation. Any cleaning of
the Demised Premises by Tenant, whether required by Owner or otherwise, shall be by Tenant’s own
employees or by a
47
contractor approved by Owner (not to be unreasonably withheld) in writing, and shall be at
Tenant’s expense without any credit against Fixed Annual Rent or Additional Rent or contribution
by Owner.
D. Tenant acknowledges and is aware that any cleaning
services required to be furnished by Owner pursuant to this Lease may be furnished by a contractor
or contractors employed by Owner and agrees that Owner shall not be deemed in default of any of its
obligations under this Article 57 unless such default shall continue for an unreasonable period of
time after notice from Tenant to Owner setting forth the specific nature of such default.
58. Notices.
Except as otherwise expressly provided in this Lease, every notice, demand, consent, approval,
request or other communication (collectively, “notices”) which may be or is required to be given
under this Lease or by law shall be in writing and shall be personally delivered by hand, sent by
United States certified or registered mail, postage prepaid, return receipt requested, or sent by
nationally-recognized overnight courier service, and shall be addressed:
(ii) If intended for Owner, to Owner’s address set forth
on the cover page hereof (or to such other address or addresses as may from time to time hereafter
be designated by Owner by like notice) with a copy to Owner’s attorney at the following address:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Ref.: 15537-006
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Ref.: 15537-006
(iii) If intended for Tenant, to Tenant’s address set forth
on the cover page hereof until the date that Tenant occupies the Demised Premises for the conduct
of its business, and thereafter at the Demised Premises (or to such other address or addresses as
may from time to time hereafter be designated by Tenant by like notice) with a copy to Tenant’s
attorney at the following address:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
B. Except as otherwise provided herein, all such notices shall be deemed to have been
served or delivered on the date when personal delivery is made or refused, or on the next Business
Day if sent by nationally-recognized overnight courier service, or three (3) Business Days after
being deposited in the United States mail. A notice given by counsel for Owner shall be deemed a
valid notice if addressed and sent in
48
accordance with the provisions of this Article. Each of the parties hereto waives personal
or any other service other than as provided for in this Article. Notwithstanding the foregoing,
either party hereto may give the other party oral notice of the need for emergency repairs.
A. Supplementing Article 34, Tenant shall, immediately upon the execution of this
Lease, deliver to Owner as and for the security described in such Article 34 and in this Article 59
(the “Security Deposit”) an irrevocable letter of credit (the “Letter of Credit”) issued or
confirmed by (x) JPMorgan Chase Bank, N.A., (y) another bank that is a member of the Clearing House
Association or (z) another commercial bank acceptable to Owner in Owner’s reasonable discretion,
and in substantially the form of the letter of credit annexed hereto as Exhibit D, in the amount of
One Million Six Hundred Eighty Thousand and 00/100 Dollars ($1,680,000.00) (which amount shall be
subject to Section 59B). The Letter of Credit shall (i) initially expire not less than one (1) year
from the date of issuance thereof, (ii) provide for automatic renewals for periods of not less than
one (1) year unless notice of non-renewal is given to Owner at least sixty (60) days prior to the
expiration date thereof, and (iii) have a final expiration date not less than four (4) months after
the Expiration Date. Tenant shall pay to Owner, on demand and as Additional Rent hereunder, all
fees and charges paid by Owner to the bank issuing the Letter of Credit in connection with the
transfer of same to any future owner of the Building or of the lessee’s interest under any Superior
Lease. In the event of a default by Tenant in the performance of any of the terms, provisions and
conditions of this Lease which continues beyond applicable periods of notice and grace, Owner shall
be permitted to draw down any portion or the entire amount of the Letter of Credit and apply the
proceeds or any part thereof in accordance with Article 34 of this Lease and retain the balance for
the Security Deposit. Owner shall also have the right to draw down any portion or the entire amount
of the Letter of Credit if Owner receives notice that the date of expiration will not be extended
by the issuing bank and if a replacement letter of credit meeting the requirements of this Article
is not delivered by Tenant within ten (10) Business Days thereafter, and may retain the proceeds as
and for the Security Deposit. If Owner draws down any portion of the whole amount of the Letter of
Credit for the payment of any Fixed Annual Rent, Additional Rent or any other sums as to which
Tenant is in default, or for any sum that Owner may expend or be required to expend by reason of
any default by Tenant (including, without limitation, any damage or deficiency accrued before or
after summary proceedings or other re-entry by Owner) as provided in this Lease, Tenant shall
deliver to Owner, within seven (7) Business Days after Owner’s demand, a replacement Letter of
Credit in the amount of the Security Deposit and otherwise complying with the requirements of this
Article 59 or an amendment to the existing Letter of Credit reinstating same to the amount required
hereby. Tenant’s failure to comply with the provisions of this Article 59 on a timely basis will
entitle Owner to exercise all the same remedies as are available to Owner in the event of a default
by Tenant in the payment of Fixed Annual Rent.
