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EXHIBIT 10.39
LEASE BETWEEN
G.S. 505 PARK, LLC
and
PLD TELEKOM INC.
PREMISES: Entire Twenty-First and
Twenty-Second (21st and 22nd) Floors
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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TABLE OF CONTENTS
LEASE
Article Page No.
1. COMMENCEMENT OF TERM.................................................... 1
2. OCCUPANCY............................................................... 1
3. RENT.................................................................... 2
4. DEFINITIONS............................................................. 3
5. ADJUSTMENTS OF RENT..................................................... 4
6. LATE PAYMENT CHARGE..................................................... 9
7. ALTERATIONS............................................................. 9
8. SERVICES PROVIDED BY LANDLORD - REPAIRS, WATER,
9. ELEVATORS, HEAT, CLEANING, AIR CONDITIONING............................. 11
10. WINDOW CLEANING......................................................... 14
11. REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS........................ 14
12. SUBORDINATION........................................................... 15
13. PROPERTY -- LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY...................... 16
14. DESTRUCTION, FIRE AND OTHER CASUALTY.................................... 17
15. EMINENT DOMAIN.......................................................... 19
16. ASSIGNMENT, MORTGAGE, ETC............................................... 19
17. ELECTRIC CURRENT........................................................ 24
18. ACCESS TO PREMISES...................................................... 26
19. VAULT, VAULT SPACE, AREA................................................ 26
20. BANKRUPTCY.............................................................. 27
21. DEFAULT................................................................. 27
22. REMEDIES OF LANDLORD AND WAIVER OF REDEMPTION........................... 28
23. FEES AND EXPENSES....................................................... 30
24. NO REPRESENTATIONS BY LANDLORD.......................................... 30
25. END OF TERM............................................................. 30
26. QUIET ENJOYMENT......................................................... 31
27. FAILURE TO GIVE POSSESSION.............................................. 31
28. NO WAIVER............................................................... 31
29. WAIVER OF TRIAL BY JURY................................................. 32
30. INABILITY TO PERFORM.................................................... 32
31. CAPTIONS................................................................ 32
32. ADJACENT EXCAVATION -- SHORING.......................................... 32
33. RULES AND REGULATIONS................................................... 33
34. SECURITY................................................................ 33
35. SUCCESSORS AND ASSIGNS.................................................. 34
36. INSURANCE............................................................... 35
37. BROKERAGE............................................................... 35
38. ESTOPPEL CERTIFICATE.................................................... 35
39. HOLDING OVER............................................................ 36
40. NOTICES................................................................. 36
41. INTENTIONALLY OMITTED................................................... 37
42. INTENTIONALLY OMITTED................................................... 37
43. CERTAIN RIGHTS RESERVED TO LANDLORD..................................... 37
44. HAZARDOUS MATERIALS..................................................... 37
45. MISCELLANEOUS........................................................... 37
EXHIBIT A - LEASED PREMISES
EXHIBIT B - RULES AND REGULATIONS
EXHIBIT C - CLEANING SPECIFICATIONS
EXHIBIT D - ENGINEER'S REPORT
EXHIBIT E - NONDISTURBANCE AGREEMENT
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AGREEMENT OF LEASE, made as of this 15th day of October, 1998,
between G.S. 505 PARK, LLC having an address c/o Glorious Sun (New York) Inc.,
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first
part (hereinafter referred to as "Landlord" or as "Owner"), and PLD TELEKOM
INC., a Delaware corporation, having an address at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, party of the second part (hereinafter referred to as "Tenant"),
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the entire twenty-first and twenty-second (21st and 22nd) floors
substantially as shown on the floor plan annexed hereto as Exhibit A and made a
part hereof (the "Premises," "premises" or "demised premises") in the building
known as 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building" or "building"; said
Building together with the land on which it is located (the "Land") and all
other improvements thereon being called the "Property"), on the terms and
conditions hereinafter set forth.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
COMMENCEMENT OF TERM:
1. (A) The Term shall commence on the later of (i) date hereof or
(ii) the date upon which Landlord shall give notice to Tenant that Landlord has
received its mortgagee's approval of this Lease pursuant to Section 11(B) below,
(such later date shall be referred to herein as the "Commencement Date"), and
shall end on the last day of the month in which occurs the eighty-sixth (86th)
monthly anniversary of the Commencement Date (the "Expiration Date") or until
such term shall sooner cease and terminate as herein provided.
(B) Except as expressly set forth herein, Tenant shall accept
possession of the Premises in its "as is" condition, and Landlord shall be under
no obligation to make any changes, improvements, or alterations to the Premises.
The taking of occupancy of the whole or any part of the Premises by Tenant shall
be conclusive evidence as against Tenant that Tenant shall have accepted
possession of the Premises and that the Premises shall be in good and
satisfactory condition at the time such occupancy shall be so taken.
OCCUPANCY:
2. (A) Tenant shall use and occupy the demised premises for
executive and general offices and for no other purpose whatsoever. Tenant shall
not use the Premises or any part thereof for:
(i) sale at retail of any products or materials;
(ii) the conduct of a public auction of any kind;
(iii) the conduct of a bank, trust company, savings bank,
safe deposit, savings and loan association or bank or
any branches of any of the foregoing or a loan
company business;
(iv) the issuance and sale of traveler's checks, foreign
drafts, letters of credit, foreign exchange or
domestic money order or the receipt of money for
transmission;
(v) an employment agency;
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(vi) product display activities (such as those of a
manufacturers' representative);
(vii) offices or agencies of a foreign government or
political subdivisions thereof;
(viii) offices of any governmental bureau or agency of the
United States or any state or political subdivision
thereof;
(ix) offices of any public utility company, other than
corporate, executive or legal staff offices;
(x) data processing services rendered primarily to others
than Tenant and which are not strictly ancillary to
Tenant's business;
(xi) health care professionals;
(xii) schools or other training or educational uses (other
than those which are strictly ancillary to Tenant's
business, such as training of Tenant's personnel);
(xiii) clerical support concerns rendering clerical support
services primarily to others than Tenant or
performing functions other than those which are
strictly ancillary to Tenant's business;
(xiv) reservation centers for airlines or for travel
agencies;
(xv) broadcasting centers for communications firms, such
as radio and television stations; and
(xvi) any other use or purpose which, in the reasonable
judgment of Landlord, is not in keeping with the
character and dignity of the Property.
(B) Tenant will not make or permit to be made any use of the
Premises or any part thereof which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or which directly or
indirectly is forbidden by public law, ordinance or governmental regulations or
which may be dangerous to life, limb, or property, or which may invalidate or
increase the premium cost of any policy of insurance carried on the Property or
concerning its operation, or which will suffer or permit the Premises or any
part thereof to be used in any manner, or anything to be brought into or kept
therein, which, in the reasonable judgment of Landlord, shall in any way impair
or tend to impair the character, reputation or appearance of the Property as a
high quality office building, or which will impair or interfere or tend to
impair or interfere with any of the services performed by Landlord for the
Property. In any event, Landlord 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.
RENT:
3. (A) Tenant shall pay Minimum Rent (as hereinafter defined) at
an annual rental rate as hereinafter provided, together with all other sums of
money as shall become due and payable by Tenant under this Lease (hereinafter
called
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"additional rent" or "Additional Rent") 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 Landlord or such other place as Landlord 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). The
Minimum Rent and Additional Rent are collectively referred to herein as the
"rent".
(B) Tenant shall pay minimum annual rent, inclusive of any
payment for electricity pursuant to Article 16 hereof (the "Minimum Rent"), as
follows:
(i) Four Hundred Ninety-One Thousand Twenty-Nine Dollars
($491,029) per annum for the period beginning on the Commencement
Date and ending on the last day of the month in which occurs the
forty-fourth (44th) monthly anniversary of the Commencement Date
payable in advance in equal monthly installments of $40,919.08; and
(ii) Five Hundred Eleven Thousand Seventy-One Dollars
($511,071) per annum for the period beginning on the first day of
the month in which occurs the forty-fifth (45th) monthly anniversary
of the Commencement Date and ending on the Expiration Date, payable
in advance in equal monthly installments of $42,589.25.
(C) If the Minimum Rent hereunder shall commence on any day
other than the first day of a calendar month, the Minimum Rent for such calendar
month shall be prorated.
(D) Notwithstanding the foregoing, the Minimum Rent payable by
Tenant in an amount equal to $38,413.83 per month (the "Abatement Amount") shall
be abated for a period of two months from the Commencement Date (hereinafter
called the "Abatement Period"). Tenant acknowledges, however, that if this Lease
shall terminate due to a default by Tenant hereunder or if this Lease shall be
rejected in the case of a bankruptcy, the Minimum Rent otherwise abated pursuant
to this paragraph shall be immediately due and payable.
DEFINITIONS:
4. The following definitions shall have the meanings set forth
below:
(A) The term "office", or "offices", wherever used in this
Lease, shall not be construed to mean premises used as a store or stores, for
the sale or display, at any time, of goods, wares or merchandise, of any kind,
or as a restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for
other similar purposes or for manufacturing. The term "Landlord" as used in this
Lease means only the owner, or the mortgagee in possession, for the time being
of the land and building (or the owner of a lease of the building or of the land
and building) of which the demised premises form a part, so that in the event of
a lease of said building, or of the land and building, the said Landlord shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, at any such sale, or the said lessee of the building,
or of the land and building, that the purchaser or the lessee of the building
has assumed and agreed to carry out any
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and all covenants and obligations of Landlord, hereunder. The words "re-enter"
and "re-entry" as used in this Lease are not restricted to their technical legal
meaning. The term "business days" as used in this Lease shall exclude Saturdays
(except such portion thereof, if any, as is covered by specific hours in Article
8 hereof), Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
(B) "Brokers" shall mean Xxxxxxx & Xxxxxxxxx, Inc.
(C) "Legal Requirements" shall mean all laws, codes, statutes
and ordinances and the orders, rules, regulations, directives and requirements
of all federal, state, county, city and borough departments, bureaus, boards,
agencies, offices, commissions and other subdivisions thereof, or of any
official thereof, or of any other governmental public or quasi-public authority,
whether now or hereafter in force.
ADJUSTMENTS OF RENT:
5. (A) Definitions as used herein:
(i) "Taxes" shall mean (1) all real estate taxes or
other tax imposed in substitution thereof, assessments
(including for any Business Improvement District), and other
governmental impositions and charges of every kind whatsoever,
nonrecurring as well as recurring, special or extraordinary as
well as ordinary, foreseen and unforeseen, and each and every
installment thereof, which shall be levied, assessed or
imposed, or become due and payable or become liens upon, or
arise in connection with the use, occupancy or possession of,
the Property or any part thereof or interest therein during
the term of this Lease, and (2) all costs and expenses
(including reasonable attorneys' fees and disbursements)
incurred by Landlord in contesting the assessment of the
Property for real estate tax purposes or in otherwise
contesting the amount of any of the real estate taxes or other
governmental charges described above, but "Taxes" shall not
include any franchise, profit, estate, inheritance or income
tax imposed on Landlord. If, due to a change in the method of
taxation of any tax which would otherwise constitute Taxes, a
new or additional tax, however designated, shall be levied
against Landlord, and/or the Property, in addition to or in
substitution, in whole or in part, for any tax which would
otherwise constitute "Taxes", or in lieu of additional Taxes,
such tax or imposition shall be deemed for the purposes hereof
to be included within the term "Taxes".
