Exhibit 10.10
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000 XXXXX XXXXXX ASSOCIATES,
LANDLORD
AND
ASSESSMENT SYSTEMS INCORPORATED TENANT
______________________
LEASE
______________________
DATED January 27, 1984
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TABLE OF CONTENTS
Article Page
1 Demise; Premises............................................ 1
2 Term....................................................... 1
3 Rent....................................................... 2
4 Completion and Occupancy of Premises....................... 2
5 Use........................................................ 3
6 Floor Load; Telephone Systems.............................. 4
7 Rent Adjustments........................................... 5
8 Insurance.................................................. 11
9 Compliance with Laws....................................... 14
10 Improvements; Tenant's Property............................ 15
11 Repairs.................................................... 18
12 Heating, Ventilation and Air Conditioning.................. 19
13 Electricity................................................ 20
14 Cleaning and Other Services................................ 21
15 Damage to or Destruction of the Premises.................. 22
16 Eminent Domain............................................. 23
17 Conditions of Limitations.................................. 25
18 Re-entry by Landlord; Remedies............................. 26
19 Curing Tenant's Defaults; Fees and Expenses................ 29
20 Non-liability and Indemnification.......................... 29
21 Surrender.................................................. 3X
22 Assignment, Mortgaging Subletting.......................... 3X
23 Subordination and Attornment............................... 3X
24 Access; Change in Facilities............................... 3X
25 Inability to Perform....................................... 4X
26 Legal Proceedings; Waiver of Counterclaims and Jury Trial.. 4X
27 No Other Waiver............................................ 4X
28 Arbitration................................................ 4X
29 Quiet Enjoyment............................................ 4X
30 Rules and Regulations...................................... 4X
31 Building Name.............................................. XX
32 Shoring; No Dedication; Hoists............................. XX
33 Notice of Accidents........................................ XX
34 Vaults..................................................... XX
35 Brokerage.................................................. XX
36 Security Deposit........................................... XX
37 Window Cleaning............................................ XX
38 Consents................................................... XX
39 Notices.................................................... XX
40 Definitions; Construction of Terms......................... XX
41 Estoppel Certificate; Financial Statements: Memorandum..... XX
42 Relocation of Premises..................................... XX
43 Parties Bound.............................................. XX
44 Miscellaneous.............................................. XX
45 . Fixed Rent................................................. 5X
46 . Modification of Prior Provisions........................... 5X
EXHIBITS
A Land............................................................. A-1
B Floor Plan....................................................... B-1
C Work Letter...................................................... C-1
D Cleaning Standards............................................... D-1
E Rules and Regulations........................................... E-1
F Estoppel Certificate............................................. F-1
LEASE, dated , 1983 , between 000 XXXXX XXXXXX ASSOCIATES, a New York
partnership, having an office c/o Cadillac Fairview Urban Development, Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and ASSESSMENT SYSTEMS
INCORPORATED, a New York corporation, having an office at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
Demise; Premises
SECTION 1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described ("Premises") in the building
("Building") constructed or to be constructed by Landlord on the land ("Land")
located at and known by the street address 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
in the Borough of Manhattan, City and State of New York, as more particularly
described in Exhibit A annexed hereto and made a part hereof, for the term
hereinafter stated, for the rents hereinafter reserved, and upon and subject to
the terms of this Lease.
SECTION 1.02 The Premises consist of that portion of the 22nd floor in the
Building, substantially as shown on the floor plan(s) annexed hereto as Exhibit
B and made a part hereof, together with all fixtures and improvements which, at
the commencement of this Lease or at any time during the Term, are attached
thereto or installed therin and together with all appurtenaces to the Premises,
including the right to use, in common with others, the Building Equipment.
SECTION 1.03 The definitions of certain terms used in this Lease are set
forth in Section 40.01 and in various other Sections of this Lease.
ARTICLE 2
Term
SECTION 2.01 A. The Premises are leased for a term ("Term") which shall
commence on a date ("Commencement Date") which shall be the earlier of:
(a) the date the Premises are available for occupancy as determined
pursuant to Article 4, or
(b) the date Tenant or anyone claiming under or through Tenant shall
first occupy any part of the Premises for any purpose other than preparing
the same for Tenant's initial occupancy. See Section 46.01.
SECTION 2.02 When the Commencement Date has been determined by Landlord,
Landlord and Tenant shall, upon the request of either of them, execute a
statement prepared by Landlord setting forth such date. Neither Landlord's
failure to request, nor Tenant's failure to execute such agreement shall affect
Landlord's determination of the Commencement Date.
SECTION 2.03 Tenant expressly waives any right to rescind this Lease under
Section 223-a of the New York Real Property Law or under any present or future
statute of similar import then in force and further expressly waives the right
to recover any damages which may result from Landlord's failure to deliver
possession of the Premises on the Commencement Date. Tenant agrees that the
provisions of this Article and Article 4 are intended to constitute "an express
provision to the contrary" within the meaning of said Section 223-a. See Section
46.02.
*by cross hatching
ARTICLE 3
RENT
SECTION 3.01 A. Tenant shall pay to Landlord, without notice or demand,
in lawful money of the United States of America, by check drawn on a bank or
trust company which is a member of the New York Clearinghouse Association, at
the office of the Landlord or at such other place as Landlord may designate, the
following:
(a) annual fixed rent (such annual fixed rent being referred to
herein as "Fixed Rent") in accordance with Article 45 hereof.
(b) additional rent ("Additional Rent") consisting of all other sums
of money as shall become due from and be payable by Tenant hereunder (for
default in the payment of which Landlord shall have the same remedies as
for a default in the payment of Fixed Rent).
If Tenant shall fail to pay when due any installment of Fixed Rent or any
payment of Additional Rent for a period of 10 days after such installment or
payment shall have become due, Tenant shall pay interest thereon at the Interest
Rate, from the date when such installment or payment shall have become due to
the date of the payment thereof, and such interest shall be deemed Additional
Rent.
B. There shall be no abatement of, deduction from, counter-claim or setoff
against rent.
SECTION 3.02 Notwithstanding the provisions of Section 3.01, Tenant shall
pay $18,383.33 on account of Fixed Rent upon the execution of this Lease, which
shall be credited on a per diem basis toward the payment of the installment(s)
of Fixed Rent first due and payable hereunder. If by reason of any of the
provisions of this Lease, the Commencement Date for all or any part of the
Premises shall be other than the first day of a month, Fixed Rent therefor for
such month shall be pro-rated on a per diem basis.
SECTION 3.03 Tenant covenants to (a) pay the Fixed Rent and Additional
Rent when due and (b) to observe and perform, and not to suffer or permit any
violation of, Tenant's obligations hereunder.
SECTION 3.04 If any of the rent payable under the terms of this Lease
shall be or become uncollectible, reduced or required to be refunded because of
any Legal Requirement, Tenant shall enter into such agreement(s) and take such
other steps (without additional expense to Tenant) as Landlord may reasonably
request and as may be legally permissible to permit Landlord to collect the
maximum rents which from time to time during the continuance of such legal rent
restriction may be legally permissible (and not in excess of the amounts
reserved therefor under this Lease). Upon the termination of such legal rent
restriction, (a) the rents shall become and thereafter be payable in accordance
with the amounts reserved herein for the periods following such termination and
(b) Tenant shall pay to Landlord, to the maximum extent legally permissible, an
amount equal to (i) the rents which would have been paid pursuant to this Lease
but for such legal rent restriction less (ii) the rents and payments in lieu of
rents paid by Tenant during the period such legal restriction was in effect.
ARTICLE 4
COMPLETION AND OCCUPANCY OF THE PREMISES
SECTION 4.01 Landlord agrees to perform work and make installations in the
Premises as set forth in Exhibit C ("Work Letter"). All the terms of Exhibit C
are incorporated herein as if fully set forth at length.
SECTION 4.02 For the purposes of Section 2.01, the Premises shall be
conclusively deemed available for occupancy as soon as the following conditions
have been met:
(a) a certificate or certificates of occupancy (temporary or final)
permitting occupancy of the Premises has or have been issued by the
Department of Buildings of The City of New York or any successor
department;
(b) Landlord's Work with respect to the Premises has been
substantially completed. Landlord's Work shall be deemed substantially
completed notwithstanding the fact that (i) minor or insubstantial details
of construction, mechanical adjustment or decoration remain to be performed
or (ii) portions of Landlord's Work have not been completed because under
good construction
2
scheduling practice such work should be done after still incompleted
finishing or other work to be done by or on behalf of Tenant is completed;
See Section 46.03
(d) five days' notice of the occurrence of the events described in
subdivisions 4.02(a), (b) and (c) has been given to Tenant.
Section 4.03 Notwithstanding the provisions of Section 4.02, if there is a
delay in the availability for occupancy of the Premises, due to any reason set
forth in Paragraph 6 of Exhibit C, then the Premises shall be deemed available
for occupancy on the date when the Premises would have been available but for
such delay even though no certificate of occupancy has been issued or work to be
done by Landlord has not been commenced or completed, and the additional cost to
Landlord to complete the Premises occasioned by such delay shall be promptly
paid by Tenant to Landlord on demand as Additional Rent. For the purposes of the
preceding sentenced, the expression "additional cost to Landlord" shall mean the
cost above such cost as would have been the aggregate cost to Landlord of
completing the Premises had there been no such delay. Tenant hereby indemnifies
Landlord against liability arising out of any such delay. Landlord, at its
option, may, by notice to Tenant, given within 30 days after the Commencement
Date is determined, extend the Term for the period of days equal to the delay in
the availability for occupancy of the Premises due to the reasons set forth in
Paragraph 6 of Exhibit C plus the number of days necessary in order for the Term
to end on the last day of a month. Nothing contained in this Section shall limit
or prejudice any of the other rights of Landlord under this Lease.
Section 4.04 The taking of occupancy of the whole or any part of the
Premises by Tenant shall be conclusive evidence, as against Tenant, that Tenant
accepts possession of the same and that the Premises so occupied and the
Building of which the same form a part are in good and satisfactory condition at
the time such occupancy was so taken and that the Premises or such portion
thereof were substantially as shown on Exhibit B. Notwithstanding the
foregoing, the taking of occupancy shall not be deemed to be conclusive
evidence, as against Tenant, that Landlord shall have satisfactorily completed
all of Landlord's Work with respect to (a) portions of Landlord's Work not
completed, because under good construction scheduling practice such work should
be done after completion of still incompleted finishing or other work to be done
by or on behalf of Tenant, (b) any details of construction of Landlord's Work,
items of decoration included in Landlord's Work or mechanical adjustment of
items included in Landlord's; Work of which Tenant gives Landlord notice within
30 days after the Commencement Date, or (c) any defects in Landlord's Work which
were not known or reasonably discoverable by Tenant by observation or inspection
within 30 days after the Commencement Date (Latent Defects"); provided that, as
to Latent Defects, (i) Tenant conducts at least one inspection of the Premises
with a qualified construction expert within 2 months from the Commencement date
and, (ii) Tenant gives Landlord notice of the Latent Defects within 2 months
after the Commencement Date, which notice shall be accompanied by the
certification of such construction expert that there are Latent Defects in
Landlord's Work. Landlord shall have the right to enter the Premises to complete
or repair any such unfinished items and Latent Defects and entry by Landlord,
its agents, servants, employees or contractors for such purpose shall be without
liability to Tenant.
ARTICLE 5
USE
SECTION 5.01 Tenant shall use and occupy the Premises for general and
administrative offices in connection with Tenant's business and for no other
purpose. Tenant shall not occupy or suffer or permit the use or occupancy of any
part of the Premises in any manner which in Landlord's reasonable judgment would
adversely affect (a) the proper and economical rendition of any service required
to be furnished to any tenant, (b) the use or enjoyment of any part of the
Building by any other tenant or (c) the appearance, character or reputation of
the Building as a first-class office building with retail stores. The statement
as to the nature of the business to be conducted by Tenant in the Premises shall
not constitute a representation or guaranty by Landlord that such business may
be conducted in the Premises or its lawful or permissible under any
certificate(s) of occupancy issued for the Premises or the Building, or is
otherwise permitted by law.
SECTION 5.02 The use of the Premises for the purposes specified in Section
5.01 shall not include, and Tenant shall not use, or permit the use of, the
Premises or any part thereof for:
*discovered through such inspection
3
(a) sale of wine, ale, beer or other alcoholic beverages located in
the Premises;
(b) sale at retail of any other products or materials kept in the
Premises, by vending machines (except to employees and guests) or
otherwise, or demonstrations to the public, or as a restaurant or bar, or
for the sale of candy, food, cigarettes, cigars, tobacco, newspapers,
magazines, beverages, or similar items, or for the preparation, dispensing
or consumption of food or beverages in any manner whatsoever;
(c) manufacturing, printing or electronic data processing, except for
the operation of normal business office equipment and machines for Tenant's
own requirements (as distinguished from operation for commercial hire or
for the sale of the products or services to others) provided that such use
shall not exceed that portion of the electrical capabilities allocable to
the Premises and shall be subject to the provisions of Section 6.02;
(d) rendition of medical, dental or other diagnostic or therapeutic
services, except that Tenant shall have the right to employ a resident
nurse for Tenant's employees normally working at the Premises;
(e) a school of any kind or an employment or placement agency;
(f) conduct of a public auction of any kind;
(g) conduct or maintenance of any gambling or gaming activities or
any political activities or any club activities, whether private or public;
(h) the offices or business of a governmental or quasi-governmental
bureau, department or agency, foreign or domestic, including an autonomous
governmental corporation or diplomatic or trade mission; or
(i) any use prohibited by Rule 13 of the Rules and Regulations
attached hereto as Exhibit E.
SECTION 5.03 Tenant shall not use, occupy, suffer or permit the Premises
or any part thereof to be used in any manner, or suffer or permit anything to be
brought into or kept therein, which would, in Landlord's reasonable judgment,
(a) violate any of the provisions of the Superior Lease or the Superior
Mortgage, (b) subject to Section 9.02, violate any Legal Requirement or
Insurance Requirement, (c) make void or voidable any insurance policy then in
force with respect to the Real Property or the Premises, (d) make unobtainable
from reputable insurance companies authorized to do business in New York State
at standard rates any fire insurance with extended coverage or liability,
elevator, boiler or other insurance, (e) cause, or be likely to cause, injury or
damage to the Real Property or any part thereof or to any Building Equipment,
(f) constitute a public or private nuisance, (g) violate any certificate of
occupancy for the Premises or the Building, (h) emit or discharge objectionable
noise, fumes, vapors or odors into the Building or the Building Equipment, (i)
impair or interfere with any of the Building services, including the furnishing
of electrical energy by Landlord or the public utility company servicing the
Building, as the case may be, or the proper and economical cleaning, heating,
ventilating, air conditioning or other servicing of the Building, Building
Equipment or the Premises, (j) impair or interfere with the use of any other
area of the Building by, or occasion discomfort, annoyance or inconvenience to,
Landlord or any other tenant, or (k) cause Tenant to default in any of its other
obligations under this Lease. The provisions of this Section and the application
thereof, shall not be deemed to be limited in any way by the terms of any other
Section of this Article or any of the Rules and Regulations.
SECTION 5.04 If any governmental license or permit, other than a
certificate of occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Premises or any part thereof and if failure to secure
such license or permit would in any way affect Landlord or the Building, then
Tenant, at its expense, shall duly procure and thereafter maintain such license
or permit and submit the same to Landlord for inspection. Tenant shall at all
times comply with the terms and conditions of each such license and permit, but
in no event shall failure to procure or maintain such license or permit by
Tenant affect Tenant's obligations hereunder.
ARTICLE 6
FLOOR LOAD; TELEPHONE SYSTEMS
SECTION 6.01 Tenant shall not place a load upon any floor that exceeds
either the floor load per square foot that such floor was designed to carry or
which is allowed by any Legal Requirement. Subject to the preceding sentence,
but not in limitation thereof, if Tenant wishes to place any safes or vaults,
computer equipment libraries in the Premises, it may do so at its own expense
after giving notice to Landlord, but Landlord reserves
4
the right to prescribe their weight and position. Business machines, computers,
word processors and mechanical equipment in the Premises shall be placed and
maintained by Tenant, at Tenant's sole expense, in such manner as shall be
sufficient, in Landlord's reasonable judgment, to prevent vibration, noise,
annoyance and inconvenience to Landlord and the other tenants.
SECTION 6.02 Tenant may, with the consent of Landlord, which shall not be
unreasonably withheld, install, maintain, or operate in the Premises telephone
interconnect systems and data processing, teletype and other business machines
customarily used in offices; provided, however, Tenant shall comply with all of
the terms of this Lease that may be applicable to such installation, maintenance
or operation and shall give Landlord prior notice of the installation thereof.
ARTICLE 7
RENT ADJUSTMENTS
SECTION 7.01 For the purposes of this Lease:
A. The term "Premises Area" shall be deemed to mean 5,500 square feet.
B. The term "Building Area" shall be deemed to mean 473,018 square feet.
C. The term "Tenant's Proportionate Share" shall be deemed to mean
1.163%.
D. "Landlord's Statement" shall mean an instrument containing a
computation of Additional Rent due pursuant to the provisions of this Article 7
furnished by Landlord to Tenant.
E. The term "Base Tax Factor" shall mean the sum of $3,074,617.
F. The term "Taxes" shall mean (i) all real estate taxes, assessments
(special or otherwise), sewer and water rents, rates and charges and any other
governmental levies, impositions or charges of a similar or dissimilar nature,
whether general, special, ordinary, extraordinary, foreseen or unforeseen, which
may be assessed, levied or imposed upon all or any part of the Real Property,
whether or not the same constitute one or more tax lots, and (ii) any expenses
(including attorneys' fees and disbursements and experts' and other witness'
fees) incurred by Landlord in contesting any of the foregoing or the assessed
valuation of all or any part of the Real Property, but "Taxes" shall not include
any interest or penalties incurred by Landlord as a result of Landlord's late
payment of Taxes, except for interest payable in connection with the installment
payments of assessments pursuant to the next sentence. If by law, any assessment
may be divided and paid in annual installments, then, provided the same is not
prohibited under the terms of the Superior Lease or the Superior Mortgage, for
the purposes of this Article (x) such assessment shall be deemed to have been so
divided and to be payable in the maximum number annual installments permitted by
law and (y) there shall be deemed included in Taxes for each Tax Year the annual
installment of such assessment becoming payable during such Tax Year, together
with interest payable during such Tax Year on such annual installment and on all
installments thereafter becoming due as provided by law, all as if such
assessment had been so divided. If at any time after the date hereof the methods
of taxation prevailing at the date hereof shall be altered so that in lieu of or
as an addition to or as a substitute for the whole or any part of the taxes,
assessments, rents, rates, charges, levies or impositions now assessed, levied
or imposed upon all or any part of the Real Property, there shall be assessed,
levied or imposed (a) a tax, assessment, levy, imposition or charge based on the
income or rents received therefrom whether or not wholly or partially as a
capital levy or otherwise, or (b) a tax, assessment, levy, imposition or charge
measured by or based in whole or in part upon all or any part of the Real
Property and imposed upon Landlord, or (c) a license fee measured by the rents,
or (d) any other tax, assessment, levy, imposition, charge or license fee
however described or imposed, then all such taxes, assessments, levies,
impositions, charges or license fees or the part thereof so measured or based
shall be deemed to be Taxes; provided that any tax, assessment, levy, imposition
or charge imposed on income from the Real Property shall be calculated a if the
Real Property is the only asset of Landlord.
G. The term "Tax Year" shall mean the 12 month period commencing July 1 of
each year, or such period of 12 months as may be duly adopted as the fiscal
year for real estate tax purposes in The City of New York.
H. The term "Base Utility Factor" shall be deemed to mean $402,065.30.
I. The term "Escalation Year" shall mean each calendar year which shall
include any part of the Term
5
J. The term "Base Operating Factor" shall mean $1,773,817.50.
K. The term "Operating Expenses" shall mean all costs and expenses (and
taxes thereon, if any) paid or incurred by Landlord or on behalf of Landlord
with respect to the operation, cleaning, repair, safety, management, security
and maintenance of the Real Property, Building Equipment, sidewalks, curbs,
plazas, and other areas adjacent to the Building, and with respect to the
services provided tenants, including: (i) salaries, wages and bonuses paid to,
and the cost of any hospitalization, medical, surgical, union and general
welfare benefits (including group life insurance), any pension, retirement or
life insurance plan and other benefit or similar expense relating to, employees
of Landlord engaged in the operation, cleaning, repair, safety, management,
security or maintenance of the Real Property and the Building Equipment
sidewalks, curbs, plazas, and other areas adjacent to the Building or in
providing services to tenants,**\(ii) social security, unemployment and other
payroll taxes, the cost of providing disability and worker's compensation
coverage imposed by any Legal Requirements, union contract or otherwise with
respect to said employees; (iii) the cost of electricity, gas, steam, water,
heat, ventilation, air conditioning and other fuel and utilities except to the
extent paid for by any tenant (including Tenant); (iv) the cost of casualty,
rent, liability, fidelity, plate glass and any other insurance; (v) the cost of
repairs, maintenance and painting; (vi) expenditures for capital improvements
and capital equipment which under generally applied real estate practice are
expensed or regarded as deferred expenses and capital expenditures which are
made by reason of Legal Requirements or Insurance Requirements, in each case
such expenditures to be included in Operating Expenses for the Escalation Year
in which such costs are incurred and subsequent Escalation Years, on a straight-
line basis, to the extent that such items are amortized over an appropriate
period but not more than 10 years, with interest calculated at an annual rate
equal to 1% above the prime rate at the time of Landlord's having made said
expenditure; (vii) the cost or rental of all building and cleaning supplies,
tools materials and equipment; (viii) the cost of uniforms, work clothes and dry
cleaning; (ix) window cleaning, concierge, guard, watchman or other security
personnel, service or system, if any; (x) management fees or if no managing
agent is employed by Landlord, a sum in lieu thereof which is not in excess of
then prevailing rates for management fees payable in the Borough of Manhattan
for first-class Third Avenue office buildings; (xi) charges of independent
contractors performing work included within this definition of Operating
Expenses; (xii) telephone and stationery; (xiii) legal, accounting and other
professional fees and disbursements incurred in connection with the ownership
operation, repair and management of the Real Property; (xiv) reasonable
association fees and dues; (xv) decorations; (xvi) depreciation of hand tools
and other movable equipment used in the operation, cleaning, repair, safety,
management, security or maintence of the Building;***/ and (xvii) exterior and
interior landscaping.
Provided, however, that the foregoing costs and expenses shall exclude or
have deducted from them, as the case may be:
(a) executives' salaries abve the grade of building manager;
(b) expenditures for capital improvements or capital equipment, other
than those referred to above and in the next succeeding paragraph;
(c) amounts received by Landlord through proceeds of insurance to the
extent they are compensation for sums previously included in Operating
Expenses hereunder;
(d) cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation to the extent Landlord is compensated
therefor;
(e) advertising and promotional expenditures;
(f) costs incurred in performing work or furnishing services for any
tenant (including Tenant), whether such tenant's or Landlord's expense, to
the extent that such work or service is in excess of any work or service
that Landlord is obligated to furnish to Tenant at Landlord's expense;
(g) depreciation, except as provided above and in the next succeeding
paragraph;
(h) brokerage commissions and legal fees incurred in connection with
leasing of space in the Building;
(i) Taxes;
(j) refinancing costs and mortgage interest and amortization
payments; See Section 46.06
*, less all reimbursements, discounts, credits and reductions received by or
allowed to Landlord,
** See Section 46.04
*** See Section 46.05
If Landlord shall purchase any item of capital equipment or make any
capital expenditure which has the effect of reducing the expenses which would
otherwise be included in Operating Expenses, then the costs of such capital
equipment or capital expenditure are to be included in Operating Expenses for
the Escalation Year in which the costs are incurred and subsequent Escalation
Years, on a straight-line basis, to the extent that such items are amortized
over such period of time as Landlord reasonably estimates such savings or
reductions in Operating Expenses will equal Landlord's costs for such capital
equipment or capital expenditure, with interest calculated at an annual rate of
1% above the prime rate at the time of Landlord's having made said expenditure.
If Landlord shall lease any items of capital equipment designed to result in
savings or reductions in expenses which would otherwise be included in Operating
Expenses, then the rentals and other costs paid pursuant to such leasing shall
be included in Operating Expenses for the Escalation Year in which incurred.
If during all or part of any Escalation Year, Landlord shall not furnish
any particular item(s) of work or service (which would otherwise constitute an
Operating Expense hereunder) to portions of the Building due to the fact that
(i) such portions are not occupied or leased, (ii) such item of work or
service is not required or desired by the tenant of such portion, (iii) such
tenant is itself obtaining and providing such item of work or service or (iv)
any other reason, then, for the purposes of computing Operating Expenses, the
amount of such item for such period shall be deemed to be increased by an amount
equal to the additional costs and expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished
such item of work or services to such portion of the Building or to such tenant.
L. The term "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
M. The term "Local 32B" shall mean Local 32B-32J of the Building Service
Employees International Union, AFL-CIO, or its successor.
N. The term "Class A Office Buildings" shall mean that classification of
office buildings most nearly comparable to the classification "Class A
buildings" in the current agreements between R.A.B. and Local 32B.
O. The term "Labor Rates" with respect to any Escalation Year shall mean
the regular average hourly wage rate required to be paid to Porters in Class A
Office Buildings pursuant to any agreement between R.A.B. and Local 32B in
effect during such Escalation Year, provided that if any such agreement shall
require Porters to be regularly employed on days or during hours when overtime
or other premium pay rates are in effect, then the term "regular average hourly
wage rate" shall mean the regular average hourly wage rate for the hours in a
calendar week which Porters are required to be regularly employed (whether or
not actually at work in the Building), e.g. if as of November 1, 1982, an
agreement between R.A.B. and Local 32B would require the regular employment of
Porters for 40 hours during a calendar week at a regular hourly wage of $4.00
for the first 30 hours and at an overtime hourly average wage of $5.00 for the
remaining 10 hours, then the regular average hourly wage rate under this
Subsection, as of November 1,1982, would be the sum arrived at by dividing the
total weekly average wages of $170.00 by the total number of required hours of
employment which is 40 and resulting in a regular average hourly wage rate of
$4.25. The computation of the regular average hourly wage rate shall be on the
same basis whether based on an hourly or other pay-scale but predicated on the
number of hours in such respective work weeks, whether paid by Landlord or any
independent contractor. Such regular average hourly wage rate shall also be
inclusive of the monetary value or cost of all payments or benefits of every
nature and kind (including those required to be paid by the employer directly to
taxing authorities or others because of the employment) including social
security, unemployment and other similar taxes, holiday and vacation pay, absent
fund, birthdays, jury duty, medical checkup, relief time and other paid time-
off, incentive pay, sick pay, accident, health and welfare insurance programs,
pension plans, guaranteed payment plans, and supplemental unemployment benefit
programs of a similar or dissimilar nature, irrespective of whether they may be
required by any Legal Requirement or otherwise. If there is no such agreement in
effect from which such regular average hourly wage rate is determinable as of
the date of any estimate of Tenant's Operating Payment pursuant to Section 7.03B
or the date of any Landlord's Statement, the computations shall be made on the
basis of the regular average hourly wage rate being paid by Landlord or by the
contractor performing xxxxxx or cleaning services for Landlord as of the date of
such Landlord's Statement and appropriate retroactive adjustments shall be made
when the regular average hourly wage rate is finally determined. If length of
service shall be a factor in determining any element of wages or fringe
benefits, such as vacation pay, it shall be conclusively presumed that all
employees have two years of service.
7
P. The term "Porters" shall mean that classification of employee engaged
in the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to porters in the current
agreements between R.A.B. and Local 32B (which classification is presently
termed "others" in said agreement).
Q. The term "Utility Costs" shall mean Landlord's cost (incurred directly
or through independent contractors) for all electricity (to the extent Landlord
is not reimbursed therefor by individual tenants), steam, water, gas and other
fuel and utilities supplied to the Building, including in each case, any
surcharges, fuel adjustments and taxes payable by Landlord in connection
therewith.* If during all or any part of any Escalation Year, Landlord shall not
furnish certain utilities or services which require the consumption of
electricity, steam, water, gas or other fuel or utilities (which are otherwise
required to be furnished by Landlord and the cost of which would otherwise
constitute a Utility Cost hereunder) to portions of the Building due to the fact
that (i) such portions are not occupied or leased, (ii) such utility or service
is not required or desired by the tenant of such portion, (iii) such tenant is
itself providing such utility or service or (iv) for other reasons, then, for
the purposes of computing Utility Costs, the amount included in Utility Costs
for such utility or service for such period shall be deemed to be increased by
an amount equal to the additional costs and expenses which would reasonably have
been incurred during such period by Landlord if it had at its own expense
furnished such utility or service to such portion of the Building.
SECTION 7.02 A. Tenant shall pay as Additional Rent for each Tax Year all
or any portion of which shall be within the Term a sum ("Tenant's Tax Payment")
equal to Tenant's Proportionate Share of the amount by which the Taxes for such
Tax Year exceed the Base Tax Factor. Tenant's Tax Payment for each Tax Year
shall be due and payable in semi-annual installments, in advance, on the first
day of each June and December during each Tax Year, based upon the Landlord's
Statement furnished prior to or after the commencement of such Tax Year, until
such time as a new Landlord's Statement shall become effective. If a Landlord's
Statement is furnished to Tenant after the commencement of a Tax Year in respect
of which such Landlord's Statement is rendered. Tenant shall within 15 days
thereafter, pay to Landlord an amount equal to the amount of any underpayment of
Tenant's Tax Payment with respect to such Tax Year and, in the event of an
overpayment, Landlord shall either pay to Tenant or, at Landlord's election,
credit against subsequent payments under this Section 7.02 or Section 7.03, the
amount of Tenant's overpayment. If there shall be any increase in Taxes for any
Tax Year, whether during or after such Tax Year, or if there shall be any
decrease in the Taxes for any Tax Year during such Tax Year, Landlord may
furnish a revised Landlord's Statement for such Tax Year, and Tenant's Tax
Payment for such Tax Year shall be adjusted and paid or credited or refunded, as
the case may be, substantially in the same manner as provided in the preceding
sentence. If during the Term, Taxes are required to be paid (either to the
appropriate taxing authorities or as tax excrow payments to the Superior Lessor
or the Superior Mortgagee), in full or in monthly, quarterly or other
installments on any other date or dates than as presently required, then
Tenant's Tax Payments shall be correspondingly accelerated or revised so that
said Tenant's Tax Payments are due at least 30 days prior to the date payments
are due to the taxing authorities or the Superior Lessor or the Superior
Mortgagee. The benefit of any discount for any early payment or prepayment of
Taxes relating to all or any part of the Real Property shall accrue solely to
the benefit of Landlord and Taxes shall be computed without subtracting such
discount or taking into account any such exemption or abatement.
B. If the real estate tax fiscal year of The City of New York shall be
changed at any time after the date hereof, any Taxes for such fiscal year, a
part of which is included within a particular Tax Year and a part of which is
not so included, shall be apportioned on the basis of the number of days in such
fiscal year included in the particular Tax Year for the purpose of making the
computations under this Section 7.02.
C. Only Landlord shall be eligible to institute tax reduction or other
proceedings to reduce the assessed valuation of the Real Property. If Landlord
shall receive a refund of Taxes for any Tax Year, Landlord shall either pay to
Tenant, or, at Landlord's election, credit against subsequent payments under
this Section 7.02 or Section 7.03, Tenant's Proportionate Share of the refund;
but not to exceed Tenant's Payment paid for such Tax Yexx. Nothing herein shall
obligate Landlord to file any application or institute any proceeding seeking a
reduction in Taxes or assessed valuation.
D. Tenant's Tax Payment and any credits with respect thereto as provided
in this Section 7.02 shall be made as provided in this Section 7.02 regardless
of the fact that Tenant may be exempt, in whole or in part, from payment of any
taxes by reason of Tenant's diplomatic or other tax exempt status or for any
other reason whatsoever.
*Notwithstanding the foregoing, Utility Costs shall not include Landlord's costs
for such utilities relating to or arising during Basic Construction of the
Building, or costs relating to construction of space occupied by tenants other
than Tenant.
8
E. Tenant shall pay to Landlord upon demand as Additional Rent any
occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
F. If the Commencement Date or the Expiration Date shall occur on a date
other than July 1 or June 30, respectively, any Additional Rent under this
Section 7.02 for the Tax Year in which such Commencement Date or Expiration Date
shall occur shall be apportioned in that percentage which the number of days in
the period from the Commencement Date to June 30 or from July 1 to the
Expiration Date, as the case may be, both inclusive, shall bear to the total
number of days in such Tax Year. In the event of a termination of this Lease,
any Additional Rent under this Section 7.02 shall be paid or adjusted within 30
days after submission of Landlord's Statement. In no event shall Fixed Rent ever
be reduced by operation of this Section 7.02 and the rights and obligations of
Landlord and Tenant under the provisions of this Section 7.02 with respect to
any Additional Rent shall survive the termination of this Lease. See Section
46.07
G. Each Landlord's Statement furnished by Landlord with respect to
Tenant's Tax Payment shall be accompanied by a copy of the real estate tax xxxx
for the Tax Year referred to therein, but Landlord shall have no obligation to
deliver more than one such copy of the real estate tax xxxx in respect of any
Tax Year.
Section 7.03 A. Tenant shall pay as Additional Rent for each Escalation
Year an amount ("Tenant's Operating Payment"), calculated as follows:
(a) In the case of the first Escalation Year. A sum equal to (y) the sum
obtained by multiplying the number of square feet of the Premises Area by
the number of cents (inclusive of any fractions of a cent) of any
increase in Labor Rates above those in effect as of January 1, 1984, plus
(z) Tenant's Proportionate Share of the amount by which Utility Costs for
such Escalation Year exceed the Base Utility Factor.
(b) In the case of the Escalation Years subsequent to the first Escalation
Year, subject to the provisions of Section 7.03B, the sum of Tenant's Operating
Payment for the immediately preceding Escalation Year, plus either.
(1) a sum equal to (y) the sum obtained by multiplying the number of
square feet of the Premises Area by the number of cents (inclusive of any
fractions of a cent) of any increase in Labor Rates above those in effect
on January 1 of the immediately preceding Escalation Year, plus (z)
Tenant's Proportionate Share of the amount by which Utility Costs for
such Escalation Year exceed Utility Costs for the immediately preceding
Escalation Year.
or, at Landlord's election, See Section 46.08
(2) a sum equal to Tenant's Proportionate Share of the amount by
which Operating Expenses for such Escalation Year exceed Operating
Expenses for the immediately preceding Escalation Year.
