Exhibit 10.2
__________________________________________________
FIFTH AVENUE BUILDING COMPANY LLC
Landlord,
XXXX XXXXXXX AUCTIONS, INC.
Tenant.
__________________________________________________
__________
LEASE
__________
Premises: Part of the 27th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
-----------------
ARTICLE PAGE
------- ----
1. Premises; Term.................................................1
2. Commencement of Term...........................................1
3. Rent...........................................................2
4. Use............................................................3
5. Alterations, Fixtures..........................................5
6. Repairs........................................................8
7. Floor Load; Noise..............................................9
8. Laws, Ordinances, Requirements of Public Authorities...........9
9. Insurance.....................................................11
10. Damage by Fire or Other Cause.................................13
11. Assignment, Subletting, Mortgaging............................14
12. Liability of Landlord and Indemnity by Tenant.................20
13. Moving of Heavy Equipment.....................................23
14. Condemnation..................................................23
15. Entry, Right to Change Public Portions of the Building........24
16. Conditional Limitations, Etc..................................25
17. Mechanic's Liens..............................................29
18. Landlord's Right to Perform Tenant's Obligations..............30
19. Covenant of Quiet Enjoyment...................................30
20. Excavation....................................................30
21. Services and Equipment........................................31
22. Escalation....................................................34
23. Electricity...................................................40
24. Broker........................................................43
25. Subordination and Ground Lease................................43
26. Estoppel Certificate..........................................45
27. Waiver of Jury Trial..........................................46
28. Surrender of Premises.........................................46
29. Rules and Regulations.........................................47
30. Successors and Assigns and Definitions........................47
31. Notices.......................................................48
32. No Waiver; Entire Agreement...................................48
33. Captions......................................................50
34. Inability to Perform..........................................50
35. No Representations by Landlord................................50
36. Security Deposit..............................................51
37. Late Payment Charge...........................................53
38. Rent Control..................................................54
39. Supplemental Air Conditioning.................................54
40. Landlord's Reimbursement Contribution.........................55
ii
TABLE OF CONTENTS, cont.
------------------------
ARTICLE PAGE
------- ----
Testimonium and Signatures.....................................56
Acknowledgments ...............................................57
Schedule A Floor Plan.....................................58
Schedule B Description of Land ...........................59
Schedule C Rules and Regulations..........................60
Schedule D Cleaning Specifications........................65
Schedule E Definitions....................................67
iii
INDENTURE OF LEASE made as of this 27th day of September, 2005,
between FIFTH AVENUE BUILDING COMPANY LLC, a New York limited liability company,
having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord")
and, XXXX XXXXXXX AUCTIONS, INC., a Delaware corporation having an office at 000
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
W I T N E S S E T H :
ARTICLE 1
Premises; Term
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the following space ("Demised Premises"): part of the 27th floor as
shown crosshatched on the floor plan (Schedule A) attached hereto, in the office
building known as and by the street number 000 Xxxxx Xxxxxx, in the Borough of
Manhattan, City and State of New York ("Building"), located on the land ("Land")
more particularly described in Schedule B attached hereto, upon and subject to
the terms, covenants and conditions hereafter set forth.
TO HAVE AND TO HOLD the Demised Premises unto Tenant for a term
commencing on October 1, 2005 (the "Commencement Date") and ending on September
30, 2015 (the "Expiration Date"), or on such earlier date upon which said term
may expire or terminate pursuant to the conditions of this Lease or pursuant to
law.
IT IS MUTUALLY COVENANTED AND AGREED between Landlord and Tenant as
follows:
ARTICLE 2
Commencement of Term
Section 2.01. The term of this Lease and the payment of minimum rent
hereunder shall commence on the Commencement Date. Landlord shall deliver
possession of the Demised Premises on or before the Commencement Date. Landlord
shall have no obligation to perform any work in connection with preparing the
Demised Premises for Tenant's occupancy. Promptly following the date hereof,
Landlord, at its expense, shall perform the following work: (i) install
appliances (items to be furnished by Tenant at its expense), (ii) furnish and
install building standard window treatment, (iii) furnish and install building
standard sink, and (iv) furnish and install remaining doors as shown on prebuilt
plan. If all of such work has not been substantially completed within
1
forty-five (45) days following the date hereof, then Tenant shall be entitled to
an additional abatement of the minimum rent equal to one (1) day for each one
(1) business day thereafter until such work has been substantially completed.
Landlord's work shall be deemed to be substantially completed where all of
Landlord's work, except for minor details or adjustments, none of which
materially interfere with Tenant's use of the Demised Premises, have been
completed.
Section 2.02. Tenant has fully inspected the Demised Premises, is
familiar with the condition thereof and agrees to accept possession of the same
on the Commencement Date in its then "As Is" condition, except for the
substantial completion of Landlord's work as set forth in Section 2.01.
Section 2.03. If, prior to the Commencement Date, subject to
Landlord's consent, Tenant shall enter the Demised Premises to make any
installations, Landlord shall have no liability or obligation for the care or
preservation of Tenant's property, except if due to the negligence of Landlord,
its agents, contractors, invitees and employees.
Section 2.04. Promptly after the Commencement Date upon the request
of Landlord, Landlord and Tenant shall execute a statement confirming the agreed
upon Commencement and Expiration Dates of this Lease, in accordance with the
foregoing provisions.
ARTICLE 3
Rent
Section 3.01. Tenant shall pay as rent for the Demised Premises, the
following:
(a) a fixed minimum rent (the "minimum rent") at the following
annual rates:
(i) $396,912.50 per annum (or $33,076.04 per month)
for the first five (5) years and six (6) months following the
Commencement Date, provided if the Commencement Date is not the
first day of a month, then the minimum rent for such month shall
be prorated; and
(ii) $425,162.50 per annum (or $35,430.21 per month)
for the remainder of the term; and
(b) all other sums and charges required to be paid by Tenant
to Landlord under the terms of this Lease (including without limitation,
the payments required to be made under Article 22), which shall be deemed
to be and are sometimes referred to hereafter as additional rent.
2
Section 3.02. Notwithstanding the provisions of Section 3.01 hereof
and provided Tenant is not then in default under any of the provisions of this
Lease on its part to be performed, Tenant shall be entitled to an abatement of
part of the minimum rent only in the amount of $31,545.83 for each of the 1st,
2nd, 3rd, 4th, 17th and 18th months of the term succeeding the Commencement
Date, provided the balance of minimum rent in the amount of $1,530.21 for each
such months shall be paid by Tenant. Tenant shall be required to pay additional
rent from and after the Commencement Date.
Section 3.03. Subject to Section 3.02, the minimum rent shall be
payable in equal monthly installments not more than one month in advance on the
first day of each and every month during the term of this Lease, except that the
amount of $33,076.04 shall be paid upon the execution of this Lease and applied
to the payment of minimum rent for the 5th month of the term following the
Commencement Date.
Landlord and Tenant agree that Tenant shall pay minimum rent,
additional rent and other amounts now due or hereafter to become due to the
Landlord or its agents as provided for in this Lease, (as and when due) directly
to the following lock-box account:
Fifth Avenue Building Company LLC
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxx 00000-0000
All rent checks shall be made payable to Fifth Avenue Building Company LLC.
Section 3.04. Tenant shall pay the minimum rent and additional rent
in lawful money of the United States which shall be legal tender for the payment
of all debts, public and private, at the time of payment.
Section 3.05. The minimum rent and additional rent shall be payable
by Tenant without any set-off, abatement or deduction whatsoever and without
notice or demand, except as otherwise expressly provided herein.
ARTICLE 4
Use
Section 4.01. Tenant shall use and occupy the Demised Premises only
for administrative, executive and/or general office purposes and any uses
ancillary thereto.
Section 4.02. Notwithstanding the provisions of Section 4.01, Tenant
shall not use or allow the use of the Demised Premises or any part thereof (1)
for the cooking and/or sale of food, provided that Tenant may have a pantry,
including a microwave oven to warm food for consumption by Tenant's employees
and guests; (2) for storage for sale of any
3
alcoholic beverage in the Demised Premises; (3) for the sale of any product or
material from the Demised Premises; (4) for manufacturing or printing purposes;
(5) for the conduct of a school or training facility or similar type of business
which results in the presence of the general public in the Demised Premises; (6)
for the conduct of the business of an employment agency or personnel agency; (7)
for the conduct of any public auction or public exhibition; (8) for occupancy by
a foreign, United States, state, municipal or other governmental or
quasi-governmental body, agency or department or any authority or other entity
which is affiliated therewith or controlled thereby and which has diplomatic or
sovereign immunity or the like with respect to a commercial lease; (9) for
messenger or delivery service (excluding Tenant's own employees or outside
services); (10) as a public stenographer or typist; (11) as a telephone or
telegraph agency; (12) as a company engaged in the business of renting office(s)
or desk space in the Demised Premises; (13) as medical offices or a laboratory;
(14) as a travel agency; (15) as a dating service; (16) as a restaurant; (17) as
a night club, discotheque, arcade or like kind establishments; (18) as a public
or quasi-public health facility, radiation treatment facility, methadone clinic
or other drug related clinic, abortion clinic, or for any practice conducted in
or through the format of a clinic; (19) as a pawn shop; (20) as an off-track
betting parlor; (21) as a homeless shelter, soup kitchen or similar use; (22)
for the sale or display or pornographic products or services; (23) for the use
or storage of flammable liquids or chemicals (unless incidental to a permitted
use); (24) as a funeral parlor; (25) for the sale or grooming of pets; or (26)
for any form of spiritualist services, such a fortune telling or reading.
Furthermore, the Demised Premises shall not be used for any purpose that would
create unreasonable or excessive elevator or floor loads, impair or interfere
with any of the Building operations or the proper and economic heating,
air-conditioning, cleaning or any other services of the Building, interfere with
the use of the other areas of the Building by any other tenants, or impair the
appearance of the Building. Neither Tenant nor any person within Tenant's
control shall use, generate, store, treat and/or dispose of any Hazardous
Materials (as hereinafter defined) in, on, under or about the Demised Premises,
except in compliance with applicable Governmental Requirements (as hereinafter
defined).
Section 4.03. If any governmental license or permit, other than a
Certificate of Occupancy, is required for the proper and lawful conduct of
Tenant's business in the Demised Premises, or any part thereof, and if failure
to secure such license or permit would in any way materially adversely affect
Landlord, Tenant, at its expense, shall duly procure and thereafter maintain
such license or permit and submit the same for inspection by Landlord. Tenant
shall at all times comply with the terms and conditions of each such license or
permit.
Section 4.04. Tenant shall not at any time use or occupy, or
knowingly permit anyone to use or occupy, the Demised Premises, or do or
knowingly permit anything to be done in the Demised Premises, in violation of
the Certificate of Occupancy, for the Demised Premises or for the Building, and
will not knowingly permit or cause any act to be done or any condition to exist
on the Demised Premises which may be dangerous unless safeguarded as required by
law, or which in law constitutes a nuisance, public or private, or
4
which may make void or voidable any insurance then in force covering the
Building and building equipment.
ARTICLE 5
Alterations, Fixtures
Section 5.01. (a) Except as provided in this Lease, Tenant, without
Landlord's prior consent, shall make no structural and mechanical alterations,
installations, additions or improvements in or to the Demised Premises ("work")
including, but not limited to, an air-conditioning or cooling system, or any
unit or part thereof or other apparatus of like or other nature, railings,
mezzanine floors and the like. However, subject to Landlord's consent which
shall not be unreasonably withheld or delayed, which consent shall be deemed
given if no response to a request therefor is given by Landlord to Tenant within
fifteen (15) days after the date of Landlord's receipt thereof, Tenant may make
non-structural interior work which does not adversely affect the Building
systems. If any contractor, other than Landlord, shall perform work, such
contractor shall first be approved by Landlord and as a condition of such
approval Tenant shall pay to Landlord seven (7%) percent of the cost of such
work for supervision, coordination and other expenses incurred by Landlord in
connection therewith. However, such seven (7%) percent charge shall not apply to
Tenant's initial work in the Demised Premises as shown on Tenant's plans
referred to in Article 40 and the work in the hallway referred to in subdivision
(b) below. Such seven (7%) percent charge shall also not apply to painting,
carpeting, furnishings and wall covering. If Landlord fails to respond to
Tenant's request for approval of contractors within ten (10) business days
following receipt of such request, the same shall be deemed approved. In
connection with any request by Tenant of Landlord that Landlord approve a
contractor or subcontractors, Tenant shall cause the proposed contractor or
subcontractor to complete and submit to Landlord such reasonable questionnaire,
if any, as Landlord shall require as part of Landlord's contractor integrity
program. Thereafter, Tenant agrees to cooperate with Landlord in connection with
the implementation of such program and to cause its contractors to comply
therewith. During the term of this Lease, Landlord may elect to pursue work in
the Building under the provisions of the ICIP Program (as hereinafter defined).
Tenant acknowledges that the ICIP Program may impose requirements with respect
to the hiring and training practices, among other matters, of contractors and
subcontractors engaged to perform certain work in the Building for Tenant
(collectively, herein called "Tenant's Contractors"). Tenant shall use Tenant's
Contractors (subject to Landlord's approvals) that qualify under the applicable
requirements of the ICIP Program for the performance of Tenant's work and any
alterations to the Demised Premises and Tenant will require Tenant's Contractors
to comply with the provisions of the ICIP Program. If Landlord is notified of
any violation of the ICIP Program by Tenant's Contractors, Landlord shall
promptly advise Tenant, and Tenant shall take all necessary actions to cure such
violations. Workers' compensation and commercial general liability insurance
covering claims for personal injury, death, bodily injury and property damage
insurance, all in amounts and with companies and/or forms in accordance with
Article 9 hereof, shall be provided and at all times maintained by Tenant's
contractors engaged in
5
the performance of the work, and before proceeding with the work, certificates
of such insurance shall be furnished to Landlord. If consented to by Landlord,
all such work shall be done at Tenant's sole expense and in full compliance with
all Governmental Requirements (as hereinafter defined). Upon completion of such
work, Tenant shall deliver to Landlord full scale "as built" or marked plans for
the same in both paper and electronic formats. All work affixed to the realty
shall become the property of Landlord, subject to Tenant's right to replace same
during the term hereof with items of equal quality and value, and shall remain
upon, and be surrendered with, the Demised Premises as a part thereof at the end
of the term or any renewal or extension term, as the case may be, without
allowance to Tenant or charge to Landlord, unless Landlord, with respect to work
which is not standard office installation and which is unusually difficult and
costly to remove such as bathrooms and other structural and/or extraordinary
installations, elects otherwise on notice to Tenant given at the time Landlord
has consented to the work. However, if Landlord shall so elect otherwise, Tenant
at Tenant's expense, at or prior to any termination of this Lease, shall remove
all such work or such portion thereof as Landlord shall elect and Tenant shall
restore the Demised Premises to its original condition, reasonable wear and tear
excepted, at Tenant's expense. Notwithstanding the foregoing, Tenant, at its
expense, shall cause all wiring and cabling installed in the Demised Premises by
Tenant's contractor to be removed on or before the Expiration Date of this Lease
and shall repair any damage to the Demised Premises caused by such removal.
However, if Landlord enters into a lease for the Demised Premises with another
tenant prior to the Expiration Date of this Lease, which requires Landlord to
demolish the existing improvements therein, then Tenant shall not be required to
remove such cabling and wiring. If any Building facilities or services,
including but not limited to air-conditioning and ventilating equipment
installed by Landlord, are adversely affected or damaged solely by reason of the
work by Tenant, Tenant, at its expense, shall repair such damage to the extent
such damage has been caused by Tenant's work and shall correct the work so as to
prevent any further damage or adverse effect on such facilities or services.
(b) Subject to the provisions of Sections 5.01(a) and 5.02, Tenant,
at its cost, may cosmetically refurbish the common area hallway on the 27th
floor, but not the elevator landing area, subject to Landlord's approval of the
aesthetic design as shown on Tenant's plans for such work. Tenant shall
indemnify and hold Landlord harmless with respect to any reasonable out of
pocket costs, claims, damages or expenses, including reasonable attorneys' fees,
with respect to such work.
Section 5.02. Prior to commencing any work pursuant to the
provisions of Section 5.01, Tenant shall furnish to Landlord:
(a) Plans and specifications for the work to be done in both
paper and electronic formats.
(b) Copies of all governmental permits and authorizations
which may be required in connection with such work. Landlord, without
cost to Landlord, shall cooperate with Tenant to obtain same.
6
(c) A certificate evidencing that Tenant (or Tenant's
contractor) has procured workers' compensation insurance covering all
persons employed in connection with the work who might assert claims for
death or bodily injury against Landlord, Tenant, any mortgagee or the
Building.
(d) Such additional personal injury and property damage
insurance (over and above the insurance required to be carried by Tenant
pursuant to the provisions of Section 9.03) as Landlord may reasonably
require because of the nature of the work to be done by Tenant.
(e) Except with respect to Tenant's initial work or for work
thereafter costing less than $100,000.00, a bond or other security
satisfactory to Landlord, in the amount of one hundred ten (110%) percent
of the aggregate cost of the work, to insure completion of such work.
