SUBLEASE
THIS SUBLEASE (this "Sublease") is made effective as of November 1, 1996
(the "Effective Date") by Minet, Inc., a corporation organized under the laws of
the State of New Jersey ("Sublandlord"), landlord"), and General Inc., a
corporation organized under the laws of the State of New York ("Subtenant"), and
Xxxxx Xxxxxx, who is the President of Subtenant.
WHEREAS, Two Twenty East Limited Partnership, as landlord ( such landlord
including its successors m interest is referred to herein collectively as the
"Landlord"), and Sublandlord, as tenant, catered into a Lease dated January 27,
1989, as amended by an Agreement Modifying Lease I dated November 26, 1990, an
Agreement Modifying Lease II dated June 18, 1991, a letter agreement for short
term space dated May 22, 1992 and a letter agreement for short term space dated
November 3, 1992, (such lease, as amended is referred to herein as the "Master
Lease", a true and correct copy of which is attached hereto as Exhibit A);
WHEREAS, the Master Lease relates to premises located at The News Building,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX (the "Building");
WHEREAS during the term of this Sublease, Sublandlord and Subtenant desire
that Sublandlord sublease to Subtenant all right, title and interest of the
Sublandlord in and to the premises referred to m the Master Lease as the
"Additional Space" located on the twenty fourth floor of the Building, as shown
on the floor plan attached to the Agreement Modifying Lease i dated November 26,
1990 (the "Sublet Premises"), a true and correct copy of which is attached
hereto as Exhibit A-l, on the terms and conditions described in this Sublease;
and
WHEREAS, during the term of this Sublease, Sublandlord and Subtenant desire
that Sublandlord sublicense to Subtenant all right, title and interest of the
Sublandlord under the Master Lease in and to the "License" held by the
Sublandlord in and to the "Electrical Equipment" and the "Licensed Areas", as
such terms are defined in the Agreement Modifying Lease II dated June 18, 8,
1991, (collectively the "Sublandlord's License Rights") on the terms and
conditions described in this Sublease;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto agree as follows:
1. The Sublet.
(a) Sublandlord hereby subleases the Sublet Premises to Subtenant, and
sublicenses the Sublandlord's License Rights to Subtenant, and Subtenant
hereby subleases the Sublet Premises from Sublandlord, and sublicenses the
Sublandlord's License Rights from Sublandlord, for a term commencing on the
Effective Date and ending upon September 29, 2000, unless such term is
terminated earlier in accordance with the teens hereof. In the event the
Master Lease is terminated pursuant to its terms, then in such event, this
Sublease shall automatically cease and terminate as of the date upon which
the Master Lease is so terminated. The date that the term of this Sublease
actually terminates is referred to herein as the "Termination Date".
(b) During the term of this Sublease, Subtenant at its sole expense
agrees to perform all of the responsibility and obligations of the
Sublandlord under the Master Lease with respect to the Sublet Premises and
the Sublandlord's License Rights other than the obligations of the
Sublandlord under paragraphs 19, 38, 39, 42, 46(B), 52 and 57 of the Master
Lease Without limiting the foregoing, Subtenant agrees to obtain an
insurance policy or policies meeting the requirements of paragraph 57 of
the Master Lease which shall include the Sublandlord, Landlord and such
parties as Landlord may designate as additional insureds, with such limits
as may reasonably be requested by the Landlord, from time to time, but not
less than Three Million Dollars ($3,000,000) in respect to bodily injury or
death arising out of any one occurrence. Subtenant shall deliver to
Sublandlord a certificate of insurance evidencing the existence of such
insurance on the Effective Date which meets the requirements of paragraph
57 of the Master Lease.
(c) Subtenant agrees not to do, permit or suffer any act, or omit to
take any action, or permit any condition or thing to occur or exist which
would (i) violate or constitute a breach of or a default under the Master
Lease; (ii) result in the termination of the Master Lease or (ii) cause any
increase during the term of this Sublease in the Fixed Rent or the
Additional Rent payable by the Sublandlord to the Landlord with respect to
the Sublet Premises or the License including limitation any increase in the
Fixed Rent or the Additional Rent payable by the Sublandlord to the
Landlord with respect to the electric utility service provided by the
Landlord for use in connection with the Sublet or Sublandlord's License
Rights.
(d) Except as may be inconsistent with the terms of this Sublease, all
the terms and conditions of the Master Lease arc incorporated into this
Sublease as through Subtenant were the Sublandlord under the Master Lease
and Sublandlord were the Landlord under the Master Lease. Sublandlord will
not be obligated to provide any services to Subtenant. Subtenant agrees to
rely exclusively upon the Landlord for all services and the performance of
all obligations which Landlord is required to provide or perform under the
Master Lease In and for the benefit of the Sublet Premises and the
Sublandlord's License Rights. Sublandlord makes no representation or
warranty about the availability or adequacy of services required to be
provided by the Landlord Subtenant agrees that Sublandlord shall not have
any liability to the Subtenant of any kind whatsoever as a result of any
act, failure to act or breach of any of the terms of the Master Lease
committed by the Landlord with respect to the Sublet Premises or the
Sublandlord's License Rights. During the term of this Sublease, Sublandlord
agrees to use reasonable efforts to cooperate with Subtenant in requesting
from the Landlord the services required to be provided by the Landlord in
connection with the Sublet Premises and the Sublandlord Sublandlord's
License Rights under the Master Lease. Subtenant agrees to promptly
reimburse Sublandlord for any and all legal fees, disbursements and other
costs which may be incurred by c Sublandlord in connection with any
proceedings to enforce, or seer: damages based upon, the provisions of the
Master Lease with respect to the Sublet
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Premises or the Sublandlord's License Rights If as a consequence of a
failure by the Landlord to provide the services required to be provided by
the Landlord in connection with the Sublet Premises or the Sublandlord
License Rights under the Master Lease, the Landlord pays any award of
damages to the Sublandlord, or in Landlord agrees to refund or reduce any
sum, or portion thereof, paid or payable by the Sublandlord to the Landlord
under the Master Lease, Sublandlord agrees to share such damages, refund or
reduction with the Subtenant on an equitable basis mutually agreeable to
the Sublandlord and the Subtenant"
(e) This Sublease subject to the Master Lease. Subtenant has inspected
the Sublet Premises and the Sublandlord's License Rights and is fully
familiar and well acquainted with the layout and physical condition thereof
and hereby agrees to take the same broom clean in its present condition "AS
IS"; provided that Sublandlord agrees to remove the existing wall paper
from the bathrooms on the twenty fourth floor ant freshly paint those
bathrooms.
(f) Sublandlord agrees to transfer ownership to Subtenant of the
furniture owned by Sublandlord described on Exhibit B. which is physically
located at the Sublet Premises on the Effective Date (the "Sublandlord
Personal Property"). Subtenant agrees to take ownership and possession of
the Sublandlord Personal Property "AS IS". SUBLANDLORD HEREBY DISCLAIMS ANY
AND ALL WARRANTIES AS TO THE FITNESS, QUALITY AND/OR MERCHANTABILITY OF THE
SUBLANDLORD PERSONAL PROPERTY. Subtenant agrees to assume any and all
liabilities which may arise out of any use or disposal of the Sublandlord
Personal Property from and after the Effective Date.
(g) Subtenant agrees to use and occupy the Sublet Premises far
executive or administrative offices commensurate with the character and
dignity of the Building as a first class office building. Subject to the
written consent of the Landlord and the Sublandlord which shall be
requested in accordance with the procedures described in the Master Lease,
Subtenant agrees that Subtenant shall be permitted no more than one (1 )
further subletting of all or any part of the Sublet Premises. Subtenant
agrees that any part of the term of this Sublease, if any, which would
extend beyond a date one day prior to the expiration or earlier termination
of the term of the Master Lease shall be a nullify.
2. Base Rent. Subtenant will pay Sublandlord as base rent for the Sublet
Premises Nineteen Thousand and Eighty Seven Dollars and Eight Cents ($19,087.08)
per mouth during the period beginning upon the day which is sixty days after the
Effective Date and ending upon two year anniversary of the Effective Date.
Subtenant will pay Sublandlord as base rent for the Sublet Premises Twenty One
Thousand and Ninety Six Dollars and Twenty Five Cents ($21,096.25) per month
during the period upon two year anniversary of the Effective Date and upon
September, 29, 2000.
3. Electricity. Subtenant will pay Sublandlord Three Thousand and Thirteen
Dollars and Seventy Five Cents ($3013.75) per month, or any portion of a month,
during the
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period beginning upon she Effective Date and ending upon September 29, 2000 as
compensation for electric service provided to the Sublet Premises by the
Landlord under Paragraph 46 of the Master Lease (the "Electricity Charge"). In
the event that pursuant to the Master Lease elect electric current is no longer
supplied to the Sublet Premises on a "rent inclusion" basis, Subtenant shall no
longer be required to pay the Electricity Charge to the Sublandlord effective
from the date of such change, and Subtenant shall be responsible for pa paying e
for its own electricity.
4. Cost Escalation Charges. Subtenant will pay Sublandlord a cost
escalation charge of Three Hundred and One Dollars and Thirty Eight Cents
($301.38) per month during the period beginning upon the one year anniversary of
the Effective Date "d ending upon two year anniversary of the Effective Date.
Subtenant will pay Sublandlord a cost escalation charge of Six Hundred and Two
Dollars and Seventy Five Cents ($602.75) per month during the period beginning
upon the two year anniversary of the Effective Date and ending upon three year
anniversary of the Effective Date. Subtenant will pay Sublandlord a cost
escalation charge of Nine Hundred and Four Dollars and Thirteen Cents ($904.13)
per month during the period beginning upon the three year anniversary of the
Effective Date and ending upon September 29, 2000.
5. Payments to Sublandlord. Subtenant agrees to pay all sums owing to the
Sublandlord in advance, without notice, demand, of offset, or counterclaim, on
the first day of each month at Sublandlord's address. If this Sublease requires
the payment of any sum to the Sublandlord with respect to any period which
begins on any day other than the first day of a month or ends on any day other
than the last day of a month, all such sums owing to the Sublandlord will be
prorated and paid to the Sublandlord on a per diem basis.
6. Representations and Warranties by Subtenant. Subtenant represents and
warrants to Sublandlord as follows:
(a) Subtenant duly organized, validly existing and in good standing
under the laws of the State of New York and has all powers, licenses and
authority necessary No Third Party Beneficiaries. order to enter into and
perform this Sublease.
(b) The execution and delivery of this Sublease and the performance of
the obligations contemplated hereby, have been duly authorized by all
necessary action on the part of Subtenant
(c) No authorization or approval or other action by, or notice to or
filing with, any third party, governmental authority or regulatory body is
required for the execution, delivery or performance of this Sublease by
Subtenant
(d) Except as provided in paragraph 1(b) of this Sublease, as of the
Effective Date, Subtenant shall have obtained, and will maintain in full
force and effect, such policy(ies) of insurance as arc required to be
obtained by Sublandlord with respect to the Sublet Premises under the
Master Lease naming Landlord and Sublandlord as additional on al insureds.
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7. Indemnification and Security Deposits. Subtenant agrees to indemnify
Sublandlord against any and all loss, liability or expense (including but not
limited to reasonable attorneys' fees and other costs of litigation and
preparation for litigation and any amounts payable to the Landlord by the
Sublandlord under paragraph 63 of the Master Lease) (collectively "Losses")
which the Sublandlord may incur as a result of any of the following:
(a) Subtenant' use, occupancy or control of the Sublet Premises and/or
the Sublandlord's License Rights and any part thereof,
(b) Any negligence on the part of the Subtenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(c) Any accident, injury, or damage to any person or property or to e
Sublet Premises or the "Electrical Equipment" or the "Licensed Areas", as
such terms are defined in the Agreement Modifying Lease II dated June 18,
1991, occurring In or about the Sublet Premises "d/or in connection with
Sublandlord's License Rights;
(d) Any breach or inaccuracy of any covenant, representation or
warranty made by Subtenant in this Sublease; and
(e) Any failure on the part of Subtenant to vacate the Sublet Premises
and/or the Sublandlord's License Rights and any part thereof upon the
expiration of the term hereof in accordance No Third Party Beneficiaries.
the terms of this Sublease.
Without limiting the foregoing, on the dates indicated below, Subtenant
agrees to pay to the Sublandlord the sums listed below by wire transfer of
immediately available funds as security against any Losses which the Sublandlord
may incur as a result of any of the matters described m clauses (a) through (e)
above.
(1) On the Effective Date, Subtenant agrees to pay to the Sublandlord
the sum of Fifty Seven Thousand Two Hundred and Sixty One Dollars ant
Twenty Four Cents ($57,261.24) as security against any Losses which the
Sublandlord may incur as a result of any of the matters described in
clauses (a) through (e) above;
(2) On the one year anniversary of the Effective Date, Subtenant
agrees to pay the Sublandlord the sum of Nineteen Thousand and Eighty Seven
Dollars and Eight Cents ($19,087.08) as additional security against any
Losses which the Sublandlord may incur as a result of any of the matters
described in clauses (a) through (e) above; and
(3) On the two year anniversary of the Effective Date, Subtenant
agrees to pay to the Sublandlord the sum of Twenty One Thousand and Ninety
Six Dollars ant Twenty Five Cents ($21,096.25) as additional security
against any Losses which the Sublandlord may incur as a result of any of
the matters described m clauses (a) through (c) above.
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The payments described al above are individually referred to herein as a
"Security Deposit" and such payment are collectively referred to herein as the
"Security Deposits." Sublandlord agrees to deposit the Security Deposits in a
separate interest bearing bank account and to draw funds from such account only
m accordance with the following. Subtenant agrees that Sublandlord may charge
against and retain the Security Deposits together with any interest earned
thereon, or a portion thereof, [v the extent required to reimburse Landlord for
an), "d all Losses which the Sublandlord may incur as a result of the matters
described in clauses (a) through (c) above. Sublandlord agrees to return the
remaining balance of the Security together with any interest earned thereon, to
the Subtenant after the deduction of any charges permitted by this paragraph, if
any, within thirty (30) days after the later of the l Termination Date or the
date that Tenant vacates and surrenders the Sublet Premises and the
Sublandlord's License Rights in accordance with the terms of this Sublease.
At any time after the Effective Date, Tenant may deliver to the Sublandlord
an irrevocable letter of credit (the "Letter of Credit") from a commercial bank
with a branch No Third Party Beneficiaries. the Borough of Manhattan in the City
of New York drawn to the Sublandlord in the amount of Ninety Seven Thousand Four
Hundred and Forty Four Dollars and Fifty Seven Cents ($97,444.57) (the "Letter
of Credit Amount") and Subtenant may request that Sublandlord return the
Security Deposits, together with any interest earned thereon and minus any
charges permitted by this Sublease, to the Subtenant in exchange for the
delivery of the Letter of Credit to the Sublandlord Subtenant agrees that the
Sublandlord shall not be required to accept the delivery of the Letter of Credit
or to return the Security Deposits to the Subtenant unless the Letter of Credit
is in all respects in form and substance satisfactory to the Sublandlord in its
sole discretion. Without limiting, the foregoing, the Sublandlord shall not be
required to accept the Letter of Credit or to return the Security Deposits
unless (i) the bank issuing the Letter of Credit shall have a rating of at least
"A" or better from Xxxxx'x or Standard & Poor's; (ii) the Letter of Credit
states that the bank issuing the Letter of Credit agrees to make al I payments
under the letter of credit with the bank's own fund and not with the funds of
the Subtenant (iii) the Letter of Credit states that it shall not expire before
the later of October 29, 2000 or the date that Tenant vacates and surrenders the
Sublet Premises and the Sublandlord's License Rights in accordance with the
terms of this Sublease; and (iv) the Letter of Credit states that the
Sublandlord may draw funds under the Letter of Credit, from time to time until
the later of October 29, 2000 or the date that Tenant vacates and surrenders the
Sublet Premises and the Sublandlord's License Rights in accordance with the
terms of this Sublease, to the extent required to reimburse Landlord for any and
all Losses which the Sublandlord may incur as a result of the matter described
in clauses (a) through (c) of paragraph 7 of this Sublease up to the Letter of
Credit Amount
8. Brokers. Sublandlord and Subtenant represent to each other that, in e
negotiation of this Sublease, they dealt with no brokers other than Xxxxxx X.
Xxxxxx Company, Inc. and Xxxxx Xxxx Xxxxxx USA. Sublandlord agrees to pay to
Xxxxxx X. Xxxxxx Company, Inc. and Xxxxx Xxxx Xxxxxx USA, respectively, all
commissions owning by Sublandlord to such parties. Sublandlord agrees to
indemnity and hold harmless Subtenant from and against any and all Losses which
the Subtenant may incur as a result of any breach of the representation made by
Sublandlord in this paragraph 8. Subtenant agrees to indemnify and hold harmless
Sublandlord from and against any and all Losses which the Sublandlord may incur
as a result of any breach of the representation made by Subtenant in this
paragraph .
6
9. Entire Agreement. This Sublease contains the entire understanding of the
parties and supersedes and terminates all prior agreements and understanding
relating to the subject mallet hereof. This Sublease may not be charged or
terminated orally or in any manner other than by an agreement in writing
executed by the party against whom enforcement of the change or termination is
sought
10. WAIVER OF JURY TRIAL. EACH OF SUBLANDLORD AND SUBTENANT HEREBY
IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED UPON, OR ARISING OUT OF, THIS SUBLEASE OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF ANY OF THEM RELATING
HERETO.
11. No Third Party Beneficiaries. Except as otherwise expressly provided
herein, nothing herein expressed or implied is intended or shall be construed to
confer "on or to entitle any person other than the Landlord, Subtenant and
Sublandlord, or their respective successors and assigns permitted hem by, to any
claim, cause of action, remedy or right of any kind or to give any person, firm
or corporation any rights or remedies under or by reason of this Sublease.
12. Construction. The language used in this Sublease will be deemed to be
the language chosen by the parties to express their mutual intent, and no rule
of strict construction will be applied against any party.
13. Headings. The heading contained in this Sublease are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Sublease.
14. Assignability. No party hereto assign this Sublease or any part hereof
without the prior written consent of the other party. Except as otherwise
provided herein, this Sublease shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assign
15. Severability. Any term or provision of this Sublease which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to e extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Sublease in
any other jurisdiction. If any provision of this Sublease is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
16. Governing Law. This Sublease shall be governed by ant construed
accordance with the laws of the State of New York without regard to its rules of
conflicts of laws.
17. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, faxed, mailed by
registered or certified mail (return receipt requested) or deposited for
delivery with a reputable delivery service (such as Federal Express) to the
respective party at the address set forth below for each party (or to such other
individuals or addresses as a party may designate by notice given as provided
herein):
7
If to Sublandlord:
Minet, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
With a copy which shall not constitute notice to:
Xxxxx Xxxxx, Esq.
General Counsel
Minet, Inc.
0000 00 Xxxxxx of the Americas
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If to Subtenant or Xxxxx Xxxxxx:
General Internet Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx and Xxxxxx Xxxxxx
Fax: x/x Xxxxxxxxx, Xxxxxx Xxxxx & Xxxx at 212-593-9175
With a copy which shall not constitute notice to:
Frankfurt, Xxxxxx Xxxxx & Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Fax: 000-000-0000
18. Counterparts. This Sublease may be executed in counterparts which
together will constitute the same instrument This Sublease may be executed by
manual signature transmitted electronically and any such signature will be
deemed to be a manual execution.
19. Conditions to Obligations of the Sublandlord. Subtenant agrees that the
obligations of the Sublandlord hereunder are subject to the full and d complete
satisfaction of each of the following conditions precedent.
(a) On or prior to the Effective Date Subtenant shall have performed all of
the covenants required to be performed by Subtenant on or prior to the Effective
Date by this Sublease and the representations and warranties of Subtenant
contained in this Sublease shall be true and correct on and as of the Effective
Date. Without limiting the foregoing, on or prior to the Effective Date
Subtenant shall have paid to Sublandlord the Security Deposit payable on the
Effective Date in accordance with paragraph 7 of this Sublease.
8
(b) On or prior to Effective Date, Sublandlord shall have received the
written consent of the Landlord, including any successor or successors in
interest of the Landlord, required to permit Sublandlord to sublease the Sublet
Premises to Subtenant and to sublicense the Sublandlord's License Rights to
Subtenant in accordance arc with the of Master Lease.
(c) No injunction or order of any court or administrative agency of
competent jurisdiction shall be in effect as of the Effective Date which
restrains, prohibits or challenges in any way the consummation of the
transactions contemplated hereby.
(d) All proceedings to be taken in connection with the consummation of the
transactions contemplated by this Sublease, and all documents incident thereto,
shall be satisfactory in form and substance to Sublandlord and its counsel.
In the event that any of the conditions stated above in this paragraph 19
are act fully and completely satisfied on or prior to the Effective Date,
Subtenant agrees that Sublandlord may immediately cancel this Sublease by
written notice to the Subtenant In the event that Sublandlord cancels this
Sublease in accordance with this paragraph 19, Sublandlord and Subtenant shall
be released from each "d every obligation and liability of any kind whatsoever
to the other party with respect to this Sublease and/or any costs or expenses
incurred by the other party in connection therewith and this Sublease shall be
null and void and of no further force and effect of any kind whatsoever,
provided that Sublandlord shall return the Security Deposit payable on the
Effective Date to the Subtenant, but only if, and to the extent, that such
Security Deposit was received by the Sublandlord.
20. Conditions of the Subtenant. Sublandlord agrees that the obligations of
the Subtenant hereunder are subject to the full and complete satisfaction of
each of the following conditions precedent:
(a) On or prior to the Effective Date, Sublandlord shall have received the
written consent of the Landlord, including any successor or successors in
interest of the Landlord, required to permit Sublandlord to sublease the Sublet
Premises to Subtenant and to sublicense the Sublandlord's License Rights to
Subtenant accordance with the tams of the Master Lease.
(b) No injunction or order of any court any administrative agency of
competent jurisdiction shall be in effect as of the Effective Date which
restrains, prohibits or challenges in any way the consummation of the
transactions contemplated hereby.
In the event that any of the conditions stated above in this paragraph 20
are not fully and completely satisfied on or prior to the Effective Date,
Subtenant may immediately cancel this Sublease by written notice to Sublandlord.