B. Landlord's option to elect either of the methods of calculating
Tenant's Operating Payment set forth in clauses (1) and (2) of subdivision (b)
of Section 7.03A, may be exercised by notice to Tenant contained in a Landlord's
Statement or in any written estimate referred to in Section 7.03* and such
method of calculating Tenant's Operating Payment elected by Landlord shall
remain in effect unless and until Landlord exercises its option
pursuant to this Section 7.03 to elect the other method of calculating Tenant's
Operating Payment. Notwithstanding the foregoing, Landlord's option to elect
either of the methods calculating Tenant's Operating Payment set forth in clause
(2) of subdivision/* with respect to any year after the first Escalation Year
may be exercised by Landlord only (i) once in respect of the/** Escalation
Years, (ii) once in respect of/*** Escalation Years, (iii) once with respect to
each Escalation Year thereafter during the Term/+ and (iv) at any time during
the Term if (y) a determination is made either judicially or pursuant to any
Legal Requirement that the calculation of Tenant's Operating Payment pursuant to
subdivision (a) or clause (l) of subdivision (b) of Section 7.03A is not fully
enforceable and payable when due in accordance with the terms of this Lease, or
or (z) a wage freeze, wage control or similar restriction which affects
increases in Labor Rates exists in respect of Labor Rates
* (b) of Section 7.30A
** second (2nd) through fifth (5th)
*** the sixth (6th) through tenth (10th)
+ as the term may be extended pursuant to this Lease
9
or any component thereof; provided, however, that if Landlord elects to
calculate Tenant's Operating Payment pursuant to clause (2) of subdivision (b)
of Section 7.03A by reason of any occurrence referred to in clauses (y) or (z)
above the continuation by Landlord of calculating Tenant's Operating Payment
by such method after the termination of such occurrence, shall be deemed to be
an election pursuant to clause (i) of this Section 7.03B, but an election by
Landlord at the termination of such occurrence to calculate Tenant's Operating
Payment pursuant to subdivision (a) or clause (1) of subdivision (b) of Section
7.03A shall not be deemed to be an election pursuant to clause (i) of this
Section 7.03B.
C. Landlord may furnish to Tenant, with respect to each Escalation Year, a
written statement setting forth Landlord's estimate to Tenant's Operating
Payment for such Escalation Year. Tenant shall pay to Landlord on the first day
of each month during such Escalation Year an amount equal to one-twelfth of
Landlord's estimate of Tenant's Operating Payment for such Escalation Year. If,
however, Landlord shall furnish any such estimate for an Escalation Year
subsequent to the commencement thereof, then (a) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section 7.03 in respect of
the last month of the preceding Escalation Year, (b) promptly after such
estimate is furnished to Tenant or together therewith. Landlord shall give
notice to Tenant stating whether the installments of Tenant's Operating Payment
previously made for such Escalation Year were greater or less than the
installments of Tenant's Operating Payment to be made for such Escalation Year
in accordance with such estimate, and (i) if there shall be a deficiency, Tenant
shall pay the amount thereof within 10 days after demand therefor, or (ii) if
there shall have been an overpayment, Landlord shall either refund to Tenant the
amount thereof or, at Landlord's election, credit the amount thereof against
subsequent payments under this Section 7.03 or Section 7.02; and (c) on the
first day of the month following the month in which such estimate is furnished
to Tenant, and monthly thereafter throughout the remainder of such Escalation
Year, Tenant shall pay to Landlord an amount equal to one-twelfth of Tenant's
Operating Payment shown on such estimate. Landlord may at any time or from time
to time (but not more than twice with respect to any Escalation Year) furnish to
Tenant a revised statement of Landlord's estimate of Tenant's Operating Payment
for such Escalation Year, and in such case, Tenant's Operating Payment for such
Escalation Year shall be adjusted and paid or refunded, as the case may be,
substantially in the same manner as provided in the preceding sentence.
D. After the end of each Escalation Year Landlord shall furnish to Tenant a
Landlord's Statement for such Escalation Year. Each such year end Landlord's
Statement for any Escalation Year in which Tenant's Operating Payment is based
upon Operating Expenses shall be accompanied by a computation of operating
expenses for the Building prepared by an independent certified public accountant
or independent managing agent designated by Landlord from which Landlord shall
make the computation of Operating Expenses hereunder. Each such year end
Landlord's Statement for any Escalation Year in which Tenant's Operating Payment
is based upon Labor Rate and Utility Costs shall be accompanied by a computation
of utility costs for the Building prepared by an independent certified public
accountant or independent managing agent designated by Landlord from which
Landlord shall make the computation of Utility Costs. In making computations of
operating expenses and utility costs the certified public accountant or
managing agent may rely on Landlord's estimate and allocations whenever said
estimates and allocation are needed for this Article. If the Landlord's
Statement shall show that the sum paid by Tenant under Section 7.03C exceeded
Tenant's Operating Payment required to be paid by Tenant for such Escalation
Year, Landlord shall either refund to Tenant the amount of such excess or, at
Landlord's election credit the amount of such excess against subsequent payments
under this Section 7.03 or Section 7.02, and if the Landlord's Statement for
such Escalation Year shall show that the sums so paid by Tenant were less than
Tenant's Operating Payment paid by Tenant were less than Tenant's Operating
Payment paid by Tenant for such Escalation Year, Tenant shall pay the amount of
such deficiency within 10 days after demand therefor.
E. If the Commencement Date or the Expiration Date shall occur on a date
other than January 1, or December 31, respectively, and Additional Rent under
this Section 7.03 for the Escalation Year in which such Commencement Date or
Expiration Date shall occur shall be apportioned in that percentage which the
number days in the period from the Commencement Date to December 31 or from
January 1 to the Expiration Date, the case may be, both inclusive, shall bear to
the total number of days in such Escalation Year. In the event of a termination
of this Lease, any Additional Rent under this Article shall be paid or adjusted
within 30 days after submission of a Landlord's Statement. In no event shall
Fixed Rent ever be reduced by operation of this Section 7.03 and the rights and
obligations of Landlord and Tenant under the provisions of this Article with
respect to any Additional Rent shall survive the termination of this Lease.*
10
SECTION 7.04 The computations of Additional Rent under this Article 7
are intended to constitute a formula for an agreed rental adjustment and may or
may not constitute an actual reimbursement to Landlord for costs and expenses
paid by Landlord with respect to the Building. Without limiting the foregoing.
Landlord may compute Tenant's Operating Payment pursuant to subdivision (a) or
clause (1) of subdivision (b) of Section 7.03A whether or not the Building is a
Class A Office Building, whether or not Porters are employed in the Building and
without regard to whether such employees are members of Local 32B.
SECTION 7.05 A. Landlord's failure to render Landlord's Statements with
respect to any Tax year or Escalation Year shall not prejudice Landlord's right
to thereafter render a Landlord's Statement with respect thereto or with respect
to any subsequent Tax Year or Escalation Year, nor shall the rendering of a
Landlord's Statement prejudice Landlord's right to thereafter render a corrected
Landlord's Statement for that Tax Year or Escalation Year, as the case may be.
Nothing herein contained shall restrict Landlord from issuing a Landlord's
Statement at any time there is an increase in Taxes, Utility Costs, Labor Rates
or Operating Expenses during any Tax Year or Escalation Year or any time
thereafter.
B. Each Landlord's Statement shall be conclusive and binding upon Tenant
unless (a) within 30 days after receipt of such Landlord's Statements Tenant
shall notify Landlord that it disputes the correctness of Landlord's Statement,
specifying the particular respects in which Landlord's Statement is claimed to
be incorrect and (b) if such dispute shall not be resolved within 90 days after
the giving of such Landlord's Statement, Tenant shall within 60 days after the
expiration of such 90-day period, submit the dispute to arbitration pursuant to
Article 28 Pending the determination of such dispute, Tenant shall pay
Additional Rent in accordance with the applicable Landlord's Statement, without
prejudice to Tenant's position. If such dispute is ultimately determined in
Tenant's favor, Landlord shall promptly after such determination pay to Tenant
any amount so overpaid by Tenant.
ARTICLE 8
INSURANCE
SECTION 8.01 Tenant shall not do or suffer or permit anything to be done
in or about the Premises or the Building which would: (a) subject Landlord to
any liability for injury to any person or property by reason of an activity
being conducted in the Premises or by Tenant, (b) cause any increase in the
insurance rates applicable to any policies of insurance carried by Landlord
covering the Building or the Building Equipment located therein, (c) result in
the cancellation of or the assertion of any defense by the insurer to any claim
under any policy insurance maintained by or for the benefit of Landlord or (d)
be prohibited by or violate the rules and regulations of the Insurance Service
Organization or any other insurance rating organization having jurisdiction.
SECTION 8.02 If as a result of: (a) any act or omission on the part of
Tenant, or anyone claiming by, through or under Tenant, including the use and
occupancy of the Premises by Tenant or anyone claiming by, through or under
Tenant, whether or not Landlord has consented to the same or whether or not due
to Tenant's use or occupancy, or (b) Tenant's abandonment or failure to occupy
the Premises, the insurance rates applicable to any policies of insurance
carried by Landlord covering the Real Property or the rental income to be
derived therefrom or the Building, Equipment or other property of Landlord shall
be increased, Tenant agrees to pay Landlord as additional rent within ten (10)
days after Landlord's demand therefor, the entire portion of the premiums for
said insurance which shall be attributable to such higher rates. If any such
insurance carried by Landlord shall be cancelled by the insurance carrier as a
result of the aforementioned acts or omissions of Tenant or anyone claiming by,
through or under Tenant, Tenant agrees to indemnify and hold Landlord free and
harmless from all damages, costs, liabilities and expenses (including reasonable
attorneys' fees and disbursement) which Landlord may sustain by reason thereof.
SECTION 8.03 In determining whether any increase in such rates is the
result of any of the aforementioned acts or omissions of Tenant or anyone
claiming by, through or under Tenant, a schedule or rule book issued by the
Insurance Service Organization or any other insurance rating organization having
jurisdiction, or the rating procedures or rules of Landlord's insurance
companies shall be conclusive evidence of the several items and charges which
make up the insurance rates and premiums on the Premises and the Building and
the rental income to be derived therefrom.
SECTION 8.04 A Tenant shall secure and keep in full force and effect
throughout the Term, at Tenant's sole cost and expense, (a) Comprehensive
General Liability Insurance, written on an occurrence basis, to afford
11
protection in such amount as Landlord may determine and in no event less than*
combined single limit for bodily injury and/or death arising therefrom and
Broad Form property damage (including a "personal injury" endorsement covering
claims arising out of false arrest, false imprisonment, defamation, libel and
slander, wrongful eviction, discrimination and invasion of privacy without
exclusion of coverage for claims of personal injury brought by employees, agents
or contractors of an insured) arising out of any one occurrence; and which
insurance shall include coverage for contractual liability (including covering
the matters set forth in Article 20 hereof), owner's protective liability,
independent contractor's liability and completed operations liability; (b)
Comprehensive Automobile Liability, covering owned, non-owned and hired
vehicles, providing bodily injury and property damage, all on a per occurrence
basis, at a combined single limit in such amount as Landlord may determine and
in no event less than $1,500,000; (c) insurance upon Tenant's Property and
Improvements made at Tenant's sole cost and expense, in an amount equal to the
full replacement value thereof (including, an "agreed amount" endorsement),
including any increase in value resulting from increased costs, with coverage
against such perils and casualties as are commonly included in "all risk"
insurance policies (including breakage of glass within the Premises, sprinkler
leakage, flood, earthquake and collapse), (d) Broad Form Boiler and Machinery
Insurance on all air conditioning equipment, miscellaneous electrical apparatus,
boilers and other pressure vessels or systems, whether fired or unfired,
installed by Tenant in, adjoining, above or beneath the Premises: and if said
equipment, vessels or systems and the damage that may be caused by or result
from them are not covered by Tenant's extended coverage insurance mentioned in
clause (c) of this Section, such Boiler and Machinery Insurance shall be in
amounts set by Landlord and in no event less than the amount of Two Hundred
Fifty Thousand Dollars ($250,000); (e) during the course of any alterations or
construction by Tenant in the Premises and until completion thereof, Builder's
Risk insurance on an "all risk" basis (including collapse) on a completed value
(non-reporting) form for full replacement value covering the interest of
Landlord and Tenant (and their respective contractors and subcontractors), the
Superior Mortgagee and the Superior Lessor in all work incorporated in the
Building and all materials and equipment in or about the Premises; (f) Worker's
Compensation and Employer's Liability Insurance, as required by law; and (g)
such other insurance in such amounts as Landlord, the Superior Mortgagee or the
Superior Lessor may reasonably require from time to time. Tenant shall have the
right to insure and maintain the insurance coverages set forth in this Section
under blanket insurance policies covering other premises occupied by Tenant so
long as such blanket policies comply as to terms and amounts with the insurance
provisions set forth in this Lease.
B. All such insurance shall be written in form and substance satisfactory
to landlord by an insurance company in a financial size category of not less
than XII and with general policy holder's ratings of not less than A, as rated
in the most current available "Best's" insurance reports, and licensed to do
business in New York State and authorized to issue such policies. Upon failure
of Tenant to procure, maintain and place such insurance and pay all premiums and
charges therefor. Landlord may do so (but shall not be obligated) and in such
event Tenant agrees to pay the amount thereof to Landlord as Additional Rent on
demand. All policies of insurance procured by Tenant shall contain endorsements
providing that (a) such policies may not be materially changed, amended,
reduced, cancelled (including for non-payment of premium) or allowed to lapse
with respect to Landlord, or any Superior Lessor, Superior Mortgagee or Fee
Mortgagee except after 45 days, prior notice from the insurance company to each,
sent by registered mail; and (b) Tenant shall be solely responsible for the
payment of all premiums under such policies and Landlord shall have no
obligation for the payment thereof notwithstanding that Landlord is or may be
named as an insured. Duly executed certificates of insurance (including evidence
of the waivers of subrogation required pursuant to Section 8.05) or, if required
by Landlord or the Superior Lessor, the Superior Mortgagee or the Fee Mortgagee,
original policies, together with reasonable satisfactory evidence of payment of
the premiums therefor, shall be delivered to Landlord, the Superior Lessor and
the Superior Mortgagee and the Fee Mortgagee on or before the Commencement Date.
Any endorsements to any such policies shall also be so deposited upon issuance
thereof and each renewal or replacement of a policy shall be so deposited at
least 20 days prior to the expiration of such policy. Tenant shall not carry
separate or additional insurance, concurrent in form or contributing, in the
event of any loss or damage with any insurance required to be obtained by Tenant
under this Lease. Further, all policies of insurance procured by Tenant shall be
written as primary policies not contributing with nor in excess of coverage that
Landlord may carry.
C. All insurance procured by Tenant under this Article 8 shall be issued
in the names and for the benefit of Landlord (and each member thereof in the
event Landlord is a partnership or joint venture), Tenant and, unless Landlord
otherwise requests, the Superior Lessor, the Superior Mortgagee and the Fee
Mortgagee, as their respective interests may appear, and shall contain an
endorsement that each of Landlord, the Superior Lessor Superior Mortgagee and
the Fee Mortgagee, although named as an insured, nevertheless shall be entitled
to
*$2,000,000 (or such greater amount as may be required by any Superior
Mortgagee)
12
recover under said policies for any loss or damage occasioned to it, its
agents, employees, contractors, directors, shareholders, partners and principals
(disclosed and undisclosed) by reason of the negligence of Tenant, its servants,
agents, employees and contractors. In the case of insurance against damage by
fire or other casualty, the policy or policies shall provide that loss shall be
adjusted with Landlord and shall be payable to Landlord, to be held and
disbursed as provided in this Lease, or to the Superior Mortgagee under a
standard mortgagee clause, or to the Superior Lessor.
SECTION 8.05 Each party shall include in each of its insurance policies
(and, with respect to any equipment in the Premises leased by Tenant, in the
insurance policies covering such equipment carried by Tenant or the lessors of
such equipment) covering loss, damage or destruction by fire or other insured
casualty or worker's compensation or employer's liability a waiver of the
insurer's right of subrogation against the other party. If such waiver should be
unobtainable or unenforceable each shall obtain from its insurer (a) an express
agreement that such policy shall not be invalidated if the insured waives or has
waived before the casualty or liability the right of recovery against any party
responsible for a casualty or liability covered by such policies, or (b) any
other form of permission for the release of the other party. If such waiver
shall cease to be obtainable, the insured party shall so notify the other party
promptly after learning thereof.
SECTION 8.06 As long as Landlord's insurance policies include the waiver
of subrogation or agreement or permission to release liability referred to in
Section 8.05, Landlord, to the extent that such insurance is in force and
collectible, hereby waives (a) any obligation on the part of Tenant to make
repairs to the Basic Construction of the Building and Landlord's Work
necessitated or occasioned by fire or other insured casualty, and (b) any right
of recovery against Tenant, any other permitted occupant of the Premises, and
any of their employees, agents or contractors, for any loss occasioned by fire
or other insured casualty. In the event that at any time Landlord's insurance
carriers shall not include such or similar provisions in Landlord's policies,
the waivers set forth in the foregoing sentence shall, upon notice given by
Landlord to Tenant, be deemed of no further force or effect with respect to any
insured risks under such policies from and after the giving of such notice.
During any period while the foregoing waiver of right of recovery is in effect,
Landlord shall look solely to the proceeds of such policies to compensate
Landlord for any loss occasioned by fire or other insured casualty.
SECTION 8.07 As long as Tenant's insurance policies include the waiver of
subrogation or agreement or permission to release liability referred to in
Section 8.05, Tenant to the extent that such insurance is in force and
collectible hereby waives (and agrees to cause all other occupants of the
Premises to execute and deliver to Landlord instruments waiving) any right of
recovery against Landlord, the Superior Lessor, the Superior Mortgagee and the
Fee Mortgagee and any of their employees, agents or contractors, for any loss
occasioned by fire or other insured casualty or liability under any workers'
compensation law, In the event that at any time Tenant's insurance carries shall
not include such or similar provisions in Tenant's policies, the waiver set
forth in the foregoing sentence shall, upon notice given by Tenant to Landlord,
be deemed of no further force or effect with respect to any insured risks under
such policy from and after the giving of such notice (or in the case such
insurer shall not be willing to grant such waiver for all of the required
parties, such waiver shall be of no force or effect only with respect to the
required parties not included in such waiver). In the event Tenant fails to
have casualty insurance in effect as required by this Article 8, the waiver set
forth in the first sentence of this Section 8.07 shall be in full force and
effect to the same extent as if such required insurance (containing a waiver of
subrogation) were in effect. During any period while the foregoing waiver of
right of recovery is in effect, Tenant or any other occupant of the Premises, as
the case may be, shall look solely to the proceeds of such policies to
compensate Tenant or such other occupant for any loss occasioned by fire or
other insured casualty or as a result of any liability under workers'
compensation laws.
SECTION 8.08 Except to the extent expressly provided in Section 8.06,
nothing contained in this Lease shall relieve Tenant of any liability to
Landlord or to its insurance carriers which Tenant may have under law or the
terms of this Lease in connection with any damage to the Premises or the
Building by fire or other casualty.
SECTION 8.09 Except as otherwise provided in Section 8.04, nothing
contained in Sections 8.05, 8.06 or 8.07 shall be deemed to impose upon Landlord
or Tenant any duty to procure or maintain any kinds of insurance or any
particular amounts or limits of any such kinds of insurance. The insurance
policies referred to in Section 8.05 shall be deemed to include policies
procured and maintained by a party for the benefit of its lessor, mortgagee or
pledgee.
13
ARTICLE 9
COMPLIANCE WITH LAWS
SECTION 9.01 A. Tenant, at its sole cost and expense, shall comply with all
Legal Requirements and all Insurance Requirements and shall give Landlord prompt
notice of any lack of compliance with any of the foregoing, except that Tenant
shall not be under any obligation to comply with any Legal Requirements or
Insurance Requirements requiring any structural alteration of the Premises
solely by reason of the use thereof for any of the permitted purposes specified
in Section 5.01 unless said alteration (a) is necessitated by a condition which
has been otherwise created by, or at the instance of, Tenant, (b) is
attributable to the use or manner of use to which Tenant puts the Premises,
other than as permitted by Section 5.01, (c) is required by reason of a breach
of Tenant's obligations hereunder, or (d) is occasioned, in whole or in part, by
any act, omission or negligence of Tenant or any person claiming through or
under Tenant, or any of their employees, agents, contractors, invitees or
licensees. Tenant shall pay all costs, expenses, fines, penalties and damages
which may be imposed upon Landlord, the Superior Lessor, the Superior Mortgagee
or the Fee Mortgagee by reason of arising out of Tenant's failure fully and
promptly to comply with the provisions of this Section. Where any structural
alteration of the Premises is required by any such Legal Requirement or
Insurance Requirment and, by reason of the express exception hereinabove
contained, Tenant is not obligated to make such alteration, then Landlord shall
make such alteration and pay the cost thereof. Tenant need not comply with any
such Legal Requirement or Insurance Requirement so long as Tenant shall be
contesting the validity or applicability thereof in accordance with Section
9.02. Subject to the provisions of this Article, Landlord, at its expense, shall
comply with all other Legal Requirements and Insurance Requirements as shall
affect the Premises, but may similarly defer compliance so long as Landlord
shall be contesting the validity or applicability thereof.
B. If in any Escalation Year all or any portion of which shall be within
the Term Landlord shall incur any expenditure in respect of the Real Property
for capital improvements or capital equipment by reason of Legal Requirements or
Insurance Requirements or which under generally accepted real estate practice
would be expensed or regarded as deferred expenses, Tenant shall reimburse
Landlord on demand for Tenant's Proportionate Share of the annual amortization
(reasonably determined by Landlord on a straight-line basis over an appropriate
period not to exceed 10 years, with interest calculated at an annual rate of 1%
above the prime rate at the time of Landlord's having made such expenditures) of
such expenditures; provided, however, that in the event Landlord receives an
exemption or abatement of Taxes by reason of any such capital improvement of
capital equipment (other than an exemption, abatement or credit which is the
result of the application of Section 38 of the Internal Revenue Code of 1954, as
amended, or any similar provision of Federal or New York law), the cost of such
capital improvement or capital equipment shall be reduced by the amount of such
exemption or abatement. Notwithstanding anything to the contrary contained in
this Section 9.01B, if during any Escalation Year all or any portion of which
shall be within the Term, Tenant's Operating Payment is computed in accordance
with Subsection 7.03A(b)(2), the provisions of this Section 9.01B shall not
apply with respect to such Escalation Year.
SECTION 9.02 Tenant, at its expense, after notice to Landlord, may contest,
by appropriate proceedings prosecuted diligently and in good faith, the validity
or applicability of any Legal Requirement or Insurance Requirement, provided
that: (a) Landlord shall not be subject to criminal penalty or to prosecution
for a crime nor shall the Real Property or any part thereof be subject to being
condemned or vacated, nor shall the certificate(s) of occupancy for the Premises
or the Building be suspended or threatened to be suspended by reason of non-
compliance or otherwise by reason of such contest; (b) before the commencement
of such contest, Tenant shall furnish to Landlord either (i) the bond of a
surety company satisfactory to Landlord, in form and substance reasonably
satisfactory to Landlord, and in an amount at least equal to 100% of the cost of
such compliance (as reasonably estimated by Landlord) and shall indemnify
Landlord against the cost of such compliance and liability resulting from or
incurred in connection with such contest or non-compliance, or (ii) other
security reasonably satisfactory in all respects to Landlord; (c) such
non-compliance or contest shall not constitute or result in any violation of the
terms of the Superior Lease or Superior Mortgage, or if any such Superior Lease
and/or Superior Mortgage shall condition such non-compliance or contest upon the
taking of action or furnishing of security by Landlord, such action shall be
taken and such security shall be furnished at the expense of Tenant; and (d)
Tenant shall keep Landlord regularly advised as to the status of such
proceedings. Without limiting the application of the above, Landlord shall be
deemed subject to prosecution for a crime if Landlord, the Superior Lessor, the
Superior Mortgagee, the Fee Mortgagee or any of their officers, directors,
partners, shareholders, agents or employees is charged with a crime of any kind
whatever unless such charge is withdrawn 5 days before Landlord, the Superior
14
Lessor, the Superior Mortgagee or the Fee Mortgagee or such officer, director,
partner, shareholder, agent or employee, as the case may be, is required to
plead or answer thereto.
SECTION 9.03 Any Improvements made or performed by or on behalf of Tenant
or any person claiming through or under Tenant pursuant to this Article shall be
made in conformity with and subject to the provisions of Article 10.
SECTION 9.04 Notwithstanding anything to the contrary contained elsewhere
in this Lease, if (a) the New York Board of Fire Underwriters or the Insurance
Service Office or any other body exercising the same or similar functions and
having jurisdiction or cognizance of all or any part of the Real Property or the
Premises requires or recommends that (i) any changes, modifications, alterations
or additional sprinkler heads or other equipment be made or supplied in the
Building sprinkler system by reason of the conduct of Tenant's business or
Tenant's use or occupancy of the Premises, or the location of partitions, trade
fixtures or other contents of the Premises, or (ii) for any reason, any such
changes, modifications, alterations or additions be made in the Premises only,
or (b) such changes, modifications, alterations or additions in the Premises
become necessary to prevent the imposition of a penalty or charge against the
full allowance, if any, for a sprinkler system in Landlord's "all risk"
insurance policy for the Building, Landlord shall make all such changes,
modifications, alterations and additions and Tenant shall pay the cost thereof
to Landlord as Additional Rent on demand.
ARTICLE 10
IMPROVEMENTS; TENANT'S PROPERTY
SECTION 10.01 Upon and subject to the terms of this Article (and, with
respect to Improvements made in connection with Tenant's initial occupancy of
the Premises, subject in the terms of the Work Letter), Tenant at any time and
from time to time during the Term, at its sole cost and expense, may make
Improvements in and to the Premises, excluding structural changes, provided:
(a) The Improvements will not result in a violation of or require a
change in any certificate of occupancy applicable to the Premises or to the
Building
(b) The character, outside appearance, usefulness or rentability of
the Building or any part thereof shall not be affected in any way, and
such Improvements shall not, in the sole opinion of Landlord, weaken or
impair (temporarily or permanently) the structure or lessen the value or
cubic content of the Premises or the Building either during the making of
such Improvements or upon their completion;
(c) No part of the Building outside of the Premises shall be
physically affected;
(d) The proper or economical functioning of the Building Equipment,
in the sole opinion of Landlord shall not be affected;
(e) In performing the work involved in making such Improvements,
Tenant shall be bound by and observe all of the terms of this Article;
(f) Upon the termination of this Lease, Tenant shall, on Landlord's
request restore those portions of the Premises* to their condition prior to
the making of any Improvements by Tenant, reasonable wear and tear damage
by insured casualty expected;
(g) Tenant shall not use the elevators during business hours on
business days for haulage or removal of material or debris;
(h) Before proceeding with any Improvements, Tenant shall submit to
Landlord three copies of detailed plans and specifications therefor, for
Landlord's consent. Tenant shall reimburse Landlord for all reasonable
expenses incurred by Landlord in connection with (i) its decision and the
decision of the Superior Lessor, Superior Mortgagee and the Fee Mortgagee
as to whether to approve the proposed Improvements (ii) inspecting the
Improvements to determine whether the same are being or have been performed
in accordance with the approved plans and specifications therefor and with
all Legal Requirements and Insurance Requirements, including the fees and
expenses of any architect or engineer employed for such purpose. If such
Improvements require consent by or notice to the Superior Lessor, the
Superior Mortgagee or the Mortgagee, Tenant, notwithstanding anything to
the contrary contained in this Article, shall not proceed with the
Improvements until such consent has been received, or such notice has been
given, as the case may be
*with respect to which Landlord specifically retains its rights pursuant to
this subsection 10.01(f) after Landlord's review of the plans and
specifications submitted by tenant,
15
and all applicable conditions and provisions of the Superior Lease, the
Superior Mortgage or the Fee Mortgage with respect to the proposed
Improvements have been met or complied with at Tenant's expense; and
Landlord, if it consents to the Improvements, will request such consent or
give such notice, as the case may be. Any Improvements for which consent
has been received shall be performed strictly in accordance with the
approved plans and specifications therefor, and no amendments or additions
thereto shall be made without the prior consent of Landlord;
(i) Tenant shall not be permitted to install and make part of the
Premises any materials, fixtures or articles which are subject to liens,
conditional sales contracts, chattel mortgages or security interests (as
such term is defined in the Uniform Commercial Code as in effect in New
York at the time of the making of the Improvement);
(j) No Improvements estimated to cost more than $50,000 (as estimated
by Landlord's architect or licensed professional engineer or general
contractor) shall be undertaken (i) except under the supervision of a
licensed architect or licensed professional engineer reasonably
satisfactory to Landlord, (ii) except after at least 30 days' prior notice
to Landlord and (iii) prior to Tenant delivering to Landlord either (y) a
performance bond and a labor and materials payment bond (issued by a surety
company satisfactory to Landlord and licensed to do business in New York
State) each in an amount equal to 150% of such estimated cost and otherwise
in form satisfactory to Landlord or (z) such other security as shall be
satisfactory to Landlord;
(k) The sprinkler system design is not thereby modified, altered or
changed: and
(l) Tenant shall not (i) attach or affix any screws or fasteners to
the exterior curtainwall of the Building or (ii) install, without the
written consent of Landlord, any materials that will come in contact with
the exterior curtainwall of the Building.
SECTION 10.02 All Improvements shall at all times comply with all Legal
Requirements and Insurance Requirements and all Rules and Regulations (including
any Landlord may adopt with respect to the making of Improvements) and shall be
made at such times and in such manner as Landlord may from time to time
reasonably designate. Tenant, at its expense, shall (a) obtain all necessary
municipal and other governmental permits, authorizations, approvals and
certificates for the commencement and prosecution of such Improvements and for
final approval thereof upon completion, (b) deliver three copies thereof to
Landlord and (c) cause all Improvements to be performed in a good and first-
class workmanlike manner, using new materials and equipment at least equal in
quality to the original installations of the Premises or the then standards for
the Building established by Landlord. Improvements shall be promptly commenced
and completed and shall be performed in such manner so as not to interfere with
the occupancy of any other tenant nor delay or impose any additional expense
upon Landlord in the construction, maintenance, cleaning, repair, safety,
management security or operation of the Building or the Building Equipment; and
if any such additional expense shall be incurred by Landlord as a result of
Tenant's performance of any Improvements, Tenant shall pay such additional
expense as Additional Rent upon demand. In addition to the foregoing sentence,
with respect to each Improvement estimated to cost more than $5,000 (excluding,
however, Tenant's Work and any Improvement performed or installed by Tenant
pursuant to Paragraph 11 of the Work Letter), Tenant shall pay to Landlord, an
Additional Rent upon demand, 5% of the cost of such Improvement*/ for indirect
job costs, supervision and coordination of the work performed in connection with
such Improvement**/Tenant shall furnish Landlord with satisfactory evidence that
the insurance required during the performance of the Improvements pursuant to
Article 8 is in effect at or before the commencement of the Improvements and, on
request, at reasonable interval thereafter. No Improvements shall involve the
removal of any fixtures, equipment or other property in the Premises which are
not Tenant's Property without Landlord's prior consent and unless they shall be
promptly replaced, at Tenant's expense and free of superior title, liens,
security interests and claims, with fixture equipment or other property, as the
case may be, of like utility and at least equal value, unless Landlord shall
otherwise consent.
SECTION 10.03 Tenant, at its expense, shall promptly procure the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Improvements which shall be issued by any public authority
having or asserting jurisdiction. However, nothing herein shall prevent Tenant
from contesting in good faith and, at its own expense, any such notice of
violation in accordance with the provisions of Sections 9.02.
* (other than the cost of any decorations made by Tenant)
**(except that, with respect to the cost of items of Landlord's Work and
Tenant's Work required to be performed pursuant to Exhibit C, Tenant shall be
required to pay only such Additional Rent as may be specifically set forth in
Exhibit C).
16
SECTION 10.04 Tenant hereby indemnifies Landlord against liability for any
and all mechanic's and other liens filed in connection with Improvements or
repairs, including the liens of any conditional sales of, or chattel mortgages,
title retention agreements, security agreements or financing statements upon,
any materials or fixtures installed in and constituting part of the Premises.
Tenant shall promptly pay, in cash, the cost of all Improvements. Tenant, at its
expense, shall procure the discharge of all such liens within 10 days after the
filing of any such lien against the Premises or the Real Property. If Tenant
shall fail to cause any such lien to be discharged within the period aforesaid,
then, in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be due
or by deposit or bonding proceedings, and in any such event Landlord shall be
entitled, if it elects, to compel the prosecution of an action for the
foreclosure of such lien and to pay the amount of the judgment in favor of the
lienor with interest, costs and allowances. Any amount so paid by Landlord, and
all costs and expenses incurred by Landlord in connection therewith, shall
constitute Additional Rent and shall be paid on demand.
SECTION 10.05 Only Landlord or any one or more persons approved or
designated by Landlord (Landlord or such person being referred to in this
Section as "Designated Contractor") shall be permitted to act as contractor for
any work to be performed in accordance with this Article. Landlord expressly
reserves the right to act as, or to designate, at any time and from time to
time, an exclusive construction contractor and Landlord furthermore expressly
reserves the right to exclude from the Building any person attempting to act as
construction contractor in violation hereof. In the event Tenant proposes to use
any contractor or subcontractor other than the Designated Contractor for the
performance of any Improvement, Tenant shall submit to Landlord, together with
the plans and specifications required pursuant to subsection 10.01(h), the name
of such contractor or subcontractor. If Landlord shall not consent to Tenant's
engaging such contractor or subcontractor for the performance of such
Improvement. See Section 46.10.
SECTION 10.06 Tenant agrees that it will not at any time prior to or during
the Term, either directly or indirectly, employ or permit the employment of any
contractor, mechanic or laborer, or permit any materials in the Premises, if the
use of such contractor, mechanic or laborer or such materials would, in
Landlord's opinion create any difficulty, strike or jurisdictional dispute with
other contractors, mechanics or laborers engaged by Tenant or Landlord or
others, or would in any way disturb the construction, maintenance, cleaning,
repair, management, security or operation of the Building or any part thereof.
In the event of any interference or conflict Tenant, upon demand of Landlord,
shall cause all contractors, mechanics or laborers, or all materials causing
such interference, difficulty or conflict, to leave or be removed from the
Building immediately.