Section 5.03. No approval of plans or specifications by Landlord or
consent by Landlord allowing Tenant to perform work in the Demised Premises
shall be deemed to be an agreement by Landlord that the contemplated work
complies with any Governmental Requirements or insurance requirements or the
certificate of occupancy for the Building nor a determination or representation
by Landlord that the contemplated work will be functional or operational in the
Demised Premises nor shall it be deemed to be a waiver by Landlord of the
compliance by Tenant of any of the terms of this Lease, other than the need to
obtain Landlord's consent. Neither Landlord, Landlord's agents nor the mortgagee
shall be liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and no mechanic's or other lien for such labor or materials
shall attach to or affect any estate or interest of Landlord or the mortgagee in
and to the Demised Premises or the Building Project.
Section 5.04. All movable property, furniture, furnishings, roller
files, equipment and trade fixtures ("personalty") other than those affixed to
the realty shall remain the property of and shall be removed by Tenant on or
prior to any termination or expiration of this Lease, and, in the case of damage
by reason of such removal, Tenant, at Tenant's expense, promptly shall repair
the damage. If Tenant does not remove any such personalty, Landlord, at its
election, (a) may cause the personalty to be removed and placed in storage at
Tenant's expense or (b) may treat the personalty as abandoned and may dispose of
the personalty as it sees fit without accounting to Tenant for any proceeds
realized upon such disposal.
Section 5.05. Tenant agrees that the exercise of its rights pursuant
to the provisions of this Article 5 shall not be done in a manner which would
create any work stoppage, picketing, labor disruption or dispute or violate
Landlord's union contracts affecting the Building or materially interfere with
the business of Landlord or any Tenant or occupant of the Building. In the event
of the occurrence of any condition described above arising from the exercise by
Tenant of its right pursuant to the provisions of this Article 5,
7
Tenant shall, immediately upon notice from Landlord, cease the manner of
exercise of such right giving rise to such condition. In the event Tenant fails
to cease such manner of exercise of its rights as aforesaid, Landlord, in
addition to any rights available to it under this Lease and pursuant to law,
shall have the right to injunction. With respect to Tenant's work, Tenant shall
make all arrangements for, and pay all expenses incurred in connection with, use
of the freight elevators servicing the Demised Premises during those hours other
than as provided in Section 21.01(a) in accordance with Landlord's customary
charges therefor. Notwithstanding the foregoing, Tenant shall be entitled to use
the freight elevators, without charge, for twelve (12) non-business hours in the
aggregate during the term of this Lease.
ARTICLE 6
Repairs
Section 6.01. Tenant shall take good care of the Demised Premises
and the fixtures therein and all portions of the HVAC, mechanical, plumbing and
electrical systems within and exclusively serving the Demised Premises, and at
its sole cost and expense make all repairs thereto as and when needed to
preserve them in good working order and condition, except to the extent such
repairs are needed as a result of Landlord's misuse or negligence. All damage or
injury to the Demised Premises or the Building or to any building equipment or
systems caused by Tenant moving property in or out of the Building or by
installation or removal of personalty or resulting from negligence or conduct of
Tenant, its employees, agents, contractors, customers, invitees and visitors,
shall be repaired, promptly by Tenant at Tenant's expense, and whether or not
involving structural changes or alterations, to the satisfaction of Landlord.
All repairs shall include replacements or substitutions where necessary and
shall be at least equal to the quality, class and value of the property
repaired, replaced or substituted and shall be done in a good and workmanlike
manner.
Section 6.02. Landlord, at its expense, shall maintain and make all
repairs and replacements, structural and otherwise, to the exterior and public
portions of the Building, to the sidewalks, to the common areas, to the Building
fixtures and equipment and to the Demised Premises, unless Tenant is required to
make them under the provisions of Section 6.01 or unless required as a result of
the performance or existence of alterations performed by Tenant or on Tenant's
behalf, in which event Tenant, at its expense, shall perform such maintenance,
repairs or replacements. Tenant shall notify Landlord of the necessity for any
repairs for which Landlord may be responsible in the Demised Premises under the
provisions of this Section after learning of same, and Landlord shall make such
repairs promptly. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Demised Premises, or in or to the fixtures, equipment or appurtenances of
the Building or the
8
Demised Premises. However, Landlord shall use reasonable efforts to make such
repairs or changes in an manner that minimizes interference with the normal
conduct of Tenant's business, provided Landlord shall not be required to employ
overtime or premium labor. All repairs shall include replacements or
substitutions where necessary and shall be at least equal to the quality and
value of the property repaired, replaced or substituted and shall be done in a
good and workmanlike manner.
Section 6.03. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk abutting the Building.
ARTICLE 7
Floor Load; Noise
Section 7.01. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor was
designed to carry (50 lbs. live per square foot) and which is allowed by law.
Section 7.02. Business machines and mechanical equipment belonging
to Tenant which cause noise, vibration or any other nuisance that may be
transmitted to the structure or other portions of the Building or to the Demised
Premises, to such a degree as to unreasonably interfere with the use or
enjoyment by other tenants of their premises or the public portions of the
Building, shall be placed and maintained by Tenant, at Tenant's expense, in
settings of cork, rubber or spring type vibration eliminators sufficient to
eliminate such objectionable or interfering noise or vibration.
ARTICLE 8
Laws, Ordinances, Requirements of Public Authorities
Section 8.01. (a) Tenant, at its expense, shall comply with all
laws, orders, ordinances, rules and regulations and directions of Federal,
State, County and Municipal authorities and departments thereof having
jurisdiction over the Demised Premises and the Building, now or hereafter in
effect including but not limited to the Americans With Disabilities Act
(collectively "Governmental Requirements"), referable to Tenant or the Demised
Premises, arising solely by reason of Tenant's particular manner of use of the
Demised Premises or any installations made therein by or at Tenant's request, or
any default by Tenant under this Lease.
(b) Tenant covenants and agrees that Tenant shall, at Tenant's
sole cost and expense, comply at all times with all Governmental
Requirements governing the use, generation, storage, treatment and/or
9
disposal in the Demised Premises of any "Hazardous Materials" (which term
shall mean any biologically or chemically active or other toxic or
hazardous wastes, pollutants or substances, including, without
limitation, asbestos, PCBs, petroleum products and by-products,
substances defined or listed as "hazardous substances" or "toxic
substances" or similarly identified in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss.
9601 et seq., and as hazardous wastes under the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6010 et seq., any chemical substance or
mixture regulated under the Toxic Substance Control Act of 1976, as
amended, 15 U.S.C. ss. 2601 et seq., any "toxic pollutant" under the
Clean Water Act, 33 U.S.C. ss. 466 et seq., as amended, any hazardous air
pollutant under the Clean Air Act, 42 U.S.C. ss. 7401 et seq., hazardous
materials identified in or pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1802 et seq., and any hazardous or
toxic substances or pollutant regulated under any other Governmental
Requirements). Tenant shall agree to execute, from time to time, at
Landlord's request, affidavits, representations and the like concerning
Tenant's best knowledge and belief regarding the presence of Hazardous
Materials in, on, under or about the Demised Premises, the Building or
the Land. Tenant shall indemnify and hold harmless Landlord, its
partners, officers, shareholders, members, directors and employees, the
lessor under the Saks Lease (as hereinafter defined) and any mortgagee
(collectively, the "Indemnitees"), from and against any loss, cost,
damage, liability or expense (including attorneys' fees and
disbursements) arising by reason of any cleanup, removal, remediation,
detoxification action or any other activity required or recommended of
any Indemnitees by any government authority by reason of the presence in
the Demised Premises of any hereafter occurring Hazardous Materials, as a
result of or in connection with the act or omission of Tenant or any
person or entity within Tenant's control. The foregoing covenants and
indemnity shall survive the expiration of any termination of this Lease.
(c) Landlord, at its expense, shall comply with and cure all
Governmental Requirements relating to the Building for which Tenant is
not responsible under the provisions of subdivision (a) of this Section.
Landlord, at its expense, may contest the validity of any Governmental
Requirements and postpone compliance therewith pending such contest,
provided the same does not materially adversely affect Tenant's ability
to use and occupy the Demised Premises for the conduct of Tenant's
business and in accordance with this Lease. The foregoing covenants and
indemnity shall survive the expiration of any termination of this Lease.
Section 8.02. If Tenant receives written notice of any violation of
any Governmental Requirements applicable to the Demised Premises, it shall give
prompt notice thereof to Landlord.
10
Section 8.03. Tenant will not clean, nor allow any window in the
Demised Premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or the rules of the Board of Standards and Appeals or of any other
board or body having or asserting jurisdiction.
ARTICLE 9
Insurance
Section 9.01. Tenant shall not do or knowingly permit to be done any
act or thing in or upon the Demised Premises which will invalidate or be in
conflict with the Certificate of Occupancy for the Building or the terms of the
insurance policies covering the Building and the property and equipment therein;
and Tenant, at its expense, shall comply with all rules, orders, regulations and
requirements of the New York Board of Fire Underwriters or any other similar
body having jurisdiction, and of the insurance carriers, and shall not knowingly
do or permit anything to be done in or upon the Demised Premises in a manner
which increases the rate of insurance for the Building or any property or
equipment therein over the rate in effect on the Commencement Date.
Section 9.02. If, solely by reason of Tenant's failure to comply
with the provisions of Section 9.01 or any of the other provisions of this
Lease, the rate of insurance for the Building or the property and equipment of
Landlord shall be higher than it would otherwise be, Tenant shall pay to
Landlord any additional or increased insurance premiums to the extent resulting
therefrom thereafter paid by Landlord, and Tenant shall make such payment
forthwith within twenty (20) days after demand of Landlord. In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or "make up" of
any insurance rate for the Building or Demised Premises issued by the New York
Fire Insurance Exchange, or other body establishing fire insurance rates for the
Building, shall be presumptive evidence of the facts therein stated and of the
several items and charges in the insurance rates then applicable to the Building
or Demised Premises.
Section 9.03. (a) Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof, the following
insurance coverage:
(i) For the benefit of Landlord, Tenant and any mortgagee, a
commercial general liability policy naming Landlord (and Landlord's
designees) and any mortgagee whose name and address has been
supplied to Tenant as additional insureds, protecting and
indemnifying Landlord, Tenant and any mortgagee against any and all
claims for personal injury, death, bodily injury or property damage
occurring upon, in or about the Demised Premises, and the
11
public portions of the Building in connection with any act of
Tenant, its employees, agents, contractors, customers, invitees and
visitors including, without limitation, personal injury, death,
bodily injury or property damage resulting from any work performed
by or on behalf of Tenant, with coverage of not less than
$3,000,000.00, combined single limit for personal injury, death and
property damage arising out of one occurrence or accident.
(ii) All risk property insurance utilizing the special form
in an amount adequate to cover the cost of replacement of all
personal property, fixtures, furnishings and equipment, including
Landlord's work (as referred to on Schedule F) and Tenant's work (as
referred to in Section 5.01), located in the Demised Premises.
(iii) Workers' compensation insurance in such limits as
required by applicable Governmental Requirements.
(iv) Business interruption insurance covering those risks
referred to in subdivision (ii) above, in the amount equal to all
rents payable under this Lease for a period of twelve (12) months,
commencing with the date of loss.
(b) All such insurance shall (i) be effected under valid and
enforceable policies, (ii) be issued by insurers of recognized
responsibility authorized to do business in the State of New York, (iii)
contain a provision whereby the insurer agrees not to cancel the
insurance without ten (10) days' prior written notice to Landlord, (iv)
contain a provision that no act or omission of Tenant shall result in
forfeiture of the insurance as against Landlord, (v) be in form
reasonably acceptable to Landlord, (vi) be primary and not contribute
with any insurance carried by Landlord, and (vii) be placed with insurers
carrying a Bests rating of at least A-VIII.
On or before the Commencement Date, Tenant shall deliver to Landlord
duplicate originals of the aforesaid policies or certificates evidencing the
aforesaid insurance coverage, such certificates to contain an endorsement naming
Landlord (and Landlord's designees of whose identities Tenant has received
notice) as additional insureds for liability insurance, and renewal policies or
certificates shall be delivered to Landlord at least ten (10) days prior to the
expiration date of each policy with proof of payment of the premiums therefor.
Section 9.04. Landlord shall keep in force during the term hereof,
all risk property insurance coverage for the Building and improvements, insured
against damage by fire, vandalism and other perils, in the amount required by
the mortgage.
12
Section 9.05. Landlord and Tenant shall each secure an appropriate
clause in, or an endorsement upon, each all risk property insurance policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge, then, the party benefitting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.05, and
insofar as may be permitted by the terms of the insurance policies carried by
it, (i) each party hereby releases the other with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damages or destruction with respect to its property by
fire or other casualty (including rental value or business interruption, as the
case may be) occurring during the term of this Lease and (ii) Tenant releases
other tenants but only to the extent that the policies of such other tenants
permit a similar waiver for the benefit of Tenant and such other tenant gives
such a waiver.
ARTICLE 10
Damage by Fire or Other Cause
Section 10.01. If the Demised Premises, including, without
limitation, access to the Demised Premises and any part of the Building that
provides essential services to the Demised Premises shall be damaged by fire or
other casualty in whole or in part, the damage shall be repaired by and at the
expense of Landlord and the minimum rent and additional rent pursuant to the
provisions of Article 22 until such repairs shall be made, shall be apportioned
according to the part of the Demised Premises which is usable by Tenant.
Landlord shall have no responsibility to repair any damage to Tenant's work (as
referred to in Section 5.01), the same being the responsibility of Tenant. No
penalty shall accrue for delays which may arise by reason of adjustment of
insurance by Landlord, unavoidable delays (as hereinafter defined), or any other
cause beyond Landlord's reasonable control. Tenant shall give notice to Landlord
promptly upon learning thereof in case of fire or other damage to the Demised
Premises. If the Building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it (whether or not the Demised Premises shall have
been damaged), Landlord at its election may terminate this Lease by written
notice to Tenant, within sixty (60) days after such fire or other casualty,
13
and thereupon the term of this Lease shall expire by lapse of time upon the
third (3rd) day after such notice is given, and Tenant shall vacate and
surrender the Demised Premises to Landlord. Tenant shall not be liable under
this Lease for anything accruing after the date of such expiration. However, if
more than twenty-five (25%) percent of the rentable square feet of the Demised
Premises shall be damaged during the last two (2) years of the term hereof,
either Landlord or Tenant, at its election, may terminate this Lease by written
notice to the other within sixty (60) days after such fire or other casualty,
and thereupon this Lease shall end upon the third (3rd) day after such notice is
given, and Tenant shall vacate and surrender the Demised Premises to Landlord.
Notwithstanding the foregoing provisions of this Section 10.01, within sixty
(60) days after such casualty, Landlord shall provide Tenant with an estimate as
to the time reasonably required to repair such damage. If such period exceeds
nine (9) months from the date of such casualty, Tenant may elect to terminate
this Lease by notice to Landlord not later than ten (10) days following Tenant's
receipt of such estimate, and thereupon the term of this Lease shall expire on
the thirtieth (30th) day after Tenant's notice is given, and Tenant shall vacate
and surrender the Demised Premises to Landlord. If the time period set forth in
said estimate exceeds nine (9) months and Tenant has not terminated this Lease
and if Landlord does not substantially complete such repairs within the time
period set forth in such estimate, then Tenant may elect to terminate this Lease
by notice to Landlord within ten (10) days following the expiration of such time
period, and thereupon the term of this Lease shall expire on the thirtieth
(30th) day after such notice is given, and Tenant shall vacate and surrender the
Demised Premises to Landlord, unless within such thirty (30) day period,
Landlord substantially completes such restoration or rebuilding in which event
this Lease shall remain in full force and effect. Tenant hereby waives the
provisions of Section 227 of the Real Property Law, and the provisions of this
Article shall govern and control in lieu thereof. If Landlord exercises its
option to cancel, Landlord must also cancel all other similarly affected tenant
leases in the Building, where Landlord has the right to do so.
Section 10.02. No damages or compensation shall be payable by
Landlord nor shall Tenant make any claim for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Demised
Premises or of the Building. Landlord shall use its best efforts to commence and
effect such repairs promptly and diligently, and in such manner as not to
unreasonably interfere with Tenant's occupancy so as to restore the damaged
property to substantially the same condition as existed before the casualty or
damage.
ARTICLE 11
Assignment, Subletting, Mortgaging
Section 11.01. Except as otherwise specified herein, Tenant will
not, by operation of law or otherwise, assign, mortgage or encumber this Lease,
or sublet or permit the Demised Premises or any part thereof to be occupied or
used by others for desk space, mailing privileges or otherwise, without
Landlord's prior written consent in each
14
instance, which consent shall not be unreasonably withheld subject to the
provisions of Section 11.07. If this Lease be assigned, or if the Demised
Premises or any part thereof be underlet or occupied by anybody other than
Tenant, Landlord, may, after default by Tenant after all applicable notice and
cure periods, collect rent from the assignee, undertenant or occupant, and apply
the net amount collected to the rent herein reserved, but no assignment,
underletting, occupancy or collection shall be deemed a waiver of the provisions
hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to any assignment,
subletting, mortgage or encumbrance shall not in any manner be construed to
relieve Tenant from obtaining Landlord's express consent to any other or further
assignment, subletting, mortgage or encumbrance as to which Landlord's consent
is required pursuant to the terms hereof. In no event shall any permitted
sublessee assign or encumber its sublease or further sublet all or any portion
of its sublet space, or otherwise suffer or permit the sublet space or any part
thereof to be used or occupied by others, without Landlord's prior written
consent in each instance. If Landlord's consent would be required were Tenant
seeking to take the action being taken by such sublessee, as sublessor, such
consent shall not be unreasonably withheld or delayed.