In the event that Subtenant cancels this Sublease in accordance with this
paragraph 20, Sublandlord and Subtenant shall be released from each and every
obligation and liability of any kind whatsoever to the other party with respect
to this Sublease and/or any costs or expenses incurred by the other party in
connection therewith and this Sublease shall be null and void ant of no further
force and effect of any kind whatsoever; provided the Sublandlord shall return
the Security Deposit payable on the Effective Date to the
9
Subtenant, but only if, and to the extend, that such Security Deposit was
received by the Sublandlord.
21. "Good Guy" Provision: Xxxxx Xxxxxx, who is the President of the
Subtenant, agrees to indemnify and hold harmless Sublandlord against any and all
loss, liability or expense (including but not limited to reasonable attorneys'
fees and other costs of litigation and preparation for litigation and any
amounts payable to the Landlord by the Sublandlord under paragraph 63 of the
Master Lease) which the Sublandlord may incur as a result of any failure on the
part of Subtenant to vacate the Sublet Premises and/or the Sublandlord's License
Rights during any period following the earlier of (a) the "c which is sixty (60)
days after the Termination Date or (b) the date which is sixty (60) days after
the "e upon which Sublandlord gives Subtenant and Xxxxx Xxxxxx a written demand
that Subtenant vacate the Sublet Premises and surrender Subtenant's interest in
end to the Sublandlord's License Rights based upon a default by the Subtenant in
Subtenant's obligation to pay to Sublandlord the amounts payable under
paragraphs 2, 3 or 4 of this Sublease which default remains uncured for a period
of not less than sixty (60) says.
IN WITNESS WHEREOF, Sublandlord, Subtenant and Xxxxx Xxxxxx have executed
this Sublease on the date first written above.
SUBLANDLORD SUBTENANT
Minet, Inc. General Internet Inc.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ --------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President & Assistant Title: CFO
Date: October 29, 1996 Date: October 25, 1996
/s/ Xxxxx Xxxxxx 10/25/96
------------------------------------
Xxxxx Xxxxxx
10
Xxxxx Xxxxxx, Esq.
October 21, 1996
Page 1
October 21, 1996
Xxxxx Xxxxxx, Esq.
General Counsel
c/o Minet, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Consent to sublease a portion of the 24th floor, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx between Minet, Inc. as Sublessor and General
Internet Inc. as Sublessee.
Dear Xx. Xxxxxx:
220 News LLC having an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Landlord"), consents to the Sublease ("Sublease") dated as of November 1,
1996, between Minet, Inc. having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Tenant") and General Internet Inc. having an office at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Sublessee"), a true copy of which has
been submitted to the Landlord, covering space ("Space") described in the
Sublease, being a portion of the 24th floor of the building known as 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, which is currently leased by Tenant by the
lease dated January 27, 1989 as previously or hereafter amended ("Lease"), such
consent being subject to and upon the following terms and conditions:
1. Nothing herein contained shall be construed to modify, waive, impair or
affect any of the provisions, covenants, agreements, terms or conditions of
the Lease, or to waive any breach thereof, or any rights of the Landlord
against any person, firm, association or corporation liable or responsible
for the performance thereof, or to enlarge or increase the Landlord's
obligations or Tenant's rights under the Lease, and all provisions,
covenants, agreements, terms and conditions of the Lease are hereby
mutually declared to be in full force and effect.
2. Tenant shall be and remain liable and responsible for the due keeping,
performance and observance of all the provisions, covenants, agreements,
terms and conditions set forth in the Lease on the part of Tenant to be
kept, performed and observed.
3. The Sublease (and all amendments, modifications, and extensions thereof)
shall be subject and subordinate at all times to the Lease, and to all of
the provisions, covenants, agreements, terms and conditions of the Lease.
4. Nothing herein contained shall be construed as a consent co, or approval or
ratification by Landlord of, any of the particular provisions of the
Sublease or as a representation or
Xxxxx Xxxxxx, Esq.
October 21, 1996
Page 2
warranty by Landlord. Landlord shall not be bound or estopped in any way by
the provisions of the Sublease.
5. This consent shall not be construed as a consent by Landlord to, or as
permitting, any other or further licensing or subletting by Tenant or any
amendment of the Sublease, except as specifically provided in the Lease.
Notwithstanding the foregoing, Landlord hereby consents to the sublicense
of the "Sublandlord's License Rights," as such term is defined in the
Sublease, from the Tenant to the Sublessee pursuant to the terms of the
Lease.
6. Tenant agrees that it shall pay any brokerage commissions payable in
connection with the Sublease and Landlord shall have no responsibility with
respect thereto. Tenant agrees to indemnify and hold harmless Landlord
against and from any claims for any such brokerage commissions and all
costs, expenses, liabilities in connection therewith, including, without
limitation, attorneys' fees and expenses. The provisions of this Article
shall survive the expiration or sooner termination of the Lease.
7. This consent shall not be construed as a consent by Landlord to any
alterations to the Space by the Tenant or Sublessee. Notwithstanding
anything to the contrary within the Sublease, all alterations to the Space
must be authorized by the prior written consent of Landlord and performed
in accordance with the terms of Article 3 of the Lease.
8. Notwithstanding anything to the contrary within the Sublease, in the event
the Lease shall terminate for any reason prior to the stated expiration
date, the Sublease shall also terminate on such date without any liability
whatsoever on the part of Landlord to Tenant or Sublessee, except as
provided in the Lease regarding Landlord defaults.
9. Tenant, pursuant to Article 53(E)(h) of the Lease, covenants to deliver to
Landlord contemporaneously with the delivery of this Agreement to Landlord,
a check or checks, subject to collection, made payable to the order of
Landlord, in a sum equal to all reasonable costs and legal fees incurred by
Landlord in connection with the granting of this consent.
Xxxxx Xxxxxx, Esq.
October 21, 1996
Page 3
Kindly indicate your acceptance of our consent on the foregoing terms and
conditions by signing a copy hereof and returning the same to the undersigned.
220 NEWS LLC, a New York limited liability company
By: Daily Planet LLC, a New York limited liability
company
By: News East LLC, a New York limited
liability company
By: /s/ Xxxxxxxx Xxxxx
Xxxxxxxx x Xxxxx
Managing Member
MINET, INC., a New Jersey
corporation
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary and
Vice President
TWO TWENTY EAST LIMITED PARTNERSHIP
c/o LaSalle Partners
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 3, 1992
Minet Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Portion of the 00xx Xxxxx
Xxx Xxxx Xxxxxxxx
Xxxxxxxxx:
Reference is made to that certain lease between the undersigned, as
landlord, and you (formerly known as Minet International Professional Indemnity
insurance Brokers, Inc.), as tenant, dated as of January 27, 1989 (the "Original
Lease"), as amended by an Agreement Modifying Lease I dated as of November 26,
1990 (the "First Amendment') an Agreement Modifying Lease II dated as Of June
18, 1991 (the "Second Amendment") and a letter agreement dated May 22, 1992 (the
`Letter Agreement ), covering the entire twenty-first (21st) and twenty-fourth
(24th) floors, as well as portions of the twenty-fifth (25th) and twenty-sixth
(26th) floors (the "Premises") in the building (the "Building") located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the Original Lease, the First
Amendment, the Second Amendment and the better Agreement, collectively, the
"Lease.), as more particularly described in the Lease.
This is to confirm our agreement with respect to your leasing of additional
space in the Building on a short-term basis. Unless otherwise defined in this
letter agreement, capitalized terms used herein shall have the meanings ascribed
to them in the Lease.
Effective for the period commencing on November 15, 1992 and ending on Hay
14, 1993 (the "Short Term Space Term") the portion of the 22nd floor of the
Building, as shown on the floor plan annexed hereto as Exhibit A (the "Short
Term Space") shall be added to and included in the Premises (as defined in the
Lease). The leasing of the Short Term Space shall be subject to all of the terms
and conditions of the Lease, except as otherwise herein provided.
The Fixed Rent payable with respect so the Short Term Space (including any
portion thereof payable for electric current) shell be $8,166.67 per month
throughout the Short Term Space Term.
Throughout the Short Term Space Term only, as the same may be extended as
herein provided, the amount payable per annum se set forth in Article 46B of the
Original Lease, as modified by the First Amendment, the Second Amendment and the
Letter Agreement, shall increase by $10,500.00.
You shell pay all items of Additional Rent provided for in the Lease with
respect to the Short Tens Space, except that the provisions of Article 42 of the
Original Lease shall not apply to the Short Term Space, except as provided
below.
Subject to our consent, which may be withheld in our absolute discretion,
you any elect to extend the Short Term Space Term on a month-to-month basis,
provided that we shall receive written notice of such election on or before
April 15, 1993. In the event that the term c! the Lease with respect to the
Short Term Space shell be so extended, it shall thereafter be terminable for any
reason whatsoever, at either your or our option, upon 30 days' prior written
notice to the other party hereto.
In the event that the Short Term Space Term shall extend beyond Key 14,
1993, then notwithstanding anything herein to the contrary, with respect to the
period from and after May 15, 19 93 through the date of termination of the Lease
with respect to the Short Term Space, you shall pay Tenant `c Tax Payment and
Tenant Tenant's Operating Payment as provided in Article 42 of the Original
Lease, as modified loaf by Section 2(d)(iii) through 2(d)(v) Of the First
Amendment c. well as the letter Agreement, with respect to the Short Term Space,
except that, for purposes of calculating Tenant's Tax Payment end Tenant's
Operating payment with respect to the Short Term Space only, (i) "Premises Area"
as sot forth in Section 42A(a) of the Original Lease shall be deemed to mean
3,500 square feet; and (ii) "Tenant's Proportionate Share" as set forth in
Section 42A(b) of the Original Lease shall be deemed to be .3205%.
We shell have no obligation to make any improvements to the Short Term
Space to prepare the same for your occupancy or otherwise other than to (i) 1 )
patch and repaint the Short Term Space and (ii) replace any missing coiling
tiles, light bulb and door knobs therein, using materials of Building standard
quality, color and design.
You hereby represent that you dealt with no broker or brokers other then
LaSalle Partners and Xxxxx Xxxx Xxxxxxx USA in the negotiation of this letter
agreement and that you shall pay any commission earned by Xxxxx Lang Wootton USA
in connection herewith. You hereby indemnity us and agree to hold us harmless
from sod against any loss, cost, damage, claim or liability arising cut of any
inaccuracy or alleged inaccuracy of the above representations, including without
limitation reasonable attorneys' fees. The provisions of this paragraph shall
survive the expiration or earlier termination of this letter agreement.
If we are unable to give possession of the Short Tem Space on the date set
forth herein for any reason, we shall not be subject to any liability for
failure to give possession on said date, and the validity of this agreement
shall not be impaired under such circumstances, nor shall the same be construed
in any way to extend the Short Term Space Term. If, for any reason, Section
223-a of the Real Property Law shell be deemed applicable hereto, the parties
agree that this paragraph is intended to be "an express provision to the
contrary. for purposes of that statute.
Except as herein modified, the Lease shall remain in full force and effect
end, as herein modified, is hereby ratified and confirmed in all respects.
2
This letter agreement may not be orally changed or terminated nor any of
its provisions waived, unless by an agreement in writing signed by the party
against whom enforcement of any change, termination or waiver is sought.
This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto, their respective legal representative, successors and assigns,
Kindly acknowledge your agreement to the foregoing by signing this letter
in the space below.
Very truly yours,
TWO TWENTY EAST LIMITED PARTNERSHIP
By: LaSalle Partners, Agent
By: LaSalle Partners Incorporated, General
Partner
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
ACKNOWLEDGED & AGREED TO:
MINET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
3
[GRAPHIC OMITTED]
TWO TWENTY EAST LIMITED PARTNERSHIP
c/o LaSalle Partners
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
May 22, 1992
Minet Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Portion of the 00xx Xxxxx
Xxx Xxxx Xxxxxxxx
Xxxxxxxxx:
Reference is made to that certain lease, dated se of January 27, 1989 (the
"Original Lease"), amended by an Agreement Modifying Lease dated as Of November
26, 1990 (the "First Amendment. ) and by an Agreement Modifying Lease II dated
as of June 18, 1991 (the "Second Amendment"), between us, as landlord, and you,
as tenant, covering the entire twenty-first (21st) end twenty-fourth (24th)
floors, as well as a portion of the twenty-fifth (25th) floor (the "Premises") )
in the building (the "Building") located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx Xxx
Xxxx 00000 (the Original Lease, the First Amendment and the Second Amendment,
collectively, the "Lease"), ), as more particularly described in the Lease.
This is to confirm our agreement with respect to your leasing of additional
space in the Building on a short-term basis. Unless otherwise defined in this
letter agreement, capitalized terms used herein shall have the meanings ascribed
to them in the Lease.
Effective for the period commencing on May 15, 1992 and ending on November
14, 1992 (the "Short Term Space Term") the portion of the 26th floor of the
Building, as shown on the floor plan annexed hereto as Exhibit A (the "Short
Term space.) shell be added to and included in the Premises (as defined in the L
Lease). ) . She leasing of the Short Term Space shall be subject to all of the
terms and conditions of the Lease, except as otherwise he herein in provided.
The Fixed Rent payable with respect to the Short Term Space (including any
portion thereof payable for electric current) shall be $7,466.67 per month
throughout the Short Term Space Term.
Throughout the Short Term Space Term on only, as the same may be extended
as herein provided, the amount allocable per annum as set forth in Article 46B
of the original Lease as modified by the First Amendment and the Second .
Amendment, shall increase by $9,600.00 to $101,104.50.
You shall pay all items of Additional Rent provided for in the Lease with
respect to the Short Term Space, except that the provisions of Article 42 of the
Original Lease shall not apply to the Short Term Space, except as provided
below.
Subject to our consent, which may be withheld in our absolute discretion,
you may elect to extend the Short Term Space Term on a month-to-month basis,
provided that we shall receive written notice of such election on or before
October 15, 1992. In the event that the term of the Lease with respect to the
Short Term Space shall be so extended, it shall thereafter be terminable for any
reason whatsoever, at either your or our option, upon 30 days' prior written
notice to the other party hereto.
In the event that the Short Term Space Term shall extend beyond December
31, 1992, then notwithstanding anything herein to the contrary, with respect to
the period from and after January 1, 1993 through the date of termination of the
Lease with respect to the Short Term Space, you shall pay Tenant's Tax Payment
and Tenant's Operating Payment as provided in Article 42 of the Original Lease,
as modified by Sections 2(d)(iii) through 2(d)(v) of the First Amendment, with
respect to the Short Term Space, except that, for purposes of calculating
Tenant's Tax Payment and Tenant Tenant's Operating Payment with respect to the
Short Term Space only, (i) "Premises Area" as set forth in Section 42A(a) of the
Original Lease shall be deemed to mean 3,200 square feet' and (ii) "Tenant's
Proportionate Share. as ret forth in Article 42A(b) of the Original Lease shall
be deemed to be .2930%.
We shall have no obligation to make any improvements to the Short Term
Space to prepare the same for your occupancy or otherwise other than to
construct a partition and two doors of Building-standard materials and design as
indicated on the plan attached hereto as Exhibit B.
You hereby represent that you dealt with no broker or brokers other than
LaSalle Partners and Xxxxx Xxxx Xxxxxxx USA in the negotiation of this letter
agreement and that no brokerage commission will be earned by Xxxxx Lang Wootton
use in connection herewith. You hereby indemnify us and agree to hold us
harmless from and against any loss, cost, damage, claim or liability arising out
of any inaccuracy or alleged inaccuracy of the above representations, including
without limitation reasonable attorneys' fees. The provisions of this paragraph
shall survive the expiration or earlier termination of this letter agreement.
If we are unable to give possession of the Short Term Space on the date set
forth herein for any reason, we shell not be subject to any liability for
failure to give possession on said date, and the validity of this agreement
shall not be impaired under such circumstances, nor shall the same be construed
in any way to extend the Short Term Space Term. If, for any reason, Section
223-a of the Real Property Law shall be deemed applicable hereto, the parties
agree that this paragraph is intended to be tan express provision to the
contrary for purposes of that statute.
Except as herein modified. the Lease shall remain in full force and effect
and, as herein modified, is hereby ratified and confirmed in all respects.
2
This letter agreement may not be orally changed or terminated nor any of
its provisions waived, unless by an agreement in writing signed by the party
against whom enforcement of any change, termination or waiver is sought.
This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto, their respective legal representatives, successors and assigns.
Kindly acknowledge your agreement to the foregoing by signing this letter
in the space below.
Very truly yours,
TWO TWENTY EAST LIMITED PARTNERSHIP
By: LaSalle Partners, Agent
By: LaSalle Partners Incorporated, General
Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
ACKNOWLEDGED & AGREED TO:
MINET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
3
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
TWO TWENTY EAST LIMITED PARTNERSHIP
c/o LaSalle Partners
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
May 22, 1992
Minet Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Portion of the 00xx Xxxxx
Xxx Xxxx Xxxxxxxx
Xxxxxxxxx:
Reference is made to that certain lease, dated se of January 27, 1989 (the
"Original Lease"), amended by an Agreement Modifying Lease dated as Of November
26, 1990 (the "First Amendment. ) and by an Agreement Modifying Lease II dated
as of June 18, 1991 (the "Second Amendment"), between us, as landlord, and you,
as tenant, covering the entire twenty-first (21st) end twenty-fourth (24th)
floors, as well as a portion of the twenty-fifth (25th) floor (the "Premises") )
in the building (the "Building") located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx Xxx
Xxxx 00000 (the Original Lease, the First Amendment and the Second Amendment,
collectively, the "Lease"), ), as more particularly described in the Lease.
This is to confirm our agreement with respect to your leasing of additional
space in the Building on a short-term basis. Unless otherwise defined in this
letter agreement, capitalized terms used herein shall have the meanings ascribed
to them in the Lease.
Effective for the period commencing on May 15, 1992 and ending on November
14, 1992 (the "Short Term Space Term") the portion of the 26th floor of the
Building, as shown on the floor plan annexed hereto as Exhibit A (the "Short
Term space.) shell be added to and included in the Premises (as defined in the L
Lease). ) . She leasing of the Short Term Space shall be subject to all of the
terms and conditions of the Lease, except as otherwise he herein in provided.
The Fixed Rent payable with respect to the Short Term Space (including any
portion thereof payable for electric current) shall be $7,466.67 per month
throughout the Short Term Space Term.
Throughout the Short Term Space Term on only, as the same may be extended
as herein provided, the amount allocable per annum as set forth in Article 46B
of the original Lease as modified by the First Amendment and the Second .
Amendment, shall increase by $9,600.00 to $101,104.50.
You shall pay all items of Additional Rent provided for in the Lease with
respect to the Short Term Space, except that the provisions of Article 42 of the
Original Lease shall not apply to the Short Term Space, except as provided
below.
Subject to our consent, which may be withheld in our absolute discretion,
you may elect to extend the Short Term Space Term on a month-to-month basis,
provided that we shall receive written notice of such election on or before
October 15, 1992. In the event that the term of the Lease with respect to the
Short Term Space shall be so extended, it shall thereafter be terminable for any
reason whatsoever, at either your or our option, upon 30 days' prior written
notice to the other party hereto.
In the event that the Short Term Space Term shall extend beyond December
31, 1992, then notwithstanding anything herein to the contrary, with respect to
the period from and after January 1, 1993 through the date of termination of the
Lease with respect to the Short Term Space, you shall pay Tenant's Tax Payment
and Tenant's Operating Payment as provided in Article 42 of the Original Lease,
as modified by Sections 2(d)(iii) through 2(d)(v) of the First Amendment, with
respect to the Short Term Space, except that, for purposes of calculating
Tenant's Tax Payment and Tenant Tenant's Operating Payment with respect to the
Short Term Space only, (i) "Premises Area" as set forth in Section 42A(a) of the
Original Lease shall be deemed to mean 3,200 square feet' and (ii) "Tenant's
Proportionate Share. as ret forth in Article 42A(b) of the Original Lease shall
be deemed to be .2930%.
We shall have no obligation to make any improvements to the Short Term
Space to prepare the same for your occupancy or otherwise other than to
construct a partition and two doors of Building-standard materials and design as
indicated on the plan attached hereto as Exhibit B.
You hereby represent that you dealt with no broker or brokers other than
LaSalle Partners and Xxxxx Xxxx Xxxxxxx USA in the negotiation of this letter
agreement and that no brokerage commission will be earned by Xxxxx Lang Wootton
use in connection herewith. You hereby indemnify us and agree to hold us
harmless from and against any loss, cost, damage, claim or liability arising out
of any inaccuracy or alleged inaccuracy of the above representations, including
without limitation reasonable attorneys' fees. The provisions of this paragraph
shall survive the expiration or earlier termination of this letter agreement.
If we are unable to give possession of the Short Term Space on the date set
forth herein for any reason, we shell not be subject to any liability for
failure to give possession on said date, and the validity of this agreement
shall not be impaired under such circumstances, nor shall the same be construed
in any way to extend the Short Term Space Term. If, for any reason, Section
223-a of the Real Property Law shall be deemed applicable hereto, the parties
agree that this paragraph is intended to be tan express provision to the
contrary for purposes of that statute.
Except as herein modified. the Lease shall remain in full force and effect
and, as herein modified, is hereby ratified and confirmed in all respects.
2
This letter agreement may not be orally changed or terminated nor any of
its provisions waived, unless by an agreement in writing signed by the party
against whom enforcement of any change, termination or waiver is sought.
This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto, their respective legal representatives, successors and assigns.
Kindly acknowledge your agreement to the foregoing by signing this letter
in the space below.
Very truly yours,
TWO TWENTY EAST LIMITED PARTNERSHIP
By: LaSalle Partners, Agent
By: LaSalle Partners Incorporated, General
Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
ACKNOWLEDGED & AGREED TO:
MINET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
3
FINAL
1/25/89
LEASE
BETWEEN
TWO TWENTY EAST LIMITED PARTNERSHIP
AND
MINET INTERNATIONAL PROFESSIONAL
INDEMNITY INSURANCE BROKERS, INC.
THE NEWS BUILDING
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX
STANDARD FORM OF OFFICE LEASE The Real
Estate Board of New York, Inc.