(ii) "Tax Base" shall mean the Taxes, as finally
determined, for the July 1, 1998 to June 30, 1999 Tax Year.
(iii) "Base Operating Expenses" shall mean Operating
Expenses for calendar year 1998.
(iv) "Tenant's Proportionate Share" shall mean 5.01%.
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(v) "Tax Year" shall mean each period of twelve months,
commencing on the first day of July, in which occurs any part
of the Term or such other period as may hereafter be adopted
as the fiscal year for real estate tax purposes of The City of
New York.
(vi) "Landlord's Tax Statement" shall mean an annual
statement setting forth the amount payable by Tenant for a
specified Tax Year pursuant to this Article 5.
(B) PAYMENTS - TAX ESCALATIONS.
(i) If Taxes payable in any Tax Year shall exceed the
Tax Base, Tenant shall pay as additional rent a sum
(hereinafter referred to as "Tenant's Tax Payment") equal to
Tenant's Proportionate Share of the amount by which the Taxes
for such Tax Year exceed the Tax Base.
(ii) Landlord may xxxx Tenant monthly for one-twelfth
(1/12th) of the estimated increases in the current year in
Taxes over the Tax Base. Any refund due Tenant resulting from
over-estimates of actual Taxes shall be made within 45 days of
receipt of actual tax amounts. Landlord shall have the sole
right to institute tax reduction proceedings.
(iii) If the Tax Year shall be changed during the Term,
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 equitably apportioned.
(C) PAYMENTS - OPERATING EXPENSES.
(i) "Operating Expenses" shall mean the aggregate of all
costs and expenses (including taxes, if any, thereon) paid or
incurred by or on behalf of Landlord (whether directly or through
independent contractors) in connection with the operation and
maintenance of the Property, except as provided herein. Operating
Expenses shall be calculated on the accrual basis of accounting and
shall include, without limitation, the following expenses:
(a) salaries, wages, pension and welfare payments or
contributions and all medical, insurance and other
fringe benefits paid to, for or with respect to all
persons (whether they be employees of Landlord, its
managing agent or any independent contractor) for their
services in the operation (including, without
limitation, security services), maintenance, repair or
cleaning of the Property, and payroll taxes, workers'
compensation, uniforms and dry cleaning costs for such
persons;
(b) payments under service contracts with independent
contractors for operating (including, without
limitation, providing security services), maintaining,
repairs, or cleaning of the Property or any portion
thereof or any fixtures or equipment therein;
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(c) all costs or charges for steam, heat, ventilation, air
conditioning and water (including sewer rents) furnished
to the Property and/or used in the operation of the
Property and all costs or charges for electricity
furnished to the public and service areas of the
Property and/or used in the operation of the service
facilities of the Property, including any taxes on any
such utilities;
(d) repairs and replacements which are appropriate to the
continued operation of the Property as a first-class
Manhattan office building and are not capitalized (to
the extent the cost of any such repair and/or
replacement is capitalized, paragraph (j) below shall
apply);
(e) cost of lobby decoration, and painting and decoration of
non-tenant areas;
(f) cost of snow removal and landscaping in and about the
Property;
(g) cost of building and cleaning supplies and equipment,
cost of replacements for tools and equipment used in the
operation, maintenance and repair of the Property and
charges for telephone service for the Property;
(h) financial expenses incurred in connection with the
operation of the Property, such as insurance premiums,
including, without limitation, liability insurance, fire
and other casualty insurance, rent insurance and any
other insurance that is then generally carried by owners
of major first-class office buildings in Manhattan or
may be required by the holder of any mortgage on the
Property, attorneys' fees and disbursements (exclusive
of any such fees and disbursements incurred in
connection with the leasing of space in the Property or
any "landlord-tenant" matters), auditing and other
professional fees and expenses, association dues and
other ordinary and customary financial expenses incurred
in connection with the operation of the Property;
(i) reasonable and customary management fees payable to a
management company (which may be owned or controlled by
Landlord or Landlord's principals);
(j) the cost of capital improvements made by Landlord either
(1) to reduce Operating Expenses, but only to the extent
of savings actually realized, or (2) pursuant to any
Legal Requirements enacted after the date hereof, which
cost shall be included in Operating Expenses for the
lease year in which such improvement is made, provided
that
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to the extent the cost of such capital improvement is
capitalized, such cost shall be amortized on a
straight-line basis over the useful life thereof, and
the annual amortization of such capital improvement
shall be included in Operating Expenses;
(k) rental payments made for equipment used in the operation
and maintenance of the Property;
(l) the cost of governmental licenses and permits, or
renewals thereof, necessary for the operation of the
Property; and
(m) all other reasonable and necessary expenses paid in
connection with the operation, maintenance, repair and
cleaning of the Property which are properly chargeable
against income.
Landlord may use related or affiliated entities to provide services
or furnish material for the Property provided that the rates or fees
charged by such entities are reasonably competitive with those
charged by unrelated or unaffiliated entities in the Borough of
Manhattan for the same services or materials.
The following costs and expenses shall be excluded from Operating
Expenses: (1) real estate taxes; (2) debt service, amortization of
principal and penalties, refinancing costs, or ground rent under any
ground lease; (3) leasing commissions and expenses; (4) the cost of
electrical energy or other utilities furnished directly to the
tenants of the Property and the administrative costs in connection
therewith; (5) the cost of tenant installations and decorations
incurred in connection with preparing space for any tenant or any
other occupant (including the cost of removing tenant installation
or demolition of tenanted space); (6) salaries or fringe benefits of
personnel above the grade of building manager; (7) the cost of any
item to the extent to which such cost is reimbursed to Landlord by
tenants of the Property (other than pursuant to this Article) or
through insurance or condemnation proceeds, or third parties; (8)
depreciation of the Property, amortization (except as provided
above) and other non-cash charges; (9) repairs or other work due to
fire or other casualty; (10) legal fees related to "landlord-tenant"
matters, including lease negotiations and litigation; and (11)
advertising or promotional expenses.
(ii) For each calendar year during the term of this
Lease, Tenant shall pay to Landlord as Additional Rent for the
Premises an amount equal to Tenant's Proportionate Share of the
amount by which Operating Expenses for such calendar year exceed
Base Operating Expenses (such excess being referred to herein as the
"Operating Excess").
(iii) On account of its obligations in respect of
Operating Expenses, Tenant shall pay to Landlord, monthly, in
advance, together with each monthly installment of Minimum Rent, an
amount equal to one-twelfth (1/12th) of Tenant's Proportionate Share
of the Operating Excess for the preceding lease year. Such amount
may be adjusted by Landlord not more than
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once a year, at any time during the term hereof, on notice to
Tenant, to an amount equal to one-twelfth (1/12th) of Tenant's
Proportionate Share of the Operating Excess with respect to the
preceding lease year plus one-twelfth (1/12th) of Landlord's
good-faith estimate of the amount by which Tenant's Proportionate
Share of the Operating Excess will increase during the current lease
year.
(iv) Within one hundred eighty (180) days following the
end of each calendar year, Landlord shall furnish to Tenant a
written statement ("Landlord's Operating Statement") in reasonable
detail covering the calendar year just expired showing the total
Operating Expenses for such calendar year, the amount of Tenant's
Proportionate Share of the Operating Excess for such year, and
payments, if any, made by Tenant with respect thereto.
(D) In the event that the date of the expiration or other
termination of this Lease shall be a day other than the last day of a Tax Year
or a calendar year, then, in such event, in applying the provisions of this
Article with respect to any Tax Year (for the purpose of calculating Tenant's
share of Taxes) or calendar year (for the purpose of calculating Tenant's share
of Operating Expenses), appropriate adjustments shall be made to reflect the
occurrence of such event on a basis consistent with the principles underlying
the provisions of this Article taking into consideration that the lease
expiration date occurred during a partial lease year.
(E) In no event shall the Minimum Rent ever be reduced by
operation of this Article 5. Landlord's failure to render a Landlord's Tax
Statement with respect to any Tax Year or a Landlord's Operating Statement with
respect to any calendar year, respectively, shall not prejudice Landlord's right
to thereafter render a Landlord's Tax Statement or Landlord's Operating
Statement with respect thereto or with respect to any subsequent Tax Year or
calendar year.
(F) Each of Landlord's Tax Statements and Landlord's Operating
Statements shall be conclusive and binding upon Tenant unless (i) pending the
determination of such dispute by agreement or otherwise, Tenant shall pay
additional rent in accordance with the applicable Landlord's Tax Statement
and/or Landlord's Operating Statement, as the case may be, without prejudice to
Tenant's position, and (ii) within sixty (60) days after receipt of such
Landlord's Tax Statement and/or Landlord's Operating Statement, Tenant shall
notify Landlord in writing that it disputes the correctness thereof. In the
event of such a dispute, Tenant may, upon fourteen (14) days' prior notice,
elect to have Tenant's designated (in Tenant's dispute notice) certified public
accountant who is a member of a recognized firm of certified public accountants
examine during business hours, at Landlord's office or at such other location in
The City of New York as Landlord may designate, such of Landlord's books and
records Tenant as are directly relevant to the Landlord's Statement in question.
In connection with any examination by Tenant of Landlord's books and records,
Tenant agrees to treat, and to instruct its employees, accountants and agents to
treat, all information as confidential and not disclose it to any other person
except as may be required by law or in connection with any dispute with Landlord
under this Lease relating thereto. Each party shall be responsible for its own
fees in connection with such dispute, except that if it shall be finally
determined pursuant to this Section 5F that the Landlord's Tax Statement and/or
Landlord's Operating Statement (i) overstated Tenant's Operating Payment by more
than 5%, Landlord shall reimburse Tenant for the reasonable costs and expenses
incurred by Tenant
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with respect to such dispute and (ii) overstated Tenant's Operating Payment by
less than 3%, Tenant shall reimburse Landlord for the reasonable costs and
expenses incurred by Landlord with respect to such dispute.
(G) Tenant's obligations under this Article shall survive the
expiration or earlier termination of the term of this Lease.
LATE PAYMENT CHARGE:
6. (A) If Tenant shall fail to make any payment of Minimum Rent
or Additional Rent for more than five (5) days after the same is due and
payable, Tenant shall pay a late payment charge of $.05 for each $1.00 which
remains unpaid to compensate Landlord for additional expenses in processing such
late payment. In addition, if Tenant fails to pay any Minimum Rent or Additional
Rent when due, Tenant shall pay interest thereon from the date due until the
date paid at an annual rate of 10%, and such interest shall be deemed to be
Additional Rent hereunder.
(B) If any check of Tenant shall be returned for insufficient
funds, there shall be an additional charge to Tenant of $50.00 and, thereafter,
at the request of Landlord, Tenant shall make all payments required hereunder by
certified or official bank check only.
