EXHIBIT 10.13
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AGREEMENT OF LEASE
between
ELEVEN PENN PLAZA LLC
Landlord
and
XXXX.XXX, INC.
Tenant
Portion of the 0xx Xxxxx
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
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PROSKAUER ROSE LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TABLE OF CONTENTS
DEFINITIONS............................................................... 1
ARTICLE 1 - DEMISE, PREMISES, TERM, RENT................................. 8
ARTICLE 2 - USE AND OCCUPANCY............................................ 8
ARTICLE 3 - ALTERATIONS.................................................. 9
ARTICLE 4 - REPAIRS-FLOOR LOAD........................................... 12
ARTICLE 5 - WINDOW CLEANING.............................................. 14
ARTICLE 6 - REQUIREMENTS OF LAW.......................................... 14
ARTICLE 7 - SUBORDINATION................................................ 16
ARTICLE 8 - RULES AND REGULATIONS........................................ 19
ARTICLE 9 - INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT............ 19
ARTICLE 10 - DESTRUCTION-FIRE OR OTHER CAUSE.............................. 21
ARTICLE 11 - EMINENT DOMAIN............................................... 25
ARTICLE 12 - ASSIGNMENT, SUBLETTING, MORTGAGE, ETC........................ 26
ARTICLE 13 - ELECTRICITY ................................................ 39
ARTICLE 14 - ACCESS TO PREMISES........................................... 44
ARTICLE 15 - CERTIFICATE OF OCCUPANCY..................................... 45
ARTICLE 16 - DEFAULT...................................................... 46
ARTICLE 17 - REMEDIES AND DAMAGES......................................... 49
ARTICLE 18 - LANDLORD FEES AND EXPENSES................................... 51
ARTICLE 19 - NO REPRESENTATIONS BY LANDLORD............................... 52
ARTICLE 20 - END OF TERM.................................................. 52
ARTICLE 21 - QUIET ENJOYMENT.............................................. 53
ARTICLE 22 - FAILURE TO GIVE POSSESSION................................... 53
ARTICLE 23 - NO WAIVER.................................................... 53
ARTICLE 24 - WAIVER OF TRIAL BY JURY...................................... 54
ARTICLE 25 - INABILITY TO PERFORM......................................... 55
ARTICLE 26 - BILLS AND NOTICES............................................ 55
ARTICLE 27 - ESCALATION................................................... 56
ARTICLE 28 - SERVICES..................................................... 61
ARTICLE 29 - PARTNERSHIP TENANT........................................... 64
ARTICLE 30 - VAULT SPACE.................................................. 65
ARTICLE 31 - INTENTIONALLY OMITTED PRIOR TO EXECUTION..................... 65
ARTICLE 32 - CAPTIONS..................................................... 65
ARTICLE 33 - PARTIES BOUND................................................ 65
ARTICLE 34 - BROKER....................................................... 65
ARTICLE 35 - INDEMNITY.................................................... 66
ARTICLE 36 - ADJACENT EXCAVATION-SHORING.................................. 67
ARTICLE 37 - MISCELLANEOUS................................................ 68
ARTICLE 38 - RENT CONTROL................................................. 71
Schedule A - Rules and Regulations
Schedule B - Cleaning Specifications
EXHIBIT "A" - Floor Plan
AGREEMENT OF LEASE, made as of the 16th day of March, 1999, between
Landlord and Tenant.
W I T N E S S E T H :
The parties hereto, for themselves, their legal representatives, successors
and assigns, hereby covenant as follows.
DEFINITIONS
"AFFILIATE" shall mean a Person which shall (1) Control, (2) be under the
Control of, or (3) be under common Control with the Person in question.
"ALTERATION FEE" shall have the meaning set forth in Section 3.2 hereof.
"ALTERATIONS" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations) in or about the
Premises.
"APPLICABLE RATE" shall mean the lesser of (x) two (2) percentage points
above the then current Base Rate, and (y) the maximum rate permitted by
applicable law.
"ASSESSED VALUATION" shall have the meaning set forth in Section 27.1
hereof.
"ASSIGNMENT PROCEEDS" shall have the meaning set forth in Section 12.8
hereof.
"ASSIGNMENT STATEMENT" shall have the meaning set forth in Section 12.8
hereof.
"BANKRUPTCY CODE" shall mean 11 U.S.C. Section 101 et seq., or any statute
of similar nature and purpose.
"BASE RATE" shall mean the rate of interest publicly announced from time to
time by The Chase Manhattan Bank, N.A., or its successor, as its "prime lending
rate" (or such other term as may be used by The Chase Manhattan Bank, N.A., from
time to time, for the rate presently referred to as its "prime lending rate"),
which rate was 7.75% on February 16, 1999.
"BASE TAXES" shall have the meaning set forth in Section 27.1 hereof.
"BROKER" shall have the meaning set forth in Article 34 hereof.
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"BUILDING" shall mean all the buildings, equipment and other improvements
and appurtenances of every kind and description now located or hereafter
erected, constructed or placed upon the land and any and all alterations, and
replacements thereof, additions thereto and substitutions therefor, known by the
address of 00 Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx.
"BUILDING SYSTEMS" shall mean the mechanical, gas, electrical, sanitary,
heating, air conditioning, ventilating, elevator, plumbing, life-safety and
other service systems of the Building.
"BUSINESS DAYS" shall mean all days, excluding Saturdays, Sundays and all
days observed by either the State of New York or the Federal Government and by
the labor unions servicing the Building as legal holidays.
"COMMENCEMENT DATE" shall have the meaning set forth in Section 1.1 hereof.
"COMPARISON YEAR" shall have the meaning set forth in Section 27.1 hereof.
"CONSUMER PRICE INDEX" shall mean the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, New York, N.Y. - Northeastern N.J. Area, All Items (1982-84
= 100), or any successor index thereto, appropriately adjusted. In the event
that the Consumer Price Index is converted to a different standard reference
base or otherwise revised, the determination of adjustments provided for herein
shall be made with the use of such conversion factor, formula or table for
converting the Consumer Price Index as may be published by the Bureau of Labor
Statistics or, if said Bureau shall not publish the same, then with the use of
such conversion factor, formula or table as may be published by Xxxxxxxx-Xxxx,
Inc., or any other nationally recognized publisher of similar statistical
information. If the Consumer Price Index ceases to be published, and there is no
successor thereto, such other index as Landlord and Tenant shall agree upon in
writing shall be substituted for the Consumer Price Index. If Landlord and
Tenant are unable to agree as to such substituted index, such matter shall be
submitted to the American Arbitration Association or any successor organization
for determination in accordance with the regulations and procedures thereof then
obtaining for commercial arbitration.
"CONTROL" or "CONTROL" shall mean ownership of more than fifty percent
(50%) of the outstanding voting stock of a corporation or other majority equity
and control interest if not a corporation and the possession of power to direct
or cause the direction of the management and policy of such corporation or other
entity, whether through the ownership of voting securities, by statute or
according to the provisions of a contract.
"DEFICIENCY" shall have the meaning set forth in Section 17.2 hereof.
"ELECTRICITY ADDITIONAL RENT" shall have the meaning set forth in Section
13.3 hereof.
"ELECTRICITY INCLUSION FACTOR" shall have the meaning set forth in Section
13.2 hereof.
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"ELECTRICITY STATEMENT" shall have the meaning set forth in Section 13.2
hereof.
"ESCALATION RENT" shall mean, individually or collectively, the Tax Payment
and the Xxxxxx'x Wage Payment.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 16.1 hereof.
"EXPIRATION DATE" shall mean the Fixed Expiration Date or such earlier date
on which the Term shall sooner end pursuant to any of the terms, conditions or
covenants of this Lease or pursuant to law.
"FIXED EXPIRATION DATE" shall have the meaning set forth in Section 1.1
hereof.
"FIXED RENT" shall have the meaning set forth in Section 1.1 hereof.
"FULL VALUE" shall have the meaning set forth in Section 13.2 hereof.
"GOVERNMENTAL AUTHORITY (AUTHORITIES)" shall mean the United States of
America, the State of New York, the City of New York, any political subdivision
thereof and any agency, department, commission, board, bureau or instrumentality
of any of the foregoing, or any quasi-governmental authority, now existing or
hereafter created, having jurisdiction over the Real Property or any portion
thereof.
"HVAC" shall mean heat, ventilation and air conditioning.
"HVAC Systems" shall mean the Building Systems providing HVAC.
"INCREASE" shall have the meaning set forth in Section 27.4 hereof.
"INDEMNITEES" shall mean Landlord, the members and partners comprising
Landlord and its and their members, partners, shareholders, officers, directors,
employees, agents and contractors, Lessors and Mortgagees.
"INITIAL ALTERATIONS" shall mean the Alterations to be made by Tenant to
initially prepare the Premises for Tenant's occupancy.
"LANDLORD", on the date as of which this Lease is made, shall mean Eleven
Penn Plaza LLC, a New York limited liability company, having an office c/o MRC
Management LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, but thereafter,
"Landlord" shall mean only the fee owner of the Real Property or if there shall
exist a Superior Lease, the tenant thereunder.
"LANDLORD'S ENGINEER" shall have the meaning set forth in Section 13.2
hereof.
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"LANDLORD'S WORK" shall have the meaning set forth in Section 19.1 hereof.
"LESSOR(S)" shall mean a lessor under a Superior Lease.
"LETTER OF CREDIt" shall have the meaning set forth in Article 31 hereof.
"LOCAL 32B" shall have the meaning set forth in Section 27.1 hereof.
"LONG LEAD WORk" shall mean any item which is not a stock item and must be
specially manufactured, fabricated or installed or is of such an unusual,
delicate or fragile nature that there is a substantial risk that
(i) there will be a delay in its manufacture, fabrication, delivery
or installation, or
(ii) after delivery, such item will need to be reshipped or
redelivered or repaired
so that in Landlord's reasonable judgment the item in question cannot be
completed when the standard items are completed even though the item of Long
Lead Work in question is (1) ordered together with the other items required and
(2) installed or performed (after the manufacture or fabrication thereof) in the
order and sequence that such Long Lead Work and other items are normally
installed or performed in accordance with good construction practice. In
addition, "Long Lead Work" shall include any standard item which in accordance
with good construction practice should be completed after the completion of any
item of work in the nature of the items described in the immediately preceding
sentence.
"MORTGAGE(S)" shall mean any trust indenture or mortgage which may now or
hereafter affect the Real Property, the Building or any Superior Lease and the
leasehold interest created thereby, and all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder.
"MORTGAGEE(S)" shall mean any trustee, mortgagee or holder of a Mortgage.
"OVERTIME PERIODS" shall have the meaning set forth in Section 28.3 hereof.
"PARTIES" shall have the meaning set forth in Section 37.2 hereof.
"PARTNER" or "PARTNER" shall mean any partner of Tenant, any employee of a
professional corporation which is a partner comprising Tenant, and any
shareholder of Tenant if Tenant shall become a professional corporation.
"PARTNERSHIP TENANT" shall have the meaning set forth in Article 29 hereof.
"PERSON(S) or PERSON(S)" shall mean any natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
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"PORTERS" shall have the meaning set forth in Section 27.1 hereof.
"XXXXXX'X WAGE FACTOR" shall have the meaning set forth in Section 27.1
hereof.
"PORTERS' WAGE PAYMENT" shall have the meaning set forth in Section 27.1
hereof.
"PREMISES" shall mean, subject to the provisions of Section 14.4 hereof,
the portion of the fourth (4th) floor of the Building as set forth on the floor
plans attached hereto and made a part hereof as EXHIBIT "A".
"PREVAILING RATE" shall have the meaning set forth in Section 12.6 hereof.
"RAB" shall have the meaning set forth in Section 27.1 hereof.
"REAL PROPERTY" shall mean the Building, together with the plot of land
upon which it stands.
"RECAPTURE SPACE" shall have the meaning set forth in Section 12.6 hereof.
"RECAPTURE SUBLEASE" shall have the meaning set forth in Section 12.6
hereof.
"RELATED ENTITY" shall have the meaning set forth in Section 12.4 hereof.
"RENTAL" shall mean and be deemed to include Fixed Rent, Escalation Rent,
all additional rent and any other sums payable by Tenant hereunder.
"RENT COMMENCEMENT DATE" shall mean the date which is four (4) months after
the Commencement Date.
"RENT PER SQUARE FOOT" shall have the meaning set forth in Section 12.7
hereof.
"REPLACED PREMISES" shall have the meaning set forth in Section 37.12
hereof.
"REQUIREMENT PERIOD" shall have the meaning set forth in Section 27.4
hereof.
"REQUIREMENTS" shall mean all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary, of all Governmental Authorities now existing
or hereafter created, and of any and all of their departments and bureaus, and
of any applicable fire rating bureau, or other body exercising similar
functions, affecting the Real Property or any portion thereof, or any street,
avenue or sidewalk comprising a part of or in front thereof or any vault in or
under the same, or requiring removal of any encroachment, or affecting the
maintenance, use or occupation of the Real Property or any portion thereof.
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"RULES AND REGULATIONS" shall mean the rules and regulations annexed hereto
and made a part hereof as SCHEDULE A, and such other and further rules and
regulations which are non-discriminatory as to Tenant with respect to tenants
who are similarly situated to Tenant (i.e., rules or regulations with respect to
tenants on specific floors of the Building where such rules or regulations
affect specific floors of the Building or rules or regulations with respect to
tenants with a specific type of occupancy where such rules or regulations affect
specific types of occupancy) as Landlord or Landlord's agents may from time to
time adopt on such notice to be given as Landlord may elect, subject to Tenant's
right to dispute the reasonableness thereof as provided in Article 8 hereof.
"SPACE FACTOR" shall mean Six Thousand Five Hundred Thirty-One (6,531) as
the same may be increased or decreased pursuant to the terms hereof.
"SPECIALTY ALTERATIONS" shall mean Alterations consisting of kitchens,
executive bathrooms, raised computer floors, computer installations, vaults,
libraries, internal staircases, dumbwaiters, pneumatic tubes, vertical and
horizontal transportation systems, and other Alterations of a similar character.
"SUBLEASE EXPENSES" shall have the meaning set forth in Section 12.7
hereof.
"SUBLEASE PROFIT" shall have the meaning set forth in Section 12.7 hereof.
"SUBLEASE RENT" shall have the meaning set forth in Section 12.7 hereof.
"SUBLEASE RENT PER SQUARE FOOT" shall have the meaning set forth in Section
12.7 hereof.
"SUBSTITUTE PREMISES" shall have the meaning set forth in Section 37.12
hereof.
"SUBSTITUTION DATE" shall have the meaning set forth in Section 37.8
hereof.
"SUPERIOR LEASE(S)" shall mean all ground or underlying leases of the Real
Property or the Building and all renewals, extensions, supplements, amendments
and modifications thereof.
"TAXES" shall have the meaning set forth in Section 27.1 hereof.
"TAX PAYMENT" shall have the meaning set forth in Section 27.2 hereof.
"TAX STATEMENT" shall have the meaning set forth in Section 27.1 hereof.
"TAX YEAR" shall have the meaning set forth in Section 27.1 hereof.
"TENANT" on the date as of which this Lease is made, shall mean XXXX.xxx,
Inc. a Delaware corporation, having an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, but thereafter "Tenant" shall mean only the tenant under this
Lease at the time in question; provided,
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however, that the originally named tenant and any assignee of this Lease shall
not be released from liability hereunder in the event of any assignment of this
Lease.
"TENANT STATEMENT" shall have the meaning set forth in Section 12.6 hereof.
"TENANT'S ENGINEER" shall have the meaning set forth in Section 13.2
hereof.
"TENANT'S PROPERTY" shall mean Tenant's movable fixtures and movable
partitions, telephone and other equipment, furniture, furnishings, decorations
and other items of personal property.
"TENANT'S TAX SHARE" shall mean Six Thousand Six Hundred Eighty ten
thousandths percent (0.6680%) as the same may be increased or decreased pursuant
to the terms hereof.
"TERM" shall mean a term which shall commence on the Commencement Date and
shall expire on the Expiration Date.
"THIRD ENGINEER" shall have the meaning set forth in Section 13.2 hereof.
"UNAVOIDABLE DELAYS" shall have the meaning set forth in Article 25 hereof.
"WAGE RATE" shall have the meaning set forth in Section 27.1 hereof.
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ARTICLE 1
DEMISE, PREMISES, TERM, RENT
SECTION 1.1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the Premises for the Term to commence as of the date hereof (the
"COMMENCEMENT DATE") and to end on the date (the "FIXED EXPIRATION DATE") that
shall be the last day of the month in which the date immediately preceding the
fifth (5th) anniversary of the Rent Commencement Date occurs, at an annual rent
(the "FIXED RENT") of Two Hundred Fifteen Thousand Five Hundred Twenty-Three
Dollars ($215, 523) PER ANNUM for the period commencing on the Rent Commencement
Date and ending on the Fixed Expiration Date payable in equal monthly
installments in advance in the amount of Seventeen Thousand Nine Hundred Sixty
and 25/100 Dollars ($17,960.25) per month, which Tenant agrees to pay in lawful
money of the United States which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, on the first (1st) day of
each calendar month during the Term commencing on the Rent Commencement Date, at
the office of Landlord or such other place as Landlord may designate, without
any set-off, offset, abatement or deduction whatsoever, except that Tenant shall
pay the first full monthly installment on the execution hereof. At the request
of Landlord, Fixed Rent shall be payable when due by wire transfer of funds to
an account designated from time to time by Landlord.
SECTION 1.2. Tenant shall pay to Landlord, as additional rent, on account
of electricity consumed at the Premises the sum of One Thousand Six Hundred
Thirty-Two and 75/100 Dollars ($1632.75) per month during the period commencing
on the Commencement Date and ending on the day immediately preceding the Rent
Commencement Date. If such period shall commence or end on a date other than the
first (1st) day of a calendar month, such monthly amount on account of
electricity shall be appropriately adjusted.
ARTICLE 2
USE AND OCCUPANCY
SECTION 2.1. Tenant shall use and occupy the Premises as general,
administrative and executive offices, uses incidental thereto and for no other
purpose.
SECTION 2.2. (A) Tenant shall not use the Premises or any part thereof,
or permit the Premises or any part thereof to be used, (1) for the business of
photographic, multilith or multigraph reproductions or offset printing, except
in connection with, either directly or indirectly, Tenant's own business and/or
activities, (2) for a banking, trust company, depository, guarantee or safe
deposit business, (3) as a savings bank, a savings and loan association, or as a
loan company, (4) for the sale of travelers checks, money orders, drafts,
foreign exchange or letters of credit or for the receipt of money for
transmission, (5) as a stockbroker's or dealer's office or for the underwriting
or sale of securities, (6) by the United States government, the City
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or State of New York, any foreign government, the United Nations or any agency
or department of any of the foregoing or any other Person having sovereign or
diplomatic immunity, (7) as a restaurant or bar or for the sale of
confectionery, soda or other beverages, sandwiches, ice cream or baked goods or
for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, except for consumption by Tenant's officers, employees and
business guests, (8) as an employment agency, executive search firm or similar
enterprise, labor union, school, or vocational training center (except for the
training of employees of Tenant intended to be employed at the Premises), or (9)
as a xxxxxx shop or beauty salon.
(B) In connection with, and incidental to, Tenant's use of the
Premises for general, administrative and executive offices as provided in this
Article 2, Tenant, at its sole cost and expense and upon compliance with all
applicable Requirements, may install a "xxxxx" or similar unit in the Premises
for the purpose of warming food for the officers, employees and business guests
of Tenant (but not for use as a public restaurant), provided that Tenant shall
obtain all permits required by any Governmental Authorities for the operation
thereof and such installation shall comply with the provisions of this Lease,
including, without limitation, Article 3 hereof. Tenant may also install, at its
sole cost and expense and subject to and in compliance with the provisions of
Articles 3 and 4 hereof, microwave ovens, vending machines for the exclusive use
of the officers, employees and business guests of Tenant, each of which vending
machines (if it dispenses any beverages or other liquids or refrigerates) shall
have a waterproof pan located thereunder, connected to a drain.
ARTICLE 3
ALTERATIONS
SECTION 3.1. (A) Tenant shall not make any Alterations without Landlord's
prior consent. Landlord shall not unreasonably withhold or delay its consent to
any proposed nonstructural Alterations, provided that such Alterations (i) are
not visible from the outside of the Building, (ii) do not affect (to more than a
DE MINIMIS extent) any part of the Building other than the Premises or require
any alterations, installations, improvements, additions or other physical
changes to be performed in or made to any portion of the Building or the Real
Property other than the Premises, (iii) do not affect (to more than a DE MINIMIS
extent) any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building, (iv) do not affect the proper
functioning of any Building System, (v) do not reduce the value or utility of
the Building, and (vi) do not affect the certificate of occupancy for the
Building or the Premises. Landlord shall not be deemed to be unreasonable with
respect to withholding its consent to any proposed nonstructural Alteration
which meets the criteria set forth in this Section 3.1(A) if the Lessor or
Mortgagee, as the case may be, shall withhold its consent.