SECTION 10.07 All fixtures, equipment, improvements and appurtenances
attached to, or built into, the Premises at the commencement of or during the
Term (collectively "Fixtures"), whether or not at the expense of Tenant, shall
be surrendered to Landlord upon the termination of this Lease except as
otherwise expressly provided in this Lease: provided, however, that any Fixtures
attached to, or built into, the Premises at the expense of Tenant shall be and
remain the property of Tenant during the Term and any Fixtures attached to, or
built into, the Premises at the expense of Landlord shall be and remain the
property of Landlord during the Term. The Fixtures shall include all electrical,
plumbing, heating and sprinkling equipment, fixtures, outlets, venetian blinds,
partitions, railways, gates, doors, vaults, paneling, molding, shelving,
radiator enclosures, cork, rubber, linoleum and composition floors, ventilating,
silencing, air conditioning and cooling equipment, and all fixtures, equipment,
improvements and appurtenances of a similar nature or purpose whether or not
attached to or built into the Premises.
17
SECTION 10.08 If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's Property from the Premises,
Landlord may immediately enter, and alter, renovate and redecorate the Premises,
without abatement of rent or liability to Tenant, and such acts shall have no
effect upon this Lease.
SECTION 10.09 No approval of plans or specifications by Landlord or
consent by Landlord allowing Tenant to make Improvements in the Premises shall
in any way be deemed to be an agreement by Landlord that the contemplated
Improvements comply with any Legal Requirements or Insurance Requirements or the
certificate of occupancy for the Building nor shall it be deemed to be a waiver
by Landlord of the compliance by Tenant of any of the terms of this Lease.
Notice is hereby given that neither Landlord, Landlord's agents, the Superior
Lessor, the Superior Mortgagee nor the Fee Mortgagee shall be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for such labor or materials shall attach to or
affect any estate or interest of Landlord or the Superior Lessor, Superior
Mortgagee or Fee Mortgagee in and to the Premises or the Real Property.
SECTION 10.10 Tenant shall keep records of Improvements costing in excess
of $10,000 and of the cost thereof. Tenant shall, within 45 days after demand by
Landlord, furnish to Landlord copies of such records.
ARTICLE II
REPAIRS
SECTION 11.01 Tenant at its sole cost and expense, shall take good care of
the Premises and Building Equipment therein and Tenant's Property and the
Fixtures. Tenant, at its sole cost and expense, shall make and be responsible
for all repairs, interior or exterior, structural and otherwise, ordinary or
extraordinary as and when needed to preserve the Premises and the Building
Equipment therein and Tenant's Property and the Fixtures in good working order
and condition, the need for which arises out of (a) the installation, use,
existence or operation of Improvements. Tenant's Property or Fixtures*/ (b) the
moving of Tenant's Property or Fixtures in or out of the Building or the
Premises. (c) the acts, omissions, negligence or misuse of Tenant or any of its
subtenants or any of its or their employees, agents, contractors, licensees or
invitees or their use or occupancy or manner of use or occupancy of the Premises
otherwise than in accordance with the terms of this Lease (except fire or other
casualty caused by Tenant's negligence if the fire or other casualty insurance
policies insuring Landlord are not invalidated and the rights of Landlord are
not adversely affected by this provision) or (d) pursuant to the provisions of
Section 9.01A: provided, however, that Landlord, as its option, may make any of
the foregoing repairs (other than repairs to Tenant's Property) and in such
event. Tenant shall pay, Landlord the cost thereof as Additional Rent on demand.
In no event shall Tenant be required to make, be responsible for or pay for any
repairs which are required as a result of the negligence of Landlord, its
agents, contractors or employees. Tenant at its sole cost and expense, shall
promptly replace scratched, damaged or broken doors and glass in and about the
Premises and shall be responsible for all repairs and maintenance of wall and
floor coverings in the Premises. Tenant shall promptly make, at its sole cost
and expense, all repairs in or to the Premises for which it is responsible. If
the Premises shall include any space on any ground, street, mezzanine or
basement floor in the Building, Tenant at its sole cost and expense, shall make
all necessary repairs to all windows and other glass in on or about such space
and put, keep and maintain all portions of the Premises and any sidewalks,
curbs, entranceways, passageways and vaults adjoining and/or appurtenant to the
Premises in clean and ordered condition, free of dirt, rubbish, snow, ice and
other accumulations and unlawful obstructions. All repairs made by or on behalf
of Tenant or any person claiming through or under Tenant shall be made and
performed in conformity with the provisions of Article 10, and shall be at least
equal in quality and class to the original work or installation or the then
standards for the Building established by Landlord.
SECTION 11.02 Landlord shall operate the Building as a first-class office
building with retail stores. Landlord shall, at its expense, make or cause to be
made all necessary repairs, interior or exterior, structural or non-structural,
ordinary or extraordinary to keep the Building in good order and repair,
including the Premises and the Building Equipment therein, excluding, however,
(a) repairs of Tenant's Property or Improvements not occasioned by Landlord's
negligence and (b) repairs which Tenant is obligated to make pursuant to Section
11.01 and the other terms of this Lease. Landlord shall, at Tenant's sole cost
and expense, perform all maintenance and make all necessary repairs to the air
conditioning equipment and any security systems or devices which may be
installed in the Premises by Landlord, Tenant or others except the building
standard air conditioning system which (except as otherwise provided in Section
11.01) shall be maintained and repaired at Landlord's sole cost and expense. All
such repairs and replacements shall be of a quality at least equal to that of
the original
* by Tenant or Tenant's contractors, subcontractors, employees or agents,
18
installation. Nothing contained in this Section shall require Landlord to paint
the Premises. No liability of Landlord to Tenant shall, however, accrue under
this Section unless and until Tenant has given notice to Landlord of the
specific repair required to be made, or of the failure properly to furnish any
service. Landlord shall endeavor not to unreasonably interfere with Tenant's use
and occupancy of the Premises in making any repairs or performing any
maintenance required pursuant to this Section, but Landlord shall not be
obligated to use overtime labor.
SECTION 11.03 Tenant recognizes and acknowledges that the operation of the
Building Equipment may cause vibration, noise, heat or cold which may be
transmitted throughout the Premises. Landlord shall have no obligation to
endeavor to reduce such vibration, noise, heat or cold beyond what is prevalent
in the Building.
ARTICLE 12
HEATING, VENTILATION AND AIR CONDITIONING
SECTION 12.01 Landlord, at Landlord's expense (except as may be set forth
in Article 13), shall furnish and distribute to the Premises, through the
Building heating, ventilating and air conditioning systems, heat, ventilating
and air conditioning, as may be required for reasonably comfortable occupancy of
the Premises during business hours and on business days. Landlord and Tenant
further agree to operate the heating, ventilating and air conditioning equipment
in accordance with their designs criteria unless a recognized energy or water
conservation program, guidelines, regulations or recommendations promulgated by
any Federal, State, City or other govermental or quasi-governmental bureau,
board, department, agency, office, commission or other subdivision thereof or
the American Society of Heating, Refrigeration and Air-Conditioning Engineers,
Inc. or any successor thereto or other organization serving a similar function
shall provide for any reduction in operations below said design criteria in
which case such equipment shall be operated so as to provide reduced service in
accordance with such program, guidelines, regulations or recommendations.
SECTION 12.02 If Tenant shall require heating, ventilating or air
conditioning service at any time other than during business hours on business
days ("after hours"), Landlord shall furnish the same upon advance notice from
Tenant, given prior to 2.00 P.M. on any business day on which Tenant requires
such after hours heating, ventilating or air conditioning or if Tenant shall
desire heating, ventilation or air conditioning on a day other than a business
day, Landlord shall furnish the same upon advance notice from Tenant given prior
to 2.00 P.M. on the last business day to occur prior to such non-business day,
and Tenant shall pay Landlord's then established charges therefor as Additional
Rent on demand. If any of the other tenants shall request and receive heat after
hours or other tenants on the same floor shall request and receive air
conditioning after hours at the same time as Tenant, only that equitably pro-
rated portion of the charge made by Landlord for such service shall be allocated
to Tenant.
SECTION 12.03. Tenant acknowledges that it has been advised that the
Building has sealed windows and that the Premises may become uninhabitable
during hours or days when Landlord is not required to furnish heat, ventilation
or air conditioning pursuant to this Article 12. Any use or occupancy of the
Premises during such hours or days when Landlord is not so required to furnish
heating, ventilating or air conditioning shall be at the sole risk,
responsibility and hazard of Tenant. Landlord shall have no ability to Tenant
with respect to such condition of the Premises. In addition, Landlord shall not
be responsible if the normal operation of the Building heating or ventilating
system or the air conditioning system serving the Premises shall fail to
provide such service in accordance with the requirements of this Lease in any
portions of the Premises (a) which shall have an electrical load in excess of
3 1/2 xxxxx per square foot of usable area for all purposes (including lighting
and power) or which shall have a human occupancy factor in excess of one person
per 100 square feet of usable area or (b) because of any rearrangement of
partitioning or other Improvements. 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,
ventilating and air conditioning systems. Tenant understand that any subsequent
rearrangement of partitioning after initial installation which interferes with
normal operation of said systems of the use of computer or data processing
machines or other machines and equipment may require changes or alterations in
said systems or in the ducts through which the same operate, and Tenant
according covenants and agrees that any changes so occasioned shall be made only
with Landlord's prior consent and shall be done in accordance with the
provisions of Article 10.
19
ARTICLE 13
ELECTRICITY
SECTION 13.01 Landlord shall install in the Building and the Premises, in
accordance with the provisions of the Work Letter and the Plans and
Specifications (as defined in the Work Letter) approved by Landlord, such
electrical risers, feeders and wiring as shall be necessary to permit Tenant to
receive electrical energy for (a) Tenant's reasonable use of normal office
equipment and such lighting, electrical appliances and other machines and
equipment as Landlord may reasonably permit to be installed in the Premises and
(b) the operation of the heating, ventilating and air conditioning system
serving the Premises; provided, however, in no event shall the electrical energy
required by Tenant for such uses exceed the capacities set forth on Schedule A
of the Work Letter.* Landlord will permit the electrical risers, feeders and
wiring in the Building serving the Premises to be used by Tenant to the extent
that they are available, suitable, safe and within the plan and design
capacities for the Building.
SECTION 13.02 Tenant's use of electrical energy shall never exceed the
capacity of the then existing feeders to the Building or the then existing
risers or wiring installation, in each case, as properly allocable to the
Premises based on square foot area. In order to insure that such electrical
capacity is not exceeded and to avert possible adverse effect upon the
Building's electrical system, Tenant shall not, without the prior consent of
Landlord, make or perform or permit any alteration to wiring installations or
other electrical facilities in or serving the Premises or any additions to the
electrical fixtures, business machines or office equipment or appliances (other
than typewriters and similar low energy consuming office machines) in the
Premises which utilize electrical energy. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant within 10 days after being
billed therefor, provided that Landlord shall not be obligated to consent to any
such alteration or installation if, in Landlord's judgement, the same are
unnecessary or will cause permanent damage or injury to the Building or the
Premises or will cause or create a hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants. Rigid conduit only will be allowed or such other wiring or conduit
which will not violate any applicable Legal Requirements.
SECTION 13.03 Landlord shall have no liability to Tenant for any loss,
damage or expense which Tenant may sustain or incur by reason of any change,
failure, inadequacy or defect in the supply or character of the electrical
energy furnished to the Premises or if the quantity or character of the
electrical energy is no longer available or suitable for Tenant's requirements,
except for any actual damage suffered by Tenant by reason of any such failure
inadequacy or defect caused by Landlord's negligence, and then only after actual
notice as provided in Section 11.02.
SECTION 13.04 Landlord shall furnish and install all lighting, tubes,
lamps, starters, bulbs and ballast required in the Premises and Tenant shall pay
to Landlord or its designated contractor the then established charges therefor
as Additional Rent on demand except that any such items installed at the
commencement of the Term for building standard fixtures shall be at Landlord's
sole cost and expense.
SECTION 13.05 If pursuant to a Legal Requirement or the policies of the
public utility company servicing the Building**,/ no longer permitted to
obtain electrical energy***/ Landlord will furnish electrical energy to the
Premises either, at Landlord's option, on a submetering basis or a rent
inclusion basis. Landlord shall give Tenant notice at least 30 days prior to the
date on which Landlord shall commence furnishing electrical energy to the
Premises (unless such notice is not feasible under the circumstances in which
event Landlord will give Tenant such reasonable notice as is possible), which
notice will set forth the method chosen by Landlord for furnishing electrical
energy to the Premises and the terms on which Landlord will so furnish
electrical energy. In the event that Tenant disputes any of such terms, Tenant
shall so notify Landlord within 30 days after the giving of Landlord's notice
and in the event that such dispute is not resolved by Landlord and Tenant within
30 days after the giving of Tenant's notice, Tenant shall, within 30 days after
expiration of such 30-day period, submit such dispute to arbitration in
accordance with Article 28. Pending the determination of such dispute, Tenant
shall comply with all of the terms set forth in Landlord's notice without
prejudice to Tenant's position. If such dispute is ultimately determined in
Tenant's favor, Landlord shall
20
* See Section 46.11
** Tenant is
*** in the manner provided in Section 13.01,
promptly after such determination pay Tenant any amount overpaid by Tenant for
electrical energy furnished to the premises by Landlord during such period.
Landlord, at Tenant's expense, shall make all alterations and install all wiring
and equipment necessary to enable the Landlord to furnish electrical energy to
the Premises. Landlord, at its option, before commencing any such work to be
paid for by Tenant or at any time thereafter, may require Tenant to furnish to
Landlord such security, whether by surety bond in form and amount and issued by
a corporation licensed to do business in New York State satisfactory to Landlord
or otherwise, as Landlord shall deem necessary to assure the payment for such
work by Tenant.
ARTICLE 14
CLEANING AND OTHER SERVICES
SECTION 14.01 A. Provided Tenant shall keep the Premises in good order,
Landlord shall cause the Premises including the windows thereof (subject to
Tenant maintaining unrestricted access to such windows), but excluding any
portions of the Premises used for the storage, preparation, service or
consumption of food or beverages, to be cleaned, substantially in accordance
with the standards set forth in Exhibit D. Tenant shall pay to Landlord as
Additional Rent on demand Landlord's charges for (a) cleaning work in the
Premises or the Building required because of (i) misuse or neglect on the part
of Tenant or its agents, employees, contractors, licensees or invitees (ii) use
of portions of the Premises for the storage, preparation, service or consumption
of food or beverages reproduction, data processing or computer operations,
private lavatories or toilets or other special purposes requiring greater or
more difficult cleaning work than office areas, (iii) interior glass surfaces,
(iv) non-Building Standard materials or finishes installed by Tenant or at its
request, (v) increases in frequency or scope in any of the items set forth in
Exhibit D as shall have been requested by Tenant, and (b) removal from the
Premises and the Building of (i) so much refuse and rubbish of Tenant as shall
exceed that normally accumulated in the daily routine of ordinary business
office occupancy and (ii) all of the refuse and rubbish of Tenant's machines and
of any eating facilities requiring special handling and (c) additional cleaning
work in the Premises or the Building required because of the use of the Premises
by Tenant after hours. Landlord and its cleaning contractor and their employees
shall have access to the Premises at all times except between 8:00 A.M. and 5:30
P.M. on business days and, to the extent that it will not unreasonably interfere
with the operation of Tenant's business during business hours. Landlord and its
cleaning contractor and their employees shall have the use of Tenant's light
power and water in the Premises, without charge therefor, as may be reasonably
required for the purpose of cleaning the Premises. If Tenant is permitted
hereunder to and does have a separate area for the storage preparation, service
or consumption of food or beverages in the Premises, Tenant, at its sole cost
and expense shall cause all portions of the Premises so used to be cleaned daily
in a manner satisfactory to Landlord and to be exterminated regularly and, in
addition, whenever there shall be evidence of any infestation.
B. The cleaning services required to be furnished by Landlord pursuant to
this Section may be furnished by a contractor or contractors employed by
Landlord and Tenant agrees that Landlord shall not be deemed default of any of
its obligations under this Section unless such default shall continue for an
unreasonable period of time after notice from Tenant to Landlord setting forth
the specific nature of such default.
SECTION 14.02 Landlord, at Landlord's expense, shall furnish necessary
elevator service on business during business hours and shall have an elevator
subject to call at all other times. Landlord shall not be required to furnish
any operator service for automatic elevators. If Landlord shall, at any time,
elect to furnish operator service for any automatic elevators, Landlord shall
have the right to discontinue furnishing such service. In the event Tenant shall
require the use of the Building's elevators for purposes not otherwise supplied
by Landlord after hours. Landlord shall provide a service elevator or passenger
elevator, as the case may be, for the use of Tenant, provided Tenant gives
Landlord reasonable notice of the time and use of such elevators to be made
Tenant and Tenant pays Landlord's usual and reasonable charges for the use
thereof as Additional Rent demand, including, without limitation, any expense
for operator service for such elevator which Landlord may deem necessary in
connection with Tenant's use of such elevator. Landlord shall have the right to
change operation or manner of operating any of the elevators in the Building and
shall have the right to discontinue temporarily or permanently, the use of any
one or more cars in any of these banks of elevators provided reasonable elevator
service is provided to the Premises.
SECTION 14.03 Landlord shall supply reasonably adequate quantities of hot
and cold water to a point or points in the Premises for ordinary lavatory,
cleaning and drinking purposes. If Tenant requires, uses or consumes water for
any other purpose, Landlord may install a water meter and measure Tenant's
consumption of water for
21
purposes. Tenant shall pay Landlord the cost of any such meter and its
installation and the cost of keeping such meter and any such installation
equipment in good working order and repair as Additional Rent on demand. Tenant
agrees to pay for water consumed as shown on said meter and all sewer and any
other rent, tax, levy or charge based thereon which now or hereafter is
assessed, imposed or a lien upon the Premises or the Building, as and when bills
are rendered.
SECTION 14.04 Landlord reserves the right to stop, interrupt or reduce
service of the heating, ventilating or air conditioning systems, elevator,
electrical energy, or plumbing or any other service or systems, because of Force
Majeure, Legal Requirements or Insurance Requirements or for repairs or
improvements, which, in the judgment of Landlord, are desirable or necessary,
until the reason for such stoppage has been eliminated. Landlord shall have no
liability to Tenant for failure to supply any such service or system during
such period. Landlord agrees, however, that any such repairs, alterations and
improvements shall be made with a minimum amount of inconvenience to Tenant and
that Landlord will diligently proceed therewith to completion, subject to Force
Majeure.
SECTION 14.05 Only Landlord or one or more persons approved by Landlord
will be permitted to furnish laundry, linen, towels, drinking water, ice, food,
beverages, bootblacking, barbering and other similar supplies and services to
tenants. Landlord may fix the hours during which and the regulations under which
such supplies and services are to be furnished. Landlord expressly reserves the
right to act as or to designate, at any time and from time to time, an exclusive
supplier of all or any one or more of said supplies and services, provided that
the quality therof and the charges therefor are reasonably comparable to that of
other suppliers; and Landlord furthermore expressly reserves the right to
exclude from the Building any person attempting to furnish any of said supplies
or services but not so designated by Landlord. However, Tenant, its regular
office employees, or invitees may personally bring food or beverages into the
Building for consumption within the Premises solely by Tenant, its regular
office employees or invitees. In all events, all food and beverages shall be
carried in closed containers.
SECTION 14.06 Only Landlord or one or more persons approved by Landlord
shall be permitted to act as maintenance contractor for all waxing, polishing,
lamp replacement, cleaning and maintenance work in the Premises, provided that
the quality thereof and the charges therefor are reasonably comparable to that
of other contractors servicing a first class office building with retail
space. Nothing herein contained shall prohibit Tenant from performing such work
for itself by use of its own regular employees. Landlord may fix the hours
during which and regulations under which such services are to be furnished.
Landlord expressly reserves the right to act as or to designate, at any
time and from time to time, an exclusive contractor for all or any one or more
of said services, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors: and Landlord furthermore
expressly reserves the right to exclude from the Building any person
attempting to furnish any of said services but not so designated by Landlord.
SECTION 14.07 Landlord will not be required to furnish any services,
including window or other cleaning services, except as otherwise provided in
Articles 12 and 14 and Sections 13.04 and 13.05.
ARTICLE 15
DAMAGE TO OR DESTRUCTION OF THE PREMISES
SECTION 15.01 If the Premises or any part thereof shall be damaged or
rendered Untenantable by fire or extended coverage peril and Tenant gives prompt
notice thereof to Landlord and this Lease is not terminated pursuant to any
provision of this Article, Landlord shall proceed, with reasonable diligence
after the collection of the insurance proceeds attributable to such damage, to
repair or cause to be repaired such damage to the Basic Construction of the
Building and Landlord's Work. All other repairs required by reason of such
casualty shall be performed by Tenant, at its sole cost and expense, promptly
and with due diligence. Except as provided in Section 15.07, the rent shall be
equitably abated to the extent that the Premises shall have been rendered
Untenantable, such abatement to be from the date of such damage to the date the
Premises shall no longer be Untenantable; provided, however, should Tenant
reoccupy a portion of the Premises during the period the repair work is taking
place and prior to the date the Premises are no longer Untenantable, the rent
allocable to such reoccupied portion based upon the proportion which the
reoccupied portion of the Premises bears to the total area of the Premises,
shall be payable by Tenant from the date of such occupancy.
SECTION 15.02 If the Premises shall be totally damaged or rendered
wholly Untenantable by fire or other casualty, and Landlord has not terminated
this Lease pursuant to Section 15.03 and Landlord has not*/ completed
*See Section 46.12
22
the making of the required repairs to the Premises and access thereto within 6
months from the date of such damage or destruction and such additional time
after such date (but in no event to exceed 6 months), as shall equal the
aggregate period Landlord may have been delayed in doing so by Force Majeure or
adjustment of insurance, Tenant, within 30 days after the date on which Landlord
is required to complete the repairs pursuant to this Section, may serve notice
on Landlord of its intention to terminate this Lease, and if 30 days thereafter
Landlord shall not have completed the making of the required repairs, this Lease
shall terminate on the expiration of such 30 days period as if such termination
date were the Expiration Date without prejudice, however, to Landlord's rights
and remedies against Tenant under the terms of this Lease.
SECTION 15.03 If the Premises shall be totally damaged or rendered wholly
Untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other substantial alteration or reconstruction of the Building shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have
been damaged by such fire or other casualty), then in any such event Landlord
may, at its option, terminate this Lease, by giving Tenant 30 days' notice of
such termination, within 90 days after the date of such fire or other casualty.
In the event that such notice of termination shall be given, this Lease shall
terminate as of the date provided in such notice of termination (whether or not
the Term shall have commenced) with the same effect as if that date were the
Expiration Date without prejudice, however, to Landlord's rights and remedies
against Tenant under the terms of this Lease. If, at any time prior to Landlord
giving Tenant the aforesaid notice of termination or commencing the repair
pursuant to Section 15.01, there shall be a Successor Landlord, such Successor
Landlord shall have a further period of 60 days from the date of so taking
possession to terminate this Lease by 30 days' notice to Tenant and in the event
that such a notice of termination shall be given, this Lease shall termination
as of the date provided in such 30 day notice of termination (whether or not the
Term shall have commenced) with the same effect as if that date were the
Expiration Date without prejudice, however, to Landlord's (or Successor
Landlord's) rights against Tenant under the terms of this Lease.
SECTION 15.04 Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from any such damage by fire or other casualty or the repair thereof Landlord
will not carry insurance of any kind on Tenant's Property or any Improvements
made Tenant's sole cost and expense, and Landlord shall not be obligated to
repair any damage thereto or replace the same.
SECTION 15.05 Except as expressly provided in Section 8.06, nothing herein
contained shall relieve Tenant from any liability to Landlord or to its
insurers in connection with any damage to the Premises or the Building by fire
or other casualty if Tenant shall be legally liable in such respect.
SECTION 15.06 This Article shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227 of the Real Property Laws of
the Sate of New York providing for such a contingency in the absence of such
express agreement, and any other law of like import now or hereafter enacted,
shall have no application in such case.
SECTION 15.07 Notwithstanding any of the foregoing provisions of this
Article, if, by reason of some action or inaction on the part of Tenant or any
of its employees, agents, licensees or contractors, either (a) Landlord or the
Superior Lessor, the Superior Mortgagee or the Fee Mortgagee shall be unable to
collect all of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Premises or the Building by fire or
other casualty or (b) the Premises or the Building shall be damaged or destroyed
or rendered complete or partially Untenantable on account of fire or other
casualty then, without prejudice to any other remedy which may be available
against Tenant, the abatement of rent provided for in this Article shall not be
effective to the extent of the uncollected insurance proceeds.
ARTICLE 16
EMINENT DOMAIN
SECTION 16.01 A. If the whole of the Real Property or the Premises shall
be acquired or condemned eminent domain for any public or quasi-public use or
purpose, this Lease shall terminate as of the date of vesting or acquisition of
title in the condemning authority with the same effect as if said date were the
Expiration Date. If only a part of the Premises shall be so acquired or
condemned then, except as otherwise provided in this Article, this Lease shall
continue in force and effect but, from and after the date of the vesting of
title, the Fixed Rent shall be an amount which bears the same ratio to the
Fixed Rent payable immediately prior to such condemnation as the value of the
untaken portion of the Premises (appraised after the taking and repair of any
23
damage to the Building pursuant to this Section) bears to the value of the
entire Premises immediately before the taking and any Additional Rent payable
shall be adjusted to reflect the diminution of the Premises. The value of the
Premises before and after the taking shall be determined for the purposes of
this Section by an independent appraiser chosen jointly by Landlord and Tenant.
Pending such determination, Tenant shall pay to Landlord rent as fixed by
Landlord, subject to adjustment after such determination.
B. If only a part of the Real Property shall be so acquired or condemned,
then (i) whether or not the Premises shall be affected, Landlord, at Landlord's
sole option, may give to Tenant within 60 days following the date upon which
Landlord shall have received notice of vesting of title, 30 days' notice of
termination of this Lease, or (ii) if part of the Building is so acquired or
condemned and shall contain more than 25% of the total area of the Premises
immediately prior to such acquisition or condemnation and the balance of the
Premises is thereby rendered Untenantable, or if, by reason of such acquisition
or condemnation, Tenant no longer has reasonable means of access to the
Premises, Tenant, at Tenant's sole option, within 60 days following the date
upon which Tenant shall have received notice of vesting of title, may give to
Landlord 30 days' notice of termination of this Lease. In the event any such 30
day notice of termination if given by Landlord or Tenant, this Lease shall
terminate upon expiration of said 30 days with the same effect as if that date
were the Expiration Date without prejudice, however, to Landlord's rights
against Tenant under the terms of this Lease in effect prior to such
termination. If a part of the Premises shall be so acquired or condemned, and
this Lease shall not be terminated pursuant to the provisions of this Section,
Landlord, at Landlord's expense, shall proceed with reasonable diligence after
collection of the condemnation award, to restore that part of the Premises not
so acquired or condemned to a self-contained rental unit; provided, however,
that Landlord shall not be required to spend for such restoration any amount in
excess of the amount of such award or compensation actually received by Landlord
as damages for the acquisition or condemnation of such part of the Premises. In
the event of any termination of this Lease pursuant to the provisions of this
Section, the rent shall be apportioned as of the date of sooner termination and
any prepaid portion of rent for any rent for any period after such date shall be
refunded by Landlord to Tenant.
SECTION 16.02 In the event of any such acquisition or condemnation of all
or any part of the Real Property Landlord shall be entitled to receive the
entire compensation or award for any such acquisition or condemnation. Tenant
shall have no claim against Landlord or the condemning authority for the value
of any unexpired portion of the Term or for Tenant's leasehold interest and
Tenant hereby expressly assigns to Landlord all of its right, title and interest
in and to any such award, and also agrees to execute any and all further
documents that may be required in order to facilitate the collection thereof by
Landlord. Nothing contained in this Section shall be deemed to prevent Tenant
from making a separate claim in any condemnation proceeding for any moving
expenses or for the value of any Tenant's Property which would be removable at
the end of the Term pursuant to the provisions of Article 10, but only if such
award shall be made by the condemnation court in addition to, and shall not
result in a reduction of, the award made by it for the Real Property and the
Building Equipment so taken.
SECTION 16.03 If the temporary use or occupancy of all or any part of the
Premises shall be condemned or taken for any public or quasi-public use or
purpose during the Term, this Lease and the Term shall be and remain unaffected
by such condemnation or taking and Tenant shall continue responsible for all of
its obligation hereunder (except to the extent prevented from so doing by reason
of such condemnation or taking) and it shall continue to pay the rent in full.
In the event of any such condemnation or taking, Tenant shall be entitled to
appear, claim, prove and receive the entire award unless the period of temporary
use or occupancy extends beyond the Expiration Date, in which event Landlord
shall be entitled to appear, claim, prove and receive the entire award as
represents the cost of restoration of the Premises and the balance of any such
award shall be apportioned between Landlord and Tenant as of the Expiration
Date. At the termination of such occupancy prior to the Expiration Date, Tenant,
at its own expense, will restore the Premises as nearly as possible to their
condition prior to the condemnation or taking. Notwithstanding the foregoing,
any lump sum award received by Tenant as compensation for temporary use and
occupancy of the Premises shall be delivered to and held by Landlord in trust
for the making of rent payments. The rights and interests of Landlord and Tenant
to any award received or receivable with respect to a condemnation or taking for
temporary use or occupancy shall be in all other respects governed by the
applicable provisions of the Superior Lease and the Superior Mortgage and in
event of any conflict between the terms of this Section and of the Superior
Lease and the Superior Mortgage, those of the Superior Lease and the Superior
Mortgage shall govern.
24
SECTION 16.04 If the grade of any street upon which the Real Property is
situated or abuts shall be changed by any competent authority, this Lease and
the Term shall nevertheless continue in full force and effect, and Landlord
shall be entitled to collect from such authority the entire award or
compensation that may be made in such proceedings. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in and to every such
award or compensation and agrees to execute any and all further documents that
may be required in order to facilitate the collection thereof by Landlord.
SECTION 16.05 The terms "condemnation" and "acquisition" as used herein
shall include any agreement in lieu of or in anticipation of the exercise of the
power of eminent domain between the Superior Lessor or Landlord and any
governmental authority authorized to exercise the power of eminent domain. In
the event that there shall be any dispute between Landlord and Tenant arising
out of provisions of this Article, such dispute shall be settled by arbitration
pursuant to Article 28.
SECTION 16.06 Should any part of the Premises be taken to effect
compliance with any Legal Requirement other than in the manner hereinabove
provided in this Article, then if such compliance is the obligation of Tenant,
Tenant shall not be entitled to any diminution or abatement of rent or other
compensation from Landlord therefor, but if such compliance is the obligation of
Landlord, the rent shall be equitably adjusted in the manner provided in Section
16.01.
ARTICLE 17
CONDITIONS OF LIMITATION
SECTION 17.01 This Lease and the Term and estate hereby granted are
subject to the limitations that:
(a) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law (foreign
domestic), or shall make an assignment for the benefit of creditors or
shall seek or consent or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's
Property; or
(b) if, within 90 days after the commencement of any proceeding
against Tenant, whether by the filing a petition or otherwise, seeking
any reorganization, arrangement, composition, readjustment, liquidation
dissolution or similar relief under any present or future federal
bankruptcy act or any other present or future applicable federal, state or
other statute or law (foreign or domestic), such proceeding shall not have
been dismissed, or if, within 90 days after the appointment of any trustee,
receiver or liquidator of Tenant or of all or any part of Tenant's
Property, without the consent or acquiescence of Tenant, such appointment
shall not have been vacated or otherwise discharged, or if any execution or
attachment shall be issued against Tenant or any of Tenant's Property
pursuant to which the Premises shall be taken or occupied or attempted to
taken or occupied; or
(c) if Tenant shall default in the payment when due of any installment
of Fixed Rent or in the payment when due of any Additional Rent, and such
default shall continue for a period of 10 days after notice that such rent
is due
25
(d) if Tenant shall default in the performance of any term of this
Lease on Tenant's part to be performed (other than the payment of Fixed
Rent and Additional Rent) and Tenant shall fail to remedy such default
within 30 days after notice by Landlord to Tenant of such default, or if
such default is of such a nature that it cannot be completely remedied
within said period of 30 days if Tenant shall not (x) promptly upon the
giving by Landlord of such notice, advise Landlord of Tenant's intention to
institute all steps necessary to remedy such situation, (y) promptly
institute and thereafter diligently prosecute to completion all steps
necessary to remedy the same, and (z) complete such remedy within a
reasonable time after the date of the giving of said notice by Landlord and
in any event prior to such time as would either (i) subject Landlord,
Landlord's agents, the Superior Lessor, the Superior Mortgagee or the Fee
Mortgagee to prosecution for a crime or (ii) cause a default under the
Superior lease or the Superior Mortgage; or
(e) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the
Term would, by operation of law or otherwise, devolve upon or pass to any
person other than Tenant except as is expressly permitted under Article 22;
or
(f) if the Premises shall become abandoned for a period of 10
consecutive days or if Tenant shall fail to take occupancy of the Premises
within 30 days after the Commencement Date; or
(g) if Tenant shall default in the performance of any term, covenant,
agreement or condition on Tenant's part to be observed or performed under
any other lease with Landlord of space in the Building and such default
shall continue beyond the grace period, if any, set forth in such other
lease for the remedying of such default,
then in any of said events Landlord may give to Tenant notice of intention to
terminate this Lease and to end the term and the estate hereby granted at the
expiration of 5 days from the date of the giving of such notice, and in the
event such notice is given, this Lease and the Term and estate hereby granted
(whether or not the Term shall have commenced) shall terminate upon the
expiration of said 5 days with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 18.
However, if Tenant shall default (i) in the timely payment of Fixed Rent or
Additional Rent, and any such default shall continue or be repeated for 2
consecutive months or for a total of 4 months in any period of 12 months or
(ii) more than 3 times in any period of 6 months, in the performance of any
other term of this Lease to be performed by Tenant, then, notwithstanding that
such defaults shall have each been cured within the applicable period, if any,
as above provided, any further similar default shall be deemed to be deliberate
and Landlord thereafter may serve the said 3 days' notice of termination upon
Tenant without affording to Tenant an opportunity to cure such further default.
SECTION 17.02 Nothing in Section 17.01 shall be deemed to require Landlord
to give the notices therein provided for prior to the commencement of a summary
proceeding for nonpayment of rent or a plenary action for the recovery of rent
on account of any default in the payment of the same, it being intended that
such notices are for the sole purpose of creating a conditional limitation
hereunder pursuant to which this Lease shall terminate and if Tenant thereafter
remains in possession or occupancy, it shall become a holdover tenant.
SECTION 17.03 If, at any time, (a) Tenant shall be comprised of two or more
persons, or (b) there is a Guarantor of any Tenant's obligations under this
Lease, or (c) Tenant's interest in this Lease shall have been assigned, the word
"Tenant", as used in Subsections (a) and (b) of Section 17.01 and this Section
17.03, shall mean any one or more of the persons primarily or secondarily liable
for Tenant's obligations under this Lease.