ALTERATIONS:
7. (A) Tenant shall make no changes in or to the demised premises
of any nature without Landlord's prior written consent. Subject to the prior
written consent of Landlord, and to the provisions of this article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
("Alterations") 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, mechanics, engineers and architects reasonably
acceptable to Landlord. Tenant agrees that all Alterations shall be performed by
Tenant in accordance with Landlord's Uniform Rules and Regulations for
Alterations. Tenant agrees to use Landlord's approved engineer for the Building
for the preparation of all construction documents and drawings pertaining to any
Alterations and to use Landlord's architect to file all plans with and obtain
all required permits from appropriate governmental authorities. All fixtures and
all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Landlord in Tenant's behalf, shall,
upon installation, become the property of Landlord and shall remain upon and be
surrendered with the demised premises unless Landlord, by notice to Tenant no
later than twenty days prior to the date fixed as the termination of this Lease,
elects to relinquish Landlord'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 this Lease, at Tenant's expense. Nothing in this
article shall be construed to give Landlord 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 Landlord, Tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation, other
than as a result of reasonable wear and tear 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 Landlord,
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either be retained as Landlord's property or may be removed from the premises by
Landlord at Tenant's expense. Provided Tenant so requests in writing when
submitting its plans to Landlord for Landlord's approval, Landlord shall advise
Tenant as to whether Tenant will be required to remove the alterations set forth
in such plans at the end of the term. Tenant shall, before making any
alterations, additions, installations or improvements, at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Landlord 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 Landlord may require. If
any mechanic's lien is filed against the demised premises, or the building of
which the same forms a part, for work claimed to have been done for, or
materials furnished to, Tenant, whether or not pursuant to this article, the
same shall be discharged by Tenant within ten days thereafter, at Tenant's
expense, by filing the bond required by law.
(B) Tenant agrees that with respect to the performance by
Tenant of any Alterations costing in excess of $10,000, Tenant shall pay to
Landlord, as additional rent hereunder, promptly upon being billed therefor, a
sum equal to Landlord's actual out-of-pocket costs and expenses including,
without limitation, the fees of any architect or engineer employed by Landlord,
indirect costs, field supervision and coordination in connection therewith.
(C) (i) Before proceeding with any Alteration estimated to cost in
excess of $25,000.00, Tenant shall furnish to Landlord one of the following (as
selected by Landlord): (a) a cash deposit or (b) a performance bond and a labor
and materials payment bond (issued by a corporate surety licensed to do business
in New York reasonably satisfactory to Landlord), or (c) an irrevocable,
unconditional, negotiable letter of credit, issued by and drawn on a bank or
trust company which is a member of the New York Clearing House Association in a
form reasonably satisfactory to Landlord; each in an amount equal to one hundred
twenty (120%) percent of the estimated cost of the Alteration.
(ii) Upon (a) the completion of the Alteration in accordance
with the terms of this Article and (b) the submission to Landlord of proof
evidencing the payment in full for said Alteration including, but not limited
to, delivery of Waivers of Mechanic Liens (as defined below), the security
deposited with Landlord (or the balance of the proceeds thereof, if Tenant has
furnished cash or a letter of credit and if Landlord has drawn on the same)
shall be returned to Tenant.
(iii) Upon the Tenant's failure to properly perform, complete
and fully pay for the said Alteration, as reasonably determined by Landlord, for
ten (10) days after notice (except in the event of an emergency in which event
there shall be no notice), Landlord shall be entitled to draw on the security
deposited under this Article and Article 33 to the extent it deems necessary to
complete any incomplete or otherwise hazardous Alteration, to effect any
necessary restoration and/or protection of the Premises or the Real Property and
to apply such funds to the payment or satisfaction of any costs, damages or
expenses in connection with the foregoing and/or Tenant's obligations under this
Article and the Lease relating to Alterations and repairs, including the
satisfaction of any mechanic's lien.
(D) If in connection with any Alterations Tenant shall hire
the services of any contractor or construction manager, Tenant shall enter into
an agreement with such party which
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shall provide that such contractor or construction manager, as well as all
subcontractors, materialmen and suppliers hired in connection therewith (all of
the foregoing known collectively as the "Contractors"), shall upon receiving any
payment respecting such Alterations deliver to Tenant a duly executed Waiver of
Mechanic's Lien evidencing payment in full for the cost of work, labor and/or
services theretofore furnished. Said Waivers of Mechanic's Lien shall name the
Landlord and Tenant as the beneficiaries of such Waivers and shall be in a form
reasonably acceptable to Landlord. Prior to the commencement of any Alterations,
a form of the Waiver of Mechanic's Lien to be given by each such Contractor must
be approved by Landlord.
(E) All Alterations shall be performed by Tenant in compliance
with the Rules and Regulations, all applicable requirements of insurance bodies,
and with Legal Requirements and the same shall be diligently performed in a good
and workmanlike manner.
(F) Tenant agrees that Tenant will not at any time during the
term hereof, either directly or indirectly, use any contractors and/or labor
and/or materials if the use of such contractors and/or labor and/or materials
would or will create any difficulty with other contractors and/or labor engaged
by Tenant or Landlord or others in the maintenance and/or operations of the
Building or any part thereof.
SERVICES PROVIDED BY LANDLORD - REPAIRS, WATER,
ELEVATORS, HEAT, CLEANING, AIR CONDITIONING:
8. (A) Repairs. (i) Landlord shall maintain and promptly repair
the public portions of the building, both exterior and interior. Tenant shall,
throughout the term of this Lease, take good care of the demised premises and
the fixtures and appurtenances therein and at Tenant's sole cost and expense,
make all non-structural repairs thereto as and when needed to preserve them in
good working order and condition, reasonable wear and tear, obsolescence and
damage from the elements, fire or other casualty, excepted. Notwithstanding the
foregoing, all damage or injury to the demised premises or to any other part of
the building, or to its fixtures, equipment and appurtenances, whether requiring
structural or non-structural repairs, caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's servants, employees,
invitees or licensees, shall be repaired promptly by Tenant at its sole cost and
expense, to the satisfaction of Landlord reasonably exercised. Tenant shall also
repair all damage to the building and the demised premises caused by the moving
of Tenant's fixtures, furniture or equipment. All the aforesaid repairs shall be
of quality or class equal to the original work or construction. If Tenant fails
after ten days' notice to proceed with due diligence to make repairs required to
be made by Tenant, the same may be made by the Landlord at the expense of Tenant
and the expenses thereof incurred by Landlord shall be collectible as additional
rent after rendition of a xxxx or statement therefor. Tenant shall give Landlord
prompt notice of any defective condition in any plumbing, heating system or
electrical lines located in, servicing or passing through the demised premises
and following such notice, Landlord shall remedy the condition with due
diligence but at the expense of Tenant if repairs are necessitated by damage or
injury attributable to Tenant, Tenant's servants, agents, employees, invitees or
licensees as aforesaid. Except as specifically provided in Article 13 or
elsewhere in this lease, there shall be no allowance to Tenant for a diminution
of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making or failing to make any repairs, alterations, additions or
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improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. The provisions of this
Article 8 with respect to the making of repairs shall not apply in the case of
fire or other casualty which are dealt with in Article 13 hereof.
(ii) Landlord reserves the right, upon reasonable prior notice
if reasonably practicable under the circumstances, to stop or reduce service of
any of the elevator, plumbing, heating, ventilating, air-conditioning, sanitary,
sprinkler, water, power or other Property systems or cleaning or other services,
if any, when necessary by reason of accident or for repairs, alterations,
replacements or improvements necessary or desirable in the judgment of Landlord
for as long as may be reasonably required by reason thereof or by reason of
strikes, accidents, laws, order or regulations or any other reason beyond the
control of Landlord.
(B) HVAC. (i) Landlord shall, subject to energy conservation
requirements of governmental authorities, supply heating, ventilation, and air
conditioning to the Premises from 8:00 AM to 6:00 PM on business days. Landlord
will, when and to the extent reasonably requested by Tenant, furnish additional
air conditioning and ventilation services and Tenant will pay Landlord's
Building standard charge therefor. The Building standard heating ventilation and
air conditioning system (the "HVAC system") is designed to meet the following
specifications:
Winter Design 72 degrees Fahrenheit
(ASHRAE (1985) - inside when no less than 11
degrees Fahrenheit outside;
humidity control so as not
to cause condensation on
the inside of the windows.
Summer Design 74 degrees Fahrenheit and
(ASHRAE (1985) - 50% relative humidity
inside when no more than 86
degrees Fahrenheit outside
air temperature.
During the hours set forth above on business days (and during any
other hours when the same is provided at Tenant's request and expense pursuant
to this Section 8(B)), the HVAC system will supply outside air at no less than
0.133 CFM per rentable square foot of space in the Premises.
Temperature performance measured 2 feet from inside mullion and 5
feet above floor.
Notwithstanding the foregoing provisions of this Section 8B,
Landlord shall not be responsible if the normal operation of the HVAC system
shall fail to provide air at reasonable temperatures, pressures or degrees of
humidity or in reasonable volumes or velocities in any portion of the Premises
(i) which shall have an electrical load in excess of 4.5 xxxxx per usable square
foot of Premises area for all purposes (including lighting and power), or which
shall have a human occupancy factor in excess of one (1) person per one hundred
twenty-five (125) usable square feet of Premises area, or (ii) because of any
arrangement of partitioning or other improvements made or performed by or on
behalf of Tenant or any person claiming through or under Tenant. Whenever such
HVAC system is in operation, Tenant agrees to draw the blinds or other window
coverings. Tenant shall cooperate fully with Landlord at all times and abide by
all regulations and requirements which Landlord may reasonably prescribe for the
proper functioning and protection of the heating, air conditioning and
ventilation system. Landlord shall maintain in good working order the HVAC
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system serving the demised premises, provided the need for such maintenance does
not arise as a result of the negligence or misuse of Tenant. No representation
is made by Landlord with respect to the adequacy or fitness of such air
conditioning or ventilation to maintain temperatures as may be required for, or
because of, the operation of any computer, data processing or other equipment of
Tenant, and where air conditioning or ventilation is required for any such
purpose, Landlord assumes no responsibility, and shall have no liability, for
any loss or damage, however sustained, in connection therewith.
(ii) Landlord and Tenant acknowledge that there is a three (3) ton
supplemental HVAC unit located on the twenty-first (21st) floor which services a
portion of the 21st floor portion of the Premises. Tenant shall be obligated to
pay Landlord, as Additional Rent, for condenser water for such unit at the rate
of $500 per ton per year. Such payment shall be payable on an annual basis
within ten (10) days from written demand thereof. The above charges are subject
to increase from time to time during the term of the Lease in direct proportion
to increase(s) in costs incurred by Landlord attributable thereto. Landlord
represents and warrants that such unit shall be in good working order on the
Commencement Date. Tenant shall, at its sole cost and expense, maintain the unit
in good order and repair throughout the term of this Lease. Such maintenance
obligations shall be performed throughout the term of this Lease, on Tenant's
behalf by a reputable air conditioning maintenance company engaged by Tenant at
its expense, and first approved by Landlord. In the event Tenant shall fail to
engage an air conditioning maintenance company as aforesaid, Landlord may (but
shall not be obligated to) perform such maintenance and/or engage an air
conditioning maintenance company at Tenant's expense to perform the aforesaid
maintenance to the unit, and Tenant shall pay on demand as Additional Rent
hereunder all expenses incurred by Landlord in connection therewith.
Notwithstanding the foregoing, provided Tenant has fulfilled all of its
obligations with regard to obtaining a maintenance contract in connection with
the unit as set forth in this paragraph and to the extent the need for the same
shall not have resulted from Tenant's misuse of the unit or Tenant's negligence,
if it becomes necessary to replace the unit during the Term, Landlord shall be
responsible therefore and Tenant shall pay Landlord annually as additional rent
during the balance of the Term an amount equal to what the annual amortization
of such cost would be if it was capitalized and amortized on a straight-line
basis over the useful life of the unit; otherwise, Tenant shall be responsible
for such replacement at its expense. Tenant shall surrender the unit in good
working order on the expiration or sooner termination of this Lease.