AGREEMENT OF LEASE, made as of this 27th day of January 1989, between TWO
TWENTY EAST LIMITED PARTNERSHIP, an Illinois limited partnership having an
office c/o LaSalle Partners, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, 00000., party of
the first part, hereinafter referred to as OWNER or Landlord and MINET
INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE BROKERS, INC., a New Jersey
corporation, having an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner the premises (hereinafter referred to as "premises", demised premises", or
"Premises") consisting of the entire 21st floor, as indicated on the floor plan
annexed hereto as Exhibit A in the building known as The News Building, located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Building") in the Borough of
Manhattan, City of New York, for a term ("term" or "Term") to commence on
January , 1989 (the "Commencement Date") to end on June 30, 1999 (the
"Expiration Date") (or until such term shall sooner cease and expire as
hereinafter provided at an annual rental (hereinafter called "rent" or "Fixed
Rent") as described in Article 38, together with all other sums of money as
shall become due and payable by Tenant under this lease (hereinafter called
"additional rent" or "Additional Rent") which payments Tenant agrees to make
payable to LaSalle Partners, at Tenant's option, by check drawn on a bank which
is a member of the New York Clearing House Association or by wire transfer of
funds, 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, at the office of Owner or such other place as
Owner may designate, without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(s) on the execution hereof
(unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner" predecessor in interest,
Owner may at Owner" option and without notice to Tenant add the amount of such
arrears to any monthly installment of rent payable hereunder and the same shall
be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. Rent: Tenant shall pay the rent as above and as hereinafter provided.
2. Occupancy: Tenant shall use and occupy demised premised for executive or
administrative offices of Tenant commensurate with the character and dignity of
the building as a first class office building and for no other purpose.
3. Tenant Alterations: Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
which are non-structural and which do not
affect utility services or plumbing and electrical lines, in or to the interior
of the demised premises by using contractors or mechanics first approved by
Owner. Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals an 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 xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a party, 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 thereafter,
at Tenant's expense, by filing the bond required by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner in Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease at Tenant's expense. 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 any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the 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 premises by Owner, at Tenant's expense.
4. Maintenance and Repairs: 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, 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"
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, using only the contractor for the trade or trades in question,
selected from a list of at least two contractors per trade submitted by Owner.
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
its demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilation systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be
responsible hereunder. 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. 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. 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.
5. Window Cleaning: 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.
6. Requirements of Law; Fire Insurance, Floor Loads: Prior to the
commencement of the lease term, Tenant is then in possession, and at all times
thereafter tenants, 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, 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 premises or the building (including the use permitted under the
lease). Nothing herein shall require Tenant to make structural repairs or
alterations unless Tenant has, by its 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 satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's 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 party 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 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 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 areas
which it was designed to carry and which is allowed by law. Owner reserves the
right to 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 judgement, to
absorb and prevent vibration, noise and annoyance.
7. Subordination: INTENTIONALLY OMITTED.
8. Property - Loss, Damage, Reimbursement, Indemnity: 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 of Owner, its agents, servants or employees. 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. 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 laws 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. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorney fees, paid suffered or
incurred as a result of any breach by Tenant. Tenant's agents, contractors,
employees, invitees or licensees of any covenant of condition of this lease, or
the carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors employees, invitees or licensees Tenant's liability under this lease
extends to the acts and omissions of any sub-tenants and any agent, contractor,
employee, invitee or licensee of any sub-tenant and any agent, contractor,
employee, invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
9. Destruction, Fire and Other Casualty: (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, the
damages therein shall be repaired by and at the expense of Owner and the
rent, until such repair shall be substantially completed shall be apportioned
from the day following the casualty according to the part of the premises which
is usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the term shall be proportionate. If
paid up to the time of the casualty and thenceforth shall cease until the date
when the premises shall have been repaired and restored by Owner, subject to
Owner's right to elect not to restore the same as hereinafter provided. (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, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90m days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 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 fi such date were the date
set forth above (or the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to landlord's
rights and remedies against Tenant under the release provisions in effect prior
to such terminations, 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 Owners' control After any such casualty, Tenant shall cooperate
with Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after written notice from Owner that the premises are substantially ready
for Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any 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 against
the other or any once claiming through or under each of them by way of
subrogation or otherwise. 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 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 with respect to waiver or 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 ore replace
the same. (f) Tenant hereby waivers 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.
10. Eminent Domain: 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.
11. Assignment, Mortgage, Etc.: 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 party
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, of if the demised premises or
any party thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant 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, under-tenant 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.
12. Electric Current: INTENTIONALLY OMITTED.
13. Access to Premises: 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, 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 to use
and maintain and replace pipes and conduits therein provided they are contained
within the walls, floor, or ceiling. 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. Throughout
the term hereof Owner shall have the right to enter the demised premises at
reasonable hours 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. 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. 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.
Whenever Landlord shall enter the demised premises to make such repairs,
replacements or improvements, Landlord shall endeavor to provide Tenant with
reasonable prior notice if, feasible (except in emergencies), shall take
reasonable steps to minimize the inconvenience to Tenant that may arise
therefrom and shall use reasonable efforts to minimize the amount of space in
the demised premises which may be lost as a result of such repairs, replacements
or improvements.
14. Vault, Vault Space Area: No Vaults, vault space or areas, 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.
15. Occupancy: 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 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 premises and Tenant agrees to accept the same subject to violations, whether
or not of record.
16. Bankruptcy: (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: 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 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 Landlord 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 premises or any
part thereof be re-let by the Landlord 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 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.
17. Default: (1) If Tenant defaults in fulfilling any of the covenants
of this lease other than the covenants for the payment of rent or additional
rent, or if the demised premises becomes vacant or deserted, 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 Section 235 of Title 11
of the U.S. Code (bankruptcy code), or if Tenant shall fail to move into or
take possession of the premises within fifteen (15) days after the
commencement of the term of this lease, then in any one or more of such
events, upon Owner serving a written ten (10) days notice upon Tenant
specifying the nature of said default and upon the expiration of said ten
(10) days, if Tenant shall have failed to comply with or remedy such default,
or if the said default or omission complained of shall be of a nature that
the same cannot be completely cured or remedied within said ten (10) day
period, and if Tenant shall not have diligently commenced during such default
within such ten (10) day 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 three (3) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said three (3) days this lease
and the term thereunder shall end and expire as fully and completely as if
the expiration of such three (3) 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 or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required
and such default shall continue for ten (10) days; 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 demised premises and remove
their effects and hold the 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. Remedies of Owner and Waiver of Redemption: In case of any such
default, re-entry, expiration and/or dispossess by summary proceedings or
otherwise, (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 premises
or any part or parts thereof, either in the name of Owner or otherwise, for a
term or terms, which may be 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
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 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 expenses as
Owner may incur in connection with re-letting, such as legal expenses,
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 month shall not prejudice in any way the rights of Owner to
collect the deficiency of 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 judgment,
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 from any other remedy,
in 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
being evicted or dispossessed for any cause or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
19. Fees and Expenses: 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, 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 attorney's fees, in instituting, prosecuting or
defending any action or proceeding, then Tenant will reimburse Owner for such
sums to be 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 five (5) 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. Building Alterations and Management: Owner shall have the right at any
time without the same constituting an eviction and without incurring liability
to Tenant therefor to change the arrangements and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, towers or
other public parts of the building and to change
the name, number or designation by which the building may be known. 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. Furthermore, Tenant shall not have
any claim against Owner by reason of Owner's imposition of such 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.
21. No Representation by Owner: Neither Owner nor Owner's agents have made
any representations or promises with respect to the 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 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 herein a part were in good and
satisfactory condition at the time such possession was so taken and that the
Premises are substantially as shown on Exhibit A; unless, with respect to the
demised premises, Tenant shall notify Landlord to the contrary within ten (10)
days of Tenant's taking possession, in which event Landlord shall undertake to
correct defects reasonably specified by Tenant, it being understood that nothing
in this Article shall affect Tenant's obligation to pay Fixed Rent or Additional
Rent hereunder. 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. End of Term: 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, 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. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last days 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 non on the preceding business day.
23. Quiet Enjoyment: Owner covenants and agrees with Tenant that upon
Tenant paying the rent and additional rent and 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,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 10 hereof and in the ground leases, underlying leases and
mortgages hereinabove mentioned.
24. Failure to Give Possession: If Owner is unable to give possession of
the demised premises on the date of the commencement of the term hereof, because
of the holding-
over or retention of possession of any tenant, undertenant or occupants or it
the demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
way to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. 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.
25. No Waiver: The failure of Owner 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 of 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 unless such waiver be in writing
signed by Owner. 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 agents during the term hereby demised shall be deemed an
acceptance of a surrender of said 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 keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
26. Waiver of Trial by Jury: 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 counterclaims brought by either of the
parties hereto against the other (except for personal injury or property
damages) 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 said premises, and any emergency statutory or other statutory remedy. It is
further mutually agreed that in the event Owner commences any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
27. Inability to Perform: 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 or fixtures 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 in
connection with a National Emergency or by reason of any rule, order or
regulation of any department or subdivision thereof or any government agency or
by reason of the conditions of supply and demand which have been or are affected
by war or other emergency.
28. Bills and Notices: INTENTIONALLY OMITTED.
29. Services Provided by Owners: INTENTIONALLY OMITTED.
30. Captions: 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. Definitions: 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 fore
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 as the owner of a
lease of the building or of the land and building) of which the demised premises
form a part of that in the event of any sale or sales of said land and building
or of said building, the said Owner shall be and hereby is entirely freed and
released of all covenants and obligations of Owner hereunder, and it shall be
deemed and construed without further agreement 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 of 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 "business day" as used in this lease
shall exclude Saturdays, Sundays and holidays observed by the State or Federal
Government as legal holidays and are designated as holidays by the applicable
building service union employees serviced contract or by the applicable
Operating Engineers contract with respect to HVAC service.
32. Adjacent Excavation -- Shoring: 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,
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 forms a ____________ injury or damage and to support the same
by proper ___________ without any claim for damages or indemnity against Owner
or _______________ or abatement of rent.
33. Rules and Regulations: Tenant and Tenant's servants, employees, agents,
visitors and licensees shall observe faithfully, and comply ___________ with,
the Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agent may from time to time adopt. Notice of any
additional rules or regulations shall be given in such manner as
Owner may elect. In case Tenant disputes the reasonableness of any additional
Rule and Regulation hereafter made or adopted by Owner or Owner's agents, the
parties herein agree to submit the question of reasonableness of such Rule and
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
herein. The right to dispute the reasonableness of any additional Rule and
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) 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.
34. Security: Tenant has deposited with Owner the sum of $39,326.83 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 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 there-letting of the
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 the terms, provisions, covenants and conditions of
this lease, the security shall be returned to Tenant after 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 thereupon be
released by Tenant from all liability for the return of such security: and
Tenant agrees to look in 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.
35. Estoppel Certificate: Tenant, at any time, and from time to time, upon
at least ten (10) days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement certifying that this lease is unmodified and in full force
and effect for, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications, stating the dates to which
the rent and additional rent have been paid, and stating whether or not there
exists any default by Owner under this Lease, and, if so, specifying each such
default.
36. Successors and Assignees: The covenants, conditions and agreements
contained in this lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, _______, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
IN WITNESS WHREOF, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
Witness for Owner: TWO TWENTY EAST LIMITED PARTNERSHIP, an Illinois
limited partnership
------------------------
By:LaSalle Street Fund Incorporated, General Partner
By:/s/ Xxxxxxx Xxxxxx
----------------------------------------
Vice President
Witness for Tenant: MINET INTERNATIONAL
PROFESSIONAL INDEMNITY INSURANCE
BROKERS, INC.
------------------------
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Vice President
ACKNOWLEDGEMENTS
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK ss: STATE OF NEW YORK ss:
County of County of New York
On this ___ day of __________, 19___, before me On this 27th day of January, 1985, before me personally
personally came __________ to me known who being by me came Xxxxxxx Xxxxxxx to me known who being by me duly
duly sworn did depose and say that he resides in sworn did depose and say that he resides in __________
__________ that he is the ___________ of __________, the that he is the Vice President of Minet International
corporation described in and which executed the foregoing Professional Indemnity Insurance Brokers, Inc., the
instrument as OWNER that he knows the seal of said corporation described in and which executed the
corporation, that the seal affixed to and in engagement foregoing instrument as TENANT that he knows the seal
to such corporate seal that it was so affixed by order of of said corporation, that the seal affixed to and in
the Board of Directors of said corporation and that he engagement to such corporate seal that it was so
signed his name there by like orders. affixed by order of the Board of Directors of said
corporation and that he signed his name there by like
orders.
Xxxxxx Pyszcyamuka
Notary Public, State of New York
No. 4845658
Qualified in Suffolk County
Commission Expires Upon 10/3/89
INDIVIDUAL OWNER INDIVIDUAL LEASE
STATE OF NEW YORK ss: STATE OF NEW YORK ss:
County of County of
On this ___ day of __________, 19___, before me On this ___ day of __________, 19___, before me
personally came __________ to me known and known to me to personally came __________ to me known and known to me
be the individual __________ described in and who as to be the individual __________ described in and who as
OWNER executed the foregoing instrument and acknowledged TENANT executed the foregoing instrument and
to me that __________ he executed the same. acknowledged to me that __________ he executed the same.
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement in Owner
making the within lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements therein provided to be performed and
observed by Tenant including the "Rules and
Regulations" as therein provided, without requiring any source of non-payment,
non-performance, or non-observance, or proof of notice or demand, whereby to
charge the undersigned therefor, all of which the undersigned hereby expressly
waives and expressly agrees that the validity of this agreement and the
obligations of the guarantor hereunder shall in no wise be terminated, affected
or impaired by reason of the assertion by Owner against Tenant of any of the
rights or remedies reserved to Owner pursuant to the provisions of the within
lease. The undersigned further covenants and agrees that this guaranty shall
remain and continue in full force and effect as to any renewal, modification or
extension of this lease and during any period when Tenant is occupying the
premises as a "statutory tenant". As a further inducement in Owner to make this
lease and in consideration thereof, Owner and the undersigned covenant and agree
that in any action or proceeding brought by either Owner or the undersigned
against the other on any matters whatsoever arising out of, under, or by virtue
of the terms of this lease or of this guaranty that Owner and the undersigned
shall and do hereby waive trail by jury.
Dated New York City __________, 19___.
WITNESS
STATE OF NEW YORK )
County of ) ss
On this ______ day of __________, 19___, before me personally
came __________ to me know and known to me to be the individual described in,
and who executed the foregoing Guaranty and acknowledged to me that he executed
the same.
Notary
-----------------------------
Residence
--------------------------
Business Address
-------------------
Firm Name
--------------------------
RIDER ANNEXED TO AGREEMENT OF LEASE
BETWEEN TWO TWENTY EAST LIMITED PARTNERSHIP (LANDLORD)
AND MINET INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE
BROKERS, INC. (TENANT)
LANDLORD'S WORK:
37. Landlord shall have no obligation to perform any work in, or make any
alterations or improvements to, the Premises.
FIXED RENT AND PRORATION OF FIXED RENT:
38. A. Commencing on the earlier of (a) the date occurring two (2) months
after Tenant shall substantially complete the construction of all initial
alterations and improvements (the "Initial Improvements") to the Premises or (b)
July 1, 1989 (the earlier such date being the "Rent Commencement Date"), Tenant
shall pay to Landlord in accordance with the terms of this Lease and without
notice or demand, annual Fixed Rent (including any portion thereof payable for
electric current as provided in Article 46) in the amount of $471,922 for the
period from the Rent Commencement Date to June 30, 1994; and $484,381 for the
period from July 1, 1994 to the Expiration Date.
B. The Initial Improvements shall be deemed substantially complete
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed.
C. If the Rent Commencement Date shall not occur on the first day of a
calendar month, the Fixed Rent for such calendar month shall be prorated on a
per diem basis, and Landlord shall credit the excess amount paid on the
execution of this Lease toward the payment of Fixed Rent for the next succeeding
calendar month.
LATE PAYMENT CHARGE:
39. A. If Tenant shall fail to pay when due any installment or payment of
Fixed Rent or Additional Rent for a period of ten (10) days after the date on
which such installment or payment is due, Tenant shall pay interest thereon from
the date due until the date paid at a rate ("Interest Rate") equal to the annual
rate of two (2) percentage points above the rate then most recently announced by
Citibank, N.A., New York, New York, or its successor, as its corporate base
lending rate which rate may change from time to time during the term of this
Lease, and such interest shall be deemed to be Additional Rent.
B. If Tenant shall make any payments due hereunder by ordinary check,
add that check shall be returned for insufficient funds or uncollected funds, or
the account being closed, then Landlord shall not be obligated to accept any
payment from or on behalf of Tenant other than by certified check or official
bank check. If payment made by Tenant to Landlord shall be returned for any of
the above reasons, there shall be an additional charge to Tenant of ten ($10.00)
dollars.
RENT RESTRICTIONS:
40. If the Fixed Rent or any Additional Rent shall be or become
uncollectible by virtue of any law, governmental order or regulation, or
direction of any public officer or body, Tenant shall enter into such agreement
or agreements and take such other action (without additional expense to Tenant)
as Landlord may request, as may be legally permissible, to permit Landlord to
collect the maximum Fixed Rent and Additional Rent which may, from time to time
during the continuance of such legal rent restriction be legally permissible,
but not in excess or the amounts of Fixed Rent or Additional Rent payable under
this Lease. Upon the termination of such legal rent restriction, (a) the Fixed
Rent and Additional Rent, after such termination, shall become payable under
this Lease in the amount of the Fixed Rent and Additional Rent set forth in this
Lease for the period following such termination, and (b) Tenant shall pay to
Landlord if legally permissible, an amount equal to (i) the Fixed Rent and
Additional Rent which would have been paid pursuant to this Lease, but for such
rent restriction, less (ii) the Fixed Rent and Additional Rent paid by Tenant to
Landlord during the period that such rent restriction was in effect.
ARTICLE 41 - INTENTIONALLY OMITTED
ESCALATIONS:
42. A. Definitions as used herein:
(a) The term "Premises Area" shall be deemed to mean 12,419 square
feet.
(b) The term "Tenant's Proportionate Share" shall mean 1.1373%.
(c) "Landlord's Statement" shall mean an instrument containing a
computation of Additional Rent due pursuant to the provisions of this Article
furnished by Landlord to Tenant.
(d) (i) The term "Base Tax Factor' shall mean the Taxes for the
1989/1990 Tax Year.
(ii) The term "Taxes" shall mean (a) all real estate taxes, assessments
(special or otherwise), sewer and water rents, rates and charges and any other
governmental levies which may be assessed or levied upon all or any part of the
Building and the land on which it is located and all appurtenances thereto
(collectively, "Real Property'), whether or not the same constitute one or more
tax lots, including any business improvement district fees or taxes imposed by
any governmental or private entity, and (b) any expenses (including attorneys'
fees and disbursements and experts and other witness' fees) incurred by Landlord
in contesting any of the foregoing or the assessed valuation of all or any part
of the Real Property; but "Taxes. shall not include any interest or penalties
incurred by Landlord as a result of Landlord's late payment of Taxes, except for
interest payable in connection with the installment payments of assessments
pursuant to the next sentence. If by law any assessment may be divided and paid
in annual installments, then for the purposes of this Article, (x) such
assessment shall be deemed to have been so divided and to be payable in the
maximum number of annual installments permitted by
2
law and (y) there shall be deemed included in Taxes for each Tax Year the annual
installment of such assessment becoming payable during such Tax Year, together
with interest payable during such Tax Year on such annual installment and on all
installments thereof becoming due as provided by law, all as if such assessment
had been so divided. If at any time the methods of taxation prevailing on the
date hereof shall be altered so that in lieu of or as an addition to or as a
substitute for all or any part of the Taxes now assessed, levied or imposed upon
all or any part of the Real Property, there shall be assessed, levied or imposed
any other tax, assessment, levy, imposition, charge or license fee however
described or imposed, then all such taxes, assessments, levies, impositions,
charges or license fees or the part thereof so measured or based shall be deemed
to be Taxes; provided that any tax, assessment, levy, imposition or charge
imposed on income from the Real Property shall be calculated as if the Real
Property is the only asset of Landlord.
(e) The term `Tax Year' shall mean the twelve (12) month period
commencing July 1 of each year, or such other period of twelve (12) months as
may be duly adopted as the fiscal year for real estate tax purposes in The City
of New York.
(f) The term `Escalation Year' shall mean each calendar year which
shall include any part of the Term.
(g) The term `Landlord's Base year shall mean the calendar year 1989.
(h) The term "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
(i) The term `Local 32B" shall mean Local 32B32J of the Building
Service Employees International Union, AFLCIO, or its successor.
(j) The term "Class A Office Buildings" shall mean the classification
of office buildings most nearly comparable to the classification "Class A
Buildings" in the current agreements between R.A.B. and Local 32B.
(k) The term "Labor Rates" with respect to any Escalation year shall
mean the regular average hourly wage rate required to be paid to Porters in
Class A Office Buildings pursuant to any agreement between R.A.B. and Local 32B
in effect during such Escalation Year, provided that if any such agreement shall
require Porters to be regularly employed on days or during hours when overtime
or other premium pay rates are in effect, then the term "regular average hourly
wage rate" shall mean the regular average hourly wage rate for the hours in a
calendar week which Porters are required to be regularly employed (whether or
not actually at work in the Building), e.g., if as of November 1, 1983, an
agreement between R.A.B. and Local 32B would require the regular employment of
Porters for 40 hours during a calendar week at a regular hourly wage of $4.00
for the first 30 hours and at an overtime hourly average wage of $5.00 for the
remaining 10 hours, then the regular average hourly wage rate under this
Subsection, as of November 1, 1983, would be the sum arrived at by dividing the
total weekly average wages of $170.00 by the total number of required hours of
employment which is 40 and resulting in a regular average hourly wage rate of
$4.25. The computation of the regular average hourly rate shall be on the same
basis whether based on an hourly or other pay scale but
3
predicated on the number of hours in such respective work weeks, whether paid by
Landlord or any independent contractor. Such regular average hourly wage rate
shall also be inclusive of the monetary value or cost of all payments or
benefits of every nature and kind (including those required to be paid by the
employer directly to taxing authorities or others because of the employment)
including social security, unemployment and other similar taxes, and vacation
pay, absent fund, birthdays. jury duty, medical checkup, relief time and other
paid time-off, incentive pay, sick pay, accident, health and welfare insurance
programs, pension plans, public liability insurance, guaranteed payment plans,
and supplemental unemployment benefit programs of a similar or dissimilar
nature, irrespective of whether they may be required by any Legal Requirement or
otherwise. If there is no such agreement in effect from which such regular
average hourly wage rate is determinable as of the date of any estimate of
Tenant's Operating Payment pursuant to Section 42C or the date of any Landlord's
Statement, the computations shall be made on the basis of the regular average
hourly wage rate being paid by Landlord or by the contractor performing xxxxxx
or cleaning services for Landlord as of the date of such Landlord's Statement
and appropriate retroactive adjustments shall be made when the regular hourly
wage rate is finally determined. If Labor Rates are discontinued or cease to be
utilized as a method of calculating escalation payments in office leases in
midtown Manhattan, Landlord shall have the right to substitute for Labor Rates a
comparable escalation formula or index to compensate Landlord for Additional
Rent payments it would have received were Labor Rates then utilized and
continued as form of escalation.