Section 11.02. If Tenant shall at any time or times during the term
of this Lease desire to assign this Lease or sublet all or part of the Demised
Premises, and if Landlord's consent is required pursuant to the terms hereof,
Tenant shall give notice thereof to Landlord, which notice shall be accompanied
by (a) a conformed or photostatic copy of the proposed assignment or sublease,
together with an abstract of the material terms of the assignment or sublease,
the effective or commencement date of which shall be not less than thirty (30)
nor more than 180 days after the giving of such notice, (b) a statement setting
forth in reasonable detail the identity of the proposed assignee or subtenant,
the nature of its business and its proposed use of the Demised Premises, (c) a
statement in sufficient detail reasonably satisfactory to Landlord, setting
forth the calculations of the sums to be payable to Landlord pursuant to the
provisions of Section 11.10, and (d) current financial information with respect
to the proposed assignee or subtenant, including, without limitation, its most
recent financial report, if available. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option,
terminate this Lease if the proposed transaction is an assignment or a sublease
(whether by one sublease or a series of related or unrelated subleases) of all
or substantially all of the Demised Premises, for all or substantially all of
the term hereof. Said options may be exercised by Landlord by notice to Tenant
at any time within thirty (30) days after such notice has been given by Tenant
to Landlord; and during such thirty (30) day period Tenant shall not assign this
Lease nor sublet such space to any person.
Section 11.03. If Landlord exercises its option to terminate this
Lease in the case where Tenant desires either to assign this Lease or sublet
(whether by one sublease or a series of related or unrelated subleases) all or
substantially all of the Demised Premises for all or substantially all of the
term, then this Lease shall end and
15
expire on the date that such assignment or sublet was to be effective or
commence, as the case may be, and the minimum rent and additional rent shall be
paid and apportioned to such date.
Section 11.04. In the event Landlord does not exercise the option
provided to it pursuant to Section 11.02 or if such option is not available to
Landlord, and provided that Tenant is not in default in any of Tenant's
obligations under this Lease after any applicable notice and cure periods,
Landlord's consent (which must be in writing and in form reasonably satisfactory
to Landlord) to the proposed assignment or sublease shall not be unreasonably
withheld or delayed, and shall in all events be granted or denied within thirty
(30) days after Tenant's request therefor. In deciding whether or not to grant
its consent, Landlord may consider whether:
(a) Tenant shall have complied with the provisions of Section
11.02;
(b) In Landlord's reasonable judgment, the proposed assignee
or subtenant is engaged in a business and the Demised Premises, or the
relevant part thereof, will be used in a manner which (i) is limited to
the use expressly permitted under Sections 4.01 and 4.02 of this Lease;
and (ii) is in keeping with the then standards of the Building;
(c) The proposed assignee or subtenant is a reputable person
of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(d) Neither (i) the proposed assignee or sublessee nor (ii)
any person which, directly or indirectly, controls, is controlled by or
is under common control with, the proposed assignee or sublessee, is then
an occupant of any part of the Building, provided there is then
comparable space in the Building in the same elevator bank, with
substantially the same size and term as that of the proposed sublet
premises, available for leasing by Landlord;
(e) The proposed assignee or sublessee is not a person with
whom Landlord is currently negotiating to lease comparable space in the
Building;
(f) The proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the provisions of this
Article;
(g) At any one time there shall not be more than three (3)
subtenants (including Landlord or its designee) in the Demised Premises;
16
(h) Tenant shall reimburse Landlord on demand for any
reasonable costs that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, the reasonable
costs incurred in making investigations as to the acceptability of the
proposed assignee or subtenant, and reasonable legal costs incurred in
connection with the granting of any requested consent, provided such
costs shall not exceed $3,000.00 for any one transaction;
(i) Tenant shall not have (i) advertised the Demised Premises
for subletting or assignment without prior notice to Landlord, or (ii)
listed the same at a rental rate less than the minimum rent or additional
rent at which Landlord is then offering to lease other space in the
Building;
(j) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in and the jurisdiction of the courts
of New York State.
Each subletting pursuant to this Article shall be subject to all of
the covenants, agreements, terms, provisions and conditions contained in this
Lease. Notwithstanding any such subletting to any subtenant and/or acceptance of
rent or additional rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment for the minimum rent and additional rent due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease, and any such violation shall
be deemed to be a violation by Tenant. Tenant further agrees that
notwithstanding any such subletting, no other and further subletting of the
Demised Premises by Tenant or any person claiming through or under Tenant
(except as provided in Section 11.05) shall or will be made except upon
compliance with and subject to the provisions of this Article. If Landlord shall
decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise its option under Section 11.02, Tenant shall indemnify,
defend and hold harmless Landlord against and from any and all loss, liability,
damages, costs and expenses (including reasonable counsel fees) 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.
Notwithstanding anything to the contrary in this Lease, Tenant, without
Landlord's consent, but subject to the provisions of this paragraph and Section
11.09, may sublet all or any part of the Demised Premises to an entity which
controls, is controlled by or is under common control with Tenant (any of the
foregoing, a "Related Entity"), provided a duly executed counterpart of such
sublease, in form satisfactory to Landlord, is delivered to Landlord at least
ten (10) days prior to its effective date.
17
Section 11.05. In the event that (a) Landlord fails to exercise its
option under Section 11.02 and consents to a proposed assignment or sublease,
and (b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within one hundred twenty (120) days after the giving of such
consent, then, Tenant shall again comply with all of the provisions and
conditions of Section 11.02 (to the extent that same are applicable) before
assigning this Lease or subletting all or part of the Demised Premises.
Section 11.06. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term ending later than one
day prior to the expiration date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, re-entry or
dispossess by Landlord under this Lease Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease,
except that Landlord shall not (i) be liable for any previous act or
omission of Tenant under such sublease, (ii) be subject to any offset,
not expressly provided in such sublease, which thereto accrued to such
subtenant against Tenant, or (iii) be bound by any previous modification
of such sublease or by any previous prepayment of more than one month's
rent.
Section 11.07. If Landlord gives its consent to any assignment of
this Lease or to any sublease as to which such consent is required, Tenant
shall, in consideration therefor, pay to Landlord, as additional rent:
(a) in the case of an assignment of this Lease or an
assignment by any sublessee of any sublease, an amount equal to one-half
of all sums and other consideration paid to Tenant from the assignee for
such assignment or paid to Tenant by any sublessee or other person
claiming through or under Tenant for such assignment (including, but not
limited to sums paid for the sale or rental of Tenant's or sublessee's
fixtures, leasehold improvements, less, in case of a sale or rental
thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to
18
Landlord under this Section 11.07(a) shall be paid to Landlord within ten
(10) business days after same are paid by such assignee to Tenant; and
(b) in the case of a sublease, an amount equal to one-half of
the rents and charges and other consideration paid under the sublease to
Tenant by the subtenant or paid to Tenant by any such sublessee or other
person claiming through or under Tenant in connection with such
subletting which is in excess of the minimum rent and additional rent
under Article 22 accruing during the term of the sublease in respect of
the subleased space (at the rate per square foot payable by Tenant
hereunder or such sublessee) pursuant to the terms of this Lease
(including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, less, in the case of the sale
or rental thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section 11.07(b) shall
be paid to Landlord within ten (10) business days after same are paid by
such subtenant to Tenant.
(c) For the purposes of computing the sums payable by Tenant
to Landlord under subparagraphs (a) and (b) hereof, there shall be
excluded from the consideration payable to Tenant by any assignee or
sublessee any transfer taxes, rent concession, reasonable attorneys'
fees, typical brokerage commissions, advertising costs and fix-up costs
paid by Tenant with respect to such assignment or subletting, but only to
the extent any such sums are allocable to the period of this Lease (in
the case of any assignment), or the term of any sublease. All such
exclusions shall be applied first against the consideration to recoup
such expenses before payment of any consideration to Landlord.
Section 11.08. If Tenant or any subtenant is a corporation,
partnership, limited liability company or other entity, the provisions of
Section 11.01 shall apply to a transfer (by one or more transfers) of a majority
of the stock, partnership, membership or other ownership interests of Tenant or
such subtenant, as the case may be, as if such transfer of a majority of the
stock, partnership, membership or other ownership interests of Tenant or such
subtenant were an assignment of this Lease; but said provisions and the
provisions of Section 11.02 shall not apply to transactions with a corporation,
partnership, limited liability company or other entity into or with which Tenant
or such subtenant is merged or consolidated or to which substantially all of
Tenant's or such subtenant's assets, stock, partnership, membership or other
ownership interests are sold or transferred or to any corporation, partnership,
limited liability company or other entity which controls, is controlled by or is
under common control with Tenant or such subtenant, provided that in any such
event (i) the successor to Tenant or such subtenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
net worth of Tenant or such subtenant immediately prior to such merger,
consolidation or transfer, and ii) proof reasonably satisfactory to Landlord of
such net worth shall have been delivered to
19
Landlord at least ten (10) days prior to the effective date of any such
transaction. Notwithstanding the foregoing, Tenant, without Landlord's consent,
but subject to the provisions of Section 11.09, may assign this Lease to a
Related Entity (as hereinbefore defined), provided a duly executed counterpart
of such assignment together with an assumption of this Lease by the assignee,
both in form reasonably satisfactory to Landlord, is delivered to Landlord at
least ten (10) days prior to its effective date. Notwithstanding anything to the
contrary contained in this Article 11, Landlord's consent shall not be required
in the event of a mere change of name of the herein-named tenant, provided (a)
there is no change in the equitable interests of the herein-named tenant in
connection with such name change, (b) there is no event that would otherwise be
deemed an assignment or a transfer of this Lease, and (c) the herein-named
tenant provides Landlord with notice of such name change and reasonable evidence
that such name change complies with the provisions of this Article 11, at least
ten (10) days prior to the effectiveness of such name change.
Section 11.09. Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.04 or without Landlord's consent
pursuant to Section 11.08 shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance reasonably satisfactory to Landlord whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed from and after the effective date thereof and whereby the
assignee shall agree that the provisions in this Article 11 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
minimum rent and/or additional rent by Landlord from an assignee, transferee, or
any other party, the original named Tenant shall remain fully liable for the
payment of the minimum rent and additional rent and for the other obligations of
this Lease on the part of Tenant to be performed or observed.
Section 11.10. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
Section 11.11. The listing of any name other than that of Tenant,
whether on the doors of the Demised Premises, or the Building directory, if any,
or otherwise, shall not operate to vest any right or interest in this Lease or
in the Demised Premises, nor shall it be deemed to be the consent of Landlord to
any assignment or transfer of this Lease, to any sublease of the Demised
Premises, or to the use or occupancy thereof by others.
20
ARTICLE 12
Liability and Indemnity by Landlord and Tenant
Section 12.01. Each party shall indemnify and save harmless the
other from any liability to and claim by or on behalf of any person, firm,
governmental authority, corporation or entity for personal injury, death or
property damage (excluding consequential damages), arising:
(a) (i) with respect to Tenant, from the use by Tenant of the
Demised Premises, or from any work whatsoever done or omitted to be done
by Tenant, its employees, agents, contractors, customers, invitees or
visitors, or from any accident thereat; and (ii) with respect to
Landlord, from any work or thing whatsoever done or omitted to be done in
the Building by it, its employees, agents or contractors, or from any
accident thereof; and
(b) from any breach or default by the indemnifying party of
and under any of the terms, covenants and conditions of this Lease on the
indemnifying party's part to be performed.
Each party also shall indemnify the other party against and save the
other party harmless from all costs, reasonable counsel fees, expenses and
penalties incurred by the indemnified party in connection with any such
liability or claim other than such liability or claim incurred as a result of
the indemnified party's negligence or willful misconduct.
If any action or proceeding shall be brought against either party in
connection with any such liability or claim, such party ("Indemnitee") shall
give notice to the other party ("Indemnitor"), and the Indemnitor shall defend
such action or proceeding, at Indemnitor's expense, by counsel reasonably
satisfactory to the Indemnitee, or by the attorney for Indemnitor's insurance
carrier whose insurance policy covers the liability or claim.
Section 12.02. Landlord shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise, except if
due to the negligence or willful act of Landlord, its agents, contractors or
employees. Landlord and its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain or snow or leaks from any part of the Building or
from the pipes, appliances or plumbing works or from the roof, street or
sub-surface or from any other place or by dampness or by any other cause of
whatsoever nature, except if due to the negligence or willful act of Landlord,
its agents, contractors or employees; nor shall
21
Landlord be liable for any such damage caused by other tenants or persons in the
Building or caused by operations in construction of any public or quasi-public
work; nor shall Landlord be liable for any latent defect in the Demised Premises
or in the Building. If, at any time any windows of the Demised Premises are
permanently closed, darkened or bricked up by reason of the requirements of law
or temporarily closed or darkened by reason of repairs, alterations or
maintenance by Landlord, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. However, Landlord shall use reasonable
efforts to perform such work in a manner that minimizes interference with the
normal conduct of Tenant's business, provided Landlord shall not be required to
employ overtime or premium labor.
Each party shall give notice to the other party promptly after its
discovery of accidents for which it is liable hereunder.
Section 12.03. (a) If in this Lease it is provided that Landlord's
consent or approval as to any matter will not be unreasonably withheld or
delayed, and it is established by a court or body having final jurisdiction
thereover that Landlord has been unreasonable, the only effect of such finding
shall be that Landlord shall be deemed to have given its consent or approval;
but Landlord shall not be liable to Tenant in any respect for money damages by
reason of withholding its consent.
(b) If there is a dispute between Landlord and Tenant under Articles
5 or 11 relating to the reasonableness of the withholding of a consent or
approval by Landlord, Tenant may, at its option, as its sole and exclusive
remedy, submit such dispute to arbitration in the City of New York under the
Expedited Procedures provisions of the Commercial Arbitration Rules of the
American Arbitration Association or any successor (the "AAA") (presently Rules
E-1 through E-10 and, to the extent applicable, Section R-19); provided,
however, that with respect to any such arbitration, (i) the list of arbitrators
referred to in Rule E-5 shall be returned within five (5) days from the date of
mailing; (ii) the parties shall notify the AAA by telephone, within four (4)
days of any objections to the arbitrator appointed and will have no right to
object if the arbitrator so appointed was on the list submitted by the AAA and
was not objected to in accordance with Rule E-5; (iii) the Notice of hearing
referred to in Rule E-8 shall be four (4) days in advance of the hearing; (iv)
the hearing shall beheld within seven (7) days after the appointment of the
arbitrator; (v) the arbitrator shall have no right to award damages; and (vi)
the decision and award of the arbitrator shall be final and conclusive on the
parties. The sole issue to be submitted to the arbitrator, which shall be
included as part of his oath, shall be the reasonableness of Landlord's
determination to withhold consent or approval under the provisions of this
Lease. The arbitrators conducting any arbitration shall be bound by the
provisions of this Lease and shall not have the right or power to consider,
determine or resolve any other issue or dispute between the parties, or to add
to, subtract from, or otherwise modify such provisions. Landlord and Tenant
agree to sign all documents and to do all other things necessary to submit any
such matter to arbitration upon request of the other and further agree to, and
hereby do, waive any and all rights they or either of them may at any time have
to revoke their agreement hereunder to submit to arbitration and to abide by the
22
decision rendered thereunder. Each of the arbitrators shall have at least ten
(10) years' experience in the business of managing real estate or acting as a
real estate broker with first-class office buildings located in Manhattan. Each
party hereunder initially shall pay its own costs, fees and expenses in
connection with any arbitration or other action or proceeding brought under this
Article 12, and the expenses and fees of the arbitrators selected initially
shall be shared equally by Landlord and tenant, provided, however, that the
losing party shall reimburse the prevailing party for its reasonable expenses
paid to unrelated third parties in connection with the foregoing.
Notwithstanding any contrary provisions hereof, if Tenant shall submit such
dispute to arbitration, then Landlord and Tenant agree that (i) the arbitrators
may not award or recommend any damages to be paid by either party, and (ii) in
no event shall either party be liable for, nor be entitled to recover, any
damages.
ARTICLE 13
Moving of Heavy Equipment
Tenant shall not move any safe, heavy equipment or bulky matter in
or out of the Building without Landlord's written consent, which shall not be
unreasonably withheld or delayed. If the movement of such items requires special
handling, Tenant agrees to employ only persons holding a Master Rigger's License
to do said work and all such work shall be done in full compliance with the
Administrative Code of the City of New York and other municipal requirements.