(C) Water. Landlord shall furnish adequate hot and cold water
for drinking, lavatory and normal cleaning purposes. If Tenant uses water for
any other purpose, Landlord may install and maintain, at Tenant's expense,
meters to measure Tenant's consumption of cold water and/or hot water for such
other purpose. Tenant shall reimburse Landlord on demand for the cost of cold
water and hot water shown on such meters.
(D) Cleaning. Landlord shall cause the Premises, including the
exterior and interior of the exterior windows, to be cleaned in a manner
standard to the Property (which current standard is attached hereto as Exhibit C
and is subject to change). Landlord shall not be required to clean any portions
of the Premises used for the preparation, serving or consumption of food or
beverages, training rooms, data processing or reproducing operations or private
lavatories or toilets (i.e., other than core bathrooms). Tenant shall pay to
Landlord on demand the costs incurred by Landlord for (i) extra cleaning work in
the Premises required because of (1) the act, omission, misuse or neglect of or
by Tenant or any subtenant or licensee, or their
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respective employees, agents, contractors or invitees, (2) use of portions of
the Premises for special purposes requiring greater or more difficult cleaning
work than required in normal office areas, (3) interior glass partitions or
unusual quantity of interior glass surfaces, other than those in place as of the
date of this Lease, and (4) special materials or finishes on items installed by
Tenant or its subtenants, (ii) collection and removal from the Premises and the
Property of any refuse or rubbish of Tenant in excess of that ordinarily
accumulated in general office occupancy.
(E) Elevator. Landlord shall provide passenger elevator
service to the Premises during business hours, and Landlord shall have at least
one passenger elevator subject to call at all other times. If Tenant requires
freight elevator service at any time, or more than one passenger elevator at any
time other than during business hours, Landlord shall furnish such service upon
not less than 48 hours' advance notice from Tenant, and Tenant shall pay to
Landlord on demand Landlord's then established charges therefor. The use of the
elevators shall be subject to the Rules and Regulations. Tenant may request that
Landlord program the elevators servicing the demised premises so that the
elevators do not provide access to the demised premises before 8:00 a.m. and
after 6:00 p.m. on business days and at all times on non-business days. In such
event, Tenant, its employees, agents and invitees will be allowed access to the
demised premises during such periods provided they comply with Rule 18 of the
Rules and Regulations attached hereto as Exhibit B, as well as such other rules
or security requirements as Landlord may impose in its sole discretion.
WINDOW CLEANING:
9. Tenant will not clean, nor require, permit, suffer or allow any
window in the demised premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law or any other applicable law or of the rules of the
Board of Standards and Appeals, or of any other board or body having or
asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
10. Prior to the commencement of the Lease term, if Tenant is then
in possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire Underwriters
or any similar body which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the demised premises whether or not arising
out of Tenant's use or manner of use thereof, or with respect to the building if
arising out of Tenant's use or manner of use of the premises or the building
(including the use permitted under this Lease). Nothing herein shall require
Tenant to make structural repairs or alterations unless Tenant has by its
particular 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. Notwithstanding the foregoing, during the Term Landlord
shall, at Landlord's sole cost and expense and upon receipt of actual notice
thereof from any governmental authority having jurisdiction thereof, perform any
work necessary to cure any violations within the demised premises of the
Americans with Disabilities Act (42 U.S.C. Section 12101 et. seq.), as the same
may hereafter be amended ("ADA Violations"). Such obligation of Landlord to cure
ADA Violations is subject, however, to the following conditions: (a) Tenant
shall use reasonable efforts to prevent the occurrence of any ADA Violations and
(b) Tenant shall perform all work necessary to cure ADA Violations which arise
out of Tenant's particular manner of use of the demised premises or any
Alterations performed by or on behalf of Tenant and Landlord shall have no
responsibility with respect thereto. Tenant may, after securing Landlord to
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Landlord's satisfaction against all damages, interest, penalties and expenses,
including, but not limited to, reasonable attorneys' fees, by cash deposit or by
surety bond in an amount and in a company satisfactory to Landlord, 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 Landlord to prosecution for a criminal offense or constitute a
default under any lease or mortgage under which Landlord may be obligated, or
cause the demised premises or any part thereof to be condemned or vacated.
Tenant shall not do or permit any act or thing to be done in or to the demised
premises which is contrary to law, or which will invalidate or be in conflict
with public liability, fire or other policies of insurance at any time carried
by or for the benefit of Landlord with respect to the demised premises or the
building of which the demised premises form a part, or which shall or might
subject Landlord to any liability or responsibility to any person or for
property damage, nor shall Tenant 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 Landlord 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
Landlord, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Landlord which shall have been charged because of
such failure by Tenant, and shall make such reimbursement upon the first day of
the month following such outlay by Landlord. In any action or proceeding wherein
Landlord 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 rate then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which it was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installation shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Landlord's
judgment, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION:
11. The rights of Tenant under this Lease shall be and are subject
and subordinate at all times to all ground leases, and/or underlying leases, if
any, now or hereafter in force against the Property, and to each and every
mortgage or deed of trust which may now or hereafter be placed by Landlord on
its interest in the Property, and to all increases, renewals, modifications,
consolidations, replacements and extensions thereof. This Article is
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination Tenant shall promptly execute such further
instruments as may be requested by Landlord. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact for Tenant with full power and authority to execute
and deliver in the name of Tenant any such instrument or instruments. To the
extent not so provided by applicable law, in the event of the enforcement by
such mortgagee of the remedies provided for by law or by the mortgage, if such
mortgagee or any successors or assigns of such mortgagee shall, at its or their
sole option, succeed to the interest of Landlord under this Lease, whether
through possessory or foreclosure action or a deed in lieu of foreclosure, and
this Lease shall not be terminated or affected by such foreclosure or
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any such proceedings, Tenant, at the election of such mortgagee or its
successors or assigns, shall attorn to and recognize such mortgagee (or its
successors or assigns) as its landlord upon the terms, covenants, conditions and
agreements contained in this Lease to the same extent and in the same manner as
if this Lease was a direct lease between such mortgagee (or its successors or
assigns) and Tenant, except that such mortgagee (or its successors or assigns),
whether or not it shall have succeeded to the interest of Landlord under this
Lease, shall not (a) have any liability for refusal or failure to perform or
complete any work required to be performed by Landlord under this Lease to
prepare the demised premises for occupancy in accordance with the provisions of
this Lease or otherwise, (b) be liable for any act, omission or default of any
prior landlord under this Lease, (c) be subject to any offsets, claims or
defenses which shall have heretofore accrued to Tenant against any prior
landlord under this Lease, (d) be bound by any rent or additional rent which
Tenant might have paid to any prior landlord for more than one (1) month in
advance, and/or (e) be bound by any cancellation, abridgement, surrender,
modification or amendment of this Lease, without the prior written consent of
such mortgagee or such successor in interest. Upon request by said successor in
interest, Tenant shall execute and deliver an instrument or instruments
confirming such attornment. Landlord shall deliver to Tenant a non-disturbance
agreement from the current mortgagee in the form of Exhibit E attached hereto
simultaneously with the execution and delivery of this Lease. Landlord shall
endeavor (without being obligated to commence any legal proceedings or otherwise
to incur any costs in connection therewith) to obtain for the benefit of Tenant
a non-disturbance agreement from any future mortgagee of Landlord's interest in
the Property, on such mortgagee's standard form.
PROPERTY -- LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
12. (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 for any damage to property of Tenant or of
others entrusted to employees of the Building, nor for any injury to Tenant or
to any other person or for any damage to, or theft or other loss of, any of
Tenant's property or of the property of any other person resulting from any
cause of whatsoever nature, unless due to the gross negligence of Landlord or
Landlord's agents provided, however, that even if due to any such gross
negligence of Landlord or Landlord's agents, Tenant waives, to the fullest
extent permitted by law, any claim for consequential damages in connection
therewith; nor shall Landlord or its agents 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 law)
for any reason whatsoever including, but not limited to Landlord's own acts,
Landlord 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 not move any safe, heavy
machinery, heavy equipment, bulky matter, or fixtures into or out of the
building without Landlord's prior written consent. If such safe, machinery,
equipment, bulky matter or fixtures requires special handling, all work in
connection therewith shall comply with the Administrative Code of the City of
New York and all other laws and regulations applicable thereto and shall be done
during such hours as Landlord may designate.
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(B) Tenant shall indemnify and save harmless Landlord against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Landlord shall not be reimbursed by insurance, including
reasonable attorneys' fees, paid, suffered or incurred in connection with or
arising from (i) any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this Lease, or (ii) the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees, or (iii) the use or occupancy of
the Premises by Tenant or any person claiming under Tenant, or (iv) 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. 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 this Section.
Tenant's liability under this Lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant, upon written notice from Landlord, will, at
Tenant's expense, resist or defend such action or proceeding by counsel approved
by Landlord in writing, such approval not to be unreasonably withheld.
(C) Tenant shall look only to Landlord's estate and interest
in the Building for the satisfaction of Tenant's remedies or for the collection
of a judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or liability by Landlord hereunder, and no
other property or assets of Landlord and no property of any officer, employee,
director, shareholder, partner or principal of Landlord 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 Tenant's use or occupancy of the demised premises.
(D) The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
DESTRUCTION, FIRE AND OTHER CASUALTY:
13. (A) If the demised premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord 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 (including Tenant's inability to have reasonable access to
such unusable area, provided Tenant shall not occupy the unusable area) by fire
or other casualty, the damages thereto shall be repaired promptly after receipt
of insurance proceeds by and at the expense of Landlord 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 (including Tenant's inability to have
reasonable access to the demised premises, provided that Tenant shall not occupy
the demised premises), then the rent shall be proportionately 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 Landlord, or reasonable access
to the demised premises shall have
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then been restored, as the case may be, subject to Landlord's right to elect not
to restore the same as hereinafter provided.
(D) If the demised premises are rendered wholly unusable
(including Tenant's inability to have reasonable access to the demised premises)
or (whether or not the demised premises are damaged in whole or in part) if the
building shall be so damaged that Landlord shall decide to demolish it or to
rebuild it, then, in any of such events, Landlord may elect to terminate this
Lease by written notice to Tenant given within 90 days after such fire or
casualty specifying a date for the expiration of this 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 if such date were the date set forth above for 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 Lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments or rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant.
(E) Unless Landlord shall serve a termination notice as
provided for herein, Landlord shall make the repairs and restorations under the
conditions of Sections 13(B) and (C) hereof, with all reasonable expedition
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond Landlord's control. After any such casualty, Tenant shall
cooperate with Landlord'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 Landlord that the premises are
substantially ready for Tenant's occupancy.
(F) 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 insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law,
Landlord and Tenant each hereby releases and waives all right of recovery
against the other or any one 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 the insurance and also, provided that
such a policy can be obtained without additional premiums. Tenant acknowledges
that Landlord 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 Landlord will not be obligated to repair any damage thereto or
replace the same.