(B) (1) Prior to making any Alterations, including, without
limitation, the Initial Alterations, Tenant shall (i) submit to Landlord
detailed plans and specifications (including layout, architectural, mechanical
and structural drawings) for each proposed Alteration
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and shall not commence any such Alteration without first obtaining Landlord's
approval of such plans and specifications, which, in the case of nonstructural
Alterations which meet the criteria set forth in Section 3.1(A) above, shall not
be unreasonably withheld or delayed, (ii) at Tenant's expense, obtain all
permits, approvals and certificates required by any Governmental Authorities, it
being agreed that all filings with Governmental Authorities to obtain such
permits, approvals and certificates shall be made, at Tenant's expense, by a
Person designated by Landlord, and (iii) furnish to Landlord duplicate original
policies or certificates thereof of worker's compensation (covering all persons
to be employed by Tenant, and Tenant's contractors and subcontractors in
connection with such Alteration) and comprehensive public liability (including
property damage coverage) insurance in such form, with such companies, for such
periods and in such amounts as Landlord may reasonably approve, naming Landlord
and its agents, any Lessor and any Mortgagee, as additional insureds. Upon
completion of such Alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alteration required by any Governmental
Authority and shall furnish Landlord with copies thereof, together with the
"as-built" plans and specifications for such Alterations, it being agreed that
all filings with Governmental Authorities to obtain such permits, approvals and
certificates shall be made, at Tenant's expense, by a Person designated by
Landlord. All Alterations shall be made and performed substantially in
accordance with the plans and specifications therefor as approved by Landlord,
all Requirements, the Rules and Regulations, and all rules and regulations
relating to Alterations promulgated by Landlord in its reasonable judgment;
provided further, such rules and regulations shall be consistent with those
imposed by Landlord on other office tenants of the Building under similar
circumstances. All materials and equipment to be incorporated in the Premises as
a result of any Alterations or a part thereof shall be first quality and no such
materials or equipment (other than Tenant's Property) shall be subject to any
lien, encumbrance, chattel mortgage or title retention or security agreement. In
addition, no Alteration shall be undertaken prior to Tenant's delivering to
Landlord either (i) a performance bond and labor and materials payment bond
(issued by a surety company and in form reasonably satisfactory to Landlord),
each in an amount equal to one hundred ten percent (110%) of the cost of such
Alteration (as reasonably estimated by Landlord's architect, engineer, or
contractor) or (ii) such other security as shall be reasonably satisfactory to
Landlord or required by any Mortgagee or Lessor. If, as a result of any
Alterations performed by Tenant, including, without limitation, the Initial
Alterations, any alterations, installations, improvements, additions or other
physical changes are required to be performed or made to any portion of the
Building or the Real Property other than the Premises in order to comply with
any Requirement(s), which alterations, installations, improvements, additions or
other physical changes would not otherwise have had to be performed or made
pursuant to applicable Requirement(s) at such time, Landlord, at Tenant's sole
cost and expense, may perform or make such alterations, installations,
improvements, additions or other physical changes and take such actions as
Landlord shall deem reasonably necessary and Tenant, within five (5) days after
demand therefor by Landlord, shall provide Landlord with such security as
Landlord shall reasonably require, in an amount equal to one hundred ten percent
(110%) of the cost of such alterations, installations, improvements, additions
or other physical changes, as reasonably estimated by Landlord's architect,
engineer or contractor. All Alteration(s) requiring the consent of Landlord
shall be performed only under the
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supervision of an independent licensed architect approved by Landlord, which
approval shall not be unreasonably withheld.
(2) Landlord reserves the right to disapprove any plans and
specifications in part, to reserve approval of items shown thereon pending its
review and approval of other plans and specifications, and to condition its
approval upon Tenant making revisions to the plans and specifications or
supplying additional information. Any review or approval by Landlord of any
plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant or any other Person
with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise.
(C) Tenant shall be permitted to perform Alterations during the hours
of 8:00 A.M. to 6:00 P.M. on Business Days, provided that such work shall not
interfere with or interrupt the operation and maintenance of the Building or
unreasonably interfere with or interrupt the use and occupancy of the Building
by other tenants in the Building. Otherwise, Alterations shall be performed at
such times and in such manner as Landlord may from time to time reasonably
designate. All Tenant's Property installed by Tenant and all Alterations in and
to the Premises which may be made by Tenant at its own cost and expense prior to
and during the Term, shall remain the property of Tenant. Upon the Expiration
Date, Tenant shall remove Tenant's Property from the Premises and, at Tenant's
option, Tenant also may remove, at Tenant's cost and expense, all Alterations
made by Tenant to the Premises, provided, however, in any case, that Tenant
shall repair and restore in a good and workerlike manner to good condition any
damage to the Premises or the Building caused by such removal. Notwithstanding
the foregoing, however, Landlord, upon notice given at least thirty (30) days
prior to the Fixed Expiration Date or upon such shorter notice as is reasonable
under the circumstances upon the earlier expiration of the Term, may require
Tenant to remove any Specialty Alterations, and to repair and restore in a good
and workerlike manner to good condition any damage to the Premises or the
Building caused by such removal.
(D) (1) All Alterations shall be performed, at Tenant's sole cost and
expense, by Landlord's contractor(s) or by contractors, subcontractors or
mechanics approved by Landlord. Prior to making an Alteration, at Tenant's
request, Landlord shall furnish Tenant with a list of contractors who may
perform Alterations to the Premises on behalf of Tenant. If Tenant engages any
contractor set forth on the list, Tenant shall not be required to obtain
Landlord's consent for such contractor unless, prior to the earlier of (a)
entering into a contract with such contractor, and (b) the commencement of work
by such contractor, Landlord shall notify Tenant that such contractor has been
removed from the list.
(2) Notwithstanding the foregoing, with respect to any Alteration
affecting any Building System, (i) Tenant shall select a contractor from a list
of approved contractors furnished by Landlord to Tenant (containing at least
three (3) contractors) and (ii) the
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Alteration shall, at Tenant's cost and expense, be designed by Landlord's
engineer for the relevant Building System.
(E) Any mechanic's lien filed against the Premises or the Real
Property for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant within thirty (30) days
after Tenant shall have received notice thereof (or such shorter period if
required by the terms of any Superior Lease or Mortgage), at Tenant's expense,
by payment or filing the bond required by law. Tenant shall not, at any time
prior to or during the Term, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the Premises, whether in
connection with any Alteration or otherwise, if such employment would interfere
or cause any conflict with other contractors, mechanics or laborers engaged in
the construction, maintenance or operation of the Building by Landlord, Tenant
or others, or of any adjacent property owned by Landlord. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
SECTION 3.2. Tenant shall pay to Landlord or to Landlord's agent, as
additional rent, all out-of-pocket costs and expenses incurred by Landlord or
Landlord's agent in connection with any Alterations, including, without
limitation, the Initial Alterations, (the "ALTERATION FEE"). The Alteration Fee
shall be paid by Tenant within ten (10) Business Days after demand therefor.
Tenant shall also pay any fee charged by any Lessor or Mortgagee in reviewing
the plans and specifications for such Alterations or inspecting the progress of
completing the same.
SECTION 3.3. Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided that Landlord shall not be
obligated to incur any cost or expense, including, without limitation,
attorneys' fees and disbursements, or suffer any liability in connection
therewith.
ARTICLE 4
REPAIRS-FLOOR LOAD
SECTION 4.1. Landlord shall operate, maintain and make all necessary
repairs (both structural and nonstructural) to the part of Building Systems
which provide service to the Premises (but not to the distribution portions of
such Building Systems located within the Premises) and the public portions of
the Building, both exterior and interior, in conformance with standards
applicable to non-institutional first class office buildings in Manhattan.
Tenant, at Tenant's sole cost and expense, shall take good care of the Premises
and the fixtures, equipment and appurtenances therein and the distribution
systems and shall make all nonstructural repairs thereto as and when needed to
preserve them in good working order and condition, except for reasonable wear
and tear, obsolescence and damage for which Tenant is not responsible pursuant
12
to the provisions of Article 10 hereof. Notwithstanding the foregoing, all
damage or injury to the Premises or to any other part of the Building and
Building Systems, or to its fixtures, equipment and appurtenances, whether
requiring structural or nonstructural repairs, caused by or resulting from
carelessness, omission, neglect or improper conduct of, or Alterations made by,
Tenant, Tenant's agents, employees, invitees or licensees, shall be repaired at
Tenant's sole cost and expense, by Tenant to the reasonable satisfaction of
Landlord (if the required repairs are nonstructural in nature and do not affect
any Building System), or by Landlord (if the required repairs are structural in
nature or affect any Building System). All of the aforesaid repairs shall be of
first quality and of a class consistent with non-institutional first class
office building work or construction and shall be made in accordance with the
provisions of Article 3 hereof. If Tenant fails after ten (10) days' notice (or
such shorter period as Landlord may be permitted pursuant to any Superior Lease
or Mortgage or such shorter period as may be required due to an emergency) to
commence and to proceed with due diligence to make repairs required to be made
by Tenant, the same may be made by Landlord at the expense of Tenant, and the
expenses thereof incurred by Landlord, with interest thereon at the Applicable
Rate, shall be forthwith paid to Landlord as additional rent after rendition of
a xxxx or statement therefor. Tenant shall give Landlord prompt notice of any
defective condition in the Building or in any Building System, located in,
servicing or passing through the Premises.
SECTION 4.2. Tenant shall not place a load upon any floor of the Premises
exceeding one hundred twenty (120) pounds per square foot "live load". Tenant
shall not move any safe, heavy machinery, heavy equipment, business machines,
freight, bulky matter or fixtures into or out of the Building without Landlord's
prior consent as to the time and manner of such move, which consent shall not be
unreasonably withheld, and shall make payment to Landlord of Landlord's costs in
connection therewith. If such safe, machinery, equipment, freight, bulky matter
or fixtures requires special handling, Tenant shall employ only persons holding
a Master Rigger's license to do said work. All work in connection therewith
shall comply with all Requirements and the Rules and Regulations, and shall be
done during such hours as Landlord may reasonably designate. Business machines
and mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's reasonable judgment to absorb and
prevent vibration, noise and annoyance. Except as expressly provided in this
Lease, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from Landlord, Tenant or others making, or failing
to make, any repairs, alterations, additions or improvements in or to any
portion of the Building or the Premises, or in or to fixtures, appurtenances or
equipment thereof.
SECTION 4.3. Landlord shall use its reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises in making any
repairs, alterations, additions or improvements; provided, however, that
Landlord shall have no obligation to employ contractors or labor at so-called
overtime or other premium pay rates or to incur any other overtime costs or
expenses whatsoever, except that Landlord, at its expense but subject to
recoupment pursuant to Article 27 hereof, shall employ contractors or labor at
so-called overtime or other premium pay rates if necessary to make any repair
required to be made by it hereunder to remedy any condition
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that either (i) results in a denial of access to the Premises, (ii) threatens
the health or safety of any occupant of the Premises, or (iii) except in the
case of a fire or other casualty, materially interferes with Tenant's ability to
conduct its business in the Premises. In all other cases, at Tenant's request,
Landlord shall employ contractors or labor at so-called overtime or other
premium pay rates and incur any other overtime costs or expenses in making any
repairs, alterations, additions or improvements, and Tenant shall pay to
Landlord, as additional rent, within ten (10) Business Days after demand, an
amount equal to the difference between the overtime or other premium pay rates
and the regular pay rates for such labor and any other overtime costs or
expenses so incurred.
ARTICLE 5
WINDOW CLEANING
Tenant shall not clean, nor require, permit, suffer or allow any window in
the Premises to be cleaned from the outside in violation of Section 202 of the
Labor Law, or any other Requirement, or of the rules of the Board of Standards
and Appeals, or of any other board or body having or asserting jurisdiction.
ARTICLE 6
REQUIREMENTS OF LAW
SECTION 6.1. Tenant, at its sole cost and expense shall comply with all
Requirements applicable to the Premises, including, without limitation, those
applicable to the making of any Alterations therein or the result of the making
thereof and those applicable by reason of the nature or type of business
operated by Tenant in the Premises. Tenant shall not do or permit to be done any
act or thing upon the Premises which will invalidate or be in conflict with a
standard "all-risk" insurance policy; and shall not do, or permit anything to be
done in or upon the Premises, or bring or keep anything therein, except as now
or hereafter permitted by the Xxx Xxxx Xxxx Xxxx Xxxxxxxxxx, Xxx Xxxx Board of
Fire Underwriters, the Insurance Services Office or other authority having
jurisdiction and then only in such quantity and manner of storage as not to
increase the rate for fire insurance applicable to the Building, or use the
Premises in a manner (as opposed to mere use as general "offices") which shall
increase the rate of fire insurance on the Building or on property located
therein, over that in similar type buildings or in effect on the Commencement
Date. If by reason of Tenant's failure to comply with the provisions of this
Article, the fire insurance rate shall be higher than it otherwise would be,
then Tenant shall desist from doing or permitting to be done any such act or
thing and shall reimburse Landlord, as additional rent hereunder, for that part
of all fire insurance premiums thereafter paid by Landlord which shall have been
charged because of such failure by Tenant, and shall make such reimbursement
upon demand by Landlord. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make up" of rates for the Building or the Premises
issued by the Insurance Services Office, or other body fixing such fire
insurance rates, shall be conclusive
14
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to the Building.
SECTION 6.2. Tenant, at its sole cost and expense and after notice to
Landlord, may contest by appropriate proceedings prosecuted diligently and in
good faith, the legality or applicability of any Requirement affecting the
Premises, provided that (a) Landlord (or any Indemnitee) shall not be subject to
imprisonment or to prosecution for a crime, nor shall the Real Property or any
part thereof be subject to being condemned or vacated, nor shall the certificate
of occupancy for the Premises or the Building be suspended or threatened to be
suspended by reason of non-compliance or by reason of such contest; (b) before
the commencement of such contest, if Landlord or any Indemnitee may be subject
to any civil fines or penalties or other criminal penalties or if Landlord may
be liable to any independent third party as a result of such noncompliance,
Tenant shall furnish to Landlord either (i) a bond of a surety company
satisfactory to Landlord, in form and substance reasonably satisfactory to
Landlord, and in an amount equal to one hundred twenty percent (120%) of the sum
of (A) the cost of such compliance, (B) the criminal or civil penalties or fines
that may accrue by reason of such non-compliance (as reasonably estimated by
Landlord), and (C) the amount of such liability to independent third parties (as
reasonably estimated by Landlord), and shall indemnify Landlord (and any
Indemnitee) against the cost of such compliance and liability resulting from or
incurred in connection with such contest or non-compliance (except that Tenant
shall not be required to furnish such bond to Landlord if it has otherwise
furnished any similar bond required by law to the appropriate Governmental
Authority and has named Landlord as a beneficiary thereunder) or (ii) other
security reasonably satisfactory in all respects to Landlord; (c) such
non-compliance or contest shall not constitute or result in a violation (either
with the giving of notice or the passage of time or both) of the terms of any
Mortgage or Superior Lease, or if such Superior Lease or Mortgage shall
condition such non-compliance or contest upon the taking of action or furnishing
of security by Landlord, such action shall be taken or such security shall be
furnished at the expense of Tenant; and (d) Tenant shall keep Landlord regularly
advised as to the status of such proceedings. Without limiting the applicability
of the foregoing, Landlord (or any Indemnitee) shall be deemed subject to
prosecution for a crime if Landlord (or any Indemnitee), a Lessor, a Mortgagee
or any of their officers, directors, partners, shareholders, agents or employees
is charged with a crime of any kind whatsoever, unless such charges are
withdrawn ten (10) days before Landlord (or any Indemnitee), such Lessor or such
Mortgagee or such officer, director, partner, shareholder, agent or employee, as
the case may be, is required to plead or answer thereto.
15
ARTICLE 7
SUBORDINATION
SECTION 7.1. This Lease shall be subject and subordinate to each and every
Superior Lease and to each and every Mortgage. This clause shall be
self-operative and no further instrument of subordination shall be required from
Tenant to make the interest of any Lessor or Mortgagee superior to the interest
of Tenant hereunder; however, Tenant shall execute and deliver promptly any
instrument, in recordable form, that Landlord, any Mortgagee or Lessor may
reasonably request to evidence and confirm such subordination. If the date of
expiration of any Superior Lease shall be the same day as the Expiration Date,
the Term shall end and expire twelve (12) hours prior to the expiration of the
Superior Lease. If, in connection with the financing of the Real Property, the
Building or the interest of the lessee under any Superior Lease, or if in
connection with the entering into of a Superior Lease, any lending institution
or Lessor shall request reasonable modifications of this Lease that do not
increase Tenant's monetary obligations under this Lease, or materially adversely
affect or diminish the rights, or materially increase the other obligations of
Tenant under this Lease, Tenant shall make such modifications.
SECTION 7.2. If at any time prior to the expiration of the Term, any
Superior Lease shall terminate or be terminated for any reason or any Mortgagee
comes into possession of the Real Property or the Building or the estate created
by any Superior Lease by receiver or otherwise, Tenant agrees, at the election
and upon demand of any owner of the Real Property or the Building, or of the
Lessor, or of any Mortgagee in possession of the Real Property or the Building,
to attorn, from time to time, to any such owner, Lessor or Mortgagee or any
person acquiring the interest of Landlord as a result of any such termination,
or as a result of a foreclosure of the Mortgage or the granting of a deed in
lieu of foreclosure, upon the then executory terms and conditions of this Lease,
subject to the provisions of Section 7.1 hereof and this Section 7.2, for the
remainder of the Term, provided that such owner, Lessor or Mortgagee, or
receiver caused to be appointed by any of the foregoing, as the case may be,
shall then be entitled to possession of the Premises and provided further that
such owner, Lessor or Mortgagee, as the case may be, or anyone claiming by,
through or under such owner, Lessor or Mortgagee, as the case may be, including
a purchaser at a foreclosure sale, shall not be:
(1) liable for any act or omission of any prior landlord
(including, without limitation, the then defaulting landlord), or
(2) subject to any defense or offsets which Tenant may have
against any prior landlord (including, without limitation, the then defaulting
landlord), or
(3) bound by any payment of Rental which Tenant may have made to
any prior landlord (including, without limitation, the then defaulting landlord)
more than thirty (30) days in advance of the date upon which such payment was
due, or
16
(4) bound by any obligation to make any payment to or on behalf
of Tenant, or
(5) bound by any obligation to perform any work or to make
improvements to the Premises, except for (i) repairs and maintenance pursuant to
the provisions of Article 4, the need for which repairs and maintenance first
arises after the date upon which such owner, Lessor, or Mortgagee shall be
entitled to possession of the Premises, (ii) repairs to the Premises or any part
thereof as a result of damage by fire or other casualty pursuant to Article 10
hereof, but only to the extent that such repairs can be reasonably made from the
net proceeds of any insurance actually made available to such owner, Lessor or
Mortgagee, and (iii) repairs to the Premises as a result of a partial
condemnation pursuant to Article 11 hereof, but only to the extent that such
repairs can be reasonably made from the net proceeds of any award made available
to such owner, Lessor or Mortgagee, or
(6) bound by any amendment or modification of this Lease made
without its consent, or
(7) bound to return Tenant's security deposit, if any, until such
deposit has come into its actual possession and Tenant would be entitled to such
security deposit pursuant to the terms of this Lease.
The provisions of this Section 7.2 shall enure to the benefit of any such owner,
Lessor or Mortgagee, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of any Superior Lease, shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to said provisions. Tenant, however, upon demand of any such
owner, Lessor or Mortgagee, shall execute, at Tenant's expense, from time to
time, instruments, in recordable form, in confirmation of the foregoing
provisions of this Section 7.2, satisfactory to any such owner, Lessor or
Mortgagee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section 7.2 shall be
construed to impair any right otherwise exercisable by any such owner, Lessor or
Mortgagee. Notwithstanding the provisions of this Section 7.2, this Lease shall
not terminate by reason of the termination of any Superior Lease without the
prior written consent of the Mortgagee of the Mortgage which is a first mortgage
on Landlord's interest in the Real Property or the leasehold estate created by
such Superior Lease.
SECTION 7.3. From time to time, within ten (10) days next following
request by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to
Landlord, such Mortgagee or such Lessor a written statement executed by Tenant,
in form reasonably satisfactory to Landlord, such Mortgagee or such Lessor, (1)
stating that this Lease is then in full force and effect and has not been
modified (or if modified, setting forth all modifications), (2) setting forth
the date to which the Fixed Rent, Escalation Rent and other items of Rental have
been paid, (3) stating whether or not, to the best knowledge of Tenant (but
without having made any investigation), Landlord is in default under this Lease,
and, if Landlord is in default, setting forth the specific nature of all such
defaults, and (4) as to any other matters reasonably requested by Landlord, such
Mortgagee or
17
such Lessor. Tenant acknowledges that any statement delivered pursuant to this
Section 7.3 may be relied upon by any purchaser or owner of the Real Property or
the Building, or Landlord's interest in the Real Property or the Building or any
Superior Lease, or by any Mortgagee, or by an assignee of any Mortgagee, or by
any Lessor.
SECTION 7.4. From time to time, within ten (10) days next following
request by Tenant but not more frequently than twice in any twelve (12) month
period, Landlord shall deliver to Tenant a written statement executed by
Landlord (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent, Escalation Rent and any other
items of Rental have been paid, (iii) stating whether or not, to the best
knowledge of Landlord (but without having made any investigation), Tenant is in
default under this Lease, and, if Tenant is in default, setting forth the
specific nature of all such defaults, and (iv) as to any other matters
reasonably requested by Tenant and related to this Lease.
SECTION 7.5. As long as any Superior Lease or Mortgage shall exist, Tenant
shall not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or omission to
all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant by such Lessors and Mortgagees and, if any such Lessor or Mortgagee, as
the case may be, shall have notified Tenant within ten (10) Business Days
following receipt of such notice of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following the
giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission.
SECTION 7.6. Tenant hereby irrevocably waives any and all right(s) it may
have in connection with any zoning lot merger or transfer of development rights
with respect to the Real Property including, without limitation, any rights it
may have to be a party to, to contest, or to execute, any Declaration of
Restrictions (as such term is defined in Section 12-10 of the Zoning Resolution
of The City of New York effective December 15, 1961, as amended) with respect to
the Real Property, which would cause the Premises to be merged with or unmerged
from any other zoning lot pursuant to such Zoning Resolution or to any document
of a similar nature and purpose, and Tenant agrees that this Lease shall be
subject and subordinate to any Declaration of Restrictions or any other document
of similar nature and purpose now or hereafter affecting the Real Property. In
confirmation of such subordination and waiver, Tenant shall execute and deliver
promptly any certificate or instrument that Landlord reasonably may request.