(l) The term "Porters" shall mean that classification of employee
engaged in the general maintenance and operation of Class A Office Buildings
most nearly comparable to the classification now applicable to porters in the
current agreement between R.A.B. and Local 32B (which classification is
presently termed "others" in said agreement).
B. PAYMENTS TAX ESCALATIONS (a) If Taxes payable in any year falling
wholly or partially within the Term shall be in such amount as shall constitute
an increase above the Base Tax Factor, Tenant shall pay as Additional Rent for
such Tax Year a sum ("Tenant's Tax Payment") equal to Tenant's Proportionate
Share of such excess. Tenant s Tax Payment for each Tax Year shall be due and
payable in two semi-annual installments on the first day of July and January
during each Tax Year and shall be set forth; in the first instance, in a
Landlord's Statement given to Tenant. If a Landlord's Statement is furnished to
Tenant after the commencement of a Tax Year in respect of which such Landlord s
Statement is rendered, Tenant shall, within 15 days thereafter, pay to Landlord
an amount equal to the amount of any underpayment of Tenant's Tax Payment with
respect to such Tax Year and, in the event of any overpayment, Landlord shall
either pay to Tenant, or, at Landlord's election, credit against subsequent
payments under this Section, the amount of Tenant's overpayment. If there shall
be any increase in Taxes for any Tax Year, whether during or after such Tax
Year, or if there shall be any decrease in the Taxes for any Tax Year during
such Tax Year, Landlord may furnish a revised Landlord's Statement for such Tax
Year, and Tenant `s Tax Payment for such Tax Year shall be adjusted and paid or
credited or refunded, as the case may be, substantially in the same manner as
provided in the preceding sentence. If during the Term, Taxes are required to be
paid (either to the appropriate taxing authorities or as tax escrow payments to
the Superior Lessee or the Superior Mortgagee), in full or in monthly,
quarterly, or other installments on any other date or dates than as presently
required, then Tenant's Tax Payments shall be correspondingly accelerated or
revised so that said Tenant's Tax Payments are due at least thirty (30) days
prior
4
to the date payments are due to the taxing authorities or the Superior
Lessee or the Superior Mortgagee. The benefit of any discount for any early
payment or prepayment of Taxes and of any tax exemption or abatement relating to
all or any part of the Real Property shall accrue to Landlord and Tenant and
shall be included in any computation of Taxes hereunder.
(b) If the real estate tax fiscal year of The City of New York shall
be changed at any time after the date hereof, any Taxes for such fiscal year, a
part of which is included within a particular Tax Year and a part of which is
not so included, shall be apportioned on the basis of the number of days in such
fiscal year included in the particular Tax Year for the purpose of making the
computations under this Section.
(c) If Landlord shall receive a refund of Taxes for any Tax Year,
Landlord shall either pay to Tenant, or, at Landlord s election, credit against
subsequent payments under this Section, Tenant s Proportionate Share of the
refund, but not to exceed Tenant s Payment paid for such Tax Year. Nothing
herein shall obligate Landlord to file any application or institute any
proceeding seeking a reduction in Taxes or assessed valuation. Tenant agrees to
cooperate fully with Landlord in prosecuting any such reduction, and Tenant
hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact, such appointment being coupled with an interest, in Tenant's
name, place and stead, and on Tenant's behalf, to initiate, pursue, withdraw,
settle or compromise any such application, proceedings or challenge that Tenant
has or may have the right to bring.
(d) Tenant's Tax Payment and any credits with respect thereto as
provided in this Section shall be made as provided in this Section regardless of
the fact that Tenant may be exempt, in whole or in part, from the payment of any
taxes by reasons of Tenant's diplomatic or other tax exempt status or for any
other reason whatsoever.
(e) Tenant shall pay to Landlord, as Additional Rent, upon notice
given by Landlord accompanied by copies of pertinent tax bills, any occupancy
tax or rent tax now in effect or hereafter enacted, if payable by Landlord in
the first instance or hereinafter required to be paid by Landlord.
(f) In the event of a termination of this Lease any Additional Rent
under this Section shall be paid or adjusted within 30 days after submission of
Landlord's Statement. In no event shall Fixed Rent ever be reduced by operation
of this Section, and the rights and obligations of Landlord and Tenant under the
provisions of this Section with respect to any Additional Rent shall survive the
termination of this Lease.
(g) Each Landlord's Statement furnished by Landlord with respect to
Tenant's Tax Payment shall be accompanied by a copy of the real estate tax xxxx
for the Tax Year referred to therein, but Landlord shall have no obligation to
deliver more than one such copy of the real estate tax xxxx in respect of any
Tax Year.
C. TENANT'S OPERATING PAYMENT. (a) Tenant shall pay as Additional Rent
for each Escalation Year an amount ("Tenant's Operating Payment") equal to the
sum obtained by multiplying the number of square feet of the Premises Area by
one times the
5
number of cents (inclusive of any fractions of a cent) of any increase in Labor
Rates above those in effect as of January 1 of Landlord's Base Year.
(b) Landlord may furnish to Tenant, with respect to each Escalation
Year, a written statement setting forth Landlord's estimate of Tenant's
Operating Payment for such Escalation Year. Tenant shall pay to Landlord on the
first day of each month during such Escalation Year an amount equal to
one-twelfth of Landlord's estimate of Tenant's Operating Payment for such
Escalation Year. If, however, Landlord shall furnish any such estimate for an
Escalation Year subsequent to the commencement thereof, then (a) until the first
day of the month following the month in which such estimate is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this Section in
respect of the last month of the preceding Escalation Year; (b) promptly after
such estimate is furnished to Tenant or together therewith, Landlord shall give
notice to Tenant stating whether the installments of Landlord's estimate of
Tenant's Operating Payment made for such Escalation Year were greater or less
than the installments of Landlord's estimate of Tenant's Operating Payment made
for such Escalation Year in accordance with such estimate, and (i) if there
shall be a deficiency, Tenant shall pay the amount thereof within ten (10) days
after demand therefor, or (ii) if there shall have been an overpayment, Landlord
shall either refund to Tenant the amount thereof or, at Landlord's election,
credit the amount thereof against subsequent payments under this Section; and
(c) on the first day of the month following the month in which such estimate is
furnished to Tenant, and monthly thereafter throughout the remainder of such
Escalation Year, Tenant shall pay to Landlord an amount equal to one-twelfth of
Tenant's Operating Payment shown on such estimate. Landlord may at any time or
from time to time (but not more than twice with respect to any Escalation Year)
furnish to Tenant a revised statement of Landlord's estimate of Tenant's
Operating Payment for such Escalation Year and in such case, Tenant's Operating
Payment for such Escalation Year shall be adjusted and paid or refunded, as the
case may be, substantially in the same manner as provided in the preceding
sentence.
(c) Promptly after the end of each Escalation Year, Landlord shall
furnish to Tenant a Landlord's Statement for such Escalation year. If the
Landlord's Statement shall show that the sums paid by Tenant under Section
42(C)(b) exceeded Tenant's Operating Payment required to be paid by Tenant for
such Escalation Year, Landlord shall refund to Tenant the amount of such excess,
or, at Landlord's election, with respect to any such surplus incurred and
reflected in a Landlord's Statement during the Term of this Lease, Landlord
shall credit the amount of such excess against subsequent payments of Fixed Rent
or Additional Rent due under this Lease; and if the Landlord's Statement for
such Escalation Year shall show that the sums so paid by Tenant were less than
Tenant's Operating Payment paid by Tenant for such Escalation Year, Tenant shall
pay the amount of such deficiency within ten (10) days after demand therefor.
D. If the Commencement Date or the Expiration Date shall occur on a
date other than January 1 or December 31, respectively, any Additional Rent
under this Section for the Escalation Year in which such Commencement Date or
Expiration Date shall occur shall be apportioned in that percentage which the
number of days in the period from the Commencement Date to December 31 or from
January 1 to the Expiration Date, as the case may be, both inclusive, shall bear
to the total number of days in the event of a termination of this Rent under
this Article shall be paid or adjusted within (30) days after submission of a
Landlord
6
Statement. In no event shall Fixed Rent ever be reduced by operation of
this Section and the rights and obligations of Landlord and Tenant under the
provisions of this Article with respect to any Additional Rent shall survive the
termination of this Lease.
E. The computations of Additional Rent under this Article are intended
to constitute a formula for an agreed rental adjustment and may or may not
constitute an actual reimbursement to Landlord for costs and expenses paid by
Landlord with respect to the Building.
F. Landlord s failure to render Landlord's Statements for any Tax Year
or Escalation Year shall not prejudice Landlord's right to thereafter render a
Landlord's Statement with respect thereto or with respect to any subsequent Tax
Year or Escalation Year, nor shall the rendering of a Landlord's Statement
prejudice Landlord's right to thereafter render a corrected Landlord's Statement
for that Tax Year or Escalation Year, as the case may be. Nothing therein
Contained shall restrict Landlord from issuing a Landlord's Statement at any
time there is an increase in Taxes or Labor Rates during any Tax Year or
Escalation Year or any time thereafter.
G. Each Landlord's Statement shall be conclusive and binding upon
Tenant unless (a) within sixty (60) days after receipt of such Landlord's
Statement Tenant shall notify Landlord that it disputes the correctness of
Landlord's Statement specifying the particular respects in which Landlord's
Statement is claimed to be incorrect. Tenant shall pay Additional Rent in
accordance with the applicable Landlord's Statement, without prejudice to
Tenant's position, and (b) if such dispute shall not be resolved within one
hundred twenty (120) days after the giving of such Landlord's Statement, Tenant
shall submit the dispute to arbitration in accordance with the applicable rules
of the American Arbitration Association. If such dispute is ultimately
determined in Tenant's favor, Landlord shall promptly after such determination
pay to Tenant any amount as overpaid by Tenant.
ELEVATOR SERVICE:
43. Landlord, at Landlord's expense, shall furnish necessary passenger
elevator service on all days other than Saturdays, Sundays and days proclaimed
as legal holidays by the State of New York, the Federal Government, the Building
management, or unions involved in the operation of the Building ("Business
Days") from 9:00 A.M. to 6:00 P.M. and shall have an elevator subject to call at
all other times. Landlord shall not be required to furnish any operator service
or automatic elevators. In the event Tenant shall require the use of the
Building's service elevators for purposes not otherwise supplied by Landlord in
accordance with this Lease or at any time other than those set forth above,
Landlord shall provide a service elevator or passenger elevators, as the case
may be, for the use of Tenant, provided Tenant gives Landlord reasonable notice
of the time and use of such elevators to be made by Tenant and Tenant pays
Landlord's usual and reasonable charge for the use thereof. Landlord shall have
the right to change the operation or manner of operating any of the elevators in
the Building and shall have the right to discontinue, temporarily or
permanently, the use of any one or more cars in any of the banks of elevators
provided reasonable passenger and freight elevator service is provided to the
Premises.
7
HVAC:
44. A. Landlord shall furnish and distribute to the Premises through
the Building heating, air conditioning and ventilation system, heated,
conditioned and outside air, at reasonable temperatures, pressures and degrees
of humidity and in reasonable volumes and velocities (collectively, "heating,
air conditioning and ventilation") on a year round basis, from 8,.00 A.M. to
6:00 P.M. on Business Days. Landlord and Tenant further agree to operate the
heating, air conditioning and ventilating equipment in accordance with their
design criteria unless a recognized energy conservation law, program, guideline,
regulation or recommendation promulgated by any Federal, State, City or other
governmental or quasi-governmental bureau, board, department, agency, office,
commission or other subdivision thereof shall provide for any reduction in
operations below said design criteria in which case such equipment shall be
operated so as to provide reduced service in accordance with such law, program,
guideline or regulation.
B. If Tenant shall require heating, air conditioning and ventilation
services other than during the hours provided for in Section A above (`after
hours'), Landlord shall furnish after hours heating, air conditioning and
ventilation service upon reasonable advance notice from Tenant, given prior to
2:00 P.M. and Tenant shall pay Landlord's then established charges therefor on
Landlord's demand, as Additional Rent. If any of the other tenants of the
Building shall request and receive after hours heating, air conditioning and
ventilation service, pursuant to Landlord's obligation to provide the same to
them, at the same time and utilizing the same system as Tenant, only that
equitably prorated portion of the charge made by Landlord for such service shall
be allocated to Tenant. Tenant shall not be charged for such after hours service
in the event that Tenant does not request it.
C. Notwithstanding the foregoing provisions of this Article 44,
Landlord shall maintain those portions of the Premises used for normal office
purposes at no more than 80(degree) FDB/50% RH when the outside ambient
temperature is 95(degree) FDB/75(degree) FWB and no less than 70(degree) FDB
when the outside ambient temperature is 0(degree)F. Landlord shall not be
responsible (a) if the normal operation of the Building heating, air
conditioning and ventilation system shall fail to provide heated and outside air
at temperatures, pressures or degrees of humidity, or in volumes or velocities
that accord with the standards provided for in Section 44A or this Section 44C,
(i) in any portion of the Premises which shall have an electrical load in excess
of 2.8 xxxxx (9.5 BTU/HR-SF2) per square foot of rentable area in the Premises
for all purposes (including lighting and power)' or which shall have a human
occupancy factor in excess of one (1) person per one hundred twenty-five (125)
square feet of rentable area in the Premises (the average electrical load and
human occupancy factors for which the Building air conditioning system is
designed), or (ii) because of any rearrangement of partitioning or other
improvements made or performed by or on behalf of Tenant or any person claiming
through or under Tenant; or (b) for failure to meet such standards due to a
substantial change in the outside weather conditions, provided the duration of
such failure does not exceed the reasonable period required to adjust the
heating, air-conditioning and ventilation system. Whenever such heating, air
conditioning and ventilation system is in operation, Tenant agrees to cause all
windows of the Premises to be kept closed, and to draw the blinds or other
window coverings as may be necessary for the proper operation of such heating,
air conditioning and ventilation system. Tenant agrees to cause all the windows
of the Premises to be closed whenever the Premises are not occupied. Tenant
shall cooperate fully with Landlord at all times and abide by all regulations
8
and requirements which Landlord may prescribe for the proper functioning and
protection of the heating, air conditioning and ventilation system. In addition
to any and all other rights and remedies which Landlord may invoke for a
violation or breach of any of the provisions of this Article 44, Landlord may
discontinue furnishing services under this Article 44 during the period of such
violation or breach, and such discontinuance shall not 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 obligations under this
Lease, or impose any liability upon Landlord or Landlord's agents. Tenant
understands that any subsequent rearrangement of partitioning after initial
installation which interferes with normal operation of said systems or the use
of computer or data processing machines or other machines and equipment may
require changes in said systems or in the ducts through which the same operate,
and Tenant accordingly covenants and agrees that any changes so occasioned shall
be made only with Landlord's prior consent and in accordance with the provisions
of this Lease.
CLEANING:
45. A. Provided Tenant shall keep the Premises in good order,
Landlord, at Landlord's expense, shall cause the Premises, including the
exterior and the interior of the windows thereof (subject to Tenant maintaining
unrestricted access to such windows), but excluding any portions of the Premises
used for the storage, preparation, service or consumption of food or beverages,
to be cleaned, substantially in accordance with the standards set forth in
Exhibit C annexed hereto. Tenant shall pay to Landlord on demand Landlord's
charges for cleaning work in the Premises or the Building required because of
(i) misuse or neglect on the part of Tenant or its agents, employees,
contractors, subcontractors or visitors, (ii) use of portions of the Premises
for preparation, serving, or consumption of food or beverages, data processing
or computer operations, private lavatories or toilets, or other special purposes
requiring greater or more difficult cleaning work than office areas, (iii)
interior glass surfaces, (iv) non-building standard materials or finishes
installed by Tenant or at its request and (v) increases in frequency or scope in
any of the items set forth on Exhibit C as shall have been requested by Tenant.
Tenant shall also pay to Landlord on demand, Landlord's charges for removal from
the Premises and the Building of (i) so much of any refuse and rubbish of Tenant
as shall exceed that normally accumulated daily in the routine of ordinary
business office occupancy and (ii) all of the refuse and rubbish of Tenant s
machines and of any eating facilities requiring special handling. Landlord and
its cleaning contractor and their employees shall have access to the Premises at
all times except between 8:00 A.M. and 5:30 P.M. on Business Days and, to the
extent that it will not unreasonably interfere with the operation of Tenant's
business, during business hours, and the use of Tenant's light, power and water
in the Premises as may be reasonably required for the purpose of cleaning the
Premises.
B. If Tenant is permitted hereunder to and does have a separate area
for the storage, preparation, service or consumption of food or beverages in the
Premises, Landlord, at Tenant s expense, shall cause all portions of the
Premises so used to be cleaned daily in a manner satisfactory to Landlord, and
to be exterminated against infestation by vermin, roaches or rodents regularly
and, in addition, whenever there shall be evidence of any infestation.
C. The cleaning services required to be furnished by Landlord pursuant
to this Section may be furnished by a contractor or contractors employed by
Landlord,
9
and Tenant agrees that Landlord shall not be deemed in default of any of its
obligations under this Article 45 unless such default shall continue for an
unreasonable period of time after notice from Tenant to Landlord setting forth
the specific nature of such default.
ELECTRICITY:
46. A. Landlord, at its expense, subject to the provisions of this
Article, shall furnish Tenant with all electrical energy reasonably required in
connection with the use and occupancy of the Premises. So long as the furnishing
of such electrical energy is included in the Fixed Rent on a so-called "rent
inclusion" basis in accordance with this Article 46, such in Landlord s services
which shall not levy a special electrical energy on a meter is in accordance
electrical energy shall be included are covered by Fixed Rent, and Landlord
charge on Tenant by measuring such electrical or otherwise.
B. The amount of Fixed Rent set forth above presently attributed to
the furnishing of electrical energy is the annual sum of $37,257.00.
C. Landlord will furnish electrical energy to Tenant in the Premises,
for Tenant's reasonable use of normal office equipment and such lighting,
electrical appliances and other machines and equipment as Landlord may
reasonably permit to be installed in the Premises. At Landlord's option from
time to time, an electrical engineer or utility consultant selected by Landlord
shall make a survey of the electric lighting and power load to determine the
average monthly electrical energy consumption in the Premises. Such
determinations shall take into account, among other things, any special
electrical requirements of Tenant and use by Tenant of electric energy at times
other than business hours on Business Days. The findings of the engineer or
consultant as to the proper Fixed Rent increase based on such average monthly
electric consumption shall be binding upon the parties subject to adjustment as
hereinafter provided. In no event shall the Fixed Rent or any portion of the
Fixed Rent attributable to the furnishing of electrical energy ever be reduced
by operation of this Section 46C. Any such increase resulting from a survey
shall be effective, and shall be at the Electric Rate effective, as of the date
the change of connected power load or electrical energy consumption occurred (as
determined by Landlord's electrical consultant). The initial unpaid amount of
such increase shall be paid within ten (10) days after Landlord furnishes Tenant
with a statement thereof. Thereafter, each such increase (adjusted to a monthly
basis) shall be added to the monthly installments of Fixed Rent.
D. If the Electric Rates after the date hereof shall be increased or
decreased, then the sum included in Fixed Rent by reason of this Article shall
be increased or decreased, as the case may be, by the same percentage as such
change in the Electric Rates, retroactive to the date of such increase or
decrease in such Electric Rates, and the amount payable from the effective date
of such increase to the last day of the month in which Tenant shall be billed
therefor shall be paid within 10 days after Landlord furnishes Tenant with a
statement thereof; provided that in no event shall Fixed Rent be reduced below
the amount payable in accordance with this Lease.
E. Tenant s use of electrical energy shall never exceed the capacity
of the then existing feeders to the Building or the then existing risers or
wiring installation. Any
10
additional riser or risers to supply Tenant's electrical requirements and all
other equipment proper and necessary in connection therewith upon request of
Tenant will be installed by Landlord at Tenant's sole cost and expense, if in
Landlord s judgment the same will not cause or create a hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere
with or disturb other tenants. Rigid conduit only will be allowed. In order to
insure that such electrical capacity is not exceeded and to avert possible
adverse effect upon the Building s electrical system, Tenant shall not, without
the prior consent of Landlord, make or perform or permit any alteration to
wiring installations or other electrical facilities in or serving the Premises
or any additions to the electrical fixtures, business machines or office
equipment or appliances (other than typewriters, personal computers, facsimile
machines and similar low energy consuming office machines) in the Premises which
utilize electrical energy. Should Landlord grant such consent, all additional
risers or other equipment required therefor shall be provided by Landlord and
the cost thereof shall be paid by Tenant within ten (10) days after being billed
therefor. Landlord, its agents and engineers and consultants may survey the
electrical fixtures, appliances and equipment in the Premises and Tenant's use
of electrical energy therein from time to time to determine whether Tenant is
complying with its obligations under this Article 46. All such surveys shall be
made at the sole cost and expense of Landlord. Each increase in the Fixed Rent
under this Article 46 shall be effective on the date such additional electrical
energy is made available to Tenant.