49
B. Notwithstanding any provision of Article 34 or this Article 59 to the contrary,
Tenant will be permitted to reduce the amount of the Security Deposit to (i) One Million Two
Hundred Sixty Thousand and 00/00 Dollars ($1,260,000.00) on or after July 1, 2009, (ii) to Eight
Hundred Forty Thousand and 00/100 Dollars ($840,000.00) on or after July 1, 2012 and (iii) to Five
Hundred Sixty Thousand and 00/100 Dollars ($560,000.00) on or after July 1, 2015; provided,
however, that no such reduction in the Security Deposit shall be permitted if (x) on the date of
the requested reduction any monetary default or material non-monetary default shall exist, (y) more
than twice in the preceding twenty-four (24) months Owner shall have validly given Tenant written
notice of default by Tenant in the payment of Fixed Annual Rent or of Additional Rent due under
Section 38 or (z) Owner shall have previously drawn any portion of the Letter of Credit in
accordance with the provisions of this Article 59 other than due to non-extension thereof by the
issuing bank. Upon any such reduction, Owner will accept a replacement Letter of Credit in the
reduced amount in exchange for the existing Letter of Credit, or, at the sole cost and expense of
Tenant, will consent to an amendment of the Letter of Credit reducing the amount thereof to the
proper reduced amount.
A. (i) Subject to the provisions of Sections 60E and 60I
hereof, Tenant shall have the right to extend the term of this Lease, with respect to (at Tenant’s
election) (x) the entire Demised Premises or (y) a portion of the Demised Premises consisting of
one or more contiguous whole floors, for one (1) additional term of five (5) years (the “Extension
Term”), commencing on the day immediately following the Expiration Date (the “Extension Term
Commencement Date”) and ending on the day preceding the fifth (5th) anniversary of such Extension
Term Commencement Date, provided that:
(a) Tenant shall give Owner written notice
(hereinafter called the “Extension Notice”) of its election to extend the term of this
Lease for an Extension Term at least twelve (12) months (but no more than twenty-four (24)
months) prior to the then-applicable Expiration Date;
(b) The Extension Notice states Tenant’s
irrevocable election of clause (x) or clause (y) above (but in no event any partial floors)
and whether Tenant elects to include the Basement Space;
(c) Tenant is not in default under this Lease
beyond the expiration of applicable notice and cure periods as of the time of the giving of
the Extension Notice; and
(d) As of the Extension Term Commencement
Date, the Tenant named herein or a related corporation or successor corporation thereof
shall be the “Tenant” under this Lease and no portion of the Demised Premises for which the
extension is elected shall be sublet (except to a related corporation or successor
corporation of the Tenant named herein).
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(ii) The Fixed Annual Rent payable by Tenant to
Owner during the Extension Term (the “Extension Term Fixed Rent”) shall be equal to ninety-five
percent (95%) of the fair market rent for the applicable portion of the Demised Premises,
determined as of the date occurring six (6) months prior to the Extension Term Commencement Date.
The Extension Term Fixed Rent shall be determined initially by Owner in a notice to Tenant (herein
called “Owner’s Rent Notice”), which notice shall contain Owner’s determination of the Extension
Term Fixed Rent, and which notice shall be delivered to Tenant not later than sixty (60) days after
Tenant’s giving of the Extension Notice.