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ARTICLE 8
RULES AND REGULATIONS
Tenant and Tenant's contractors, employees, agents, visitors, invitees and
licensees shall comply with the Rules and Regulations. Tenant shall have the
right to dispute the reasonableness of any additional Rule or Regulation
hereafter reasonably adopted by Landlord. If Tenant disputes the reasonableness
of any additional Rule or Regulation hereafter adopted by Landlord, the dispute
shall be determined by arbitration in the City of New York in accordance with
the rules and regulations then obtaining of the American Arbitration Association
or its successor. Any such determination shall be final and conclusive upon the
parties hereto. The right to dispute the reasonableness of any additional Rule
or Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice upon Landlord within thirty (30) days after
receipt by Tenant of notice of the adoption of any such additional Rule or
Regulation. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease against any other tenant, and
Landlord shall not be liable to Tenant for violation of the same by any other
tenant, its employees, agents, visitors or licensees, except that Landlord shall
not enforce any Rule or Regulation against Tenant which Landlord shall not then
be enforcing against all other office tenants in the Building (other than
Landlord or its Affiliates). In the event of a conflict between the provisions
of this Lease and any such Rules and Regulations, the provisions of this Lease
shall control.
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
SECTION 9.1. (A) Any Building employee to whom any property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor its agents shall 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. Neither Landlord nor its agents shall be liable for any
injury (or death) to persons or damage to property, or interruption of Tenant's
business, resulting from fire or other casualty; nor shall Landlord or its
agents be liable for any such injury (or death) to persons or damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
injury (or death) to persons or damage to property or improvements, or
interruption of Tenant's business, resulting from any latent defect in the
Premises or in the Building (provided that the foregoing shall not relieve
Landlord from its obligations, if any, to repair such latent defect pursuant to
the provisions of Article 4 hereof).
(B) If at any time any windows of the Premises are temporarily closed,
darkened or bricked-up due to any Requirement or by reason of repairs,
maintenance, alterations, or improvements to the Building, or any of such
windows are permanently closed, darkened or bricked-up due to any Requirement,
Landlord shall not be liable for any damage Tenant may
19
sustain thereby and Tenant shall not be entitled to any compensation therefor,
nor abatement or diminution of Fixed Rent or any other item of Rental, nor shall
the same release Tenant from its obligations hereunder, nor constitute an actual
or constructive eviction, in whole or in part, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise, nor impose any liability upon Landlord or its agents. If at any time
the windows of the Premises are temporarily closed, darkened or bricked-up, as
aforesaid, then, unless Tenant is required pursuant to the Lease to perform the
repairs, maintenance, alterations, or improvements, or to comply with the
Requirements, which resulted in such windows being closed, darkened or
bricked-up, Landlord shall perform such repairs, maintenance, alterations or
improvements and comply with the applicable Requirements with reasonable
diligence and otherwise take such action as may be reasonably necessary to
minimize the period during which such windows are temporarily closed, darkened,
or bricked-up.
(C) Tenant shall immediately notify Landlord of any fire or accident
in the Premises.
SECTION 9.2. Tenant shall obtain and keep in full force and effect (i) an
"all risk" insurance policy for Tenant's Specialty Alterations and Tenant's
Property at the Premises in an amount equal to one hundred percent (100%) of the
replacement value thereof, and (ii) a policy of commercial general liability and
property damage insurance on an occurrence basis, with a broad form contractual
liability endorsement. Such policies shall provide that Tenant is named as the
insured. Landlord, Landlord's managing agent, Landlord's agents and any Lessors
and any Mortgagees (whose names shall have been furnished to Tenant) shall be
added as additional insureds, as their respective interests may appear, with
respect to the insurance required to be carried pursuant to clauses (i) and (ii)
above. Such policy with respect to clause (ii) above shall include a provision
under which the insurer agrees to indemnify, defend and hold Landlord,
Landlord's managing agent, Landlord's agents and such Lessors and Mortgagees
harmless from and against, subject to the limits of liability set forth in this
Section 9.2, all cost, expense and liability arising out of, or based upon, any
and all claims, accidents, injuries and damages mentioned in Article 35. In
addition, the policy required to be carried pursuant to clause (ii) above shall
contain a provision that (a) no act or omission of Tenant shall affect or limit
the obligation of the insurer to pay the amount of any loss sustained and (b)
the policy shall be non-cancellable with respect to Landlord, Landlord's
managing agent, Landlord's agents and such Lessors and Mortgagees (whose names
and addresses shall have been furnished to Tenant) unless thirty (30) days'
prior written notice shall have been given to Landlord pursuant to the
provisions of Article 26 hereof, which notice shall contain the policy number
and the names of the insured and additional insureds. In addition, upon receipt
by Tenant of any notice of cancellation or any other notice from the insurance
carrier which may adversely affect the coverage of the insureds under such
policy of insurance, Tenant shall immediately deliver to Landlord and any other
additional insured hereunder a copy of such notice. The minimum amounts of
liability under the policy of insurance required to be carried pursuant to
clause (ii) above shall be a combined single limit with respect to each
occurrence in an amount of $5,000,000 for injury (or death) to persons and
damage to property, which amount shall be increased from time to time to that
amount of insurance which in Landlord's reasonable judgment is then being
customarily required by prudent
20
landlords of non-institutional first class buildings in New York City. All
insurance required to be carried by Tenant pursuant to the terms of this Lease
shall be effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a general policyholder
rating of "A" and a financial rating of at least "XIII".
SECTION 9.3. On or prior to the Commencement Date, Tenant shall deliver to
Landlord appropriate certificates of insurance, including evidence of waivers of
subrogation required pursuant to Section 10.5 hereof, required to be carried by
Tenant pursuant to this Article 9. Evidence of each renewal or replacement of a
policy shall be delivered by Tenant to Landlord at least twenty (20) days prior
to the expiration of such policy.
SECTION 9.4. Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for damage to, Tenant's Property or Specialty
Alterations, and that Landlord shall not carry insurance against, or be
responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
SECTION 9.5. If notwithstanding the recovery of insurance proceeds by
Tenant for loss, damage or destruction of its property (or rental value or
business interruptions) Landlord is liable to Tenant with respect thereto or is
obligated under this Lease to make replacement, repair or restoration, then, at
Landlord's option, either (i) the amount of the net proceeds of Tenant's
insurance against such loss, damage or destruction shall be offset against
Landlord's liability to Tenant therefor, or (ii) shall be made available to
Landlord to pay for replacement, repair or restoration.
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE
SECTION 10.1. (A) If the Premises (including Alterations other than
Specialty Alterations) shall be damaged by fire or other casualty, and if Tenant
shall give prompt notice thereof to Landlord, the damage, with such
modifications as shall be required in order to comply with Requirements shall be
diligently repaired by and at the expense of Landlord to substantially the
condition prior to the damage, and until such repairs which are required to be
performed by Landlord (excluding Long Lead Work) shall be substantially
completed (of which substantial completion Landlord shall promptly notify
Tenant) the Fixed Rent, Escalation Rent, all additional rental and Space Factor
shall be reduced in the proportion which the area of the part of the Premises
which is not usable by Tenant, as determined by Landlord in its reasonable
discretion, bears to the total area of the Premises immediately prior to such
casualty. Upon the substantial completion of such repairs (excluding Long Lead
Work), Landlord shall diligently prosecute to completion any items of Long Lead
Work remaining to be completed. Landlord shall have no obligation to repair any
damage to, or to replace, any Specialty Alterations or Tenant's Property, which
Tenant shall complete promptly after substantial completion of
21
Landlord's repair obligations under this Article 10. In addition, Landlord shall
not be obligated to repair any damage to, or to replace, any Alterations unless
Tenant shall have notified Landlord of the completion of such Alterations and
the cost thereof, and shall have maintained adequate records with respect to
such Alterations. Tenant shall make all necessary repairs to the Specialty
Alterations and same shall be completed promptly after substantial completion of
Landlord's repair obligations under this Article 10. Landlord shall use its
reasonable efforts to minimize interference with Tenant's use and occupancy in
making any repairs pursuant to this Section. Anything contained herein to the
contrary notwithstanding, if the Premises (including any Alterations) are
damaged by fire or other casualty at any time prior to the completion of the
Initial Alterations, Landlord's obligation to repair the Premises (and any
Alterations) shall be limited to repair of the part of the Building Systems
serving the Premises on the Commencement Date, but not the distribution portions
of such Building Systems located within the Premises, the floor and ceiling
slabs of the Premises and the exterior walls of the Premises, all to
substantially the same condition which existed on the Commencement Date, with
such modifications as shall be required in order to comply with Requirements.
(B) Prior to the substantial completion of Landlord's repair
obligations set forth in Section 10.1 (A) hereof, Landlord shall provide Tenant
and Tenant's contractor, subcontractors and materialmen access to the Premises
to perform Specialty Alterations (or Alterations, if Landlord is not obligated
to repair same pursuant to the provisions hereof), on the following terms and
conditions (but not to occupy the same for the conduct of business):
(1) Tenant shall not commence work in any portion of the Premises
until the date specified in a notice from Landlord to Tenant stating that the
repairs required to be made by Landlord have been or will be completed to the
extent reasonably necessary, in Landlord's discretion, to permit the
commencement of the Specialty Alterations (or Alterations, if Landlord is not
obligated to repair same pursuant to the provisions hereof) then prudent to be
performed in accordance with good construction practice in the portion of the
Premises in question without interference with, and consistent with the
performance of, the repairs remaining to be performed.
(2) Such access by Tenant shall be deemed to be subject to all of
the applicable provisions of this Lease, including, without limitation, Tenant's
obligation to pay to Landlord, the Electricity Inclusion Factor or, if
applicable, the Electricity Additional Rent except that there shall be no
obligation on the part of Tenant solely because of such access to pay any Fixed
Rent or Escalation Rent with respect to the affected portion of the Premises for
any period prior to substantial completion of the repairs.
(3) It is expressly understood that if Landlord shall be delayed
from substantially completing the repairs due to any acts of Tenant, its agents,
servants, employees or contractors, including, without limitation, by reason of
the performance of any Specialty Alteration (or Alteration, if Landlord is not
obligated to repair same pursuant to the provisions hereof), by reason of
Tenant's failure or refusal to comply or to cause its architects, engineers,
designers and contractors to comply with any of Tenant's obligations described
or referred to in
22
this Lease, or if such repairs are not completed because under good construction
scheduling practice such repairs should be performed after completion of any
Specialty Alteration (or Alteration, if Landlord is not obligated to repair same
pursuant to the provisions hereof), then such repairs shall be deemed
substantially complete on the date when the repairs would have been
substantially complete but for such delay and the expiration of the abatement of
the Tenant's obligations hereunder shall not be postponed by reason of such
delay. Any additional costs to Landlord to complete any repairs occasioned by
such delay shall be paid by Tenant to Landlord within ten (10) days after
demand, as additional rent.
SECTION 10.2. Anything contained in Section 10.1 hereof to the contrary
notwithstanding, if the Building shall be so damaged by fire or other casualty
that, in Landlord's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises
shall have been damaged or rendered untenantable), then Landlord, at Landlord's
option, may, not later than ninety (90) days following the damage, give Tenant a
notice in writing terminating this Lease, provided that if the Premises are not
substantially damaged or rendered substantially untenantable, Landlord may not
terminate this Lease unless it shall elect to terminate leases (including this
Lease), affecting at least fifty percent (50%) of the rentable area of the
Building (excluding any rentable area occupied by Landlord or its Affiliates).
If Landlord elects to terminate this Lease, the Term shall expire upon a date
set by Landlord, but not sooner than the thirtieth (30th) day after such notice
is given, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. Upon the
termination of this Lease under the conditions provided for in this Section
10.2, the Fixed Rent and Escalation Rent and additional rent shall be
apportioned and any prepaid portion of Fixed Rent and Escalation Rent for any
period after such date shall be refunded by Landlord to Tenant.
SECTION 10.3. (A) Within forty-five (45) days after notice to Landlord of
any damage described in Section 10.1 hereof, Landlord shall deliver to Tenant a
statement prepared by a reputable contractor setting forth such contractor's
estimate as to the time required to repair such damage, exclusive of time
required to repair any Specialty Alterations (which are Tenant's obligation to
repair) or to perform Long Lead Work. If the estimated time period exceeds
eighteen (18) months from the date of such statement, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days
following receipt of such statement. If Tenant makes such election, the Term
shall expire upon the thirtieth (30th) day after notice of such election is
given by Tenant, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. If Tenant shall
not have elected to terminate this Lease pursuant to this Article 10 (or is not
entitled to terminate this Lease pursuant to this Article 10), the damages shall
be diligently repaired by and at the expense of Landlord as set forth in Section
10.1 hereof.
(B) Notwithstanding the foregoing, if the Premises shall be
substantially damaged during the last year of the Term, Landlord may elect by
notice, given within thirty (30) days after the occurrence of such damage, to
terminate this Lease and if Landlord makes such election, the Term shall expire
upon the thirtieth (30th) day after notice of such election is given
23
by Landlord and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof.
(C) Except as expressly set forth in this Section 10.3, Tenant shall
have no other options to cancel this Lease under this Article 10.
SECTION 10.4. This Article 10 constitutes an express agreement governing
any case of damage or destruction of the Premises or the Building by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
SECTION 10.5. The parties hereto shall procure an appropriate clause in,
or endorsement on, any fire or extended coverage insurance covering the
Premises, the Building and personal property, fixtures and equipment located
thereon or therein, pursuant to which the insurance companies waive subrogation
or consent to a waiver of right of recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, will not make any claim against or seek to recover from the other for
any loss or damage to its property or the property of others resulting from fire
or other hazards covered by such fire and extended coverage insurance, provided,
however, that the release, discharge, exoneration and covenant not to xxx herein
contained shall be limited by and be coextensive with the terms and provisions
of the waiver of subrogation clause or endorsements or clauses or endorsements
consenting to a waiver of right of recovery. If the payment of an additional
premium is required for the inclusion of such waiver of subrogation provision,
each party shall advise the other of the amount of any such additional premiums
and the other party at its own election may, but shall not be obligated to, pay
the same. If such other party shall not elect to pay such additional premium,
the first party shall not be required to obtain such waiver of subrogation
provision. If either party shall be unable to obtain the inclusion of such
clause even with the payment of an additional premium, then such party shall
attempt to name the other party as an additional insured (but not a loss payee)
under the policy. If the payment of an additional premium is required for naming
the other party as an additional insured (but not a loss payee), each party
shall advise the other of the amount of any such additional premium and the
other party at its own election may, but shall not be obligated to, pay the
same. If such other party shall not elect to pay such additional premium or if
it shall not be possible to have the other party named as an additional insured
(but not loss payee), even with the payment of an additional premium, then (in
either event) such party shall so notify the first party and the first party
shall not have the obligation to name the other party as an additional insured.
Tenant acknowledges that Landlord shall not carry insurance on and shall not be
responsible for damage to, Tenant's Property or Specialty Alterations or any
other Alteration prior to the completion of the Initial Alterations, and that
Landlord shall not carry insurance against, or be responsible for any loss
suffered by Tenant due to, interruption of Tenant's business.
24
ARTICLE 11
EMINENT DOMAIN
SECTION 11.1. If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property and not the entire Premises shall be so acquired or
condemned then, (1) except as hereinafter provided in this Section 11.1, this
Lease and the Term shall continue in force and effect, but, if a part of the
Premises is included in the part of the Real Property so acquired or condemned,
from and after the date of the vesting of title, the Fixed Rent and the Space
Factor shall be reduced in the proportion which the area of the part of the
Premises so acquired or condemned bears to the total area of the Premises
immediately prior to such acquisition or condemnation and Tenant's Tax Share
shall be redetermined based upon the proportion in which the ratio between the
rentable area of the Premises remaining after such acquisition or condemnation
bears to the rentable area of the Building remaining after such acquisition or
condemnation; (2) whether or not the Premises shall be affected thereby,
Landlord, at Landlord's option, may give to Tenant, within sixty (60) days next
following the date upon which Landlord shall have received notice of vesting of
title, a thirty (30) days' notice of termination of this Lease if Landlord shall
elect to terminate leases (including this Lease), affecting at least fifty
percent (50%) of the rentable area of the Building (excluding any rentable area
leased by Landlord or its Affiliates); and (3) if the part of the Real Property
so acquired or condemned shall contain more than fifteen percent (15%) of the
total area of the Premises immediately prior to such acquisition or
condemnation, or if, by reason of such acquisition or condemnation, Tenant no
longer has reasonable means of access to the Premises, Tenant, at Tenant's
option, may give to Landlord, within sixty (60) days next following the date
upon which Tenant shall have received notice of vesting of title, a thirty (30)
days' notice of termination of this Lease. If any such thirty (30) days' notice
of termination is given by Landlord or Tenant, this Lease and the Term shall
come to an end and expire upon the expiration of said thirty (30) days with the
same effect as if the date of expiration of said thirty (30) days were the
Expiration Date. If a part of the Premises shall be so acquired or condemned and
this Lease and the Term shall not be terminated pursuant to the foregoing
provisions of this Section 11.1, Landlord, at Landlord's expense, shall restore
that part of the Premises not so acquired or condemned to a self-contained
rental unit inclusive of Tenant's Alterations (other than Specialty
Alterations), except that if such acquisition or condemnation occurs prior to
completion of the Initial Alterations, Landlord shall only be required to
restore that part of the Premises not so acquired or condemned to a
self-contained rental unit exclusive of Tenant's Alterations. Upon the
termination of this Lease and the Term pursuant to the provisions of this
Section 11.1, the Fixed Rent and Escalation Rent shall be apportioned and any
prepaid portion of Fixed Rent and Escalation Rent for any period after such date
shall be refunded by Landlord to Tenant.
SECTION 11.2. In the event of any such acquisition or condemnation of all
or any part of the Real Property, Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation, Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term and Tenant hereby expressly assigns to Landlord
all of its right in and to any such award. Nothing contained in this Section
11.2 shall be deemed
25
to prevent Tenant from making a separate claim in any condemnation proceedings
for the then value of any Tenant's Property included in such taking, and for any
moving expenses.
SECTION 11.3. If the whole or any part of the Premises shall be acquired
or condemned temporarily during the Term for any public or quasi-public use or
purpose, Tenant shall give prompt notice thereof to Landlord and the Term shall
not be reduced or affected in any way and Tenant shall continue to pay in full
all items of Rental payable by Tenant hereunder without reduction or abatement,
and Tenant shall be entitled to receive for itself any award or payments for
such use, provided, however, that:
(i) if the acquisition or condemnation is for a period not
extending beyond the Term and if such award or payment is made less
frequently than in monthly installments, the same shall be paid to and
held by Landlord as a fund which Landlord shall apply from time to
time to the Rental payable by Tenant hereunder, except that, if by
reason of such acquisition or condemnation changes or alterations are
required to be made to the Premises which would necessitate an
expenditure to restore the Premises, then a portion of such award or
payment considered by Landlord as appropriate to cover the expenses of
the restoration shall be retained by Landlord, without application as
aforesaid, and applied toward the restoration of the Premises as
provided in Section 11.1 hereof; or
(ii) if the acquisition or condemnation is for a period
extending beyond the Term, such award or payment shall be apportioned
between Landlord and Tenant as of the Expiration Date; Tenant's share
thereof, if paid less frequently than in monthly installments, shall
be paid to Landlord and applied in accordance with the provisions of
clause (i) above, provided, however, that the amount of any award or
payment allowed or retained for restoration of the Premises shall
remain the property of Landlord if this Lease shall expire prior to
the restoration of the Premises.
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
SECTION 12.1. (A) Except as expressly permitted herein, Tenant, without
the prior consent of Landlord in each instance, shall not (a) assign its rights
or delegate its duties under this Lease (whether by operation of law, transfers
of interests in Tenant or otherwise), mortgage or encumber its interest in this
Lease, in whole or in part, (b) sublet, or permit the subletting of, the
Premises or any part thereof, or (c) permit the Premises or any part thereof to
be occupied or used for desk space, mailing privileges or otherwise, by any
Person other than Tenant.
(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 consideration
payable or otherwise to be
26
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 consideration constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and shall be
promptly paid to or turned over to Landlord.
SECTION 12.2. (A) If Tenant's interest in this Lease is assigned in
violation of the provisions of this Article 12, such assignment shall be void
and of no force and effect against Landlord; provided, however, that Landlord
may collect an amount equal to the then Fixed Rent plus any other item of Rental
from the assignee as a fee for its use and occupancy, and shall apply the net
amount collected to the Fixed Rent and other items of Rental reserved in this
Lease. If the Premises or any part thereof are sublet to, or occupied by, or
used by, any Person other than Tenant, whether or not in violation of this
Article 12, Landlord, after default by Tenant under this Lease, including,
without limitation, a subletting or occupancy in violation of this Article 12,
may collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount
collected to the Fixed Rent and other items of Rental reserved in this Lease. No
such assignment, subletting, occupancy or use, whether with or without
Landlord's prior consent, nor any such collection or application of Rental or
fee for use and occupancy, shall be deemed a waiver by Landlord of any term,
covenant or condition of this Lease or the acceptance by Landlord of such
assignee, subtenant, occupant or user as tenant hereunder. The consent by
Landlord to any assignment, subletting, occupancy or use shall not relieve
Tenant from its obligation to obtain the express prior consent of Landlord to
any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any costs that may
be reasonably incurred by Landlord in connection with any proposed assignment of
Tenant's interest in this Lease or any proposed subletting of the Premises or
any part thereof, including, without limitation, any reasonable processing fee,
reasonable attorneys' fees and disbursements and the reasonable costs of making
investigations as to the acceptability of the proposed subtenant or the proposed
assignee.