F. In the event Tenant shall dispute any findings under this Article
of the engineer or consultant designated by Landlord, Tenant may, within 30 days
of receiving notice of such findings, designate by notice to Landlord an
independent engineer or utility consultant to make, at Tenant's sole cost and
expense, another determination of the increased average monthly electrical
consumption or the value to Tenant of the potential additional energy to be made
available to Tenant, as the case may be. If the electrical engineer or utility
consultant selected by Tenant shall determine that such increased consumption or
value, as the case may be, of such electrical energy is less than as determined
by Landlord's engineer or consultant and the two are unable to adjust such
difference within 20 days after the determination made by Tenant's engineer or
consultant is delivered to Landlord, the dispute shall be resolved by
arbitration in accordance with the rules of the American Arbitration
Association. Pending a final determination pursuant to such arbitration however,
Tenant shall pay to Landlord for such electrical energy based on the
determination of Landlord's engineer or consultants; and if it is determined
that Tenant has overpaid, Landlord shall reimburse Tenant for any overpayment at
the conclusion of such arbitration. In any such arbitration, the third
arbitrator to be appointed shall be an electrical engineer having at least five
years experience in similar matters in New York City. If Tenant shall not
dispute the findings as provided in this Section, the determination by
Landlord's engineer or consultants shall be deemed final and conclusive In no
event shall the Fixed Rent or any portion thereof attributable to the furnishing
of electrical energy ever be reduced by operation of this Section 46F.
G. Landlord shall have no liability to Tenant for any loss, damage or
expense which Tenant may sustain or incur by reason of any change, failure,
inadequacy or defect in the supply or character of the electrical energy
furnished to the Premises or if the quantity or character of the electrical
energy is no longer available or suitable for Tenant's requirements except for
any actual damage suffered by Tenant by reason of any such failure,
11
inadequacy or defect caused by Landlord's negligence, and then only after actual
notice as provided in Article 61
H. The term "Electric Rates" shall be deemed to mean the rates at
which Landlord purchases electrical energy from the public utility supplying
electrical service to the Building, including any surcharges or charges incurred
or taxes payable by Landlord in connection therewith or increase or decrease
thereof by reason of fuel adjustment or any substitutions for such Electric
Rates or additions thereto.
I. Provided that Landlord shall have similarly terminated the
furnishing of electrical energy on a rent inclusion basis to substantially all
other tenants in the Building who are furnished electrical energy on a rent
inclusion basis, Landlord reserves the right to terminate the furnishing of
electrical energy at any time, upon sixty (60) days. prior notice to Tenant or
such shorter notice period as may be imposed by any Legal Requirement or
Insurance Requirement (in which event Landlord will give Tenant such notice as
is possible under the circumstances) If Landlord shall so discontinue the
furnishing of electrical energy, (a) Tenant shall arrange to obtain electrical
energy directly from the public utility company furnishing electrical energy to
the Building, (b) Landlord shall permit the existing feeders, risers, wiring and
other electrical facilities serving the Premises to be used by Tenant for such
purpose to the extent that they are available, suitable, legally permissible and
clean, (c) from and after the effective date of such discontinuance Landlord
shall not be obligated to furnish electrical energy to Tenant, and the Fixed
Rent payable under this Lease shall be reduced to the amount which would have
been then payable as Fixed Rent as of such date but for the amount included
therein pursuant to Section 46(B) attributable to the furnishing of electrical
energy (as such amount may have been adjusted), (d) this Lease shall otherwise
remain in full force and effect and such discontinuance shall be without
liability of Landlord to Tenant except that Tenant shall be entitled to the
abatement or diminution of rent expressly provided in this Section and (e) if
Landlord shall discontinue the furnishing of electrical energy as a result of
any Legal Requirement or Insurance Requirement Landlord shall, at Tenant s
expense, install at locations in the Building selected by Landlord and maintain
any necessary electrical meter equipment, panel boards, feeders, risers, wiring
and other conductors and equipment which may be required to obtain electrical
energy directly from the public utility supplying the same, otherwise Landlord
shall pay the cost of the same. Notwithstanding the foregoing, Landlord shall
endeavor to continue to provide Tenant with electrical energy on a rent
inclusion basis until such time as Tenant shall commence receiving direct
electrical service. Landlord, at its option, before commencing any work to be
paid by Tenant hereunder or at any time thereafter, may require Tenant to
furnish to Landlord such security, whether by surety bond issued by a
corporation satisfactory to Landlord in form and amount and licensed to do
business in New York State or otherwise as Landlord shall deem necessary to
assure the payment for such work by Tenant.
J. In the event Landlord elects to purchase capital equipment or make
other capital expenditures to reduce Landlord's cost of electricity, Landlord
shall receive the full benefit of such capital expenditure, and Tenant shall
continue to pay Fixed Rent for electricity, such Fixed Rent to be calculated as
hereinabove described, without regard to the fact that Landlord has reduced its
cost of electricity by virtue of such capital expenditure.
12
WATER:
47. Landlord shall supply reasonably adequate quantities of hot and
cold water to a point or points on the floor on which the Premises are located
for ordinary lavatory and drinking purposes. If Tenant requires, uses or
consumes water for any purpose in addition to ordinary lavatory or drinking
purposes, Landlord may install a water meter and thereby measure Tenant's
consumption of water for all purposes. Tenant shall pay to Landlord the cost of
any such meter and its installation, and Tenant, at Tenant's sole cost and
expense, shall keep any such meter and any such equipment in good working order
and repair. Tenant agrees to pay for water consumed as shown on such meter, and
sewer charges thereon, as and when bills are rendered.
INTERRUPTION OF SERVICES;
HOURS OF BUILDING OPERATION:
48. Landlord reserves the right to stop the service of the elevator,
plumbing, electrical, HVAC, sanitary or mechanical or other service or utility
systems of the Building when necessary by reason of accident, emergency or
mechanical breakdown, requirements of law, or any cause beyond Landlord s
reasonable control, or for repairs, alterations, replacements or improvements,
which, in the judgment of Landlord, are desirable or necessary, until the reason
for such stoppage shall have been eliminated. Landlord shall have no
responsibility or liability to Tenant for failure to supply any such service or
system during such period, except that, if (i) any such failure shall involve an
interruption of such services to the Premises, (ii) Tenant shall have given
Landlord notice of such interruption, and (iii) such interruption shall continue
for ten (10) consecutive days after Tenant shall have given such notice, then,
commencing on the eleventh consecutive day of such interruption, the Fixed Rent
and Additional Rent due hereunder shall be equitably abated on a per diem basis
until such interruption shall be corrected.
ARTICLE 49 - INTENTIONALLY OMITTED
DESIGNATED SUPPLIERS:
50. A. Only Landlord or any one or more persons, firms or corporations
authorized in writing by Landlord shall be permitted to furnish laundry, linen,
towels, bootblacking, barbering, plant care, drinking water, ice and other
similar supplies and services to tenants and occupants of the Building. Landlord
may fix, in its absolute discretion, at any time and from time to time, the
hours during which and the regulations under which such supplies and services
are to be furnished. However, Tenant and its regular office employees may
personally bring food or beverages into the Building for consumption within the
Premises solely by Tenant, its regular office employees and invitees. In all
events, all food and beverages shall be carried in closed containers.
B. Only Landlord or any one or more persons, firms or corporations
authorized in writing by Landlord shall be permitted to act as maintenance
contractor for any waxing, polishing, lamp replacement, cleaning and maintenance
work in the Premises. Nothing herein contained shall prohibit Tenant from
performing such work for itself by use of its regular employees. Landlord may
fix, in its absolute discretion, at any time and from time to time, the
13
hours during which and regulations under which such services are to be
furnished. Landlord expressly reserves the right to exclude from the Building
any person, firm or corporation attempting to furnish any of such services, but
not so authorized by Landlord.
C. Only Landlord or any one or more persons, firms or corporations,
authorized in writing by Landlord shall be permitted to act as contractor or
subcontractor for any work to be performed in accordance with Article 3 of this
Lease. Landlord expressly reserves the right to act as or to designate, at any
time and from time to time, an exclusive construction ` contractor, and Landlord
expressly reserves the right to exclude from the Building any person, firm or
corporation attempting to act as construction contractor in violation hereof. In
the event Tenant shall employ any contractor permitted by this Article 50, such
contractor and any subcontractor shall agree to employ only such materials and
such labor as will not result in labor disputes, strikes or jurisdictional
disputes with other contractors, mechanics, or laborers engaged by Tenant,
Landlord or others. Tenant, upon demand of Landlord, shall cause all materials,
contractors, mechanics or laborers causing such difficulty, strike or dispute to
leave or be removed from the Building immediately Landlord agrees that such
contractor or subcontractor shall have reasonable use of the Building
facilities. Tenant will inform Landlord in writing of the names of any
contractor or subcontractor Tenant proposes to use in the Premises at least ten
(10) days prior to the beginning of work by such contractor or subcontractor.
NO ADDITIONAL SERVICES:
51. Landlord shall not be required to furnish any other services except as
expressly provided in this Lease.
BROKERAGE:
52. Tenant and Landlord represent to each other that, in the negotiation of
this Lease, they dealt with no broker or brokers other than LaSalle Partners and
Coldwell Banker Commercial Real Estate Services. Each party hereby agrees to
indemnify and hold the other party harmless from and against any and all claims,
liabilities, suits, costs and expenses including reasonable attorneys' fees and
disbursements arising cut of any inaccuracy or alleged inaccuracy of the above
representation. Landlord shall have no liability for any brokerage commissions
arising out of a sublease or assignment by Tenant. The provisions of this
Article shall survive the expiration or sooner termination of this Lease.
SUBLETTING AND ASSIGNMENT:
53. A. Tenant may, without Landlord's consent:
(a) Assign this Lease to a corporation or other business entity then
having a net worth at least equal to that of Tenant prior to such merger,
consolidation or transfer (herein called a "successor corporation.) into or with
which, Tenant shall be merged or consolidated or to which substantially all of
Tenant's assets may be transferred, provided that such successor corporation
shall have effectively assumed all of Tenant's obligations and liabilities,
including those under this Lease, by operation of law, or appropriate instrument
of merger, consolidation or transfer;
14
(b) Sublet any part(s) of the Premises to a corporation or other
business entity (herein called a `related corporation.) which shall control, be
controlled by, or be under common control with, Tenant, but only for so long as
said sublessee shall control, be controlled by, or be under the common control
with, Tenant;
(c) Permit any related corporation of Tenant to use the Premises, or
any part thereof, but only for so long as said occupant continues to be a
related corporation; and
(d) Assign this Lease to a related corporation of Tenant.
Tenant shall notify Landlord of each such assignment, sublease permit within ten
(10) days thereafter.
B. Concurrently with assigning this Lease to a successor corporation,
making a sublease to a related corporation, or permitting a related corporation
to occupy all or part of the Premises, or assigning this Lease to a related
corporation (all as set forth in (a), (b), (c) or (d) above, as the case may
be), Tenant shall be required to submit proof that the successor corporation
comes within the definition thereof, or that the sublessee, occupant or assignee
is a related corporation, all in form reasonably satisfactory to Landlord. As
used herein in defining related corporation, control must include over 50% of
the stock or other voting interest of the controlled corporation, or other
business entity. Similar proof that such sublessee, occupant or assignee
continues to be a related corporation shall be furnished by Tenant to Landlord
within fifteen (15) days after written request therefor.
C. Notwithstanding anything contained in Article 11, but subject to
the rights of Tenant under Section A above, in the event that, at any time or
from time to time prior to or during the Term, Tenant shall desire to sublet all
or part of the demised premises, Tenant shall submit to Landlord a written
request for Landlord's consent to such subletting, which request shall contain
or be accompanied by the following information: (1) the name and address of the
proposed subtenant; (ii) a description identifying the space to be sublet; (iii)
the terms and conditions of the proposed subletting; (iv) the nature and
character of the business of the proposed subtenant and of its proposed use of
the portion(s) of the demised premises proposed to be sublet; and (v) current
financial information and any other information as Landlord may reasonably
request with respect to the proposed subtenant. Landlord shall have the option,
to be exercised by notice given to Tenant within thirty (30) days after the
later of (a) receipt of Tenant `a request for consent or (b) receipt of such
further information as Landlord may reasonably request pursuant to clause (v)
above to obtain a sublet from Tenant of the portion(s) of the demised premises
proposed to be sublet, including Tenant's leasehold improvements therein, upon
the terms and conditions hereinafter set forth as of a date to be specified in
said notice (the "Leaseback Date') which shall be not earlier then one (1) day
before the effective date of the proposed subletting or later than forty-five
(45) days after said effective date, in which event Tenant shall deliver
possession of such portion(s) of the demised premises to Landlord on or before
the Leaseback Date.
D. (a) If Landlord shall exercise its option, pursuant to Section C
above to lease back the portion(s) of the demised premises to be sublet,
together with all leasehold improvements made by Tenant therein (herein
collectively called the Leaseback Area-
15
), Tenant shall be deemed automatically to have subleased the Leaseback Area to
Landlord (herein sometimes called "Backleasing" or "Backlease") for the
remaining balance of the term (the "Backlease Term') for Fixed Rent at the same
annual rate applicable to such Leaseback Area, and with Additional Rent, all
prorated to the Leaseback Area, and otherwise on the same terms, covenants and
conditions, as are provided in this Lease, except such as by their nature or
purport are inapplicable or inappropriate to such Backleasing or are
inconsistent with the further provisions of the following Subsections of this
Article 53, which further provisions shall be deemed to be part of the terms,
covenants and conditions of such Backleasing.
(b) Landlord may underlet the Leaseback Area or parts thereof
separately or in combinations, as Landlord sees fit. The Backlease may be
assigned by Landlord to any person, including Tenant's proposed subtenant,
without Tenant's consent but such assignment shall not be effective unless the
transferee executes and delivers to Tenant a written agreement assuming all of
Landlord's obligations under the Backlease, and in such event Landlord shall
continue to be fully responsible jointly and severally with such assignee for
all of Landlord's obligations under the Backlease. Tenant shall not be
responsible for furnishing to the Leaseback Area or the occupants thereof any of
the services undertaken in this Lease to be furnished by Landlord or for the
making of any repairs or alterations, or the incurrence of any expense with
respect to the Leaseback Area during the Backlease Term, but shall only make
available that which it receives from Landlord. At the expiration or earlier
termination of the Backlease Term, Landlord shall have no obligation to restore
or alter or improve the Leaseback Area, and Tenant shall take possession of the
Leaseback Area in the condition that the same shall then be in, provided only
that all facilities necessary for the use and occupancy of the Leaseback Area,
or any subdivisions thereof as they then exist, such as ceilings, lighting
fixtures, electrical outlets, and heating, ventilating and air conditioning
systems, shall be in place and in good working order subject to reasonable wear
and tear, and the Leaseback Area shall be otherwise in good repair and
tenantable condition for general office use subject to reasonable wear and tear.
(c) Tenant shall furnish to Landlord or its assignee or subsubtenant
under the Backlease any consents or approvals requested under the Backlease so
long as (I) Landlord furnishes such consents or approvals to Tenant and (II)
Tenant incurs no expense by reason of any such consent or approval.
(d) At the request of either party, Landlord and Tenant shall mutually
execute, acknowledge and deliver an instrument or instruments of sublease to
confirm and separately set forth the demise, rent, terms, conditions and other
provisions of the Backleasing of any Leaseback Area as may be appropriate.
E. If Landlord shall not exercise any of its options under Section C
above, Landlord shall not unreasonably withhold or delay its consent to the
proposed subletting referred to in Tenant's notice given pursuant to Section C
above, provided that the following further conditions shall be fulfilled:
(a) there shall be no advertisement or public communication of any
kind whatever relating to the proposed subletting which mentions or refers to a
rental rate (but nothing herein contained shall be deemed to prohibit Tenant
from negotiating or consummating a sublease at a lesser rate of rent) or to any
other matter which directly or indirectly might
16
adversely reflect on the dignity or prestige of the Building; without limiting
the foregoing restrictions, no such advertisement or other public communication
shall be released without Landlord's prior written approval, which shall not be
unreasonably withheld or delayed;
(b) no space shall be sublet to another tenant, or to a related
corporation of any other tenant or to any other occupant of the Building, if
Landlord shall then have available for rent comparable space in the Building;
(c) no subletting shall be to a person or entity which has a financial
standing, is of a character, is engaged in a business, or proposes to use the
sublet premises in a manner not in keeping with the standards in such respects
of the other tenancies in the Building;
(d) the subletting shall be expressly subject to all of the
obligations of Tenant under this Lease and, without limiting the generality of
the foregoing, the sublease shall impose at least the same restrictions and
conditions with respect to use as are contained in Article 2 and shall
specifically provide that the proposed subtenant shall be permitted no more than
one (1) further subletting of all or any part of the sublet premises;
(e) that part, if any, of the term of any such sublease or any renewal
or extension thereof which shall extend beyond a date one day prior to the
expiration or earlier termination of the term shall be a nullity;
(f) the subletting shall not have the effect, or give the utility
serving the Building with electricity cause to claim, that Landlord will not be
permitted to serve the demised premises or the portion thereof so sublet, or any
of the other leased portions of the Building, with electricity, on a "rent
inclusion' basis as provided for herein;
(g) any such subletting will result in shore being no more than four
(4) occupants on the floor on which the premises to be sublet are situated other
than Tenant;
(h) Tenant shall pay all costs that may be incurred by Landlord in
connection with said sublease, including the costs of making investigations as
to the acceptability of a proposed subtenant and the reasonable fees of Landlord
attorneys;
(i) the proposed subtenant shall not be a person who was in active
negotiations with Landlord for the rental of any space in the Building prior to
Tenant Tenant's advertisement of the space for sublet;
(j) Landlord shall be furnished with a duplicate original of the
sublease within ten (10) days after the date of its execution;
(k) Tenant shall pay to Landlord a sum equal to fifty (50%) percent of
(a) any Fixed Rent and Additional Rent or other consideration paid to Tenant by
any subtenant which is in excess of the Fixed Rent and Additional Rent then
being paid by Tenant to Landlord pursuant to the terms hereof, and (b) any other
profit or gain realized by Tenant from any such subletting All sums payable
hereunder by Tenant shall be paid to Landlord as additional rent immediately
upon receipt thereof by Tenant. If only a part of the demised premises is
sublet,
17
then the rent paid therefor by Tenant to Landlord shall be deemed to be
that fraction thereof that the area of said sublet space bears to the entire
demised premises and
(l) there shall be no default by Tenant under any of the terms,
covenants and conditions of this Lease at the time that Landlord's consent to
any such subletting is requested or on the date of the commencement of the term
of any such proposed sublease.
F. No assignment of this Lease shall be binding upon Landlord unless
the assignee shall execute, acknowledge and deliver to Landlord (a) a duplicate
original instrument of assignment in form and substance satisfactory to
Landlord, duly executed by Tenant, and (b) an agreement, in form and substance
satisfactory to Landlord, duly executed by the assignee, whereby the assignee
shall unconditionally assume observance and performance of, and agree to be
bound by all of the terms, covenants and conditions of this Lease on Tenant s
part to be observed or performed, including, without limitation, the provisions
of this Article 53 with respect to all future assignment.; but the failure or
refusal of the assignee to execute or deliver such an agreement shall not
release the assignee from its liability for the obligations of Tenant hereunder
assumed by acceptance of the assignment of this Lease.
G. If this Lease be assigned, whether or not in violation of the terms
of this Lease, Landlord may collect rent from the assignee. If the demised
premises or any part thereof be sublet or be used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord 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, Landlord may apply
the net amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Article 11 or this Article, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from the further
performance by Tenant of Tenant.. obligations under this Lease. The consent by
Landlord 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 Landlord to any other or further
assignment, transfer, encumbering or subletting. 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, 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 Landlord required under Article 11 or this Article, and it is
understood that any such listing shall constitute a privilege extended by
Landlord, revocable at Landlord's will by notice to Tenant. Tenant agrees to pay
to Landlord reasonable attorneys fees and disbursements incurred by Landlord in
connection with any proposed assignment of this Lease or any proposed subletting
of the demised premises or any part thereof. 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 Landlord
from any person other than Tenant, nor any application of any such rent as
provided in this Article shall, under any circumstances except as set forth in
Section A above, relieve, impair, release or discharge Tenant of its obligations
fully to perform the terms of this Lease on Tenant's part to be performed.
18
H. If Tenant or any assignee of Tenant is a corporation, the terms
"assign" and "assignment" shall, for purposes of this lease, be deemed to
include the transfer of a majority of the stock of Tenant or such assignee of
Tenant.
I. In the event Tenant desires to sublet the Premises or any portion
thereof or assign this Lease, it shall designate Landlord or the then managing
agent of the Building, at Landlord's option, as Tenant Tenant's exclusive agent
for a period of at least six (6) months to effect such sublease or assignment
and shall pay Landlord or such managing agent, as the case may be, a reasonable
brokerage commission computed in accordance with the usual rates charged by
Landlord or such managing agent.
ESTOPPEL CERTIFICATE:
54. A. Tenant shall at any time and from time to time upon not less than
ten (10) days' prior notice from Landlord, execute, acknowledge and deliver to
Landlord a statement in writing in substantially the form set forth in Exhibit E
attached hereto and made a part hereof which statement shall set forth the
Commencement Date, the Expiration Date and the Fixed Rent and certifying (i)
that this Lease is unmodified and in full force and effect (or if there has been
any modification, that the same is in full force and effect as modified and
stating the modification, (ii) the dates to which the Fixed Rent and Additional
Rent have been paid in advance, if any, (iii) whether or not to the knowledge of
Tenant, Landlord is in default in performance of any of its obligations under
this Lease and, if so, specifying each such default of which Tenant may have
knowledge, (iv) whether Tenant has accepted possession of the Premises, (v)
whether Tenant has made any claim against Landlord under this Lease and, if so,
the nature thereof and the dollar amount, if any, of such claim, (vi) whether
there exist any offsets or defenses against enforcement of any of the terms of
this Lease upon the part of Tenant to be performed, and, if so, specifying the
same, and (vii) such further information with respect to this Lease or the
Premises as Landlord may reasonably request, it being intended that any such
statement delivered pursuant hereto shall be binding upon Tenant and may be
relied upon by Landlord and by any prospective purchaser of the Real Property
and/or the Building or any part thereof or of the interest of Landlord in any
part thereof, by any mortgagee or prospective mortgagee thereof, by any lessor
or prospective lessor thereof, by any lessee or prospective lessee thereof, or
by any prospective assignee of any mortgage thereof. The failure to deliver such
statement within such time shall be conclusive upon the Tenant that this Lease
is in full force and effect, without modification except as may be represented
by Landlord, there are no uncured defaults by Landlord and that not more than
one (1) month's rental has been paid in advance, that the Tenant has accepted
the Premises in their current condition and the Tenant shall be estopped from
asserting any defaults against Landlord at that time.