(iii) In determining the Extension Term Fixed Rent (as
well as for purposes of computing the amounts payable by Tenant under Article 38 during the
Extension Term), Owner, Tenant and any arbitrator shall assume or take into consideration as
appropriate all of the following: (A) Owner and Tenant are typically and similarly motivated; (B)
Owner and Tenant are well informed and well advised and each is acting in what it considers its own
best interest; (C) no time will be necessary for exposure of the applicable portion of the Demised
Premises on the open market or for possible vacancy before the same is relet; (D) the rent is
unaffected by special financing amounts and/or terms, or unusual services, fees, costs or credits
in connection with the leasing transaction; (E) the applicable portion of the Demised Premises is
fit for immediate occupancy and use “as is” and require no additional work or contribution by
Owner; (F) in the event the Demised Premises have been destroyed or damaged by fire or other
casualty, they have been fully restored to the extent required under this Lease; (G) that the
applicable portion of the Demised Premises is to be let with vacant possession and subject to the
provisions of this Lease (including without limitation, that the Base Real Estate Taxes and Base
Wage Rate are the same as that set forth in Article 38 of the Lease), except that Tenant’s
Percentage shall be appropriately adjusted to reflect the portion of the Demised Premises to be
demised during the Extension Term; (H) market rents then being charged for comparable space in
other similar office buildings in the same area; (I) that there will be no work allowance or other
work concession, all as more particularly provided in Section 60D; and (J) all other relevant
factors.
B. (i) If Tenant fails to dispute the amount of the
Extension Term Fixed Rent specified in Owner’s Rent Notice within forty-five (45) days after the
giving of such notice, time being deemed of the essence, then Owner’s determination of Extension
Term Fixed Rent set forth in Owner’s Rent Notice shall be conclusive. If Tenant shall duly and
properly dispute the amount of the fair market rent specified in Owner’s Rent Notice by notice
delivered to Owner (the “Notice of Dispute”) not later than forty-five (45) days after the giving
to Tenant of Owner’s Rent Notice, then Owner and Tenant shall endeavor in good faith to agree as to
the amount of the Extension Term Fixed Rent during the thirty (30) day period following the giving
of Tenant’s Notice of Dispute. In the event that Owner and Tenant cannot agree as to such amount
within such thirty (30) day period, then Owner or Tenant may initiate the arbitration process
provided for herein by giving notice to that effect to the other (such initiating party hereinafter
called the “Initiating Party”) and specifying in such notice the name and address of the arbitrator
designated by the Initiating Party to act on its behalf. Within
51
twenty (20) days after the designation of the arbitrator by the Initiating Party, the other
party hereto shall give notice to the Initiating Party specifying the name and address of the
arbitrator designated to act on its behalf. If the other party fails to notify the Initiating Party
of the appointment of its arbitrator within such twenty (20) day period, the appointment of the
second arbitrator shall be made in the same manner as hereinafter provided for the appointment of a
third arbitrator in the case where the two arbitrators appointed hereunder are unable to agree upon
such appointment. The two arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and if, within thirty (30) days after the second arbitrator is appointed,
the two arbitrators shall not agree upon a determination in accordance with Section 60B(iii) they
shall together appoint a third arbitrator (which third arbitrator shall not have been employed by
either party or their affiliates during the period of two (2) years prior to the date of the
arbitration proceeding). If said two arbitrators cannot agree upon the appointment of a third
arbitrator within ten (10) days after the expiration of such thirty (30) day period, the third
arbitrator shall be selected by the parties themselves if they can agree thereon within a further
period often (10) 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
successor organization) in accordance with its then prevailing rules. If the American Arbitration
Association shall fail to appoint said third arbitrator within fifteen (15) 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 the foregoing court) for the appointment of such third arbitrator. Upon the
appointment of the third arbitrator, the arbitrators shall give written notice thereof to Owner and
Tenant.
(ii) Each of the arbitrators selected as herein provided
shall have at least ten (10) years experience in the leasing and renting of first class office
buildings in the Borough of Manhattan. Each party shall pay the fees and expenses of the arbitrator
appointed by or for such party. 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 equally by the
parties hereto.