SECTION 17.04 If the notice provided for in Section 17.01 shall have been
given and this Lease shall be terminated or if the Premises shall be or become
vacant, deserted or abandoned; then, in any such event Landlord may without
notice terminate all services.
ARTICLE 18
RE-ENTRY BY LANDLORD; REMEDIES
SECTION 18.01 A. If Tenant shall default in the payment when due of any
installment of Fixed Rent or in payment when due of any Additional Rent and such
default shall continue for a period of 5 days after notice from Landlord to
Tenant of such default or if this Lease and the Term shall terminate as provided
in Article 17:
26
(a) Landlord and Landlord's agents may immediately, or at any time
after such default or after the date upon which this Lease and the Term
shall terminate, re-enter the Premises or any part thereof, without notice,
either by summary proceedings or by any other applicable action or
proceeding, or by force or otherwise (without being liable to indictment,
prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other persons from the Premises and remove any
and all of its or their property and effects from the Premises, without
liability for damage thereto, to the end that Landlord may have, hold and
enjoy the Premises and in no event shall re-entry be deemed an acceptance
of surrender of this Lease; and
(b) Landlord, at its option, may relet the whole or any part or parts
of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before,
on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord in its sole discretion may determine. Landlord shall have no
obligation to relet the Premises or any part thereof and shall in no event
be liable for refusal or failure to relet the Premises or any part thereof,
or, in the event of any such reletting, for refusal or failure to collect
any rent upon any such reletting, and no such refusal or failure shall
operate to relieve Tenant of any liability under this Lease of otherwise to
affect any such liability. Landlord, at Landlord's option, may make such
repairs, improvements, alterations, additions, decorations and other
physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability
under this Lease or otherwise affecting any such liability.
B. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election by Landlord to terminate this Lease, unless
Landlord gives written notice to Tenant of such election. In the event Landlord
relets the whole or any part or parts of the Premises pursuant to this Article
18 without terminating this Lease, Landlord may at any time thereafter elect to
terminate this Lease for such previous default.
SECTION 18.02 Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby expressly
waive any and all rights, so far as is permitted by law, which Tenant and all
such persons might otherwise have to (a) the service of any notice of intention
to re-enter or to institute legal proceedings to that end, (b) redeem the
Premises or any interest therein, (c) re-enter or repossess the Premises, or (d)
restore the operation of this Lease, after Tenant shall have been dispossessed
by a judgement or by a warrant of any court or judge, or after any re-entry by
Landlord, or after any termination of this Lease, whether such dispossess, re-
entry by Landlord or termination shall be by operation of law or pursuant to the
provisions of this Lease. The word "re-enter", "re-entry" and "re-entered" as
used in this Lease shall not be deemed to be restricted in their technical legal
meanings.
SECTION 18.03 In the event of any breach or threatened breach by Tenant or
any person claiming through or under Tenant of any of the terms of this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right allowed at law or in equity, by statute or
otherwise, as if re-entry, summary proceedings or other specific remedies were
not provided for in this Lease.
SECTION 18.04 If this Lease shall terminate as provided in Article 17, or
by or under any summary proceeding or any other action or proceeding, or if
Landlord shall re-enter the Premises as provided in this Article, or by or under
any summary proceeding or any other action or proceeding, then, in any of said
events:
(a) Tenant shall pay to Landlord all rent to the date upon which this
Lease shall have been terminated or to the date of re-entry upon the
Premises by Landlord, as the case may be;
(b) Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise, but
such monies shall be credited by Landlord against any rent due at the time
of such termination or re-entry or, at Landlord's option, against any
damages payable by Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency between the rent payable hereunder for the period which
otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the Additional Rent to be the same as was payable
for the year immediately preceding such termination or re-entry) and the
net amount, if any, of rents ("Net Rent") collected under any reletting
effected pursuant to the provisions of Section 18.01 for any part of such
period (first deducting from the rents collected under any such reletting
all of Landlord's expenses in connection with the termination of this Lease
or Landlord's re-entry upon the Premises and in connection with such
reletting including all
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repossession costs, brokerage commissions, legal expenses, alteration costs
and other expenses of preparing the Premises for such reletting);
(d) Any deficiency in accordance with subdivision (c) above shall be
paid in monthly installments by Tenant on the days specified in this Lease
for the payment of installments of Fixed Rent. Landlord shall be entitled
to recover from Tenant each monthly deficiency as the same shall arise and
no suit to collect the amount of the deficiency for any month shall
prejudice Landlord's right to collect the deficiency for any prior or
subsequent month by a similar proceeding. Alternatively, suit or suits for
the recovery of such deficiencies may be brought by Landlord from time to
time at its election;
(e) Whether or not Landlord shall have collected any monthly
deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay Landlord, on demand, as and for liquidated and
agreed final damages and not as a penalty, a sum equal to the amount by
which the Fixed Rent and Additional Rent payable hereunder for the period
to the Expiration Date from the latest of the date of termination of this
Lease, the date of re-entry or the date through which monthly deficiencies
shall have been paid in full (conclusively presuming the Additional Rent to
be the same as payable for the year immediately preceding such termination
or re-entry) exceeds the then fair and reasonable rental value of the
Premises for the same period, both discounted at the rate of 4% per annum
to present worth. If, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the Premises, or any part
thereof, shall have been relet by Landlord for the period which otherwise
would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent upon such reletting shall be deemed, prima
facie, to be the fair and reasonable rental value for the part or the whole
of the Premises (as the case may be) so relet during the term of the
reletting; and
(f) In no event shall Tenant be entitled (i) to receive any excess of
any Net Rent under subdivision (c) over the sums payable by Tenant to
Landlord hereunder or (ii) in any suit for the collection of damages
pursuant to this Section, to a credit in respect of any Net Rent from a
reletting except to the extent that such Net Rent is actually received by
Landlord prior to the commencement of such suit. If the Premises or any
part thereof should be relet in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent
received from such reletting and the expenses of reletting.
SECTION 18.05 A. If this Lease be terminated as provided in Article 17 or
by or under any summary proceeding or any other action or proceeding, or if
Landlord shall re-enter the Premises, Tenant covenants and agrees,
notwithstanding anything to the contrary contained in this Lease:
(a) That the Premises shall be, upon such earlier termination or re-
entry, in the same condition as that iXX which Tenant has agreed to
surrender them to Landlord on the Expiration Date;
(b) That Tenant, on or before the occurrence of any event of default
hereunder, shall have performed every covenant contained in this Lease for
the making of any Improvement to the Premises or for repairing any part
thereof; and
(c) That, for the breach of either Subdivision (a) or (b) of this
Subsection, or both, Landlord shall be entitled immediately, without notice
or other action by Landlord, to recover, and Tenant shall pay, as and for
agreed damages therefor, the then cost of performing such covenants, plus
interest thereon at the Interest Rate for the period between the date of
the occurrence of any event of default and the date when any such work or
act, the cost of which is computed, should have been performed under the
other terms of this Lease had such event of default not occurred.
B. Each and every covenant contained in this Section shall be deemed
separate and independent, and not dependent on any other term of this Lease for
the use and occupation of the Premises by Tenant, and the performance of any
such term shall not be considered to be rent or other payment for the use of
said Premises. It is understood that the consideration for the covenants in this
Section is the making of this Lease, and the damages for failure to perform the
same shall be in addition to and separate and independent of the damages
accruing by reason of default in observing any other term of this Lease.
SECTION 18.06 Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages to
which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
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SECTION 18.07 Each right of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right provided for in this
Lease or now or hereafter existing at law or in equity, by statute or otherwise,
and the exercise or beginning of the exercise by Landlord of any one or more of
such rights shall not preclude the simultaneous or later exercise by Landlord
of any or all other rights provided for in this Lease or now or hereafter
existing at law or in equity, by statute or otherwise.
ARTICLE 19
CURING TENANT'S DEFAULTS; FEES AND EXPENSES
SECTION 19.01 If Tenant shall default in the performance of any term of
this Lease on Tenant's part to be performed, landlord, without thereby waiving
such default and without liability to Tenant in connection therewith, may, but
shall not be obligated to, perform the same for the account and at the expense
of Tenant, without notice in case of emergency and upon 5 days' prior notice in
all other cases. Landlord may enter the Premises at any time to cure any default
without any liability to Tenant. Bills for any expenses incurred by Landlord in
connection with any such performance or involved in collecting or endeavoring to
collect rent or enforcing or endeavoring to enforce any rights against Tenant
under or in connection with this Lease or pursuant to law, including any cost,
expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, including reasonable attorney's fees and
disbursements, shall be paid by Tenant as Additional Rent on demand. In the
event that Tenant is in arrears in payment of rent, Tenant waives Tenant's
right, if any, to designate the items against which any payments made by Tenant
are to be credited and Landlord may apply any payments made by Tenant to any
items Landlord sees fit, irrespective of and notwithstanding any designation or
requests by Tenant as to the items against which any such payments shall be
credited. Landlord reserves the right, without liability to Tenant to suspend
furnishing to Tenant any services to be provided by Landlord pursuant to this
Lease,(including heat, ventilating and air conditioning), whenever Landlord is
obligated to furnish the same after hours or otherwise at Tenant's expense the
event that (but only for so long as) Tenant is in arrears in paying Landlord
therefor.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
SECTION 20.01 Neither Landlord nor Landlord's agents, officers, directors,
shareholders, partners or principals(disclosed or undisclosed) shall be liable
to Tenant or Tenant's agents, employees, contractors, invitees or licensees or
any other occupant of the Premises, and Tenant hereby indemnifies Landlord
against any loss, cost, liability, claim, damage, expense (including reasonable
attorney's fees and disbursement), penalty or fine incurred in connection with
or arising from any injury to Tenant or to any other person or for any damage
to, or loss, (by theft or otherwise) of, any of Tenant's Property or of the
property of any other person, irrespective of the cause of such injury, damage
or loss (including the acts or negligence of any tenant or of any owners or
occupants of adjacent or neighboring property or caused by operations in
construction of any private, public or quasi-public work) unless due to the sole
negligence of Landlord or Landlord's agents, it being understood that no
property other than such as might normally be brought upon or kept in the
Premises as incidental to the reasonable use of the Premises for the purposes
herein permitted will be brought upon or be kept in the Premises; provided,
however, that even if due to any such negligence of Landlord or Landlord's
agents, Tenant waives, to the full extent permitted by law, any claim for
consequential damages in connection therewith. Landlord and Landlord's agents
shall not be liable, to the extent of Tenant's insurance coverage, for any loss
or damage to any person or property even if due to the negligence of Landlord or
Landlord's agents. Any Building employee to whom any property shall be entrusted
by or on behalf of Tenant shall be deemed to be acting as Tenant's agent with
respect to such property and neither Landlord nor landlord's agents shall be
liable for any loss of or damage to any such property by theft or otherwise.
SECTION 20.02 Neither any (a) performance by landlord, Tenant or others of
any repairs, improvements, alterations, additions, installations, substitutions,
betterments or decorations in or to the Real property. Building Equipment or
Premises, (b) failure of Landlord or others to make any repairs or improvements,
(c) damage to the Building Equipment, Premises or Tenant's Property, (d) injury
to any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other
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cause, (e) latent defect in the Building, Building Equipment or Premises, (f)
temporary covering or bricking up of any windows of the Premises for any reason
whatsoever including Landlord's own acts, nor any permanent covering or bricking
up of any such windows if required by any Legal Requirement or Insurance
Requirement or the Declaration, nor (g) inconvenience or annoyance to Tenant or
injury to or interruption of Tenant's business by reason of any of the events or
occurrences referred to in the foregoing subdivisions (a) through (f) shall
impose any liability on Landlord to Tenant (other than such liability as may be
imposed upon Landlord by law for Landlord's negligence or the negligence of
Landlord's agents in the operation or maintenance of the Building or the
Building Equipment or for the breach by Landlord of any express covenant of this
Lease on Landlord's part to be performed) nor shall Tenant be entitled to any
compensation therefor or abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder or constitute an eviction. No
representation, guaranty or warranty is made or assurance given that the
communications or security systems, devices or procedures of the Building will
be effective to prevent injury to Tenant or any other person or damage to, or
loss (by theft or otherwise) of, any of Tenant's Property or of the property of
any other person, and Landlord reserves the right to discontinue or modify at
any time such communications or security systems or procedures without liability
to Tenant.
SECTION 20.03 Tenant hereby indemnifies Landlord against liability in
connection with or arising from (a) any default by Tenant in the performance of
any of the terms of this Lease on Tenant's part to be performed, or (b) the use
or occupancy or manner of use or occupancy of the Premises by Tenant or any
person claiming under Tenant in violation of the provisions of this Lease, or
(c) any acts, omissions or negligence of Tenant (or of Tenant and Landlord) or
any such person, or the contractors, agents, employees, invitees or licensees of
Tenant or any such person, in or about the Premises or the Real Property either
prior to, during or after the expiration of, the Term. If any action or
proceeding shall be brought against Landlord or Landlord's agents, or the
Superior Lessor, the Superior Mortgagee or the Fee Mortgagee, based upon any
such claim and if Tenant, upon notice from Landlord, shall cause such action or
proceeding to be defended at Tenant's expense by counsel reasonably satisfactory
to Landlord, without any disclaimer of liability by Tenant in connection with
such claim, Tenant shall not be required to indemnify Landlord, Landlord's
agents, or the Superior Lessor, the Superior Mortgagee or the Fee Mortgagee for
attorneys' fees and disbursements in connection with such action or proceeding.
SECTION 20.04 Tenant shall pay to Landlord as Additional Rent, within 5
days following rendition by Landlord to Tenant of bills of statements therefor,
sums equal to all losses, costs, liabilities, claims, damages, fines, penalties
and expenses referred to in Section 20.03.
SECTION 20.05 The provisions of Sections 20.01 and 20.03 are subject to
the provisions of Sections 8.06 and 8.07 and in the event of any inconsistency
the provisions of 8.06 and 8.07 shall control.
ARTICLE 21
SURRENDER
SECTION 21.01 On the Expiration Date or upon the sooner termination of
this Lease or upon any re-entry by Landlord upon the Premises, Tenant shall, at
its sole cost and expense, quit, surrender, vacate and deliver the Premises to
Landlord "broom clean" and in good order, condition and repair except for
ordinary wear, tear and damage by fire or other insured casualty, together with
all Improvements and Fixtures (except as otherwise provided for in this Lease).
Tenant shall remove from the Real Property all of Tenant's Property and all
personal property and personal effects of all persons claiming through or under
Tenant, and shall pay the cost of repairing all damage to the Premises and the
Real Property occasioned by such removal. Any Tenant's Property or other
personal property which shall remain in the Premises after the termination of
this Lease shall be deemed to have been abandoned and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit. If such Tenant's Property or other personal property or any part
thereof shall be sold, Landlord may receive and retain the proceeds of such sale
as the property of Landlord. Any expense incurred by Landlord in removing or
disposing of such Tenant's Property or other personal property shall be
reimbursed to Landlord by Tenant as Additional Rent on demand.
SECTION 21.02 If the Expiration Date or the date of sooner termination of
this Lease shall fall on a day which is not a business day, then Tenant's
obligations under Section 21.01 shall be performed on or prior to the
immediately preceding business day.
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SECTION 21.03 Tenant expressly waives, for itself and for any person
claiming through or under Tenant, any rights which Tenant or any such person may
have under the provisions of Section 22.01 of the New York Civil Practice Law
and Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the provisions of this Article.
SECTION 21.04 If the Premises are not surrendered upon the termination of
this Lease, Tenant hereby indemnifies Landlord against liability resulting from
delay by Tenant in so surrendering the Premises, including any claims made by
any succeeding tenant or prospective tenant founded upon such delay.
SECTION 21.05 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 three times the
Fixed Rent and Additional Rent payable during the last month of the Term,
subject to all of the other terms of this Lease insofar as the same are
applicable to a month-to-month tenancy.
SECTION 21.06 Tenant's obligations under this Article shall survive the
termination of this Lease.
ARTICLE 22
ASSIGNMENT, MORTGAGING AND SUBLETTING
SECTION 22.01 Neither this Lease nor any part hereof nor the interest of
Tenant in any sublease or the rentals thereunder, shall by operation of law or
otherwise be assigned, mortgaged, pledged, encumbered or otherwise transferred
by Tenant, Tenant's legal representatives or successors in interest and neither
the Premises, nor any part thereof, nor any Tenant's Property shall be
encumbered in any manner by reason of any act or omission on the part of Tenant
or anyone claiming under or through Tenant, or shall be sublet or be used,
occupied or utilized for desk space or for mailing privileges by anyone other
than Tenant, without the prior consent of Landlord, except as expressly
otherwise provided in this Article. For purposes of this Article 22, (i) the
issuance of interests in Tenant, Guarantor or any subtenant (whether stock,
partnership interest or otherwise) to any person or group of related persons,
whether in a single transaction or a series of related or unrelated
transactions, in such quantities that after such instance such person or group
shall have control of Tenant, Guarantor or such subtenant, shall be deemed an
assignment of this Lease or such sublease, as the case may be, (ii) a transfer
of more than 50% in interest of Tenant, Guarantor or any subtenant (whether
stock, partnership interest or otherwise) by any party or parties in interest
whether in a single transaction or a series of related or unrelated transactions
shall be deemed an assignment of this Lease, or such sublease, as the case may
be, except that the transfer of the outstanding capital stock of any corporate
Tenant, Guarantor or subtenant, by persons or parties (other than persons or
parties owning 5% or more of the voting stock of such corporation) through the
"over-the-counter" market or any recognized national securities exchange, shall
not be included in the calculation of such 50%, (iii) a take-over agreement
shall be deemed an assignment of this Lease, (iv) any person or legal
representative or Tenant, to whom Tenant's interest under this Lease passes by
operation of law, or otherwise, shall be bound by the provisions of this Article
22, and (v) a modification, amendment or extension of a sublease shall be deemed
a sublease.*/ Any assignment, sublease, mortgage, pledge, encumbrance or
transfer by Tenant in contravention of this Article 22 shall be void. For the
purposes of clause (ii) of the preceding sentence, stock ownership shall be
determined in accordance with the principles set in Section 544 of the Internal
Revenue Code of 1954, as the same existed on August 16, 1954. If Tenant shall
assign this Lease or sublet the Premises or a portion thereof in accordance with
this Article 22, any such assignee or subtenant may use the Premises for
executive and administrative offices in connection with such assignee's or
sublessee's business, provided such use does not conflict with any Legal
Requirement, Insurance Requirement or any of the other terms of this Lease.
SECTION 22.02 If this Lease be assigned, whether or not in violation of
the terms to this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof be sublet or be used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant and expiration of Tenant's time to cure such default, if any,
collect rent from the subtenant or occupant. In either event, Landlord may apply
the net amount collected to the rent herein reserved. The consent by Landlord to
an assignment, transfer, encumbering or subletting pursuant to any provision of
this Lease shall not in any way be considered to relieve Tenant from obtaining
the express prior consent of Landlord to any other or further assignment,
transfer, encumbering or subletting. References in this Lease to use or
occupancy by anyone other than Tenant shall not be construed as limited to
subtenants and those claiming under or through subtenants but
*Notwithstanding the fact that a modification or amendment of a sublease is
deemed to be a sublease, the provisions of Sections 22.06A(c) and 22.06B shall
------------------ ------
not be applicable to any minor modification or amendment, and Landlord shall
not unreasonably withhold or delay its consent to any such minor modification
or amendment.
31
as including also licensees and others claiming under Tenant, immediately or
remotely. The listing of any name other than that of Tenant on any door of the
Premises or on any directory or in any elevator in the Building, or otherwise,
shall not operate to vest in the person so named any right or interest in this
Lease or the Premises, or be deemed to constitute, or serve as a substitute for,
any consent of Landlord required under this Article, and it is understood that
any such listing shall constitute a privilege extended by Landlord, revocable at
Landlord's will by notice to Tenant. Tenant agrees to pay to Landlord reasonable
attorneys' fees and disbursements incurred by Landlord in connection with any
proposed assignment of this Lease or any proposed subletting of the Premises or
any part thereof. Neither any assignment of this Lease nor any subletting,
occupancy or use of the Premises or any part thereof by any person other than
Tenant, nor any collection of rent by Landlord from any person other than
Tenant, nor any application of any such rent as provided in this Article shall,
under any circumstances be deemed a waiver of any of the provisions of Section
22.01 or, except as set forth in Section 22.04, relieve, impair, release or
discharge Tenant of its obligations fully to perform the terms of this Lease on
Tenant's part to be performed and Tenant shall remain fully and primarily liable
therefor; provided, however, that in the event that any amendment or
modification of this Lease is entered into without the consent of the Tenant
named herein subsequent to an assignment of this Lease by the Tenant named
herein (other than to a "related corporation" or "successor corporation", as
such terms are defined in Sections 22.03 and 22.04, respectively), which
amendment or modification increases the obligations of Tenant under this Lease,
the liability hereunder of the Tenant shall continue but only to the same extent
as if such amendment or modification had not been made.
SECTION 22.03 Tenant may permit any corporations or other business
entities which control, are controlled by, or are under common control with
Tenant (herein referred to as "related corporation") to sublet all or part of
the Premises for any of the purposes permitted to Tenant (subject however to
compliance with Tenant's obligations under this Lease), provided that (a) Tenant
shall not be in default in the performance of any of its obligations under this
Lease, (b) prior to such subletting Tenant furnishes Landlord with the name of
any such related corporation, together with a certification of Tenant, and such
other proof as Landlord may reasonably request, that such sublessee is a related
corporation of Tenant, (c) in the reasonable judgment of Landlord the proposed
subtenant is of a character such as is in keeping with the standards of Landlord
for the Building and (d) there shall be no rent payable to Tenant by any such
related corporation and Tenant shall certify to this effect prior to such
subletting. In connection with the information to be provided to Landlord
pursuant to this Section, Landlord shall have the right, at any reasonable time
and from time to time, to examine such books and records of Tenant as may be
necessary to establish that such subtenant remains a related corporation of
Tenant and that no rent is being paid to Tenant by such related corporation.
Such subletting shall not be deemed to vest in any such related corporation any
right or interest in this Lease or the Premises nor shall it relieve, release,
impair or discharge any of Tenant's obligations hereunder. For the purposes
hereof, "control" shall be deemed to mean ownership of not less than 50% of all
of the voting stock of such corporation or not less than 30% of all of the legal
and equitable interest in any other business entities.
SECTION 22.04 Tenant may assign or transfer its entire interest in this
Lease and the leasehold estate hereby created to a successor corporation of
Tenant (as hereinafter defined), provided that Tenant shall not be in default in
the performance of any of its obligations under this Lease. A "successor
corporation", as used in this Section, shall mean (a) a corporation into which
or with which Tenant, its corporate successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions for the merger
or consolidation of corporations, provided that by operation of law or by
effective provisions contained in the instruments of merger or consolidation
the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or
consolidation, or (b) a corporation acquiring this Lease and the Term and the
estate hereby granted, the goodwill and all or substantially all of the other
property and assets (other than capital stock of such acquiring corporation) of
Tenant, its corporate successors or assigns, and assuming all or substantially
all of the liabilities of Tenant, its corporate successors and assigns, or
(c) any corporate successor to a successor corporation becoming such by either
of the methods described in subdivisions (a) and (b) above; provided that, (i)
such merger or consolidation, or such acquisition and assumption, as the case
may be, is for a good business purpose and not principally for the purpose of
transferring the leasehold estate created hereby, (ii) the guaranty of this
Lease by each Guarantor is in full force and effect, (iii) immediately after
giving effect to any such merger or consolidation or such acquisition and
assumption, as the case may be, the corporation surviving such merger or created
by such consolidation or acquiring such assets and assuming such liabilities, as
the case may be, shall have assets, capitalization and a net worth, as
determined in accordance with generally accepted accounting principles,
32
certified to Landlord by an independent certified public accountant, at least
equal to the assets, capitalization and net worth, similarly determined, of
Tenant at the beginning of the Term or of Tenant, its corporate successors or
assigns, immediately prior to such merger or consolidation or such acquisition
and assumption, as the case may be, whichever is the greater and (iv)
immediately after giving effect to any such merger or consolidation, or such
acquisition and assumption, as the case may be, each Guarantor shall have
assets, capitalization and a net worth, as determined in accordance with
generally accepted accounting principles and certified to Landlord by an
independent certified public accountant, as least equal to the assets,
capitalization and net worth, similarly determined, of such Guarantor at the
beginning of the Term or of such Guarantor immediately prior to such merger or
consolidation or such acquisition and assumption, as the case may be, whichever
is greater. The acquisition by Tenant, its corporate successors or assigns, of
all or substantially all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities of any corporation, shall
be deemed to be a merger for the purposes of this Article. Upon the delivery to
Landlord by any successor corporation to whom this Lease may be and is assigned
or transferred with the consent of Landlord pursuant to the provisions of this
Section, of the current balance sheet of such successor corporation, certified
by its chief financial officer or a certified public accountant, together with
the agreement of such corporation to assume all the terms of this Lease to be
performed by Tenant, and to be bound thereby, the corporation so assigning or
transferring this Lease shall thereafter be released and discharged from any
obligations thereafter arising under this Lease.
SECTION 22.05 No assignment made pursuant to Section 22.04 and no
assignment otherwise consented to by Landlord shall be valid unless, within 10
days after the execution thereof, Tenant shall deliver to Landlord a duplicate
original instrument of assignment and assumption in form and substance
reasonably satisfactory to Landlord, duly executed by Tenant and by the
assignee, in which such assignee shall assume performance of all terms of this
Lease on Tenant's part to be performed.
SECTION 22.06 A. Notwithstanding anything contained in Sections 22.01 and
22.02 to the contrary, but subject to the rights of Tenant under Sections 22.03
and 22.04, in the event that at any time Tenant desires to sublet all or any
part of the Premises or to assign its interest in this Lease, Tenant:
(a) shall submit to Landlord the name and address of the proposed
subtenant or assignee, a reasonably detailed description of such person's
business, reasonably detailed character and financial references for such
person (including its most recent balance sheet and income statements
certified by its chief financial officer or a certified public
accountant), a certification by Tenant that this Lease and Tenant's
Property are free of all liens and encumbrances and any other information
reasonably requested by Landlord;
(b) shall submit to Landlord (i) a conformed or photostatic copy of
the proposed assignment or sublease, the effective date of which shall be
at least 30 days after the date of the giving of such notice and which
shall be conditioned on Landlord's consent thereto and (ii) an agreement by
Tenant to indemnify Landlord against liability resulting from any claims
that may be made against Landlord by the proposed assignee or sublessee or
by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease;
(c) in the case of a proposed sublease, shall be deemed to have
granted Landlord the option, to be exercised within 30 days after receipt
of all items to be submitted by Tenant pursuant to this Section 22.06A, to
sublet (or designate another party to sublet) from Tenant such space so
proposed to be sublet upon the terms and conditions hereinafter set forth;
See Section 46.13.
(d) in the case of a proposed assignment of this Lease, shall be
deemed to have granted Landlord the option, to be exercised within 30 days
after receipt of all items to be submitted by Tenant pursuant to this
Section 22.06A, to terminate this lease upon the terms and conditions
hereinafter set forth in Section 22.06B; and
(e) shall not offer such space for assignment or subletting to anyone
other than the proposed assignee or subtenant until 31 days have elapsed
after receipt by Landlord of all items to be submitted by Tenant pursuant
to this Section 22.06A.
B. If Tenant's request is for an assignment of this Lease or for a
subletting of the Premises as a whole or for a subletting in part for a term
which expires less than 1 year prior to the Expiration Date and which will leave
Tenant or its "successor corporation" and "related corporations" in possession
of less than 50% of the original Premises, Landlord may then, in addition to
Landlord's options contained in Subdivisions (c) and (d) or Subsection A, by
notice to such effect given to Tenant within 30 days after receipt of all items
to be submitted by
33
Tenant pursuant to Section 22.06A, terminate this Lease in whole or as to the
part proposed to be sublet (as Landlord may elect) on a date to be specified in
said notice ("termination date") which shall be not earlier than 1 day before
the effective date of the proposed assignment or subletting nor later than 10
days after said effective date. Tenant shall then vacate and surrender the
Premises, or the part thereof proposed to be sublet (as Landlord may have
elected), on or before the termination date and the Term of this Lease as to the
entire Premises or the part thereof proposed to be sublet shall end on the
termination date as if that were the Expiration Date. Landlord shall be free to
and shall have no liability to Tenant if Landlord should lease the Premises (or
such part thereof) to Tenant's prospective assignee or subtenant. If a part of
the Premises is surrendered to Landlord pursuant hereto, Landlord, at Landlord's
sole cost and expense, shall make such alterations as may be required physically
to separate such surrendered space from the remainder of the Premises and to
comply with all Legal Requirements and Insurance Requirements and, shall repair
or restore to tenantable condition any part of the remainder of the Premises
which is physically affected by such separation; if necessary, Tenant shall
afford Landlord and its agents, tenants, undertenants or licensees reasonably
appropriate means of ingress and egress to and from such surrendered space; and
Landlord and Tenant shall execute and deliver a supplementary agreement
modifying this Lease, as of the day following such surrender, by eliminating
such surrendered space from the Premises, equitably reducing the rent allocable
to the remaining Premises and appropriately modifying the other terms of this
Lease to reflect the elimination of such surrendered space from the Premises.
C. In the event Landlord exercises Landlord's option to sublet such space
pursuant to Section 22.06A(c), such sublease by Tenant to Landlord (or its
designee) shall be at a rent equal to the lesser of (i) the rentals set forth in
the proposed sublease or (ii) the rents for the entire Premises, or equal to an
equitable apportionment of such rents if such sublease shall be in respect of
less than the whole of the Premises, and shall be for the same term as that of
the proposed subletting (but in no event for a term ending later than one day
prior to the Expiration Date). With respect to each sublease by Tenant to
Landlord pursuant to Section 22.06A(c) it is expressly agreed that:
(a) The sublease shall be expressly subject to all of the terms of
this Lease except such as are not relevant or applicable, and except as is
otherwise expressly set forth to the contrary in this Section;
(b) The sublease shall give Landlord (or, if Landlord requests, its
designee) the absolute right, without Tenant's permission, to assign such
sublease or any interest therein and/or to sublet the space covered by such
sublease or any part of such space. Tenant agrees that (i) any such
assignment or subletting by Landlord (or its designee) may be for any
purpose or purposes that Landlord (or its designee), in its absolute
discretion, shall deem appropriate, (ii) if the sublease is of less than
the entire Premises, Tenant, at Tenant's expense, shall at all times
provide and permit reasonably appropriate means of ingress to and egress
from such space so sublet by Tenant to Landlord (or its designee), and
(iii) at the expiration of the term of such sublease, Tenant will accept
the space covered by such sublease in its then existing condition, subject
to the obligation of Landlord (or its designee) to make such repairs
thereto as may be necessary to preserve such space in good order and
condition:
(c) The sublease shall provide that Landlord (or its designee) and any
assignee or subtenant of Landlord (or its designee) may, at Landlord's (or
such designee's) election, be permitted to make any and all improvements,
in such space or any part thereof and shall also provide in substance that
the same may be removed, in whole or in part, by Landlord (or its designee)
or such assignee or subtenant prior to or upon the expiration or other
termination of such sublease provided that Landlord (or its designee) or
such assignee or subtenant, at its expense, shall repair any damage and
injury to such space caused by such removal;
(d) The sublease shall also provide that the parties to such sublease
expressly negate any intention that any estate created under such sublease
be merged with any other estate held by either of said parties;
(e) If the sublease is for less than an entire floor it shall provide
that Landlord (or its designee), at Landlord's sole cost and expense, will
erect the partitions required to separate the portion of the Premises to be
sublet from the remainder of the Premises and will provide any doors
required to provide an independent means of access from the elevators
and/or staircase on the floor to the portion of the Premises to be sublet,
and shall install all other equipment or facilities which may be required
in order to use such sublet portion of the Premises as a unit separate from
the remainder of the floor;
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(f) Any consent required of Tenant, as the Landlord under the
sublease, shall be deemed granted if consent with respect thereto is
granted by Landlord under this Lease; and
(g) Any failure of Landlord (or its designee) to comply with the
provisions of the sublease, other than with respect to the payment of rent
to Tenant, shall not constitute a default thereunder or hereunder if
Landlord shall have consented to such non-compliance.
D. In the event that within 30 days after Tenant shall have requested
Landlord's consent to any such subletting or assignment and shall have submitted
to Landlord all items required by Section 22.06A, Landlord does not exercise its
option to so sublet such space, as referred to in Subsection A or to terminate
this Lease, in whole or in part, as referred to in Subsection B, Landlord's
consent to such subletting or assignment, as the case may be, shall not be
unreasonably withheld, provided that all of the following conditions have been
satisfied:
(a) In the reasonable judgment of Landlord the proposed subtenant or
assignee, as the case may be, is of a character and financial worth such as
is in keeping with the standards of Landlord in those respects for the
Building, and the nature of the proposed subtenant's or assignee's business
and its reputation is in keeping with the character of the Building and its
tenancies;
(b) The purposes for which the proposed subtenant or assignee intends
to use the Premises or the applicable portion thereof are uses expressly
permitted by and not prohibited by this Lease or by any other lease in the
Building;
(c) Tenant shall not have (i) advertised or publicized in any way the
availability of all or part of the Premises without Landlord's consent,
which shall not be unreasonably withheld, and no advertisement shall state
the name or the address of the Building or the proposed rental or (ii)
listed or publicly advertised the Premises for subletting or assignment,
whether through a broker, agent, representative or otherwise, at a rental
rate less than the greater of (y) the rent then payable hereunder for such
space or (z) the rent at which Landlord is then offering to lease
comparable space in the Building; however, Tenant may negotiate and
consummate a sublease or assignment at a lesser rate of rent insofar as
permitted under the provisions of this Article;
(d) The proposed occupancy shall not materially increase the office
cleaning requirements or impose a material extra burden upon the
Building Equipment or Building services;
(e) Any such subletting will result in there being no more than 2
tenants in addition to Tenant on the floor on which the premises to be
sublet are situated;
(f) The proposed sublease or assignment may permit assignment or
subletting;***
(g) The proposed sublease shall be expressly subject and subordinate
to all of the provisions of this Lease;
(h) (i) In the case of a subletting the fixed rent and additional rent
for any such subletting shall not be less than the then going market rental
rate for comparable space and for a comparable term in the Building (or if
none is or has been currently leased or subleased, then comparable space
and term in a comparable building in The City of New York, as reasonably
determined by Landlord);
(i) Tenant shall not be in default* in the performance of any of its
obligations under this Lease either the time Landlord's consent to such
subletting or assignment is requested or at the commencement of the term of
any proposed sublease or upon the effective date of any such assignment;
(j) Tenant shall reimburse Landlord for any reasonable costs that may
be incurred by Landlord** in connection with said sublease or assignment,
including the costs of making investigations as to the acceptability of a
proposed subtenant or assignee;
(k) The proposed subtenant or assignee shall not then be a tenant of
any space in the Building or a related corporation of any other tenant or a
party who dealt with Landlord or Landlord's agent (either
*beyond any applicable grace period
**(other than as expressly assumed by Landlord hereunder)
***but any such further assignment or subletting shall be subject to
Landlord's consent.
directly or through a broker) for the rental of any space in the Building
within the 6 months immediately preceding Tenant's request for Landlord's
consent;
(l) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts
of, New York State;
(m) The proposed subtenant or assignee shall not be a person then
negotiating with Landlord or Landlord's agent (either directly or through a
broker) for the rental of any space in the Building; and
(n) In the case of a subletting of a portion of the Premises the space
proposed to be sublet shall be regular in shape and suitable for normal
renting purposes.