(G) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
(H) Notwithstanding anything herein to the contrary, if the
demised premises are totally or substantially damaged, then Landlord (if it has
not theretofore cancelled this Lease pursuant to the provisions of this Article)
shall within ninety (90) days after such fire or casualty obtain and deliver to
Tenant an estimate from a reliable contractor as to whether or not the demised
premises can be repaired and restored under a normal working schedule within
twelve (12) months from the date
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of such fire or casualty. If such estimate states that the demised premises
cannot be so restored, Tenant may, within thirty (30) days after receipt of the
estimate, upon thirty (30) days written notice to Landlord, elect to terminate
this Lease as of the date set forth in such notice. If within twelve (12) months
(such period to be extended (i) to the extent of delays caused by Tenant or (ii)
for a maximum of two (2) months due to force majeure) after the fire or
casualty, the demised premises have not been substantially restored by Landlord,
Tenant may, within thirty (30) days after the end of such period, upon thirty
(30) days written notice to Landlord, cancel and terminate this Lease as of the
date set forth in such notice. If Tenant exercises its right to terminate this
Lease pursuant to this paragraph, this Lease shall terminate as of the date set
forth in Tenant's notice as if such date were the stated Expiration Date of this
Lease and Landlord shall have no further duty to repair and/or restore the
demised premises. In addition, in the event such a casualty (i.e., total or
substantial damage to the Premises) shall occur during the final twelve (12)
months of the Term, and if Landlord's engineer estimates that it shall take more
than ninety (90) days after such casualty to perform Landlord's restoration
obligations under this Article 13, Tenant may, within thirty (30) days of such
estimate being delivered to both parties hereto (time being of the essence),
give written notice to Landlord of its intent to terminate this Lease, and if
such restoration work shall not be substantially completed within ninety (90)
days of the giving of such notice, this Lease shall terminate as of such
thirtieth (30th) day following the casualty as if it were the Expiration Date.
Also, in the event such a casualty shall occur during the final twelve (12)
months of the Term, and if Landlord's engineer estimates that it shall take more
than ninety (90) days after such casualty to perform Landlord's restoration
obligations under this Article 13, Landlord may, within thirty (30) days of such
estimate being delivered to both parties hereto (time being of the essence),
give written notice to Tenant of its intent to terminate this Lease, and in such
event, this Lease shall terminate as of such thirtieth (30th) day following the
casualty as if it were the Expiration Date.
EMINENT DOMAIN:
14. 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 this Lease.
ASSIGNMENT, MORTGAGE, ETC.:
15. (A) Except as otherwise provided in this Article, Tenant, for
itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Landlord in each instance. If this Lease be assigned, or if
the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Landlord 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 Landlord to an assignment or
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underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting.
(B) If Tenant shall, at any time or times during the term of
this Lease, desire to assign this Lease or sublet the demised premises in whole
or in part, Tenant shall submit a written request therefor to Landlord, which
request shall be accompanied by: (i) the material terms and conditions of the
proposed assignment or subletting (but shall not be required to identify any
proposed assignee or subtenant), (ii) a description of the proposed sublet
space, and (iii) any other information as Landlord shall reasonably request
(such information shall be referred to herein as the "Offer"). Such Offer shall
be deemed an offer from Tenant to Landlord whereby Landlord (or, at Landlord's
election, its designee) may terminate this Lease (but in the event of a proposed
sublease with respect only to the space proposed to be sublet, in which event
Landlord and Tenant shall enter into an agreement to account for the change in
the financial obligations hereunder and other appropriate modifications), and
Tenant shall vacate and surrender the demised premises (or the proposed space to
be sublet, as the case may be) in accordance with the terms hereof as of the
effective date of the proposed assignment or sublease (the "Termination Date")
and the term of this Lease shall end (as to the entire Premises or with respect
to the proposed sublet space, as the case may be) on the Termination Date as if
such date were the Expiration Date. The aforesaid option may be exercised by
Landlord by notice to Tenant at any time within thirty (30) days after such
notice has been given by Tenant to Landlord, and during such thirty (30) day
period, Tenant shall not assign this Lease or sublet the Premises to any person.
(C) In the event that Tenant complies with the provisions of
paragraph (B) of this Article 15 and Landlord does not exercise the option
provided to it hereunder within the time periods provided therefor, and provided
that Tenant is not in default of any of Tenant's obligations under this Lease,
Landlord's consent (which must be in writing and in form reasonably satisfactory
to Landlord) to the proposed assignment of this Lease or subletting of all or a
part of the demised premises shall not be unreasonably withheld, provided the
following conditions have been satisfied within one hundred eighty (180) days
(the "180 Day Period") from the earlier of (i) the expiration of such thirty
(30) day period described in Section (B) or the date Landlord delivers notice to
Tenant that Landlord elects not to exercise its option to lease the space:
(i) Tenant delivers to Landlord a conformed or
photostatic copy of the executed proposed assignment or sublease,
the effective or commencement date of which shall be not less than
forty-five (45) nor more than ninety (90) days after the date of
such delivery;
(ii) Tenant delivers to Landlord a statement setting
forth, in reasonable detail, the identity of the proposed assignee
or subtenant, the nature of its business and its proposed use of the
demised premises;
(iii) Tenant delivers to Landlord current financial
information with respect to the proposed assignee or subtenant,
including its most recent financial report;
(iv) the proposed assignee or subtenant is a reputable
person of good character and with sufficient financial worth
considering the responsibility
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involved, and Landlord has been furnished with reasonable proof
thereof;
(v) neither (a) the proposed assignee or sublessee nor
(b) any person that, directly or indirectly controls, is controlled
by, or is under common control with, the proposed assignee or
sublessee, is then an occupant or tenant of any part of the Building
nor negotiating to lease space in the Building unless Landlord shall
not then have comparable space in the Building available for
leasing;
(vi) the proposed assignment or sublease shall be in
form reasonably satisfactory to Landlord and shall comply with the
applicable provisions of this Article 15;
(vii) the amount of the aggregate rent to be paid by the
proposed subtenant is the result of an arm's length negotiation and
the rental and other terms and conditions of the sublease are the
same as those contained in the proposed sublease furnished to
Landlord pursuant to paragraph (B) hereof;
(viii) Tenant shall reimburse Landlord on demand for all
reasonable costs incurred by Landlord in connection with said
assignment or sublease, including the costs of making investigations
as to the acceptability of the proposed assignee or subtenant and
legal costs incurred in connection with the granting of any
requested consent;
(ix) Tenant shall not have advertised or publicized in
any way the availability of the demised premises without prior
notice to, and approval by, Landlord, which approval Landlord agrees
not to unreasonably withhold, nor shall any advertisement state the
rental rate or the name (as distinguished from the address) of the
Building;
(x) any such subletting will result in there being no
more than two (2) subtenants at the Premises;
(xi) no sublease shall be valid, and no subtenant shall
take possession of the sublet premises until an executed counterpart
of such sublease has been delivered to Landlord; and
(xii) each sublease shall expressly provide that it is
subject and subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that, in the event of any
termination, re-entry, or dispossess by Landlord under this Lease,
Landlord may, at its option, take over all of the right, title and
interest of Tenant as sublandlord under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant
to the then executory provisions of such sublease, except that
Landlord shall not (x) be liable for any previous act or omission of
Tenant under such sublease, (y) be subject to any offset, not
expressly provided in such sublease, that theretofore accrued to
such subtenant against Tenant or (z) be bound by any previous
modification of such sublease or by any prepayment of more than one
month's minimum rent or any additional rent then due.
In the event that (a) any of the material terms of the proposed
assignment or sublease document delivered to Landlord in
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accordance with paragraph (C)(i) of this Article 15 differ from the Offer
previously delivered to Landlord, or (b) Tenant fails to submit the information
required to be submitted to Landlord pursuant to this Section (C) within the 180
Day Period, or (c) the proposed assignee or subtenant shall then be a tenant of
the Building, Tenant acknowledges and agrees such delivery of the assignment or
sublease document shall be deemed a new Offer entitling Landlord to all of its
rights pursuant to Section B of this Article 15.
(D) Any assignment or transfer shall be made only if, and
shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement, in form and substance reasonably satisfactory
to Landlord, whereby the assignee shall assume all of the obligations of this
Lease on the part of Tenant to be performed or observed.
(E) If Landlord shall give its consent to any assignment of
this Lease or to any sublease of the demised premises, Tenant shall, in
consideration therefor, pay to Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to
one-half of (i) all sums and other consideration paid to Tenant by
the assignee for, or by reason of, such assignment, including all
sums paid for the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings, or other property less (ii) the
reasonable expenses proven to have been incurred by Tenant in
effecting the assignment; and
(ii) in the case of a sublease, one-half of (i) any
rents, additional charges, or other consideration payable under the
sublease by the subtenant to Tenant that are in excess of the
Minimum Rent and additional rent accruing during the term of the
sublease in respect of the subleased space (at the rate per square
foot payable by Tenant hereunder) pursuant to the terms hereof,
including all sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture or other personal
property, less (ii) the reasonable expenses proven to have been
incurred by Tenant in effecting the sublease, appropriately pro
rated over the term of the sublease. The sums payable under this
paragraph (E) shall be paid to Landlord as and when payable by the
subtenant to Tenant.
(F) A transfer of fifty (50%) percent or greater interest
(whether stock, partnership or otherwise) of Tenant, or any permitted subtenant
or assignee of this Lease shall be deemed to be an assignment of this Lease or
such sublease, however accomplished, and whether in a single transaction or in
any series of transactions, related or unrelated, to which the provisions this
Article 15 shall apply; provided, however, that any transfers of shares of
Tenant (if Tenant is a corporation) pursuant to a public offering or a public
sale of shares effected through the "over-the-counter" market or through any
recognized public stock exchange or a through tender offer (provided in the case
of a tender offer that (i) Tenant's shares shall, at the time such tender offer
is made, be traded through the "over-the-counter" market or through any
recognized public stock exchange and (ii) such tender offer is not being made in
order to circumvent the requirements of this Article 15) shall not be deemed to
be an assignment under this Lease.
(G) Notwithstanding anything herein to the contrary and
provided the same is not being done in order to circumvent the requirements of
this Article 15, Tenant may, upon
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not less than thirty (30) days' prior written notice but without Landlord's
consent:
(i) Assign this lease to a corporation or other
business entity then having a net worth at least equal to the greater of (x)
that of Tenant as of the date of this Lease and (y) that of Tenant twelve (12)
months prior to such merger or consolidation (herein called a "successor
corporation") into or with which, Tenant shall be merged or consolidated or to
which all or 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;
(ii) Sublet the Premises to a corporation or
other business entity (herein called a "related corporation") which controls, is
controlled by, or is 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, the Tenant. Tenant hereby covenants that such sublessee shall at all times
remain a corporation or entity which shall control, be controlled by, or be
under common control with Tenant (or that, upon or before its ceasing to have
such status, the sublease will have been terminated and the subtenant shall have
vacated the Premises) and a breach of such covenant shall constitute a material
default under this Lease for which Tenant shall not be given any opportunity to
cure;
(iii) 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. Tenant hereby covenants that such use may
only continue for such period as such related corporation shall control, be
controlled by or be under common control with Tenant (or that, upon or before
its ceasing to have such status, the occupancy will have been terminated and the
occupant shall have vacated the Premises) and a breach of such covenant shall
constitute a material default under this Lease for which Tenant shall not be
given an opportunity to cure; and
(iv) Assign this Lease to a related corporation
of Tenant. Tenant hereby covenants that subsequent to such assignment the
assignee shall remain a corporation or entity which shall control, be controlled
by or under common control with Tenant (or that, upon or before its ceasing to
have such status, the assignment will have been terminated and the assignee
shall have vacated the Premises) and a breach of such covenant shall constitute
a material default under this Lease for which Tenant and such assignee shall not
be given an opportunity to cure.