(iii) Within five (5) days after receiving notice of the
appointment of the third arbitrator, each of Owner and Tenant shall submit to the arbitrators its
written proposal of the Extension Term Fixed Rent (it being agreed that Owner’s submission may be
more than, equal to or less than the amount set forth in Owner’s Rent Notice). Each arbitrator
shall render its decision as to the Extension Term Fixed Rent (which may be only the proposal
submitted by Owner or the proposal submitted by Tenant, and not any other amount) within twenty
(20) days after the appointment of the third arbitrator and shall furnish a copy thereof to both
Owner and Tenant. The decision of the majority of the arbitrators shall be conclusively determined
to be the Extension Term Fixed Rent. In rendering such decision and award, the arbitrators shall
not modify the provisions of this Lease (including, without limitation, the provisions of Section
60A(iii)). The decision and award of the arbitrators shall be in writing and be final and
conclusive on all parties and counterpart copies thereof shall be
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delivered to each of said parties. Judgment in any court of competent jurisdiction may be had on
the decision and award of the arbitrators so rendered.
C. In the event Owner or Tenant initiates the arbitration process pursuant to Section 60B
hereof and as of the applicable Extension Term Commencement Date the amount of the Extension Term
Fixed Rent has not been determined, Tenant shall pay the amount of the Extension Term Fixed Rent
originally set forth in Owner’s Rent Notice to Tenant, and promptly after such determination has
been made, an appropriate retroactive adjustment, if necessary, shall be made as of the Extension
Term Commencement Date.
D. Except as provided in Section 60A hereof, Tenant’s
occupancy of the applicable portion of the Demised Premises during the Extension Term shall be on
the same terms and conditions as were in effect as of the day prior to the Extension Term
Commencement Date, provided, however, that (a) Tenant shall have no right to extend the term of
this Lease beyond the day preceding the twenty (20) year anniversary of the Commencement Date, (b)
Tenant shall not be entitled to any free rent or concessions with respect to any Extension Term
(but such fact shall be considered in connection with the fair market rent determination) and (c)
Owner shall not be required to perform any work or furnish any materials to prepare the Demised
Premises for Tenant’s occupancy during any Extension Term (but such fact shall be considered in
connection with the determination of Extension Term Fixed Rent).
E. If Tenant does not send an Extension Notice when and as required pursuant to the provisions
of Section 60A hereof, this Article 60 shall have no further force or effect and shall be deemed
deleted from this Lease. Time is of the essence as to the date for the giving of the Extension
Notice. The termination of this Lease shall also terminate and render void any option or right on
Tenant’s part to extend the term of this Lease, whether or not such option or right shall have
theretofore been exercised.
F. If Tenant exercises its right to extend the term of this Lease for the Extension Term
pursuant to this Article 60, then from and after the commencement of the Extension Term the term
“Expiration Date” shall be deemed to be extended to the last day of the Extension Term, the term
“the Term” and the phrases “the term of this Lease” or “the term hereof” as used in this Lease,
shall be construed to include the Extension Term, the term “Demised Premises” shall be construed to
include only the portion of the Demised Premises elected by Tenant in the Extension Notice and, if
less than that originally demised hereunder, the term “Tenant’s Percentage” shall be appropriately
adjusted.
G. If this Lease is renewed for the Extension Term, then, at the request of either party, each
of Owner and Tenant agrees within ten (10) days after such request is made, to execute, acknowledge
and deliver to the other an instrument in form and substance reasonably satisfactory thereto,
confirming (i) the Extension Term Fixed Rent payable under this Lease pursuant to this Article 60,
unless the Extension Term Fixed Rent is then being determined in accordance with the provisions of
this Article 60,
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in which case each of Owner and Tenant agrees to execute, acknowledge and deliver a separate
instrument confirming the Extension Term Fixed Rent as finally determined, (ii) the expiration date
of the Extension Term, (iii) the portion of the Demised Premises demised during the Extension Term
and the applicable new Tenant’s Percentage and (iv) the other modifications, if any, provided for
in this Article 60, but no such instrument shall be required in order to make the provisions hereof
effective.
H. Tenant covenants and agrees that upon exercising the
Extension Term it will identify the Brokers, and only the Brokers, as its brokers for the Extension
Term. The Brokers are intended to be third party beneficiaries of this Section 60H.
I. Notwithstanding any provision of this Article 60 to the
contrary, if at any time prior to the delivery by Tenant to Owner of the Extension Notice Owner
shall in good faith notify Tenant in writing that Owner intends to demolish the Building between
the fifteen (15) and twenty (20) year anniversaries of the Commencement Date, then from and after
receipt of such notice Tenant shall have no rights to extend the Term pursuant to this Article 60.