E. With respect to each and every sublease or subletting or assignment
authorized by the provisions of this Section, it is further agreed and
understood between Landlord and Tenant as follows:
(a) No subletting shall be for a term ending later than one day prior
to the Expiration Date and that part, if any, of the proposed term of any
sublease or any renewal or extension thereof which shall extend beyond a
date one day prior to the Expiration Date or the sooner termination of the
Term, is hereby deemed to be a nullity; and
(b) There shall be delivered to Landlord, within 10 days after the
commencement of the term of the proposed sublease, notice of such
commencement, or in the case of an assignment, notice of the effectiveness
of such assignment.
F. In the event that (a) Landlord fails to exercise any of its opinions
under Subsections A and B of this Section 22.06 and consents to the proposed
sublease or assignment and (b) the assignment or sublease to which Landlord
shall have consented does not become effective on or before the date set forth
in the conformed or photostatic copy thereof furnished to Landlord pursuant to
subdivision (b) of Section 22.06A, then, Tenants shall again comply with all of
the provisions and conditions of this Article before assigning this Lease or
subletting all or any part of the Premises.
SECTION 22.07 Notwithstanding anything to the contrary contained herein,
if Landlord shall consent to any assignment or subletting and Tenant shall
either (a) receive any consideration from its assignee (other than a successor
corporation) in connection with the assignment of this Lease, Tenant shall pay
over to Landlord so much, if any, of such consideration (including, without
limitation, sums designated by the assignee as paid for the purchase of Tenant's
Property in the Premises, less the then net unamortized or underpreciated cost
thereof determined on the basis of Tenant's federal income tax returns, or, if
Tenant does not file such returns, on the same basis as carried on Tenant's
books) as shall exceed the brokerage commissions and attorneys' fees and
disbursements reasonably incurred by Tenant for such assignment or (b) sublet
the Premises or any portion thereof to anyone for rents, additional charges or
other consideration (including, without limitation, sums designated by the
subtenant as paid for the purchase of Tenant's Property in the Premises, less
the then net unamortizied or underpreciated cost thereof determined on the basis
of Tenant's federal income tax returns or, if Tenant does not file such returns,
on the same basis as carried on Tenant's books) which for any period shall
exceed the rents payable for the subleased space under this Lease for the same
period, Tenant shall pay Landlord, as Additional Rent, such excess less
brokerage commissions and attorneys' fees and disbursements reasonably incurred
by Tenant for such subletting. All sums payable to Landlord pursuant to Section
22.07(a) shall be paid on the effective date of such assignment and all sums
payable to Landlord pursuant to Section 22.07(b) shall be paid on the date or
dates such sums are payable to Tenant by the subtenant.
SECTION 22.08 If Landlord shall recover or come into possession of the
Premises before the date herein fixed for the termination of this Lease,
Landlord shall have the right, at its option, to take over any and all subleases
or sublettings of the Premises or any part thereof made by Tenant and to
succeed to all the rights of said subleases and sublettings or such of them as
it may elect to take over. Tenant hereby expressly assigns and transfers to
Landlord such of the subleases and sublettings as Landlord may elect to take
over at the time of such recovery of possession, such assignment and transfer
not to be effective until the termination of this Lease or re-entry by Landlord
hereunder or if Landlord shall otherwise succeed to Tenant's estate in the
Premises, at which time Tenant shall upon request of Landlord, execute,
acknowledge and deliver to Landlord such further assignments and transfers as
may be necessary to vest in Landlord the then existing subleases and
sublettings. Every subletting hereunder is subject to the condition and by its
acceptance of and entry into a sublease, such subtenant thereunder
36
shall be deemed conclusively to have thereby agreed from and after the
termination of this Lease or re-entry by Landlord hereunder or if Landlord shall
otherwise succeed to Tenant's estate in the Premises, that such subtenant shall
waive any right to surrender possession or to terminate the sublease and, at
Landlord's election, such subtenant shall be bound to Landlord for the balance
of the term of such sublease and shall attorn to and recognize Landlord, as its
landlord, under all of the then executory terms of such sublease, except that
Landlord shall not (i) be liable for any previous act, omission or negligence of
Tenant under such sublease, (ii) be subject to any counterclaim, defense or
offset not expressly provided for in such sublease, which theretofore accrued to
such subtenant against Tenant, (iii) be bound by any previous modification or
amendment of such sublease or by any previous prepayment of more than one
month's rent and additional rent which shall be payable as provided in the
sublease, unless such modification or prepayment shall have been approved in
writing by Landlord, (iv) be obligated to repair the subleased space or the
Building or any part thereof, in the event of total or substantial total damage
beyond such repair as can reasonably be accomplished from the net proceeds of
insurance actually made available to Landlord, (v) be obligated to repair the
subleased space or the Building or any part thereof, in the event of partial
condemnation beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Landlord as consequential
damages allocable to the part of the subleased space or the Building not taken
or (vi) be obligated to perform any work in the subleased space or the Building
or to prepare them for occupancy beyond Landlord's obligations under this Lease,
and the subtenant shall execute and deliver to Landlord any instruments Landlord
may reasonably request to evidence and confirm such attornment. Each subtenant
or licensee of Tenant shall be deemed automatically upon and as a condition of
occupying or using the Premises or any part thereof, to have given a waiver of
the type described in and to the extent and upon the conditions set forth in
Section 8.07.
SECTION 22.09 In the event that, at any time after Tenant named herein may
have assigned its interest in this Lease, this Lease shall be disaffirmed or
rejected in any proceeding of the types described in subdivisions (a) or (b) of
Section 17.01 or in any similar proceeding, or in the event of termination of
this Lease by reason of any such proceeding or by reason of lapse of time
following notice of termination given pursuant to Article 17 based upon any of
the conditions of limitation set forth in said subdivisions, Tenant named
herein, upon request of Landlord given within 30 days after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (a) pay to Landlord all Fixed Rent, Additional Rent and other
charges due and owing by the assignee to Landlord under this Lease to and
including the date of such disaffirmance, rejection or termination, and (b) as
"tenant", enter into a new lease with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, unless sooner terminated as in such lease
provided, at the same Fixed Rent and upon the then executory terms, covenants
and conditions as are contained in this Lease, except that (i) the rights of
Tenant named herein under the new lease shall be subject to the possessory
rights of the assignee under this Lease and the possessory rights of any persons
claiming through or under such assignee or by virtue of any statute or of any
order of any court, (ii) such new lease shall require all defaults existing
under this Lease to be cured by Tenant named herein with due diligence, and
(iii) such new lease shall require Tenant named herein to pay all Additional
Rent which, had this Lease not been so disaffirmed, rejected or terminated,
would have become due under the provisions of Article 7 after the date of such
disaffirmance, rejection or termination with respect to any period prior
thereto. In the event Tenant named herein shall default for a period of 10 days
after Landlord's request in its obligations to enter into said new lease then,
in addition to all other rights and remedies by reason of such default, either
at law or in equity, Landlord shall have the same rights and remedies against
Tenant named herein as if it had entered into such new lease and such new lease
had thereafter been terminated as at the commencement date thereof by reason of
the default thereunder of Tenant named herein.
ARTICLE 23
SUBORDINATION AND ATTORNMENT
SECTION 23.01 A. This Lease and all rights of Tenant hereunder are and
shall be subject and subordinate in all respects to (a) all present and future
ground leases, operating leases, superior leases, overriding leases and
underlying leases and grants of term of the Land and the Building or any portion
thereof (collectively, including the applicable items set forth in Subdivision
(d) of this Section 23.01, the "Superior Lease"), (b) all mortgages and building
loan agreements, including leasehold mortgages and spreader and consolidation
agreements, which may now or hereafter affect the Land, the Building or the
Superior Lease (collectively, including the applicable item
37
set forth in Subdivisions (c) and (d) of this Section 23.01, the "Superior
Mortgage") whether or not the Superior Mortgage shall also cover other lands or
buildings or leases except that a mortgage on the Land only shall not be a
Superior Mortgage so long as there is in effect a Superior Lease which is not
subordinate to such mortgage, (c) each advance made or to be made under the
Superior Mortgage, (d) all renewals, modifications, replacements, supplements,
substitutions and extensions of the Superior Lease and the Superior Mortgage and
all spreaders and consolidations of the Superior Mortgage and (e) the
Declaration. The provisions of this Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver, at its own cost and
expense, any instrument, in recordable form if requested, that Landlord, the
Superior Lessor or the Superior Mortgagee may reasonably request to evidence
such subordination; and if Tenant fails to execute, acknowledge or deliver any
such instrument within 10 days after request therefor, Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute, acknowledge and deliver any such instruments for and on
behalf of Tenant. The Superior Mortgagee may elect that this Lease shall have
priority over its Superior Mortgage and, upon notification by the Superior
Mortgagee to Tenant, this Lease shall be deemed to have priority over such
Superior Mortgage, whether this Lease is dated prior to or subsequent to the
date of such Superior Mortgage. If, in connection with the obtaining, continuing
or renewing of financing for which the Building, Land or the interest of the
lessee under the Superior Lease represents collateral, in whole or in part, a
savings or commercial bank or trust company, insurance company, savings and loan
association, a welfare, pension or retirement fund or system or any other lender
shall be or be willing to become the Superior Mortgagee and shall request
reasonable modifications of this Lease as a condition of such financing, Tenant
will not unreasonably withhold its consent thereto, provided that such
modifications do not materially and adversely either increase the obligations of
Tenant hereunder or affect the rights of Tenant under this Lease.
See Section 46.14
SECTION 23.02 Tenant shall not do or suffer or permit anything to be done
which would constitute a default under the Superior Mortgage, the Superior Lease
or the Declaration or cause the Superior Lease to be terminated or forfeited by
virtue of any rights of termination or forfeiture reserved or vested in the
Superior Lessor.
See Section 46.15
SECTION 23.03 Landlord hereby notifies Tenant that this Lease may not be
cancelled or surrendered, or modified or amended so as to reduce the rent,
shorten the Term or adversely affect in any other respect to any material extent
the rights of Landlord hereunder and that Landlord may not accept prepayments of
any installments of rent except for prepayments in the nature of security for
the performance of Tenant's obligations hereunder without the consent of the
Superior Lessor and the Superior Mortgagee in each instance, except that said
consent shall not be required to the institution or prosecution of any action or
proceedings against Tenant by reason of a default on the part of Tenant under
the terms of this Lease.
SECTION 23.04 If, at any time prior to the termination of this Lease, the
Superior Lessor or the Superior Mortgagee or any person, or the Superior
Lessor's or Superior Mortgagee's or such person's successors or assigns (the
Superior Lessor, Superior Mortgagee and any such person or successor or assign
being herein collectively referred to as "Successor Landlord") shall succeed to
the rights of Landlord under this Lease through possession or foreclosure or
delivery of a new lease or deed or otherwise. Tenant agrees, at the election and
upon request of any such Successor Landlord, to fully and completely attorn,
from time to time, to and recognize any such Successor Landlord, as Tenant's
landlord under this Lease upon the then executory terms of this Lease; provided
such Successor Landlord shall agree in writing to accept Tenant's attornment.
The foregoing provisions of this Section shall inure to the benefit of any such
Successor Landlord, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of the Superior Lease, shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to said provisions. Tenant, however, upon demand of any such
Successor Landlord agrees to execute, from time to time, instruments to evidence
and confirm the foregoing provisions of this Section, satisfactory to any such
Successor Landlord, acknowledging such attornment and setting forth the terms
and conditions of its tenancy and Tenant hereby constitutes and appoints
Landlord attorney-in-fact for Tenant to execute any such instrument for and on
behalf of Tenant, such appointment being coupled with an interest. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between such Successor Landlord and Tenant upon all of the then executory terms
of this Lease except that such Successor Landlord shall not be (a) liable for
any previous act or omission of negligence of Landlord under this Lease; (b)
subject to any counterclaim, defense or offset, not expressly provided for in
this Lease and asserted with reasonable promptness, which theretofore shall have
accrued to Tenant against Landlord; (c) obligated to perform any Work; (d) bound
by any previous modification or amendment of this Lease or by any previous
prepayment of more than one month's rent, unless such modification or prepayment
shall have been
38
approved in writing by the Superior Lessor or the Superior Mortgagee through or
by reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease; (e) obligated to repair the Premises or the Building
or any part thereof, in the event of total or substantial total damage beyond
such repair as can reasonably be accomplished from the net proceeds of insurance
actually made available to Successor Landlord; or (f) obligated to repair the
Premises or the Building or any part thereof, in the event of partial
condemnation beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Successor Landlord, as
consequential damages allocable to the part of the Premises or the Building not
taken. Nothing contained in this Section shall be construed to impair any right
otherwise exercisable by any such owner, holder or lessee.
SECTION 23.05 If any act or omission by Landlord would give Tenant the
right, immediately or after the lapse of time, to cancel or terminate this Lease
or to claim a partial or total eviction, Tenant will not exercise any such right
until (a) it has given written notice of such act or omission to each Superior
Mortgagee and each Superior Lessor, whose name and address shall have previously
been furnished to Tenant, by delivering notice of such act or omission addressed
to such party at its last address so furnished and (b) a reasonable period for
remedying such act or omission shall have elapsed following such giving of
notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which shall in no event be less than the
period to which Landlord would be entitled under this Lease to effect such
remedy) provided such Superior Mortgagee or Superior Lessor shall, with
reasonable diligence, give Tenant notice of intention to, and commence and
continue to, remedy such act or omission or to cause the same to be remedied.
See Section 46.16
ARTICLE 24
ACCESS; CHANGE IN FACILITIES
SECTION 24.01 Nothing herein contained shall be construed as a letting by
Landlord to Tenant of (a) the faces of exterior walls, (b) the space above the
hung ceiling of the Premises and below the underside of the floor slab of any
higher floor, (c) the space below the underside of the Premises, (d) the land
below the sub-base of or air rights above, the Premises or the Building, (e) the
roof, or (f) the common areas and facilities of the Building. All parts (except
surfaces facing the interior of the Premises) of all walls, windows and doors
bounding the Premises, all balconies, terraces, stairs, landings, and roofs
adjacent to the Premises, all space in or adjacent to the Premises used for
shafts, stacks, stairways, conduits, pipes, ductwork, air conditioning rooms,
telephone rooms, fan rooms, heating, ventilating, air conditioning, plumbing,
electrical and other mechanical facilities, service closets and other Building
Equipment, and the use thereof, as well as access thereto through the Premises
for the purposes of operation, decoration, cleaning, maintenance, safety,
security, alteration and repair, are hereby reserved to Landlord. Landlord
reserves the right, at any time, without incurring any liability to Tenant
therefor, to make such changes in or to the Building and the Building Equipment,
as well as in the entrances, doors, corridors, elevators, stairs, landings,
toilets and other public parts of the Building, as it may deem necessary or
desirable, provided any such change (a) does not unreasonably deprive Tenant of
access to the Premises, (b) does not interfere with the use of the Premises or
the services furnished to the Premises for an unreasonable length of time, and
(c) does not reduce the area of the Premises in excess of 1% (without an
appropriate adjustment in rent).
SECTION 24.02 Tenant shall permit Landlord to install, use and maintain
pipes, ducts, wires and conduits within or through the Premises, or through the
walls, columns and ceilings therein, provided that the installation work is
performed at such times and by such methods as will not unreasonably interfere
with Tenant's use and occupancy of the Premises, or damage the appearance
thereof, reduce the floor area thereof by more than 1% (without an appropriate
adjustment in rent) or materially affect the layout of the Premises. Landlord
shall endeavor to install any such pipes, ducts, wires and conduits in the
walls, columns or ceilings of the Building, provided installation in the walls,
columns and ceilings is structually possible and Landlord shall not incur any
additional costs in making such installations which are not reimbursed by Tenant
on demand. Landlord, at its expense, shall promptly repair any damage caused by
any such installations, use or maintenance. Where access doors are required in
or adjacent to the Premises for mechanical trades, Landlord shall furnish and
install such access doors and confine their location wherever practical to
closets, coat rooms, toilet rooms, corridors and kitchen or party rooms.
Landlord and Tenant shall cooperate with each other in the location of
Landlord's and Tenant's facilities requiring such access doors.
39
SECTION 24.03 Landlord or Landlord's agents or designees shall have the
right to enter the Premises at all reasonable times, whether or not during
normal business hours but upon reasonable advance notice to Tenant, except in an
emergency in which case no notice shall be required for any of the purposes
specified in this Article and (a) to examine the Premises or for the purpose of
performing any obligation of Landlord or exercising any right reserved to
Landlord in this Lease; (b) to exhibit the Premises to others; (c) to make or
cause to be made such repairs or improvements, or to perform such maintenance,
including the maintenance of Building Equipment, (i) as Landlord may deem
necessary or desirable or (ii) as may be required pursuant to any Legal
Requirements; (d) to take into and store upon the Premises all materials that
may be required in connection with any such repairs, improvements or
maintenance; and (e) to alter, renovate and decorate the Premises at any time
during the Term if Tenant shall have removed all or substantially all of
Tenant's Property from the Premises. Landlord agrees, however, that all such
repairs, improvements and maintenance shall be made with a minimum of
inconvenience to Tenant and that Landlord will diligently proceed therewith to
completion but without obligation to employ overtime labor and subject to Force
Majeure. If Tenant, its agents or employees shall not be present or shall not
permit an entry into the Premises at any time when such entry shall be
permissible, Landlord may use a master key or forcibly enter the Premises. The
Superior Lessor, the Superior Mortgagee and the Fee Mortgagee shall have the
right to enter the Premises at all times to examine the Premises or for the
purpose of exercising any right reserved to Landlord under this Section. During
the period commencing twelve (12) months prior to the expiration of the term (or
any renewal thereof), Landlord may place upon the exterior of the Premises "For
Lease", "To Let" or "For Rent" signs of reasonable size which signs shall not be
removed, obliterated or hidden by Tenant.
SECTION 24.04 Landlord or Landlord's agents shall have the right to permit
access to the Premises at any time, whether or not Tenant shall be present, to
any receiver, trustee, marshal or other person entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, any Tenant's Property or property of any other occupant of the
Premises, or for any other lawful purpose, or by any representative of the fire,
police, building, sanitation or other department or instrumentality of the
borough, city, state or federal governments. Nothing contained in, nor any
action taken by Landlord under, this Section shall be deemed to constitute
recognition by Landlord that any person other than Tenant has any right or
interest in this Lease or the Premises.
SECTION 24.05 Landlord reserves the right to light, from time to time, all
or any portion of the Premises at night for display purposes but shall reimburse
or credit Tenant for any expenses for electricity incurred by Tenant for such
display lighting after 9:00 P.M.
SECTION 24.06 The exercise of any right reserved to Landlord in this
Article shall be without liability of Landlord to Tenant.
ARTICLE 25
INABILITY TO PERFORM
SECTION 25.01 This Lease and the obligations of Tenant to pay rent and
perform all of the terms of this Lease on the part of Tenant to be performed
shall in no way be affected because Landlord is unable or delayed in fulfilling
any of its obligations under this Lease by reason of Force Majeure. Landlord
shall in each instance exercise reasonable diligence to effect performance when
and as soon as possible. However, Landlord shall be under no obligation to
employ overtime labor.
ARTICLE 26
LEGAL PROCEEDINGS; WAIVER OF COUNTERCLAIMS AND JURY TRIAL
SECTION 26.01 In the event Landlord commences any summary proceeding or
action for non-payment of rent, Tenant covenants and agrees that it will not
interpose, by consolidation of actions or otherwise, any counterclaim or other
claim seeking affirmative relief of whatsoever nature or description in any such
proceeding. To the extent permitted by applicable law, Landlord and Tenant
hereby waive trial by jury in any action or proceeding, and with respect to any
claim asserted in any such action or proceeding, brought by either of the
parties against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, any claim of injury or damage,
40
or any emergency or other statutory remedy with respect thereto. Tenant hereby
represents to Landlord that it is not entitled, directly or indirectly, to
diplomatic or sovereign immunity and Tenant agrees that in all disputes arising,
directly or indirectly out of this Lease, Tenant shall be subject to service of
process in, and the jurisdiction of the courts of the State of New York. The
provisions of this shall Article survive the termination of this Lease.
ARTICLE 27
NO OTHER WAIVER
SECTION 27.01 The failure of Landlord to insist in any instance upon the
strict performance of any term of this Lease, or to exercise any right herein
contained, shall not be construed as a waiver or relinquishment for the future
of the performance of such obligation of this Lease or of the right to exercise
any such right, but the same shall continue and remain in full force and effect
with respect to any subsequent breach, act or omission.
SECTION 27.02 The following specific provisions of this Section shall not
limit the generality of the provisions of this Article.
(a) No agreement to accept a surrender of all or any part of the
Premises or this Lease shall be valid unless in writing and signed by
Landlord. No delivery of keys shall operate as a termination of this Lease
or a surrender of the Premises or this Lease. Without limiting the
generality of the preceding sentence, if, subject to the provisions of
Article 22, Tenant shall at any time request Landlord to sublet the
Premises for Tenant's account, Landlord or Landlord's agent is authorized
to receive said keys for such purpose without releasing Tenant from any of
its obligations under this Lease, and Tenant hereby releases Landlord from
any liability for loss or damage to any of Tenant's Property in connection
with such subletting.
(b) The receipt or acceptance by Landlord of rent with knowledge of
breach by Tenant of any term of this Lease shall not be deemed a waiver of
such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any
accompanying letter be deemed to effect or evidence an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other
right of Landlord.
(d) Neither any option granted to Tenant in this Lease or in any
collateral instrument to renew or extend the Term, nor the exercise of any
such option by Tenant, shall prevent Landlord from exercising any option or
right granted or reserved to Landlord in this Lease or in any collateral
instrument or that Landlord may otherwise have to terminate this Lease or
any renewal or extension of the Term either during the original Term or
during the renewed or extended term. Any termination of this Lease shall
serve to terminate any such renewal or extension of the Term and any right
of Tenant to any such renewal or extension, whether or not Tenant shall
have exercised any option to renew or extend the Term. Any such option or
right on the part of Landlord to terminate this Lease shall continue during
any extension or renewal of the Term. No option granted to Tenant to renew
or extend the Term shall be deemed to give Tenant any further option to
renew or extend the Term.
(e) No waiver by Landlord in favor of any other tenant or occupant of
the Building shall constitute a waiver in favor of the Tenant named herein.
ARTICLE 28
ARBITRATION
SECTION 28.01 The parties hereto shall not be deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically provided for in this
Lease.
SECTION 28.02 The party desiring arbitration shall give notice to that
effect to the other party and shall in such notice appoint a person as
arbitrator on its behalf. Within 10 days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such three
arbitrators shall as promptly as possible determine such matter, provided,
however, that
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(a) if the second arbitrator shall not have been appointed as aforesaid,
the first arbitrator shall proceed to determine such matter; and
(b) if the two arbitrators appointed by the parties shall be unable to
agree, within 10 days after the appointment of the second arbitrator, upon the
appointment of a third arbitrator, they shall give written notice to the parties
of such failure to agree, and, if the parties fail to agree upon the selection
of such third arbitrator within 10 days after the arbitrators appointed by the
parties give notice as aforesaid, then within 5 days thereafter either of the
parties upon notice to the other party may request such appointment by the
American Arbitrator Association (or any organization successor thereto), or in
its absence, refusal, failure or inability to act, may apply for a court
appointment of such arbitrator.
SECTION 28.03 Each arbitrator shall be a fit and impartial person who
shall have had at least 10 years' experience in the County of New York in
calling connected with the matter of the dispute.
SECTION 28.04 The arbitration shall be conducted, to the extent consistent
with this Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto). The decision
and award shall be rendered by the arbitrators, upon the concurrence of at
least two of their number, within 30 days after the appointment of the third
arbitrator, or, in the case of a determination by a single arbitrator pursuant
to subdivision (a) of Section 28.02, within 30 days after the expiration of the
period during which a second arbitrator may be appointed. Such decision and
award shall be in writing and shall be final and conclusive on the parties, and
counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and award, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrator(s) so rendered in any court of
competent jurisdiction.
SECTION 28.05 Each party shall pay the fees and expenses of the one of the
two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursements of attorneys or witnesses for each party)
shall be borne by the parties equally.
SECTION 28.06 Notwithstanding the provisions of this Article, if any delay
in complying with any requirement of this Lease by Tenant might subject Landlord
to any fine or penalty, or to prosecution for a crime, or if it would constitute
a default by Landlord under the Superior Mortgage or the Superior Lease,
Landlord may exercise its right under Article 19 to remedy such default and in
such event the sole question to be determined by the arbitrators under this
Article shall be whether Tenant is liable under Article 19 for Landlord's costs
and expenses of curing such default.
SECTION 28.07 Notwithstanding anything to the contrary elsewhere provided
in this Lease, if the subject matter of a dispute which is provided in this
Lease to be determined by arbitration is (a) one which would directly affect the
liability of an insurer under any of the policies of insurance referred to
in Sections 8.04, 8.06 and 10.02, and the party which is the insured under such
policy so notifies the other party, or (b) one which cannot be the subject of
arbitration under the Superior Lease or the Superior Mortgage, then unless such
insurer or the Superior Lessor or the Superior Mortgagee gives its written
consent to the determination of such matter by arbitration, the dispute shall
not be determined by arbitration and the parties shall be left to such other
remedies as they may have.
ARTICLE 29
QUIET ENJOYMENT
SECTION 29.01 If, and so long as, Tenant pays the rent and keeps, observes
and performs each and every term of this Lease on the part of Tenant to be kept,
observed and performed, Tenant shall peaceably and quietly enjoy the Premises
throughout the Term subject to the terms of this Lease and of the Superior Lease
and the Superior Mortgage. This covenant shall be construed as a covenant
running with the Land and shall not be construed as a personal covenant or
obligation of Landlord, except to the extent of Landlord's interest in this
Lease and then subject to the terms of Section 43.02.
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ARTICLE 30
RULES AND REGULATIONS
SECTION 30.01 Tenant and its employees, agents, invitees and licensees
shall faithfully observe and strictly comply with, and shall not permit
violation of, the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein and additions thereto as Landlord hereafter may make
and communicate to Tenant ("Rules and Regulations"). Tenant's right to dispute
the reasonableness of any changes in the Rules and Regulations and additional
Rules and Regulations shall be deemed waived unless asserted to Landlord within
10 days after Landlord shall have given Tenant notice of the adoption of any
such additional Rules and Regulations. In case of any conflict or inconsistency
between the provisions of this Lease and any Rules and Regulations, the
provisions of this Lease shall control. Landlord shall have no duty or
obligation to enforce any Rule or Regulation, or any term, covenant or condition
of any other lease, against any other tenant, and Landlord's failure or refusal
to enforce any Rule or Regulation or any term, covenant or condition of any
other lease against any other tenant shall be without liability of Landlord to
Tenant. Landlord shall not discriminate against Tenant in the enforcement of the
Rules and Regulations.
SECTION 30.02 Notwithstanding anything to the contrary in any of the Rules
and Regulations, whenever Landlord shall claim by notice to Tenant that Tenant
is violating any of the provisions of the Rules and Regulations and Tenant shall
in good faith dispute such claim to Landlord within 10 days after service of
Landlord's notice of the violation, the dispute shall be determined by
arbitration pursuant to Article 28.
ARTICLE 31
BUILDING NAME
SECTION 31.01 The Building may be designated and known by any name or
address Landlord may choose and such designated name or address may be changed
from time to time in Landlord's sole discretion. Tenant agrees not to refer to
the Building by any name or address other than as designated by Landlord. The
Building may be named after any person, firm, or otherwise, whether or not such
name is, or resembles, the name of a tenant of the Building. In no event shall
Tenant use, in connection with its business or otherwise, any photographic or
other type of representation of the Building. In the event the Building is named
after any person, firm or otherwise, Tenant, in connection with its business or
otherwise, shall not refer to the Building by such name but shall only use the
street address of the Building.
ARTICLE 32
SHORING; NO DEDICATION; HOISTS
SECTION 32.01 If an excavation or other substructure work shall be
undertaken or authorized upon land adjacent to the Building or in the vaults
beneath the Building or in subsurface space adjacent to said vaults, Tenant,
without liability on the part of Landlord therefor, shall afford Landlord or the
person causing such excavation or other substructure work, license to enter upon
the Premises for the purpose of doing such work as Landlord or such person shall
deem necessary to protect any of the walls or structures of the Building or
surrounding land from injury or damage and to support the same by proper
foundations, pinning and/or underpinning, and, except in case of emergency,
Landlord shall endeavor to have such entry accomplished during reasonable hours
in the presence of a representative of Tenant, who shall be designated by Tenant
promptly upon Landlord's request. Such license to enter shall be without
liability of Landlord to Tenant.
SECTION 32.02 Landlord shall have the right to erect any gate, chain or
other obstruction or to close off any portion of the Real Property to the public
at any time to the extent necessary to prevent a dedication thereof for public
use.
SECTION 32.03 Tenant has been advised that Landlord may leave functioning
a construction hoist or hoists on the outside of the Building. The hoist(s) will
remain for an indefinite period of time which may continue beyond the
Commencement Date. The parties agree that the existence of such hoist(s) shall
not affect the Commencement Date. Tenant consents to such operation and
recognizes certain windows on floors adjacent to the hoist tower(s) may be
temporarily closed off. When such hoist tower(s) are finally removed, Landlord
shall install the permanent glass subject to the provisions of the Declaration.
Landlord shall have no liability to Tenant because of
43
the continued presence of the hoist(s) and hoist tower(s) herein referred to. No
deliveries shall be made from the hoist tower(s) through the premises after the
Commencement Date.
ARTICLE 33
NOTICE OF ACCIDENTS
SECTION 33.01 Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of any accident, emergency, occurrence for which Landlord might
be liable, fire or other casualty and all damages to or defects in the Premises,
the Building or the Building Equipment for the repair of which Landlord might be
responsible or which constitutes Landlord's property. Such notice shall be given
by telegram or personal delivery to the address of Landlord then in effect for
notices.
ARTICLE 34
VAULTS
SECTION 34.01 No vaults, vault space or other space not within the property
line of the Building is leased hereunder notwithstanding anything contained in
or indicated on any sketch, blueprint or plan, or elsewhere in this Lease to the
contrary. Landlord makes no representation as to the location of the property
line of the Building. All vaults and vault space and all other space not
within the property line of the Building, which Tenant may be permitted to use
and/or occupy, are to be used and/or occupied under a license revocable by
Landlord on 10 day's notice to Tenant and if any such license be revoked by
Landlord, or if the amount of any such vaults, vault space or other space be
diminished or required by any federal, state or municipal authority or public
utility, Landlord shall be without liability to Tenant. Any fee, tax or charge
imposed by any governmental authority for any such vault, vault space or other
space shall be paid by Tenant. Landlord shall have the right from time to time,
to substitute for the basement space, if any, then occupied by Tenant,
comparable space in the basement, provided Landlord shall give Tenant at least
30 days' notice of Landlord's intention so to do.
ARTICLE 35
BROKERAGE
SECTION 35.01 Tenant represents that in the negotiation of this Lease it
dealt with no brokers other than Xxxxxxx & Xxxxxxxxx and Xxxxxx-Xxxxxxxx, Inc.
and that so far as Tenant is aware said broker(s) (are) the sole broker(s) who
negotiated this Lease. Landlord agrees to pay said broker(s) commissions in
accordance with a separate agreement. Tenant hereby indemnifies Landlord against
liability arising out of any inaccuracy or alleged inaccuracy of the above
representation. Landlord shall have no liability for brokerage commissions
arising out of an assignment or a sublease by Tenant and Tenant shall and does
hereby indemnify Landlord and hold it harmless from any and all liability for
brokerage commissions arising out of any such assignment or sublease. The
covenants, representations and agreements of Tenant set forth in this Section
35.01 shall survive the termination of this Lease.
ARTICLE 36
SECURITY DEPOSIT
SECTION 36.01 Tenant has deposited with Landlord the sum of $ 34,166.66
(if by check subject to collection) as security for the full and punctual
performance by Tenant of all of the terms of this Lease. In the event Tenant
defaults in the performance of any of the terms of this Lease, including the
payment of 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 rent 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 of this Lease, including any
damages or deficiency in the reletting of the Premises, whether accruing before
or after summary proceedings or other re-entry by Landlord. In the case of every
such use, application or retention, Tenant shall, on demand, pay to Landlord
the sum so used, applied or retained which shall be added to the security
deposit so that the same shall be replenished to its former amount. If Tenant
shall fully and punctually comply with all of the terms of this Lease the
security, without
44
interest, shall be returned to Tenant after the termination of this Lease and
delivery of exclusive possession of the Premises to Landlord. In the event of a
sale or lease of the Building, Landlord shall have the right to transfer the
security to the vendee or lessee and Landlord shall ipso facto be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look solely to the new landlord 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 shall not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance or attempted assignment or encumbrance.
See Section 46.17
ARTICLE 37
WINDOW CLEANING
SECTION 37.01 Tenant will not (a) require, permit, suffer or allow the
cleaning of any window in the Premises from the outside (within the meaning of
Section 202 of the New York Labor Law or any successor statute thereto) unless
the equipment and safety devices required by all Legal Requirements including
Section 202 of the New York Labor Law or any successor statute thereto, are
provided and used or (b) permit, suffer or allow the cleaning of the outside of
any window from within the Premises except by persons employed by Landlord; and
Tenant hereby indemnifies Landlord against liability as a result of the Tenant's
(i) requiring, permitting, suffering or allowing any window in the Premises to
be cleaned from the outside in violation of any Legal Requirement or (ii)
permitting, suffering or allowing the outside of any window to be cleaned from
within the Premises other than by persons employed by Landlord.