(H) Concurrently with assigning this Lease to a successor
corporation, the making of 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 Section (G) 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 satisfactory to Landlord. As
used herein in defining related corporation, "control" must include over fifty
(50%) percent 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.
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ELECTRIC CURRENT:
16. (A) Electricity shall be provided to Tenant in the Premises on a
so-called "rent inclusion" basis. Tenant agrees that the portion of the Minimum
Rent set forth in Article 3 above presently attributed to the furnishing of
electric current is the annual sum of $30,063.00 and is subject to increase as
hereinafter provided. Landlord will furnish electricity to Tenant through
presently installed electrical facilities for Tenant's reasonable use of such
lighting, electrical appliances, air conditioning systems and equipment as
presently exist or as Tenant may be permitted to install in the Premises,
subject to Landlord's consent. Tenant agrees that an electrical engineer or
utility consultant, selected by Landlord, may, from time to time during the
Term, make a survey of the electric lighting and power load by metering or
otherwise to determine Tenant's average monthly electrical energy consumption in
the Premises ("Tenant's Electric Consumption") based upon (i) the connected load
rating of each item consuming electric energy, (ii) Tenant's usage which shall
be determined by multiplying the connected load rating of each item by the hours
of usage as determined by the consultant, and (iii) the electric rate charged
for such load in the service classification in effect on the Commencement Date
pursuant to which Landlord then purchased electric current for the entire
Property from the public utility corporation (or any successor thereto),
inclusive of all surcharges or taxes thereon including any sales tax as a result
of the resale of such energy to Tenant. The findings of such engineer or
consultant as to the proper Minimum Rent increase based on Tenant's Electric
Consumption shall be conclusive and binding upon the parties and the amount
thereof shall be added to the Minimum Rent payable monthly on the first day of
each and every month in advance for each month from the date the change in
electrical energy consumption occurred (as determined by Landlord's electrical
engineer or utility consultant). If the electric rates on which the initial
determination of said consultant were based shall be increased, then the Minimum
Rent attributable to electricity shall be increased in the same percentage,
retroactive if necessary to the date of such increase in such electric rates. In
no event shall the Minimum Rent or any portion of the Minimum Rent attributable
to the furnishing of electric current ever be reduced by operation of this
Article 16.
(B) In the event Tenant shall dispute any findings under this
Article of the engineer or consultant designated by Landlord, Tenant may, within
thirty (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 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 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 twenty (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
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consultants shall be deemed final and conclusive. In no event shall the Minimum
Rent or any portion thereof attributable to the furnishing of electrical energy
ever be reduced by operation of this Section 16B.
(C) Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy, or other
utilities furnished to the demised premises, except for any actual physical
damage to Tenant's property by reason of any such failure or defect which is
caused by Landlord's negligence and then only after actual notice, as provided
in Article 39. Tenant's use of electric energy in the demised premises shall not
at any time exceed that portion of the capacity allocable to Tenant of (i) the
existing feeders to the Building or the electricity available to Tenant through
then existing risers or wiring installations to the Premises or (ii) any of the
electrical conductors, machinery and equipment in or otherwise serving the
demised premises (in any event, giving due consideration to the needs of
existing and potential tenants using the same risers, wiring installations or
other equipment, as well as to Landlord's electrical needs in connection with
the operation of the Building and the provision of emergency services). In order
to ensure that such capacity is not exceeded, Tenant agrees not to connect any
additional electrical equipment, fixtures, machinery or appliances of any type
to the Building electric distribution system, other than lamps, typewriters,
personal computers, copy machines, fax machines, teleconferencing equipment and
other customary office machines which consume comparable amounts of electricity,
without Landlord's prior written consent. Any additional risers, feeders, or
other equipment proper or necessary to supply Tenant's electrical requirements,
upon written request of Tenant, will be installed by Landlord at the sole cost
and expense of Tenant, if, in Landlord's sole judgment, the same will not
interfere with Landlord's present or anticipated future electrical needs with
respect to the Building and/or existing or future tenants of the Building or
cause permanent damage or injury to the Building or entail excessive or
unreasonable alterations or interfere with or disturb other tenants.
(D) Landlord reserves the right to discontinue furnishing electric
energy to Tenant at any time upon not less than sixty (60) days' written notice
to Tenant, and from and after the effective date of such termination, Landlord
shall no longer be obligated to furnish Tenant with electric energy. If Landlord
exercises such right of termination, this Lease shall remain unaffected thereby
and shall continue in full force and effect, and thereafter Tenant shall
diligently arrange to obtain electric service directly from the public utility
company servicing the Building, and may utilize the then existing electric
feeders, risers and wiring serving the demised premises to the extent that they
are available and safely capable of being used for such purpose and only to the
extent of Tenant's then authorized connected load. Landlord shall not be
obligated to pay any part of the cost required for Tenant's direct electric
service. From and after the date of such discontinuance, the Minimum Rent
payable under this Lease shall be reduced to the amount which would then have
been payable as Minimum Rent as of such date, but for the adjustments for
electrical energy under this Article. Notwithstanding the foregoing, Landlord
shall continue to provide such service for so long as legally allowed provided
that Tenant is diligently trying to obtain such service directly from the
utility company servicing the Building.
(E) Tenant acknowledges that it shall, at its sole cost and expense,
furnish, install and replace all light bulbs, light fixtures, tubes, lamps,
starters and ballasts required in the Premises.
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ACCESS TO PREMISES:
17. Landlord or Landlord'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 Landlord may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Landlord may elect to perform following Tenant's failure to make repairs
or perform any work which Tenant is obligated to perform under this Lease, or
for the purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Landlord to use and maintain and
replace pipes and conduits in and through the demised premises and to erect new
pipes and conduits therein. Landlord 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. Landlord shall use
reasonable efforts to cause such work to be conducted in a manner so as not to
unreasonably interfere with Tenant's business (except that Landlord shall have
no obligation to employ overtime labor or to incur any extraordinary costs in
connection therewith). Throughout the term hereof Landlord 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 year of the term for the purpose of showing the same to prospective tenants
upon reasonable prior notice which may be telephonic. If Tenant is not present
to open and permit an entry into the premises, Landlord or Landlord's agents may
enter the same whenever such entry may be necessary or permissible by master key
or forcibly in the event of an emergency and provided reasonable care is
exercised to safeguard Tenant's property and such entry shall not render
Landlord or its agents liable therefor, nor in any event shall the obligations
of Tenant hereunder be affected. If during the last ninety (90) days of the term
Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord 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. Landlord shall have the right at any time,
without the same constituting an eviction and without incurring liability to
Tenant therefor to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets, or other
public parts of the building and to change the name, number or designation by
which the building may be known.
VAULT, VAULT SPACE, AREA:
18. No vaults, vault space or area, whether or not enclosed or covered,
not within the property line of the building is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan or anything
contained elsewhere in this Lease to the contrary notwithstanding. Landlord
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, Landlord shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of
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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.
BANKRUPTCY:
19. (A) Anything elsewhere in this Lease to the contrary notwithstanding,
this Lease may be cancelled by Landlord 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: (i) the commencement of a case in bankruptcy or under the laws
of any state naming Tenant as the debtor; or (ii) 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 19 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 Section 19(A) hereof, Owner shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised 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 Owner for unexpired term of this 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 Owner to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT:
20. (A) If Tenant defaults in fulfilling any of the covenants of this
Lease other than the covenants for the payment of Minimum Rent or additional
rent; or if the demised premises become vacant or deserted; or if the demised
premises are damaged by reason of negligence of Tenant, its agents, employees or
invitees; 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 Tenant shall make default with
respect to any other lease between Landlord and Tenant; or if Tenant shall fail
to move into or take possession of the premises within sixty (60) days after the
commencement of the term of this Lease, of which fact Landlord shall be the sole
judge; then, in any one or more of such events, upon Landlord serving a written
ten (10) days' notice upon Tenant specifying the nature of said default and upon
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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 curing
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 Landlord 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 Landlord but Tenant shall remain
liable as hereinafter provided.
(B) If the notice provided for in Section 20(A) hereof shall have
been given, and the term shall expire as aforesaid; or if Tenant shall make
default in the payment of the Minimum Rent reserved herein or any item of
additional rent herein mentioned or any part of either or in making any other
payment herein required; then and in any of such events Landlord 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,
Landlord may cancel and terminate such renewal or extension agreement by written
notice.
REMEDIES OF LANDLORD AND WAIVER OF REDEMPTION:
21. (A) In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (i) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, together with such expenses as Landlord may incur for legal
expenses, attorneys' fees, brokerage, and/or putting the demised premises in
good order, or for preparing the same for re-rental; (ii) Landlord may re-let
the premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms, which may at Landlord'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 (iii) Tenant or the legal representatives of
Tenant shall also pay Landlord 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 Landlord 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 Landlord 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 Landlord to collect the deficiency for any
subsequent month by a similar
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proceeding. Landlord, in putting the demised premises in good order or preparing
the same for re-rental may, at Landlord's option, make such alterations,
repairs, replacements, and/or decorations in the demised premises as Landlord,
in Landlord'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. Landlord 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, or such net rent collected over the sums payable by
Tenant of any of the covenants or provisions hereof, Landlord 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
Landlord 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 Landlord obtaining possession of demised premises, by reason
of the violation by Tenant of any of the covenants and conditions of this Lease,
or otherwise.
(B) In the event this Lease is terminated pursuant to the provisions
of Article 20 herein, then in addition to the remedies Landlord may have
pursuant to Section 21(A) herein, Landlord may elect, at its option, to recover
from Tenant, all damages it may incur by reason of such breach, including the
cost of recovering the Premises and reasonable attorneys' fees and expenses and
shall be entitled to recover as and for liquidated damages, and not as a
penalty, an amount equal to the difference between (1) the Minimum Rent,
Additional Rent and charges equivalent to rent payable hereunder for the
remainder of the stated term and (2) the reasonable rental value of the Premises
for the remainder of the stated term, all of which shall be immediately due and
payable by Tenant. In determining the rental value of the Premises for such
period, the rental realized by any reletting, if such reletting be accomplished
by Landlord within a reasonable period of time after the termination of this
Lease, shall be deemed prima facie to be the rental value. Landlord shall not be
liable in any way whatsoever for its failure or refusal to relet the Premises or
any part thereof, or if the Premises are so relet, for its failure to collect
the rent under such reletting, and no refusal or failure to relet or failure to
collect rent shall affect Tenant's liability for damages or otherwise hereunder.
Nothing herein contained shall limit or prejudice the right of Landlord to prove
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 amounts referred to
herein.
(C) 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, shall be deemed to be occupying the Premises as a tenant
from month-to-month, at a monthly rental equal to one and three-quarters times
the Minimum 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.
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FEES AND EXPENSES:
22. 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, Landlord may immediately or at any
time thereafter and without notice perform the obligation of Tenant thereunder,
and if Landlord, in connection therewith 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
attorneys' fees, in instituting, prosecuting or defending any action or
proceeding, such sums so paid or obligations incurred with interest and costs
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord within ten (10) days of rendition of any xxxx or statement to Tenant
therefore, and 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 Landlord as damages.
NO REPRESENTATIONS BY LANDLORD:
23. Neither Landlord nor Landlord'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, except as
otherwise represented or covenanted by Landlord in this Lease or otherwise set
forth in this Lease, agrees to take the same "as is" and acknowledges that the
taking of possession of the demised premises by Tenant shall be conclusive
evidence that the said premises and the building of which the same form a part
were in good and satisfactory condition at the time such possession was so
taken, except as to latent defects. All understandings and agreements heretofore
made between the parties hereto are merged in this Lease, which alone fully and
completely expresses the agreement between Landlord 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.