A. Owner agrees that, provided that Tenant is not then in monetary default or material
non-monetary default under this Lease beyond the expiration of applicable notice and cure periods,
prior to making an offer to any Person other than Tenant for the leasing for commercial occupancy
of (i) any whole or partial floor of the Building contiguous to the then-existing Demised Premises
at any time during the Term or (ii) the entire rentable space of one (1) whole floor of the
Building not contiguous to the then-existing Demised Premises at any time between March 1, 2008 and
June 30, 2017, Owner will first offer to Tenant the right to lease such space (the “Additional
Space”) as set forth in this Article 61 (such offer, the “First Offer”). Notwithstanding the
generality of the foregoing, Owner and Tenant hereby expressly acknowledge and agree that the right
being granted to Tenant in this Article 61 shall not apply to any offer by Owner (x) to renew or
extend the lease of, or enter into a new or replacement lease with, any tenant (on the date hereof
or at any time in the future) of all or any portion of the Additional Space (whether or not such
renewal or extension is provided for in the then-existing lease of such tenant), (y) to any tenant
in the Building which on the date of this Lease has a right of first offer or right of first
refusal with respect to, or has an option to lease any portion of, such Additional Space or (z) to
lease any whole floor of the Buildings not contiguous to the then-existing Demised Premises after
the first First Offer is made by Owner under clause 61 A(ii) above. The Fixed Annual Rent payable
by Tenant to Owner with respect to the Additional Space (the “Additional Space Fixed Rent”) shall
be equal to the fair market rent therefor determined as of the date occurring six (6) months prior
to the Additional Space Commencement Date (as hereinafter defined), and shall otherwise be
determined in the same manner as that set forth in Article 60 for determining the Extension Term
Fixed Rent (including, without limitation, the arbitration process specified therein and Tenant’s
obligation to pay
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an amount equal to Owner’s determination of the Additional Space Fixed Rent until a final
determination thereof (subject to an appropriate retroactive adjustment, if necessary)).
B. The First Offer shall be made, if and when applicable, by
Owner notifying Tenant of the availability of the Additional Space prior to entering into binding
negotiations with a third party in connection with the leasing thereof, which notice (the “Offer
Notice”) shall state the rentable square footage of the Additional Space to be demised, the
estimated date upon which such Additional Space will be ready for occupancy (the “Additional Space
Commencement Date”) and Owner’s determination of Additional Space Fixed Rent. Notwithstanding
anything herein to the contrary, the Additional Space Commencement Date for any Additional Space to
be demised pursuant to clause (ii) of Section 61A shall in no event be less than one hundred (180)
days after the date of the Offer Notice with respect thereto. Within ten (10) Business Days after
the giving to Tenant of the Offer Notice, Tenant shall either (i) accept the First Offer by written
notice to such effect given to Owner within such ten (10) Business Day period (“Tenant’s Acceptance
Notice”), or (ii) waive any right to lease such Additional Space (subject to Section 61E), and
Tenant’s failure duly to respond in writing within such ten (10) Business Day period shall be
deemed a waiver of any rights to lease the Additional Space. Any exercise by Tenant of its option
to lease the Additional Space shall be subject to the further limitation that Tenant shall have no
right to exercise its option to lease less than the entirety of the Additional Space offered. Time
shall be of the essence with respect to the delivery of Tenant’s Acceptance Notice to Owner’s First
Offer within the ten (10) Business Day period above provided.
C. If Tenant shall duly deliver Tenant’s Acceptance Notice as aforesaid, Tenant shall
accept
the Additional Space to be demised on the Additional Space Commencement Date, upon all of the terms
and conditions of this Lease, except as the same have been modified pursuant to this Article 61
with respect to the Additional Space. As soon as is practicable following the Additional Space
Commencement Date, Owner and Tenant each agree to execute and deliver to the other an amendment to
this Lease specifying the changes to this Lease required by Tenant’s exercise of the First Offer
but the obligation of Tenant to make payment to Owner for and on account of the Additional Space
and to comply with all of the obligations of Tenant hereunder with respect thereto shall be and
remain in effect notwithstanding any delay or failure to execute and deliver such agreement.