ARTICLE 38
CONSENTS
SECTION 38.01 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 10 days after receipt of notice of
denial of the requested consent or, in case notice of denial is not received,
within 20 days after making its request for the consent.
SECTION 38.02 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.
SECTION 38.03 Notwithstanding anything to the contrary provided in this
Lease, in any instance where the consent of the Superior Lessor and/or the
Superior Mortgagee is required Landlord shall not be required to give its
consent until and unless the Superior Lessor and/or the Superior Mortgagee has
given its consent. Landlord agrees to seek such consent if Landlord would
otherwise consent in such instance.
ARTICLE 39
NOTICES
SECTION 39.01 A. Except as otherwise expressly provided in this Lease or
pursuant to any Legal Requirement, any bills, statements, notices, demands,
requests, consents or other communications (collectively, "notices") given or
required to be given under or in connection with this Lease or pursuant to any
Legal Requirement shall be effective only if in writing and
(a) if to Tenant, then, at the option of Landlord,
(i) sent to the attention: by
45
registered or certified mail, return receipt requested, postage prepaid,
addressed to Tenant's address as set forth in this Lease if mailed prior to
the Commencement Date or at the Building if subsequent to the Commencement
Date, or to such other address as Tenant may designate for such purpose by
like notice, or
(ii) delivered personally to Tenant,
(b) if to Landlord, sent by registered or certified mail, return receipt
requested, postage prepaid, addressed to Landlord c/o Cadillac Fairview Urban
Development, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 Attn.:
with a copy to Xxxxxxxx Xxxxx Xxxxxx Xxxxx & Xxxxx at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxxx, Esq. or to such other or
further address or addresses as Landlord may designate for such purpose by like
notice; or
(c) if to any other person, sent by registered or certified mail, return
receipt requested and postage prepaid addressed to such person's last known
principal address or to such other address as such person may designate to
Landlord and Tenant as its address for such purpose by like notice.
B. Notices shall be deemed to have been rendered or given (a) on the date
delivered, if delivered to Tenant personally, or (b) on the date mailed, if
mailed as provided in this Section, unless mailed outside of The City of New
York, in which case it shall be deemed to have been rendered or given 3 business
days after mailing. Notices given by counsel for either party shall be deemed
valid notices if addressed and sent in accordance with the provisions of this
Article.
SECTION 39.02 A. Notwithstanding the provisions of Section 39.01, notices
requesting after hours services pursuant to Article 12 may be given by delivery
to the Building superintendant or any other person in the Building designated by
Landlord to receive such notices.
B. If there occurs any interruption of certified and registered mail
service, lasting more than 5 consecutive business days, notices may be given by
telegram or personal delivery, but shall not be effective until personally
received by an executive officer of a party which is a corporation, or a partner
of a party which is a partnership, or a principal of any other entity.
ARTICLE 40
DEFINITIONS; CONSTRUCTION OF TERMS
SECTION 40.01 For the purposes of this Lease and all agreements
supplemental to this Lease:
(a) "Additional Rent" shall have the meaning given in Section 3.01A.
(b) "after hours" shall have the meaning given in Section 12.02.
(c) "Basic Construction of the Building" shall have the meaning given
in Exhibit C.
(d) "Building" shall have the meaning given in Section 1.01.
(e) "Building Equipment" shall mean all machinery, apparatus,
equipment, personal property, fixtures and systems of every kind and nature
whatsoever now or hereafter attached to or used in connection with the
operation or maintenance of the Building, including all electrical,
heating, mechanical, sanitary, sprinkler, utility, power, plumbing,
cleaning, fire prevention, refrigeration, ventilation, air cooling, air
conditioning, elevator and escalator systems, apparatus and equipment and
any and all renewals and replacements of any thereof, but excluding,
however, (i) Tenant's Property, (ii) property of any other tenant, (iii)
property of contractors servicing the Building and (iv) improvements for
water, gas, steam and electricity and other similar equipment owned by any
public utility company or any governmental agency or body.
(f) "business days" shall mean all days except Saturdays, Sundays and
the days observed by the Federal or the New York State or City governments
as legal holidays and such other days as shall be designated as holidays by
the applicable operating engineers union or building service employees
union contract.
(g) "business hours" shall mean the hours from 8:00 A.M. to 6:00 P.M.
(h) "Commencement Date" shall have the meaning given in Section
2.01A.
(i) "Expiration Date" shall have the meaning given in Section 2.01A.
46
(j) "Declaration" shall mean the Declaration, dated July 27, 1981,
made by Landlord, recorded in the Office of the Register of the City of New
York on August 20, 1981, as No. 10726 in Reel 579 of Conveyances at page
1641. The Declaration requires, among other things, that in the event the
building now known as 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx or the
building now known as 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx shall be
altered or reconstructed so as to come within a certain distance of the
exterior wall openings on the west lot line of the Land, such exterior
wall openings will be closed, at Landlord's expense, with construction
meeting the fire rating resistant requirement for exterior wall
construction.
(k) "Fee Mortgage" shall mean, collectively, any mortgage which does
not constitute a Superior Mortgage and which encumbers the Land and all
renewals, modifications, replacements, substitutions, supplements,
extensions, spreaders and consolidations thereof.
(l) "Fee Mortgagee" shall mean, collectively, all holders at the time
of the Fee Mortgage.
(m) "Fixed Rent" shall have the meaning given in Section 3.01A.
(n) "Fixtures" shall have the meaning given in Section 10.07.
(o) "Force Majeure" shall mean any and all causes beyond Landlord's
reasonable control, including delays caused by Tenant, other tenants,
governmental restriction, regulation or control, labor dispute, accident,
mechanical breakdown, shortages or inability to obtain labor, fuel, steam,
water, electricity or materials, acts of God, enemy action, civil
commotion, fire or other casualty.
(p) "Guarantor" shall mean any person who guarantees any or all of
Tenant's obligations under this Lease.
(q) "Improvements" shall mean improvements made by or on behalf of
Tenant or any person claiming through or under Tenant.
(r) "Improvements" shall mean improvements, alterations, additions,
installations, substitutions, betterments and decorations.
(s) "Insurance Requirements" shall mean all requirements of any
insurance policy covering or applicable to all of any part of the Real
Property or the Premises or the use thereof, all requirements of the issuer
of any such policy and all orders, rules, regulations, recommendations and
other requirements of the New York Board of Fire Underwriters or the
Insurance Service Office or any other body exercising the same or similar
functions and having jurisdiction or cognizance of all or any other part of
the Real Property or the Premises.
(t) "Interest Rate" shall mean a rate per annum equal to the lesser
of (a) 2% above the prime rate in effect from time to time (but in no event
less than 15% per annum) or (b) the maximum applicable legal rate, if any.
(u) "Land" shall have the meaning given in Section 1.01.
(v) "Landlord" shall have the meaning given in Section 43.02
(w) "Landlord's Work" shall have the meaning given in Exhibit C.
(x) "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations and ordinances) and the
orders, rules, regulations, directives and requirements of all federal,
state, county, city and borough departments, bureaus, boards, agencies,
offices, commissions and other subdivisions thereof, or of any official
thereof, or of any other governmental, public or quasi-public authority,
whether now or hereafter in force, which may be applicable to the Real
Property or the Premises or any part thereof or the sidewalks, curbs or
areas adjacent thereto and the Declaration and all requirements,
obligations and conditions of all instruments of record on the date of this
Lease.
(y) "Premises" shall have the meaning given in Section 1.01.
(z) "prime rate" shall mean the annual rate of interest from time to
time publicly announced by The Chase Manhattan Bank, N.A., as its prime
lending rate.
(aa) "Real Property" shall mean the Building and the Land and all
easements, air rights, development rights and other appurtenances thereto.
47
(bb) "Rules and Regulations" shall have the meaning given in Section
30.01.
(cc) "Superior Lease" shall have the meaning given in Section 23.01.
(dd) "Superior Lessor" shall mean, collectively, all lessors at the
time of the Superior Lease.
(ee) "Superior Mortgage" shall have the meaning given in Section
23.01.
(ff) "Superior Mortgage" shall mean, collectively, all holders at the
time of the Superior Mortgage.
(gg) "Successor Landlord" shall have the meaning given in Section
23.04.
(hh) "Tenant" shall have the meaning given in Section 43.04.
(ii) "Tenant's Property" shall mean all fixtures, Improvements and
other property (i) installed at the sole expense of Tenant, (ii) with
respect to which Tenant has not been granted at any credit or allowance by
Landlord, (iii) which are removable without material damage to the Premises
and (iv) which are not replacements of any property of Landlord, whether
any such replacement is made at Tenant's expense or otherwise.
(jj) "Tenant's Work" shall have the meaning given in Exhibit C.
(kk) "Term" shall have the meaning given in Section 2.01A.
(ll) "Untenantable" shall mean the extent to which Tenant is actually
unable to use any or all of the Premises in the normal course of its
business.
(mm) "Work Letter" shall have the meaning given in Section 4.01.
SECTION 40.02 A. If any of the provisions of this Lease, or the application
thereof to any person or circumstance, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
B. If any term of this Lease is found invalid or unenforceable to any
extent by a final judgment or award which shall not be subject to change by
appeal, then either party may initiate an arbitration in accordance with the
provisions of Article 28. Said arbitrators shall devise a valid and enforceable
substitute term for this Lease which shall as nearly as possible carry out the
intention of the parties with respect to the term of this Lease found invalid or
unenforceable. Such substitute term as so devised shall thereupon be deemed a
part of this Lease.
SECTION 40.03 For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The terms "include", "including" and "such as" shall be construed
as if followed by the phrase "without being limited to". The words
"herein", "hereof", "hereunder" and words of similar import shall be
construed to refer to this Lease as a whole and not to any particular
Article or Section unless expressly so stated.
(b) The term "obligation of this Lease" and words of like import,
shall mean the covenants to pay rent and all of the other terms of this
Lease. Any provision in this Lease that one party or the other or both
shall do or not do or shall cause or permit or not cause or permit a
particular act, condition or circumstance shall be deemed to mean that such
party so covenants or both parties so covenant, as the case may be.
(c) The term "Tenant's obligation hereunder", and words of like
import, and the term "Landlord's obligations hereunder", and words of like
import, shall mean the obligations of this Lease which are to be performed
or observed by Tenant, or by Landlord, as the case may be. Reference to
"performance" of either party's obligations and words of like import shall
be construed as "performance and observance". Tenant's obligations
hereunder shall be construed in every instance as conditions as well as
covenants.
(d) Reference to Tenant being "in default hereunder", or words of like
import, shall mean that Tenant is in default in the performance of one or
more of Tenant's obligations hereunder.
(e) Reference to Landlord as having "no liability to Tenant" or being
"without liability to Tenant", shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial
or
48
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any its other obligations hereunder, or to be compensated for loss
or injury suffered or to enforce any other right or kind of liability whatsoever
against Landlord under or with respect to this Lease or with respect to Tenant's
use or occupancy of the Premises.
(f) The term "repair" shall be deemed to include restoration, rebuilding
and replacement as may be necessary to achieve and maintain good working order
and condition.
(g) Reference to "termination of this Lease" and words of like import
includes expiration or sooner termination of this Lease and the Term and the
estate hereby granted or cancellation of this Lease pursuant to any of the
provisions of this Lease or to law. Upon the termination of this Lease, the Term
and estate granted by this Lease shall end at noon of the date of termination as
if such date were the Expiration Date and neither party shall have any further
obligation or liability to the other after such termination except (i) as shall
be expressly provided for in this Lease, and (ii) for such obligations as by
their nature or under the circumstances can only be, or by the provisions of
this Lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this Lease, any liability for a payment (which
shall be apportioned as of such termination) which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
(h) The term "in full force and effect" when used in reference to this
Lease as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
notice, if any, required by this Lease), as would entitle Landlord in either
such instance to terminate this Lease or to dispossess Tenant.
(i) The term "the terms of this Lease" or "the terms of this Article"
shall be deemed to include all terms, covenants, conditions, provisions,
obligations, limitations, restrictions, reservations and agreements of this
Lease or such Article, as the case may be.
(j) The term "rights" shall be deemed to include rights, remedies, powers
and privileges.
(k) The term "rent" or "rents" shall be deemed to mean Fixed Rent and
Additional Rent.
(l) The term " Landlord's agents" shall be deemed to include all agents,
contractors, and employees of Landlord.
(m) The term "person" shall be deemed to include individuals,
corporations, partnerships, firms, associations and any other legal entities.
(n) The term "tenant" shall be deemed to include any and all occupants of
the Building.
(o) The term "consent" shall mean prior consent and approval and the
consent by either party to any particular action shall not in any way be
considered as relieving the other party from obtaining the express consent to
any subsequent or further action.
(p) The words "Tenant hereby indemnifies Landlord against liability" and
words of similar import shall mean that Tenant hereby agrees to and hereby does
indemnify, hold and save Landlord and Landlord's agents and the Superior
Lessor, Superior Mortgagee and Fee Mortgagee and their respective agents,
employees, contractors, officers, directors, shareholders, partners and
principals (disclosed or undisclosed) harmless from and against any and all
loss, cost, liability, claim, damage, fine, penalty and expense, including
reasonable attorneys' fees and disbursements, but the same shall not be
construed as indemnifying any of the foregoing named persons against its own
negligence.
(q) Words and phrases used in the singular shall be deemed to include the
plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
(r) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
(s) All references in this Lease to numbered or lettered Articles,
Sections, Subsections, Subdivisions and Exhibits are references to Articles,
Sections, Subsections and Subdivisions of this Lease, and Exhibits annexed to
(and thereby made part of) this Lease, as the case may be, unless the context
clearly indicates the contrary.
49
(t) Each term, covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed shall be deemed and construed
as a seperate and independent covenant of Tenant, not dependent upon any of
the other terms of this Lease. This Lease shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. In the event of any action, suit,
arbitration, dispute, or proceeding affecting the terms of this Lease, no
weight shall be given to any deletions or striking out of any of the terms
of this Lease contained in any draft of this Lease and no such deletion or
strike out shall be entered into evidence in any action, suit, arbitration,
dispute or proceeding nor given any weight therein.
SECTION 40.04 The various terms which are defined in other Articles of
this Lease or are defined in Exhibits annexed hereto shall have the meanings
specified in such other Articles and such Exhibits for all purposes of this
Lease and all agreements supplemental thereto, unless the context clearly
indicates the contrary.
SECTION 40.05 The Article headings in this Lease and the Table of Contents
to this Lease are inserted only as a matter of convenience or reference, and are
not to be given any effect in construing this Lease.
ARTICLE 41
ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS; MEMORANDUM
SECTION 41.01 (a) At any time and from time to time upon not less than 10
days' prior notice by Landlord or the Superior Lessor or Superior Mortgagee to
Tenant, Tenant shall, without charge, execute, acknowledge and deliver a
statement in writing in the form annexed hereto as Exhibit F addressed to such
party as Landlord, or the Superior Lessor or the Superior Mortgagee, as the case
may be, may designate (with such additions or charges as may be reasonably
requested) or in form satisfactory to Landlord, or the Superior Lessor or the
Superior Mortgagee, as the case may be, certifying all or any of the following:
(i) that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), (ii) whether the Term has commenced and Fixed Rent
and Additional Rent have become payable hereunder and, if so, the dates to which
they have been paid, (iii) whether or not, to the best knowledge of the signer
of such certificate, Landlord is in default in performance of any of the terms
of this Lease and, if so, specifying each such default of which the signer may
have knowledge, (iv) whether Tenant has accepted possession of the Premises, (v)
whether Tenant has made any claim against Landlord under this Lease and, if so,
the nature thereof and the dollar amount, if any, of such claim, (vi) whether
there exist any offsets or defenses against enforcement of any of the terms of
this Lease upon the part of Tenant to be performed, and, if so, specifying the
same, (vii) either that Tenant does not know of any default in the performance
of any provision of this Lease or specifying any default of which Tenant may
have knowledge and stating what action Tenant is taking or proposes to take with
respect thereto, (viii) that, to the knowledge of Tenant, there are no
proceedings pending or threatened against Tenant or Guarantor before or by any
court or administrative agency which, if adversely decided, would materially and
adversely affect the financial condition or operations of Tenant or Guarantor
or, if any such proceedings are pending or threatened to the knowledge of
Tenant, specifying and describing the same and (ix) such further information
with respect to the Lease or the Premises as Landlord may reasonably request or
the Superior Mortgagee or Superior Lessor may require, it being intended that
any such statement delivered pursuant hereto may be relied upon by any
prospective purchaser of the Real Property or any part thereof or of the
interest of Landlord in any part thereof, by any mortgagee or prospective
mortgagee thereof, by any lessor or prospective lessor thereof, by any lessee or
prospective lessee thereof, or by any prospective assignee of any mortgage
thereof.
(b) The failure of Tenant to execute, acknowledge and deliver to Landlord
a statement in accordance with the provisions of this Section within said 10
day period shall constitute an acknowledgement by Tenant, which may be relied on
by any person who would be entitled to reply upon any such statement, that such
statement as submitted by Landlord is true and correct.
SECTION 41.02 Tenant will furnish to Landlord:
(1) Within 120 days after the end of each fiscal year of Tenant and
each Guarantor, respectively, annual consolidated financial statements
(balance sheets and profit and loss statements) of Tenant and each
Guarantor, respectively, in comparative form, certified by an independent
certified public accountant of recognized standing (selected by Tenant or
such Guarantor, as the case may be), if such certified statements
50
are delivered to shareholders or any other party, and otherwise certified
by the chief financial officer of Tenant or such Guarantor, as the case may
be; and
(2) Such other information regarding the condition (financial or
otherwise) of Tenant and each Guarantor as Landlord may reasonably request.
Each financial statement of Tenant and each Guarantor shall be accompanied by
a certificate of its chief financial officer that (a) he has reviewed this Lease
and has obtained no knowledge of any default hereunder or of any condition or
event which, with notice or lapse of time or both, would constitute a default
hereunder (or, if any such default, condition or event shall exist, the nature
and period of existence thereof and the action to be taken by Tenant or such
Guarantor with respect thereto), and (b) no material adverse change in the
business, condition (financial or otherwise), operations or prospects of Tenant
or its affiliates or such Guarantor or its affiliates has occurred during the
period covered by such statement.
SECTION 41.03 At the request of either party, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Lease sufficient for recording setting forth only the matters required to be set
forth pursuant to Section 291-c of the New York Real Property Law. Such
memorandum shall not in any circumstance be deemed to change or otherwise affect
any of the terms of this Lease. Tenant agrees not to record this Lease or any
other document related hereto other than any such memorandum.
ARTICLE 42
RELOCATION OF PREMISES
ARTICLE 43
PARTIES BOUND
SECTION 43.01 The terms of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 22 shall operate to vest any right in any successor or
assignee of Tenant and that the provision of this Article shall not be construed
as modifying the conditions of limitation contained in Article 17.
SECTION 43.02 A. The term "Landlord" shall mean only the owner at the time
in question of the present landlord's interest in the Building and in the event
of a sale or transfer of the Building (by operation of law or otherwise), or in
the event of the making of a lease of all or substantially all of the Building
or in the event of a sale or transfer (by operation of law or otherwise) of the
leasehold estate under any such lease, the grantor,
51
transferor or lessor, as the case may be, shall be and hereby is (to the extent
of the interest or portion of the Building or leasehold estate sold, transferred
or leased) automatically and entirely released and discharged, from and after
the date of such sale, transfer or leasing, of all liability in respect of the
performance of any of the terms of this Lease on the part of Landlord thereafter
to be performed; provided that the purchaser, transferee or lessee
(collectively, "Transferee") shall be deemed to have assumed and agreed to
perform, subject to the limitations of this Section and Section 23.04 (and
without further agreement between the then parties hereto, or among such parties
and the Transferee) and only during and in respect of the Transferee's period of
ownership of the Landlord's interest under this Lease, all of the terms of this
Lease on the part of Landlord to be performed during such period of ownership,
which terms shall be deemed to "run with the land" it being intended that
Landlord's obligations hereunder shall, as limited by this Article, be binding
on Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership.
B. No recourse shall be had on any of Landlord's obligations hereunder or
for any claim based thereon or otherwise in respect thereof against any
incorporator, subscriber to the capital stock, shareholder, officer or director,
past, present or future, of any corporation or any partner or joint venturer
which shall be Landlord hereunder or included in the term "Landlord" or of any
successor of any such corporation, or against any principal, disclosed or
undisclosed, or any affiliate of any party which shall be Landlord or included
in the term "Landlord", whether directly or through Landlord or through any
receiver, assignee, trustee in bankruptcy or through any other person, firm or
corporation, whether by virtue of any constitution, statute or rule of law or by
enforcement of any assessment or penalty or otherwise, all such liability being
expressly waived and released by Tenant.
C. Tenant shall look solely to Landlord's estate and interest in the
Building for the satisfaction of any right of Tenant for the collection of a
judgement or other judicial process or arbitration award requiring the payment
of money by Landlord and no other property or assets of Landlord, Landlord's
agents, incorporators, shareholders, officers, directors, partners, principals
(disclosed or undisclosed) or affiliates shall be subject to levy, lien,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's rights and remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or under law, or Tenant's use and
occupancy of the Premises or any other liability of Landlord to Tenant.
SECTION 43.03 The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this named Lease
or subletting of the Premises or to relieve the Tenant herein named or any
assignee or other sucessor in interest (whether immediate or remote) of the
Tenant herein named from the full and prompt performance of Tenant's obligations
hereunder.
SECTION 43.04 Nothing contained in this Lease shall be deemed to confer
upon any tenant, or anyone claiming under or through any tenant, any right to
insist upon, or to enforce against Landlord or Tenant the performance of
Tenant's obligations hereunder.
SECTION 43.05 The submission by Landlord to Tenant of this Lease in draft
form shall be deemed submission solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an option for the leasing of the Premises, and
shall not confer any rights or impose any obligations upon either party. The
submission by Landlord of this Lease for execution by Tenant and the actual
execution and delivery thereof by Tenant to Landlord shall similarly have no
binding force and effect on Landlord unless and until Landlord shall have
executed this Lease and a counterpart thereof shall have been delivered to
Tenant. Further, this Lease is subject to the written approval of The
Toronto-Dominion Bank, the existing Superior Mortgagee. Landlord agrees to
submit this Lease for such approval promptly after the date hereof and both
parties agree to use their best efforts to obtain such approval. In the event
that such approval is not obtained within the period of 60 days after the date
hereof, either Landlord or Tenant may elect to terminate this Lease by giving
written notice to the other party of such election (unless such approval has
been obtained prior to the giving of such notice), and in such event, this Lease
shall terminate as of the date on which such notice is given as if such date
were the Expiration Date, and if the Commencement Date has not occurred,
Landlord shall refund to Tenant any rent paid by Tenant pursuant to Section 3.02
and any security deposited by Tenant pursuant to Article 36.
52
ARTICLE 44
MISCELLANEOUS
SECTION 44.01 This lease contains the entire agreement between the parties
and all prior negotiations and agreements are merged into this Lease. This Lease
may not be changed, modified, abandoned or discharged, in whole or in part, nor
any of its provisions waived except by a written instrument which (a) expressly
refers to this Lease, (b) is executed by the party against whom enforcement of
the change, modification, abandonment, discharge or waiver is sought and (c) is
permissible under the Superior Mortgage and the Superior Lease.
SECTION 44.02 Tenant expressly acknowledges that neither Landlord nor
Landlord's agents has made or is making, and Tenant, in executing and delivering
this Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth in this Lease.
SECTION 44.03 Any apportionments or prorations of rent to be made under
this Lease shall be computed on the basis of a 360 day year, with 12 months of
30 days each.
SECTION 44.04 The laws of the State of New York applicable to contracts
made and to be performed wholly within the State of New York shall govern and
control the validity, interpretation, performance and enforcement of this Lease.
SECTION 44.05 If Tenant is a corporation, each person executing this Lease
on behalf of Tenant hereby covenants, represents and warrants that Tenant is a
duly incorporated or duly qualified (if foreign) corporation and is authorized
to do business in the State of New York (a copy of evidence thereof to be
supplied to Landlord upon request); and that each person executing this Lease on
behalf of Tenant is an officer of Tenant and that he is duly authorized to
execute, acknowledge and deliver this Lease to Landlord (a copy of a resolution
to that effect to be supplied to Landlord upon request).
SECTION 44.06 A. If Tenant is a partnership (or is comprised of 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
2 or more persons, individually, or as joint venturers or as copartners of a
partnership) pursuant to Article 22 (any such partnership and such persons are
referred to in this Article as "Partnership Tenant"), the following provisions
of this Section shall apply to such Partnership Tenant: (a) the liability of
each of the parties comprising Partnership Tenant shall be joint and several,
and (b) 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 or by any of the parties comprising Partnership Tenant, and
(c) 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 Patnership Tenant and
to all such parties and shall be binding upon Partnership Tenant and all
parties, and (d) 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 (e) Partnership Tenant shall
give prompt notice to Landlord of the admission of any such new partners, and
upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new Partner shall assume performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such nor the failure of any such new
partner to execute or deliver any such agreement to Landlord shall vitiate the
provisions of Subdivision (d) of this Section 44.06 A).
SECTION 44.07 All Exhibits to this Lease and any and all Rider provisions
attached to this Lease are hereby incorporated into this Lease. If any provision
contained in any Rider hereto is inconsistent or in conflict with any printed
provision of this Lease, the provision contained in such Rider shall supersede
said printed provision and shall control.
53
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
000 XXXXX XXXXXX ASSOCIATES
By: Cadillac Xxxxxxxx 00xx Xxxxxx Corp.,
General Partner
WITNESS: /s/
WITNESS: By /s/
/s/ ----------------------------
------------------------- Landlord
ASSESSMENT SYSTEMS INCORPORATED
By /s/
-----------------------------
Tenant
(CORPORATE SEAL)
WITNESS:
/s/
-------------------------
ATTEST:
/s/
-------------------------
54
RIDER ANNEXED TO AND MADE A PART OF
LEASE, DATED AS OF , 1983,
BETWEEN 000 XXXXX XXXXXX ASSOCIATES,
AS LANDLORD, AND ASSESSMENT SYSTEMS
INCORPORATED, AS TENANT
-------------------------------------
The provisions of this Rider shall supersede any inconsistent
provisions contained in the printed portion of this Lease.
ARTICLE 45
----------
FIXED RENT
Section 45.01. The Fixed Rent payable by Tenant pursuant to Section
------------- -------
3.01A shall be as follows:
-----
(a) For the period commencing on the date which is four (4) calendar
months after months after the Commencement Date ("Rent Commencement Date") and
ending on the day before the fifth (5th) anniversary of the Rent Commencement
Date, at the rate of $220,000.00 per annum, payable in equal monthly
installments in advance on the first day of each and every month during such
period; and
(b) For the 5-year period commencing on the fifth (5th) anniversary
of the Commencement Date and ending on the Expiration Date, at the rate of
$233,750.00 per annum, payable in equal monthly installments in advance on the
first day of each and every month during such period.
55
ARTICLE 46
----------
MODIFICATION OF PRIOR PROVISIONS
Section 46.01. The following is added at the end of Section 2.01A:
------------- -------------
"Notwithstanding anything contained in the preceding subparagraphs (a) and
(b), in no event shall the Commencement Date occur before February 1, 1984.
"The Term shall end on the last day of the month in which the tenth
(10th) anniversary of the Commencement Date occurs ("Expiration Date")
unless the Term shall sooner terminate pursuant to any of the terms of this
Lease or pursuant to law."
Section 46.02. The following is added after Section 2.03:
------------- ------------
"Section 2.04. In the event Landlord shall fail to cause the Premises
------------
to be available for occupancy in accordance with Section 4.02 (other than
------------
as a result, in whole or in part, of any act, omission or negligence of
Tenant or any of its related corporations, agents or contractors) on or
before August 1, 1984, (plus such period of time as Landlord shall be
unable to cause the Initial Space to be available for occupancy in
accordance with Section 4.02, as a result of Force Majeure), then Tenant
------------
may elect to terminate this Lease, provided Tenant shall not be in default
beyond any applicable grace period of its obligations under this Lease, by
notice given to Landlord within thirty (30) days after such date and if
such notice is given and if Landlord shall not cause the Premises to be
available for occupancy in accordance with Section 4.02A on or before the
-------------
date which is thirty (30) days after such notice is given by Tenant, this
Lease shall be terminated as of midnight of the date which is thirty (30)
days after such notice is given, as if the termination date were the
Expiration Date."
Section 46.03. The following is added after Section 4.02(b):
------------- ---------------
"(c) the ground floor lobby of the Building, the lobby and the
lavatories on the twenty-second (22nd) floor of the Building and the public
corridor from the twenty-second (22nd) floor lobby to the Premises shall be
substantially completed to allow reasonable access to the Premises, there
shall be no unreasonable obstructions on the ground floor lobby or twenty-
second (22nd) floor lobby of the Building, the plaza adjacent to the ground
floor lobby of the Building shall be clear of construction machinery and
equipment, except for the construction hoist(s) referred to in Section
-------
32.03 (but in no event shall the landscaping be required to be completed by
-----
Landlord), at least one (1) public elevator and one (1) freight elevator
serving the Premises shall be substantially completed and in good operating
order and condition (in accordance with and subject to the
56
terms and conditions of this Lease), all Building Equipment (excluding any
security systems to be installed by Landlord, if any) reasonably necessary
to service the Premises shall be in good operating order and condition (in
accordance with and subject to the terms and conditions of this Lease), and
all windows on the exterior walls of the Premises shall be installed (other
than windows which are adjacent to or near the construction hoist(s)
referred to in Section 32.03 and which are being repaired by Landlord in
-------------
accordance with the terms and conditions of the Lease); and"
Section 46.04. The following is added at the end of Section 7.01K(i):
------------- ----------------
", provided, however, that with respect to any employees of Landlord who
are engaged in providing services both to the Building and to buildings
owned by Landlord other than the Building, Operating Expenses shall include
only that portion of the total amount of salaries, wages, bonuses and other
benefits enumerated above which bears the same ratio to the total amount of
such salaries, wages, bonuses and other benefits paid or relating to such
employees as the portion of work performed by such employees at or with
respect to the Building, Real Property, and the areas adjacent thereto or
connected therewith, bears to the total amount of work performed by such
employees in the course of their employment by Landlord"
Section 46.05. The following is added at the end of Section
------------- -------
7.01K(xvi):
----------
", provided, however, that the actual cost of replacement of any item
depreciated pursuant to this subparagraph shall be included in Operating
Expenses only to the extent that such depreciation has not been taken"
Section 46.06. The following is added after Section 7.01K(j):
------------- ----------------
"(k) costs of services provided by Landlord to tenants occupying
retail space in the Building, which services are not provided to tenants
occupying office space in the Building; and
"(l) costs of services paid to any entity affiliated with Landlord
which are in excess of the then prevailing rates for such services in the
Borough of Manhattan for first class Third Avenue office buildings."
Section 46.07. The following is added at the end of Section 7.02F:
------------- -------------
"Notwithstanding anything to the contrary contained in Section 7.02
------------
Tenant's obligation to pay to Landlord Tenant's Tax Payment shall not
commence until the Rent Commencement Date."
Section 46.08. The following is added after the words "or, at
-------------
Landlord's election" which follow Subsection
----------
57
7.03A(b)(1):
------------
"(which election may be made by Landlord once during the period from the
end of the first (1st) Escalation Year through the end of the fifth (5th)
Escalation Year, and once during the period from the end of the fifth (5th)
Escalation Year through the end of the tenth (10th) Escalation Year),"
Section 46.09. The following is added at the end of Section 7.03C:
------------- -------------
"Notwithstanding anything to the contrary contained in Section 7.03
------------
Tenant's obligation to pay to Landlord Tenant's Operating Payment shall not
commence until the Rent Commencement Date."
Section 46.10. The following is added at the end of Section 10.05:
------------- -------------
"Landlord shall submit to Tenant a list containing the names of at least
three (3) contractors or subcontractors which are acceptable to Landlord,
two (2) of which are not controlled directly or indirectly by, or
affiliated with, Landlord."
Section 46.11. The following is added after the first sentence of
-------------
Section 13.01:
--------------
"Landlord has installed, at Landlord's expense, a meter for the purpose of
measuring electrical consumption on the twenty-second (22nd) floor of the
Building. Landlord shall maintain, service, repair and, if necessary,
replace such meter. Tenant, upon demand by Landlord, shall pay to Landlord,
as Additional Rent, an amount equal to 55.98% of the costs incurred by
------
Landlord in connection with such maintenance, service, repair and
replacement. Following the Commencement Date, Landlord shall cause an
electrical engineer or a utility consultant selected by Landlord to make a
survey of Tenant's connected power load and the connected power load of
that portion of the rentable area of the twenty-second (22nd) floor of the
Building not included within the Premises. Landlord, at Landlord's option,
shall have the right, at any time and from time to time during the Term, to
cause similar surveys to be made. Tenant's Share shall mean that percentage
equal to Tenant's percentage of the aggregate of the connected power load
for the entire rentable area of the twenty-second (22nd) floor of the
Building as determined from time to time pursuant hereto. The findings of
Landlord's engineer or consultant shall be binding on Landlord and Tenant,
subject to adjustment as hereinafter provided. Promptly after receipt by
Landlord of a xxxx from the public utility company furnishing electrical
energy to the twenty-second (22nd) floor of the Building, Landlord shall
furnish to Tenant a copy thereof together with a request for payment to
Landlord by Tenant of Tenant's Share of such xxxx. Tenant shall promptly
pay to Landlord, as Additional Rent, Tenant's Share of such xxxx. In the
event Tenant shall dispute any findings of the engineer or consultant
designated by Landlord, Tenant
58
may, within thirty (30) days of receiving notice of such findings,
designate by notice to Landlord an independent electrical engineer or
utility consultant to make, at Tenant's sole cost and expense, another
determination of Tenant's connected power load. If the engineer or
consultant selected by Tenant shall determine that Tenant's connected power
load 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
Landlord, the dispute shall be resolved by arbitration in accordance with
Article 28. 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 consultant; 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 (5) years experience in similar matters in
New York City."