(C) Neither any assignment of Tenant's interest in this Lease nor any
subletting, occupancy or use of the Premises or any part thereof by any Person
other than Tenant, nor any collection of Rental by Landlord from any Person
other than Tenant as provided in this Section 12.2, nor any application of any
such Rental as provided in this Section 12.2 shall, in any circumstances,
relieve Tenant of its obligations under this Lease on Tenant's part to be
observed and performed.
(D) Any Person 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 on and after the
date of such assignment. Any such assignee shall execute and deliver to Landlord
upon demand an instrument confirming such assumption. No assignment of this
Lease shall relieve Tenant of its obligations hereunder and, subsequent to
27
any assignment, Tenant's liability hereunder shall continue notwithstanding any
subsequent modification or amendment hereof or the release of any subsequent
tenant hereunder from any liability, to all of which Tenant hereby consents in
advance.
SECTION 12.3. (A) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code to any Person 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 shall be given to
Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but
in any event no later than ten (10) days prior to the date that Tenant shall
make application to a court of competent jurisdiction for authority and approval
to enter into such assignment and assumption. Such notice shall set forth (a)
the name and address of such Person, (b) all of the terms and conditions of such
offer, and (c) adequate assurance of future performance by such Person under the
Lease as set forth in Paragraph (B) below, including, without limitation, the
assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord
shall have the prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed assignment, to accept
an assignment of this Lease upon the same terms and conditions and for the same
consideration, if any, as the BONA FIDE offer made by such Person, less any
brokerage commissions which would otherwise be payable by Tenant out of the
consideration to be paid by such Person in connection with the assignment of
this Lease.
(B) The term "adequate assurance of future performance" as used in
this Lease shall mean that any proposed assignee shall, among other things, (a)
deposit with Landlord on the assumption of this Lease the sum of the then Fixed
Rent as security for the faithful performance and observance by such assignee of
the terms and obligations of this Lease, which sum shall be held by Landlord in
accordance with the provisions of Article 31 hereof, (b) furnish Landlord with
financial statements of such assignee for the prior three (3) fiscal years, as
finally determined after an audit and certified as correct by a certified public
accountant, which financial statements shall show a net worth of at least six
(6) times the then Fixed Rent for each of such three (3) years, (c) grant to
Landlord a security interest in such property of the proposed assignee as
Landlord shall deem necessary to secure such assignee's future performance under
this Lease, and (d) provide such other information or take such action as
Landlord, in its reasonable judgment shall determine is necessary to provide
adequate assurance of the performance by such assignee of its obligations under
the Lease.
SECTION 12.4. (A) As long as XXXX.xxx, Inc. is Tenant, Tenant shall have
the privilege, subject to the terms and conditions hereinafter set forth,
without the consent of Landlord but subject to Tenant's satisfaction of
conditions set forth in clauses (1), (4) and (5) of Section 12.8(A) hereof, and
without Landlord having the right granted in Section 12.8(B) hereof to
recapture, to assign its interest in this Lease (i) to any corporation which is
a successor to Tenant either by merger or consolidation, (ii) to a purchaser of
all or substantially all of Tenant's assets (provided such purchaser shall have
also assumed substantially all of Tenant's liabilities) or (iii) to a Person
which shall (1) Control, (2) be under the Control of, or (3) be under common
Control with Tenant (any such Person referred to in this clause (iii) being a
"RELATED ENTITY"). As
28
long as XXXX.xxx, Inc. is Tenant, Tenant also shall have the privilege, subject
to the terms and conditions hereinafter set forth, without the consent of
Landlord but subject to Tenant's satisfaction of conditions set forth in clauses
(3), (6) through (8) and (10) of Section 12.6(A) and without Landlord having the
right granted in Section 12.6(B) hereof to recapture, to sublease all or any
portion of the Premises to a Related Entity. Any assignment or subletting
described above may only be made upon the condition that (a) any such assignee
or subtenant shall continue to use the Premises for general, administrative and
executive offices, (b) the principal purpose of such assignment or sublease is
not the acquisition of Tenant's interest in this Lease or to circumvent the
provisions of Section 12.1 of this Article (except if such assignment or
sublease is made to a Related Entity and is made for a valid intracorporate
business purpose and is not made to circumvent the provisions of Section 12.1 of
this Article), and (c) in the case of an assignment, any such assignee shall
have a net worth and annual income and cash flow, determined in accordance with
generally accepted accounting principles, consistently applied, after giving
effect to such assignment, equal to the greater of Tenant's net worth and annual
income and cash flow, as so determined, on (i) the date immediately preceding
the date of such assignment, and (ii) the Commencement Date. Tenant shall,
within ten (10) Business Days after execution thereof, deliver to Landlord
either (x) a duplicate original instrument of assignment in form and substance
reasonably satisfactory to Landlord, duly executed by Tenant, together with an
instrument in form and substance reasonably satisfactory to Landlord, duly
executed by the assignee, in which such assignee shall assume observance and
performance of, and agree to be personally bound by, all of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed, or
(y) a duplicate original sublease in form and substance reasonably satisfactory
to Landlord, duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new Partners, the
withdrawal, retirement, death, incompetency or bankruptcy of any Partner, or the
reallocation of partnership interests among the Partners shall not constitute an
assignment of this Lease, provided the principal purpose of any of the foregoing
is not to circumvent the restrictions on assignment set forth in the provisions
of this Article 12. The reorganization of Tenant from a professional corporation
into a partnership or the reorganization of a Tenant from a partnership into a
professional corporation, shall not constitute an assignment of this Lease,
provided that immediately following such reorganization the Partners of Tenant
shall be the same as the shareholders of Tenant existing immediately prior to
such reorganization, or the shareholders of Tenant shall be the same as the
Partners of Tenant existing immediately prior to such reorganization, as the
case may be. If Tenant shall become a professional corporation, each individual
shareholder in Tenant and each employee of a professional corporation which is a
shareholder in Tenant shall have the same personal liability as such individual
or employee would have under this Lease if Tenant were a partnership and such
individual or employee were a Partner in Tenant. If any individual Partner in
Tenant is or becomes an employee of a professional corporation, such individual
shall have the same personal liability under this Lease as such individual would
have if he and not the professional corporation were a Partner of Tenant.
29
(C) Except as set forth above, either a transfer (including the
issuance of treasury stock or the creation and issuance of new stock or a new
class of stock) of a more than fifty percent (50%) interest in the shares of
Tenant (if Tenant is a corporation or trust) or a transfer of a majority of the
total interest in Tenant (if Tenant is a partnership or other entity) at any one
time or over a period of time through a series of transfers, shall be deemed an
assignment of this Lease and shall be subject to all of the provisions of this
Article 12, including, without limitation, the requirement that Tenant obtain
Landlord's prior consent thereto. The transfer of shares of Tenant (if Tenant is
a corporation or trust) for purposes of this Section 12.4 shall not include the
sale of shares by persons other than those deemed "insiders" within the meaning
of the Securities Exchange Act of 1934, as amended, which sale is effected
through the "over-the-counter market" or through any recognized stock exchange.
SECTION 12.5. If, at any time after the originally named Tenant herein may
have assigned Tenant's interest in this Lease, this Lease shall be disaffirmed
or rejected in any proceeding of the types described in paragraph (E) of Section
16.1 hereof, or in any similar proceeding, or in the event of termination of
this Lease by reason of any such proceeding or by reason of lapse of time
following notice of termination given pursuant to said Article 16 based upon any
of the Events of Default set forth in such paragraph, any prior Tenant,
including, without limitation, the originally named Tenant, upon request of
Landlord given within thirty (30) days next following any such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (1) pay to Landlord all Fixed Rent, Escalation Rent and other
items of Rental due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (2)
as "tenant", enter into a new lease with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, unless sooner terminated as in such lease
provided, at the same Fixed Rent and upon the then executory terms, covenants
and conditions as are contained in this Lease, except that (a) Tenant's rights
under the new lease shall be subject to the possessory rights of the assignee
under this Lease and the possessory rights of any person claiming through or
under such assignee or by virtue of any statute or of any order of any court,
(b) such new lease shall require all defaults existing under this Lease to be
cured by Tenant with due diligence, and (c) such new lease shall require Tenant
to pay all Escalation Rent reserved in this Lease which, had this Lease not been
so disaffirmed, rejected or terminated, would have accrued under the provisions
of Article 27 hereof after the date of such disaffirmance, rejection or
termination with respect to any period prior thereto. If any such prior Tenant
shall default in its obligation to enter into said new lease for a period of ten
(10) days next following Landlord's request therefor, then, in addition to all
other rights and remedies by reason of such default, either at law or in equity,
Landlord shall have the same rights and remedies against such Tenant as if such
Tenant had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of such Tenant's
default thereunder.
SECTION 12.6. (A) Notwithstanding the provisions of Section 12.1 hereof,
if Landlord shall not exercise its rights pursuant to paragraph (B) of this
Section 12.6, Landlord shall not unreasonably withhold its consent to any
subletting of the Premises, provided that:
30
(1) The Premises shall not, without Landlord's prior consent,
have been listed or otherwise publicly advertised for subletting at a rental
rate less than the greater of (i) the sum of the Fixed Rent, Electricity
Additional Rent, and Escalation Rent then payable hereunder, and (ii) the
prevailing rental rate set by Landlord for comparable space in the Building or
if there is no comparable space, the prevailing rental rate reasonably
determined by Landlord (the "PREVAILING RATE"), nor shall Tenant advise any
broker, agent, finder or prospective subtenant that Tenant intends to sublet the
Premises at a rate less than the Prevailing Rate;
(2) Intentionally Omitted Prior to Execution;
(3) no Event of Default shall have occurred and be continuing;
(4) upon the date Tenant delivers the Tenant Statement to
Landlord and upon the date immediately preceding the commencement date of any
sublease approved by Landlord, the proposed subtenant shall have a financial
standing (taking into consideration the obligations of the proposed subtenant
under the sublease) reasonably satisfactory to Landlord, be of a character, be
engaged in a business, and propose to use the Premises in a manner in keeping
with the standards in such respects of the other tenancies in the Building;
(5) the proposed subtenant (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) shall not be a tenant or subtenant of any space in the
Building, nor shall the proposed subtenant (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) be a Person with whom Landlord is negotiating or discussing
to lease space in the Building; if Tenant shall propose to sublease space and is
about to commence negotiations with a tenant, subtenant or prospective
subtenant, Tenant shall advise Landlord of the identity of such prospective
subtenant and Landlord shall promptly advise Tenant if the execution of a
sublease with such tenant, subtenant or prospective subtenant would violate the
provisions of this clause (5);
(6) the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant shall not (a) be likely to
increase Landlord's operating expenses beyond that which would be incurred for
use by Tenant or for use in accordance with the standards of use of other
tenancies in the Building; (b) increase the burden on existing cleaning services
or elevators over the burden prior to such proposed subletting; (c) violate any
provision or restrictions herein relating to the use or occupancy of the
Premises; (d) require any alterations, installations, improvements, additions or
other physical changes to be performed in or made to any portion of the Building
or the Real Property other than the Premises; or (e) violate any provision or
restrictions in any other lease for space in the Building or in any Superior
Lease or Mortgage; if Landlord shall have consented to a sublease and, as a
result of the use and occupancy of the subleased portion of the Premises by the
subtenant, operating expenses are increased, then Tenant shall pay to Landlord,
within ten (10) days after demand, as additional rent, all resulting increases
in operating expenses;
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(7) the subletting shall be expressly subject to all of the
terms, covenants, conditions and obligations on Tenant's part to be observed and
performed under this Lease and the further condition and restriction that the
sublease shall not be modified without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, or assigned (by operation of
law or otherwise; for purposes of this clause (7), the transfer of a majority of
the issued and outstanding capital stock of any corporate subtenant or the
transfer of a majority of the total interest in a subtenant (if a partnership or
other entity), however accomplished, whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed an assignment of
the sublease, except that the transfer of the outstanding capital stock of a
corporate subtenant shall be deemed not to include the sale of such stock by
persons other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934, as amended, which sale is effected through the
"over-the-counter market" or through any recognized stock exchange) encumbered
or otherwise transferred or the subleased premises further sublet by the
subtenant in whole or in part, or any part thereof suffered or permitted by the
subtenant to be used or occupied by others, without the prior written consent of
Landlord in each instance;
(8) the subletting shall end no later than one (1) day before the
Expiration Date and shall not be for a term of less than two (2) years unless it
commences less than two (2) years before the Expiration Date;
(9) no subletting shall be for less than Three Thousand Two
Hundred Sixty-Five (3,265) contiguous rentable square feet and at no time shall
there be more than two (2) occupants, including Tenant, in the Premises; and
(10) such sublease shall expressly provide that in the event of
termination, re-entry or dispossess of Tenant 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, at Landlord's
option, shall attorn to Landlord pursuant to the then executory provisions of
such sublease, except that Landlord shall not be:
(i) liable for any act or omission of Tenant under such
sublease, or
(ii) subject to any defense or offsets which such subtenant
may have against Tenant, or
(iii) bound by any previous payment which such subtenant may
have made to Tenant more than thirty (30) days in advance of the date upon which
such payment was due, unless previously approved by Landlord, or
(iv) bound by any obligation to make any payment to or on
behalf of such subtenant, or
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(v) bound by any obligation to perform any work or to make
improvements to the Premises, or
(vi) bound by any amendment or modification of such sublease
made without its consent, or
(vii) bound to return such subtenant's security deposit, if
any, until such deposit has come into its actual possession and such subtenant
would be entitled to such security deposit pursuant to the terms of such
sublease.
(B) At least fifteen (15) Business Days prior to any proposed
subletting of the Premises for which Landlord's consent is required, Tenant
shall submit a statement to Landlord (a "TENANT STATEMENT") containing the
following information: (a) the name and address of the proposed subtenant, (b) a
description of the portion of the Premises to be sublet, (c) the terms and
conditions of the proposed subletting, including, without limitation, the rent
payable and the value (including cost, overhead and supervision) of any
improvements (including any demolition to be performed) to the Premises for
occupancy by such subtenant, (d) the nature and character of the business of the
proposed subtenant, and (e) any other information that Landlord may reasonably
request, together with a statement specifically directing Landlord's attention
to the provisions of this Section 12.6(B) requiring Landlord to respond to
Tenant's request within fifteen (15) Business Days after Landlord's receipt of
the Tenant Statement. Landlord shall have the right, exercisable by notice to
Tenant within fifteen (15) Business Days after Landlord's receipt of the Tenant
Statement, to sublet (in its own name or that of its designee) such portion of
the Premises ("RECAPTURE SPACE") from Tenant on the terms and conditions set
forth in the Tenant Statement, subject to the further provisions of paragraph
(C) of this Section 12.6. If Landlord shall fail to notify Tenant within said
fifteen (15) Business Day period of Landlord's intention to exercise its rights
pursuant to this Section 12.6(B) hereof or of Landlord's consent to or
disapproval of the proposed subletting pursuant to the Tenant Statement as
contemplated by Section 12.6(A) hereof, or if Landlord shall have consented to
such subletting as provided in Section 12.6(A) hereof, Tenant shall have the
right to sublease such portion of the Premises to such proposed subtenant on the
same terms and conditions set forth in the Tenant Statement, subject to the
terms and conditions of this Lease, including, without limitation, paragraph (A)
of this Section 12.6. If Tenant shall not enter into such sublease within sixty
(60) days after the delivery of the Tenant Statement to Landlord, then the
provisions of Section 12.1 hereof and this Section 12.6 shall again be
applicable to any other proposed subletting. If Tenant shall enter into such
sublease within sixty (60) days as aforesaid, Tenant shall deliver a true,
complete and fully executed counterpart of such sublease to Landlord within five
(5) days after execution thereof.
(C) If Landlord exercises its option to sublet the Recapture Space,
such sublease to Landlord or its designee as subtenant (each, a "RECAPTURE
SUBLEASE") shall:
(1) be at a rental equal to the lesser of (x) the sum of the Rent
Per Square Foot multiplied by the number of rentable square feet of the
Recapture Space, and (y) the sublease rent set forth in the Tenant Statement,
and otherwise be upon the same terms and
33
conditions as those contained in this Lease (as modified by the Tenant
Statement, except such as are irrelevant or inapplicable and except as otherwise
expressly set forth to the contrary in this paragraph (C);
(2) give the subtenant the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease and to further sublet the
Recapture Space or any part thereof and to make any and all changes,
alterations, and improvements in the Recapture Space;
(3) provide in substance that any such changes, alterations, and
improvements made in the Recapture Space may be removed, in whole or in part,
prior to or upon the expiration or other termination of the Recapture Sublease
provided that any material damage and injury caused thereby shall be repaired;
(4) provide that (i) the parties to such Sublease expressly
negate any intention that any estate created under such Sublease be merged with
any other estate held by either of said parties, (ii) prior to the commencement
of the term of the Recapture Sublease, Tenant, at its sole cost and expense
(unless the Tenant Statement provides otherwise), shall make such alterations as
may be required or reasonably deemed necessary by the subtenant to physically
separate the Recapture Space, if such Space constitutes a portion of the
Premises, from the balance of the Premises and to provide appropriate means of
ingress to and egress thereto and to the public portions of the balance of the
floor such as toilets, janitor's closets, telephone and electrical closets, fire
stairs, elevator lobbies, etc., and (iii) at the expiration of the term of such
Sublease, Tenant shall accept the Recapture Space in its then existing
condition, broom clean; and
(5) provide that the subtenant or occupant may use and occupy the
Recapture Space for any lawful purpose (without regard to any limitation set
forth in the Tenant Statement).
(D) Performance by Landlord, or its designee, under a Recapture
Sublease shall be deemed performance by Tenant of any similar obligation under
this Lease and Tenant shall not be liable for any default under this Lease or
deemed to be in default hereunder if such default is occasioned by or arises
from any act or omission of the subtenant under the Recapture Sublease or is
occasioned by or arises from any act or omission of any occupant under the
Recapture Sublease.
(E) If Landlord is unable to give Tenant possession of the Recapture
Space at the expiration of the term of the Recapture Sublease by reason of the
holding over or retention of possession of any tenant or other occupant, then
(w) Landlord shall continue to pay all charges previously payable, and comply
with all other obligations, under the Recapture Sublease until the date upon
which Landlord shall give Tenant possession of the Recapture Space free of
occupancies, (x) neither the Expiration Date nor the validity of this Lease
shall be affected, (y) Tenant waives any rights under Section 223-a of the Real
Property Law of New York, or any successor statute of similar import, to rescind
this Lease and further waives the right to recover
34
any damages from Landlord which may result from the failure of Landlord to
deliver possession of the Recapture Space at the end of the term of the
Recapture Sublease, and (z) Landlord, at Landlord's expense, shall use its
reasonable efforts to deliver possession of the Recapture Space to Tenant and in
connection therewith, if necessary, shall institute and diligently and in good
faith prosecute holdover and any other appropriate proceedings against the
occupant of such Space; if Landlord fails to prosecute such proceedings in such
manner and such failure continues after reasonable notice thereof by Tenant,
Tenant may prosecute such proceedings in Landlord's name and at Landlord's
expense.
(F) The failure by Landlord to exercise its option under Section
12.6(B) with respect to any subletting shall not be deemed a waiver of such
option with respect to any extension of such subletting or any subsequent
subletting of the Premises affected thereby.
SECTION 12.7. (A) In connection with any subletting of all or a portion
of the Premises, Tenant shall pay to Landlord an amount equal to fifty percent
(50%) of any Sublease Profit derived therefrom. Anything contained herein to the
contrary notwithstanding Tenant shall not be entitled to any proceeds derived
from or relating to (directly or indirectly) any subletting of the Recapture
Space by Landlord or its designee to a subtenant. All sums payable hereunder by
Tenant shall be calculated on an annualized basis, but shall be paid to
Landlord, as additional rent, within ten (10) days after receipt thereof by
Tenant.
(B) For purposes of this Lease:
(1) "RENT PER SQUARE FOOT" shall mean the sum of the then Fixed
Rent, Escalation Rent, and, if applicable, Electricity Additional Rent divided
by the Space Factor.
(2) "SUBLEASE PROFIT" shall mean the product of (x) the Sublease
Rent Per Square Foot less the Rent Per Square Foot, and (y) the number of
rentable square feet constituting the portion of the Premises sublet by Tenant.
(3) "SUBLEASE RENT" shall mean any rent or other consideration
paid to Tenant directly or indirectly by any subtenant or any other amount
received by Tenant from or in connection with any subletting (including, but not
limited to, sums paid for the sale or rental, or consideration received on
account of any contribution, of Tenant's Property or sums paid in connection
with the supply of electricity or HVAC) less the Sublease Expenses.
(4) "SUBLEASE EXPENSES" shall mean: (i) in the event of a sale
of Tenant's Property, the then unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns, (ii) the
reasonable out-of-pocket costs and expenses of Tenant in making such sublease,
such as brokers' fees, attorneys' fees, and advertising fees paid to unrelated
third parties, (iii) any sums paid to Landlord pursuant to Section 12.2(B)
hereof, (iv) the cost of improvements or alterations made by Tenant expressly
and solely for the purpose of preparing that portion of the Premises for such
subtenancy if not used by Tenant subsequent to the expiration of the term of the
sublease, and (v) the unamortized or undepreciated cost of any
35
Tenant's Property leased to and used by such subtenant. In determining Sublease
Rent, the costs set forth in clauses (ii), (iii) and (iv) shall be amortized on
a straight-line basis over the term of such sublease and the costs set forth in
clause (v) shall be amortized on a straight line basis over the greater of the
longest useful life of such improvements, alterations or Property (as permitted
pursuant to the Internal Revenue Code of 1986, as amended) and the term of such
sublease.