END OF TERM:
24. Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the demised premises, broom clean,
in good order and condition, ordinary wear excepted, and (except as stated in
Article 7) 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 day of the term of this Lease or any renewal thereof,
falls on Sunday, this Lease shall expire at noon on the preceding Saturday, or
if such last day be a legal holiday in which case it shall expire at midnight on
the preceding business day.
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QUIET ENJOYMENT:
25. Landlord covenants and agrees with Tenant that upon Tenant paying the
Minimum 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 32 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION:
26. If Landlord 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 for any
other reason, Landlord shall not be subject to any liability for failure to give
possession on said date and the validity of this Lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this Lease or of any rent abatement or free rent period provided
herein, if any, but the rent payable hereunder shall be abated (provided Tenant
is not responsible for the inability to obtain possession) until after Landlord
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
possession of 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 Minimum Rent and
Additional Rent pursuant to Articles 3 and 5, respectively. Notwithstanding the
foregoing, if Landlord is unable to give possession of the demised premises to
Tenant within sixty (60) days after the Commencement Date, Tenant may by notice
to Landlord, which must be given within seventy-five (75) days after the
Commencement Date (time being of the essence), terminate this Lease. If,
however, Landlord delivers possession of the Premises to Tenant on or before
such seventy-fifth (75th) day, Tenant's right to terminate this Lease shall be
of no further force or effect, and any termination notice given by Tenant
pursuant to this paragraph shall be null and void. If Tenant gives such notice
in a timely manner, this Lease shall be terminated as of the date of receipt of
such notice by Landlord and neither party shall have any further liability to
the other hereunder or otherwise with respect to this Lease, except pursuant to
those provisions which expressly survive the expiration or sooner termination of
this Lease. The provisions of this article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
NO WAIVER:
27. The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this Lease or of any
of the Rules or Regulations set forth in or hereafter adopted by Landlord, shall
not prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Landlord of rent with 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 Landlord unless such waiver be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly rent herein stipulated shall
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34
be deemed to be other than an 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 Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided. No act
or thing done by Landlord or Landlord'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 Landlord. No
employee of Landlord or Landlord's agent shall have any power to accept the keys
of said premises prior to the termination of this Lease and the delivery of keys
to any such agent or employee shall not operate as a termination of this Lease
or a surrender of the premises.
WAIVER OF TRIAL BY JURY:
28. It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for possession of the premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding.
INABILITY TO PERFORM:
29. 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 Landlord
is unable to make 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 from so doing by reason of
strike or labor troubles or any cause beyond Landlord's reasonable control
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 of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency. If it is within Landlord's reasonable control to eliminate the cause
of its inability to perform any of its obligations under this Lease, then
Landlord shall use commercially reasonable efforts to eliminate such cause,
without being obligated to incur any extraordinary costs.
CAPTIONS:
30. The captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision hereof.
ADJACENT EXCAVATION -- SHORING:
31. 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
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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 form a part from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
RULES AND REGULATIONS:
32. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations attached hereto as Exhibit B and such other and further reasonable
Rules and Regulations as Landlord or Landlord's agents may from time to time
adopt. Notice of any additional rules or regulations shall be given in such
manner as Landlord may elect. In case tenant disputes the reasonableness of any
additional Rule or Regulation hereafter made or adopted by Landlord or
Landlord's agents, the parties hereto agree to submit the question of the
reasonableness of such Rule or Regulation for decision to the New York office of
the American Arbitration Association, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in writing upon
Landlord within ten (10) days after the giving of notice thereof. Nothing in
this Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees. Landlord shall not enforce
the Rules and Regulations against Tenant in a discriminatory manner.
SECURITY:
33. (A) Tenant has deposited with Landlord the sum of $230,483.00 as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease; it is agreed that in the event Tenant
defaults beyond any applicable cure periods in respect of any of the terms,
provision and conditions of this Lease, including, but not limited to, the
payment of Minimum Rent and additional rent, Landlord may use, apply or retain
the whole or any part of the security so deposited to the extent required for
the payment of any Minimum Rent and additional rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this Lease, including but not limited to, any
damages or deficiency in the reletting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event Landlord shall use, apply or retain the whole or any part
of the security deposited hereunder, Tenant shall immediately deliver to
Landlord an amount equal to the sum used, applied or retained by Landlord in
accordance therewith so that Landlord shall have as the security hereunder an
amount equal to $230,483.00. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the security shall be returned to Tenant after the date fixed as the end
of this Lease and after delivery of entire possession of the demised premises to
Landlord. In the event of a sale of the land and building or leasing of the
building, of which the demised premises form a part, Landlord shall have the
right to transfer the security to the vendee or lessee and Landlord shall
thereupon be released by
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Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Landlord 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 Landlord. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security and that neither Landlord nor its successors or assigns shall
be bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. Tenant represents that its Federal I.D. number is 00-0000000.
(B) Tenant shall have the right, either (i) in lieu of the funds
required to be deposited with Landlord pursuant to Article 33A above or (ii) at
any time thereafter in substitution for such funds, to deposit and maintain with
Landlord as the security deposit referred to in Article 33A, an irrevocable
commercial letter of credit in the aggregate amount of $230,483.00 in form and
substance satisfactory to Landlord, and issued by a member bank of the New York
Clearing House Association, acceptable to Landlord, payable upon the
presentation by Landlord to such bank of a sight-draft, without presentation of
any other documents, statements or authorizations, which letter of credit shall
provide (a) for the continuance of such credit for the period of at least one
(1) year from the date hereof, (b) for the automatic extension of such letter of
credit for additional periods of one (1) year from the initial and each future
expiration date thereof (the last such extension to provide for the continuance
of such letter of credit for at least three (3) months beyond the Expiration
Date) unless such bank gives Landlord notice of its intention not to renew such
letter of credit, not less than seventy-five (75) days prior to the initial or
any future expiration date of such letter of credit and (c) that in the event
such notice is given by such bank, Landlord shall have the right to draw on such
bank at sight for the balance remaining in such letter of credit and hold and
apply the proceeds thereof in accordance with the provisions of Article 33A
above. Each letter of credit to be deposited and maintained with Landlord (or
the proceeds thereof) shall be held by Landlord as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease, and in the event that (x) any default occurs under this Lease, or
(y) Landlord transfers its right, title and interest under this Lease to a third
party and the bank issuing such letter of credit does not consent to the
transfer of such letter of credit to such third party, or (z) notice is given by
the bank issuing such letter of credit that it does not intend to renew the
same, as above provided, then, in any such event, Landlord may draw on such
letter of credit, and the proceeds of such letter of credit shall then be held
and applied as security (and be replenished, if necessary) as provided in
Article 33A above and herein. In the event Landlord shall use, apply or retain
the whole or any part of the security deposited hereunder, Tenant shall
immediately deliver to Landlord an amount equal to the sum used, applied or
retained by Landlord in accordance therewith so that at all times during the
term hereof, Landlord shall have as the security hereunder an amount equal to
$230,483.00. Tenant shall pay Landlord's reasonable attorneys' fees in
connection with the replacement, substitution or amendment of the letter of
credit described herein or the drawing thereon by Landlord.
SUCCESSORS AND ASSIGNS:
34. The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this Lease, their assigns.
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INSURANCE:
35. Tenant covenants and agrees to obtain on or before the Commencement
Date and to keep in force during the Term (a) "all risk" property insurance
covering all present and future property of Tenant and all improvements and
betterments located in the Premises and provided by or on behalf of Tenant, to a
limit of not less than the full replacement value thereof, such insurance to
include a replacement cost endorsement; and (b) a comprehensive general public
liability insurance policy protecting against any liability whatsoever,
occasioned by any occurrence on or about the demised premises or any
appurtenances thereto. As of the date of this Lease, Landlord requires limits of
liability thereunder of not less than the amount of Three Million ($3,000,000)
dollars per occurrence for bodily or personal injury (including death) and in
the amount of Five Hundred Thousand ($500,000) Dollars in respect of property
damage. The insurance policies required hereunder shall be written by good and
solvent insurance companies satisfactory to Landlord, and shall be in such
limits as Landlord may reasonably require. All insurance required hereunder
shall name Tenant as the insured and shall also name as additional insureds
Landlord and Tenant and such other parties as Landlord shall designate as
additional insureds. The insurance required hereby may be carried under a
blanket policy covering the demised premises and other locations of Tenant, if
any. Prior to the time such insurance is first required to be carried by Tenant
and thereafter, at least fifteen (15) days prior to the effective date of such
policy, Tenant agrees to deliver to Landlord either a duplicate original of the
aforesaid policies or a certificate evidencing such insurance, except that the
property insurance referred to above, however, must be evidenced by delivery by
Tenant to Landlord of the XXXXX Form 27, Evidence of Property Insurance Form or
its equivalent. Said certificates (including XXXXX Form 27 or its equivalent)
shall contain an endorsement that such insurance may not be cancelled except
upon thirty (30) days' prior notice to all insureds thereunder. 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 as provided in this Lease in the event of Tenant's default. At the
option of Landlord, the originals of all policies or certificates of insurance
shall be held by Landlord.
BROKERAGE:
36. Tenant covenants, represents and warrants that Tenant has had no
dealings or communications with any broker or agent in connection with the
consummation of this Lease other than the Brokers, and Tenant covenants and
agrees to hold harmless and indemnify Landlord from and against any and all
cost, expense (including reasonable attorneys' fees) and liability arising out
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 36 shall survive the
expiration or sooner termination of this Lease.
ESTOPPEL CERTIFICATE:
37. Tenant shall, at any time and from time to time, as requested by
Landlord, upon ten (10) days' prior notice, execute and deliver to Landlord a
statement setting forth the Commencement Date, the Expiration Date, the Minimum
Rent and Additional Rent and certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications,
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that the same is in full force as modified and stating the modifications), the
dates to which the Minimum Rent and Additional Rent have been paid, whether or
not, to the best 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, and 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 any other
information Landlord may reasonably request, it being intended that any such
statement delivered pursuant hereto may be relied upon by others with whom
Landlord may be dealing.
HOLDING OVER:
38. If Tenant retains possession of the Premises or any part thereof after
the termination of the term of this Lease, Tenant shall pay Landlord Minimum
Rent at 175% of the monthly rate specified in Article 3 for the time Tenant thus
remains in possession, together with all Additional Rent payable hereunder (and
Landlord may accept such amounts without in any way waiving its rights to
require Tenant to vacate the Premises) and, in addition thereto, Tenant shall
pay Landlord for all damages, consequential as well as direct, sustained by
reason of Tenant's retention of possession.
If Tenant remains in possession of the Premises, or any part thereof,
after the termination of the term of this Lease, such holding over shall, at the
election of Landlord expressed in a written notice to Tenant and not otherwise,
constitute a tenancy from month-to-month. The provisions of this Article do not
imply any right in Tenant to remain in the Premises after the termination of
this Lease, or exclude Landlord's right of re-entry or any other right or remedy
hereunder or at law which Landlord may have against a holdover tenant. If Tenant
shall hold over, Tenant expressly waives any rights it may have under Section
2201 of the New York Civil Practice Law and Rules or any similar statute.