All such movements shall be made during hours which will not materially
interfere with the normal operations of the Building, and all damage caused by
such movement shall be promptly repaired by Tenant at Tenant's expense.
ARTICLE 14
Condemnation
Section 14.01. In the event that the whole or more that ten (10%)
percent of the Demised Premises shall be condemned or taken in any manner for
any public or quasi-public use, this Lease and the term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting of title.
In the event that ten (10%) percent or less of the Demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the
minimum rent and additional rent hereunder for such part shall be equitably
abated and this Lease shall continue as to such part not so taken. In the event
that only a part of the Building shall be so condemned or taken, then (a) if
substantial structural alteration or reconstruction of the Building shall, in
the opinion of Landlord, be necessary or appropriate as a result of such
condemnation or taking (whether or not the Demised Premises be affected),
Landlord may, at its option, terminate this Lease and the term and estate hereby
granted as of the date of such vesting of title by notifying Tenant in writing
of such termination within sixty (60) days following the date on which Landlord
shall have received notice of the vesting of title, or (b) if Landlord does not
elect
23
to terminate this Lease, as aforesaid, this Lease shall be and remain unaffected
by such condemnation or taking, except that the minimum rent and additional rent
shall be abated to the extent, if any, hereinbefore provided. In the event that
only a part of the Demised Premises shall be so condemned or taken and this
Lease and the term and estate hereby granted are not terminated as hereinbefore
provided, Landlord will restore with reasonable diligence the remaining
structural portions of the Demised Premises as nearly as practicable to the same
condition as they were in prior to such condemnation or taking.
Section 14.02. In the event of termination in any of the cases
hereinabove provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date and the rent hereunder shall be apportioned as of such date.
Section 14.03. In the event of any condemnation or taking
hereinabove mentioned of all or a part of the Building, Landlord shall be
entitled to receive the entire award in the condemnation proceeding, including
any award made for the value of the estate vested by this Lease in Tenant, and
Tenant hereby expressly assigns to Landlord any and all right, title and
interest of Tenant now or hereafter arising in or to any such award or any part
thereof, and Tenant shall be entitled to receive no part of such award.
Notwithstanding the foregoing, Tenant may make a separate claim for Tenant's
moveable trade fixtures and moving expenses, provided the same shall not affect
or reduce Landlord's award.
ARTICLE 15
Entry, Right to Change Public Portions of the Building
Section 15.01. Tenant shall permit Landlord to erect, use and
maintain pipes and conduits in and through the walls, within the ceiling or
below the floors of the Demised Premises. Landlord, or its agents or designee
shall have the right to enter the Demised Premises at reasonable times and on
reasonable notice (or at any time without notice in an emergency) for the
purpose of making such repairs or alterations as Landlord shall desire, shall be
required or shall have the right to make under the provisions of this Lease; and
shall also have the right (on prior reasonable notice and at reasonable times)
to enter the Demised Premises for the purpose of inspecting them or exhibiting
them to prospective purchasers or to prospective purchasers of the lessee's
estate under Superior Leases or to prospective mortgagees or to prospective
assignees of any such mortgagees. Landlord shall, during the progress of any
such work in the Demised Premises, be allowed to take all material into and upon
the Demised Premises that may be required for the repairs or alterations above
mentioned without the same constituting an eviction of Tenant in whole or in
part and the rent reserved shall in no wise xxxxx while said repairs or
alterations are being made. However, Landlord shall use reasonable efforts to
make such repairs or alterations in an manner to minimize interference with the
normal conduct of Tenant's business, provided Landlord shall not be required to
employ overtime or premium labor.
24
Section 15.02. During the twelve (12) months prior to the expiration
of the term of this Lease, Landlord may exhibit the Demised Premises to
prospective tenants, at reasonable times and on reasonable notice.
Section 15.03. Landlord shall have the right at any time without
thereby creating an actual or constructive eviction or incurring any liability
to Tenant therefor, to change the arrangement or location of such of the
following as are not contained within the Demised Premises: entrances,
passageways, doors and doorways, corridors, elevators, stairs, toilets, and
other like public service portions of the Building. All parts (except surfaces
facing the interior of the Demised Premises) of all walls, windows and doors
bounding the Demised Premises (including exterior Building walls, exterior core
corridor walls, exterior doors and entrances, all space in or adjacent to the
Demised Premises used for shafts, stacks, stairways, chutes, pipes, conduits,
ducts, fan rooms, heating, air cooling, plumbing and other mechanical
facilities, service closets and other Building facilities are not part of the
Demised Premises and Landlord shall have the use thereof, as well as access
thereto through the Demised Premises for the purposes of operation, maintenance,
alteration and repair, provided the same does not materially adversely interfere
with Tenant's use of, access to or egress from the Demised Premises, and so long
as the number of elevators servicing the floor of the Demised Premises is not
reduced, except temporarily for alterations, remodeling or repairs. Landlord
shall use reasonable efforts to perform all such work in a manner that minimizes
interference with the normal conduct of Tenant's business, provided Landlord
shall not be required to employ overtime or premium labor. However, if Landlord
does any work or alterations in the 00xx xxxxx xxxxxx xxxx xxxxxxx, Xxxxxxxx, at
Landlord's expense, shall thereafter restore the same to substantially the same
condition as it was prior to such work or alterations.
Section 15.04. Landlord shall have the right at any time to name the
Building as it desires and to change any and all such names at any time
thereafter.
ARTICLE 16
Conditional Limitations, Etc.
Section 16.01. If at any time during the term of this Lease:
(a) Tenant shall file a petition in bankruptcy or insolvency
or for reorganization or arrangement or for the appointment of a receiver
of all or a portion of Tenant's property, or
(b) Any petition of the kind referred to in subdivision (a) of
this Section shall be filed against Tenant and such petition shall not be
vacated, discharged or withdrawn within ninety (90) days, or
25
(c) Tenant shall be adjudicated a bankrupt by any court, or
(d) Tenant shall make an assignment for the benefit of
creditors, or
(e) a permanent receiver shall be appointed for the property
of Tenant by order of a court of competent jurisdiction by reason of the
insolvency of Tenant (except where such receiver shall be appointed in an
involuntary proceeding, if he shall not be withdrawn within ninety (90)
days after the date of his appointment),
then Landlord, at Landlord's option, may terminate this Lease on five (5) days'
notice to Tenant, and upon such termination, Tenant shall quit and surrender the
Demised Premises to Landlord.
Section 16.02 (a) If Tenant assumes this Lease and proposes to
assign the same pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. ss.
101 et seq. (the "Bankruptcy Code") to any person or entity who shall have made
a bona fide offer to accept an assignment of this Lease on terms acceptable to
Tenant, then notice of such proposed assignment, setting forth (i) the name and
address of such person, (ii) all of the terms and conditions of such offer, and
(iii) the adequate assurance to be provided Landlord to assure such person's
future performance under the Lease, including, without limitation, the assurance
referred to in section 365(b)(1) of the Bankruptcy Code, shall be given to
Landlord by Tenant not later than twenty (20) days after receipt by Tenant, and
Landlord shall thereupon have the right and option, to be exercised by notice to
Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person.
(b) If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain
the exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord's
Property under the preceding sentence not paid or delivered to Landlord
shall be held in trust for the benefit of Landlord and shall be promptly
paid to Landlord.
(c) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed
without further act or deed to have assumed all of the obligations
arising under this Lease from and after the date of such assignment. Any
such assignee shall
26
upon demand execute and deliver to Landlord an instrument confirming such
assumption.
(d) Nothing contained in this Section shall, in any way,
constitute a waiver of the provisions of this Lease relating to
assignment. Tenant shall not, by virtue of this Section, have any further
rights relating to assignment other than those granted in the Bankruptcy
Code.
(e) Notwithstanding anything in this Lease to the contrary,
all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as rent, shall constitute
rent for the purposes of Section 502(b)(6) of the Bankruptcy Code.
(f) The term "Tenant" as used in this Section includes any
guarantor of this Lease, or any, trustee, debtor in possession, receiver,
custodian or other similar officer.
Section 16.03. If this Lease shall terminate pursuant to the
provisions of Section 16.01:
(a) Landlord shall be entitled to recover from Tenant arrears
in minimum rent and additional rent and, in addition thereto as
liquidated damages, an amount equal to the difference between the minimum
rent and additional rent for the unexpired portion of the term of this
Lease which had been in force immediately prior to the termination
effected under Section 16.01 of this Article and the fair and the
reasonable rental value of the Demised Premises, on the date of
termination, for the same period, both discounted at the rate of eight
(8%) percent per annum to the date of termination; or
(b) Landlord shall be entitled to recover from Tenant arrears
in minimum rent and additional rent and, in addition thereto as
liquidated damages, an amount equal to the maximum allowed by statute or
rule of law in effect at the time when and governing the proceedings in
which such damages are to be proved, whether or not such amount be
greater or less than the amount referred to in subdivision (a) of this
Section.
Section 16.04. (a) If Tenant shall fail to make any payment of any
minimum rent or additional rent when the same becomes due and payable, or if the
Demised Premises become vacant or deserted, or if Tenant shall fail to cancel or
discharge any mechanic's lien or other lien within the time period as provided
in Section 17.02, or if Tenant shall fail to deliver an estoppel certificate as
provided in Article 26, or if Tenant fails to commence business in the Demised
Premises within ninety (90) days following the Commencement Date, and if any of
the foregoing defaults shall continue for a period of seven (7) days after
notice thereof by Landlord, or
27
(b) If Tenant shall be in default in the performance of any of
the other terms, covenants and conditions of this Lease and such default
shall not have been remedied within thirty (30) days after notice by
Landlord to Tenant specifying such default and requiring it to be
remedied; or where such default reasonably cannot be remedied within such
period of thirty (30) days, if Tenant shall not have commenced the
remedying thereof within such period of time and shall not be proceeding
with due diligence to remedy it,
then Landlord, at Landlord's election, may terminate this Lease on five (5)
days' notice to Tenant, and upon such termination Tenant shall quit and
surrender the Demised Premises to Landlord.
Section 16.05. If this Lease shall terminate as provided in this
Article or if Tenant shall be in default in the payment of minimum rent or
additional rent when the same become due and payable, and such default shall
continue for a period of seven (7) days after notice by Landlord to Tenant,
(a) Landlord may re-enter and resume possession of the Demised
Premises and remove all persons and property therefrom either by summary
dispossess proceedings or by a suitable action or proceeding, at law or
in equity, by force or otherwise, without being liable for any damages
therefor, and
(b) Landlord may re-let the whole or any part of the Demised
Premises for a period equal to, greater or less than the remainder of the
then term of this Lease, at such rental and upon such terms and
conditions as Landlord shall deem reasonable to any tenant it may deem
suitable and for any use and purpose it may deem appropriate. Landlord
shall not be liable in any respect for failure to re-let the Demised
Premises or, in the event of such re-letting, for failure to collect the
rent thereunder and any sums received by Landlord on a re-letting in
excess of the rent reserved in this Lease shall belong to Landlord.
Section 16.06. If this Lease shall terminate as provided in this
Article or by summary proceedings (except as to any termination under Section
16.01), Landlord shall be entitled to recover from Tenant as damages, in
addition to arrears in minimum rent and additional rent,
(a) an amount equal to (i) all reasonable expenses incurred by
Landlord in recovering possession of the Demised Premises and in
connection with the re-letting of the Demised Premises, including,
without limitation, the reasonable and necessary cost of repairing,
renovating or remodeling the Demised Premises, (ii) the reasonable and
necessary cost of performing any work required to be done by Tenant under
this Lease, (iii) the
28
reasonable and necessary cost of placing the Demised Premises in the same
condition as that in which Tenant is required to surrender them to
Landlord under this Lease, and (iv) all typical brokers' commissions due
for the remainder of this Lease and reasonable legal fees incurred by
Landlord in re-letting the Demised Premises, which amounts set forth in
this subdivision (a) shall be due and payable by Tenant to Landlord at
such time or times as they shall have been incurred; and
(b) an amount equal to the deficiency between the minimum rent
and additional rent which would have become due and payable had this
Lease not terminated and the net amount, if any, of rent collected by
Landlord on re-letting the Demised Premises. The amounts specified in
this subdivision shall be due and payable by Tenant on the several days
on which such minimum rent and additional rent would have become due and
payable had this Lease not terminated. Tenant consents that Landlord
shall be entitled to institute separate suits or actions or proceedings
for the recovery of such amount or amounts, and Tenant hereby waives the
right to enforce or assert the rule against splitting a cause of action
as a defense thereto.
Section 16.07. Tenant, for itself and for all persons claiming
through or under it, hereby waives any and all rights which are or may be
conferred upon Tenant by any present or future law to redeem the Demised
Premises after a warrant to dispossess shall have been issued or after judgment
in an action of ejectment shall have been made and entered.
Section 16.08. The words "re-enter" and "re-entry", as used in this
Article, are not restricted to their technical legal meanings.
Section 16.09. Landlord shall not be required to give any notice of
its intention to re-enter, except as otherwise provided in this Lease and in
accordance with law.
Section 16.10. In any action or proceeding brought by Landlord
against Tenant, predicated on a default in the payment of minimum rent or
additional rent, Tenant shall not have the right to and shall not interpose any
set-off or counterclaim of any kind whatsoever, other than a claim which would
be legally barred for failure to raise as a counterclaim in such action or
proceeding. If Tenant has any claim, Tenant shall be entitled only to bring an
independent action therefor; and if such independent action is brought by
Tenant, Tenant shall not be entitled to and shall not consolidate it with any
pending action or proceeding brought by Landlord against Tenant for a default in
the payment of minimum rent or additional rent.
29
ARTICLE 17
Mechanic's Liens
Section 17.01. If, subject to and notwithstanding Landlord's consent
to the extent required under this Lease, Tenant shall cause any changes,
alterations, additions, improvements, installations or repairs to be made to or
at the Demised Premises or shall cause any labor to be performed or material to
be furnished in connection therewith, neither Landlord nor the Demised Premises,
under any circumstances, shall be liable for the payment of any expense incurred
or for the value of any work done or material furnished, and all such changes,
alterations, additions, improvements, installations and repairs and labor and
material shall be made, furnished and performed upon Tenant's credit alone and
at Tenant's expense, and Tenant shall be solely and wholly responsible to
contractors, laborers, and materialmen furnishing and performing such labor and
material. Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, to
any contractor, laborer or materialman to furnish or perform any such labor or
material.
Section 17.02. If, because of any act or omission (or alleged act or
omission) of Tenant any mechanic's or other lien, charge or order for the
payment of money shall be filed against the Demised Premises or the Building or
Landlord's estate as tenant under any Superior Lease (whether or not such lien,
charge or order is valid or enforceable as such), for work claimed to have been
for, or materials furnished to, Tenant, Tenant, at Tenant's expense, shall cause
it to be cancelled or discharged of record by bonding or otherwise within thirty
(30) days after Tenant's receipt of notice of such filing, and Tenant shall
indemnify Landlord against and save Landlord harmless from and shall pay all
reasonable costs, expenses, losses, fines and penalties, including, without
limitation, reasonable attorneys' fees, resulting therefrom.
ARTICLE 18
Landlord's Right to Perform Tenant's Obligations
If Tenant shall default in the performance of any of the terms or
covenants and conditions of this Lease, after notice and expiration of
applicable cure periods, Landlord, without being under any obligation to do so
and without hereby waiving such default, may remedy such default for the account
and at the expense of Tenant. Any reasonable payment made or reasonable expense
incurred by Landlord for such purpose (including, but not limited to, reasonable
attorneys' fees) with interest at the maximum legal rate, shall be deemed to be
additional rent hereunder and shall be paid by Tenant to within twenty (20) days
after demand, or at Landlord's election, added to any subsequent installment or
installments of minimum rent.
30
ARTICLE 19
Covenant of Quiet Enjoyment
Landlord covenants that upon Tenant paying the minimum rent and
additional rent and observing and performing all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises, subject nevertheless to
the terms and conditions of this Lease.
ARTICLE 20
Excavation
In the event that construction is to be commenced or an excavation
is made or authorized for building or other purposes upon land adjacent to the
Building, Tenant shall, if necessary, afford to the person or persons causing or
authorized to commence construction or cause such excavation or to engage in
such other purpose, license to enter upon the Demised Premises for the purpose
of doing such work as shall reasonably be necessary to protect or preserve the
Building, from injury or damage and to support the Building and any new
structure to be built by proper foundations, pinning and/or underpinning, or
otherwise.
ARTICLE 21
Services and Equipment
Section 21.01. Landlord shall, at its cost and expense:
(a) Provide operatorless passenger elevator service to the
Demised Premises, as existing, on Mondays through Fridays from 8:00 A.M.
to 6:00 P.M., holidays excepted. A passenger elevator will be available
at all other times to serve the Demised Premises. A freight elevator
shall be available Mondays through Fridays, only from 8:00 A.M. to 5:00
P.M., excepting Saturdays, Sundays and holidays, The freight elevator
shall be available on a "first come, first served" basis during the said
days and hours and on a reservation "first come, first served" basis
other than on said days and hours at Landlord's customary charges
therefor.