D. If Owner is unable to give possession of the Additional Space to be demised pursuant to the
Offer Notice on the Additional Space Commencement Date because of the holding over or retention of
possession of any tenant, undertenant or occupant or for any other reason, Owner shall have no
liability therefor and the validity of this Lease and the demise of the Additional Space shall not
be impaired under such circumstances, nor shall the same be construed in any way to extend the term
of this Lease or the term of Tenant’s occupancy of the Additional Space, but (i) the rent payable
for such Additional Space shall be fully abated (provided Tenant is not responsible for the
inability to obtain possession) until the date on which such Additional
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Space is available for Tenant’s occupancy and (ii) if Owner has not delivered possession of such
Additional Space to Tenant on or before the date that is one hundred eighty (180) days after the
Additional Space Commencement Date, then Tenant shall have the option to cancel Tenant’s acceptance
of the First Offer upon thirty (30) days prior written notice to Owner given at any time prior to
such delivery unless Owner shall have delivered possession to Tenant on or before the expiration of
such thirty (30) day period. The provisions of this Article are intended to constitute “an express
provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.
E. If Tenant waives or is deemed to have waived (through failure to respond within the
required time period) Tenant’s rights with respect to the Additional Space as set forth in this
Article 61 or, in the event Tenant shall have exercised its right and Tenant shall not have
executed an amendment to this Lease as aforesaid within thirty (30) days after the date of Tenant’s
delivery of Tenant’s Acceptance Notice, then and in either such event, Owner shall be free to lease
the Additional Space to others on generally comparable terms (except that the base rental rate may
be as much as seven percent (7%) lower than that contained in the Offer Notice, taking into account
any free rent, any landlord’s contributions and the base years for real estate taxes and operating
expense escalations), in whole or in part or in conjunction with other space and Owner shall have
no further obligations to Tenant under this Article 61. If Tenant so waives or is deemed to have
waived any rights to lease the Additional Space, Tenant, upon Owner’s request, shall confirm such
fact in writing to Owner as soon as practicable. Notwithstanding that Tenant has terminated, waived
or is deemed to have waived any rights to lease Additional Space, the applicable provisions of
Section 61A shall again apply to any subsequent offers by Owner to lease the same Additional Space
for commercial occupancy (i) after the expiration or termination of any lease for such Additional
Space entered into with another party pursuant to this Section 61E, (ii) after the date that is two
hundred seventy (270) days after the date of such termination, waiver or deemed waiver or (iii)
with a base rental rate more than seven percent (7%) lower than that contained in the Offer Notice.
F. If Tenant exercises the option to lease Additional Space, then (upon Tenant’s
reasonable
request therefor) Owner shall use commercially reasonable efforts to reconfigure (or, at Owner’s
option, to permit Tenant to reconfigure) the building systems to the extent reasonably possible to
enable the building systems that serve the Additional Space to integrate with the building systems
that serve the other portions of Demised Premises; provided, however, that Owner shall not have any
obligation to use such reasonable efforts to reconfigure (or permit Tenant to reconfigure) building
systems to the extent that such reconfiguration has a material and adverse effect on such building
systems. Any work under this Section 61F shall comply with all applicable provisions of this Lease.
Tenant shall reimburse Owner for any actual third party out-of-pocket costs that Owner incurs under
this Section 61F, within thirty (30) days after Owner’s request therefor (together with reasonable
supporting documentation for such costs).
56
A. Owner shall continue to make available to Tenant during the Term the riser, shaft and
conduit space currently used by Tenant with respect to the Office Space pursuant to the Existing
Lease.
B. (i) Owner hereby leases to Tenant, without charge, one hundred (100) square feet
of
space on the rooftop of the Building, as shown on Exhibit F attached hereto and hereby made a part
hereof (the “Roof Premises”). Owner hereby agrees to cooperate with any request of Tenant to
relocate the Roof Premises to another portion of the roof, at Tenant’s sole cost and expense, so
long as such replacement space is available and is of comparable size, does not interfere with any
other party’s use and occupancy of its premises or any other portion of the roof and does not
interfere with any Building system.