Section 46.12. The following is added before the word "completed" on
-------------
the second line of Section 15.02:
-------------
"(i) delivered to Tenant notice that Landlord believes, in good faith, that
the repairs required to be made to the Premises and the means of access
thereto can be completed within six (6) months from the date of such damage
or destruction plus such additional time after such six (6) month period
(but in no event to exceed six (6) months), as shall equal the aggregate
period Landlord may be delayed in doing so by Force Majeure or adjustment
of insurance, and (ii) actually"
Section 46.13. In reference to Section 22.06A, if Landlord exercises
------------- --------------
its option pursuant to Section 22.06A(c) to sublet from Tenant the space
-----------------
proposed to be sublet by Tenant, (i) the performance by Landlord or its designee
under a sublease of such space shall be deemed performance by Tenant of any
similar obligation under this Lease and (ii) any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or deemed to
be in default herein if such default is occasioned by or arises from any act or
omission of the tenant or occupant holding under or pursuant to any such
sublease.
Section 46.14. The following is added after Section 23.01A:
------------- --------------
"B. Landlord shall use reasonable efforts to obtain a Non-Disturbance
Agreement (as hereinafter defined) from any Superior Lessor or Superior
Mortgagee; provided, however, that (a) Tenant shall cooperate with Landlord
in obtaining any such agreement and (b) Landlord shall not be required to
(i) make any payment to any Superior Lessor or Superior Mortgagee, or (ii)
alter any of the terms of its financing with any Superior Mortgagee, or
(iii) alter any of the terms of any Superior Lease with any Superior
Lessor, or any of the terms of any Superior Mortgage with any Superior
Mortgagee, in
59
order to obtain such agreement. The term "Non-Disturbance Agreement" shall
mean either an agreement, in recordable form, between Tenant and any
Superior Lessor or Superior Mortgagee, as the case may be, or an agreement
contained in any Superior Lease or Superior Mortgage, as the case may be,
which shall provide in substance that as long as Tenant is not in default
beyond any applicable grace period under this Lease, such Superior Lessor
or Superior Mortgagee, as the case may be, shall not name or join Tenant as
a party defendant or otherwise, in any suit, action or proceeding to
enforce (unless Tenant is deemed a necessary party under any law then in
effect), nor will this Lease be terminated by enforcement of any rights
given to such Superior Lessor or Superior Mortgagee, as the case may be,
pursuant to the terms, covenants or conditions contained in such Superior
Lease or Superior Mortgage, as the case may be; provided, however, that the
provisions set forth in Section 23.04 shall be applicable to, and may be
-------------
incorporated in, any such agreement."
Section 46.15. In reference to Section 23.02, Tenant shall not be
------------- -------------
deemed to be doing anything that would (i) constitute a default under the
Superior Lease or the Superior Mortgage or (ii) cause the Superior Lease to be
terminated or forfeited, if such action by Tenant does not otherwise result in a
default beyond the applicable grace periods hereunder.
Section 46.16. In reference to Article 23, Tenant shall have no duty
------------- ----------
or obligation to or for the benefit of any Superior Lessor or Superior Mortgagee
unless and until Tenant shall be furnished with the name and address of such
Superior Lessor and/or Superior Mortgagee.
Section 46.17. The following is added at the end of Section 36.01:
------------- -------------
"Tenant shall have the right to deposit with Landlord, as the security
deposit required pursuant to Article 36, an irrevocable commercial letter
----------
of credit in the aggregate amount of $34,166.66 in form and substance and
issued by a member bank of The New York Clearinghouse Association or other
bank, acceptable to Landlord, payable upon the presentation by Landlord to
such bank of a sight-draft, together with a certificate executed by an
officer of Landlord to the effect that Landlord is entitled to payment of
Tenant's commercial letter of credit pursuant to Article 36, which letter
----------
of credit shall provide (a) for the continuance of such credit for the
period of at least one year from the date of this Lease, (b) for the
automatic extension of such letter of credit for additional periods of one
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,
in accordance with Article 39, 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
60
sight for the balance remaining in such letter of credit and to hold and apply
such balance as provided in Article 36. 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
of this Lease as provided in Article 36, and in the event that (i) any default
----------
occurs as provided in Article 17 which default continues beyond the applicable
----------
grace period, or (ii) 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 (iii)
notice is given by the bank of its intention not to renew 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 36."
----------
61
EXHIBIT A
---------
DESCRIPTION OF LAND
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the southerly side of Xxxx
00xx Xxxxxx and the Westerly side of 3rd Avenue; running
thence southerly along the westerly side of 3rd Avenue 200 feet 10 inches to the
northerly side of Xxxx 00xx Xxxxxx;
thence westerly along the northerly side of Xxxx 00xx Xxxxxx 120 feet;
thence northerly and parallel with the westerly side of 3rd Avenue 100 feet 5
inches to the center line of the block;
thence easterly along the center line of the block and parallel with the
northerly side of Xxxx 00xx Xxxxxx 20 feet;
thence northerly and parallel with the westerly side of 3rd Avenue 100 feet 5
inches to the southerly side of Xxxx 00xx Xxxxxx;
thence easterly along the southerly side of Xxxx 00xx Xxxxxx 100 feet to the
westerly side of 3rd Avenue, the point or place of BEGINNING.
A-1
EXHIBIT B
FLOOR PLAN
[FLOORING DEPICTING FLOOR REFERENCED 000 XXXXX XXXXXX]
EXHIBIT C
WORK LETTER
In connection with this Lease, Landlord has agreed to perform certain work
in the Premises, and Tenant has agreed to undertake certain obligations in
connection therewith, as hereinafter set forth.
Landlord has engaged Xxxxxx/XxXxxxxx, Inc. ("Contractor") as construction
manager to supervise the Basic Construction of the Building and the performance
of the Work (or the portion thereof) to be performed by Landlord pursuant to
this Work Letter (as such capitalized terms are hereinafter defined).
1. Landlord shall, at the sole cost and expense of Landlord and subject
to the limitations and provisions hereof, furnish and install, or cause to be
furnished and installed, those items of work described on Schedule A
("Landlord's Work") to the extent shown on the Plans (as hereinafter defined)
approved by Landlord, all of which Landlord's Work, and the labor and materials
in connection with Landlord's Work, shall be Building standard unless otherwise
specifically provided.
2. On or before the dates ("Plan Submission Dates") hereinafter set
forth, Tenant shall submit to Landlord, for Landlord's approval, and to
Contractor the following plans, working drawings, specifications and information
(collectively, "Plans"):
(a) On or before the date which is 15 days after the date*/ of this
Lease, (i) the location and extent of floor loading in excess of the design
capacity of the Building, and location of all floor openings, including any
interconnecting stairwells, (ii) the location and description of special
plumbing requirements, and (iii) the location, loads and dimensions of
telephone and other equipment rooms, if other than as shown on Landlord's
floor plans.
(b) On or before the date which is 20 days after the date*/ of this
Lease, a partial set of architectural drawings, specifications and details,
showing, among other things, (i) the estimated total electrical
requirements indicating connected electrical loads, location and type, and
a fixture schedule, (ii) air condi-
C-1
*of execution and delivery
tioning requirements, including, but not limited to, the number of people,
equipment and special air conditioning requirements (as hereinafter
defined), and (iii) specific plumbing requirements, including, without
limitation, plans and sections.
(c) On or before the date which is 30 days after the date*/of this
Lease, a complete set of architectural drawings, specifications and
details, showing, among other things, (i) the floor plan(s), (iii)
partition locations and full sections of types of partitions used, (iv)
door locations, size and type, and hardware schedule, (v) reflected ceiling
plans, (vi) details of special conditions encountered, (vii) the estimated
total electrical requirements indicating connected electrical loads,
location and type, and a fixture schedule, (viii) the location of
electrical outlets and telephone outlets, (ix) any cabinet work, ornamental
metal work, non-Building standard flooring, architectural installations and
details and other information affecting other trades, (x) air conditioning
requirements, including, but not limited to the number of people, equipment
and special air conditioning requirements (as hereinafter defined), (xi)
any ceiling heights and materials which are not Building standard, (xii)
specific plumbing requirements, including, without limitation, plans and
sections, (xiii) finish schedules and related plans, if any, including,
without limitation, information and specifications for paint schedule,
floor covering, draperies and wall covering, and (xiv) any other
information which Landlord will need to order material and perform the
Work. The term "finish schedules" shall mean the complete listing of the
finishes to be applied to all wall and floor surfaces forming a part of the
Work, and detailed specifications of such draperies and wall and floor
coverings, including, without limitation, color samples, itemization of
materials by manufacturers' catalogue numbers, if applicable, and any other
information requested by Landlord.
3.A. The Plans shall (a) be fully detailed, (b) show complete dimensions,
(c) have designated thereon all points of location and other matters, including,
without limitation, the finish schedules, required by Landlord to perform or let
contracts for the performance of the Work, and (d) consist of the final plans
and specifications (including air conditioning, ventilating, electrical,
plumbing and engineering drawings and specifications (collectively, "Mechanical
Plans"), which Mechanical Plans shall be prepared by Landlord's archi-
C-2
*of execution and delivery
tect or engineer, and the cost of which shall be included in Tenant's Cost)
prepared by Tenant's licensed interior architect or designer to describe the
manner in which Tenant desires the Premises to be finished for Tenant,
including, without limitation, any changes thereto from time to time requested
by Tenant or made to obtain the approvals or permits referred to in Paragraph 5
hereof. The Plans shall comply with and conform to Landlord's plans, the design
capacities for the Building, and all Legal Requirements and Insurance
Requirements relating to construction of the Building and/or the Premises. All
drawings submitted hereunder shall be to scale of 1/4" = 1' and all details
submitted hereunder shall be to scale of 1 1/2" = 1', unless otherwise requested
by Landlord.
B. Prior to the commencement of the Work, the Plans shall have been
approved in writing by Landlord, but such approval shall be as to layout only,
shall not be deemed to be an approval of the legality or the cost of the Work or
the Plans and shall not be deemed a waiver of any of Landlord's rights under
this Work Letter with respect to any delays which may result from the materials,
services or work required by the Plans. Landlord shall notify Tenant of the
manner, if any, in which, in Landlord's judgement, the Plans, as submitted by
Tenant, fail to conform with the applicable provisions of this Work Letter.
Within ten (10) days after such notifications, Tenant shall revise or correct
such Plans and shall submit such revisions or corrections to Landlord.
Landlord's approval of the Plans will be evidenced by endorsement to that effect
on one (1) set of the Plans and the return of such signed set to Tenant. Whether
or not consented to or approved by Landlord, Tenant shall be fully and solely
responsible for all aspects of the Work (other than Landlord's Work), including,
without limitation, the design and construction of the Work, the accuracy and
sufficiency of the Plans and their compliance with Legal Requirements and
Insurance Requirements. Notwithstanding anything to the contrary contained
herein and whether or not Landlord would have been able to commence construction
of the Work, in no event shall Landlord be obligated to commence to perform the
Work unless and until all of the Plans have been submitted by Tenant to Landlord
and Landlord has approved such Plans. The Plans shall not be changed or modified
by Tenant after such approval by Landlord without the approval in writing of
Landlord. Landlord will not unreasonably withhold its approval of the Plans or
any change or modification thereof; provided, however, that Landlord shall not
in any event be obligated to approve any change or modification of the Plans
which in Landlord's sole opinion will cause any delay in the completion of the
Work or any additional cost or expense to Land-
C-3
lord. In no event may any changes be made in the Plans after Landlord has given
Tenant the notice referred to in Section 4.02 of the Lease.
4. As used in this Exhibit C ("Work Letter"), the following terms have
the following respective meanings:
(a) air conditioning requirements - shall mean the information and
drawings specified in Paragraph 2, supplied by Tenant, from which Landlord
and Landlord's engineer can design the air conditioning and ventilating
systems for the Premises, and purchase, fabricate and install the duct work
and other materials therefor, including, without limitation, (i) partition
and reflected ceiling plans showing dimensioned locations with reference to
Building column center lines, existing column faces, core walls, window
mullions, or elements such as those, and specifications for special
lighting fixtures, giving the length, width, height and weight of that
portion of such fixtures which is to be installed above the level of the
finished ceiling, (ii) the number of occupants expected in each room, (iii)
the heat dissipated in each room by Tenant's equipment, and (iv) any
special air conditioning requirements and special ventilating required by
Tenant;
(b) special air conditioning requirements - shall mean and include
any of the following which do not exceed the design capabilities of the
heating, ventilating and air conditioning system serving the Premises (i)
any separate air conditioning and/or ventilation systems serving only the
Premises, (ii) air conditioning and/or ventilating equipment for space in
the Premises not used solely for offices, such as auditoriums, conference
rooms, pantries, toilet rooms or reproduction or other rooms: (A) where the
heat released is greater than in normal office space, (B) which are subject
to greater variation in heat release or in occupancy than in normal office
space, or (C) which require greater or less than normal office control of
humidification (including, without limitation, reheat coils, strip heaters,
thermostats, control valves, fans, duct connected exhausts and thermal
acoustical insulation), and (iii) any equipment serving the Premises which
is required to achieve a special architectural effect (such as strip line
diffusers or return registers), or satisfy any other special conditions of
Tenant's layout, or the proposed conduct of its business in the Premises;
C-4
(c) Basic Construction of the Building - shall mean, in addition to the
structure itself, the mechanical and electrical systems (other than the portion
of the heating, ventilating and air conditioning system described on Schedule A
of this Work Letter) and the distribution thereof to locations from which each
floor can be served, and the elevators, lobby and other common areas and any
other necessary construction, excepting only any materials or work to finish any
portion for occupancy by particular tenants;
(d) Work - shall mean all (except as allowed by the provisions of
Paragraph 11) materials and work to be added to the Basic Construction of the
Building to finish the Premises for Tenant, including, without limitation, any
electrical or plumbing work required to meet Tenant's electrical and plumbing
requirements and any air conditioning work required to be done in the Premises
to meet the design conditions contained in Paragraph 4 of Schedule A and
Tenant's special air conditioning requirements (such electrical, plumbing and
air conditioning work to be in accordance with plans and specifications designed
by Landlord's engineers to fit the Plans, which plans and specifications shall
be available for review and suggestion by Tenant, but such suggestion shall not
be binding on Landlord); provided, however, that no (i) furniture, trade
fixtures or decorative effects (such as drapes and pictures), (ii) office
equipment, (iii) telephone installation, or (iv) subject to Paragraph 11,
cabinetry or special decorative effects, shall be a part of the work;
(e) Tenant's Work - shall mean all Work not included in Landlord's work;
(f) Indirect Job Costs - shall mean reasonable charges paid or incurred by
Landlord (other than charges paid to the Contractor and included in subparagraph
(i) of Paragraph 4(h) of this Work Letter) for on-the-job services performed or
supplied (such as clean-up removal of waste and debris, protection of work in
progress of completed, guard service, temporary maintenance and services,
Utilities and the use of elevators and hoists) in connection with Tenant's work
and work performed by Tenant pursuant to Paragraph 11;
(g) Change Costs - shall mean all*/ fees, costs and expenses
incurred by LandLord as a result of the exercise by Tenant of its right of
substitution allowed by paragraph of its right of substitution allowed by
Paragraph 4(h) or as a result of any request by Tenant
* reasonable
C-5
for a change in, or any change in, the Plans (including, without, limitation,
one caused by a direction by Tenant to omit any item of work contained in the
Plans) as allowed by Paragraph 10(b) or air conditioning requirements or in any
of Tenant's other plans or specifications, including (whether or not the change
is to Landlord's Work) fees, costs or expenses relating to: (i) any additional
architectural, engineering or construction services, (ii) any changes to
materials in process of fabrications, (iii) cancellation or modification of
supply or fabricating contracts, or (iv) removal or alteration of work or plans
completed or in process;
(h) Tenant's Cost - shall mean the total of (i) the actual cost of work
(including any amount charged by the Contractor for general conditions and the
Contractor's fee) performed or caused to be performed by Landlord*/ paid or
incurred directly by Landlord), its architects and engineers and by its
contractors, suppliers and work forces for materials and labor in connection
with that portion of the Work, if any, which was not included in Landlord's
Work, (ii) any Indirect Job Costs, (iii) any Change Costs, (iv) any costs
incurred by Landlord attributable to the design and construction of special air
conditioning requirements or other special requirements, and (v) architectural
services in connection with the review of the Plans and engineering services in
connection with the review of the Plans and the preparation and revision of the
Mechanical Plans, plus 5% on the foregoing items (i) through (iv); provided,
however, that if any part of the Work not included in Landlord's Work shall be
of a similar type but of equal or better quality than the corresponding part of
Landlord's Work (Tenant's right of substitution being limited to substitutions
which shall be of a like nature and of equal or greater cost and quality than
that for which the substitution is made), Tenant shall receive a credit equal to
the net cost (with no addition of 5%) to Landlord of the part replaced.
Notwithstanding the foregoing, Tenant shall receive credit for any part of
Landlord's Work omitted or not installed; **/ In the event Tenant shall elect
not to install the Building standard carpeting to be furnished by Landlord
pursuant to Schedule A, then Tenant shall be entitled to a credit against the
net cost of any other carpeting installed by Tenant equal to $9.00 per square
yard of the carpeting which would have actually been installed by Landlord in
the Premises pursuant to Schedule A. Notwithstanding the foregoing, in no event
shall Tenant receive any cash credits.
* so long as such costs are
** provided, however, that if Tenant does not use the maximum number of any of
the items of Landlord's work, Tenant shall be entitled to credits against
Tenant's Cost for each such item not used by Tenant. The credit against
Tenant's Cost for each such item shall be equal to the net cost (with no
addition of 5%) to Landlord of such item, provided, however, that Tenant's
credit shall in no event be more than the credit which Landlord receives from
its suppliers.
C-6
(i) Business Days - shall, as used in this Work Letter only, mean all
days other than Saturdays, Sundays and days proclaimed as legal holidays by
the State of New York or the Federal Government or the unions involved in
doing the Work;
(j) Notice - shall, as used in this Work Letter only, and
notwithstanding the general provisions of Article 39, mean any letter,
memorandum or other written communication which is either mailed to
Landlord or Tenant, as the case may be, in a postage prepaid envelope
(which shall be registered or certified mail, return receipt requested), or
delivered to an authorized representative of Landlord or of Tenant,
addressed, in the case of Landlord, to Landlord c/o Cadillac Fairview Urban
Development, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
, with copies to (i) Xxxxxxxx Xxxxx Xxxxxx Xxxxx &
Xxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxx, Esq., and (ii) or to such other or further address or addresses as
Landlord may designate by like notice; and, in the case of Tenant, such
Notice shall be similarly mailed or delivered, addressed to Tenant at the
Premises, with a copy to Xxxxxxx and Sheffield, Xxx Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxxx, Esq., or to such other
address as Tenant may designate by like notice; provided, however, that the
aforesaid authorized representative of Tenant shall be designated in
writing by Tenant; and if Tenant's architect is not one of the foregoing
parties, then Tenant may subsequently, by such Notice to Landlord, specify
such architect in a similar fashion; and provided further that any such
Notice shall be deemed to be given when received by mail or delivered to an
authorized representative.
5.A. Upon written approval by Landlord of the Plans, Tenant shall (a),
with reasonable speed and diligence so as not to delay Landlord's Work, file (by
Building Notice Application, in the case of the Department of Buildings of the
City of New York and by related miscellaneous applications, in the case of fire
protection) with the appropriate governmental authority or authorities the
Plans, the Mechanical Plans and any other plans prepared by Landlord's
architects and engineers for air conditioning, ventilating, heating, mechanical,
electrical and plumbing work or structural changes in the Building forming a
part of the Work; and (b) take whatever action shall be necessary ( including
modifications approved by Landlord of the Plans) to obtain and maintain all
governmental certifications, permits, authorizations and approvals which may be
required in connection with the
C-7
Work. Immediately after receipt of any such certifications, permits,
authorizations or approvals, Tenant shall deliver copies of all of the same to
Landlord. Tenant shall pay all filing fees and other costs in connection
therewith. Tenant shall deliver copies of all such permits and authorizations to
Landlord. Each floor of the Premises shall be filed for separately. Landlord
shall cooperate with Tenant in connection with the aforesaid. Tenant will
promptly furnish to Landlord copies of all stamped Building Department approved
drawings. Notwithstanding the foregoing, Landlord, at Landlord's election, may
do all such filings and procure all such permits and authorizations on Tenant's
behalf and at Tenant's sole cost and expense.
B. Notwithstanding the provisions of this Work Letter, (a) in the
event Tenant elects not to install the Building standard flooring, the non-
Building standard flooring and underlayment to be installed by Tenant shall be
subject to Landlord's approval, which approval shall be in the sole and absolute
discretion of Landlord, and (b) in the event Tenant elects to install decorative
window treatment in addition to the Building standard blinds, then such
decorative window treatment shall allow for the proper circulation of air in and
around the windows and shall be subject to the approval of Landlord, which
approval shall be in Landlord's sole and absolute discretion.
6.A. If a delay shall occur in obtaining a certificate of occupancy
(temporary or final) for the Premises or the Building or in completion of the
Work by Landlord as the result of (a) any failure to furnish when due the Plans
or revisions thereto or to timely file the same with appropriate governmental
authorities, (b) any change by Tenant in any air conditioning requirement, the
Plans or any other plan, specification or finish information furnished by
Tenant, (c) any state of facts which gives rise to a change referred to in the
definition of Change Cost, (d) the quality of performance or completion of work
by a person, firm or corporation employed by Tenant, (e) the fact that
non-Building standard work requires lead time to obtain or construction time to
perform, in excess of that required for Building standard work, (f) work is to
be done by or on behalf of Tenant which under good construction scheduling
practices should be completed before some portion of the Work is done, and such
work by Tenant is not completed on schedule or it delays the completion of the
Work, (g) any work to be performed by Tenant, including the installation of
Tenant's telephone and/or other communications systems, (h) any direction by
Tenant that Landlord hold up proceeding with a segment of Tenant's Work
preliminary to a possible change therein or for
C-8
any other reason, (i) any other act or omission of Tenant, its agents, employees
or contractors, including any default by Tenant in the performance of its
obligations under this Work Letter or Lease, or any delay in giving
authorizations or approvals pursuant to this Work Letter, or (j) any
displacement (resulting from any of the foregoing) of any portion of the Work
from its place in Landlord's overall construction schedule for finishing space
in the Building for tenants and the rescheduling of such Work (due regard being
given to the need to minimize disturbance to the overall work schedule for
finishing space in the Building for other tenants as well as Tenant), then any
such delay, at Landlord's option, shall be included in the calculations of the
Commencement Date under Article 4 of this Lease with the Commencement Date
becoming one day earlier than provided for in Section 2.01A(a) for each day of
such delay.
B. If a delay in the completion of the Work by Landlord, or any
portion of such delay, is the result of Force Majeure (including, without
limitation, strikes), then any such delay, which would not have occurred but for
a delay described in subdivision (A) of the preceding paragraph, shall be deemed
added to the delay described in such subdivision (A).
7. Tenant shall comply strictly with the Plan Submission Dates and any
change or modification of the Plan Submission Dates shall not be valid or
binding unless agreed to in writing by Landlord. Provided Landlord has not
unreasonably withheld its approval thereof, the Plans shall be deemed to have
been submitted on the date of final approval by Landlord.
8. Notwithstanding any other provisions of this Lease and in addition to
Landlord's other right, if Tenant fails, within 30 days after notice, to cure a
default in complying with the Plan Submission Dates, Landlord may, but shall not
be required to, at any time prior to such cure of a default, as Landlord shall
in the sole judgement of Landlord determine, either (a) proceed with Landlord's
Work as shown on Schedule A, or any part thereof, insofar as Landlord is able or
willing to so proceed, and in such event, Landlord may substantially complete
the Premises in a Building standard manner and Landlord shall have no
obligation to do further Work, (b) proceed to complete the Premises as an open
area with ceilings, floors and such partitions as Tenant shall have previously
designated to Landlord in writing and Landlord shall have no obligation to do
further Work, or (c) terminate the Lease upon not less than 10 days' prior
written notice to Tenant.
C-9
9. Landlord may make such changes in the plans and specifications of the
Building as Landlord may desire, except that (a) such changes shall not
materially adversely affect the occupancy of the Premises by Tenant, and (b) it
such changes relate to the Premises, such changes (except as shall be required
by any Legal Requirement) will not be made without the prior written consent of
Tenant, which consent Tenant agrees not to unreasonably withhold or delay, and
if Tenant fails to respond to a request for such consent within the period of 7
days after such request is made, such consent shall be deemed given by Tenant.
In addition, Landlord, at its option and without the necessity of any consent of
Tenant, may substitute for Building standard materials other materials of
comparable kind and quality.
10.A. Landlord shall perform the Work in accordance with the approved
Plans. Landlord's Work shall be without cost to Tenant, but Tenant, prior to and
during the progress of the Work, shall pay, as Additional Rent, Tenant's Cost.
Such payment shall be made to Landlord or, at Landlord's election, to
Contractor, in installments, reasonably specified by Landlord or Contractor,
within ten days after rendition of bills therefor by Landlord or Contractor, so
that the full amount of Tenant's Cost shall be paid during the progress of the
Work and the balance, if any, upon demand after substantial completion of the
Work.
B. Within a reasonable time (considering the amount of detail
required and so as not to affect the time table of the work involved) after
receipt of any of the Plans, or of any change thereto, Landlord or Contractor
shall give Notice to Tenant of Landlord's (or Contractor's) estimate
("Estimate") of the amount, if any, of Tenant's Cost, including any Change Cost,
arising therefrom. Landlord's (or Contractor's) representatives shall be
available to Tenant to discuss the Estimate. Tenant shall be deemed to have
agreed to the amount set forth in the Estimate unless within 5 business days
after receipt thereof Tenant shall give Notice to Landlord and Contractor in
detail of any disagreement therewith, in which event Landlord and Tenant shall
attempt to resolve such disagreement within 3 Business Days. If no such Notice
by Tenant is given, or if agreement is reached, then the amount set forth in the
Estimate, or the amount agreed upon, as the case may be, shall thereafter be
conclusively binding as an estimate, on Tenant. If such Notice by Tenant is
given and no agreement is reached, Landlord shall nevertheless proceed with the
Work, but Tenant may direct Landlord to omit any item thereof; subject, however,
to Landlord's right to withdraw its approval of the Plans by reason of any such
omission. Landlord shall use reasonable efforts to ob-
C-10
tain any Work at a reasonable cost to Tenant, but, in all events, Tenant shall
pay Tenant's Cost of any Work. Nothing contained in this Subparagraph B shall
permit Tenant to delay the completion by Landlord of the Work (or any portion
thereof), whether or not the cost thereof is in dispute. If at any time any of
the Plans or any of the Mechanical Plans or any other plans and specifications
prepared by Landlord's architect or engineer for Tenant are changed by Tenant so
as to eliminate or change any item of Tenant's Work in progress of engineering,
fabrication or construction, the process of such engineering, fabrication or
construction shall not be stopped or altered until Tenant directs such action by
a Notice containing an acceptance by Tenant of any addition to Tenant's Cost
which may result therefrom.
11.A. If Tenant wishes to do work which is of a special nature through its
own employees or contractors (such as cabinet work or special decorative
effects, telephone and communications systems), then Tenant shall so specify in
detail on the Plans and shall simultaneously furnish to Landlord the names of
the contractors Tenant proposes to use for such work. Landlord shall be deemed
to have consented to the performance of such work by the contractors designated
by Tenant unless, within 10 Business Days after receipt of the Plans involved,
it notifies Tenant (a) that it does not consent thereto (which consent Landlord
shall not unreasonably withhold), in which event such work shall be deemed to be
and become a part of Tenant's Work to be done by Landlord, or (b) that it
consents thereto upon such reasonable conditions as Landlord may set forth in
such Notice, with the work involved to be effected in accordance with the
requirements of this Work Letter and of Articles 9 and 10 of this Lease. The
Indirect Job Costs related thereto shall be a part of Tenant's Cost. The
foregoing time periods shall not give rise to a delay under Paragraph 6.
B. Notwithstanding anything to the contrary contained in this Work
Letter (including Schedule A), Landlord shall not be obligated to furnish or
install as a portion of the Work, any telephone or other communication systems.
The installation of any telephone or other communication systems shall be
performed by Tenant, at its sole cost and expense, in accordance with the terms
and conditions of this Work Letter (including Paragraph 12 of this Work Letter)
and of Article 8, 9 and 10 of this Lease; provided, however, in the event Tenant
shall be required to install, pursuant to any Legal Requirement or Insurance
Requirement, any conduit in the walls or ceilings for the installation of any
such telephone or other communication system, then, Landlord shall install such
conduit (but not the wiring), at Tenant's sole
C-11
cost and expense, and such cost and expense shall be paid by Tenant as part of
Tenant's Cost.
12.A. Landlord agrees to allow Tenant (and the architects, contractors and
decorators of Tenant) access to the Premises prior to the Commencement Date for
the purpose of making inspections, taking measurements, making installations
therein which are part of the work to be performed by Tenant pursuant to this
Work Letter and performing its decorative work, such as carpeting and draperies;
provided, however, that such work will not require any structural change, and
provided further that the construction of the Building and the Premises shall
have reached a point, in Landlord's sole judgment, exercised in good faith, such
that Landlord will not be delayed or hampered in the completion thereof by the
performance by Tenant of such work.
B. In connection with any access by Tenant pursuant to Paragraph 12A
of this Work Letter, Tenant covenants (a) to cease promptly upon request by
Landlord any activity or work during any period which, in Landlord's sole
judgement, shall interfere with or delay Landlord's prosecution or completion of
the Work to be performed by Landlord pursuant to this Work Letter or of the
Building at the earliest possible date, (b) that Tenant shall comply promptly
with all procedures and regulations (including access to the hoist) prescribed
by Landlord from time to time for coordinating such work and activities with any
other activity or work in the Premises or the Building, (c) that such access
shall be at the sole risk of Tenant and shall be deemed to be a license, (d)
that prior to exercising such right, Tenant shall deliver to Landlord the
policies of insurance required by the Lease, including public liability,
property damage and Worker's Compensation to protect Landlord and Tenant during
the period of Tenant's access, in amounts and with such companies as are
satisfactory to Landlord and that Landlord and Contractor, as well as the other
parties mentioned in Article 8 of this Lease, shall be named as an insured under
all such policies, (e) that Tenant shall indemnify and hold harmless Landlord,
the Superior Lessor, the Superior Mortgagee and the Building from and against
any and all claims arising from, or claimed to arise from, or out of the
performance of any work by or on behalf of Tenant in the Premises, or which may
arise by reason of any matter collateral thereto, and from and against any all
claims arising from, or claimed to arise from, any negligence, act, or failure
to act, of Tenant, its contractors, decorators, servants, agents or employees or
for
C-12
any other reason whatsoever arising out of Tenant's access to or being in the
Premises or in connection with the work to be performed by or for Tenant by
anyone other than Landlord, (f) that Tenant shall not employ or permit the
employment of any contractor, mechanic or laborer, or permit any materials in
the Premises, if the use of such contractor, mechanic or laborer would, in
Landlord's sole opinion, create any difficulty, strike or jurisdictional dispute
with other contractors, mechanics or laborers employed by Tenant, Landlord or
others, or would in any way disturb, interfere with or delay any work being
performed by Landlord or any other Tenant or their respective contractors, (g)
that, as frequently and in such manner as Landlord may direct, all debris,
rubbish and surplus materials caused by or resulting from the work being
performed by Tenant shall be removed and disposed of, at Tenant's sole cost and
expense, and (h) to pay any loss or additional expense caused Landlord by any
delay in the completion of the Work or the Building resulting from Tenant's
access and work. Any access by Tenant pursuant to this Work Letter, whether
prior to or on or after the Commencement Date, shall be deemed to be pursuant to
all the provisions of this Lease (including those contained in Articles 8, 9 and
10) and Tenant shall comply therewith, except that the obligation to pay rent
shall not commence until the Commencement Date or as provided for in Section
2.10B of the Lease. No material or equipment shall be incorporated in the
Premises in connection with the making of such installations which is subject to
any lien, charge, mortgage or other encumbrance of any kind whatsoever, or
subject to any conditional sale or other similar or dissimilar title retention
agreement. If Tenant fails to comply with any of the foregoing obligations,
then, in addition to all other rights and remedies hereunder, Landlord may by
Notice require Tenant to cease the performance of such activity and work until
the Work and the Building have been completed.
C-13
22050-55605 Real Estate
SCHEDULE A
----------
TO EXHIBIT C
------------
Landlord shall provide and install the following facilities and material
and complete the following work as Landlord's Work (as hereinafter defined) in
accordance with the Plans and Specifications. For purposes of this Lease,
"Landlord's Work" shall be deemed to mean:
1. PARTITIONS:
Landlord shall furnish and install one (1) linear foot of drywall
partitions for each fifteen (15) square feet of Premises Area. All drywall
partitions shall (a) consist of one (1) layer of 5/8" gypsum board each side of
1 1/2" steel studs, (b) terminate 3" above the suspended ceiling and (c) be
spackled and taped. Partitions ending at an exterior wall of the Building shall
meet a column without interfering with access to the peripheral enclosure or
bisecting or in any other way interfering with a vision light or the operation
of the exterior windows of the Building. Any jogs, curves or angles in any
partitions shall be furnished by Landlord, at Tenant's sole cost and expense.
2. DOOR, FRAMES, HARDWARE:
Landlord shall furnish and install all Building standard interior doors and
frames (not more than one interior door and frame for every thirty (30) linear
feet of partitions to be supplied by Landlord pursuant to this Schedule A).
Interior door frames shall be pressed steel 16 guage hollow metal 3'0" in width
full height with rubber silencers. Interior doors shall be (a) flush type,
non-firerated, solid core, with a hardwood veneer finish and (b) 8'0" in height.
Hardware for all interior doors to be furnished and installed by Landlord
pursuant to this Schedule A shall consist of a Building standard lever handle
latchset, 1 1/2 pairs of 4 1/2" x 4 1/2" hinges and door mounted stops.
3. ELECTRICAL CONSTRUCTION:
Landlord shall furnish and install the following:
a. Lighting: Landlord shall furnish and install 2'0" x 4'0" Building
--------
standard parabolic fluorescent light fixtures, with sockets for 3 standard 40
watt fluorescent
1
Real Estate
lamps (Building standard-227 volts), in the quantity of seventy-eight (78) per
floor.
b. Wiring: Electrical capacity with respect to each floor of the
------
Premises will be supplied to a panel on each floor, sufficient for electric load
not to exceed 2 xxxxx per square foot of area served of 277/480 volt single
phase for lighting and power and 2 xxxxx per square foot of 120/208 volt single
phase for receptacles.
c. Power and Telephone Outlets: Furnish and install one (1) Building
---------------------------
standard duplex power outlet and one (1) Building standard telephone outlet, as
follows:
(i) 1 duplex power outlet for each 150 rentable square feet;
and
(ii) 1 telephone outlet for each 200 rentable square feet.