(b) Maintain and repair the Building standard heating,
ventilating and air conditioning system servicing the Demised Premises
(the "HVAC System") installed by Landlord, except for those repairs which
are the obligation of Tenant pursuant to Article 6 of this Lease. The
HVAC System will be operated by Landlord as and when required by law, or
for the comfortable occupancy of the Demised Premises at no fewer days
than on
31
Mondays through Fridays, from 8:00 A.M. to 8:00 P.M.; excepting
Saturdays, Sundays and holidays Tenant shall draw and close the draperies
or blinds for the windows of the Demised Premises whenever the HVAC
system is in operation and the position of the sun so requires and shall,
at all times, cooperate fully with Landlord and abide by all of the
reasonable Rules and Regulations which Landlord may prescribe for the
proper functioning of the HVAC System. Landlord agrees to operate the
HVAC System servicing the Demised Premises in accordance with their
design criteria unless energy and/or water conservation programs,
guidelines or laws and/or requirements of public authorities, 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 therewith. Said system is designed to be capable of
maintaining, within tolerances normal in first-class office buildings,
inside space conditions for any open floor averaging 78 degrees
Fahrenheit dry bulb and fifty (50%) percent relative humidity when
outside conditions are 95 degrees Fahrenheit dry bulb and 75 degrees
Fahrenheit wet bulb, and a temperature of not lower than for any one
floor an average of 68 degrees Fahrenheit when outside temperature is 50
degrees Fahrenheit or lower. The foregoing design conditions shall be
based on an occupancy of not more than one (1) person per one hundred
(100) square feet, and upon a combined lighting and standard electrical
load not to exceed three (3) xxxxx per usable square foot (excluding the
Building HVAC). Tenant expressly acknowledges that some or all windows
are or may be hermetically sealed and will not open and Landlord makes no
representation as to the habitability of the Demised Premises at any time
the HVAC System is not in operation. Tenant hereby expressly waives any
claims against Landlord arising out of the suitability of the Demised
Premises when the same is not in operation, whether due to normal
scheduling or the reasons set forth in Section 21.03. Landlord will not
be responsible for the failure of the HVAC System if such failure results
from the occupancy of the Demised Premises by more than an average of one
(1) person for each one hundred (100) square feet in any separate room or
area or if Tenant shall install and operate machines, incandescent
lighting and appliances with a total connected electrical load in excess
of five (5) xxxxx per rentable square foot. If Tenant shall occupy the
Demised Premises at an occupancy rate of greater than that for which the
HVAC System was designed, or if the total connected electrical load is in
excess of five (5) xxxxx per rentable square feet, or if Tenant's
partitions shall be arranged in such a way as to interfere with the
normal operation of the HVAC System, Landlord may elect to make changes
to the HVAC System or the ducts through which it operates required by
reason thereof. Tenant shall not construct partitions or other
obstructions that may interfere with Landlord's free access to the
mechanical installations of Landlord, of which Landlord shall give notice
to Tenant. Neither Tenant nor any person or entity within Tenant's
control shall at any time enter the said enclosures or tamper with,
adjust, touch or otherwise in any manner
32
affect said mechanical installations, except as set forth herein with
respect to the thermostatic controls within the Demised Premises.
(c) Provide Building standard cleaning services in Tenant's
office space and public portions of the Building, except no services
shall be performed Saturdays, Sundays and holidays, all in accordance
with Schedule D attached hereto. If, however, any additional cleaning of
the Demised Premises is to be done by Tenant, it shall be done at
Tenant's sole expense, in a manner reasonably satisfactory to Landlord
and no one other than Tenant's employees and persons approved by Landlord
shall be permitted to enter the Demised Premises or the Building for such
purpose. Tenant, at its own cost, may utilize its own employees or
outside contractors to perform additional cleaning services in the
Demised Premises, provided such employees or outside contractors do not
cause any labor disruption, dispute or disturbance in or around the
Building or violate Landlord's union contracts affecting the Building. If
Tenant shall require additional cleaning services, Tenant may award a
contract for such services to any contractor that is approved by
Landlord; provided however, that prior to making such award, Tenant shall
inform Landlord of the terms upon which such contractor shall provide
such additional cleaning services and, in the event that Landlord's
designated contractor can provide such additional cleaning services on
equal or better terms, Tenant shall award such contract to Landlord's
designated contractor. Tenant shall pay for the cost of the services
performed by such designated contractor within ten (10) days after being
billed.
(d) Furnish hot and cold water for lavatory, cleaning and
drinking purposes. If Tenant requires, uses or consumes water for any
other purposes, Landlord may install a meter or meters or other means to
measure Tenant's water consumption, and Tenant shall reimburse Landlord
for the cost of the meter or meters and the installation thereof, and
shall pay for the maintenance of said meter equipment and/or pay
Landlord's cost of other means of measuring such water consumption by
Tenant. Tenant shall pay to Landlord within twenty (20) days after demand
Landlord's actual cost of all water consumed as measured by said meter or
meters or as otherwise measured.
(e) If Tenant shall require and request any of the foregoing
services at times other than above provided, and if such request is made
at least twelve (12) hours prior to the time when such additional
services are required, Landlord will provide them and Tenant shall pay to
Landlord promptly in advance the charges therefor at the then Building
standard rate charged to other tenants in the Building.
33
Section 21.02. Holidays shall be deemed to mean all federal
holidays, state holidays and Building Service Employees Union Contract holidays.
Section 21.03. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Lease when
necessary by reason of accident, emergency, mechanical breakdown or when
required by any law, order or regulation of any Federal, State, County or
Municipal authority, or for any other cause beyond the control of Landlord.
Landlord shall use due diligence to complete all required repairs or other
necessary work as quickly as possible so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will reasonably
permit. Subject to the provisions of Section 21.06, Tenant shall not be entitled
to nor shall Tenant make claim for any diminution or abatement of minimum rent
or additional rent or other compensation, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of such interruption,
curtailment, suspension, work or inconvenience.
Section 21.04. Tenant shall reimburse Landlord promptly for the
actual out-of-pocket cost to Landlord of removal from the Demised Premises and
the Building of any refuse and rubbish of Tenant not covered by the Cleaning
Specifications and Tenant shall pay all bills therefor within twenty (20) days
after the same are rendered.
Section 21.05. If Tenant shall request Landlord to furnish any
services in addition to those hereinabove provided or perform any work not
required under this Lease, and Landlord agrees to furnish and/or perform the
same, Tenant shall pay to Landlord promptly in advance the charges therefor,
which charges are deemed to be additional rent and payable as such.
Section 21.05. Tenant shall have access to the Demised Premises
twenty-four hours a day, seven (7) days a week, subject to emergencies, police
power, security or the provisions of Article 34.
Section 21.06. Notwithstanding the foregoing, if Landlord shall fail
to provide electrical, elevator, heating, ventilating or air conditioning
services, as provided in this Lease (collectively, an "Interruption"), and such
Interruption shall materially impair the customary operation of Tenant's
business in all or any part of the Demised Premises (other than a de minimis
part), and if (i) such Interruption shall continue for a period in excess of
twenty (20) consecutive days following receipt by Landlord of notice from Tenant
describing such Interruption and (ii) such Interruption shall not have been
caused by an act or omission in violation of this Lease by or the negligence of
Tenant, or of Tenant agents, servants, employees or contractors (an Interruption
that satisfied all of the foregoing conditions being referred to hereinafter as
a "Material Interruption"), then Tenant shall be entitled to an abatement of the
minimum rent and additional rent (such abatement to be prorated if only a part
of the Demised Premises shall be so affected by such Material
Interruption),which shall begin on the 21st consecutive day of such Material
Interruption and shall end upon the date such Material Interruption has been
terminated.
34
ARTICLE 22
Escalation
Section 22.01. Taxes. Tenant shall pay to Landlord, as additional
rent, tax escalation in accordance with this Section:
(a) Definitions: For the purpose of this Section, the
following definitions shall apply:
(i) The term "Tax Base Factor" shall mean
the average of the real estate taxes for the Building
Project for the periods from July 1, 2005 to June 30,
2006 and from July 1, 2006 to June 30, 2007, as
finally determined.
(ii) The term "The Building Project"
shall mean the real property known as Unit B of The
Fifth Win Condominium, with all improvements erected
on the Land as more particularly described in
Schedule B of this Lease
(iii) The term "Comparative Tax Year"
shall mean the New York City real estate tax year
commencing on July 1, 2006 and each subsequent New
York City real estate tax year. If the present use of
July 1-June 30 New York City real estate tax year
shall hereafter be changed, then such changed tax
year shall be used with appropriate adjustment for
the transition.
(iv) The term "Real Estate Taxes" shall
mean the total of all taxes and special or other
assessments and charges of any Special Business
Improvement District levied, assessed or imposed at
any time by any governmental authority: (a) upon or
against the Building Project, and (b) in connection
with the receipt of income or rents from the Building
Project to the extent that same shall be in lieu of
all or a portion of any of the aforesaid taxes or
assessments, or additions or increases thereof.
Income, franchise, transfer, inheritance, corporate,
mortgage recording or capital stock taxes of
Landlord, or penalties or interest thereon, shall be
excluded from "Real Estate Taxes" for the purposes
hereof. If, due to a future change in the method of
taxation or in the taxing authority, or for any other
reason, a franchise, income, transit, profit or other
tax or governmental imposition, however designated,
shall be levied against the lessor under a Superior
35
Lease (as hereinafter defined) and/or Landlord in
substitution in whole or in part for the Real Estate
Taxes, or in lieu of or addition to or increase of
Real Estate Taxes, then such franchise, income,
transit, profit or other tax or governmental
imposition shall be included within "Real Estate
Taxes." Tenant acknowledges that the Tax Escalation
Payment (as hereinafter defined) constitutes a method
by which Landlord is seeking to compensate for
increases in expenses and that the Tax Escalation
Payment shall be calculated and paid by Tenant to
Landlord whether or not Real Estate Taxes have then
been paid by Landlord.
(v) The term "the Percentage" for
purposes of computing tax escalation, shall mean
1.74%.
(b) (i) In the event that the Real Estate Taxes payable for
any Comparative Tax Year shall exceed the Tax Base Factor, Tenant shall
pay to Landlord, as additional rent for such Comparative Tax Year, an
amount for tax escalation ("Tax Escalation Payment")equal to the
Percentage of the excess. However, Tenant shall not be responsible for
any Tax Escalation Payment during the first twelve (12) months following
the Commencement Date. Before or after the start of each Comparative Tax
Year, Landlord shall furnish to Tenant a statement of the Tax Escalation
Payment payable for such Comparative Tax Year, together with a copy of
the relevant tax xxxx from the governmental authority if requested by
Tenant. Tenant shall make its aforesaid Tax Escalation Payment to
Landlord, in installments in the same manner and not later than thirty
(30) days prior to the last date that Real Estate Taxes are payable by
Landlord to the governmental authority. If a statement is furnished to
Tenant after the commencement of the Comparative Tax Year in respect of
which such statement is rendered, Tenant shall, within twenty (20) days
thereafter, pay to Landlord an amount equal to those installments of the
total Tax Escalation Payment then due. If, during the term of this Lease,
Real Estate Taxes are required to be paid, in full or in monthly or other
installments, on any other date or dates than as presently required, or
if Landlord shall be required to make monthly deposits of Real Estate
Taxes to the holder of any mortgage, then Tenant's Tax Escalation
Payment(s) shall be correspondingly adjusted so that the same are due to
Landlord in corresponding installments not later than thirty (30) days
prior to the last date on which the applicable installment of such Real
Estate Taxes
36
shall be due and payable to the governmental authority or such mortgagee.
(ii) If in any tax certiorari proceeding
regarding Real Estate Taxes payable for any
Comparative Tax Year or in otherwise establishing
such taxes, Landlord has incurred expenses for legal
and/or consulting services rendered in applying for,
negotiating or obtaining a reduction of the
assessment upon which the Real Estate Taxes are
predicated, Tenant shall pay an amount equal to the
Percentage of such expenses. Landlord shall deliver
to Tenant copies of the relevant bills for such
expenses.
(iii) The statements of the Tax
Escalation Payment to be furnished by Landlord as
provided above shall constitute a final determination
as between Landlord and Tenant of the Tax Escalation
Payment for the periods represented thereby, except
for mathematical or other error in computation.
(iv) In no event shall the fixed minimum
rent under this Lease be reduced by virtue of this
Section 22.01.
(v) Upon the date of any expiration or
termination of this Lease, whether the same be the
date hereinabove set forth for the expiration of the
term or any prior or subsequent date, a proportionate
share of the Tax Escalation Payment for the
Comparative Tax Year during which such expiration or
termination occurs shall immediately become due and
payable by Tenant to Landlord, if it was not
theretofore already billed and paid, or due and
payable by Landlord to Tenant if the amount paid by
Tenant exceeded such proportionate share. The said
proportionate share shall be based upon the length of
time that this Lease shall have been in existence
during such Comparative Tax Year. Prior to or
promptly after said expiration or termination,
Landlord shall compute the Tax Escalation Payment due
from or owed to Tenant, as aforesaid and Tenant shall
promptly pay Landlord any amount unpaid. If Landlord
shall receive a refund or a tax credit of any amount
of Real Estate Taxes for any Comparative Tax Year for
which Tenant has made a payment, Landlord shall pay
to Tenant within fifteen (15) days of its receipt of
such refund the Percentage of any such refund, less
the Percentage of any legal fees and other expenses
provided for in Section
37
22.01(b)(ii) to the extent the same have not
theretofore been paid by Tenant.
(vi) Landlord's and Tenant's obligations
to make the adjustments referred to in subdivision
(v) above shall survive any expiration or termination
of this Lease.
(vii) Any delay or failure of Landlord in
billing any Tax Escalation Payment hereinabove
provided shall not constitute a waiver of or in any
way impair the continuing obligation of Tenant to pay
such Tax Escalation Payment hereunder, provided such
billing is made within one (1) year after the
expiration of the term of this Lease.
(viii) Notwithstanding any language to
the contrary contained in this Lease, Landlord and
Tenant agree that for the purposes of this Section
22.01, Real Estate Taxes and Tax Escalation Payments
shall be calculated without regard to any deductions,
credits, abatements, or deferral of Real Estate Taxes
which Landlord may receive pursuant to Sections
11.256 through 11-267 of the Administrative Code of
the City of New York, authorized by Title 2-D of
Article 4 of the New York Real Property Tax Law and
any and all rules and regulations promulgated
thereunder (herein collectively called the "ICIP
Program").
Section 22.02. Xxxxxx'x Wage Rate. Tenant shall pay to the Landlord,
as additional rent, a xxxxxx'x wage rate escalation in accordance with this
Section:
(a) For the purpose of this Section, the following definitions
shall apply:
(i) "Wage Rate" shall mean the minimum
regular hourly rate of wages in effect as of January
1st of each year (whether paid by Landlord or any
contractor employed by Landlord) computed as paid
over a forty hour week to Porters in Class A office
buildings pursuant to an Agreement between Realty
Advisory Board on Labor Relations, Incorporated, or
any successor thereto, and Local 32B-32J of the
Building Service Employees International Union,
AFL-CIO, or any successor thereto; and provided,
however,
38
that if there is no such agreement in effect
prescribing a wage rate for Porters, computations and
payments shall thereupon be made upon the basis of
the regular hourly wage rate actually payable in
effect as of January 1st of each year, and provided,
however, that if in any year during the term, the
regular employment of Porters shall occur on days or
during the hours when overtime or other premium pay
rates are in effect pursuant to such Agreement, then
the term "hourly rate of wages" as used herein shall
be deemed to mean the average hourly rate for the
hours in a calendar week during which Porters are
regularly employed (e.g., if pursuant to an agreement
between Realty Advisory Board and the Local the
regular employment of Porters for forty hours during
a calendar week is at a regular hourly wage rate of
$3.00 for the first thirty hours, and premium or
overtime hourly wage rate of $4.50 for the remaining
ten hours, then the hourly rate of wages under this
Article during such period shall be the total weekly
rate of $135.00 divided by the total number of
regular hours of employment, forty or $3.375).
Notwithstanding the foregoing, if at any time such
hourly wage rate is different for new hire and old
hire Porters, then thereafter such hourly wage rate
shall be based on the weighted average of the wage
rates for the different classifications of Porters.
(ii) "Base Wage Rate" shall mean the Wage
Rate in effect on January 1, 2006.
(iii) The term "Porters" shall mean that
classification of non-supervisory employees employed
in and about the Building who devote a major portion
of their time to general cleaning, maintenance and
miscellaneous services essentially of a non-technical
and non-mechanical nature and are the type of
employees who are presently included in the
classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board
and the aforesaid Union.
(iv) The term "minimum regular hourly
rate of wages" shall not include any payments for
fringe benefits or adjustments of any kind.
(v) The term "Multiplication Factor"
shall mean 5,650.