(5) "SUBLEASE RENT PER SQUARE FOOT" shall mean the Sublease Rent
divided by the rentable square feet of the space demised under the sublease in
question.
(6) Sublease Profit shall be recalculated from time to time to
reflect any corrections in the prior calculation thereof due to (i) subsequent
payments received or made by Tenant, (ii) the final adjustment of payments to be
made by or to Tenant, and (iii) mistake. Promptly after receipt or final
adjustment of any such payments or discovery of any such mistake, Tenant shall
submit to Landlord a recalculation of the Sublease Profit, and an adjustment
shall be made between Landlord and Tenant, on account of prior payments made or
credits received pursuant to this Section 12.7. In addition, if Sublease
Expenses utilized for the purpose of calculating Sublease Profit included an
amount attributable to the cost of the improvements made by Tenant expressly and
solely for the purpose of preparing the Premises or a portion thereof for the
occupancy of the subtenant and subsequent to the expiration of the sublease such
improvements and/or alterations were not demolished and/or removed, Sublease
Profits shall be recalculated as if the cost of such improvements and/or
alterations were not incurred by Tenant and Tenant promptly shall pay to
Landlord fifty percent (50%) of the additional amount of such Sublease Profit
resulting from such recalculation.
SECTION 12.8. (A) Notwithstanding the provisions of Section 12.1 hereof,
if Landlord shall not exercise its rights pursuant to paragraph (B)(2) of this
Section 12.8, Landlord shall not unreasonably withhold its consent to an
assignment of this Lease in its entirety provided that:
(1) no Event of Default shall have occurred and be continuing;
(2) upon the date Tenant delivers the Assignment Statement to
Landlord and upon the date immediately preceding the date of any assignment
approved by Landlord, the proposed assignee shall have a financial standing
(taking into consideration the obligations of the proposed assignee under this
Lease) reasonably satisfactory to Landlord, be of a character, be engaged in a
business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;
(3) the proposed assignee (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed assignee) shall not be a person or entity with whom Landlord is
negotiating to lease space in the Building at the time of receipt of an
Assignment Statement;
(4) the character of the business to be conducted or the proposed
use of the Premises by the proposed assignee shall not (a) be likely to increase
Landlord's operating
36
expenses beyond that which would be incurred for use by Tenant or for use in
accordance with the standards of use of other tenancies in the Building; (b)
increase the burden on existing cleaning services or elevators over the burden
prior to such proposed assignment; (c) violate any provision or restrictions
herein relating to the use or occupancy of the Premises; (d) require any
alterations, installations, improvements, additions or other physical changes to
be performed in or made to any portion of the Building or the Real Property
other than the Premises; or (e) violate any provision or restrictions in any
other lease for space in the Building or in any Superior Lease or Mortgage; if
Landlord shall have consented to an assignment and, as a result of the use and
occupancy of the Premises by Tenant/assignee, operating expenses are increased,
then Tenant shall pay to Landlord, within ten (10) days after demand, as
additional rent, all resulting increases in operating expenses; and
(5) the assignee shall agree to assume all of the obligations of
Tenant under this Lease from and after the date of the assignment.
(B) (1) At least fifteen (15) Business Days prior to any proposed
assignment, Tenant shall submit a statement to Landlord (the "ASSIGNMENT
STATEMENT") containing the following information: (i) the name and address of
the proposed assignee, (ii) the essential terms and conditions of the proposed
assignment, including, without limitation, the consideration payable for such
assignment and the value (including cost, overhead and supervision) of any
improvements (including any demolition to be performed) to the Premises proposed
to be made by Tenant to prepare the Premises for occupancy by such assignee,
(iii) the nature and character of the business of the proposed assignee, and
(iv) any other information that Landlord may reasonably request, together with a
statement specifically directing Landlord's attention to the provisions of this
Section 12.8(B) requiring Landlord to respond to Tenant's request within fifteen
(15) Business Days after Landlord's receipt of the Assignment Statement. The
Assignment Statement shall be executed by Tenant and the proposed assignee and
shall indicate both parties' intent (but not necessarily binding obligation) to
enter into an assignment agreement conforming to the terms and conditions of the
Assignment Statement and on such other terms and conditions to which the parties
may agree which are not inconsistent with the essential terms set forth in the
Assignment Statement.
(2) Landlord shall have the right, exercisable within fifteen
(15) Business Days after Landlord's receipt of the Assignment Statement, to take
an assignment of this Lease (in its own name or that of its designee) for the
same consideration payable to Tenant pursuant to the terms of the Assignment
Statement (less the amount of any brokerage commission which would have been
payable on account of the assignment pursuant to the Assignment Statement),
provided Landlord shall take possession of the Premises "as is" in its condition
as of the date of such assignment and shall be entitled to a credit against the
consideration otherwise payable in the amount, if any, of the value of any
improvements, work or demolition proposed to be provided or performed by Tenant
pursuant to the Assignment Statement.
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(3) If Landlord shall fail to notify Tenant within said fifteen
(15) Business Day period of Landlord's intention to exercise its rights pursuant
to paragraph (B)(2) of this Section 12.8 or of Landlord's consent to or
disapproval of the proposed assignment pursuant to the Assignment Statement, or
if Landlord shall have consented to such assignment as provided in Section
12.8(A) hereof, Tenant shall be free to assign the Premises to such proposed
assignee on the same terms and conditions set forth in the Assignment Statement.
If Tenant shall not enter into such assignment within sixty (60) days after the
delivery of the Assignment Statement to Landlord, then the provisions of this
Section 12.8 shall again be applicable in their entirety to any proposed
assignment.
(4) If Tenant shall propose to assign this Lease and is about to
commence negotiations with a prospective assignee, Tenant shall advise Landlord
of the identity of such prospective assignee and Landlord shall, within five (5)
Business Days, advise Tenant if the execution of an assignment agreement with
such prospective assignee would violate the provisions of paragraph (A)(3) of
this Section 12.8.
(C) If Tenant shall assign this Lease, Tenant shall deliver to
Landlord, within five (5) days after execution thereof, (x) a duplicate original
instrument of assignment in form and substance reasonably satisfactory to
Landlord, duly executed by Tenant, and (y) an instrument in form and substance
reasonably satisfactory to Landlord, duly executed by the assignee, in which
such assignee shall assume observance and performance of, and agree to be
personally bound by, all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed.
(D) Tenant shall pay to Landlord, upon receipt thereof, an amount
equal to fifty percent (50%) of all Assignment Proceeds. For purposes of this
paragraph (D), "ASSIGNMENT PROCEEDS" shall mean all consideration payable
to Tenant, directly or indirectly, by any assignee, including Landlord pursuant
to paragraph (B) of this Section 12.8, or any other amount received by Tenant
from or in connection with any assignment (including, but not limited to, sums
paid for the sale or rental, or consideration received on account of any
contribution, of Tenant's Property) after deducting therefrom: (i) in the event
of a sale (or contribution) of Tenant's Property, the then unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns, (ii) the reasonable out-of-pocket costs and expenses of Tenant in
making such assignment, such as brokers' fees, attorneys' fees, and advertising
fees paid to unrelated third parties, (iii) any payments required to be made by
Tenant in connection with the assignment of its interest in this Lease pursuant
to Article 31-B of the Tax law of the State of New York or any real property
transfer tax of the United States or the City or State of New York (other than
any income tax), (iv) any sums paid by Tenant to Landlord pursuant to Section
12.2(B) hereof, (v) the cost of improvements or alterations made by Tenant
expressly and solely for the purpose of preparing the Premises for such
assignment, as determined by Tenant's federal income tax returns, (vi) the
unamortized or undepreciated cost of any Tenant's Property leased to and used by
such assignee, and (vii) the then unamortized or undepreciated cost of the
Alterations determined on the basis of Tenant's federal income tax returns. If
the consideration paid to Tenant for any assignment shall be paid in
installments, then the expenses specified in this paragraph (D) shall be
amortized over the period during which such installments shall be
38
payable. If Landlord exercises its right to take an assignment of this Lease
pursuant to the provisions of Section 12.8(B) hereof, in no event shall Tenant
be entitled to any proceeds derived from or relating to (directly or indirectly)
any lease or sublease of the Premises by Landlord or further assignment of the
Lease.
SECTION 12.9. Notwithstanding any other provision of this Lease, neither
Tenant nor any direct or indirect assignee or subtenant of Tenant may enter into
any lease, sublease, license, concession or other agreement for use, occupancy
or utilization of space in the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the property leased, occupied
or utilized, or which would require the payment of any consideration which would
not fall within the definition of "rents from real property", as that term is
defined in Section 856(d) of the Internal Revenue Code of 1986, as amended.
ARTICLE 13
ELECTRICITY
SECTION 13.1. Tenant shall at all times comply with the rules,
regulations, terms and conditions applicable to service, equipment, wiring and
requirements of the public utility supplying electricity to the Building. Tenant
shall not use any electrical equipment which, in Landlord's reasonable judgment,
would exceed the capacity of existing feeders to the Building or the risers or
wiring installations therein or which will overload such installations or
interfere with the electrical service to other tenants of the Building. In the
event that, in Landlord's sole judgment, Tenant's electrical requirements
necessitate installation of an additional riser, risers or other proper and
necessary equipment, Landlord shall so notify Tenant of same. Within five (5)
Business Days after receipt of such notice, Tenant shall either cease such use
of such additional electricity or shall request that additional electrical
capacity (specifying the amount requested) be made available to Tenant.
Landlord, in Landlord's reasonable judgment shall determine whether to make
available such additional electrical capacity to Tenant and the amount of such
additional electrical capacity to be made available. If Landlord shall agree to
make available additional electrical capacity and the same necessitates
installation of an additional riser, risers or other proper and necessary
equipment, including, without limitation, any switchgear, the same shall be
installed by Landlord. Any such installation shall be made at Tenant's sole cost
and expense, and shall be chargeable and collectible as additional rent and paid
within ten (10) days after the rendition of a xxxx to Tenant therefor. Landlord
shall not be liable in any way to Tenant for any failure or defect in the supply
or character of electric service furnished to the Premises by reason of any
requirement, act or omission of the utility serving the Building or for any
other reason not attributable to the gross negligence of Landlord, whether
electricity is provided by public or private utility or by any electricity
generation system owned and operated by Landlord.
SECTION 13.2. (A) Unless Landlord elects to supply electricity to the
Premises pursuant to Section 13.3 or Landlord elects to have Tenant obtain
electricity from the public utility furnishing electricity to the Building
pursuant to the provisions of Section 13.4 hereof, Landlord
39
shall furnish electric current to the Premises for the use of Tenant for the
operation of the lighting fixtures and the electrical receptacles for ordinary
office equipment in the Premises on a "rent inclusion" basis, that is, there
shall be no separate charge to Tenant for such electric current by way of
measuring such electricity service on any meter. The Fixed Rent set forth in
this Lease includes an annual charge for electricity service of Nineteen
Thousand Five Hundred Ninety-Three Dollars ($19,593) (such amount, as it may be
increased pursuant to the provisions of this Lease, being referred to as the
"ELECTRICITY INCLUSION FACTOR"). The parties agree that although the charge for
furnishing electrical energy is included in the Fixed Rent on a so-called "rent
inclusion" basis, the value to Tenant of such service may not be fully reflected
in the Fixed Rent. Accordingly, Tenant agrees that Landlord, in the event that
Landlord, in its reasonable discretion determines that Tenant is consuming
electrical energy in an amount which exceeds the consumption level consistent
with companies conducting businesses comparable to that of Tenant, may cause a
reputable and independent electrical engineer or electrical consulting firm,
selected by Landlord (such engineer or consulting firm being hereinafter
referred to as "LANDLORD'S ENGINEER"), to make a determination, following the
commencement of Tenant's normal business activities in the Premises, of the Full
Value of such service to Tenant. As used herein, the "FULL VALUE" to Tenant of
such service shall mean the product obtained by multiplying the demand and
consumption of electric energy at the Premises by the Electric Rate. Landlord's
Engineer shall certify such determination in writing to Landlord and Tenant. If
the Full Value to Tenant is in excess of the Electricity Inclusion Factor, the
Electricity Inclusion Factor and the Fixed Rent shall be increased by such
excess. However, if it shall be so determined that the Full Value to Tenant of
such service does not exceed the Electricity Inclusion Factor, there shall
nevertheless be no decrease in the Electricity Inclusion Factor or in the Fixed
Rent.
(B) If during the Term the Electric Rate shall increase over the Base
Electric Rate, the Electricity Inclusion Factor (and therefore the Fixed Rent)
shall be proportionately increased.
(C) (i) Landlord, from time to time during the Term, may cause
Landlord's Engineer to survey the demand and consumption of electrical energy at
the Premises. If the then Full Value shall exceed the then Electricity Inclusion
Factor, the Electricity Inclusion Factor (and therefore the Fixed Rent), shall
be proportionately increased, based on the increased demand and consumption and
the then prevailing Electric Rate.
(ii) Landlord shall furnish to Tenant a written statement (an
"ELECTRICITY STATEMENT") setting forth Landlord's determination of any increase
which has occurred in the Full Value and the Electricity Inclusion Factor (and
therefore the Fixed Rent) pursuant to the provisions of either Sections 13.2(A),
(B), or (C)(i). Any such increase in the Electricity Inclusion Factor and the
Fixed Rent shall be effective as of the date of such increase in the Electric
Rate or the consumption and demand of electric energy by Tenant and shall be
retroactive to such dates if necessary. Any retroactive increase shall be paid
by Tenant within ten (10) days after demand and such amount shall be collectible
by Landlord as Fixed Rent hereunder.
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(iii) Each such Electricity Statement given by Landlord pursuant
to Section 13.2(C)(ii) above, shall be conclusive and binding upon Tenant,
unless within ninety (90) days after the receipt of such Electricity Statement,
Tenant shall notify Landlord that it disputes the correctness of the Electricity
Statement. If such dispute is based on Tenant's demand and consumption of
electric current, Tenant shall submit a survey and determination of such
adjustment, made at its sole cost and expense, by a reputable and independent
electrical engineer or electrical consulting firm ("TENANT'S ENGINEER"),
within ninety (90) days after receipt of such Electricity Statement.
If Landlord and Tenant are unable to resolve the dispute differences between
them within thirty (30) days after receipt by Landlord of a copy of the
determination of Tenant's Engineer, the dispute shall be decided by a third
reputable and independent electrical engineer or electrical consulting firm
("THIRD ENGINEER"). If the parties shall fail to agree upon the designation of
the Third Engineer within forty (40) days after the receipt by Landlord of the
determination of Tenant's Engineer, then either party may apply to the American
Arbitration Association or any successor thereto for the designation of the
Third Engineer. The Third Engineer shall conduct such hearings as he deems
appropriate. The Third Engineer, within thirty (30) days after his designation,
shall select the determination of either Landlord's Engineer or Tenant's
Engineer and such determination shall be conclusive and binding upon the parties
whether or not a judgment shall be entered in any court. The fees of the Third
Engineer and the costs of arbitration shall be paid equally by the parties,
except that each party shall pay its own counsel fees and expenses, if any, in
connection with the arbitration. Pending the resolution of such dispute by
agreement or arbitration as aforesaid, Tenant shall pay the increase in the
Electricity Inclusion Factor in accordance with the Electricity Statement,
without prejudice to Tenant's position, as herein provided. If the dispute shall
be resolved in Tenant's favor, Landlord, at its option, shall either credit the
amount of such overpayment against subsequent monthly installments of Fixed Rent
hereunder or pay to Tenant the amount of such overpayment.
(D) Landlord's failure during the Term to prepare and deliver any
Electricity Statement, or bills, or Landlord's failure to make a demand, under
this Article or any other provisions of this Lease, shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender, its rights
to collect any portion of the increase in the Electricity Inclusion Factor (and
therefore the Fixed Rent) which may have become due pursuant to this Article 13
during the Term. Tenant's liability for the amounts due under this Article 13
shall survive the expiration or sooner termination of this Lease and Landlord's
obligation, if any, to refund any payments by Tenant in excess of the amounts
required to be paid by Tenant to Landlord pursuant to this Article 13 shall
survive the expiration or sooner termination of this Lease. The preceding
sentence shall not, however, be construed as limiting or restricting, in any
manner whatsoever, Landlord's right pursuant to this Lease or pursuant to law to
offset any such overpayments by Tenant against any amounts which may be due and
payable as provided in this Lease.
(E) In no event shall any adjustment of the payments made or to be
made hereunder result in a decrease in Fixed Rent or additional rent payable
pursuant to any other provision of this Lease, or in the amount paid for
electricity for the prior year.
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(F) The Electricity Inclusion Factor shall be collectible by Landlord
in the same manner as Fixed Rent.
(G) For the purposes of this Section 13.2, Landlord and Tenant agree
that the term "ELECTRIC RATE" (including all applicable surcharges, demand
charges, energy charges, fuel adjustment charges, time of day charges, taxes and
other sums payable in respect thereof) shall mean the greater of:
(i) the service classification pursuant to which
Landlord purchases electricity from the utility company servicing the Building,
and
(ii) the service classification pursuant to which
Tenant would purchase electricity directly from the utility company servicing
the Building.
(H) If Landlord discontinues furnishing electricity to Tenant pursuant
to this Section 13.2, the Fixed Rent shall be decreased by the Electricity
Inclusion Factor effective as of the date Landlord discontinues the provision of
electricity in such manner
SECTION 13.3. (A) If Landlord shall no longer elect to have electricity
furnished to the Premises pursuant to Section 13.2 hereof then, unless Landlord
elects to have Tenant obtain electricity from the public utility company
furnishing electricity to the Building pursuant to the provisions of Section
13.4 hereof, electricity shall be furnished by Landlord to the Premises and
Tenant shall pay to Landlord, as additional rent for such service, during the
Term, an amount (the "ELECTRICITY ADDITIONAL RENT") equal to (i) the amount
Landlord actually pays to the utility company to provide electricity to the
Premises, including all applicable surcharges, demand charges, time-of-day
charges, energy charges, fuel adjustment charges, rate adjustment charges, taxes
and other sums payable in respect thereof, based on Tenant's demand and/or
consumption of electricity (and/or any other method of quantifying Tenant's use
of or demand for electricity as set forth in the utility company's tariff) as
registered on a meter or submeter (installed by Landlord at Landlord's sole cost
and expense) for purposes of measuring such demand, consumption and/or other
method of quantifying Tenant's use of or demand for electricity (it being agreed
that such meter or submeter shall measure demand and consumption, and off-peak
and on-peak use, in either case to the extent such factors are relevant in
making the determination of Landlord's cost) plus (ii) an amount equal to the
out-of-pocket costs and expenses incurred by Landlord in connection with reading
such meters and preparing bills therefor. Tenant, from time to time, shall have
the right to review Landlord's meter readings, and Landlord's calculation of the
Electricity Additional Rent, at reasonable times and on reasonable prior notice,
by giving notice thereof to Landlord on or prior to the ninetieth (90th) day
after the date when Landlord gives Tenant a xxxx or statement for the
Electricity Additional Rent.
(B) Where more than one meter measures the electricity supplied to
Tenant, the electricity rendered through each meter may be computed and billed
separately in accordance with the provisions hereinabove set forth. Bills for
the Electricity Additional Rent shall be rendered to Tenant at such time as
Landlord may elect, and Tenant shall pay the amount shown
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thereon to Landlord within ten (10) days after receipt of such xxxx. Tenant
expressly acknowledges that in connection with the installation of the meters or
submeters, the electricity being supplied to the Premises shall be temporarily
interrupted. Landlord shall use reasonable efforts to minimize interference with
the conduct of Tenant's business in connection with such installation; provided,
however, that Landlord shall have no obligation to employ contractors or labor
at so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever.
SECTION 13.4. If Landlord shall be required by Requirements or the public
utility serving the Premises to discontinue furnishing electricity to Tenant
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 electricity to Tenant
and Tenant shall not be obligated to pay the Electricity Additional Rent. If
Landlord so discontinues furnishing electricity to Tenant, Tenant shall use
diligent efforts to obtain electric energy directly from the public utility
furnishing electric service to the Building. The costs of such service shall be
paid by Tenant directly to such public utility. Such electricity may be
furnished to Tenant by means of the existing electrical facilities serving the
Premises, at no charge, to the extent the same are available, suitable and safe
for such purposes as reasonably determined by Landlord. All meters and all
additional panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electricity shall be installed by
Landlord at Tenant's expense. Provided Tenant shall use and continue to use
diligent efforts to obtain electric energy directly from the public utility,
Landlord, to the extent permitted by applicable Requirements, shall not
discontinue furnishing electricity to the Premises until such installations have
been made and Tenant shall be able to obtain electricity directly from the
public utility.