(ii) Tenant shall use the Roof Premises only for the
installation, operation and maintenance of telecommunications equipment, associated antennae, base
stations, dishes, switches, power supplies, batteries and accessories (the “Installation”). The
Installation or other property attached to or otherwise brought onto the Roof Premises shall at all
times remain Tenant’s personal property and are not considered fixtures. Tenant, at its sole cost
and expense, shall be responsible for obtaining electrical service for the Installation from the
utility company servicing the Building and shall pay for such electricity, on a submetered basis,
in accordance with the applicable provisions of this Lease. Tenant shall be responsible, at its own
cost and expense, to install and maintain any submeters necessary for the metering of the electric
consumption of the Installation. Owner, at Tenant’s sole cost and expense, shall make available to
Tenant the panel boards, feeders, conduits and risers in the Building as may be necessary in order
to bring electric energy to the Installation.
(iii) Any placement of the Installation on the Roof
Premises shall be deemed to be a Tenant’s Change and shall be subject to all applicable provisions
of this Lease. Tenant shall be responsible for obtaining and maintaining, at Tenant’s expense, any
local, state, and federal licenses, permits and any other approvals which may be required to allow
Tenant to use the Roof Premises and the Installations (and Owner shall cooperate therewith, so long
as Tenant reimburses Owner for Owner’s actual, reasonable third-party out-of-pocket costs in
connection therewith). Tenant shall employ due diligence to obtain and maintain said approvals
within a timely manner.
(iv) Landlord agrees to provide Tenant, Tenant’s
employees and authorized agents, at reasonable times and on reasonable notice (which may be oral),
access to the Roof Premises.
(v) The Installation may be removed by Tenant at any
time during the Term, and, in such event, Tenant shall be responsible, at its sole cost and
expense, to repair any damage to the Roof Premises resulting from Tenant’s removal of the
Installation. Furthermore, Tenant shall repair any damage to the Roof Premises
57
caused by Tenant or the Installation during the Term, ordinary wear and tear and damage from the
elements excepted, and said obligation shall survive the expiration or sooner termination of the
Lease.
(vi) In the event that Landlord elects, in its sole
discretion, to construct additional floors to the Building above the Roof Premises, Landlord shall
provide Tenant with comparable square footage on the new roof of the Building (the “New Roof
Premises”) promptly following the completion of any such addition and Tenant may, at its sole cost
and expense, move the Installation to the New Roof Premises. If Tenant shall fail to so move the
Installation, Tenant’s right to lease the New Roof Premises shall be deemed waived. Landlord shall
not be responsible or liable in any manner whatsoever, for any costs, damages, abatements and/or
set-offs (including, without limitation, due to lost profits) due to, or otherwise as a consequence
of, an interruption in the use and occupancy of the Roof Premises during such construction period
or the New Roof Premises not being adequate for Tenant’s uses.
(vii) Tenant agrees not to cause any unreasonable
interference to the telecommunication operation of Landlord or any other tenants or service
providers in the Building. Tenant shall operate the Installation in compliance with all applicable
Federal Communications Commission (FCC) regulations. If Tenant shall fail to comply with the
provisions of this Section 62B(vii) promptly after notice, Owner shall have the right to remove the
Installation, and Tenant shall promptly after demand reimburse Owner for the actual and reasonable
out-of-pocket third party costs incurred in connection therewith.
(viii) Notwithstanding any provision in this Lease to the
contrary, Tenant may not sublet or assign any portion of the Roof Premises (except in connection
with an assignment of this Lease in accordance with the terms hereof) without the prior written
consent of Owner, which consent may be withheld by Owner in its sole discretion.