(b) If the Wage Rate for any calendar year during the term
after 2006 shall be increased above the Base Wage Rate, then Tenant shall
pay, as additional rent, an amount equal to the product obtained by
multiplying the Multiplication Factor by 100% of the number of cents
(including any fraction of a cent) by which the Wage Rate is greater than
the
39
Base Wage Rate, such payment to be made in equal one-twelfth (1/12th)
monthly installments commencing with the first monthly installment of
minimum rent falling due on or after the effective date of such increase
in Wage Rate (payable retroactive from said effective date) and
continuing thereafter until a new adjustment shall have become effective
in accordance with the provisions of this Article. Landlord shall give
Tenant notice promptly after Landlord is aware of such increases of each
change in Wage Rate which will be effective to create or change Tenant's
obligation to pay additional rent pursuant to the provisions of this
Section 22.02 and such notice shall contain Landlord's calculation in
reasonable detail and certified as true by an authorized partner of
Landlord or of its managing agent, of the annual rate of additional rent
payable resulting from such increase in Wage Rate. Such amounts shall be
prorated for any partial calendar years during the term.
(c) Tenant's obligations to make the payments referred to in
subdivision (b) above shall survive any expiration or termination of this
Lease.
(d) Every notice given by Landlord pursuant to Section 22(b)
hereof shall be conclusive and binding upon Tenant, except for manifest
or other error.
(e) The "Wage Rate" is intended to be a substitute comparative
index of economic costs and does not necessarily reflect the actual costs
of wages or other expenses of operating the Building. The Wage Rate shall
be used whether or not the Building is a Class A office building and
whether or not Porters are employed in the Building and without regard to
whether such employees are members of the Union referred to in subsection
(a) hereof.
ARTICLE 23
Electricity
Section 23.01.
(a) Landlord shall furnish electric energy on a rent inclusion
basis to the Demised Premises, the charges therefor being included in the
minimum rent. The amount included in the minimum rent is based upon the
normal use of such electric energy between the hours of 8:00 A.M. to 8:00
P.M. on Mondays through Fridays, excepting Saturdays, Sundays and
holidays, for lighting and for the normal use of lamps, word processors,
office copying machines, typewriters,
40
personal computers and similar customary office machines. Landlord shall
not be liable in any way for any loss, damage or expense that Tenant may
sustain or incur by reason of for any failure, change, interruption or
defect in the supply or character of electric energy furnished to the
Demised Premises by reason of any requirement, act or omission of the
Electric Service Provider or Alternate Service Provider (as said terms
are hereinafter defined) serving the Building with electricity and no
such failure, change, interruption or defect shall constitute an actual
of constructive eviction, in whole or in part, or entitle Tenant to any
abatement of minimum rent or additional rent or relieve Tenant of its
obligations under this Lease. Landlord shall furnish and install, at
Tenant's sole cost and expense, all lighting fixtures, tubes, lamps,
bulbs, ballasts and outlets relating to Tenant's electrical equipment.
(b) Landlord has advised Tenant that presently Con Edison
("Electric Service Provider") is the utility company selected by Landlord
to provide electricity service for the Building. Notwithstanding the
foregoing, if permitted by law, Landlord shall have the right at any time
and from time to time during the term of this Lease to either contract
for service from a different company or companies providing electricity
service (each such company shall hereinafter be referred to as an
"Alternate Service Provider") or continue to contract for service from
the Electric Service Provider.
(c) Tenant shall cooperate with Landlord, the Electric Service
Provider, and any Alternate Service Provider at all times and, as
reasonably necessary, shall allow Landlord, Electric Service Provider,
and any Alternate Service Provider reasonable access to the Building's
electric lines, feeders, risers, wiring, and any other machinery within
the Demised Premises.
Section 23.02. Tenant's connected electrical load in the Demised
Premises, including lighting, shall not at any time exceed the capacity of any
of the electrical conductors and equipment in or serving the Demised Premises,
such capacity being six (6) xxxxx per rentable square foot connected load,
exclusive of Building systems, including lighting. All additional risers or
other equipment required therefor shall be provided by Landlord and the
reasonable cost thereof shall be paid by Tenant upon Landlord's demand. Landlord
may require Tenant to agree to an increase in the annual minimum rent by an
amount which will reflect the cost to Tenant of the additional service to be
furnished by Landlord, that is the potential additional electrical energy to be
made available to Tenant based upon the estimated additional capacity of such
additional risers or other equipment. If Landlord and Tenant cannot agree
thereon, the amount of such increase shall be determined by a reputable,
independent electrical engineer or consultant, to be selected by Landlord whose
fees or charges shall be paid by Landlord. When the
41
amount of such increase is so determined, Tenant shall pay to Landlord within
twenty (20) days following notification to Tenant of such determination the
amount thereof retroactive to the date of such increased usage, unless within
such twenty (20) day period Tenant disputes such determination. If Tenant
disputes such determination, it shall, at its own expense, obtain from a
reputable, independent electrical engineer or consultant, its own survey of the
additional electrical energy consumed by Tenant. Tenant's consultant and
Landlord's consultant shall then seek to agree on a finding of such
determination of such change in the consumption of electrical energy. If they
cannot agree, they shall choose a third reputable, independent electrical
engineer or consultant, whose cost shall be shared equally by Landlord and
Tenant, to make a similar survey, and the determination of such third consultant
shall be controlling. If they cannot agree on such third consultant, within ten
(10) days, then either party may apply to the Supreme Court in the County of New
York, for the appointment of such third consultant. However, pending such
determination, Tenant shall pay to Landlord the amount as determined by
Landlord's engineer or consultant. If the amount determined as aforesaid is
different from that determined by Landlord's engineer or consultant, then
Landlord and Tenant shall make adjustment for any deficiency owed by Tenant or
overage paid by Tenant. Following the final determination, the parties shall
execute an agreement supplementary hereto to reflect such increase in the annual
minimum rent and in the amount set forth in Section 23.03; but such increase
shall be effective even if such supplementary agreement is not executed.
Section 23.03. If, during the term of this Lease, the public utility
rate paid by Landlord for the supply of electric current to the Building shall
be increased or if there shall be an increase in taxes or if additional taxes
shall be imposed upon the sale or furnishing of such electric energy (hereafter
collectively as the "cost") the annual minimum rent shall be increased by an
amount arrived at by multiplying $18,362.50 (or the sum to which said sum may
have been increased pursuant to the provisions of Section 23.02 or this Section
23.03 prior to the effective date of the cost increases (such sum being referred
to herein as the "Rent Inclusion Factor") by the percentage of the increase of
such cost. When the amount of such increase is so determined, Landlord and
Tenant shall execute an agreement supplementary hereto to reflect such increase
in the amount of the minimum rent payable and effective from the effective date
of such increase , but such increase shall be effective from such date whether
or not such a supplementary agreement is executed.
Section 23.04. Landlord reserves the right to discontinue furnishing
electric energy at any time, whether or not Tenant is in default under this
Lease, upon not less than thirty (30) days' notice to Tenant. If Landlord
exercises such right of discontinuance, this Lease shall continue in full force
and effect and shall be unaffected thereby, except only that, from and after the
effective date of such discontinuance, Landlord shall not be obligated to
furnish electric energy to Tenant, and the minimum rent payable under this Lease
shall be reduced by an amount per annum equal to the then prevailing Rent
Inclusion Factor. If Landlord so elects to discontinue furnishing electric
energy to Tenant, Tenant shall arrange to obtain electric energy directly from
the Electric Service Provider furnishing electric service to the Building or the
Alternate Service Provider. Notwithstanding the foregoing, Landlord shall not
discontinue furnishing electric energy until Tenant is able to obtain such
electric energy directly from said Electric Service
42
Provider or the Alternate Service Provider. Such electric energy may be
furnished to Tenant by means of the then existing Building system feeders,
risers and wiring. All meters and additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to obtain
electric energy directly from such public utility company, and which are to be
located within the Demised Premises, shall be installed by Landlord at its
expense if such discontinuance was voluntary, or installed by Landlord at
Tenant's expense if such discontinuance was required by law or the Service
Provider. Thereafter, all of the same shall be maintained by Tenant at its
expense.
Section 23.05. At no time shall Tenant's connected electrical load
in the Demised Premises, including lighting, exceed six (6) xxxxx per rentable
square foot connected load.
ARTICLE 24
Broker
Landlord and Tenant covenant and represent that the sole brokers who
negotiated and brought about this transaction were Xxxxxxx & Xxxxxxxxx, Inc. and
Xxxxx Brothers Realty Corporation and Landlord agrees to pay a commission
therefor as per separate agreements. Landlord and Tenant agree to hold the other
harmless against any claims for a brokerage commission arising out of a breach
by the indemnifying party of the representations contained in this Article.
ARTICLE 25
Subordination and Ground Lease
Section 25.01. This Lease is subject and subordinate to (a) the
lease dated as of July 29, 1986, between Saks & Company, as lessor and Swiss
Bank Corporation, New York Branch, as lessee, as the same is or may hereafter be
amended (the "Saks Lease"), (b) any "New Lease" (as defined in the Saks Lease)
hereafter entered into, as the same may be amended (collectively together with
the Saks Lease called the "Superior Leases"), and (c) to all mortgages (the
"Superior Mortgages") which may now or hereafter encumber any such Superior
Leases and/or the interest of the lessee under the
43
Superior Lease in and to the Building, and to all renewals, modifications,
amendments, consolidations, replacements or extensions of any of the foregoing.
This clause shall be self-operative and no further instrument of subordination
shall be required. However, in confirmation of such subordination, Tenant, at
any time and from time to time, shall execute within fifteen (15) days of such
request, any certificate and document that Landlord may reasonably request which
reasonably evidences such subordination.
Section 25.02. (a) Tenant covenants and agrees that if by reason of
a default under any Superior Lease, or under any Superior Mortgage, such
Superior Lease and the leasehold estate of the Landlord in the Demised Premises
is terminated, or the lessee's estate in the Building under a Superior Lease is
foreclosed upon or transferred in lieu of a foreclosure, the Tenant will attorn
to the then holder of the reversionary interest in the premises demised by this
Lease or the foreclosure purchaser or transferee in lieu of foreclosure, as the
case may be, and will recognize such holder, purchaser or transferee as the
Tenant's Landlord under this Lease, unless the lessor under such Superior Lease
or the holder of any such Superior Mortgage, in any proceeding to terminate such
Superior Lease or foreclose such Superior Mortgage, elects to terminate this
Lease and the rights of Tenant hereunder provided, however, the holder of the
reversionary interest or the foreclosure purchaser or transferee in lieu of
foreclosure shall not be (i) liable for any act or omission or negligence of
Landlord under this Lease; (ii) subject to any counterclaim, defense or offset
which theretofore shall have accrued to Tenant against Landlord; (iii) obligated
to perform, undertake or complete any work in the Demised Premises or to prepare
it for Tenant's occupancy; (iv) bound by any previous modification or amendment
of this Lease or by any previous prepayment of more than one (1) month's rent,
unless such modification or prepayment shall have been approved in writing by
the holder of such Superior Mortgage; (v) obligated to repair the Demised
Premises, or the Building, or any part thereof, in the event of any damage
beyond such repair as can reasonably be accomplished from the net proceeds of
insurance actually made available to the then holder of the reversionary
interest or the foreclosure purchaser or transferee in lieu of foreclosure; (vi)
obligated to repair the Demised Premises or the Building, or any part thereof,
in the event of partial condemnation of the Demised Premises or the Building;
(vii) required to account for any security deposit of Tenant unless actually
delivered to such holder, purchaser or transferee by Landlord; (viii) bound by
any obligation to make any payment to Tenant or grant any credits, except for
services, repairs, maintenance and restoration provided for under this Lease to
be performed by Landlord after the date of attornment; or (ix) responsible for
any monies owing by Landlord to Tenant. Nothing contained in this subparagraph
shall be construed to impair any right otherwise exercisable by any such holder,
purchaser or transferee. Tenant agrees to execute and deliver, at any time and
from time to time, upon the request of the Landlord of or the lessor under any
such Superior Lease or the holder of any such Superior Mortgage any instrument
which may be necessary to evidence such attornment. Tenant further waives the
provisions of any statute or rule or law now or hereafter in effect which may
give or purport to give Tenant any right of election to terminate this Lease or
to surrender possession of the Demised Premises in the event any proceeding is
brought by the lessor under any such Superior Lease or the holder of any such
Superior Mortgage to terminate the same, and
44
agrees that unless and until any such lessor or holder, in connection with any
such proceeding, shall elect to terminate this Lease and the rights of Tenant
hereunder, this Lease shall not be affected in any way whatsoever by any such
proceeding.
(b) Upon Tenant's receipt of a written notice from the lessor
under any Superior Lease or the holder of any Superior Mortgage to the
effect that (i) the lessor of said Superior Lease has terminated such
Superior Lease or the holder of any Superior Mortgage has declared a
default under such Superior Mortgage and/or is otherwise is entitled to
performance by the tenant under the Superior Lease, and (ii) Tenant
should pay the minimum rent and additional rent thereafter due and
payable under this Lease to said lessor or said holder at a place
designated in such notice, Tenant shall pay such minimum rent and
additional rent to said lessor under said Superior Lease or the holder of
any Superior Mortgage at such designated place until such time as said
lessor or holder shall notify Tenant that Tenant may resume paying all
minimum rent and additional rent thereafter due and payable under this
Lease to Landlord. Tenant shall have no liability to Landlord for paying
any minimum rent or additional rent to said lessor under the Superior
Lease or holder of any Superior Mortgage or otherwise acting in
accordance with the provisions of any notice sent to it under this
paragraph and shall be relieved of its obligations to pay Landlord any
minimum rent or additional rent under this Lease to the extent such
payments are made to said lessor under the Superior Lease or to said
holder under the Superior Mortgage.
Section 25.03. In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, pursuant to the terms of this Lease, if any, Tenant will not
exercise any such right until:
(a) it has given a written notice to cure (concurrently with
any notice given to Landlord), regarding such act or omission to the
holder of any Superior Mortgage and to the lessor of any Superior Lease,
whose names and addresses shall previously have been furnished to Tenant,
addressed to such holder and lessor at the last addresses so furnished,
and
(b) a reasonable period of time (not to exceed the period in
this Lease granted by Landlord) for remedying such act or omission shall
have elapsed following such giving of notice and the expiration of any
grace period applicable thereto in favor of Landlord hereunder, during
which such holder and lessor, or any of them, with reasonable diligence,
following the giving of such notice, shall not have commenced and is or
are not continuing to remedy such act or omission or to cause the same to
be remedied.
45
If Tenant fails to give the notice and cure period to the holder of
any Superior Mortgage and to the lessor of any Superior Lease, then any
termination of this Lease or claim of partial or total eviction by Tenant shall
be deemed null and void.
Section 25.04. If, in connection with obtaining financing for
Landlord's estate in and to the Building as lessee under a Superior Lease, or of
Landlord's interest in any Superior Lease, a banking, insurance or other
recognized institutional lender shall request modifications in this Lease as a
condition to such financing, Tenant will not unreasonably withhold, delay or
defer its consent thereto and its execution and delivery of such modification
agreement, provided that such modifications do not increase the obligations of
Tenant hereunder or adversely affect the leasehold interest hereby created or
Tenant's use and enjoyment of the Demised Premises.
ARTICLE 26
Estoppel Certificate
Each party shall at any time, and from time to time, within ten (10)
days after so requested by the other party execute, acknowledge and deliver to
the other party, a statement addressed to the other party or its designee or the
lessor of any Superior Lease or the holder of any Superior Mortgage encumbering
such Superior Lease and/or the interest of the lessor under the Superior Lease
in and to the Building (a) certifying that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (b) stating the
dates to which the minimum rent and additional rent have been paid, (c) stating
whether or not there exists any default by the other party under this Lease,
and, if so, specifying each such default, and (d) such other information as may
be required by either party or any such lessor or mortgagee, it being intended
that any such statement may be relied upon by Landlord, by any Superior
Mortgagee or prospective mortgagee of any mortgage affecting the Building
described in Schedule B and/or Building and improvements thereon or the lease
hold estate under any Superior Lease affecting the Land and/or Building and
improvements thereon, or may be relied upon by the lessor under any such
Superior Lease or a purchaser of lessee's estate under any such Superior Lease
or any interest therein, or by Tenant or its assignee.
ARTICLE 27
Waiver of Jury Trial
Landlord and Tenant hereby waive the right to trial by jury in any
action or proceeding that may hereafter be instituted against it or in any
action or proceeding on matters which are connected with this Lease, or any of
its provisions or Tenant's use or occupancy of the Demised Premises, including
any claims for injury or damage, or any emergency or other statutory remedy with
respect thereto.
46
ARTICLE 28
Surrender of Premises
Section 28.01. Upon the expiration or other termination of the term
of this Lease, Tenant shall quit and surrender the Demised Premises, vacant,
broom clean, in good order and condition, ordinary wear and tear and damage by
fire or other casualty excepted, and shall remove all its property therefrom,
except as otherwise provided in this Lease. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of the
term of this Lease.