NOTICES:
39. 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 either (a) by
United States certified or registered mail, postage prepaid, return receipt
requested, or (b) by overnight courier or, (c) hand delivery (against
confirmation of delivery), and shall be addressed:
(i) if to Tenant, addressed to Tenant at the Property, or at such
other place as Tenant may from time to time designate by notice to
Landlord:
(ii) if to Landlord, addressed to the office of Landlord with a copy
to Landlord addressed to or at such other place as Landlord may from
time to time designate by notice to Tenant.
and the same shall be deemed delivered (A) the third business day after
deposited in the United States mail, (B) the business day following delivery to
an overnight courier or (C) when delivered by hand. A copy of any notice to
Landlord shall be sent in like manner to Landlord's counsel, Xxxxxxxx & X'Xxxx,
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx
Esq. A notice given by counsel for Landlord or Tenant shall be deemed a valid
notice if addressed and sent in accordance with the provisions of this Article.
Either party may designate, by
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similar written notice to the other party, any other address for such purposes.
Each of the parties hereto waives personal or any other service other than as
provided for in this Article. Notwithstanding the foregoing, either party hereto
may give the other party telegraphic notice of the need of emergency repairs.
Notices requesting after hours services may be given by delivery to the Building
Manager or any other person in the Building designated by Landlord to receive
such notices.
40. INTENTIONALLY OMITTED
41. INTENTIONALLY OMITTED
CERTAIN RIGHTS RESERVED TO LANDLORD:
42. Landlord reserves the following rights:
(A) To name the Property.
(B) To install and maintain a sign or signs on the Property.
(C) To constantly have pass keys to the Premises.
(D) To close the Building for Holidays which will generally conform with
paid union holidays for Building employees; provided that Tenant and its
employees, agents, and invitees shall have access thereto, provided they comply
with Rule 18 of the Rules and Regulations attached hereto as Exhibit B and such
other rules or security measures as Landlord may impose in its sole discretion.
HAZARDOUS MATERIALS:
43. (A) Tenant hereby represents, warrants and covenants that it shall not
install or permit any Hazardous Materials to be placed or stored in or about the
Premises, other than normal quantities of customary office and cleaning
supplies, provided that Tenant complies with all applicable Legal Requirements
in the storage, handling and disposal thereof. Tenant shall indemnify and hold
Landlord harmless from and against any claims, demands, losses, liabilities,
penalties and damages arising out of, or in any way connected with the
installation, placement, storage or release of Hazardous Materials used or
installed by Tenant, Tenant's employees, contractors or agents upon the
Premises. If it is determined that Tenant, or its employees, contractors or
agents installed, used, stored or placed Hazardous Materials in the Premises,
Tenant shall be obligated to remove and dispose of said Hazardous Materials in
compliance with all governmental requirements. This covenant shall survive the
expiration or earlier termination of this Lease.
(B) As used herein, the term "Hazardous Materials" shall be any petroleum
product, asbestos product, or any other material, substance or waste that is
now, or hereafter during the Term, recognized as being hazardous or dangerous to
health or the environment by any federal, state or local agency having
jurisdiction over the Building.
MISCELLANEOUS:
44. (A) If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease,
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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.
(B) This Lease shall be governed in all respects by the laws of the
State of New York.
(C) If, in connection with obtaining financing for the Building, a
bank, insurance company or other lending institution shall request reasonable
modifications to this Lease as a condition to such financing, Tenant will not
unreasonably withhold its consent thereto, provided that such modifications do
not materially and adversely affect Tenant's rights or obligations hereunder.
(D) Wherever it is specifically provided in this Lease that a
party's consent is not to be unreasonably withheld, a response to a request for
such consent shall also not be unreasonably delayed. If either Landlord or
Tenant considers that the other has unreasonably withheld or delayed a consent,
it shall so notify the other party within thirty (30) days after receipt of
notice of denial of the requested consent or, in case notice of denial is not
received within ten (10) days after making its request for the consent, within
ten (10) days thereafter. Tenant hereby waives any claim against Landlord which
it may have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any such consent, and Tenant agrees that its sole remedy
shall be an action or proceeding to enforce any such provision or for specific
performance, injunction or declaratory judgment. In the event of such a
determination, the requested consent shall be deemed to have been granted;
however, Landlord shall have no liability to Tenant for its refusal or failure
to give such consent. The sole remedy for Landlord's unreasonably withholding or
delaying of consent shall be as provided in this Section. Notwithstanding
anything to the contrary provided in this Lease, in any instance where the
consent of a ground lessor and/or a mortgagee is required, Landlord shall not be
required to give its consent until and unless such ground lessor and/or
mortgagee has given its consent. Landlord agrees to promptly seek such consent
if Landlord would otherwise consent in such instance.
(E) The persons executing this Lease on behalf of Tenant hereby
represent and warrant that they have been duly authorized to execute this Lease
for and on behalf of Tenant.
(F) Tenant may place signage on the entrance to the demised
premises, subject to Landlord's prior reasonable approval, at Tenant's cost and
expense. The listing of any name other than that of Tenant, whether on the doors
of the demised premises, on the Building directory, if any, or otherwise, shall
not operate to vest any right or interest in this Lease or in the demised
premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease, to any sublease of the demised premises, or to the
use or occupancy thereof by others.
(G) If Tenant is a partnership (which for purposes of this Section
44G shall be deemed to include a limited liability company or limited liability
partnership) (or is comprised of two (2) or more persons, individually, or as
joint venturers or as copartners of a partnership) or if Tenant's interest in
this Lease shall be assigned to a partnership (or to two (2) or more persons,
individually, or as joint venturers or as copartners or a partnership) (any such
partnership and such persons are referred to in this Section as "Partnership
Tenant"), the following provisions shall apply to such Partnership Tenant:
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(i) the liability of each of the parties comprising Partnership Tenant shall be
joint and several, and (ii) each of the parties comprising Partnership Tenant
hereby consents in advance to and agrees to be bound by, any modifications,
termination, discharge or surrender of this Lease which may hereafter be made
and by any notices, demands, requests or other communications which may
hereafter be given, by Partnership Tenant, and (iii) any bills, statements,
notices, demands, requests or other communications given or rendered to
Partnership Tenant or to any of the parties comprising Partnership Tenant shall
be deemed given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant and shall be binding upon Partnership Tenant and
all parties, and (iv) if Partnership Tenant shall admit new partners, all such
new partners shall, by their admission to Partnership Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed and (v) Partnership Tenant shall
give prompt notice to Landlord of the admission of any such new partners.
(H) In the event that Landlord or Tenant places the enforcement of
this Lease or the collection of any Minimum Rent or additional rent due, or to
become due hereunder, or recovery of the possession of the Premises, in the
hands of an attorney, or files suit upon the same, Landlord shall recover its
attorneys' fees, disbursements and court costs from Tenant in connection with
such matter, unless Tenant shall obtain a judgment against Landlord in an action
thereon. The provisions of this paragraph shall survive the expiration or
earlier termination of this Lease.
(I) Landlord and Tenant understand, agree, and acknowledge that (i)
this Lease has been freely negotiated by both parties and (ii) in any
controversy, dispute, or contest over the meaning, interpretation, validity, or
enforceability of this Lease or any of its terms or conditions, there shall be
no inference, presumption, or conclusion drawn whatsoever against either party
by virtue of that party having drafted this Lease or any portion thereof.
(J) If at any time during the term of the Lease, space on the
twentieth (20th) floor of the Building shall become available for lease by
Landlord (such space shall be referred to herein as the "Offer Space"; it being
understood that the size and configuration of the Offer Space shall be
determined by Landlord in its sole discretion), then provided Tenant is not then
in default hereunder, Landlord shall deliver to Tenant a notice ("Offer Space
Notice") indicating that the Offer Space is available for leasing and such Offer
Space Notice shall indicate the principal business terms on which the Landlord
is willing to so lease the Offer Space. The preceding sentence is also subject
to the right of any tenant or subtenant of space in the Building that has been
granted an option or right to lease the Offer Space or any portion thereof, as
well as to any existing and future rights of the existing and future tenants or
subtenants thereof. Landlord agrees not to grant after the date hereof any
options or rights to lease the Offer Space to any third parties other than any
tenants thereof. For a period of fifteen (15) days following delivery of the
Offer Space Notice, Landlord agrees to negotiate in good faith with Tenant to
establish mutually agreeable business terms (the "Business Terms") for the lease
of the Offer Space, unless Tenant waives such requirement. In the event Landlord
and Tenant (i) fail to reach agreement on the Business Terms within such fifteen
(15) day period or (ii) reach agreement on the Business Terms within such
fifteen (15) day period but fail to enter into a written agreement to lease the
Offer Space within forty-five (45) days after delivery by Landlord of the Offer
Space Notice for any reason whatsoever, then, in either such event (i) or (ii),
Landlord shall be permitted to enter into
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an agreement with any other party or parties for the leasing of the Offer Space,
and Landlord shall have no further obligations or liabilities to Tenant with
respect to the Offer Space. Tenant agrees to keep all information respecting
Landlord's intentions relating to the Offer Space in strict confidence.
(K) For so long as Tenant shall lease the entire twenty-second
(22nd) floor of the Building, Tenant shall have the exclusive use of the terrace
on the twenty-second (22nd) floor (the "Terrace"), subject to applicable Legal
Requirements, and Tenant acknowledges that Landlord makes no representations as
to whether such use is legally permitted. Tenant covenants that the Terrace
shall be used by Tenant only in a safe and sanitary manner and in a manner which
does not disturb the quiet enjoyment of the other tenants in the Building.
Tenant shall indemnify and hold Landlord harmless from and against any and all
claims, actions, damages, liability, cost and expenses (including attorneys'
fees and disbursements) which arise in connection with Tenant's use of the
Terrace, including without limitation damage from any leaks. Tenant shall not
(i) store or keep any equipment, supplies, refuse or merchandise on the Terrace;
(ii) enclose the Terrace or any portion thereof; (iii) permit any cooking; (iv)
lodge on the Terrace; or (v) place anything on the ledges or railings on the
perimeter of the Terrace. Subject to Landlord's prior reasonable approval,
Tenant may install tables, chairs, benches, landscaping and other items on the
Terrace; provided, however, that Tenant shall not place any unreasonable burden
on the structural integrity of the Terrace. Landlord shall not be obligated to
clean the Terrace and Tenant, at its sole cost and expense, shall remove from
and properly dispose of any debris from the Terrace whether or not generated by
Tenant. Tenant shall keep all drains reasonably free of debris. Tenant covenants
that Tenant shall be liable for any damage caused to the Terrace, the roof under
the Terrace and the Building which is due to the acts or omissions of Tenant, or
Tenant's agents, employees, invitees or contractors. Landlord covenants and
agrees prior to April 30, 1999, but not more than once, to (i) perform the
repairs recommended in that certain Engineering Report by Practical Design
Associates, Inc., dated September 18, 1998, a copy of which is attached hereto
as Exhibit D; (ii) relay the paving stones on the Terrace, if necessary, so as
to create a smooth and even surface; (iii) repair or replace any roofing
materials, as necessary, so as to ensure that the portion of the roof of the
twenty-first (21st) floor of the Building immediately below the Terrace is water
tight; and (iv) clear all drains serving the Terrace.
G.S. 505 PARK, LLC
By: GLORIOUS SUN 505 PARK INC.
By: /s/ Chun To Xxxxx
----------------------------------
Name: Chun To Xxxxx
Title: President
PLD TELEKOM INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: CFO
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