B. Tenant will furnish to Landlord: (a) within one hundred twenty
(120) days after the end of each fiscal year of Tenant and each guarantor of
this Lease, respectively, annual consolidated financial statements (balance
sheets and profit and loss statements) of Tenant and each guarantor,
respectively, in comparative form, certified by an independent certified public
accountant of recognized standing (selected by Tenant or such guarantor, as the
case may be), if such certified statements are delivered to shareholders or any
other party, and otherwise certified by the chief financial officer of Tenant or
such guarantor, as the case may be; and (b) such other information regarding the
condition (financial or otherwise)
19
of Tenant and each guarantor as Landlord may reasonably request. Each financial
statement of Tenant and each guarantor shall be accompanied by a certificate of
its chief financial officer that (a) he has reviewed this Lease and has obtained
no knowledge of any default hereunder or of any condition or event which, with
notice or lapse of time or both, would constitute a default hereunder (or, if
any such default, condition or event shall exist, the nature and period of
existence thereof and the action to be taken by Tenant or such guarantor with
respect thereto), and (b) no material adverse change in the business, condition
(financial or otherwise), operations or prospects of Tenant or its affiliates or
such guarantor or its affiliates has occurred during the period covered by such
statement.
SUBORDINATION AND ATTORNMENT:
55. A. This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to (a) all present and future ground leases, operating
leases, superior leases, overriding underlying leases and grants of term of the
land on which the Building stands ("Land") and the Building or any portion
thereof (collectively, including the applicable items set forth in Subdivision
(d) of this Article 55, (the "Superior Lease"), (b) all mortgages and building
loan agreements, including leasehold mortgages and spreader and consolidation
agreements, which may now or hereafter affect the Land, the Building or the
Superior Lease (collectively, including the applicable items set forth in
Subdivisions (c) and (d) of this Article, the "Superior Mortgage") whether or
not the Superior Mortgage shall also cover other lands or buildings or leases
except that a mortgage on the Land only shall not be a Superior Mortgage so long
as there is in effect a Superior Lease which is not subordinate to such
mortgage, (c) each advance made or to be made under the Superior Mortgage, and
(d) all amendments, modifications, supplements, renewals, substitutions,
refinancings and extensions of the Superior Lease and the Superior Mortgage and
all spreaders and consolidations of the Superior Mortgage. The provisions of
this Section shall be self-operative and no further instrument of subordination
shall be required. Tenant shall promptly execute and deliver, at its own
expense, any instrument, in recordable form if requested, that Landlord, the
Superior Lessor or the Superior Mortgagee may reasonably request to evidence
such subordination; and if Tenant fail. to execute, acknowledge or deliver any
such instrument within ten (10) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact,
coupled with an interest, to execute, acknowledge and deliver any such
instruments for and on behalf of Tenant. The Superior Mortgagee may elect that
this Lease shall have priority over its Superior Mortgage and, upon notification
by the Superior Mortgagee to Tenant, this Lease shall be deemed to have priority
over such Superior Mortgage, whether this Lease is dated prior to or subsequent
to the date of such Superior Mortgage. If, in connection with the obtaining,
continuing or renewing of financing for which the Building, Land or the interest
of the lessee under the Superior Lease represents collateral, in whole or in
part, the Superior Mortgagee shall request reasonable modifications of this
Lease as a condition of such financing, Tenant will not unreasonably withhold
its consent thereto, provided that such modifications do not materially and
adversely increase the obligations of Tenant hereunder, diminish the rights of
Tenant under this Lease, or cause a change in Tenant's financial obligations
hereunder.
B. Landlord hereby notifies Tenant that this Lease may not be
cancelled or surrendered, or modified or amended so as to reduce the rent,
shorten the Term or adversely affect in any other respect to any material extent
the rights of Landlord hereunder and
20
that Landlord may not accept prepayments of any installments of rent except for
prepayments in the nature of security for the performance of Tenant's
obligations hereunder without the consent of any senior interest holder in each
instance, except that said consent shall not be required to the institution of
prosecution of any action or proceedings against Tenant by reason of a default
on the part of Tenant under the terms of this Lease.
C. If, at any time prior to the termination of this Lease, any senior
interest holder or any other person or the successors or assigns of the
foregoing (collectively referred to as "Successor Landlord") shall succeed to
the rights of Landlord under this Lease, Tenant agrees, at the election and upon
request of any such Successor Landlord, to fully and completely attorn to and
recognize any such Successor Landlord, as Tenant's landlord under this Lease
upon the then executory terms of this Lease; provided such Successor Landlord
shall agree in writing to accept Tenant s attornment. The foregoing provisions
of this Section shall inure to the benefit of any such Successor Landlord, shall
apply notwithstanding that, as a matter of law, this Lease may terminate upon
the termination of the Superior Lease, shall be self-operative upon any such
demand, and no further instrument shall be required to give effect to said
provisions. Upon the request of any such Successor Landlord, Tenant shall
execute and deliver, from time to time, instruments satisfactory to any such
Successor Landlord in recordable form if requested, to evidence and confirm the
foregoing provisions of this Section, acknowledging such attornment and setting
forth the terms and conditions of its tenancy. Tenant hereby constitutes and
appoints Landlord attorney-in-fact for Tenant to execute any such instrument,
for twenty (20) days after notice, for and on behalf of Tenant, such appointment
being coupled with an interest. Upon such attornment this Lease shall continue
in full force and effect as a direct lease between such Successor Landlord and
Tenant upon all of the then executory terms of this Lease except that such
"Successor Landlord shall not be (a) liable for any previous act or omission or
negligence of Landlord under this Lease; (b) subject to any counterclaim,
defense or offset, not expressly provided for in this Lease and asserted with
reasonable promptness, which theretofore shall have accrued to Tenant against
Landlord; or (c) bound by any previous modification or amendment of this Lease
made after the granting of such senior interest, or by any previous prepayment
of more than one month's rent, unless such modification or prepayment shall have
been approved in writing by any senior interest holder through or by reason of
which the Successor Landlord shall have succeeded to the rights of Landlord
under this Lease. Nothing contained in this Section shall be construed to impair
any right otherwise exercisable by any such owner, holder or lessee.
Notwithstanding the foregoing, Landlord shall use its best efforts (without
being obligated to incur any costs or expenses) to obtain a non-disturbance
agreement running to the benefit of Tenant from any current or future Superior
Lessor or Superior Mortgagee.
D. If any act or omission by Landlord would give Tenant the right,
immediately or after lapse of time, to cancel or terminate this Lease or to
claim a partial or total eviction, Tenant will not exercise any such right until
(a) it shall have given written notice of such act or omission to each Superior
Mortgagee and each Superior Lessor, whose name and address shall have previously
been furnished to Tenant, by delivering notice of such act or omission addressed
to each such party at its last address so furnished, (b) any period of time to
which Landlord would be entitled under this Lease to remedy such act or omission
shall have expired, (c) such Superior Lessor or Superior Mortgagee shall have
become entitled under such senior interest to remedy the same, and (d) an
additional period of sixty (60) days shall have
21
elapsed (or' if such act or omission is not capable of being remedied in such 60
day period, any period of time necessary to remedy such act or omission shall
have elapsed).
NON-LIABILITY AND INDEMNIFICATION:
56. A. Neither Landlord nor Landlord's agents, officers, directors,
shareholders, partners or principals (disclosed or undisclosed) shall be liable
to Tenant or Tenant's agents, employees, contractors, invitees or licensees or
any other occupant of the Premises, and Tenant shall save Landlord, any
mortgagee of the Real Property and/or the Building and their respective agents,
employees, contractors, officers, directors, shareholders, partners and
principals (disclosed or undisclosed) harmless from any loss, cost, liability,
claim, damage, expense (including reasonable attorneys fees and disbursements),
penalty or fine incurred in connection with or arising from any injury to Tenant
or to any other person or for any damage to, or loss (by theft or otherwise) of,
any of Tenant s property or of the property of any other person, irrespective of
the cause of such injury, damage or loss (including the acts or negligence of
any tenant or of any owners or occupants of adjacent or neighboring property or
caused by operations in construction of any private public or quasi-public work)
unless due to the negligence of Landlord or Landlord's agents, it being
understood that no property, other than such as might normally be brought upon
or kept in the Premises as incidental to the reasonable use of the Premises for
the purposes herein permitted will be brought upon or be kept in the Premises;
provided, however, that even if due to any such negligence of Landlord or
Landlord's agents, Tenant waives, to the full extent permitted by law, any claim
for consequential damages in connection therewith and Landlord and Landlord s
agents shall not be liable, to the extent of Tenant's insurance coverage, for
any loss or damage to any person or property even if due to the negligence of
Landlord or Landlord's agents. Any building employee to whom any Property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor Landlord's agents
shall be liable for any loss of or damage to any such property by theft or
otherwise.
B. Neither any (a) performance by Landlord, Tenant or others of any
repairs, alterations or improvements in or to the Real Property, Building or
Premises, (b) failure of Landlord or others to make any such repairs or
improvements, (c) damage to the Building, Premises or Tenant's property in the
Premises, (d) any injury to any persons, caused by other tenants or persons in
the Building, or by operations in the construction of any private, public or
quasi-public work, or by any other cause, (e) latent defect in the Building or
Premises, nor (f) inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business by reason of any of the events or occurrences
referred to in the foregoing subdivisions (a) through (f) shall impose any
liability on Landlord or Landlord's agents to Tenant, other than such liability
as may be required or imposed upon Landlord by law for Landlord's negligence or
the negligence of Landlord's agents in the operation or maintenance of the
Building or for the breach by Landlord of any express covenant of this Lease on
Landlord's part to be performed or observed.
C. Tenant hereby indemnifies and agrees to hold Landlord harmless from and
against any and all loss, cost, liability, claim, damage, fine, penalty and
expense including reasonable attorneys' fees and disbursements in connection
with or arising from (a) any default by Tenant in the performance or observance
of any of the terms of this Lease on Tenant's part to be performed or observed,
or (b) the use or occupancy of the Premises by Tenant
22
or any person claiming under Tenant, or (c) any acts, omissions or negligence of
Tenant or any such person, or the contractors, agents, employees, invitees or
licensees of Tenant or any such person, in or about the Premises or the Real
Property either prior to, during or after the expiration of, the Term. If any
action or proceeding shall be brought against Landlord or Landlord's agents, or
any mortgagee of the Real Property and/or the Building based upon any such claim
and if Tenant, upon notice from Landlord, shall cause such action or' proceeding
to be defended at Tenant's expense by counsel reasonably satisfactory to
Landlord, without any disclaimer of liability by Tenant in connection with such
claim, Tenant shall not be required to indemnify Landlord, Landlord's agents or
mortgagee for attorneys fees and disbursements in connection with such action or
proceeding.
D. Tenant shall pay to Landlord as Additional Rent, within ten (10)
days following rendition by Landlord to Tenant of bills or statements therefor,
sums equal to all losses, costs, liabilities, claims, damages, fines, penalties
and expenses referred to in Section C above.
E. Notwithstanding anything to the contrary contained herein, Tenant
shall look only to Landlord's estate in the Premises (or the proceeds thereof)
for the satisfaction of Tenant's remedies for the collection of a judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default by Landlord hereunder, and no other property or assets of
Landlord or its agents, directors, officers, shareholders, partners or
principals (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 Landlord and Tenant hereunder or
under law or Tenant Tenant's use or occupancy of the Premises or any other
liability of Landlord to Tenant.
F. The provisions of this Article 56 shall survive the expiration or
sooner termination of the term of this lease.
INSURANCE:
57. Tenant shall maintain personal injury and property damage insurance,
under a policy of general public liability insurance, with such limits as may
reasonably be requested by Landlord from time to time, but not less than
$5,000,000 in respect to bodily injury or death arising out of any one
occurrence, and the policy or policies evidencing such insurance shall include
Landlord and such parties as Landlord shall designate as an additional insured.
All policies required to be maintained pursuant to the provisions of this Lease
shall be issued by an insurance company or companies having a Best's rating of
at least A/XII and authorized to do business in the State of New York. All
policies required to be maintained pursuant to the provisions of this Lease
shall have a written undertaking from the insurer to notify all insureds
thereunder at least thirty (30) days prior to cancellation thereof. Upon
request, Tenant shall furnish Landlord with a certificate of insurance
evidencing any such policy or a certificate naming Landlord as an additional
insured. Such certificate or certificates of insurance shall specifically have
the indemnity clause referred to in Article 56(C) typed thereon evidencing that
said "hold harmless" clause has been insured. Tenant's failure to provide and
keep in force the aforementioned insurance shall be regarded as a material
default hereunder entitling Landlord to exercise any or all of the remedies
provided in this Lease in the event of Tenant's default.
23
Tenant shall procure, maintain and place such insurance and pay all premiums and
charges therefor and upon failure to do so Landlord may, but shall not be
obligated to, procure, maintain and place such insurance or make such payments,
and in such event Tenant agrees to pay the amount thereof, plus interest at the
Interest Rate, to Landlord on demand and said sum shall be in each instance
collectible as Additional Rent on the first day of the month following the date
of payment by Landlord.
USE OF COMMON AREAS:
58. Tenant shall at no time leave any merchandise, supplies, materials or
refuse in the hallways or other common portions of the Building or in any other
area of the Building other than the demised premises. Tenant covenants that all
garbage and refuse shall be kept in proper containers, securely covered, until
removed from the Building so as to prevent the escape of objectionable fumes and
odors and the spread of vermin, and Tenant further covenants that no refuse
and/or garbage shall be permitted to remain on the sidewalks adjacent to the
Building
REPEATED DEFAULTS:
59. If Tenant shall default (i) in the timely payment of Fixed Rent or
Additional Rent, and any such default shall continue beyond any applicable grace
period and shall be repeated for three (3) consecutive months or for a total of
five (5) months in any period of twelve (12) months or (ii) more than three (3)
times in any period of six (6) months, in the performance of any other term of
this Lease to be performed by Tenant, then, notwithstanding that such defaults
shall be deemed to be deliberate and Landlord thereafter may serve the said
three (3) days' notice of termination referred to in Article 17 upon Tenant
without affording to Tenant an opportunity to cure such further default.
TRANSFER AFTER BANKRUPTCY:
60. A. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. SS 101 et seq. (the "Bankruptcy
Code"), any and all consideration payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Landlord, shall be
and remain the exclusive property of Landlord and shall not constitute property
of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code.
Any and all monies and other consideration constituting Landlord's property
under the preceding sentence not paid or delivered to Landlord shall be held in
trust for the benefit of Landlord and be promptly paid to or turned over to
Landlord.
B. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant then notice of such proposed assignment, setting forth (i)
the name and address of such person, (ii) all of the terms and conditions of
such offer, and (iii) the adequate assurance to be provided Landlord to assure
such person person's future performance under this Lease, including, without
limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy
Code, shall be given to Landlord by Tenant no later than twenty (20) days after
receipt by Tenant but in any event no later than ten
24
(10) days prior to the date that Tenant shall make application to a court of
competent jurisdiction for authority and approval to enter into such assignment
and assumption, and Landlord shall thereupon have the prior right and option, to
be exercised by notice to Tenant given at any time prior to the effective date
of such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the assignment of this
Lease.
NOTICES:
61. A. Notice shall be deemed to have been rendered or given on (a) the
date delivered, if delivered by hand, (b) one (l) Business Day after the date
mailed if mailed from outside the Borough of Manhattan by an overnight courier,
or (c) three (3) Business Days after the date mailed, if mailed as hereinafter
provided. Except as otherwise expressly provided in this Lease or by any legal
requirement, 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 sent and addressed
as follows:
(a) If to Tenant, then, at the option of Landlord,
(i) sent by United States registered or certified mail, return
receipt requested, postage prepaid, addressed to Tenant's address
at the Building with a copy to Olwine, Connelly, Chase, X'Xxxxxxx
& Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx
X. Xxxxxxxx, Esq. or to such other address as Tenant may designate
for such purpose by like notice,
(ii) sent by an overnight delivery service (i.e., Federal
Express or DHL) to Tenant, at the Premises or at the address to
which a mailed notice would be sent pursuant to (i) above, or
(iii) delivered by hand to Tenant, at the Premises or at the
address to which a mailed notice would be sent pursuant to (i)
above,
(b) If to Landlord, sent by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to Landlord's
address, to the attention of the Building Manager as set forth in this Lease
with a copy to Xxxxxxxx and O'Neil, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention: Xxxxxx X. Xxxx, Esq. or to such other or further address
or addresses as Landlord may designate for such purpose by like notice; or
(c) If to any other person, sent by registered or certified mail,
return receipt requested and postage prepaid addressed to such person's last
known principal address or to such other address as such person may designate to
Landlord and Tenant as its address for such purpose by like notice.
(d) Notices given by counsel for either party shall be deemed valid
notices if addressed and sent in accordance with the provisions of this Article.
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B. Notices requesting after hours services pursuant to Article 44 may
be given by delivery to the Building superintendent or any other person in the
Building designated by Landlord to receive such notices.
C. If there occurs any interruption of certified and registered mail
service, lasting more than five (s) consecutive Business Days, notices may be
given by telegram or personal delivery, but shall not be effective until
personally received by an executive officer of a party which is a corporation,
or a partner of a party which is a partnership. or a principal of any other
entity.
RELOCATION OF PREMISES:
62. Landlord may, at its option, elect by notice to Tenant to substitute
for the Premises other office space in the Building (herein called the
"Substitute Premises") designated by Landlord, provided that the Substitute
Premises contains at least the same usable square foot area as the Premises,
i.e., either on a higher floor than the Premises or is not more than three
floors below the Premises and has a full floor identity similar to that of the
Premises. Landlord's notice shall be accompanied by a plan of the Substitute
Premises, and such notice or the plan shall set forth the usable square foot
area of the Substitute Premises. Tenant shall occupy the area of the Substitute
Premises promptly (and, in any event, not later than fifteen (15) days) after
Landlord has substantially completed the work to be performed by Landlord in the
Substitute Premises pursuant to this Lease. Tenant shall pay the same Fixed Rent
with respect to the Substitute Premises as was payable with respect to the
Premises, without regard to the usable square foot area of the Substitute
Premises but the figures set forth in Section 42(A) shall be increased to
reflect any increase in the square foot area of the Substitute Premises over the
square foot area of the Premises as presently set forth in Section 42(A). In any
such event, this Lease (i) shall no longer apply to the Premises, except with
respect to obligations which accrued on or prior to the date on which the
Premises were surrendered; and (ii) shall apply to the Substitute Premises as if
the Substitute Premises had been the space originally demised under this Lease.
Tenant shall proceed promptly to make any revisions to its Plans and
Specifications necessitated by reason of the substitution of the Substitute
Premises for the Premises. Landlord shall have no liability to Tenant in the
event of such substitution but Landlord shall reimburse Tenant for the lesser of
(i) any reasonable expenses incurred by Tenant for architects or engineers in
connection with the Substitute Premises, (ii) any reasonable expenses incurred
by Tenant for architects or engineers in connection with the revisions to
Tenant's Plans necessitated by reason of the substitution of the Substitute
Premises for the Premises, or (iii) any reasonable expenses incurred by Tenant
in connection with the preparation of the Substitute Premises for Tenant's
occupancy and Tenant's move from the Premises to the Substitute Premises.
MISCELLANEOUS PROVISIONS:
63. A. If any of the provisions of this Lease, or the application thereof
to any person or circumstance, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
26
B. With respect to each alteration, installation, addition or
improvement to the Premises ("Improvements".) Tenant shall pay to Landlord, as
Additional Rent, upon demand, 10% of the cost of such improvement for indirect
Job costs, supervision and coordination of the work performed in connection with
such Improvement. Tenant shall furnish Landlord with satisfactory evidence that
any insurance required by Landlord during the performance of the Improvements is
in effect at or before the commencement of the Improvements and, on request, at
reasonable intervals thereafter. No Improvements shall involve the removal of
any fixtures, equipment or other property in the Premises which are not Tenant's
Property without Landlord's prior consent and unless they shall be promptly
replaced, at Tenant's expense and free of superior title, liens, security
interests and claims, with fixtures equipment or other property, as the case may
be, of like utility and at least equal value, unless Landlord shall otherwise
consent.
C. Notwithstanding anything to the contrary contained in Article 9 of
this Lease, Landlord shall not be liable for any injury to the business of
Tenant resulting from any damage to the Premises or the Building by fire or
other casualty or the repair thereof, unless such damage shall be Caused by
Landlord's negligent act or omission.
D. Notwithstanding anything to the contrary contained in Article 22 or
elsewhere in this Lease, any wall-to-wall carpeting installed in the Premises
shall upon installation become the property of Landlord and shall remain in and
be surrendered with the Premises upon the expiration or earlier termination of
this Lease.
E. (a) Tenant hereby indemnifies and agrees to hold Landlord harmless
from and against any loss. cost, liability, claim, damage, fine, penalty and
expense (including reasonable attorneys' fees and disbursements) resulting from
delay by Tenant in surrendering the Premises upon the termination of this Lease
as provided in Article 22, including any claims made by any succeeding tenant or
prospective tenant founded upon such delay.
(b) In the event Tenant remains in possession of the Premises after
the termination of this Lease without the execution of a new lease, Tenant, at
the option of Landlord, and with Landlord's consent, shall be deemed to be
occupying the Premises as a tenant from month to month, at a monthly rental
equal to three times the Fixed Rent and Additional Rent payable during the last
month of the Term, subject to all of the other terms of this Lease insofar as
the same are applicable to a month-to-month tenancy. If Tenant remains in
possession of the Premises after the termination of this Lease without the
execution of a new lease, and without the Landlord's written consent to
continued possession as a month-to-month tenant, the Tenant shall be deemed a
holdover tenant, and shall have no right to continued possession of the Premises
beyond the term of the Lease, upon any ground whatsoever. Tenant shall be liable
to Landlord, during the period of the unlawful holding over, for use and
occupancy equal to three times the Fixed Rent and Additional Rent payable during
the last month of the Term, and shall remain subject to all of the other terms
of this Lease insofar as the same are applicable to an occupant continuing to
hold over in possession of the Premises.