Section 28.02. In the event Tenant shall remain in possession of the
Demised Premises after the expiration or other termination of the term of this
Lease, such holding over shall not constitute a renewal or extension of this
Lease. Landlord, may, at its option, elect to treat Tenant as one who is not
removed at the end of the term, and thereupon be entitled to all of the remedies
against Tenant provided by law in that situation or Landlord may elect to
construe such holding over as a tenancy from month-to-month, subject to all of
the terms and conditions of this Lease, except as to the duration thereof, and
the minimum rent shall be due, in either of such events, at a monthly rental
rate equal to two (2) times the monthly installment of minimum rent which would
otherwise be payable for such month, together with any and all additional rent.
If such holdover continues for over thirty (30) days Tenant shall also be
responsible for and hereby indemnifies Landlord against any claims made by any
succeeding tenant or prospective tenant founded upon Tenant's delay in
surrendering the Demised Premises to Landlord.
ARTICLE 29
Rules and Regulations
Section 29.01. Tenant, its servants, employees, agents, visitors and
licensees shall observe faithfully and comply with the rules and regulations set
forth in Schedule "C" attached hereto and made a part hereof. Landlord shall
have the right from time to time during the term of this Lease to make
reasonable changes in and additions to the rules thus set forth.
Section 29.02. Any failure by Landlord to enforce any rules and
regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a breach hereunder or waiver of any
such rules and regulations. All such rules and regulations shall not be applied
in a discriminatory manner against Tenant.
47
ARTICLE 30
Successors and Assigns and Definitions
Section 30.01. The covenants, conditions and agreements contained in
this Lease shall bind and enure to the benefit of Landlord and Tenant and their
respective distributees, legal representatives, successors and, except as
otherwise provided herein, their assigns.
Section 30.02. The term "Landlord" as used in this Lease, so far as
the covenants and agreements on the part of Landlord are concerned shall be
limited to mean and include only the owner or owners at the time in question of
the tenant's estate under any Superior Lease covering the property described in
Schedule B hereto annexed and/or (but only if the Superior Leases shall
terminate and Tenant shall attorn to the lessor under the Superior Lease which
had terminated) the fee title of Landlord covering the Land and/or the Building
and improvements thereon. In the event of any assignment or assignments of such
tenant's estate or transfer of such title, Landlord herein named (and in case of
any subsequent assignment or transfer, the then assignor or transferor) shall be
automatically freed and relieved from and after the date of such assignment or
transfer of all personal liability with respect to performance of any of
Landlord's covenants and agreements thereafter to be performed, and such
assignee or transferee shall be bound by all of such covenants and agreements;
it being intended that Landlord's covenants and agreements shall be binding on
Landlord, its successors and assigns only during and in respect of their
successive periods of such ownership.
However, in any event, the members in Landlord shall not have any
personal liability or obligation by reason of any default by Landlord under any
of Landlord's covenants and agreements in this Lease. In case of such default,
Tenant will look only to Landlord's estate, as tenant, under such Superior Lease
and/or (but only if the Superior Leases shall terminate and Tenant shall attorn
to the lessor under the Superior Lease which had terminated) its interest in the
Land and/or Building, to recover any loss or damage resulting therefrom; and
Tenant shall have no right to nor shall Tenant assert any claim against nor have
recourse to Landlord's other property or assets to recover such loss or damage.
Section 30.03. All pronouns or any variation thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural as the identity of
the person or persons may require; and if Tenant shall consist of more than one
(1) person, the obligations of such persons, as Tenant, under this Lease, shall
be joint and several.
Section 30.04. The definitions contained in Schedule E annexed
hereto are hereby made a part of this Lease.
48
ARTICLE 31
Notices
Any notice, statement, certificate, request, approval, consent or
demand required or permitted to be given under this Lease shall be in writing
sent by registered or certified mail (or reputable, commercial overnight courier
service) return receipt requested, addressed, as the case may be, to Landlord,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Tenant at 000 Xxxxxxx
Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000, or to such other addresses as Landlord
or Tenant respectively shall designate in the manner herein provided. Such
notice, statement, certificate, request, approval, consent or demand shall be
deemed to have been given three (3) business days after the date when mailed, as
aforesaid, or on the date of delivery by overnight courier.
ARTICLE 32
No Waiver; Entire Agreement
Section 32.01. The specific remedies to which Landlord or Tenant may
resort under the provisions of this Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which Landlord or
Tenant may be lawfully entitled in case of any breach or threatened breach by
the other of any of the terms, covenants and conditions of this Lease. The
failure of Landlord or Tenant to insist upon the strict performance of any of
the terms, covenants and conditions of this Lease, or to exercise any right or
remedy herein contained, shall not be construed as a waiver or relinquishment
for the future of such term, covenant, condition, right or remedy. A receipt by
Landlord or payment by Tenant of minimum rent or additional rent with knowledge
of the breach of any term, covenant or condition of this Lease shall not be
deemed a waiver of such breach. This Lease may not be changed or terminated
orally. In addition to the other remedies in this Lease provided, Landlord and
Tenant shall be entitled to seek to restrain by injunction, the violation or
attempted or threatened violation of any of the terms, covenants and conditions
of this Lease or to a decree, any court having jurisdiction in the matter,
compelling performance of any such terms, covenants and conditions.
Section 32.02. No receipt of monies by Landlord from Tenant, after
any re-entry or after the cancellation or termination of this Lease in any
lawful manner, shall reinstate the Lease; and after the service of notice to
terminate this Lease, or after commencement of any action, proceeding or other
remedy, Landlord may demand, receive and collect any monies due, and apply them
of account of Tenant's obligations under this Lease but without in any respect
affecting such notice, action, proceeding or remedy, except that if a money
judgment is being sought in any such action or proceeding, the amount of such
judgment shall be reduced by such payment.
49
Section 32.03. If Tenant is in arrears in the payment of minimum
rent or additional rent, Tenant waives its right, if any, to designate the items
in arrears against which any payments made by Tenant are to be credited and
Landlord may apply any of such payments to any such items in arrears as
Landlord, in its sole discretion, shall determine, irrespective of any
designation or request by Tenant as to the items against which any such payments
shall be credited.
Section 32.04. No payment by Tenant nor receipt by Landlord of a
lesser amount than may be required to be paid hereunder shall be deemed to be
other than on account of any such payment, nor shall any endorsement or
statement on any check or any letter accompanying any check tendered as payment
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
payment due or pursue any other remedy in this Lease provided.
Section 32.05. This Lease and the Schedules annexed hereto
constitute the entire agreement between Landlord and Tenant referable to the
Demised Premises, and all prior negotiations and agreements are merged herein.
Section 32.06. If any term or provision 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 term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
Section 32.07 It is understood and agreed that this Lease is
submitted to Tenant on the understanding that it shall not be considered an
offer and shall not bind Landlord in any way whatsoever until (i) Tenant has
duly executed and delivered duplicate originals to Landlord, and (ii) Landlord
has executed and delivered one of said fully executed originals to Tenant.
ARTICLE 33
Captions
The captions of Articles in this Lease are inserted only as a matter
of convenience and for reference and they in no way define, limit or describe
the scope of this Lease or the intent of any provision thereof.
50
ARTICLE 34
Inability to Perform
If the performance or observance by Landlord or Tenant of any of the
terms, covenants and conditions of this Lease on the part of Landlord or Tenant
to be performed shall be delayed by reason of unavoidable delays (as hereinafter
defined), the time for the performance or observance thereof shall be extended
for the period of time as Landlord or Tenant shall have been so delayed,
provided Tenant shall continue, notwithstanding unavoidable delays, to be
obligated to pay minimum rent and additional rent.
The words "unavoidable delays", as used in this Lease shall mean (a)
the enactment of any law or issuance of any governmental order, rule or
regulation (i) prohibiting or restricting performance of work of the character
required to be performed by Landlord under this Lease, or (ii) establishing
rationing or priorities in the use of materials, or (iii) restricting the use of
labor, and (b) strikes, lockouts, acts of God, inability to obtain labor or
materials, enemy action, civil commotion, fire, unavoidable casualty or other
similar types of causes beyond the reasonable control of Landlord, other than
financial inability.
ARTICLE 35
No Representations by Landlord
Neither Landlord nor any agent or employee of Landlord has made any
representation whatsoever with respect to the Demised Premises except as
expressly set forth in this Lease.
ARTICLE 36
Security Deposit
Section 36.01. Concurrently with the execution of this Lease, Tenant
shall deposit with Landlord the sum of $200,000.00, either in cash or by Letter
of Credit as provided in Section 36.02, as security for the faithful performance
and observance by Tenant of the terms, provisions and conditions of this Lease.
Tenant agrees that, in the event that Tenant defaults in respect of any of the
terms, provisions and conditions of this Lease (including the payment of minimum
rent and additional rent), after any applicable notice and expiration of any
applicable cure period, Landlord may use, apply or retain the whole or any part
of the cash security so deposited or may notify the "Issuing Bank" (as such term
is defined in Section 36.02) and thereupon receive all of the monies represented
by the said Letter of Credit and use, apply, or retain the whole or any part of
such proceeds, as the case may be, to the extent required for the payment of any
rent, additional rent, or any other sum as to which Tenant is in default, or for
any sum that Landlord may expend or may be required to expend by reason of
Tenant's default, in respect of any of the terms, covenants and conditions of
this Lease (including any damages or deficiency accrued before or after summary
proceedings or other re-entry by
51
Landlord). In the event that Landlord applies or retains any portion or all of
the cash security or the proceeds of such Letter of Credit, as the case may be,
Tenant shall, within five (5) days after demand by Landlord, restore the amount
so applied or retained so that, at all times, the amount deposited shall be
$200,000.00. Upon Tenant's making such additional deposit, Landlord is hereby
authorized to act as Tenant's agent to use the proceeds of the Letter of Credit
to obtain a new Letter of Credit and Tenant hereby irrevocable appoints Landlord
as Tenant's agent and attorney-in-fact to obtain a replacement Letter of Credit
from the Issuing Bank or any other qualifying bank (such qualifying bank shall
then be the Issuing Bank). If Tenant shall fail or refuse to make such
additional deposit, Landlord shall have the same rights in law and in equity and
under this Lease as it has with respect to a default by Tenant in the payment of
minimum rent. In the event that Tenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this Lease, the cash
security or Letter of Credit, as the case may be, shall be returned to Tenant
within twenty (20) days after the expiration date and after delivery of
possession of the entire Demised Premises to Landlord in the condition provided
in this Lease for such delivery of possession.
Section 36.02. Such letter of credit (the "Letter of Credit") shall
be a clean, irrevocable and unconditional Letter of Credit issued by and drawn
upon any commercial bank (the "Issuing Bank") with offices for banking purposes
in the City of New York and having combined capital and surplus of not less than
$100,000,000.00, which Letter of Credit shall have an initial term of not less
than one year or thereafter having a term expiring not less than ninety (90)
days following the expiration of the term of this Lease, shall permit multiple
drawings, shall be transferable by the beneficiary at one or more occasions at
no charge to the beneficiary and otherwise be in form and content satisfactory
to Landlord, be for the account of Landlord and be in the amount of $200,000.00.
Notwithstanding the foregoing, if at any time the combined capital and surplus
of the Issuing Bank is less than $100,000,000.00 or its rating is downgraded
from its current rating, and provided Tenant does not replace the existing
Letter of Credit with a Letter of Credit meeting the criteria of Section 36.02
within the sooner of thirty (30) days following Tenant's receipt of Landlord's
notice to Tenant of either of the foregoing events or the number of days
remaining until the expiration date of the existing Letter of Credit, Landlord
shall have the right, at any time thereafter, to draw down the entire proceeds
pursuant to the terms of Section 36.01 as cash security pending the replacement
of such Letter of Credit. The Letter of Credit shall provide that:
(a) the Issuing Bank shall pay to Landlord or its duly
authorized representative an amount up to the face amount of the Letter
of Credit upon presentation of the Letter of Credit and a sight draft, in
the amount to be drawn;
(b) it shall be deemed automatically renewed, without
amendment, for consecutive periods of one (1) year each thereafter during
the term of this Lease, unless Issuing Bank sends written notice
(hereinafter referred to as the Non-Renewal Notice) to Landlord by
certified or registered
52
mail, return receipt requested, not less than sixty (60) days next
preceding the expiration date of the Letter of Credit that it elects not
to have the Letter of Credit renewed, and it being agreed that the giving
of such Non-Renewal Notice shall for the purpose of this Article 37 be
deemed a default under this Lease, unless Tenant replaces the Letter of
Credit with a substitute Letter of Credit meeting the criteria of this
Section 36.02 or with a cash deposit at least thirty (30) days prior to
the expiration date of the Letter of Credit.
(c) Landlord, subsequent to its receipt of a Non-Renewal
Notice, and prior to the expiration date of the Letter of Credit, shall
have the right, exercisable by means of sight draft, to receive the
monies represented by the Letter of Credit and hold such proceeds
pursuant to the terms of Section 36.01 as cash security pending the
replacement of such Letter of Credit; and
(d) upon Landlord's sale or assignment of its estate as Tenant
under any Superior Lease, the Letter of Credit shall be transferable by
Landlord, as provided in Section 36.03.
Section 36.03. At any time, and from time to time during the term of
this Lease, if Landlord is then holding a cash security deposit, Tenant may
substitute a Letter of Credit to replace the same and the cash will then be
returned to Tenant, or if Landlord is then holding a Letter of Credit as
security, Tenant may deposit cash with Landlord to replace the Letter of Credit
and Landlord will then return the Letter of Credit to Tenant.
Section 36.04. In the event Landlord's estate as tenant under any
Superior Lease is sold or assigned, or (if the Superior Lease shall terminate
and Tenant shall attorn to the lessor under the Superior Lease which had
terminated) the fee title of Landlord covering the Land and/or Building is
transferable or conveyed, Landlord shall have the right to transfer the Letter
of Credit then held by Landlord to the vendee, transferee or assignee, and
Landlord shall thereupon be released by Tenant from all liability for the return
of such Letter of Credit. In such event, Tenant agrees to look solely to the new
Landlord for the return of said Letter of Credit. It is agreed that the
provisions hereof shall apply to every transfer or assignment made of the Letter
of Credit to a new Landlord.
Section 36.05. Tenant covenants that it will not assign or encumber,
or attempt to assign or encumber, the Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance.
Section 36.06. The use of the security, as provided in this Article,
shall not be deemed or construed as a waiver of Tenant's default or as a waiver
of any other rights and remedies to which Landlord may be entitled under the
provisions of this Lease by reason of such default, it being intended that
Landlord's rights to use the whole or any
53
part of the security shall be in addition to but not in limitation of any such
other rights and remedies; and Landlord may exercise any of such other rights
and remedies independent of or in conjunction with its rights under this
Article.
ARTICLE 37
Late Payment Charges
If Tenant shall fail to pay any minimum rent or additional rent
within ten (10) days after its due date, Tenant shall pay a late charge of $.05
for each $1.00 which remains unpaid after such period to compensate Landlord for
additional expense in processing such late payment. In addition, if Tenant fails
to pay any minimum rent or additional rent within fifteen (15) days after its
due date, Tenant shall pay interest thereon from the date due until the date
paid at the rate of one (1%) percent per month. If any check of Tenant in
payment of any sum due under this Lease, including but not limited to minimum
rent and additional rent, fails to clear the bank, Tenant shall pay a charge of
$100.00.
ARTICLE 38
Rent Control
In the event the minimum rent and/or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this Lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any federal, state, county or city law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, code or regulations of any organization or entity
formed pursuant to law, Tenant shall enter into such agreement(s) and take such
other steps (without additional expense or liability 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 minimum rent and/or additional rent 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
promptly upon being billed, to the maximum extent legally permissible, an amount
equal to (i) minimum rent and/or additional rent which would have been paid
pursuant to
54
this Lease but for such legal rent restriction less (ii) the rents paid by
Tenant during the period such legal rent restriction was in effect.
ARTICLE 39
Supplemental Air Conditioning
Section 39.01 Tenant, at its cost, subject to the provisions of
Article 5 of the Lease, may also install up to five (5) tons of condenser water
cooled supplemental air conditioning equipment in the Additional Premises, such
installation to be in accordance with plans and specifications to be approved by
Landlord, which approval shall not be unreasonably withheld or delayed (the five
(5) ton air conditioning equipment being hereinafter collectively called the
"Equipment"). Tenant, at its own cost, shall maintain all such Equipment in good
condition and repair and shall make any replacements thereof as may be required.
Tenant, at its own expense, shall obtain in its own name the use permits for
such Equipment and provide Landlord with copies of same. Tenant shall also
obtain and pay for all annual renewal fees in connection therewith, and provide
Landlord with a copy of such annual renewals. Tenant shall indemnify and hold
Landlord harmless from and against any loss, claims, costs and expenses
(including reasonable attorneys' fees) in connection with the repair and
maintenance of said Equipment, excluding any claims resulting from Landlord's or
any of its employees, contractors, agents or invitees negligence or willful
misconduct. Tenant, at its cost, shall install a device to measure the hours of
operation of the Equipment, which device is capable of providing a print-out
verifying the date and time of usage and shall be read by Landlord. All such
Equipment shall be subject to the determination by Landlord's electrical
consultant, whose reasonable fees shall be paid by Tenant, of the cost of the
additional electricity consumed by Tenant with respect to the use and operation
of all such Equipment. Tenant, as additional rent, agrees to pay for the cost of
electricity as determined by said consultant, within twenty (20) days after
submission to Tenant of bills therefor. Any disputes as to the amount of such
billing shall be resolved in the manner provided in Section 23.02. Tenant, at
its cost, may tap into the existing Building condenser water riser and use up to
five (5) tons of condenser water. Tenant shall pay to Landlord a one time tap-in
charge of $1,250.00.