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ARTICLE 14
ACCESS TO PREMISES
SECTION 14.1. (A) Tenant shall permit Landlord, Landlord's agents,
representatives, contractors and employees and public utilities servicing the
Building to erect, use and maintain, concealed ducts, pipes and conduits in and
through the Premises. Landlord, Landlord's agents, representatives, contractors,
and employees and the agents, representatives, contractors, and employees of
public utilities servicing the Building shall have the right to enter the
Premises at all reasonable times upon reasonable prior notice (except in the
case of an emergency in which event Landlord and Landlord's agents,
representatives, contractors, and employees may enter without prior notice to
Tenant), which notice may be oral, to examine the same, to show them to
prospective purchasers, or prospective or existing Mortgagees or Lessors, and to
make such repairs, alterations, improvements, additions or restorations (i) as
Landlord may deem necessary or desirable to the Premises or to any other portion
of the Building, or (ii) which Landlord may elect to perform following ten (10)
days after notice, except in the case of an emergency (in which event Landlord
and Landlord's agents, representatives, contractors, and employees may enter
without prior notice to Tenant), following Tenant's failure to make repairs or
perform any work which Tenant is obligated to make or perform under this Lease,
or (iii) for the purpose of complying with any Requirements, a Superior Lease or
a Mortgage, and Landlord shall be allowed to take all material into and upon the
Premises that may be required therefor without the same constituting an eviction
or constructive eviction of Tenant in whole or in part and the Fixed Rent (and
any other item of Rental) shall in no wise xxxxx while said repairs,
alterations, improvements, additions or restorations are being made, by reason
of loss or interruption of business of Tenant, or otherwise.
(B) Any work performed or installations made pursuant to this Article
14 shall be made with reasonable diligence and otherwise pursuant to the
provisions of Section 4.3 hereof.
(C) Except as hereinafter provided, any pipes, ducts, or conduits
installed in or through the Premises pursuant to this Article 14 shall be
concealed behind, beneath or within partitioning, columns, ceilings or floors
located or to be located in the Premises. Notwithstanding the foregoing, any
such pipes, ducts, or conduits may be furred at points immediately adjacent to
partitioning columns or ceilings located or to be located in the Premises,
provided that the same are completely furred and that the installation of such
pipes, ducts, or conduits, when completed, shall not reduce the usable area of
the Premises beyond a DE MINIMIS amount.
SECTION 14.2. During the eighteen (18) month period prior to the
Expiration Date, Landlord may exhibit the Premises to prospective tenants
thereof.
SECTION 14.3. If Tenant shall not be present when for any reason entry
into the Premises shall be necessary or permissible, Landlord or Landlord's
agents, representatives, contractors or employees may enter the same without
rendering Landlord or such agents liable therefor if during
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such entry Landlord or Landlord's agents shall accord reasonable care under the
circumstances to Tenant's Property, and without in any manner affecting this
Lease. Nothing herein contained, however, shall be deemed or construed to impose
upon Landlord any obligation, responsibility or liability whatsoever, for the
care, supervision or repair of the Building or any part thereof, other than as
herein provided.
SECTION 14.4. Landlord also shall have the right at any time, without the
same constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement or location of entrances
or passageways, doors and doorways, and corridors, elevators, stairs, toilets,
or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known, provided any such change
does not (a) unreasonably reduce, interfere with or deprive Tenant of access to
the Building or the Premises or (b) reduce the rentable area (except by a DE
MINIMIS amount) of the Premises. All parts (except surfaces facing the interior
of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the 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 Premises, and Landlord shall have the use thereof, as well as access
thereto through the Premises for the purposes of operation, maintenance,
alteration and repair.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in violation of the
certificate of occupancy at such time issued for the Premises or for the
Building and in the event that any department of the City or State of New York
shall hereafter contend or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such certificate of occupancy, Tenant, upon written notice from Landlord or
any Governmental Authority, shall immediately discontinue such use of the
Premises. On the Commencement Date and throughout the Term, a temporary or
permanent certificate of occupancy covering the Premises will be in force
permitting the Premises to be used as offices, provided, however, neither such
certificate, nor any provision of this Lease, nor any act or omission of
Landlord, shall be deemed to constitute a representation or warranty that the
Premises, or any part thereof, lawfully may be used or occupied for any
particular purpose or in any particular manner, in contradistinction to mere
"office" use.
ARTICLE 16
DEFAULT
SECTION 16.1. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
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(A) If Tenant shall default in the payment when due of any installment
of Fixed Rent and such default shall continue for five (5) Business Days after
notice of such default is given to Tenant, or in the payment when due of any
other item of Rental and such default shall continue for five (5) Business Days
after notice of such default is given to Tenant, except that if Landlord shall
have given two (2) such notices in any twelve (12) month period, Tenant shall
not be entitled to any further notice of its delinquency in the payment of
Rental until such time as twelve (12) consecutive months shall have elapsed
without Tenant having defaulted in any such payment; or
(B) if Tenant shall default in the observance or performance of any
term, covenant or condition on Tenant's part to be observed or performed under
any other lease with Landlord or Landlord's predecessor in interest of space in
the Building and such default shall continue beyond any grace period set forth
in such other lease for the remedying of such default; or
(C) if the Premises shall become vacant, deserted or abandoned; or
(D) if Tenant's interest or any portion thereof in this Lease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 12 hereof; or
(E) (1) if Tenant shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(2) if Tenant shall commence or institute any case, proceeding or
other action (A) seeking relief on its behalf as debtor, or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its
property; or
(3) if Tenant shall make a general assignment for the benefit of
creditors; or
(4) if any case, proceeding or other action shall be commenced or
instituted against Tenant (A) seeking to have an order for relief entered
against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any existing
or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its property, which in either of such cases (i) results in
any such entry of an order for relief, adjudication of bankruptcy
46
or insolvency or such an appointment or the issuance or entry of any other order
having a similar effect or (ii) remains undismissed for a period of sixty (60)
days; or
(5) if any case, proceeding or other action shall be commenced or
instituted against Tenant seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its property which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within sixty (60) days from the entry thereof; or
(6) if Tenant shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is appointed for
any substantial part of the assets of Tenant which appointment is not vacated or
stayed within seven (7) Business Days; or
(F) if Tenant shall fail more than five (5) times during any twelve
(12) month period to pay any installment of Fixed Rent or any item of Rental
when due, after receipt of the notice and the expiration of the applicable grace
period pursuant to the provisions of paragraph (A) above, if such notice and
grace period are then required; or
(G) if Tenant shall fail to pay any installments of Fixed Rent or
items of Rental when due as required by this Lease, and Landlord shall bring
more than one (1) summary dispossess proceeding during any twelve (12) month
period; or
(H) if this Lease is assigned (or all or a portion of the Premises are
subleased) to a Related Entity and such Related Entity shall no longer (i)
Control, (ii) be under common Control with, or (iii) be under the Control of
Tenant (or any permitted successor by merger, consolidation or purchase as
provided herein); or
(I) if Tenant shall default in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be observed
or performed and Tenant shall fail to remedy such default within twenty (20)
days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot with due diligence be completely remedied within
said period of twenty (20) days and Tenant shall not commence within said period
of twenty (20) days, or shall not thereafter diligently prosecute to completion,
all steps necessary to remedy such default.
SECTION 16.2. (A) If an Event of Default (i) described in Section 16.1(E)
hereof shall occur, or (ii) described in Sections 16.1(A), (B), (C), (D), (F),
(G), (H) or (I) shall occur and Landlord, at any time thereafter, at its option
gives written notice to Tenant stating that this Lease and the Term shall expire
and terminate five (5) days after the date Landlord shall give Tenant such
notice, then this Lease and the Term and all rights of Tenant under this Lease
shall expire
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and terminate as if the date on which the Event of Default described in clause
(i) above occurred or the date of such notice, pursuant to clause (ii) above, as
the case may be, were the Fixed Expiration Date and Tenant immediately shall
quit and surrender the Premises, but Tenant shall nonetheless be liable for all
of its obligations hereunder, as provided for in Articles 17 and 18 hereof.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(E) hereof, or by federal or state statute, then,
following the expiration of any such stay, or if the trustee appointed in any
such proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease as provided in Section 12.3(B), Landlord, to the extent permitted by law
or by leave of the court having jurisdiction over such proceeding, shall have
the right, at its election, to terminate this Lease on five (5) days' notice to
Tenant, Tenant as debtor-in-possession or said trustee and upon the expiration
of said five (5) day period this Lease shall cease and expire as aforesaid and
Tenant, Tenant as debtor-in-possession or said trustee shall immediately quit
and surrender the Premises as aforesaid.
(B) If an Event of Default described in Section 16.1(A) hereof shall
occur, or this Lease shall be terminated as provided in Section 16.2(A) hereof,
Landlord, without notice, may reenter and repossess the Premises using such
force for that purpose as may be necessary without being liable to indictment,
prosecution or damages therefor and may dispossess Tenant by summary proceedings
or otherwise.
SECTION 16.3. If at any time, (i) Tenant shall be comprised of two (2) or
more persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in Section 16.1(E),
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 16.1(E) shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of Rental or a waiver
on the part of Landlord of any rights under Section 16.2.
ARTICLE 17
REMEDIES AND DAMAGES
SECTION 17.1. (A) If there shall occur any Event of Default, and this
Lease and the Term shall expire and come to an end as provided in Article 16
hereof:
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(1) Tenant shall quit and peacefully surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time after such
default or after the date upon which this Lease and the Term shall expire and
come to an end, re-enter the Premises or any part thereof, without notice,
either by summary proceedings, or by any other applicable action or proceeding,
or by force or otherwise (without being liable to indictment, prosecution or
damages therefor), and may repossess the Premises and dispossess Tenant and any
other persons from the Premises and remove any and all of their property and
effects from the Premises; and
(2) Landlord, at Landlord's option, may relet the whole or any
portion or portions of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine; provided, however, that
Landlord shall have no obligation to relet the Premises or any part thereof and
shall in no event be liable for refusal or failure to relet the Premises or any
part thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
(B) Tenant hereby waives the service of any notice of intention to
re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such persons might otherwise have under any present or future law to redeem the
Premises, or to re-enter or repossess the Premises, or to restore the operation
of this Lease, after (a) Tenant shall have been dispossessed by a judgment or by
warrant of any court or judge, or (b) any re-entry by Landlord, or (c) any
expiration or termination of this Lease and the Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words "re-enter," "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The right to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
SECTION 17.2. (A) If this Lease and the Term shall expire and come to an
end as provided in Article 16 hereof, or by or under any summary proceeding or
any other action or proceeding,
49
or if Landlord shall re-enter the Premises as provided in Section 17.1, or by or
under any summary proceeding or any other action or proceeding, then, in any of
said events:
(1) Tenant shall pay to Landlord all Fixed Rent, Escalation Rent
and other items of Rental payable under this Lease by Tenant to Landlord to the
date upon which this Lease and the Term shall have expired and come to an end or
to the date of re-entry upon the Premises by Landlord, as the case may be;
(2) Tenant also shall be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "DEFICIENCY") between the Rental for
the period which otherwise would have constituted the unexpired portion of the
Term and the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of clause (2) of Section 17.1 (A) for any part of
such period (first deducting from the rents collected under any such reletting
all of Landlord's expenses in connection with the termination of this Lease,
Landlord's re-entry upon the Premises and with such reletting, including, but
not limited to, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements, alteration costs, contribution to work and
other expenses of preparing the Premises for such reletting); any such
Deficiency shall be paid in monthly installments by Tenant on the days specified
in this Lease for payment of installments of Fixed Rent; Landlord shall be
entitled to recover from Tenant each monthly Deficiency as the same shall arise,
and no suit to collect the amount of the Deficiency for any month shall
prejudice Landlord's right to collect the Deficiency for any subsequent month by
a similar proceeding; and
(3) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, on demand, in lieu of any further Deficiency as
and for liquidated and agreed final damages, a sum equal to the amount by which
the Rental for the period which otherwise would have constituted the unexpired
portion of the Term (commencing on the date immediately succeeding the last date
with respect to which a Deficiency, if any, was collected) exceeds the then fair
and reasonable rental value of the Premises for the same period, both discounted
to present worth at the Base Rate; if, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Premises, or any
part thereof, shall have been relet by Landlord for the period which otherwise
would have constituted the unexpired portion of the Term, or any part thereof,
the amount of rent reserved upon such reletting shall be deemed, PRIMA FACIE, to
be the fair and reasonable rental value for the part or the whole of the
Premises so relet during the term of the reletting.
(B) If the Premises, or any part thereof, shall be relet together with
other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be equitably apportioned
for the purposes of this Section 17.2. Tenant shall in no event be entitled to
any rents collected or payable under any reletting, whether or not such rents
shall exceed the Fixed Rent reserved in this Lease. Solely for the purposes of
this Article 17, the term "Escalation Rent" as used in Section 17.2(A) shall
mean the Escalation Rent in effect immediately prior to the Expiration Date, or
the date of re-entry upon the Premises by
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Landlord, as the case may be, adjusted to reflect any increase pursuant to the
provisions of Article 27 hereof for the Comparison Year immediately preceding
such event. Nothing contained in Article 16 hereof or this Article 17 shall be
deemed to limit or preclude the recovery by Landlord from Tenant of the maximum
amount allowed to be obtained as damages by any statute or rule of law, or of
any sums or damages to which Landlord may be entitled in addition to the damages
set forth in this Section 17.2.
ARTICLE 18
LANDLORD FEES AND EXPENSES
SECTION 18.1. If an Event of Default shall have occurred and be continuing
or if Tenant shall do or permit to be done any act or thing upon the Premises
which would cause Landlord to be in default under any Superior Lease or
Mortgage, Landlord may (1) as provided in Section 14.1 hereof, perform the same
for the account of Tenant, or (2) make any expenditure or incur any obligation
for the payment of money, including, without limitation, reasonable attorneys'
fees and disbursements in instituting, prosecuting or defending any action or
proceeding, and the cost thereof, with interest thereon at the Applicable Rate,
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord within ten (10) days of rendition of any xxxx or statement to Tenant
therefor and if the term of this Lease shall have expired at the time of making
of such expenditures or incurring of such obligations, such sums shall be
recoverable by Landlord as damages.
SECTION 18.2. If Tenant shall fail to pay any installment of Fixed Rent,
Escalation Rent or any other item of Rental when due, Tenant shall pay to
Landlord, in addition to such installment of Fixed Rent, Escalation Rent or
other item of Rental, as the case may be, as a late charge and as additional
rent, a sum equal to interest at the Applicable Rate on the amount unpaid,
computed from the date such payment was due to and including the date of
payment.
ARTICLE 19
NO REPRESENTATIONS BY LANDLORD
SECTION 19.1. Landlord and Landlord's agents and representatives have made
no representations or promises with respect to the Building, the Real Property
or the Premises except as herein expressly set forth, and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth herein. Tenant shall accept possession of the Premises in
the condition which shall exist on the Commencement Date "as is" (subject to the
provisions of Section 4.1 hereof), and Landlord shall have no obligation to
perform any work or make any installations in order to prepare the Premises for
Tenant's occupancy, except that Landlord, at its expense, shall (i) construct a
demising wall in the Premises, and (ii) touch up and repair paint and wall
coverings in the Premises where damaged ("LANDLORD'S WORK").
SECTION 19.2. Landlord has made and makes no representation as to the date
on which it will complete Landlord's Work. No delay in completing Landlord's
Work shall in any way affect the validity of this Lease or the obligations of
Tenant hereunder or give rise to a claim for
51
damages by Tenant or a claim for rescission of this Lease, nor shall the same be
construed in any wise to extend the Term hereof. Landlord agrees that, subject
to Unavoidable Delay, each item of Landlord's Work shall be prosecuted with due
diligence; provided, however, that nothing contained in this Article 19 shall be
deemed to impose upon Landlord any obligations to employ contractors or labor at
so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever. Landlord shall have the right to enter the
Premises subsequent to the Commencement Date to complete Landlord's Work and the
payment of Fixed Rent and Escalation Rent shall not be affected thereby.
Landlord and Tenant agree to cooperate with each other in accordance with good
construction practice and scheduling to permit Landlord's Work to be performed
simultaneously with the Initial Alterations.
ARTICLE 20
END OF TERM
Upon the expiration or other termination of this Lease, Tenant shall quit
and surrender to Landlord the Premises, vacant, broom clean, in good order and
condition, ordinary wear and tear and damage for which Tenant is not responsible
under the terms of this Lease excepted, and otherwise in compliance with the
provisions of Article 3 hereof. If the last day of the Term or any renewal
thereof falls on Saturday or Sunday, this Lease shall expire on the Business Day
immediately preceding. Tenant expressly waives, for itself and for any person
claiming through or under Tenant, any rights which Tenant or any such person may
have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any successor law of like import then in force in connection with
any holdover summary proceedings which Landlord may institute to enforce the
foregoing provisions of this Article 20. Tenant acknowledges that possession of
the Premises must be surrendered to Landlord on the Expiration Date. Tenant
agrees to indemnify and save Landlord harmless from and against all claims,
losses, damages, liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements) resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be extremely substantial, will
exceed the amount of the monthly installments of the Fixed Rent and Rental
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord within twenty-four (24) hours after the Expiration Date, in addition to
any other rights or remedies Landlord may have hereunder or at law, and without
in any manner limiting Landlord's right to demonstrate and collect any damages
suffered by Landlord and arising from Tenant's failure to surrender the Premises
as provided herein, Tenant shall pay to Landlord on account of use and occupancy
of the Premises for each month and for each portion of any month during which
Tenant holds over in the Premises after the Expiration Date, a sum equal to the
greater of (i) two (2) times the aggregate of that portion of the Fixed Rent,
Escalation Rent and Rental which was payable under this Lease during the last
month of the Term, and (ii) the then fair market rental value for the Premises.
Nothing herein contained shall be deemed to permit Tenant to retain possession
of the Premises after the Expiration Date or to limit in any
52
manner Landlord's right to regain possession of the Premises through summary
proceedings, or otherwise, and no acceptance by Landlord of payments from Tenant
after the Expiration Date shall be deemed to be other than on account of the
amount to be paid by Tenant in accordance with the provisions of this Article
20. The provisions of this Article 20 shall survive the Expiration Date.
ARTICLE 21
QUIET ENJOYMENT
Provided no Event of Default has occurred and is continuing, Tenant may
peaceably and quietly enjoy the Premises subject, nevertheless, to the terms and
conditions of this Lease.
ARTICLE 22
FAILURE TO GIVE POSSESSION
Landlord shall deliver possession of the Premises on the Commencement Date.
ARTICLE 23
NO WAIVER
SECTION 23.1. No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of this Lease or a surrender of the Premises. In the
event Tenant at any time desires to have Landlord sublet the Premises for
Tenant's account, Landlord or Landlord's agents are authorized to receive said
keys for such purpose without releasing Tenant from any of the obligations under
this Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
SECTION 23.2. The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation of the provisions of this Lease, from having all of the
force and effect of an original violation of the provisions of this Lease. The
receipt by Landlord of Fixed Rent, Escalation Rent or any other item of Rental
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant or any other tenant
in the Building shall not be deemed a waiver of any such Rules and Regulations.
No provision of this Lease shall be deemed to have been waived by Landlord,
53
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or other item
of Rental herein stipulated shall be deemed to be other than on account of the
earliest stipulated Fixed Rent or other item of Rental, or as Landlord may elect
to apply same, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Fixed Rent or other item of Rental 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 Fixed Rent
or other item of Rental or to pursue any other remedy provided in this Lease.
This Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged herein. Any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Lease in whole or in part unless such executory agreement is in writing
and signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
ARTICLE 24
WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
or for the enforcement of any remedy under any statute, emergency or otherwise.
If Landlord commences any summary proceeding against Tenant, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding (unless failure to impose such counterclaim would preclude Tenant
from asserting in a separate action the claim which is the subject of such
counterclaim), and will not seek to consolidate such proceeding with any other
action which may have been or will be brought in any other court by Tenant.
ARTICLE 25
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rental hereunder and perform
all of the other covenants and agreements hereunder on the part of Tenant to be
performed shall in no wise be affected, impaired or excused because Landlord is
unable to fulfill any of its obligations under this Lease expressly or impliedly
to be performed by Landlord or because Landlord is unable to make, or is delayed
in making any repairs, additions, alterations, improvements or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures, if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or by accident, or by any cause whatsoever beyond Landlord's control,
including, but not limited to, laws, governmental preemption in connection with
a national emergency or by reason of any Requirements of any Governmental
Authority or by reason of failure of the HVAC, electrical, plumbing, or other
Building Systems in the Building, or by reason of the conditions of supply and
demand which
54
have been or are affected by war or other emergency ("UNAVOIDABLE DELAYS")
(except that Landlord's financial inability to perform shall not be considered
an Unavoidable Delay)..
ARTICLE 26
BILLS AND NOTICES
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt)
or if sent by registered or certified mail (return receipt requested) addressed
IF TO TENANT (a) at XXXX.xxx, Inc., 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn.:
Controller, or (b) at the Building, Attn.: Xxxxxxxx Xxxxxx,
if mailed subsequent to Tenant's taking possession of the
Premises, or (c) at any place where Tenant or any agent or
employee of Tenant may be found if mailed subsequent to
Tenant's vacating, deserting, abandoning or surrendering the
Premises, in each case with a copy to Xxxxxxxx & Xxxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx _____,
Attn.: X.X. Xxxx, Esq., or
IF TO LANDLORD at Landlord's address set forth in this
Lease, Attn.: Xx. Xxxxx X. Xxxx and with copies to (y)
Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xxxxxxxx X. Xxxxxx, Esq., and (z) each Mortgagee and
Lessor which shall have requested same, by notice given in
accordance with the provisions of this Article 26 at the
address designated by such Mortgagee or Lessor, or
to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 26. Any such xxxx, statement,
consent, notice, demand, request or other communication shall be deemed to have
been rendered or given on the date when it shall have been hand delivered or
three (3) Business Days from when it shall have been mailed as provided in this
Article 26. Anything contained herein to the contrary notwithstanding, any
Operating Statement, Tax Statement or any other xxxx, statement, consent,
notice, demand, request or other communication from Landlord to Tenant with
respect to any item of Rental (other than any "default notice" if required
hereunder) may be sent to Tenant by regular United States mail.