F. The submission by Landlord to Tenant of this Lease in draft form
shall be deemed submitted solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an option
27
for the leasing of the Demised Premises, and shall not confer any rights or
impose any obligations upon either party. The submission by Landlord of this
Lease for execution and delivery thereof by Tenant to Landlord shall similarly
have no binding force and effect unless and until Landlord shall have executed
this Lease and a counterpart thereof shall have been delivered to Tenant. In
consideration of Landlord's administrative expense in considering this Lease and
the terms of Tenant's proposed tenancy hereunder and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tenant's submission to Landlord of this Lease, duly executed by Tenant, shall
constitute Tenant's irrevocable offer for the leasing of the Demised Premises,
to continue for fifteen (15) days from and after receipt by Landlord or until
Landlord shall deliver to Tenant written notice of rejection of Tenant's offer,
whichever shall first occur.
G. Landlord shall have the right to erect any gate, chain or other
obstruction or to close off any portion of the Real Property to the public at
any time to the extent necessary to prevent a dedication thereof for public use.
28
[GRAPHIC OMITTED]
EXHIBIT B
INTENTIONALLY OMITTED
GENERAL CLEANING
I. GENERAL OFFICE AREAS
A. NIGHTLY - BUSINESS DAYS
1. All hard surfaced flooring to be swept using an approved
chemically treated dust mop.
2. Carpet sweep all carpets four (4) nights per week, moving
only light furniture (desks, file cabinets, etc. not to be moved).
3. Hand dust and wipe clean with chemically treated cloth all
furniture, file cabinets, fixtures, window xxxxx and convector enclosed tops.
4. Empty and wipe clean all ash trays and screen all sand
urns.
5. Dust all telephones.
6. Dust all chairs, rails and trims.
7. Empty all standard size office waste paper baskets.
8. Wipe clean all water fountains and dust all water coolers.
B. PERIODIC
1. Vacuum all carpeting and rugs once per week.
2. Hand dust all door louvers and other ventilating louvers
within reach once per week.
3. Wipe clean all interior metal fingermarks once per week.
4. Dust all baseboards once per month.
5. Dust, quarterly, all picture frames, charts and all similar
hangings not in reach of nightly cleaning.
6. Dust, quarterly, all vertical surfaces such as walls,
partitions, doors and other surfaces not reached in nightly cleaning.
7. Dust, quarterly, exterior of lighting fixtures.
8. Dust, quarterly, all venetian blinds.
9. Dust twice per year all ceiling, air conditioning louvers
and grilles not reached in nightly cleaning.
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, driveways, entrances, passages, courts, lobbies,
esplanade areas, atrium, plazas, elevators, escalators, stairways, vestibules,
corridors, halls and other public portions of the Building ("Public Areas")
shall not be obstructed or encumbered by any tenant or used for any purpose
other than ingress and egress to and from the Premises, and no tenant shall
permit any of its employees, agents, licensees or invitees to congregate or
loiter in any of the Public Areas. No tenant shall invite to, or permit to
visit, its premises persons in such numbers or under such conditions as may
interfere with the use and enjoyment by others of the Public Areas. Fire exits
and stairways are for emergency use only, and they shall not be used for any
other purposes by any tenant, or the employees, agents, licensees or invitees of
any tenant. Landlord reserves the right to control and operate, and to restrict
and regulate the use of, the Public Areas and the public facilities, as well as
facilities furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally, including the right to
allocate certain elevators' delivery service, and the right to designate which
Building entrances shall be used by persons making deliveries in the Building.
No doormat of any kind whatsoever shall be placed or left in any public hall or
outside any entry door of the Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Premises, without
the consent of Landlord. Such curtains, blinds, shades or screens must be of a
quality, type, design and color, and attached in the manner, approved by
Landlord. In order that the Building can and will maintain a uniform appearance
to those persons outside of the Building, each tenant occupying the perimeter
areas of the Building shall (a) use only building standard lighting in areas
where lighting is visible from the outside of the Building and (b) use only
building standard blinds in window areas which are visible from the outside of
the Building.
3. No sign, insignia, advertisement, lettering, notice or other object
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the Premises or the Building or on corridor walls
without the prior consent of Landlord. Signs on each entrance door of the
Premises shall conform to building standard signs, samples of which are on
display in Landlord's rental office. Such signs shall, at the expense of Tenant,
be inscribed, painted or affixed by signmakers approved by Landlord. In the
event of the violation of the foregoing by any tenant, Landlord may remove the
same without any liability, and may charge the expense incurred in such removal
to the tenant or tenants violating this rule. Interior signs, elevator cab
designations, if any, and lettering on doors and the Building directory shall,
if and when approved by Landlord, be inscribed, painted or affixed for each
tenant by Landlord, at the expense of such tenant, and shall be of a size, color
and style acceptable to Landlord. Only Tenant named in the Lease shall be
entitled to appear on the directory tablet. Additional names may be added in
Landlord's sole discretion under such terms and conditions as the Landlord may
approve.
4. Neither the sashes, sash doors, skylights or windows that reflect or
admit light and air into the halls, passageways or other public places in the
Building nor the heating,
ventilating and air conditioning vents and doors shall be covered or obstructed
by any tenant, nor shall any bottles parcels or other articles be placed on the
window xxxxx or on the peripheral heating enclosures. Whenever the heating,
ventilating or air conditioning systems are in operation, Tenant agrees to draw
the shades, blinds or other window coverings, as reasonably required because of
the position of the sun. Tenant shall have no right to remove or change shades,
blinds or other window coverings within the Premises without Landlord Landlord's
consent. Tenant acknowledges that although the windows are not hermetically
sealed Tenant is not permitted to open such windows.
5. No showcases or other articles shall be put by Tenant in front of or
affixed to any part of the exterior of the Building, nor placed in the Public
Areas.
6. No acids, vapors or other harmful materials shall be discharged, or
permitted to be discharged, into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or thrown into the
Public Areas or other areas of the Building, or into or upon any heating or
ventilating vents or registers or plumbing apparatus in the Building, or upon
adjoining buildings or land or the street. The cost of repairing any damage
resulting from any misuse of such fixtures, vents, registers and apparatus and
the cost of repairing any damage to the Building, or to any facilities of the
Building, or to any adjoining building or property, caused by any tenant, or the
employees, agents, licensees or invitees of such tenant, shall be paid by such
tenant. Any cuspidors or similar containers or receptacles shall be emptied,
cared for and cleaned by and at the expense of such tenant.
7. No tenant shall xxxx, paint, drill into, or in any way deface, any part
of the Premises of the Building. No boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of, and as directed by,
Landlord. No telephone, telegraph or other wires or instruments shall be
introduced into the Building by any tenant except in a manner approved by
Landlord. No tenant shall lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of its 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.
8. No bicycles, vehicles, animals (except seeing eye dogs), fish or birds
of any kind shall be brought into, or kept in or about, the Premises.
9. No noise, including, but not limited to music, the playing of musical
instruments, recordings, radio or television, which, in the judgment of
Landlord, 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 of any
other space in the Building.
10. Nothing shall be done or permitted in the Premises, and nothing shall
be brought into, or kept in or about the Premises, which would impair or
interfere with any of the
2
Building Equipment or the services of the Building or the proper and economic
heating, ventilating, air conditioning, cleaning or other services of the
Building or the Premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of Landlord, might cause any such impairment or interference. No
tenant, nor the employees, agents, licensees or invitees of any tenant, shall at
any time bring or keep upon its premises any inflammable, combustible or
explosive fluid, chemical or substance.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in locks or
the mechanism thereof. Duplicate keys for the Premises and toilet rooms shall be
procured only from Landlord, and Landlord may make a reasonable charge therefor.
Each tenant shall, upon the expiration or sooner termination of the Lease of
which these Rules and Regulations are a part, turn over to Landlord all keys to
stores, offices and toilet rooms, either furnished to, or otherwise procured by,
such tenant, and in the event of the loss of any keys furnished by Landlord,
such tenant shall pay to Landlord the cost of replacement locks. Notwithstanding
the foregoing, Tenant may, with Landlord's prior consent, install a security
system in the Premises which uses master codes or cards instead of keys provided
that Tenant shall provide Landlord with the master code or card for such system.
12. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description shall take place only during such hours and in such elevators as
Landlord may from time to time determine, which may involve overtime work for
Landlord's employees. Tenant shall reimburse Landlord for extra cost. incurred
by Landlord including but not limited to the cost of such overtime work.
Landlord reserves the right to inspect all objects and matter to be brought into
the Building and to exclude from the Building all objects and matter which
violate any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment or enforcement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or rejection of any person to or from the Premises
or the Building under the provisions of Rule 12 or of Rule 15 hereof.
13. No tenant shall use or occupy, or permit any portion of its premises to
be used or occupied, as an office for a public stenographer or public typist, or
for the possession, storage, manufacture or sale of narcotics or dope or as a
xxxxxx, beauty or manicure shop, telephone or telegraph agency, telephone or
secretarial service, messenger service, travel or tourist agency, retail,
wholesale or discount shop for sale of merchandise, retail service shop, labor
union, classroom, company engaged in the business of renting office or desk
space, or for a public finance (personal loan) business, or as a hiring
employment agency, or as a stock brokerage board room. No tenant shall engage or
pay any employee in its premises, except those actually working for such tenant
on its premises, nor advertise for laborers giving an address at the Building.
No tenant shall use its premises or any part thereof, or permit the Premises or
any part thereof to be used, as a restaurant, shop, booth or other stand, or for
the conduct of any
3
business or occupation which predominantly involves direct patronage of the
general public, or for manufacturing, or for the sale at retail or auction of
merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in the judgment of Landlord, tends to
impair the appearance or reputation of the Building or the desirability of the
Building as a building for offices, and upon written notice from Landlord such
tenant shall refrain from and discontinue such advertising or identifying sign.
15. Landlord reserves the right to exclude from the Building all employees
of any tenant who do not present a pass to the Building signed by such tenant.
Landlord or its agent will furnish passes to persons for whom any tenant
requests same in writing Landlord reserves the right to require all other
persons entering the Building to sign a register, to be announced to the tenant
such person is visiting, and to be accepted as a visitor by such tenant or to be
otherwise properly identified (and, if not so accepted or identified, reserves
the right to exclude such persons from the Building) and to require persons
leaving the Building to sign a register or to surrender a pass given to such
person by the tenant visited. Each tenant shall be responsible for all persons
for whom it requests any such pass or any person whom such tenant so accepts,
and such tenant shall be liable to Landlord for all acts or omissions of such
persons. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, 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, Landlord 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.
16. Unless Landlord shall otherwise request each tenant, before closing and
leaving its premises at any time, shall see that all lights are turned out. All
entrance doors in the Premises shall be kept locked by each tenant when its
premises are not in use. Entrance doors shall not be left open at any time.
17. Each tenant shall, at the expense of such tenant, provide light, power
and water for the employees of Landlord, and the agents, contractors and
employees of Landlord, while doing janitor service or other cleaning in the
premises demised to such tenant and while making repairs or alterations in its
premises.
18. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
4
21. The employees, agents, licensees and invitees of any tenant shall not
loiter around the Public Areas or the front, roof or any part of the Building
used in common by other occupants of the Building.
22. There shall not be used in any space, or in the Public Areas, either by
any tenant or by others, in the moving or delivery or receipt of safes, freight,
furniture, packages, boxes, crates, paper, office material or any other matter
or thing, any hand trucks except those equipped with rubber tires side guards
and such other safeguards as Landlord shall require. No hand trucks shall be
used in passenger elevators.
23. No tenant shall cause or permit any odors of cooking or other
processes, or any unusual or objectionable odors, to emanate from its premises
which would annoy other tenants or create & public or private nuisance. No
cooking shall be done in the Premises except as is expressly permitted in the
Lease of which these Rules and Regulations are a part.
24. All paneling, doors, trim or other wood products not considered
furniture shall be of fire-retardant materials. Before installation of any such
materials, certification of the materials' fire-retardant characteristics shall
be submitted to and approved by Landlord, and installed in a manner approved by
Landlord.
25. Whenever any tenant shall submit to Landlord any plan, agreement or
other document for the consent or approval of Landlord, such tenant shall pay to
Landlord, on demand, a processing fee in the amount of the reasonable fees for
the review thereof, including the services of any architect, engineer or
attorney employed by Landlord to review such plan, agreement or document.
26. Landlord reserves the right to rescind, alter, waive or add, as to one
or more or all tenants, any rule or regulation at any time prescribed for the
Building when, in the judgment of Landlord, Landlord deems it necessary or
desirable for the reputation, safety, character, security, care, appearance or
interests 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.
5
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE AND AGREEMENT
(PREMISES, 000 XXXX 00xx XXXXXX, XXX XXXX CITY)
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee (the "Tenant") under that certain lease
(the Lease ) dated as specified in 6(a) below, by and between Two Twenty East
Limited Partnership, as Lessor (the Landlord'), and the undersigned or the
person specified in 6(b) below, as Lessee, covering those certain premises
commonly known and designated as the floors or portions thereof specified in
6(c) below (the "Premises"), at No. 000 Xxxx 00xx Xxxxxx, in the Borough of
Manhattan, City, County and State of New York.
2. The Lease (i) constitutes the entire agreement between the undersigned
and the Landlord with respect to the Premises, (ii) has not been modified,
changed, altered or amended in any respect (except as indicated in 6(g) below)
and (iii) is the only Lease between the undersigned and the Landlord affecting
the Premises.
3. The undersigned has accepted and now occupies the entire premises
covered by the Lease, and all improvements required by the terms of the Lease to
be made by the Landlord have been completed to the satisfaction of the
undersigned.
4. (i) No party to the Lease is in default, (ii) the Lease is in full force
and effect, (iii) full rental is accruing thereunder and (iv) as of the date
hereof the undersigned has no charge, lien or claim of off-set (and no claim for
any credit or deduction) under the Lease or otherwise, against rents or other
charges due or to become due thereunder or on account of any prepayment of rent
more than 30 days in advance of its due date.
5. Since the date of the Lease, to the best knowledge of the undersigned,
there has been no material adverse change in the financial condition of the
undersigned, and there are no actions, whether voluntary or otherwise, pending
against the undersigned under the bankruptcy, reorganization, arrangement,
moratorium or similar laws of the United States, any state thereof or any other
jurisdiction.
6. (a) The date of the Lease is __________, 19___.
(b) The original Lessee of the Lease, if different from the undersigned,
was __________.
(c) The premises covered by the Lease are __________.
(d) The term of the Lease began (or is scheduled to begin) on __________,
19___.
(e) The fixed rent for Premises has been paid to and including __________,
198___.
(f) The fixed rent being paid pursuant to the Lease is at the annual rate
of $__________. Such fixed annual rent, together with additional rent payable
pursuant to the Lease for the current year, results in an aggregate annual rent
of $__________.
(g) The following are exceptions to the statements in 2(ii):
Dated:
------------------------------ ------------------------------------
By:
------------------------------------
(Title: )
-------------------------------
(Signed on __________, 198___)
2
AGREEMENT MODIFYING LEASE I
AGREEMENT, made as of this 26th day of November, 1990 between TWO TWENTY
EAST LIMITED PARTNERSHIP, an Illinois limited partnership having an address c/o
LaSalle Partners, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"),
and MINET INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE BROKERS, INC., a New
Jersey corporation, having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Tenant").
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into a lease agreement dated as of
January 27, 1989 (the Lease ) covering the entire twenty-first (21st) floor (the
"Premises") in the building located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Building"), as more particularly described in the Lease; and
WHEREAS, Tenant desires to hire and take additional space consisting of the
entire twenty-fourth (24th) floor of the Building, as shown on the floor plan
annexed hereto and made a part hereof as Exhibit A (the "Additional Space"), and
to extend the term of the Lease, and Landlord is agreeable thereto on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth below, Landlord and Tenant hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms used herein shall
have the meanings ascribed to them in the Lease
2. Effective as of the date (the "Effective Date") which shall occur ten
(10) days after the date on which Landlord gives notice to Tenant that the
Additional Space is "available for occupancy", as defined below, the Lease shall
be amended as follows:
(a) the Additional Space shall be added to and thereafter included in
the Premises;
(b) the Fixed Rent payable by Tenant for the Additional Space
(including any portion thereof payable for electric current) shall be
$446,035 for the period commencing on the day immediately following the
seventh monthly anniversary of the Effective Date (the "Additional Space
Rent Commencement Date") and ending on June 30, 1994; and shall be
$476,172.50 for the period beginning on July 1, 1994 and ending on the
Expiration Date;
(c) commencing on the Additional Space Rent Commencement Date, the
amount set forth in Section 46B of the Lease shall be increased to $73,422;
and
(d) Tenant shall pay all items of Additional Rent provided for in the
Lease, including but not limited to Tenant Tenant's Tax Payment and
Tenant's Operating Payment, with respect to the Additional Space for the
period from the Additional Space Rent Commencement Date through the
Expiration Date. Tenant shall pay all such items as provided in the Lease,
except that, for purposes of computing the Additional Rent with respect to
the Additional Space on or after the Effective Date:
(i) "Premises Area" as set forth in Section 42A(a) of the Lease
shall be deemed to be 12,055 square feet;
(ii) "Tenant's Proportionate Share" as set forth in Section
42A(b) of the Lease shall be deemed to be 1.1039%;
(iii) "Base Tax Factor as set forth in Section 42A(d) shall mean
the Taxes for the 1990/1991 Tax Year;
(iv) "Landlord's Base Year. as set forth . Section 42A(g) shall
mean the fiscal year July 1, 1990 to June 30, 1991; and
(v) The third sentence of Section 42A(k) shall be deleted and
the following shall be substituted therefor:
"Such regular average hourly wage rate shall also be
inclusive of one-half of the monetary value or cost of
all payments or benefits of every nature and kind
(including those required to be paid by the employer
directly to taxing authorities or other because of the
employment), including social security, unemployment and
other similar taxes, and vacation pay, absent fund,
birthdays, jury duty, medical checkup, relief time and
other paid time-off, incentive pay, sick pay, accident,
health and welfare insurance programs, pension plans,
public liability insurance, guaranteed payment plans, and
supplemental unemployment benefit programs of a similar
or dissimilar nature, irrespective of whether they may be
required by any Legal Requirement or otherwise."
All other terms applicable to such items of Additional Rent shall be
deemed to and all shall remain as set in the Lease.
3. With respect to the Additional Space only, the amount of $25,000 set
forth in the first sentence of Section 63B of the Lease shall be decreased to
$3,000.
4. Except as otherwise set forth herein, from and after the Effective Date,
the term "Premises," "premises" or "demised premises" as used in the Lease shall
be deemed to include the Additional Space, and the Additional space shall be
added to and form a part of the Premises with the same force and effect as if
originally demised under the Lease.
2
5. A. Landlord shall reimburse Tenant in accordance with this Section 5 for
Tenant hard construction costs, architect fees, general contractor/construction
manager fees and general conditions for initial Improvements to the Additional
Space up to an aggregate amount of $421,925 ("Landlord's Contribution.).
B. Provided Tenant is not then in default of any of its obligations under
the Lease, Landlord shall reimburse Tenant for Landlord's Contribution in the
following manner: (i) the reimbursement amount(s) requested by Tenant at any
time shall be divided by the total amount(s) of the hard construction costs,
architect fees and general contractor/construction manager fees and general
conditions for the initial Improvements as reelected in all bids accepted by
Tenant for the Premises plus such amounts as Landlord reasonably estimates will
be the cost of the initial Improvements for which bids have not been accepted,
then (ii) the aggregate amount for which Landlord is obligated reimburse Tenant
shall be multiplied by the amount computed in Section 5B(i), and the resulting
amount, up to the aggregate amount of Landlord's Contribution, shall be payable
to Tenant.
C. Landlord shall pay such reimbursement amounts to Tenant by check within
twenty (20) days after Tenant shall have given, and Landlord shall have
received, Tenant's request therefor accompanied by invoices marked paid or other
proof of payment satisfactory to Landlord, together with copies of fully
executed and acknowledged valid lien waivers from all involved contractors,
subcontractors and materialmen for all construction costs and expenses incurred
by Tenant, including amounts for which Tenant is requesting reimbursement.
6. Tenant shall be responsible for compliance with all applicable laws and
regulations (including without limitation Local Law 5 of The City of New York),
affecting the Additional Space and any Improvements, initial or otherwise, made
therein, and Tenant shall make such improvements as may be necessary to effect
such compliance at Tenant's sole cost and expense. Landlord represents that it
has no knowledge of any Local Law 5 requirements which must be satisfied with
respect to the Additional Space. Landlord also represents that, as of the date
hereof, the Building standpipes for the existing Building sprinkler systems are
presently located on the 24th floor of the Building and are in working order.
7. A. Prior to the Effective Date, Landlord shall. at its sole cost and
expense, perform the alterations and improvements set forth in Exhibit B
attached hereto and made a part hereof ("Landlord's Work") . Landlord shall not
be require I to incur additional costs or employ overtime labor in connection
therewith
B. For the purposes of Section 2 hereof, the Additional Space shall be
conclusively deemed "available for occupancy". as soon as Landlord's Work shall
be substantially completed. Landlord's Work shall be deemed substantially
completed notwithstanding the fact that (i) minor or insubstantial details of
construction, mechanical adjustment or decoration shall remain to be performed
or (ii) portions of Landlord's Work shall not have been completed because, under
good construction scheduling practice, such work should be done after still
incompleted finishing or other work to be done by or on behalf of Tenant is
completed.
3
C. Tenant shall accept possession of the Additional Space in its "as is"
condition, subject only to the completion by Landlord of Landlord's Work.
Landlord shall be under no obligation to make any changes, improvements, or
alterations to the Additional Space other than Landlord's Work. The taking of
occupancy of the whole or part of the Additional Space by Tenant shall be
conclusive evidence as against Tenant that Tenant shall have accepted possession
of the Additional Space and that the Additional Space shall be in good and
satisfactory condition at the time such occupancy shall be so taken.
D. If, during the completion of Landlord's Work it is determined that
asbestos in the Additional Space must be removed or abated due to the nature of
Landlord's Work, then Landlord shall remove or xxxxx such asbestos at Landlord's
sole cost and expense.