Section 39.02 With respect to Tenant's use of condenser water,
Tenant shall pay to Landlord during each month of the term of this Lease, an
amount (the "Monthly Condenser Water Amount") equal to the product obtained by
multiplying (i) the number of tons of condenser water connected to the condenser
water riser, to wit, five (5), times (ii) 1/12th of the Condenser Water Charge
(as hereinafter defined) in effect for the calendar year in which such month
occurs. Landlord shall furnish bills to Tenant from time to time for the Monthly
Condenser Water Amount and Tenant shall pay each such xxxx within ten (10) days
after its receipt thereof. As of the Commencement Date, the "Condenser Water
Charge" is One Thousand Two Hundred Fifty Dollars ($1,250) per ton of cooling
capacity, per annum. Landlord shall have the right to increase the Condenser
Water Charge from
55
time to time based on Landlord's increased costs and expenses with respect to
supplying condenser water to the System.
ARTICLE 40
Landlord's Reimbursement Contribution
Subject to the provisions of Article 5 of this Lease, Tenant agrees
to perform the initial work and installations required to make the Demised
Premises suitable for the conduct of Tenant's business. Tenant, on or before
March 1, 2006, agrees to deliver to Landlord, for Landlord's approval, the plans
and specifications for Tenant's initial work, which approval shall not be
unreasonably withheld or delayed with respect to non-structural interior work
which does not adversely affect the Building systems. Tenant agrees to commence
its work promptly after Landlord's approval of Tenant's plans and thereafter
complete its work and commence business in the Premises within one hundred fifty
(150) days following Landlord's approval of Tenant's plans. Landlord agrees to
reimburse Tenant up to the sum of $20,000.00 ("Landlord's Reimbursement
Contribution") toward the cost of such work, which shall include hard and soft
costs. Landlord shall pay to Tenant, the cost of the work requested by Tenant,
not to exceed the Landlord's Reimbursement Contribution, theretofore performed
by the contractor, which shall include any general contractor and all
subcontractors hired by the general contractor, provided Tenant delivers to
Landlord concurrently with its request, paid bills of the contractor, including
any general contractor and subcontractor, involved and approved by Tenant, a
certificate by Tenant's architect, if any, that such paid bills have been
approved and the work or materials evidenced by such bills have been
satisfactorily completed in accordance with all applicable governmental
requirements and a waiver of mechanic's lien signed by the contractor, including
any general contractor and subcontractor, with respect to the amount paid as
evidenced by the paid xxxx, such payment to be made to Tenant within thirty (30)
days after receipt of Tenant's request together with the aforesaid
documentation. Landlord shall have no obligation or responsibility to pay any
cost exceeding the amount of Landlord's Reimbursement Contribution. If the
amount Tenant expends for the cost exceeds the amount of Landlord's
Reimbursement Contribution, Tenant shall be responsible for the payment to the
contractors of the excess. If said amount is less than the amount of Landlord's
Reimbursement Contribution, Landlord shall not be obligated to pay such
difference to Tenant. Tenant shall indemnify and hold Landlord harmless from and
against any and all claims, costs and expenses, including but not limited to
attorneys' fees, in connection or relating to the initial work performed
pursuant to this Article.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
00
XXXXX XXXXXX XXXXXXXX COMPANY LLC
By: Fifth Avenue Tower Corp.
Its managing member
By: /s/ Xxxxxxx Xxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxxx Xxxxx, President
XXXX XXXXXXX AUCTIONS, INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer and Executive
Vice President
57
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF NEW YORK. )
: ss.:
COUNTY OF NEW YORK )
On the day of in the year 2005 before me, the undersigned, a Notary
Public in and said State, personally appeared Xxxxxxx Xxxxxx Xxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
_____________________________________
Notary Public
STATE OF NEW YORK. )
: ss.:
COUNTY OF NEW YORK )
On the day of in the year 2005 before me, the undersigned, a Notary
Public in and said State, personally appeared ______________________, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
_____________________________________
Notary Public
58
SCHEDULE A
Floor Plan
[GRAPHIC OMITTED]
59
SCHEDULE B
----------
Description of Land
That certain plot, piece or parcel or land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at a point on the southerly side of Xxxx 00xx Xxxxxx distant 208 feet
easterly from the corner formed by the southerly side of Xxxx 00xx Xxxxxx and
the easterly side of Fifth Avenue;
RUNNING THENCE easterly along the southerly side of Xxxx 00xx Xxxxxx 85 feet 10
inches to a point distant 126 feet 2 inches westerly, as measured along the
southerly side of Xxxx 00xx Xxxxxx from the corner formed by the southerly side
of Xxxx 00xx Xxxxxx and the westerly side of Madison Avenue;
RUNNING THENCE southerly at right angles to the last mentioned course 100 feet 5
inches to the center line of the block;
THENCE easterly along the center line of the block 6 feet 2 inches to a point;
THENCE southerly, at right angles to the last mentioned course 100 feet 5 inches
to the northerly side of Xxxx 00xx Xxxxxx;
THENCE westerly along the northerly side of East 49th street 100 feet to a
point;
THENCE northerly, at right angles to the last mentioned course, 60 feet 5 inches
to a point;
THENCE easterly at right angles to the last mentioned course, 60 feet 5 inches
to a point;
THENCE northerly, at right angles to the last mentioned course 77 feet 5 inches
to a point;
THENCE westerly, at right angles to the last mentioned course 20 feet 5 inches
to a point;
THENCE northerly, at right angles to the last mentioned course 63 feet 0 inches
to the southerly side of 50th Street, the point or place of BEGINNING.
60
SCHEDULE C
----------
Rules and Regulations
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees, guests,
customers and invitees, and no tenant shall use, or permit the use of, the
entrances, corridors, escalators or elevators for any other purpose. No tenant
shall invite to the tenant's premises, or permit the visit of, persons in such
numbers or under such conditions as to interfere with the use and enjoyment of
any of the plazas, entrances, corridors, escalators, elevators and other
facilities of the Building by other tenants. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purposes by the
tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, escalators, elevators, fire exits or stairways of
the Building. The Landlord reserves the right to control and operate the public
portions of the Building 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. Landlord further reserves the right, at
any time, to install a message/package center in an area in the Building
designated by Landlord and reasonably accessible to and for the common use of
tenant's, and the tenants shall comply with the procedures for the same set
forth by the Landlord.
2. The reasonable cost of repairing any damage to the public
portions of the Building or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or the employees, licensees or
invitees of the tenant, shall be paid by such tenant.
3. The Landlord may refuse admission to the Building at any time to
any person not having a pass issued by the Landlord, and may require all persons
admitted to or leaving the Building outside of ordinary business hours to
register. Tenant's employees, agents and visitors shall be permitted to enter
and leave the building during and after ordinary business hours, subject to the
reasonable requirements of Landlord, including but not limited to reasonable
non-discriminatory use by Landlord of reasonable security scanners and
reasonable security detection equipment. Each tenant shall be responsible for
all persons for whom he requests such permission and shall be liable to the
Landlord for all acts of such persons. Tenant shall obtain identification cards
to be issued by Landlord for each employee and shall pay the Landlord's Building
standard charge therefor. Any person whose presence in the Building at any time
shall, in the judgment of the Landlord, be prejudicial to the safety, character,
reputation and interests of the Building or its tenants may be denied access to
the Building or may be rejected therefrom. In case of invasion, riot, public
excitement or other commotion the Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or otherwise,
for the safety of the tenants and protection of property in the Building. The
Landlord may require any person leaving the Building with any package or other
object to exhibit a pass
61
from the tenant from whose premises the package or object is being removed, but
the establishment and enforcement of such requirement shall not impose any
responsibility on the Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. The Landlord shall, in no
way, be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the tenant's premises or the
Building under the provisions of this rule.
4. No tenant shall obtain or accept for use in its premises towel,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning or
other similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided always that the charges for such
services by persons authorized by the Landlord are comparable to the industry
charge. Such services shall be furnished only at such hours, in such places
within the tenant's premises and under such reasonable regulations as may be
fixed by the Landlord.
5. No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of
the Building, either by the Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
7. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left open
at any time. All windows in each tenant's premises if operable shall be kept
closed at all times and all blinds therein above the ground floor shall be
lowered when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
8. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of the Landlord, might disturb other
tenants in the Building shall be made or permitted by any tenant. Nothing shall
be done or permitted in any tenant's premises, and nothing shall be brought into
or kept in any tenant's premises, which would impair or interfere with any of
the Building services or the proper and economic heating, cleaning or other
servicing of the Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of the Landlord, might cause any such impairment or
interference. No dangerous, flammable, combustible or explosive object or
material shall be brought into the Building by any tenant or with the permission
of any tenant.
9. Tenant shall not permit any cooking or food odors emanating
within the Demised Premises to seep into other portions of the Building.
62
10. No acids, vapor or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purpose for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
11. No signs, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside of the Building or inside the premises if visible from the
outside without the prior written consent of the 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 by such removal to the tenant
or tenants violating this rule. Interior signs and lettering on doors and
elevators shall be inscribed, painted, or affixed for each tenant by Landlord at
the expense of such tenant, (the charge not to exceed that which a reputable
outside contractor would charge), and shall be of a size, color and style
reasonably acceptable to Landlord. Landlord shall have the right to prohibit any
advertising by any tenant which impairs the reputation of the building or its
desirability as a building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
12. No additional locks or belts of any kind shall be placed upon
any of the doors or windows in any tenant's premises and no lock on any door
therein shall be changed or altered in any respect. Upon the termination of a
tenant's lease, all keys of the tenant's premises and toilet rooms shall be
delivered to the Landlord.
13. No tenant shall xxxx, paint, drill into or in any way deface any
part of the Building or the premises demised to such tenant. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Landlord, which will not be unreasonably withheld or delayed, and as Landlord
may reasonably direct. No tenant shall install any resilient tile or similar
floor covering in the premises demised to such tenant except in a manner
approved by Landlord.
14. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a xxxxxx or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any time,
as a store for the sale or display of goods, wares or merchandise of any kind,
or as a restaurant, shop, booth, bootblack or other stand, or for the conduct of
any business or occupation
63
which predominantly involves direct patronage of the general public in the
premises demised to such tenant, or for manufacturing or for other similar
purposes.
16. The requirements of tenants will be attended only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the Landlord.
17. Each tenant shall, at its expense, provide artificial light in
the premises demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and making
repairs or alterations in said premises.
18. The tenant's employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
19. If the premises demised to any tenant become infested with
vermin, such tenant, at its sole cost and expense, shall cause its premises to
be exterminated, from time to time, to the satisfaction of Landlord and shall
employ such exterminators therefor as shall be approved by Landlord.
20. No bicycle or other vehicle and no animals shall be allowed in
the showrooms, offices, halls, corridors or any other parts of the Building.
21. Tenant shall not, without Landlord's prior written consent,
install or operate any heating device, refrigerating or air conditioning
equipment, steam or internal combustion engine, boiler, stove, machinery or
mechanical devices upon the premises or carry on any mechanical or manufacturing
business thereon, or use or permit to be brought into the Building flammable
fluids such as gasoline, kerosene, benzene or naphtha or use any illumination
other than electric lights. All equipment, fixtures, lamps and bulbs shall be
compatible with, and not exceed the capacity of the Building's electric system.
No explosives, firearms, radioactive or toxic or hazardous substances or
materials, or other articles deemed hazardous to life, limb or property shall be
brought into the Building or the Premises.
22. Tenant must list all furniture and fixtures to be taken from the
Building upon a form approved by Landlord. Such list shall be presented at the
office of the Building for approval before acceptance by the security officer or
elevator operator.
23. Tenant, its customers, invitees, licensees, agents, servants,
employees and guests shall not encumber or obstruct sidewalks, entrances,
passages, courts, vestibules, halls, elevators, stairways or other common areas
in or about the Building.
64
24. Tenant shall not allow anything to be placed against or near the
glass in the partitions between the premises and the halls or corridors of the
Building which shall diminish the light in the halls or corridors.
25. Upon termination of this Lease, Tenant shall surrender all keys
of the premises and of the Building and give to Landlord the explanation of the
combination of all locks on safes or vault doors in the Premises.
26. Tenant shall provide the Building Manager with keys to all locks
on any doors of the premises. The Building Manager shall be allowed admittance
to the premises in the event of any emergency, fire or other casualty that may
arise in other appropriate instances.
27. Unless otherwise advised by Landlord, neither Tenant nor its
employees shall undertake to regulate the radiator controls of thermostats.
Tenant shall report to the office of the Building whenever such thermostats or
radiator controls are not working properly or satisfactorily.
28. All window treatments that are visible from the street shall be
subject to Landlord's approval.
29. Tenant assumes full responsibility for protecting its space from
weather, theft, robbery and pilferage, which includes keeping doors locked and
other means of entry into the premises closed and secured.
30. Tenant shall not sell food of any kind or xxxx in the Building.
Tenant may serve complimentary foods to its guests provided that it shall first
comply with all Legal Requirements.
31. Water in the premises shall not be wasted by Tenant or its
employees by tying or wedging back the faucets of the washbowls or otherwise.
32. All messengers shall be required to sign in and obtain a pass
from either the front desk or the elevator starters. Contractors and other
workmen shall use only the freight elevators for all movement within the
Building.
33. Landlord reserves the right at any time, to install a
message/package center in an area in the Building designated by Landlord and
reasonably accessible to and for the common use of the tenants, and tenants
shall comply with the procedures for the same set forth by the Landlord.
65
SCHEDULE D
----------
Cleaning Specifications
for
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Landlord will perform cleaning services in the Demised Premises and related
areas as follows:
NIGHTLY
-------
Empty and wipe clean all waste receptacles.
Wipe clean all accessible areas within hand high reach; including
but not limited to window xxxxx, wall ledgers, chairs, desks,
tables, file cabinets, convector enclosures, pictures and all
manner of office furniture.
Wipe clean all glass top desks and tables.
Sweep with treated cloths all composition tile flooring.
Carpet sweep all carpeted areas, and vacuum clean weekly.
CORE LAVATORIES (Nightly or as otherwise designated)
---------------
Wash and dry all bowls, seats urinals, washbasins and mirrors.
Wash and wipe dry all metal work.
Insert toilet tissue, toweling and soap
Empty paper towel and sanitary napkin disposal receptacles and
remove to designated area.
Sweep and wash floors.
Wipe clean all xxxxx, partitions and ledges.
Wipe clean exterior of waste cans and dispensing units.
Wash partitions monthly.
66
Wash tile walls monthly.
Wash and dry interior of waste cans and sanitary disposal
containers weekly.
WINDOW CLEANING SERVICES
------------------------
Clean all exterior windows, inside and out periodically during
the year, as Landlord deems necessary.
RUBBISH REMOVAL SERVICES
------------------------
Empty all ordinary dry rubbish waste baskets used in the normal
course of business from the office premises daily, Monday
through Friday, holidays and week ends excepted.
67
SCHEDULE E
----------
Definitions
(a) The term mortgage shall include an indenture of mortgage and
deed of trust to a trustee to secure an issue of bond, encumbering on the
leasehold estate under a Superior Lease, and the term mortgagee shall include
such a trustee.
(b) The terms include, including and such as shall each be construed
as if followed by phrase "without being limited to".
(c) The term obligations of this lease, and words of like import,
shall mean the covenants to pay rent and additional rent under this lease and
all of the other covenants and conditions contained in 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.
(d) The term Tenant's obligations 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 under this Lease shall be construed as "performance
and observance".
(e) Reference to Tenant being or not being in default hereunder, or
words of like import, shall mean that Tenant is in default, after notice and
expiration of any applicable cure period, in the performance of one or more of
Tenant's obligations hereunder, or that Tenant is not in default, after notice
and expiration of any applicable cure period, in the performance of any of
Tenant's obligations hereunder, or that a condition of the character described
in Section 16.01 has occurred and continues or has not occurred or does not
continue, as the case may be.
(f) References 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 total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated for loss or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Demised Premises.
(g) The term laws and/or requirements of public authorities and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other
68
governmental, public or quasi-public authorities, having jurisdiction in the
premises, and/or the direction of any public officer pursuant to law.
(h) The term requirements of insurance bodies and words of like
import shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(i) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(j) Reference to termination of this lease includes expiration or
earlier termination of the term of this lease or cancellation of this Lease
pursuant to any of provisions of this lease or to law. Upon a 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 date of expiration of the Term of
this Lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this Lease, or (ii) except for such obligation as by its 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 have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
(k) The term Tenant shall mean Tenant herein named or any assignee
or other successor in interest (immediate or remote) of Tenant herein named,
while such Tenant or such assignee or other successor in interest, as the case
may be, is in possession of the Demised Premises as owner of Tenant's estate and
interest granted by this lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
(l) 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.
(m) 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.
69