55
ARTICLE 27
ESCALATION
SECTION 27.1. For the purposes of this Article 27, the following terms
shall have the meanings set forth below.
(A) "ASSESSED VALUATION" shall mean the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of calculating all or any portion of the Taxes payable with respect to the Real
Property.
(B) "BASE TAXES" shall mean fifty percent (50%) of the sum of (i) the
Taxes payable for the Tax Year commencing July 1, 1998 and ending June 30, 1999,
and (ii) the Taxes payable for the Tax Year commencing July 1, 1999 and ending
June 30, 2000.
(C) "TAXES" shall mean the aggregate amount of real estate taxes and
any general or special assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property (including, without limitation, (i) assessments
made upon or with respect to any "air" and "development" rights now or hereafter
appurtenant to or affecting the Real Property, (ii) any fee, tax or charge
imposed by any Governmental Authority for any vaults, vault space or other space
within or outside the boundaries of the Real Property, and (iii) any taxes or
assessments levied after the date of this Lease in whole or in part for public
benefits to the Real Property or the Building, including, without limitation,
any Business Improvement District taxes and assessments) without taking into
account any discount that Landlord may receive by virtue of any early payment of
Taxes; provided, that if because of any change in the taxation of real estate,
any other tax or assessment, however denominated (including, without limitation,
any franchise, income, profit, sales, use, occupancy, gross receipts or rental
tax) is imposed upon Landlord or the owner of the Real Property or the Building,
or the occupancy, rents or income therefrom, in substitution for any of the
foregoing Taxes, such other tax or assessment shall be deemed part of Taxes
computed as if Landlord's sole asset were the Real Property. With respect to any
Tax Year, all expenses, including reasonable and customary attorneys' fees and
disbursements, experts' and other witnesses' fees, incurred in contesting the
validity or amount of any Taxes or in obtaining a refund of Taxes shall be
considered as part of the Taxes for such Tax Year. Anything contained herein to
the contrary notwithstanding, Taxes shall not be deemed to include (w) any taxes
on Landlord's income, (x) franchise taxes, (y) estate or inheritance taxes or
(z) any similar taxes imposed on Landlord, unless such taxes are levied,
assessed or imposed in lieu of or as a substitute for the whole or any part of
the taxes, assessments, levies, impositions which now constitute Taxes.
(D) "TAX STATEMENT" shall mean a statement in reasonable detail
setting forth a comparison of the Taxes for a Tax Year with the Base Taxes.
(E) "TAX YEAR" shall mean the period July 1 through June 30 (or such
other period as hereinafter may be duly adopted by the Governmental Authority
then imposing taxes as its fiscal year for real estate tax purposes), any
portion of which occurs during the Term.
56
(F) "COMPARISON YEAR" shall mean each calendar year subsequent to the
calendar year 1999.
(G) "LOCAL 32B" shall mean Local 32B-32J of the Building Service
Employees International Union, AFL-CIO, or its successor, or if there shall be
no successor, then any other union representing employees employed at the
Building and performing similar services.
(H) "PORTERS" shall mean that classification of employee engaged in
the general maintenance and operation of Class A office buildings most nearly
comparable to the classification now applicable to porters in the current
agreement between R.A.B. and Local 32B (which classification is currently termed
"others" in said agreement).
(I) "PORTERS' WAGE FACTOR" shall mean Six Thousand Five Hundred
Thirty-One (6,531).
(J) "PORTERS' WAGE PAYMENT" shall mean the amount obtained by
multiplying the Porters' Wage Factor by the amount by which the Wage Rate in
effect on January 1 of a Comparison Year exceeds the Base Wage Rate.
(K) "R.A.B." shall mean the Realty Advisory Board on Labor Relations,
Incorporated, or its successor.
(L) "WAGE RATE" shall mean the composite hourly wage rate, including
the regular hourly wage rate required to be paid to Porters pursuant to any
agreement between R.A.B. and Local 32B in effect during the year in question,
exclusive of fringe benefits, which Wage Rate shall be based upon the minimum
effective number of hours in a calendar week which Porters are required to work
pursuant to such agreement, provided that if any such agreement shall require
Porters to be regularly employed on days or during hours when overtime or other
premium pay rates are in effect, then the term "regular hourly wage rate" shall
mean the regular average hourly wage rate for the hours in a calendar week which
Porters are required to be regularly employed (whether or not actually at work
in the Building), e.g., if as of November 1, 1986, an agreement between R.A.B.
and Local 32B would require the regular employment of Porters for thirty-five
(35) hours during a calendar week at a regular hourly wage of $4.00 for the
first thirty (30) hours and at an overtime hourly average wage of $5.00 for the
remaining five (5) hours, then the regular hourly wage rate hereunder, as of
November 1, 1986, would be the sum arrived at by dividing the total weekly
average wages of $145.00 by the minimum effective number of required hours of
employment per week. The computation of the regular hourly wage rate shall be on
the same basis whether based on an hourly or other pay scale but predicated on
the minimum effective number of hours during such calendar week which Porters
are required to work under such agreement whether paid by Landlord or any
independent contractor. If there is no such agreement in effect from which such
regular hourly rate is determinable, the computations shall be made on the basis
of the regular hourly wage rate, calculated as provided above, being paid by
Landlord or by the contractor performing xxxxxx or cleaning services for
Landlord as of the date any adjustment provided herein shall be made and an
appropriate retroactive adjustment shall be made when the regular hourly wage
rate is finally determined. If
57
length of service shall be a factor in determining any element of wages, it
shall be conclusively presumed that all employees have two (2) years of service.
(M) "WAGE STATEMENT" shall mean the written statement furnished by
Landlord to Tenant setting forth the Porters' Wage Payment.
SECTION 27.2. (A) If the Taxes payable for any Tax Year (any part or all
of which falls within the Term) shall represent an increase above the Base
Taxes, then Tenant shall pay as additional rent for such Tax Year and continuing
thereafter until a new Tax Statement is rendered to Tenant, Tenant's Tax Share
of such increase (the "TAX PAYMENT") as shown on the Tax Statement with respect
to such Tax Year. Tenant shall be obliged to pay the Tax Payment regardless of
whether Tenant is exempt in whole or part, from the payment of any Taxes by
reason of Tenant's diplomatic status or for any other reason whatsoever. The
Taxes shall be computed initially on the basis of the Assessed Valuation in
effect at the time the Tax Statement is rendered (as the Taxes may have been
settled or finally adjudicated prior to such time) regardless of any then
pending application, proceeding or appeal respecting the reduction of any such
Assessed Valuation, but shall be subject to subsequent adjustment as provided in
Section 27.3 hereof.
(B) At any time during or after the Term, Landlord may render to
Tenant a Tax Statement or Statements showing (i) a comparison of the Taxes for
the Tax Year with the Base Taxes and (ii) the amount of the Tax Payment
resulting from such comparison. On the first day of the month following the
furnishing to Tenant of a Tax Statement, Tenant shall pay to Landlord a sum
equal to 1/12th of the Tax Payment shown thereon to be due for such Tax Year
multiplied by the number of months of the Term then elapsed since the
commencement of such Tax Year. Tenant shall continue to pay to Landlord a sum
equal to one-twelfth (1/12th) of the Tax Payment shown on such Tax Statement on
the first day of each succeeding month until the first day of the month
following the month in which Landlord shall deliver to Tenant a new Tax
Statement. If Landlord furnishes a Tax Statement for a new Tax Year subsequent
to the commencement thereof, promptly after the new Tax Statement is furnished
to Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord for the current Tax Year was greater or
less than the installments of the Tax Payment for the current tax year in
accordance with the Tax Statement, and (a) if there shall be a deficiency,
Tenant shall pay the amount thereof within ten (10) days after demand therefor,
or (b) if there shall have been an overpayment, Landlord shall credit the amount
thereof against the next monthly installments of the Fixed Rent payable under
this Lease. Tax Payments shall be collectible by Landlord in the same manner as
Fixed Rent. Landlord's failure to render a Tax Statement shall not prejudice
Landlord's right to render a Tax Statement during or with respect to any
subsequent Tax Year, and shall not eliminate or reduce Tenant's obligation to
make Tax Payments for such Tax Year.
SECTION 27.3. (A) Only Landlord shall be eligible to institute tax
reduction or other proceedings to reduce the Assessed Valuation. In the event
that, after a Tax Statement has been sent to Tenant, an Assessed Valuation which
had been utilized in computing the Taxes for a Tax Year is reduced (as a result
of settlement, final determination of legal proceedings or otherwise),
58
and as a result thereof a refund of Taxes is actually received by or on behalf
of Landlord, then, promptly after receipt of such refund, Landlord shall send
Tenant a Tax Statement adjusting the Taxes for such Tax Year (taking into
account the expenses mentioned in Section 27.1(C) hereof) and setting forth
Tenant's Tax Share of such refund and Tenant shall be entitled to receive such
Share, at Landlord's option, either by way of a credit against the Fixed Rent
next becoming due after the sending of such Tax Statement or by a refund to the
extent no further Fixed Rent is due; provided, however, that Tenant's Tax Share
of such refund shall be limited to the portion of the Tax Payment, if any, which
Tenant had theretofore paid to Landlord attributable to increases in Taxes for
the Tax Year to which the refund is applicable on the basis of the Assessed
Valuation before it had been reduced.
(B) In the event that, after a Tax Statement has been sent to Tenant,
the Assessed Valuation which had been utilized in computing the Base Taxes is
reduced (as a result of settlement, final determination of legal proceedings or
otherwise) then, and in such event: (i) the Base Taxes shall be retroactively
adjusted to reflect such reduction, and (ii) all retroactive Tax Payments
resulting from such retroactive adjustment shall be due and payable when billed
by Landlord. Landlord promptly shall send to Tenant a statement setting forth
the basis for such retroactive adjustment and Tax Payments.
SECTION 27.4. (A) If the Wage Rate in effect for any Comparison Year (or
portion thereof, any part or all of which falls within the Term) shall be
greater than the Base Wage Rate, then for such Comparison Year, and continuing
thereafter until a new Wage Statement is rendered to Tenant, Tenant shall pay to
Landlord, as additional rent, an amount equal to the Porters' Wage Payment shown
thereon as provided in paragraph (B) below. Landlord shall render a Wage
Statement to Tenant at any time during or after the Term. The Porters' Wage
Payment shall be prorated for any partial calendar year in which the term of
this Lease shall commence or expire. Notwithstanding the foregoing, if, by
reason of any Requirement, an increase in the Wage Rate is reduced or does not
take effect, or increases in the Wage Rate are limited or prohibited, then for
the period covered by such Requirement ("REQUIREMENT PERIOD"), the applicable
increase (the "INCREASE") in the Wage Rate for purposes of this Article shall be
the maximum increase or increases in the Wage Rate permitted during the
Requirement Period, and, upon the expiration thereof, Tenant shall pay to
Landlord, on demand, to the extent permitted by applicable Requirements, the
amount by which the aggregate Porters' Wage Payments applicable to the
Requirement Period exceeds the aggregate Increase paid for such period by Tenant
pursuant to such Requirement, together with interest thereon at the lesser of
(i) the Base Rate or (ii) the maximum rate permitted by law.
(B) At any time during or after each Comparison Year, Landlord shall
render to Tenant a Wage Statement setting forth the Porters' Wage Payment for
such Comparison Year. On the first day of the month following the furnishing to
Tenant of a Wage Statement, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of the Porters' Wage Payment shown thereon to be due for
such Comparison Year. If Landlord furnishes a Wage Statement for a Comparison
Year subsequent to the commencement thereof, then (i) until the first day of the
month following the month in which the Porters' Wage Statement is furnished to
Tenant, Tenant shall continue to pay to Landlord on the first day of each month
an amount equal to the monthly
59
sum payable by Tenant to Landlord with respect to the next previous Comparison
Year; (ii) promptly after the Wage Statement is furnished to Tenant, Landlord
shall give notice to Tenant stating whether the amount previously paid by Tenant
to Landlord for the current Comparison Year was greater or less than the
installments of the Porters' Wage Payment to be paid for the current Comparison
Year in accordance with the Wage Statement, and (a) if there shall be a
deficiency, Tenant shall pay the amount thereof within ten (10) days after
demand therefor, or (b) if there shall have been an overpayment, Landlord shall
credit the amount thereof against the next monthly installments of the Fixed
Rent payable under this Lease; and (iii) on the first day of the month following
the month in which the Wage Statement is furnished to Tenant, and monthly
thereafter throughout the remainder of the current Comparison Year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12th) of the Porters' Wage
Payment shown on the Wage Statement. Xxxxxx'x Wage Payments shall be collectible
by Landlord in the same manner as Fixed Rent. Landlord's failure to render a
Wage Statement shall not prejudice Landlord's right to render a Wage Statement
during or with respect to any subsequent Comparison Year, and shall not
eliminate or reduce Tenant's obligation to make Xxxxxx'x Wage Payments for such
Comparison Year.
SECTION 27.5. The expiration or termination of this Lease during any
Comparison Year or Tax Year shall not affect the rights or obligations of the
parties hereto respecting any payments of Porters' Wage Payments for such
Comparison Year and any payments of Tax Payments for such Tax Year, and any Wage
Statement relating to such Porters' Wage Payment and any Tax Statement relating
to such Tax Payment, may be sent to Tenant subsequent to, and all such rights
and obligations shall survive, any such expiration or termination. In
determining the amount of the Porters' Wage Payment for the Comparison Year or
the Tax Payment for the Tax Year in which the Term shall expire, the payment of
the Porters' Wage Payment for such Comparison Year or the Tax Payment for the
Tax Year shall be prorated based on the number of days of the Term which fall
within such Comparison Year or Tax Year, as the case may be. Any payments due
under such Porters' Wage Statement or Tax Statement shall be payable within
twenty (20) days after such Statement is sent to Tenant.
ARTICLE 28
SERVICES
SECTION 28.1. (A) Landlord shall provide passenger elevator service to the
Premises on Business Days from 8:00 A.M. to 6:00 P.M. and have an elevator
subject to call at all other times.
(B) Commencing on the date Tenant shall occupy the Premises for the
conduct of its business, there shall be one (1) freight elevator serving the
Premises and the entire Building on call on a "first come, first served" basis
on Business Days from 8:00 A.M. to 5:00 P.M., and on a reservation, "first come,
first served" basis from 5:00 P.M. to 8:00 A.M. on Business Days and at any time
on days other than Business Days. If Tenant shall use the freight elevators
serving the Premises between 5:00 P.M. and 8:00 A.M. on Business Days or at any
time on any
60
other days, Tenant shall pay Landlord, as additional rent for such use, the
standard rates then fixed by Landlord for the Building, or if no such rates are
then fixed, at reasonable rates. The current rate for overtime freight elevator
use, which rate is subject to change by Landlord during the Term, is listed on
EXHIBIT "B" attached hereto and made a part hereof.
(C) Landlord shall not be required to furnish any freight elevator
services during the hours from 5:00 P.M. to 8:00 A.M. on Business Days and at
any time on days other than Business Days unless Landlord has received advance
notice from Tenant requesting such services prior to 2:00 P.M. of the day upon
which such service is requested or by 2:00 P.M. of the last preceding Business
Day if such periods are to occur on a day other than a Business Day.
SECTION 28.2. Landlord, at Landlord's expense (but subject to recoupment
pursuant to Article 27 hereof), shall furnish to the perimeter of the Premises
(for distribution by Tenant within the Premises) through the HVAC System, when
required for the comfortable occupancy of the Premises, HVAC on a year round
basis from 8:00 A.M. to 6:00 P.M. on Business Days. Landlord, throughout the
Term, shall have free access to any and all mechanical installations of
Landlord, including, but not limited to, air-cooling, fan, ventilating and
machine rooms and electrical closets; Tenant shall not construct partitions or
other obstructions which may interfere with Landlord's free access thereto, or
interfere with the moving of Landlord's equipment to and from the enclosures
containing said installations. Neither Tenant, nor its agents, employees or
contractors shall at any time enter the said enclosures or tamper with, adjust
or touch or otherwise in any manner affect said mechanical installations. Tenant
shall draw and close the draperies or blinds for the windows of the 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
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the HVAC System.
SECTION 28.3. The Fixed Rent does not reflect or include any charge to
Tenant for the furnishing of any necessary HVAC to the Premises during periods
other than the hours and days set forth above ("OVERTIME PERIODS").
Accordingly, if Landlord shall furnish such HVAC to the Premises at the request
of Tenant during Overtime Periods, Tenant shall pay Landlord additional rent for
such services at the standard rates then fixed by Landlord for the Building, or
if no such rates are then fixed, at reasonable rates. The current rate for HVAC
during Overtime Periods, which rate is subject to change by Landlord during the
Term, is listed on EXHIBIT "B" attached hereto and made a part hereof. Landlord
shall not be required to furnish any such services during any Overtime Periods
unless Landlord has received advance notice from Tenant requesting such services
prior to 2:00 P.M. of the day upon which such services are requested or by 2:00
P.M. of the last preceding Business Day if such Overtime Periods are to occur on
a day other than a Business Day. If Tenant fails to give Landlord such advance
notice, then, failure by Landlord to furnish or distribute any such services
during such Overtime Periods shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Rental, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business or
otherwise. If more than one tenant utilizing the same system
61
as Tenant requests the same services as Tenant for any of the same hours during
the Overtime Periods, the charge to Tenant shall be adjusted pro rata, based
upon the ratio which the rentable area of the Premises bears to the rentable
area of the premises demised to such other tenants.
SECTION 28.4. Provided Tenant shall keep the Premises in order, Landlord,
at Landlord's expense, subject to recoupment pursuant to Article 27 hereof,
shall cause the Premises, excluding any portions thereof used for the storage,
preparation, service or consumption of food or beverages, to be cleaned,
substantially in accordance with the standards set forth in SCHEDULE B annexed
hereto and made a part hereof. Tenant shall pay to Landlord the cost of removal
of any of Tenant's refuse and rubbish from the Premises and the Building to the
extent that the same exceeds the refuse and rubbish usually attendant upon the
use of such Premises as offices. Bills for the same shall be rendered by
Landlord to Tenant at such time as Landlord may elect and shall be due and
payable when rendered as additional rent. Tenant, at Tenant's sole cost and
expense, shall cause all portions of the Premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned daily in
a manner satisfactory to Landlord, and to be exterminated against infestation by
vermin, rodents or roaches regularly and, in addition, whenever there shall be
evidence of any infestation. Any such exterminating shall be done at Tenant's
sole cost and expense, in a manner satisfactory to Landlord, and by Persons
approved by Landlord. If Tenant shall perform any cleaning services in addition
to the services provided by Landlord as aforesaid, Tenant shall employ the
cleaning contractor providing cleaning services to the Building on behalf of
Landlord or such other cleaning contractor as shall be approved by Landlord.
Tenant shall comply with any recycling program and/or refuse disposal program
(including, without limitation, any program related to the recycling, separation
or other disposal of paper, glass or metals) which Landlord shall impose or
which shall be required pursuant to any Requirements.
SECTION 28.5. If the New York Board of Fire Underwriters or the Insurance
Services Office or any Governmental Authority, department or official of the
state or city government shall require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business, or the location of the
partitions, trade fixtures, or other contents of the Premises, Landlord, at
Tenant's cost and expense, shall promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
SECTION 28.6. Landlord reserves the right to stop service of the HVAC
System or the elevator, electrical, plumbing or other Building Systems when
necessary, by reason of accident or emergency, or for repairs, additions,
alterations, replacements or improvements in the judgment of Landlord desirable
or necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed (which repairs, additions, alterations,
replacements and improvements shall be performed in accordance with Section 4.3
hereof). Landlord shall have no responsibility or liability for interruption,
curtailment or failure to supply HVAC, elevator, electrical, plumbing or other
Building Systems when prevented by Unavoidable Delays or by any Requirement of
any Governmental Authority or due to the exercise of its right to stop service
as provided in this Article 28. The exercise of such right or such failure by
Landlord shall not
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constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any compensation or to any abatement or diminution of Rental, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
SECTION 28.7. Landlord shall make available to Tenant the computerized
directory in the lobby of the Building for up to thirty-five (35) listings. The
initial programming shall be without charge to Tenant. From time to time, but
not more frequently than once every three (3) months, Landlord shall reprogram
the computerized directory to reflect such changes in the listings therein as
Tenant shall request, and Tenant promptly after request shall pay to Landlord a
reasonable reprogramming charge for each reprogramming Tenant requests. If
Landlord replaces the computerized directory with a standard directory in the
lobby of the Building, Tenant shall be entitled to Tenant's Tax Share of such
listings on such directory.
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ARTICLE 29
PARTNERSHIP TENANT
If Tenant is a partnership (including, without limitation, a limited
liability partnership) or a limited liability company or a professional
corporation (or is comprised of two (2) or more Persons, individually or as
copartners of a partnership (including, without limitation a limited liability
partnership), as members of a limited liability company or as shareholders of a
professional corporation) or if Tenant's interest in this Lease shall be
assigned to a partnership (including, without limitation, a limited liability
partnership) a limited liability company or a professional corporation (or to
two (2) or more Persons, individually or as co-partners of a partnership, as
members of a limited liability company or shareholders of a professional
corporation) pursuant to Article 12 hereof (any such partnership, professional
corporation and such Persons are referred to in this Article 29 as "PARTNERSHIP
TENANT"), the following provisions shall apply to such Partnership Tenant: (a)
the liability of each of the parties comprising Partnership Tenant shall be
joint and several; (b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by (x) any written instrument
which may hereafter be executed by Partnership Tenant or any successor entity,
changing, modifying, extending or discharging this Lease, in whole or in part,
or surrendering all or any part of the Premises to Landlord, and (y) any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of such parties shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners, shareholders or members, as the case may be,
Partnership Tenant shall give Landlord notice of such event not later than ten
(10) Business Days prior to the admission of such partner(s), shareholder(s) or
member(s) together with an assumption agreement in form and substance
satisfactory to Landlord pursuant to which each of such new partners,
shareholders or members, as the case may be, shall, by their admission to
Partnership Tenant, agree to assume joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease (as the
same may have been or thereafter be amended) on Tenant's part to be observed and
performed; it being expressly understood and agreed that each such new partner,
shareholder or member (as the case may be) shall be deemed to have assumed joint
and several liability for the performance of all of the terms, covenants and
conditions of this Lease (as the same may have been or thereafter be amended),
whether or not such new partner, shareholder or member shall have executed such
assumption agreement, and that neither Tenant's failure to deliver such
assumption agreement nor the failure of any such new partner or shareholder, as
the case may be, to execute or deliver any such agreement to Landlord shall
vitiate the provisions of this clause (d) of this Article 29).