All telephone outlets shall be typical wall outlets and shall be located in the
partitions. All electrical outlets shall be located in the partitions. Initial
xxxxxxx and relamping for light fixtures shall be Building standard lamp color
and shall be supplied and installed by Landlord, at Tenant's sole cost and
expense. For the purposes of this Schedule A, the term "Building standard lamp
color" shall mean "Warm White".
d. Switches: Switches for the purpose of servicing the Building
--------
standard light fixtures to be furnished and installed by Landlord pursuant to
this Schedule A as required by the New York City Building Code (not to be less
than one (1) switch per room); provided, however, in the event Tenant shall have
installed partitions in excess of the partitions to be furnished and installed
by Landlord pursuant to this Schedule A, then the additional switches required
by the New York City Building Code as a result of such increase in partitioning
shall be furnished and installed at Tenant's sole cost and expense.
4. HEATING, VENTILATION AND AIR CONDITIONING SYSTEM:
Landlord shall furnish and install an H.V.A.C. System which will meet the
following criteria:
2
22050-55605 Real Estate
Summer Inside................... 78 degrees D.B., 50% R.H.
Outside.................. 89 degrees D.B., 73% X.X.
Xxxxxx Inside................... 70 degrees D.B.
Outside.................. 15 degrees D.B.
The H.V.A.C. System is designed to meet the criteria set forth above
within tolerances appropriate for a first class office building provided that:
(i) Within any given room of Tenant's Demised Premises, the
occupancy does not exceed one (1) person for each 100 square feet of
area served;
(ii) Total electrical load, including lighting and power, does
not exceed 3-1/2 xxxxx per square foot of area served;
(iii) All Building standard venetian blinds shall be down and
closed when any sun load exists (including winter, fall, spring and
summer seasons); and
(iv) The maximum ventilation rate shall be .25 CFM per square
foot of enclosed area.
The H.V.A.C. System shall be furnished and installed by Landlord in
accordance with the following:
(i) Heating: All heat to be provided pursuant to this
-------
Schedule A shall be provided through enclosed perimeter fin tube hot
water radiation, which shall be floor mounted below all exterior
windows of the Premises;
(ii) Ventilation and Air Conditioning: All ventilation and air
--------------------------------
conditioning shall be provided through a self-contained unit located
in the mechanical room on each floor of the Building, which unit shall
be connected to the Building condensor water system;
(iii) Air Distribution:
----------------
(a) Diffusers: Each floor of the Building shall be
provided with (A) forty-five (45) Building standard 2' x 2' ceiling
diffusers,
3
22050-55605 Real Estate
set on splines and (B) eight (8) Building standard slot linear
diffusers (two (2) of each slot diffusers shall be located at each
corner of the Building).
(b) Variable Air Volume Boxes and Thermostats: The
perimeter air distribution system for each floor shall be provided
with five (5) Building standard variable air volume boxes and five (5)
thermostats and the interior air distribution system for each floor
shall be provided with two (2) building standard variable air volume
boxes and five (5) thermostats.
(c) Return Air: Return air shall be through the Building
standard lighting fixtures.
Landlord shall locate all such variable air volume boxes and thermostats
in accordance with Tenant's Plans and shall furnish and install all duct work
required for the operation of the H.V.A.C. System to be supplied by Landlord
pursuant to this Schedule A of the Work Letter.
5. CEILINGS:
Landlord shall furnish and install Building standard acoustic tile
ceilings in a concealed spline suspended system. Ceiling height throughout the
Premises shall be 8'5", without breaks, except in such areas as such height may
be impracticable due to specific field conditions.
6. FLOORING:
Landlord shall furnish and install (a) Building standard carpeting in all
areas of the Premises (other than restrooms, mechanical rooms, stairwells and
other service rooms), (b) 4" black vinyl based on all columns and all partitions
furnished and installed by Landlord pursuant to this Schedule A, (c) straight
base in the portion of the Premises which is carpeted and (d) cove base in all
areas of the Premises which are not carpeted. Tenant shall select the color of
all such carpeting from Landlord's color chart. For purposes of this Schedule A,
the term "Building standard carpeting" shall mean Hollytax "Macarthur Park"
Antron III nylon pile, textured loop. In the event Tenant elects in accordance
with the Work letter to install non-Building standard flooring, such flooring
and underlayment shall be subject to Landlord's and Landlord's architects'
approval, which approval shall be in
4
Landlord's and Landlord's architects' sole and absolute discretion.
7. PAINTING:
All partitions and door frames to be provided pursuant to this Schedule A
and all exterior perimeter walls within the Premises shall be painted with one
(1) primer coat and one (1) finish coat.
No color breaks, dados or special "designer" colors shall be provided by
Landlord. All colors shall be selected from Landlord's color chart, with no more
than one color in any office. Any painting shall be restricted to surfaces,
Building standard items or materials provided pursuant to this Schedule A. Doors
shall be pre-finished hardwood veneer.
The color of all soffits and jambs at the exterior windows of the Building
shall only be in accordance with samples approved by Landlord and Landlord's
architect, in their sole and absolute discretion.
8. BLINDS:
Landlord shall furnish and install for each exterior window of the Building
one (1) Building standard narrow slat venetian blind. No substitutions or
deletions of exterior venetian blinds shall be permitted. Any additional
decorative window treatment shall allow for the proper circulation of air in and
around the window glass area, and shall be subject to the approval of Landlord
and Landlord's architect which approval shall be made in Landlord's and
Landlord's architects' sole and absolute discretion.
9. SPRINKLER:
Landlord shall furnish and install on each floor a sufficient number of
flush concealed sprinkler heads to meet the requirements of Local Law 5 of the
Building Code of the City of New York, as enacted in 1972, based upon tenant
layout and head count; provided, however, in no event shall the number of flush
concealed sprinkler heads that Landlord is obligated of install pursuant to this
Schedule A exceed fifty-four (54) in respect of each floor. Landlord shall
furnish and install all sprinkler heads in the core area of the Building. All
sprinkler heads shall be installed with white finish painted caps.
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22050-55605 Real Estate
Notwithstanding the foregoing, in no event shall Landlord be obligated,
pursuant to this Schedule A, to furnish and install any heads for special
density applications or for hazardous material storage areas (e.g. rack deluge
or deluge type heads at interconnecting stairways).
10. DRINKING FOUNTAIN:
Landlord shall install in the core area of each floor of the Building
roughed in plumbing for a drinking fountain in a location designated by
Landlord. The location and the type of any drinking fountain to be installed by
Tenant in the Premises shall be as specified by Landlord and Landlord's
architect in their sole and absolute discretion, and any such drinking fountain
shall be supplied and installed at Tenant's sole cost and expense.
6
22050-55605 Real Estate
ADDENDUM TO SCHEDULE A TO EXHIBIT C
-----------------------------------
FOR MULTIPLE TENANT OCCUPANCY FLOORS
------------------------------------
For multiple tenant occupancy floors, the building standard allowance will be
modified as follows:
1. PARTITIONS:
----------
Landlord will provide demising partitions between tenant spaces, as well as
between the tenant and corridor space. The construction will be 2-1/2" steel
studs with one layer of 5/8" gypsum board on each side. Demising partitions are
to terminate at the slab above, and insulated with 2-1/2" batt insulation.
Half of the lineal footage of demising partition and corridor partition will be
considered as part of the allowance referred to in the main body, number 1.
2. DOORS AND FRAMES:
----------------
In addition to the allowance contained herein, each tenant will be entitled to
one (1) entrance door and frame.
Frame to be pressed steel 16 gauge hollow metal 3'0" wide, full height with
rubber silencers.
Doors shall be flush type, firerated in accordance with the City of New York,
solid core, with hardwood veneer finish, 8'0" height.
3. HARDWARE:
--------
Each entrance door pursuant to item No. 2 above shall be fitted with 2 pairs of
4-1/2" x 4-1/2" hinges, lever handle lock set with master key in compliance with
building management, closure, and door mounted stop.
4. PLUMBING:
--------
Connection for a drinking fountain has been installed in the core area in
recessed location. Drinking fountain to be supplied by Landlord.
(i)
22050-55605 Real Estate
GENERAL NOTE:
------------
Lighting fixtures, ceiling diffusers, variable air volume boxes, thermostats,
and sprinkler heads for the Premises will be provided in accordance with the
allowances set forth in Schedule A multiplied by the ratio that the tenant's net
rentable area bears to the net rentable area of the floor.
SPRINKLER HEADS
---------------
In certain circumstances if a portion of the floor is completed and has received
a Temporary Certificate of Occupancy prior to Tenant's plans being made
available, sprinklers may have to be installed throughout the floor. Sprinkler
relocation to meet Tenant's requirements, if necessary, will be at the cost of
Tenant.
(ii)
EXHIBIT D
CLEANING STANDARDS
GENERAL CLEANING
NIGHTLY - BUSINESS DAYS
General Offices:
1. All hardsurfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window xxxxx.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste receptacles and remove wastepaper.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
8. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Paper towel and sanitary receptacles emptied and cleaned.
7. Fill toilet tissue holders and soap dispensers.
WEEKLY
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvres and other ventilating louvres within a person's
reach.
3. Wipe clean all interior metal and remove fingermarks.
MONTHLY
High dust Premises completely including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions, doors,
bucks and other surfaces not reached in nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres, ducts, high
mouldings and other high areas not reached in nightly cleaning.
4. Dust all venetian blinds.
WASH ALL WINDOWS. (Periodically, when necessary, as determined by Landlord in
its sole and absolute discretion.)
D-1
EXHIBIT E
RULES AND REGULATIONS
1. No tenant shall obstruct or encumber or use for any purpose (other than
ingress and egress to and from its premises) the common areas, sidewalks,
driveways, entrances, passages, courts, lobbies, esplanade areas, atrium,
plazas, elevators, escalators, stairways, vestibules, corridors, halls and other
public portions of the Building ("Public Areas"), and no tenant shall permit any
of its employees, agents, licensees or invitees to congregate or loiter in any
of the Public Areas. No tenant shall invite to, or permit to visit, its premises
persons in such numbers or under such conditions as may interfere with the use
and enjoyment by others of the Public Areas. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purposes by any
tenant, or the employees, agents, licensees or invitees of any tenant. Landlord
reserves the right to control and operate, and to restrict and regulate the use
of, the Public Areas and the public facilities, as well as facilities furnished
for the common use of the tenants, in such manner as it deems best for the
benefit of the tenants generally, including the right to allocate certain
elevators for delivery service, and the right to designate which Building
entrances shall be used by persons making deliveries in the Building. No tenant
shall place or leave in any public hall or outside any entry door of its
premises a doormat of any kind whatsoever.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, louvered openings or screens shall
be attached to or hung in, or used in connection with, any window or door of any
tenant's premises, without the consent of Landlord. Such curtains, blinds,
shades or screens must be of a quality, type, design and color, and attached in
the manner, approved by Landlord. In order that the Building can and will
maintain a uniform appearance to those persons outside of the Building, each
tenant occupying the perimeter areas of the Building shall (x) use only building
standard lighting in areas where lighting is visible from the outside of the
Building and (y) use only building standard blinds in window areas which are
visible from the outside of the Building.
3. No tenant shall, without the prior consent of Landlord, exhibit,
inscribe, paint or affix any sign, insignia, advertisement, lettering, notice or
other object on any part of the outside or inside of its premises or the
Building or on corridor walls or which shall be readily visible from the Public
Areas. Any sign placed by a tenant on any entry door of its premises shall
conform to building standard signs, samples of which are on display in
Landlord's rental office. Such signs shall, at the expense of the tenant, be
inscribed, painted or affixed by signmakers approved by Landlord. In the event
of the violation of the foregoing by any tenant, Landlord may remove the same
without any liability,and may charge the expense incurred in such removal to the
tenant violating this rule. Interior signs, elevator cab designations, if any,
and lettering on doors and the Building directory shall, if and when approved by
Landlord, be inscribed, painted or affixed for each tenant by Landlord, at the
expense of such tenant, and shall be of a size, color and style acceptable to
Landlord. Only the tenant named in a lease covering its premises shall be
entitled to appear on the directory tablet. Additional names may be added in
Landlord's sole discretion under such terms and conditions as the Landlord may
approve.
4. No tenant shall (a) cover or obstruct the sashes, sash doors, skylights
or windows that reflect or admit light and air into the halls, passageways or
other public places in the Building or the heating, ventilating and air
conditioning vents and doors, or (b) place any bottles, parcels or other
articles on the window xxxxx or on the peripheral heating enclosures. Whenever
the heating, ventilating or air conditioning systems are in operation, each
tenant shall draw the shades, blinds or other window coverings, as required
because of the position of the sun. No tenant shall have any right to remove or
change shades, blinds or other window coverings within its premises without
Landlord's consent.
5. No tenant shall put or place any showcases or other articles in front of
or affixed to any part of the exterior of its premises or the Building, or in
the Public Areas.
6. No acids, vapors or other harmful materials shall be discharged, or
permitted to be discharged, into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or thrown into the
Public Areas or other areas of the Building, or into or upon any heating or
ventilating vents or registers or plumbing apparatus in the Building, or upon
adjoining buildings or land or the street. The cost of repairing any damage
resulting from any misuse of such fixtures, vents, registers and apparatus and
the cost of repairing any damage to the Building, or to any facilities of the
Building, or to any adjoining building or property, caused by any
E-1
messenger service, travel or tourist agency, retail, wholesale or discount shop
for sale of merchandise, retail service shop, labor union, classroom, company
engaged in the business of renting office or desk space, or for a public finance
(personal loan) business, or as a hiring employment agency, or as a stock
brokerage board room. No tenant shall engage or pay any employee on its
premises, except those actually working for such tenant on its premises, nor
advertise for laborers giving an address at the Building. No tenant shall use
its premises or any part thereof, or permit the Premises or any part thereof to
be used, as a restaurant, shop, booth or other stand, or for the conduct of any
business or occupation which predominantly involves direct patronage of the
general public, or for manufacturing, or for the sale at retail or auction of
merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or the use of
identifying sign by any tenant which, in the judgment of Landlord, tends to
impair the appearance or reputation of the Building or the desirability of the
*office space as part of a mixed use building, and upon written notice from
Landlord, such tenant shall refrain from and discontinue such advertising or
identifying sign.
15. Landlord reserves the right to exclude from the Building all employees
of any tenant who do not present a pass to the Building signed by such tenant.
Landlord or its agent will furnish passes to persons for whom any tenant
requests same in writing. Landlord reserves the right to require all other
persons entering the Building to sign a register, to be announced to the tenant
such person is visiting, and to be accepted as a visitor by such tenant or to be
otherwise properly identified (and, if not so accepted or identified, reserves
the right to exclude such persons from the Building) and to require persons
leaving the Building to sign a register or to surrender a pass given to such
person by the tenant visited. Each tenant shall be responsible for all persons
for whom it requests any such pass or any person who such tenant so accepts, and
such tenant shall be liable to Landlord for all acts or omissions of such
persons. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character, security,
reputation or interests of the Building or the tenants of the Building may be
denied access to the Building or may be ejected from the Building. In the event
of invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building during the continuance of the same by closing the
doors or otherwise, for the safety of tenants and the protection of property in
the Building.
16. Unless Landlord shall otherwise request in connection with Landlord's
rights under Section 24.05 of the Lease, each tenant, before closing and leaving
its premises at any time, shall see that all lights in its premises are turned
out. All entrance doors in its premises shall be kept locked by each tenant when
its premises are not in use. Entrance doors shall not be left open at any time.
17. Each tenant shall, at the expense of such tenant, provide light, power
and water for the employees of Landlord, and the agents, contractors and
employees of Landlord, while doing janitor service or other cleaning in such
tenant's premises and while making repairs or alterations in its premises.
18. No tenant shall use its premises for lodging or sleeping or for any
immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
21. The employees, agents, licensees and invitees of any tenant shall not
loiter around the Public Areas or the front, roof or any part of the Building
used in common by other occupants of the Building.
22. There shall not be used in any space, or in the Public Areas, either by
any tenant or by others, in the moving or delivery or receipt of safes, freight,
furniture, packages, boxes, crates, paper, office material or any other matter
or thing, any hand trucks except those equipped with rubber tires, side guards
and such other safeguards as Landlord shall require. No hand trucks shall be
used in passenger elevators.
23. No tenant shall cause or permit any odors of cooking or other
processes, or any unusual or objectionable odors, to emanate from its premises
which would annoy other tenants or create a public or private nuisance. No
tenant shall do, cause to be done or permit any cooking in its premises except
as is expressly permitted in the lease covering its premises of which these
Rules and Regulations are a part.
E-3
24. All paneling, doors, trim or other wood products not considered
furniture shall be of fire-retardant materials. Before installation of any
such materials, certification of the materials' fire-retardant characteristics
shall be submitted to and approved by Landlord, and installed in a manner
approved by Landlord.
25. Whenever any tenant shall submit to Landlord any plan, agreement or
other document for the consent or approval of Landlord, such tenant shall pay to
Landlord, on demand, a processing fee in the amount of the reasonable fees for
the review thereof, including the services of any architect, engineer or
attorney employed by Landlord to review such plan, agreement or document.
26. Landlord reserves the right to rescind, alter, waive or add, as to one
or more or all tenants, any rule or regulation at any time prescribed for the
Building when, in the judgement of Landlord, Landlord deems it necessary or
desirable for the reputation, safety, character, security, care, appearance or
interests of the Building, or the preservation of good order therein, or the
operation or maintenance of the Building, or the equipment thereof, or the
comfort of tenants or others in the Building. No rescission, alteration, waiver
or addition of any rule or regulation in respect of one tenant shall operate as
a rescission, alteration or waiver in respect of any other tenant.
E-4
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE AND AGREEMENT
(PREMISES, 000 XXXXX XXXXXX, XXX XXXX CITY)
TO: ("Mortgagee")
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee (the "Tenant") under that certain lease
(the "Lease") dated as specified in 10(a) below, by and between 000 XXXXX
XXXXXX ASSOCIATED, as Lessor (the "Landlord"), and the undersigned or the person
specified in 10(b) below, as Lessee, covering those certain premises commonly
known and designated as the floors or portions thereof specified in 10(c) below
(the "Premises"), at 000 Xxxxx Xxxxxx, in the Borough of Manhattan, City, County
and State of New York.
2. The Lease (i) constitutes the entire agreement between the undersigned
and the Landlord with respect to the Premises, (ii) has not been modified,
changed, altered or amended in any respect (except as indicated in 10(g) below)
and (iii) is the only Lease between the undersigned and the Landlord affecting
the Premises.
3. The undersigned has accepted and now occupies the entire premises
covered by the Lease, and all improvements required by the terms of the Lease to
by made by the Landlord have been completed to the satisfaction of the
undersigned.
4.(i) No party to the Lease is in default, (ii) the Lease is in full force
and effect, (iii) full rental is accruing thereunder and (iv) as of the date
hereof the undersigned has no charge, lien or claim of off-set (and no claim for
any credit or deduction) under the Lease or otherwise, against rents or other
charges due or to become due thereunder or on account of any prepayment of rent
more than one (1) month in advance of its due date.
5. Since the date of the Lease, to the best knowledge of the undersigned,
there has been no material adverse change in the financial condition of the
undersigned, and there are no actions, whether voluntary or otherwise, pending
against the undersigned under the bankruptcy, reorganization, arrangement,
moratorium or similar laws of the United States, any state thereof or any other
jurisdiction.
6. This certification is made to induce Mortgagee to consummate a mortgage
loan to be evidenced by a promissory note and secured by a mortgage on the land
and/or building containing the Premises and an assignment of the rents due under
the Lease, knowing that Mortgagee relies upon the truth of this certificate in
disbursing funds for such loan.
7. The undersigned, as Tenant under the Lease, acknowledges (i) that
Mortgagee will be the holder of the mortgage and assignment of rents referred to
in paragraph 6 this certificate, and (ii) that the name and address of the
Mortgagee is , Attention: , and
agrees that such Mortgagee and its successors, as holder ("Holder") of such note
and mortgage, shall be entitled to prompt notice of any default by the Landlord,
or any other landlord under the Lease, and shall have the rights of a mortgagee
under the provisions of the Lease. The undersigned understands that the
interest of the Landlord in the Lease has been assigned to the Holder for
application on account of the indebtedness secured by the mortgage as specified
in the assignment, and the Holder assumes no duty, liability or obligation
whatever under the Lease or any extension or renewal thereof.
8. The undersigned further agrees with each Holder that from and after the
date hereof the undersigned (i) will not pay any rent under the Lease more than
one (1) month in advance of its due date, (ii) will not surrender or consent to
the modification of any of the terms of the Lease or to the termination thereof
by the Landlord, (iii) will continue to pay rent under the Lease to the Landlord
in accordance with the terms of the Lease (unless and until notified otherwise
in writing by the Holder in case of an event of default under such mortgage, in
which event the undersigned will pay the rent due under the Lease directly to
the Holder or its designee) and (iv) will not seek to terminate the Lease or
claim partial or total eviction or seek or assert any set-off or counterclaim
against the rent or additional rent by reason of any act or omission of the
Landlord, until the undersigned shall have given written notice of such act or
omission to the Holder (at such Holder's last address as furnished the
undersigned) and until a reasonable period of time shall have elapsed following
the giving of such notice, during which period the Holder shall have the right,
but shall not be obliged, to remedy such act or omission. The agreement
contained in this paragraph 8 shall be of no effect in favor of a Holder unless
the undersigned is
F-1
furnished by such Holder or its predecessor in interest with notice of any
restrictive agreement made to it with reference to Section 29I-f of the New York
Real Property Law, and shall terminate as to that Holder or its successor upon
the subsequent termination of any such restrictive agreement. Any payments made
to the Holder by the Tenant shall not affect or impair the other rights and
remedies of the Holder under its mortgage or otherwise against the Landlord.
9. The undersigned understands that your closing is to be held on or
before 198 , and will advise you of any material changes in the information
herein occurring before that date.
10. (a) The date of the Lease is , 198 .
(b) The original Lessee of the Lease, if different from the
undersigned, was
(c) The premises covered by the Lease are
(d) The term of the Lease began (or is scheduled to begin) on
, 198 .
(e) The fixed rent for the Premises has been paid to and including
, 198 .
(f) The fixed rent being paid pursuant to the Lease is at the annual
rate of $ .
Such fixed annual rent, together with additional rent payable pursuant
to the Lease for the current year results in an aggregate annual rent of
$ .
(g) The following constitute the only modifications, changes,
alterations or amendments to the Lease:
Dated:_____________________________ ___________________________________
Tenant
By: _______________________________
(Title: ___________________________
(Signed on _________________, 198 )
F-2
THIRD AMENDMENT TO LEASE
AGREEMENT, dated as of August 7th, 1996 between 000 XXXXX XXXXXX
---
ASSOCIATES, a New York partnership, having an office at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and ASSESSMENT SYSTEMS, INC., a New York
corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
PROUDFOOT REPORTS, INC., a New York corporation, having an office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (collectively, "Tenant").
STATEMENT OF FACTS
------------------
By Lease dated January 27, 1984 as amended by that certain Amendment to
Lease and Extension Agreement dated as of August 31, 1993 and further amended by
that certain Second Amendment to Lease dated as of September 9, 1994 (the
"Lease"), Landlord leased to Assesment Systems, Inc. a portion of the
twenty-second (22nd) floor (the "Premises") in the building located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building"), as more particularly described in
the Lease. Landlord and Tenant now agree to change the location of the Premises
to the entire sixth (6th) floor of the Building and to extend the term of the
Lease, and to otherwise amend the Lease as hereinafter expressly provided.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the receipt and adequacy of which are hereby acknowledged, Landlord and Tenant
agree and covenant to the following:
1. Relocation of the Premises.
--------------------------
(a) The Commencement Date shall be the date hereof. Effective as of
the "Completion Date" as defined in Paragraph 1b, the term "Premises", as such
term is used in the Lease, shall mean the entire sixth (6th) floor of the
Building (the "6th Floor") and the Lease shall be amended by deleting the floor
plan set forth in Schedule B of the Lease, and by inserting in lieu thereof the
floor plan set forth in Exhibit A hereto.
(b) Tenant shall continue to occupy the 22nd floor of the Building
(the "22nd Floor") upon the same terms and conditions contained in the Lease and
at a Fixed Rent of $249,274.00 per annum ($20,772.83 per month) until the
earlier of November 1, 1996 or the date the construction of Improvements (as
defined in Section 6) is completed (the "Completion Date"). In the event the
construction of Improvements is not completed by November 1, 1996 due to the
delay on the part of the Landlord only, and not Tenant by reason of Tenant's
changes, modifications or revisions to the Plans attached hereto as Exhibit B,
Tenant shall continue to occupy the 22nd Floor until the date the Improvements
are completed and shall not be
required to pay rent on the 6th Floor. Tenant shall begin to pay rent for the
6th Floor as defined in Section 3A starting on the Completion Date. If the
Completion Date is prior to November 1, 1996, Tenant shall be permitted use and
enjoyment of the Premises rent free until November 1, 1996. In no event shall
Tenant be requested to pay rent for both the 22nd Floor and the 6th Floor
simultaneously. In the event the Improvements are not completed by January 1,
1997, Tenant shall have the right to cancel the Amendment, and the Lease will
remain in effect.
2. Term.
-----
Effective as of the Commencement Date, the term of the Lease shall be
extended for a period commencing on November 1, 2000 and ending on the day
immediately preceding the tenth (10th) anniversary of the Commencement Date (the
"Expiration Date"), both dates inclusive, upon all of the terms, covenants and
conditions contained in the Lease, except as otherwise herein provided.
3. Rent.
-----
Effective on and after the Commencement Date, Section 45.01 of the
Lease is hereby amended and restated in its entirety as follows:
"The Fixed Rent payable by Tenant pursuant to Section 3.01 A
shall be as follows: (a) annual fixed rent (such annual fixed
rent being referred to herein as `Fixed Rent') of:
(i) $406,800.00 ($33,900.00 per month) for the period commencing
on the Commencement Date and ending on the day immediately
preceding the fifth (5th) anniversary of the Commencement
Date, both dates inclusive;
(ii) $452,000.00 ($37,667.67 per month) for the period
commencing on the fifth (5th) anniversary of the
Commencement Date and ending on the Expiration Date, both
dates inclusive,
payable in equal monthly installments, in advance, on the first
(1st) day of each and every calendar month during the Term"
2
4. Rent Adjustments.
-----------------
Effective on and after the Commencement Date, Section 7.01 of the
Lease shall be amended as follows:
(a) The term Premises set forth in Section 7.01 A shall be amended by
deleting the number "7,023" and by inserting in lieu thereof the
number "11,300", and the term "Building Area" set forth in Section
7.01 B. shall be amended by deleting the number "473,018" and by
inserting in lieu thereof the number "470,000.";
(b) Tenant's Proportionate Share set forth in Section 7.01 C shall be
amended by deleting the number ".36%" and by inserting in lieu thereof
the number "2.4%";
(c) The Base Tax Factor set forth in Section 7.01 E shall be amended
by deleting the words "Taxes for the 1993/94 Tax Year" and by
inserting in lieu thereof the words "Taxes for the 1996/97 Tax Year";
(d) The Base Operating Factor set forth in Section 7.01 J shall be
amended by deleting the words "Landlord's actual Operating Expenses
for the 1994 calendar year" and by inserting in lieu thereof the words
"Landlord's actual Operating Expenses for the 1996 calendar year";
(e) Paragraph 5 of that certain Amendment to Lease and Extension
Agreement dated August 31, 1993 (the "First Amendment to Lease") shall
be deemed deleted from the Lease in its entirety and of no further
force and effect.
5. Electricity.
-----------
Effective on and after the Commencement Date, Section 13.01 of the Lease shall
be amended and restated in its entirety as follows:
"Section 13.01 Landlord has installed in the Building and the
Premises, such electrical risers, feeders and wiring as shall be
necessary to permit Tenant to receive electrical energy for (a)
Tenant's reasonable use of normal office equipment including, but not
limited to, small office computers, photocopying machine and water
fountain as Landlord may reasonably permit to be installed in the
Premises and (b) the operation of the heating, ventilating and air
conditioning system servicing the Premises. Tenant shall obtain and
pay for Tenant's entire separate supply of electric current (including
without limitation, the electric current consumed in connection with
the operation of said heating, ventilation and air conditioning
system) by
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direct application to an arrangement with the public utility company
servicing the Building. Landlord will permit the electrical risers,
feeders and wiring in the Building serving the Premises to be used by
Tenant for such purpose to the extent set forth in the first sentence
of this section."
6. Repairs.
--------
Landlord agrees to install and perform all maintenance on the Building
standard HVAC system throughout the term of the Lease.
7. Improvements.
-------------
The first sentence of Section 10.05 of the Lease shall be restated as
follows: "Only Landlord or any one or more persons approved or designated by
Landlord and approved by Tenant (such person being referred to in this Section
as `Designated Contractor') shall be permitted to act as contractor for any work
to be performed in accordance with this Article."
8. Construction Allowances.
------------------------
Landlord shall provide Tenant with a construction allowance to be
used for the construction of the Improvements set forth in the Plans attached
hereto as Exhibit B in accordance with Article 10. The amount of the allowance
(the "Allowance") shall be equal to the lesser of (i) $508,500.00 or (ii) the
total cost of the Improvements as evidenced by invoices therefor. Landlord shall
make direct payment of the Allowance to the contractors performing the
Improvements. Tenant shall be liable for all charges in excess of $508,500.00.
Landlord shall, at Tenant's expense (but Tenant may use part of the Allowance
towards this expense) be required to obtain all necessary governmental permits
and certificates for the commencement and prosecution of the Improvements and
should cause the Improvements to be made and installed in compliance therewith,
as well as with all applicable laws and requirements of public authorities and
all applicable insurance requirements, in a good and workmanlike manner using
materials and equipment as specified in the Plans attached hereto as Exhibit B.
4
9. Delivery of Possession.
-----------------------
Tenant acknowledges that it has made a full and complete inspection of
the Premises and is thoroughly familiar with the condition thereof, and Tenant
agrees to accept possession of the Premises in its then "as-is" condition after
Landlord has completed the Improvements set forth in Paragraph 7. If and when
Tenant shall take actual possession of the Premises, it shall be conclusively
presumed that the same are in satisfactory condition, except for any punch list
items.
10. Security Deposit.
-----------------
The security deposit shall increase from $34,166.66 to the lesser of
$508,500.00 or the cost of Improvements. The parties agree that the security
will be provided in the form of a Letter of Credit in substantially the same
form as the Letter of Credit currently held by Landlord and shall be delivered
to Landlord within 35 days from the date of this Agreement. Beginning August 1,
1999, the security deposit shall be reduced by one-half and then further reduced
in equal monthly installments each month for 24 months, until it is reduced to
$100,000 and thereafter shall remain at $100,000 for the remainder of the term
of the Lease. On the Commencement Date, Landlord shall return to Tenant the
existing security deposit of $34,166.66, by either a certified check or as a
credit towards the first month's rent for the Premises.
11. No Broker.
----------
Landlord and Tenant covenant, warrant and represent that there was no
broker or finder instrumental in consummating this Agreement and that no
negotiations were had with any broker or finder. Landlord and Tenant agree to
indemnify and to hold each other harmless from and against any claims or suits
for a brokerage commission or finder's fee arising out of any negotiations had
by Tenant or Landlord with any broker or finder.
12. The following Section 22.14 shall be added to the Lease:
"Section 22.14 Notwithstanding anything to the contrary contained in
Article 22, Tenant shall have the privilege, subject to the terms and
conditions hereinafter set forth, without the consent of Landlord, to
assign its interest in this lease (i) to a purchaser of all or
substantially all of Tenant's assets (provided such purchaser shall have
also assumed substantially all of Tenant's liabilities) or with whom Tenant
shall merge or consolidate, or (ii) to a corporation or partnership entity
or limited liability company which shall control, be under the control of,
or be under common control with, Tenant (the term "control" as
5
used herein shall be deemed to mean ownership of more than 50% of the
outstanding voting stock of a corporation, or other majority equity and
controlling interest if the assignee is not a corporation) (any such
purchaser or entity being a "Related Entity"). Tenant may, without consent
of Landlord, also sublease all or any portion of the Premises to any
corporation or other entity which is a Related Entity only for so long as
such corporation or other entity shall remain a Related Entity. Any
assignment or subletting described above may be made upon the condition
that (A) the principal purpose of such assignment or sublease is not the
acquisition of Tenant's interest in this Lease (except if such assignment
or sublease is made to a Related Entity and is made for valid business
purpose) and (B) no such assignment shall be valid unless Tenant shall,
within ten (10) business days after execution thereof, deliver to Landlord
(x) a duplicate original instrument of assignment in form and substance
reasonably satisfactory to Landlord, duly executed by the Tenant and (y) a
duplicate original instrument in form and substance reasonably satisfactory
to Landlord, duly executed by the assignee, in which such assignee shall
assume observance and performance of, and agree to be bound by, all of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed and (C) no such sublease shall be valid unless
Tenant shall, within ten (10) business days after the execution thereof,
deliver to landlord a duplicate original sublease in form and substance
reasonably satisfactory to Landlord, duly executed by Tenant and subtenant.
If at any time following such subletting to a Related Entity, such
subtenant shall cease to be a Related Entity, then Tenant shall not more
than three (3) business days after the date such subtenant shall cease to
be a Related Entity, deliver to Landlord a duplicate original instrument or
assignment and assumption in form and substance reasonably satisfactory to
Landlord duly executed by such subtenant and Tenant whereby the subtenant
shall assign this Lease and all right such subtenant many have hereunder to
Tenant."
13. Miscellaneous.
--------------
A. Tenant acknowledges and agrees that notwithstanding any prior
agreements between Landlord and Tenant, the Lease, as modified by this
Agreement, constitutes the entire agreement and understanding between the
parties with respect to the subject matter hereof.
6
B. Except as expressly provided herein, all of the terms, covenants
and conditions of the Lease shall remain and continue unmodified, in full force
and effect and binding upon the parties hereto, their successors, heirs,
administrators, and executors snd, except as be otherwise expressly provided in
the Lease, their permitted assigns.
IN WITNESS WHEREOF Landlord and Tenant have executed this Third Amendment
to Lease as of the date first above written.
000 XXXXX XXXXXX ASSOCIATES
By: Jaymont Properties, Inc.,
its managing agent
/s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
ASSESSMENT SYSTEMS, INCORPORATED
/s/ XXXXXXX XXXXXXXX
By: -------------------------------
Name: XXXXXXX XXXXXXXX
Title: PRESIDENT
PROUDFOOT REPORTS, INCORPORATED
By: ___________________________
Name:
Title:
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[FLOORING DEPICTING FLOOR REFERENCED 000 XXXXX XXXXXX]
[FLOORING DEPICTING FLOOR REFERENCED 000 XXXXX XXXXXX]