A. Owner and Tenant are parties to that certain Agreement of Lease dated as of December
12, 1996 initially between F.S. Realty Corporation, as landlord, and GT Interactive Software Corp.,
as tenant, as amended by that certain First Amendment of Lease dated as of July 1, 1997, with
respect to the 7th, 8th and 9th floors of the Building (the “Existing Lease”). Notwithstanding any
provision of the Existing Lease to the contrary:
| (i) | the Existing Lease shall terminate with respect to the 7th and 8th floors of the Building as of June 30, 2006; |
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| (ii) | the Existing Lease shall terminate with respect to that portion of the 9th floor of the Building depicted on Exhibit G attached hereto (the “Midtown Equities Space”) as of June 30, 2006; | ||
| (iii) | the Existing Lease will terminate with respect to the portion of the 9th floor of the Building other than the Midtown Equities Space (the “9th Floor Remainder Space”) as of the date (the “9th Floor Termination Date”) that is the earlier of (x) June 30, 2007 and (y) a date designated by Tenant upon not less than ninety (90) days’ prior written notice to Owner; | ||
| (iv) | from and after July 1, 2006, fixed rent (inclusive of electricity charges) for the 9th Floor Remainder Space under the Existing Lease shall be (x) $4,062.50 per month for the period from and after July 1, 2006 through and including December 31, 2006 and (y) $46,562.50 per month for the period from and after January 1, 2007 through and including the 9th Floor Termination Date (ratably determined for any partial month); | ||
| (v) | no Electrical Charge shall be due under the Existing Lease for the 9th Floor Remainder Space for the period from and after July 1, 2006; | ||
| (vi) | no additional rent shall be payable under Article 4 of the Existing Lease for the 9th Floor Remainder Space for the period from and after July 1, 2006 through and including December 31, 2006; | ||
| (vii) | so long as Midtown Equities Sublease (as hereinafter defined) is still in effect, the subtenant thereunder is not in default in performance or observance of any terms, covenants, provisions or conditions thereunder on its part to be performed or observed beyond the expiration of any applicable notice and/or cure period, Tenant assigns all of Tenant’s right, title and interest in and to the Midtown Equities Sublease (from and after July 1, 2006) to Owner by assignment document in form and substance reasonably acceptable to Owner, and such subtenant attorns to and recognizes Owner as the sublandlord thereunder, from and after July 1, 2006 Owner will recognize such subtenant under all of the then-executory terms of such sublease and will not disturb such subtenant in its possession of the Midtown Equities Space, except that Owner shall not (i) be liable for any previous act, omission or negligence of Tenant under such sublease, (ii) be subject to any counterclaim, defense or offset which theretofore accrued to such subtenant against Tenant or (iii) be bound by any previous modification or amendment of such sublease or by any previous prepayment of more than one month’s rent and additional rent which shall be payable as provided in the sublease, unless such modification or prepayment shall have been approved in writing by Owner; and | ||
| (viii) | notwithstanding the termination of the Existing Lease with respect to the Midtown Equities Space and the assignment of Tenant’s interest in the |
59
| Midtown Equities Sublease, each as described above, for so long as the Existing Lease shall be in effect with respect to the 9th Floor Remainder Space, Tenant shall remain solely responsible for Section 27 of the Midtown Equities Sublease and Tenant shall continue to provide the subtenant with unrestricted access to the main elevator bank on the 9th floor of the Building. |
B. Tenant shall not be obligated to comply with the provisions of Article 28 of the
Existing
Lease with respect to the 9th Floor Remainder Space, but upon the 9th Floor Termination Date,
Tenant shall quit and surrender the 9th Floor Remainder Space in full compliance with all
applicable provisions of the Existing Lease (including, without limitation, Sections 28(a) and
28(b) thereof) as if the 9th Floor Termination Date were the expiration date initially set forth in
the Existing Lease.
C. Tenant hereby represents and warrants to Owner that
attached hereto as Exhibit H is a true, correct and complete copy of the sublease for the Midtown
Equities Space and any and all amendments thereto (the “Midtown Equities Sublease”).
D. Owner agrees to cooperate with Tenant, as reasonably
requested and at no unreimbursed cost to Owner, in segregating the service provided by the
drycoolers on the 9th floor roof of the Building between the Demised Premises and the Midtown
Equities Space and the 9th Floor Remainder Space, as applicable, and in continuing Tenant’s rights
to use, maintain and access such drycoolers as reasonably necessary to service the Demised Premises
(subject to the applicable provisions of this Lease).
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
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| OWNER: | FIFTH AND 38TH LLC, a Delaware limited liability company | |||||
| By: | /s/ Xxxxxxx Xxxxx | |||||
| Name: Xxxxxxx Xxxxx | ||||||
| Title: President | ||||||
| TENANT: | ATARI, INC. | |||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Chairman, CEO & Chief Creative Officer | ||||||
| Taxpayer Identification Number: 00-0000000 | ||||||