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ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, any vaults, vault space or other space outside the
boundaries of the Real Property are not included in the Premises. Landlord makes
no representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license, and if any such license shall be revoked, or
if the amount of such space shall be diminished or required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution of Rental, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord. Any fee, tax or charge imposed by any Governmental Authority for
any such vaults, vault space or other space occupied by Tenant shall be paid by
Tenant.
ARTICLE 31
INTENTIONALLY OMITTED PRIOR TO EXECUTION
ARTICLE 32
CAPTIONS
The captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this Lease nor the intent
of any provision thereof.
ARTICLE 33
PARTIES BOUND
The covenants, conditions and agreements contained in this Lease shall bind
and inure to the benefit of Landlord and Tenant and their respective legal
representatives, successors, and, except as otherwise provided in this Lease,
their assigns.
ARTICLE 34
BROKER
65
Each party represents and warrants to the other that it has not dealt with
any broker or Person in connection with this Lease other than Xxxxxxx Property
Advisors, Inc. ("BROKER"). The execution and delivery of this Lease by each
party shall be conclusive evidence that such party has relied upon the foregoing
representation and warranty. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims for commission, fee or other compensation by
any Person (other than Broker) who shall claim to have dealt with Tenant in
connection with this Lease and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. Landlord shall indemnify and hold Tenant
harmless from and against any and all claims for commission, fee or other
compensation by any Person (including Broker) who shall claim to have dealt with
Landlord in connection with this Lease and for any and all costs incurred by
Tenant in connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. Landlord agrees that it shall pay to Broker
all commission, compensation and other fees in connection with this Lease
pursuant to a separate agreement between Landlord and Broker. The provisions of
this Article 34 shall survive the Expiration Date.
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ARTICLE 35
INDEMNITY
SECTION 35.1. (A) Tenant shall not do or permit any act or thing to be
done upon the Premises which may subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of any Requirement, and shall exercise such control over
the Premises as to fully protect Landlord against any such liability. Tenant
shall indemnify and save the Indemnitees harmless from and against (a) all
claims of whatever nature against the Indemnitees arising from any act, omission
or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors (except to the extent the same are due to the
negligence or willful misconduct of Landlord, Landlord's employees, agents or
licensees), (b) all claims against the Indemnitees arising from any accident,
injury or damage whatsoever caused to any person or to the property of any
person and occurring during the Term in or about the Premises, (c) all claims
against the Indemnitees arising from any accident, injury or damage occurring
outside of the Premises but anywhere within or about the Real Property, where
such accident, injury or damage results or is claimed to have resulted from a
wrongful act, omission or negligence of Tenant or Tenant's contractors,
licensees, agents, servants, employees, invitees or visitors, and (d) any
breach, violation or non-performance of any covenant, condition or agreement in
this Lease set forth and contained on the part of Tenant to be fulfilled, kept,
observed and performed. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, fines, suits, demands, costs
and expenses of any kind or nature (including, without limitation, attorneys'
fees and disbursements) incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof but except with respect to
claims with respect to bodily injury or death, shall be limited to the extent
any insurance proceeds collectible by Landlord under policies owned by Landlord
or such injured party with respect to such damage or injury are insufficient to
satisfy same. Tenant shall have no liability for any consequential damages
suffered either by Landlord or by any party claiming through Landlord.
(B) Except as provided in Articles 4, 9, 10, 13, 28, 36 and 37 hereof and
otherwise as expressly provided herein, Landlord shall indemnify and save Tenant
its shareholders, directors, officers, Partners, employees and agents harmless
from and against all claims against Tenant arising from any direct damage to the
Premises and any bodily injury to Tenant's employees, agents or invitees
resulting from the acts, omissions or negligence of Landlord or its agents. This
indemnity and hold harmless agreement shall include indemnity from and against
any and all liability, fines, suits, demands, costs and expenses of any kind or
nature (including, without limitation, reasonable attorneys' fees and
disbursements) incurred in or in connection with any such claim or proceeding
brought thereon, but shall be limited to the extent any insurance proceeds
collectible by Tenant or such injured party with respect to such damage or
injury are insufficient to satisfy same. Landlord shall have no liability for
any consequential damages suffered either by Tenant or by any party claiming
through Tenant.
SECTION 35.2. If any claim, action or proceeding is made or brought
against either party, which claim, action or proceeding the other party shall be
obligated to indemnify such first party
67
against pursuant to the terms of this Lease, then, upon demand by the
indemnified party, the indemnifying party, at its sole cost and expense, shall
resist or defend such claim, action or proceeding in the indemnified party's
name, if necessary, by such attorneys as the indemnified party shall approve,
which approval shall not be unreasonably withheld. Attorneys for the
indemnifying party's insurer are hereby deemed approved for purposes of this
Section 35.2. Notwithstanding the foregoing, an indemnified party may retain its
own attorneys to defend or assist in defending any claim, action or proceeding
involving potential liability of Five Million Dollars ($5,000,000) or more, and
the indemnifying party shall pay the reasonable fees and disbursements of such
attorneys. The provisions of this Article 35 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 36
ADJACENT EXCAVATION-SHORING
If an excavation shall be made upon land adjacent to the Premises, or shall
be authorized to be made, Tenant, upon reasonable advance notice, shall afford
to the person causing or authorized to cause such excavation, a license to enter
upon the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations, without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rental, provided that
Tenant shall continue to have access to the Premises and the Building.
ARTICLE 37
MISCELLANEOUS
SECTION 37.1. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord or Tenant unless
and until Landlord and Tenant shall have executed and unconditionally delivered
a fully executed copy of this Lease to each other.
SECTION 37.2. The obligations of Landlord under this Lease shall not be
binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder. The partners, shareholders, directors, officers and principals,
direct and indirect, comprising Landlord (collectively, the "PARTIES") shall not
be liable for the performance of Landlord's obligations under this Lease. Tenant
shall look solely to Landlord to enforce Landlord's obligations hereunder and
shall not seek any damages against any of the Parties. The liability of Landlord
for Landlord's obligations under this Lease shall be limited to Landlord's
interest in the Real Property and Tenant shall not look to any other property or
assets of Landlord or the property or
68
assets of any of the Parties in seeking either to enforce Landlord's obligations
under this Lease or to satisfy a judgment for Landlord's failure to perform such
obligations.
SECTION 37.3. Notwithstanding anything contained 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 Fixed Rent, Escalation Rent,
additional rent or Rental, shall constitute rent for the purposes of Section
502(b)(7) of the Bankruptcy Code.
SECTION 37.4. Tenant's liability for all items of Rental shall survive the
Expiration Date.
SECTION 37.5. Tenant shall reimburse Landlord as additional rent, within
ten (10) days after rendition of a statement, for all expenditures made by, or
damages or fines sustained or incurred by, Landlord, due to any default by
Tenant under this Lease, with interest thereon at the Applicable Rate.
SECTION 37.6. This Lease shall not be recorded.
SECTION 37.7. Tenant hereby waives any claim against Landlord which Tenant
may have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval requested by Tenant, and Tenant
agrees that its sole remedy shall be an action or proceeding to enforce any
related provision or for specific performance, injunction or declaratory
judgment. In the event of a determination that such consent or approval has been
unreasonably withheld or delayed, the requested consent or approval shall be
deemed to have been granted; however, Landlord shall have no liability to Tenant
for its refusal or failure to give such consent or approval. Tenant's sole
remedy for Landlord's unreasonably withholding or delaying consent or approval
shall be as provided in this Section 37.7.
SECTION 37.8. This Lease contains the entire agreement between the parties
and supersedes all prior understandings, if any, with respect thereto. This
Lease shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties.
SECTION 37.9. Tenant hereby (a) irrevocably consents and submits to the
jurisdiction of any Federal, state, county or municipal court sitting in the
State of New York in respect to any action or proceeding brought therein by
Landlord against Tenant concerning any matters arising out of or in any way
relating to this Lease; (b) irrevocably waives personal service of any summons
and complaint and consents to the service upon it of process in any such action
or proceeding by mailing of such process to Tenant at the address set forth
herein and hereby irrevocably designates Xxxxxxxx & Xxxxxxxx LLP or other law
firm located in Manhattan if disclosed to Landlord in writing (or if not so
located, then upon any member of the law firm of Xxxxxxxx & Xxxxxxxx LLP, or
their successor, if so located in Manhattan), to accept service of any process
on Tenant's behalf and hereby agrees that such service shall be deemed
sufficient; (c) irrevocably waives all objections as to venue and any and all
rights it may have to seek a change of venue with respect to any such action or
proceedings; (d) agrees that the laws of the State of New York shall govern in
any such action or proceeding and waives any defense to any action or
69
proceeding granted by the laws of any other country or jurisdiction unless such
defense is also allowed by the laws of the State of New York; and (e) agrees
that any final judgment rendered against it in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law. Tenant further agrees that any
action or proceeding by Tenant against Landlord in respect to any matters
arising out of or in any way relating to this Lease shall be brought only in the
State of New York, county of New York. In furtherance of the foregoing, Tenant
hereby agrees that its address for notices given by Landlord and service of
process under this Lease shall be the Premises. Notwithstanding the foregoing
provisions of this Section 37.9, Tenant may, by written notice to Landlord,
change the designated agent for acceptance of service of process to any other
law firm located in the City, county and State of New York.
SECTION 37.10. Unless Landlord shall render written notice to Tenant to
the contrary in accordance with the provisions of Article 26 hereof, MRC
Management LLC is authorized to act as Landlord's agent in connection with the
performance of this Lease, including, without limitation, the receipt and
delivery of any and all notices and consents in accordance with Article 26.
Tenant shall direct all correspondence and requests to, and shall be entitled to
rely upon correspondence received from, MRC Management LLC, as agent for the
Landlord in accordance with Article 26. Tenant acknowledges that MRC Management
LLC is acting solely as agent for Landlord in connection with the foregoing, and
neither MRC Management LLC nor any of its direct or indirect partners, officers,
shareholders, directors or employees shall have any liability to Tenant in
connection with the performance of Landlord's obligations under this Lease and
Tenant waives any and all claims against any such party arising out of, or in
any way connected with, this Lease or the Real Property.
SECTION 37.11. (A) All of the Schedules and Exhibits attached hereto are
incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Schedules and Exhibits hereto, the terms and provisions of
this Lease shall control. Wherever appropriate in this Lease, personal pronouns
shall be deemed to include the other genders and the singular to include the
plural. All Article and Section references set forth herein shall, unless the
context otherwise specifically requires, be deemed references to the Articles
and Sections of this Lease.
(B) If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall ever be
held to be invalid or unenforceable, then in each such event the remainder of
this Lease or the application of such term, covenant, condition or provision to
any other Person or any other circumstance (other than those as to which it
shall be invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(C) All references in this Lease to the consent or approval
of Landlord shall be deemed to mean the written consent or approval of Landlord
and no consent or approval
70
of Landlord shall be effective for any purpose unless such consent or approval
is set forth in a written instrument executed by Landlord.
SECTION 37.12. At any time and from time to time during the term of this
Lease, Landlord shall have the right to substitute for the Premises (for the
purposes of this Article only, the Premises are referred to as the "REPLACED
PREMISES") other space in the Building (such other space being referred to as
the "SUBSTITUTE PREMISES") by written notice given to Tenant not later than
sixty (60) days prior to the date set forth in said notice as the effective date
(the "SUBSTITUTION DATE") for such substitution. Landlord's notice shall
include a floor plan identifying the Substitute Premises, which Substitute
Premises shall have a rentable area equal to or greater than the Replaced
Premises and shall be similar thereto in configuration. Tenant shall vacate the
Replaced Premises and surrender the same to Landlord on or before the
Substitution Date. Promptly after Tenant enters into occupancy of the Substitute
Premises and provided Tenant is not then in default under the terms or
conditions of this Lease, Landlord shall reimburse Tenant for any reasonable
moving expenses and for any other reasonable costs and expenses incurred by
Tenant in duplicating in the Substitute Premises the Alterations previously made
by Tenant in the Replaced Premises, including the costs of duplicating cabling
and panel systems, and of reconfiguring furniture, in each case as they existed
immediately prior to Tenant's relocation to the Substitute Premises. From and
after the Substitution Date, the term "Premises" shall mean the Substitute
Premises for all purposes hereunder.
ARTICLE 38
RENT CONTROL
If at the commencement of, or at any time or times during the Term of this
Lease, the Rental reserved in this Lease shall not be fully collectible by
reason of any Requirement, Tenant shall enter into such agreements and take such
other steps (without additional expense to Tenant) as Landlord may request and
as may be legally permissible to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such legal rent
restriction be legally permissible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal rent restriction
prior to the expiration of the Term, (a) the Rental shall become and thereafter
be payable hereunder in accordance with the amounts reserved in this Lease for
the periods following such termination, and (b) Tenant shall pay to
71
Landlord, if legally permissible, an amount equal to (i) the items of Rental
which would have been paid pursuant to this Lease but for such legal rent
restriction less (ii) the rents paid by Tenant to Landlord during the period or
periods such legal rent restriction was in effect.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
ELEVEN PENN PLAZA LLC
By: Vornado M 393 L.L.C., member
By: Vornado Realty Trust, authorized signatory
By: /s/ Xxxxx Xxxxxxxx
---------------------
Xxxxx Xxxxxxxx
Vice President and Chief Financial Officer
By: M 393 Associates LLC, member
By: Vornado M 393 L.L.C.
By: Vornado Realty Trust, authorized signatory
By: /s/ Xxxxx Xxxxxxxx
---------------------
Xxxxx Xxxxxxxx
Vice President and Chief Financial Officer
XXXX.XXX, INC., Tenant
By: /s/ Xxxxxxx Xxxxx
------------------------
Name: Xxxxxxx Xxxxx
Title: CEO
Fed. Id. No. 00-0000000
72
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 5th day of March, 1999, before me personally came Xxxxxxx Xxxxx, to
me known, who, being by me duly sworn, did depose and say that he resides at No.
00 Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000; that he is the CEO of XXXX.XXX, INC., the
corporation described and which executed the foregoing instrument; that he
signed his name thereto by order of the board of directors of said corporation.
/s/ Xxxx Xxxxxxx
-----------------
Notary Public
XXXX XXXXXXX
Comm# 1145723
Notary Public - California
City & County of San Francisco
My Commission Expires July 4, 2001
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SCHEDULE A
RULES AND REGULATIONS
(1) The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls shall not be obstructed or encumbered by Tenant
or used for any purpose other than ingress and egress to and from the Premises
and for delivery of merchandise and equipment in prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord.
(2) No awnings, air-conditioning units, fans or other projections shall be
attached to the outside walls of the Building. No curtains, blinds, shades, or
screens, other than those which conform to Building standards as established by
Landlord from time to time, shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed. Such
awnings, projections, curtains, blinds, shades, screens or other fixtures must
be of a quality, type, design and color, and attached in the manner reasonably
approved by Landlord. All electrical fixtures hung in offices or spaces along
the perimeter of the Premises must be of a quality, type, design and bulb color
approved by Landlord, which consent shall not be withheld or delayed
unreasonably unless the prior consent of Landlord has been obtained for other
xxxxxxx.
(3) No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord
except that the name of Tenant may appear on the entrance door of the Premises.
In the event of the violation of the foregoing by Tenant, if Tenant has refused
to remove same after reasonable notice from Landlord, Landlord may remove same
without any liability, and may charge the expense incurred by such removal to
Tenant. Interior signs on doors and directory tablet shall be of a size, color
and style reasonably acceptable to Landlord.
(4) The exterior windows and doors that reflect or admit light and air into
the Premises or the halls, passageways or other public places in the Building,
shall not be covered or obstructed by Tenant.
(5) No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules, nor shall any article obstruct any air-conditioning supply or
exhaust without the prior written consent of Landlord.
(6) The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant.
A-1
(7) Subject to the provisions of Article 3 of this Lease, Tenant shall not
xxxx, paint, drill into, or in any way deface any part of the Premises or the
Building. No boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, and as Landlord may direct.
(8) No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction or otherwise.
(9) Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them whether by the use of any musical
instrument, radio, television set, talking machine, unmusical noise, whistling,
singing, or in any other way.
(10) Tenant, or any of Tenant's employees, agents, visitors or licensees,
shall not at any time bring or keep upon the Premises any inflammable,
combustible or explosive fluid, chemical or substance except such as are
incidental to usual office occupancy.
(11) No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof, unless Tenant promptly provides Landlord with the key
or combination thereto. Tenant must, upon the termination of its tenancy, return
to Landlord all keys of stores, offices and toilet rooms, and in the event of
the loss of any keys furnished at Landlord's expense, Tenant shall pay to
Landlord the cost thereof.
(12) No bicycles, vehicles or animals of any kind except for seeing eye
dogs shall be brought into or kept by Tenant in or about the Premises or the
Building.
(13) All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place in the manner and
during the hours which Landlord or its agent reasonably may determine from time
to time. Landlord reserves the right to inspect all safes, freight or other
bulky articles to be brought into the Building and to exclude from the Building
all safes, freight or other bulky articles which violate any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
(14) Tenant shall not occupy or permit any portion of the Premises demised
to it to be occupied as an office for a public stenographer or typist, or for
the possession, storage, manufacture, or sale of liquor, narcotics, dope, or as
a xxxxxx or manicure shop, or as an employment bureau. Tenant shall not engage
or pay any employees on the Premises, except those actually working for Tenant
at the Premises, nor advertise for labor giving an address at the Premises.
(15) Tenant shall not purchase spring water, ice, towels or other like
service, or accept barbering or bootblacking services in the Premises, from any
company or persons not approved
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by Landlord, which approval shall not be withheld or delayed unreasonably and at
hours and under regulations other than as reasonably fixed by Landlord.
(16) Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's reasonable opinion, tends to impair 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.
(17) Landlord reserves the right to exclude from the Building between the
hours of 6 P.M. and 8 A.M. and at all hours on days other than Business Days all
persons who do not present a pass to the Building signed or approved by
Landlord. Tenant shall be responsible for all persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons.
(18) Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
(19) The requirements of Tenant will be attended to only upon written
application at the office of the Building. Building employees shall not perform
any work or do anything outside of the regular duties, unless under special
instructions from the office of Landlord.
(20) Canvassing, soliciting and peddling in the Building is prohibited and
Tenant shall cooperate to prevent the same.
(21) There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
(22) Except as specifically provided in Section 2.2 of this Lease, Tenant
shall not do any cooking, conduct any restaurant, luncheonette or cafeteria for
the sale or service of food or beverages to its employees or to others, or cause
or permit any odors of cooking or other processes or any unusual or
objectionable odors to emanate from the Premises. Tenant shall not permit the
delivery of any food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord, which approval shall not
be unreasonably withheld or delayed.
(23) Tenant shall keep the entrance door to the Premises closed at all
times.
(24) Landlord shall have the right to require that all messengers and other
Persons delivering packages, papers and other materials to Tenant (i) be
directed to deliver such packages, papers and other materials to a Person
designated by Landlord who will distribute the same to Tenant or (ii) be
escorted by a person designated by Landlord to deliver the same to Tenant
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(25) Landlord and its agents reserve the right to inspect all packages,
boxes, bags, handbags, attache cases, suitcases, and other items carried into
the Building, and to refuse entry into the Building to any person who either
refuses to cooperate with such inspection or who is carrying any object which
may be dangerous to persons or property. In addition, Landlord reserves the
right to implement such further measures designed to ensure safety of the
Building and the persons and property located therein as Landlord shall deem
necessary or desirable.
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SCHEDULE B
CLEANING SPECIFICATIONS
GENERAL CLEANING:
NIGHTLY
GENERAL OFFICES:
1. All hardsurfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window xxxxx.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste disposal cans and baskets.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
PUBLIC LAVATORIES (BASE BUILDING):
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers as needed,
supplies therefore to be furnished by Landlord at a reasonable charge
to Tenant. If the
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Premises consists of a part of a rentable floor, said charge to Tenant
shall be that portion of a reasonable charge for such supplies that is
reasonably allocable to Tenant.
8. Empty and clean sanitary disposal receptacles.
WEEKLY:
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvres and other ventilating louvres within a person's
reach.
3. Wipe clean all brass and other bright work.
QUARTERLY:
High dust the Premises complete, including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions, doors and
door bucks and other surfaces not reached in nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres, ducts, high
mouldings and other high areas not reached in nightly cleaning.
4. Dust all venetian blinds.
Wash exterior and interior of windows periodically, subject to weather
conditions and requirements of law.
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EXHIBIT "A"
FLOOR PLAN
This floor plan is annexed to and made a part of this Lease solely to indicate
the Premises by outlining and diagonal marking. All areas, conditions,
dimensions and locations are approximate.