8. If Landlord shall be unable to give possession of the Additional Space
on the Effective Date for any reason whatsoever, Landlord shall not be subjected
to any liability for the failure to give possession on said date. No such
failure to give possession on such specific date shall affect the validity of
the Lease or this Agreement or the obligations of Tenant hereunder or be deemed
to extend the term of the Lease or this Agreement, but the rent reserved and
covenanted to be paid hereunder with respect to the Additional Space shall be
abated and shall not commence until possession of the Additional Space shall be
given or the Additional Space shall be available for occupancy by Tenant, except
that if such failure to give possession shall have been caused by any act or
omission on the part of Tenant, there shall be no abatement of rent. The parties
agree that this paragraph constitutes an express provision as to the time at
which Landlord shall deliver possession of the Additional Space to Tenant, and
Tenant hereby waives the rights to rescind this Agreement which Tenant might
otherwise have pursuant to Section 223-a of the Real Property Law of the State
of New York or any other law of like import now or hereinafter in force.
9. Tenant may request at any time prior to the fifth anniversary of the
date hereof that Landlord arrange to have one of the elevators which presently
services the 24th floor of the Building service the 21st floor of the Building.
In such case, Landlord shall obtain all necessary permits and approvals with
respect thereto, and, subject to Legal Requirements and to such other reasonable
requirements as Landlord may reasonably impose, Landlord shall perform any
construction and mechanical work that may be required to provide such elevator
service to the 21st floor; Landlord shall not be required, however, to perform
any finishing work in connection therewith. Tenant shall be responsible for, and
shall remit to Landlord promptly upon Landlord's request, one half of Landlord
Landlord's out-of-pocket expenses incurred in connection therewith.
10. Notwithstanding anything in the Lease to the contrary, Landlord shall
endeavor to have the present mortgagee of the Building provide a non-disturbance
agreement with respect to the Premises in favor of Tenant within sixty (60) days
after the date hereof, and Landlord shall endeavor to obtain such agreement from
any future mortgagee of the Building. Notwithstanding the foregoing, Landlord
shall not be obligated to incur any expense or liability in connection
therewith, other than those expenses which are reasonably related to the initial
preparation by Landlord of each such agreement.
4
11. Notwithstanding anything in the Lease to the contrary, from and after
the Effective Date, Tenant shall be entitled to a reasonable number of listings
on the Building directory located in the lobby of the Building. In no event,
however, shall such number be less than Tenant's Proportionate Share of such
listings. Any deletions, additions or changes to such listings shall be made by
Landlord within a reasonable period of time after Tenant's request at Tenant's
sole cost and expense.
12. A. The term of the Lease is hereby extended upon and subject to the
same terms, covenants and conditions as in the Lease, except as otherwise set
forth herein, for a period (the "Extended Term") commencing on July 1, 1999 (the
"Extended Term Commencement Date") and ending on September 30, 2000 (the
"Extended Term Expiration Date"), unless the term of the Lease shall sooner
terminate pursuant to the provisions of the Lease or by law.
B. The Fixed Rent for the Premises together with the Additional Space
(including any portion thereof payable for electric current) shall be increased
to the rate of $966,723 per annum for the period from the Extended Term
Commencement Date through the Extended Term Expiration Date, and shall otherwise
be payable in accordance with the provisions of the Lease.
13. A. Provided that Tenant shall not then be in default of its obligations
under the Lease beyond any applicable grace periods, and subject to the rights
of tenants under existing leases to renew or extend the terms of existing leases
with respect to all or part of the 22nd floor of the Building, Landlord shall
notify Tenant if any portion of the 22nd floor becomes available for lease
during the term of the Lease by delivering to Tenant, at or prior to the date of
such availability, a notice (the "Availability Notice-) thereof.
B. If Tenant so elects to lease such space (the "Expansion Space") Tenant
shall give written notice ("Tenant's Notice") to Landlord of such election
within ten (10) days of receipt of the Availability Notice.
C. If Tenant shall elect to lease (the "Expansion Space"). the Fixed
Rent (excluding any payment for electricity) therefor shall be payable at the
rate at which Landlord is then offering comparable space to third parties in
the Building.
D. Tenant Tenant's failure to duly and timely exercise said option, for any
reason whatsoever, shall be deemed a waiver of all of Tenant's rights to lease
the Expansion Space pursuant this Section 13. Tenant shall thereafter have no
further right to lease such Expansion Space and Landlord shall have the right to
lease the same (alone or in conjunction with other space) to any other
prospective tenant or tenants for any length of time, and such space shall no
longer be subject to the provisions of this Section 13.
E. Time shall be of the essence with respect to the exercise by Tenant of
its option set forth in this Section 13.
F. If Tenant shall elect under this Section to lease any Expansion Space,
as set forth in this Section 13, then, provided that Tenant is not in default
under any of the terms of the Lease at the time of such exercise or on such date
as vacant possession thereof
5
becomes available (the `Expansion Space Commencement Date ), the Lease shall
be deemed amended, effective as of the Expansion Space Commencement Date, as
follows:
(a) the Expansion Space shall be added to and form a part of the
Premises with the same force and effect as if originally demised under the
Lease, and the term "Premises" as used in the Lease shall include the Expansion
Space;
(b) the Expansion Space shall be delivered to Tenant in its
condition "as is" but "broom clean. on the Expansion Space Commencement Date,
and Landlord shall not be obligated to perform any work therein to prepare the
same for occupancy;
(c) the term "Tenant's Proportionate Share" as such term is
defined in the Lease, shall be increased by a percentage which reflects the
rentable square footage of the Expansion Space;
(d) the electricity payments made by Tenant pursuant to the
Lease shall be increased by an amount which is the product of the number of
rentable square feet in the Expansion Space and the per-square-foot electricity
charge which Tenant is then obligated to pay under the Lease for the Premises;
and
(e) Additional Rent payable by Tenant under the Lease shall be
payable for the Expansion Space during the then remaining Term without any
change of the provisions of the Lease relating to Additional Rent, except as
specifically provided in this Section 13.
G. Landlord and Tenant shall, on or prior to the Expansion Space
Commencement Date, execute an agreement amending the Lease to include the
Expansion Space, which shall reflect the Fixed Rent payable therefor and the
terms of Section 13F.
H. (a) If Landlord is unable to give possession of the Expansion Space on
the Expansion Space Commencement Date because of the holding over or retention
of possession of any tenant, undertenant or occupant or by reason of any Legal
Requirement, Landlord shall have no liability to Tenant therefor and the
validity of the Lease shall not be impaired under such circumstances, nor shall
the same be construed in any way to extend the Term, but the rent payable for
the Expansion Space shall be abated (provided Tenant is not responsible for the
inability to obtain possession) until Landlord shall have given Tenant notice
that Landlord is able to deliver possession of the Expansion Space to Tenant.
The provisions of this subsection 13H are intended to constitute an express
provision to the contrary. within the meaning of Section 223-a of the New York
Real Property Law.
(b) It Tenant shall effectively exercise its right to lease the
Expansion Space as set forth in this Section 13, and permission is given to
Tenant to enter into possession of the Expansion Space prior to the Expansion
Space Commencement Date, Tenant covenants and agrees that such occupancy shall
be deemed to be under all of the terms of the Lease, including the obligation to
pay rent.
I. The termination, cancellation or surrender of the Lease shall terminate
any rights of Tenant pursuant to this Section 13.
6
14. All of the provisions of the Lease as modified hereby shall be and
remain in full force and effect throughout the remainder of the Term.
15. Tenant represents that it dealt with no broker or brokers other than
LaSalle Partners in the negotiation of this Agreement. Tenant hereby indemnifies
Landlord and agrees to hold Landlord harmless from and against any loss, cost,
damage, expense, claim or liability arising out of any inaccuracy or alleged
inaccuracy of the above representation including court costs and attorney's
fees. The provisions of this Section shall survive the expiration or sooner
termination of this Agreement.
16. Except as expressly modified hereby, the parties hereto affirm that the
Lease is in full force and effect, and each party hereto represents to the other
that all obligations of such other party under the Lease as of this date have
been fully performed and complied with by such other party. By entering into
this Agreement, Landlord does not and shall not be deemed either (i) to waive or
forgive any default, rent arrears or other condition with respect to the Lease
or the use of the Premises, whether or not in existence or known to Landlord at
the date hereof, or (ii) to consent to any matter as to which Landlord
Landlord's consent is required under the terms of the Lease, except such as may
heretofore have been waived in writing or consented to in writing, by Landlord.
17. This Agreement may not be orally changed or terminated nor any of its
provisions waived, unless by an agreement in writing signed by the party against
whom enforcement of any change, termination or waiver is sought.
18. This Agreement shall he binding upon, and inure to the benefit of the
parties hereto, their respective legal representatives, successors and assigns.
19. Tenant represents and warrants that the execution of this Agreement by
Tenant is duly authorized and binding on Tenant. Landlord represents and
warrants that the execution of this Agreement by Landlord is duly authorized and
binding on Landlord.
20. Tenant acknowledges that this Agreement shall not be binding on
Landlord until Landlord shall have executed this Agreement and a counterpart
thereof shall have been delivered to Tenant.
21. In the event that, subsequent to the construction of the elevator
pursuant to Section 11 hereof, Landlord elects to substitute for the Premises
other office space in the Building pursuant to Article 62 of the Lease, Landlord
shall reimburse Tenant for Tenant's share of the cost to construct such
elevator.
7
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TWO TWENTY EAST LIMITED PARTNERSHIP
By: LaSalle Partners, Agent
By:LaSalle Partners Incorporated General
Partner
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
MINET INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE
BROKERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director of Operations
Sworn to before me this
26th day of November 1990
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public
8
EXHIBIT A
[GRAPHIC OMITTED]
EXHIBIT B
Landlord's work
1. Remove existing alterations and improvements installed in the
Additional Space by prior tenants.
2. Remove existing internal staircase between 24th and 25th floors.
3. Seal up the opening previously created in the ceiling of the 24th
floor in connection with the construction of said staircase.
4. Repair damage to that portion of the 24th floor which is located
beneath said staircase and which is caused by the construction or
removal of said staircase.
AGREEMENT MODIFYING LEASE II
AGREEMENT, made as of this 18th day of June, 1991, between TWO TWENTY EAST
LIMITED PARTNERSHIP, an Illinois limited partnership, having an address c/o
LaSalle Partners, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"),
and MINET INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE BROKERS, INC., a New
Jersey corporation, having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Tenant")..
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease agreement dated as of
January 27, 1989 (the "Lease"), is amended by an Agreement Modifying Lease I
dated as of November 26, 1990 (the First Amendment ), covering the entire
twenty-first (21st) and twenty-fourth (24th) floors (the Premises.) in the
building (the Building.) located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the Original Lease and the First Amendment, collectively, the Lease ), as
more particularly described in the Lease; and
WHEREAS, Tenant desires to provide supplemental air conditioning to the
twenty-fourth floor portion of the Premises using the five (5) ton air
conditioning unit (the "A/C Unit") located in the fan room (the "Fan Room") on
the twenty-fifth floor of the Building;
WHEREAS, as the use of the A/C Unit will exceed the capacity of the
existing wiring installations to the Premises, Tenant desires to install
feeders, conduits, wires or similar facilities to be used in connection with the
A/C Unit (the "Electrical Equipment") in the Fan Room in an area to be
designated by Landlord (the Fan Room Licensed Area ) and in the switchboard room
(the "Switchboard Room") located on the twenty-fifth (25th) floor of the
Building in an area to be designated by Landlord (the Switchboard Room Licensed
Area ) (the Fan Room Licensed Area and the Switchboard Room Licensed Area,
collectively, defined as the "Licensed Areas"); and
WHEREAS, Landlord is agreeable to the foregoing on the terms, covenants and
conditions. hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth below, Landlord and Tenant hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms used herein shall
have tie meanings ascribed to them in the Lease.
2. From and after the date hereof (the Effective Date") to and including
the Expiration Date of the Lease, Landlord hereby grants to Tenant, and Tenant
accepts from Landlord, subject to and in accordance with all applicable terms of
the Lease, an exclusive license (the "License") to the use of the A/C Unit and
to install, secure, maintain, replace and operate, at Tenant's sole cost and
expense, the Electrical Equipment in the Licensed Areas in order to supply up to
one hundred (100) amperes of electrical current to be used in connection with
the A/C Unit, provided, however, that the locations of such Electrical Equipment
and the manner of their installation, maintenance and replacement will not
interfere with Landlord's use
or operation of the Building, the common areas of the Building or premises
leased to, or available for lease to, other tenants.
3. Tenant shall accept the A/C Unit on the Effective Date in its then "as
is" condition. Landlord makes no representations with respect to its condition,
and Tenant acknowledges that the A/C Unit may require repairs and replacements,
including without limitation replacement of the blower presently installed
therein. Landlord shall, at Tenant's sole cost and expense, make all such
repairs and replacements, and thereafter shall maintain and operate the A/C Unit
throughout the remainder of the Term also at Tenant Tenant's sole cost and
expense, and Tenant shall be responsible for, and she request, all costs and
expenses incurred by connection therewith as Additional Rent.
4. Tenant shall install, maintain, replace, operate and use the Electrical
Equipment in the Licensed Areas at Tenant's sole risk, and Tenant acknowledges
that Landlord shall not be obligated to provide any security for the Licensed
Areas. Upon reasonable prior notice to Landlord, and then only if accompanied by
an employee or agent of Landlord, Tenant shall be permitted reasonable access,
at Tenant's sole cost, risk and liability, to the Licensed Areas to perform any
installation, maintenance, repair, replacement or service to the Electrical
Equipment. Whenever such access is permitted, Tenant shall reimburse Landlord
for any cost or expense incurred by Landlord in connection with permitting such
access. Such access, except in the case of an emergency, shall be permitted only
during the hours from 9:00 A.M. to 6:00 P.M. on Business Days. Whenever Tenant
is afforded access to the Licensed Areas, Tenant shall properly safeguard
persons and property therein. Tenant shall not store any materials whatsoever in
the Licensed Areas, and Tenant shall be responsible for cleaning and removing
any materials left in the Licensed Areas by Tenant or Tenant's invitees.
5. In consideration for the granting by Landlord of the License, Tenant
shall pay to Landlord upon the execution and delivery hereof the sum of $5,000
by check subject to collection, drawn on a bank which is a member of The New
York Clearing House Association.
6. Commencing on the Effective Date the amount payable per annum as set
forth in Section 46B of the Original Lease, as modified by the First Amendment,
shall be $91,504.50.
7. The A/C Unit and Electrical Equipment (collectively, the `Equipment-)
shall be used solely and exclusively for purposes internal to Tenant Tenant's
business conducted at the Premises and for no other purpose. The Equipment shall
not be used for the direct production of revenue by Tenant or by, or for the
benefit of, any other person or entity.
8. The location, method of installation, appearance, safety and operation
of the Equipment shall, at all times, (i) be subject to Licensor's approval,
(ii) conform with all present and future laws, orders, regulations and legal
requirements of all federal, state and municipal governments, and the New York
Board of Fire Underwriters or any similar body asserting Jurisdiction thereover
(collectively, "Legal Requirements"), (iii) conform with all insurance
requirements of the Lease, and (iv) conform with all other applicable provisions
of the Lease. Landlord's approval shall not mean or imply that the Equipment or
its location, method of installation, appearance, safety or operation complies
with any Legal Requirement, and,
notwithstanding anything in this Agreement to the contrary, Landlord shall be
under no duty to permit the Equipment to be installed or operated if such
installation or operation is prohibited by any Legal Requirement or interferes
with the operation of the Building.
9. At Landlord's expense, Landlord shall have the right, at any time and
from time to time during the Term, upon ten (10) days' prior notice to Tenant
except in the event of emergency, to relocate the A/C Unit to another area on
the 25th floor of the Building and/or the Electrical Equipment to another area
in the Switchboard Room, provided that no such relocations will materially
interfere with the operation of the A/C Unit or the Electrical Equipment, as the
case may be, after such relocations shall be completed. Landlord shall use
reasonable efforts, without being required to employ overtime labor or to incur
any extraordinary costs, to minimize any interruption in the use of the A/C Unit
or the Electrical Equipment, as the case may be, during any period of
relocation, and Landlord shall not be liable for any such interruption.
10. Tenant shall not alter, move or locate the A/C Unit or the Electrical
Equipment or any other property whatsoever in the Fan Room or Switchboard Room
without Landlord's prior written approval.
13. Tenant shall not assign or transfer the License hereby granted, nor
shall Tenant permit or suffer any other person or entity to use the A/C Unit or
all or any part of the Licensed Areas.
14. Notwithstanding anything in the Lease to the contrary, in the event of
a default or breach by Landlord under this Agreement, Tenant's sole and
exclusive remedy shall be to terminate this Agreement.
15. If Landlord is unable to give possession of the Licensed Areas on the
date set forth herein for any reason, Landlord shall not be subject to any
liability for failure to give possession on said date, and the validity of this
Agreement shall not be impaired under such circumstances, nor shall the same be
construed in any way to extend the Term. If, for any reason, Section 223-a of
the Real Property Law shall be deemed applicable hereto, the parties agree that
this Article is intended to be "an express provision to the contrary". for
purposes of that statute.
16. All of the provisions of the Lease as modified hereby shall be and
remain in full force and effect throughout the remainder of the Term.
17. Tenant represents that it dealt with no broker or brokers other than
LaSalle Partners in the negotiation of this Agreement. Tenant hereby indemnifies
Landlord and agrees to hold Landlord harmless from and against any loss, cost,
damage, expense, claim or liability arising out of any inaccuracy or alleged
inaccuracy of the above representation including court costs and attorney's
fees. The provisions of this Section shall survive the expiration or sooner
termination of this Agreement.
18. Except as expressly modified hereby, the parties hereto affirm that the
Lease is in full force and effect, and each party hereto represents to the other
that all obligations of such other party under the Lease as of this date have
been fully performed and complied with by such other party. By entering into
this Agreement, Landlord does not and shall not be
deemed either (i) to waive or forgive any default, rent arrears or other
condition with respect to the Lease or the use of the Premises, whether or not
in existence or known to Landlord at the date hereof, or (ii) to consent to any
matter as to which Landlord's consent is required under the terms of the Lease,
except such as may heretofore have been waived in writing or consented to in
writing, by Landlord.
19. This Agreement may not be orally changed or terminated, nor any of its
provisions waived, unless by an agreement in writing signed by the party against
whom enforcement of any change, termination or waiver is sought.
20. This Agreement shall be binding upon, and inure to the benefit of the
parties hereto, their respective legal representatives, successors and assigns.
21. Tenant represents and warrants that the execution of this Agreement by
Tenant is duly authorized and binding on' Tenant.
22. Tenant acknowledges that this Agreement shall not be binding on
Landlord until Landlord shall have executed this Agreement and a counterpart
thereof shall have been delivered to Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TWO TWENTY EAST LIMITED PARTNERSHIP
By: LaSalle Partners, Agent
By:LaSalle Partners Incorporated General
Partner
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
MINET INTERNATIONAL PROFESSIONAL INDEMNITY INSURANCE
BROKERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director of Administration
EXHIBIT A-1
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
EHIXIBIT B
GENERAL INTERNET
INVENTORY OF EXISTING MINET FURNITURE
AT 000 XXXX 00XX XXXXXX
QTY CODE DESCRIPTION
----- ----- ------------
COMPLETE WORK STATIONS:
10 OPEN PLAN WORK STATIONS INCLUDING PANELS, WORK SURFACES,
FILES AND PEDESTALS TO REMAIN AS IS (CHAIRS COUNTED
SEPARATELY)
CHAIRS:
28 DC DESK CHAIRS
15 VC VISITOR CHAIRS
22 CC CONFERENCE CHAIRS
3 LC LOUNGE CHAIRS
1 SO2 2 SEATER SOFA (LOVESEAT)
8 STC STACKING CHAIRS (LUNCHROOM)
DESKS, TABLE DESKS, RETURNS, ETC.
DPO DOUBLE PEDESTAL DESK:
2 80" X 30"
SPR SINGLE PEDESTAL DESK (RIGHT PED):
1 72" X 36"
- 46" X 30"
CZ CREDENZA:
3 90" X 30"
1 88" X 20"
1 68" X 21"
1 NO SIZE
TBL TABLE:
1 72" X 36"
20 72" X 30"
1 72" X 27" (FOLDING)
1 72" X 23"
8 60" X 30"
1 60" X 25"
7 48" X 25"
- 38" DIAM. ROUND
1 30" X 23"
5 JOIN 23" X 23" QUARTER ROUND XXXXXX (USED X/ 60X30 & 48X23
TBLS ABOVE)
ATN RETURN:
11 48" X 19" (UP TO 6" OR 8" OF THE 48" DIM. SLIDES UNDER TABLE)
48" X 30" (W/ ATT. PEDESTAL)
1 46" X 24"
1
14 PED MOBILE PEDESTAL NORMALLY BOX/BOX/FILE
WALL UNITS:
6 10' CONSISTING OF 2 80" X 30" WORK SURFARCES, 2 80"
BINDER BINS AND 2 TACK BOARDS ON
WALL STANDARDS
1 5 ` CONSISTING OF 2 30" BINDER BINS AND 2 TACK BOARDS
ON WALL STANDARDS
FILES:
13 2LF30 2 DWR LATERAL 30" W
1 2LF98 2 DWR LATERAL 38" W (HIGH SWRS FOR COPUTER PRINTOUTS)
1 2LF42 2 DWR LATERAL 42" W
9 3LF30 3 DWR LATERAL 30" W
3 3LF38 3 DWR LATERAL 00" X
0 0XX00 0 XXX XXXXXXX 00" X
00 0XX00 0 XXX XXXXXXX 00" X
0 0XX00 0 XXX XXXXXXX 42" W
14 UNITS OF ROLLING FILES (STOR/WAL) IN 2 LOCATIONS
MISCELLANEOUS:
TBL TABLE
1 120" X 42" CONFERENCE TABLE (RACETRACK)
1 96" X 42" CONFERENCE TABLE (RACETRACK)
1 32" X 24" SPIDER BASE
3 30" X 30" LUNCH ROOM STYLE
1 MAIL SORTER 82.8" X 18'" X 27.5"
4 PNLS DIVIDER PANLS - 2 42" W PANELS AND 2 12" W PANELS IN
THE CONFIGURATION OF 87" LONG
1 58CSE BOOKCASE 36" X 12" X 72"
