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EXHIBIT 10.40
OFFICE LEASE
BETWEEN
00 XXXXX XXXXXX LLC
LANDLORD,
AND
PLD TELEKOM, INC.
TENANT.
PREMISES: PORTION OF SEVENTH (7TH) FLOOR
75 A/K/A 00 XXXXX XXXXXX
XXX XXXX, XXX XXXX
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STANDARD FORM OF OFFICE LEASE
AGREEMENT OF LEASE, made as of this 1st day of December, 1998
between 00 XXXXX XXXXXX LLC, a New York limited liability company, having an
office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, party of the
first part, hereinafter referred to as LANDLORD and PLD TELEKOM, INC., a
Delaware corporation having an office at 75/a/k/a 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, party of the second part, hereinafter referred to as TENANT.
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord, that portion of Seventh (7th) floor, as shown on the rental
plan annexed hereto and made a part hereof as Exhibit A (the "Demised Premises"
or "demised premises", whether capitalized or not) in the building known as 75
a/k/a 00 Xxxxx Xxxxxx in the Borough of Manhattan, City of New York (the
"Building" or "Building", whether capitalized or not), for the term of
approximately ten (10) years and six (6) months (or until such term shall sooner
cease and expire as hereinafter provided) to commence subject to Article 54
hereof on December 15, 1998 (the "Commencement Date") and shall expire on June
15, 2009 (the "Expiration Date"), both dates inclusive, at annual rental rates,
as provided in the Rent Schedule annexed hereto and made a part hereof as
Exhibit B (the "fixed rent" or "Fixed Rent" or "Fixed Annual Rent," whether
capitalized or not), which Tenant agrees to pay in lawful money of the United
States which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance on the
first day of each month during said term, at the office of Landlord or such
other place as Landlord may designate, without any set off, counterclaim or
deduction whatsoever.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. RENT. Tenant shall pay the rent as above and as hereinafter
provided.
2. OCCUPANCY. Tenant shall use and occupy the Demised Premises
for telecommunication switching equipment and sales and administrative offices
and for no other purpose.
3. ALTERATIONS: Tenant shall make no changes in or to the
Demised Premises of any nature without Landlord's prior written consent
provided, however, that Tenant may install its switching equipment and may make
purely decorative changes such as painting and installation of partitions and
carpeting without Landlord's consent, but upon notice to Landlord. Subject to
the prior written consent of Landlord, not to be unreasonably withheld or
delayed and to the provisions of this Article, Tenant at Tenant's expense, may
make non-structural alterations, installations, additions or improvements which
do not affect utility services or plumbing and electrical lines, in or to the
interior of the Demised Premises using licensed and reputable contractors or
mechanics first approved by Landlord. With respect to any work involving the
base building electrical service rooms, Tenant must utilize Landlord's
designated base building electrician for any and all such work. In accordance
with the provisions of this Article 3, Tenant shall have the right subject to
applicable legal requirements to install a gaseous fire retardant, either FM 200
or intergin. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements obtain all permits, approval and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Landlord. Tenant
agrees to carry and will cause Tenant's contractors and sub-contractors to carry
such xxxxxxx'x compensation, general liability, personal and property damage
insurance in the amounts specified in Article 45 hereof. If any mechanic's lien
is filed against the Demised Premises or the Building for work claimed to have
been done for, or materials furnished to, Tenant, whether or not done pursuant
to this Article, the same shall be discharged by Tenant within thirty (30) days
after Tenant receives written notice thereof at Tenant's expense, by filing the
bond required by law or otherwise. All interior walls, doors, paneling,
partitions, railings and like installations, installed in the Demised Premises
at any time, either by Tenant or by Landlord on Tenant's behalf, shall, upon
installation, become the property of Landlord and shall remain upon and be
surrendered with the Demised Premises unless Landlord, by notice to Tenant at
the time Landlord approves Tenant's plans, elects to relinquish Landlord's right
to such installations and to have them removed by Tenant, in which event the
same shall be removed from the Demised Premises by Tenant prior to the
expiration of the lease, at Tenant's expense. Notwithstanding the foregoing,
Landlord hereby requires Tenant to remove all of its switching equipment, the
backup generator and other appurtenant
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equipment. Nothing in this Article shall be construed to give Landlord title to
or to prevent Tenant's removal of its switching equipment, backup generator,
trade fixtures and moveable office furniture and equipment, but upon removal of
any such items from the Demised Premises or upon removal of other installations
as may be permitted hereunder, Tenant shall immediately and at its expense,
repair and restore the Demised Premises to the condition existing prior to
installation, reasonable wear and tear excepted, and repair any damage to the
Demised Premises or the Building due to such removal. All property permitted to
be removed by Tenant at the end of the term remaining in the Demised Premises
after Tenant's removal (in the case of its backup generator, more than one month
following its removal) shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord's property or removed from the Demised
Premises by Landlord, at Tenant's expense.
With respect to any request for Landlord's consent to any
alterations for which Landlord's consent is required, Landlord agrees to review
Tenant's plans within ten (10) business days after receipt thereof, failure by
Landlord to respond within said ten (10) business day period being deemed
Landlord's approval thereof.
4. REPAIRS: Landlord shall maintain in good working order and
repair the exterior of and the public portions of the Building and all Building
systems servicing the Demised Premises. Tenant shall, throughout the term of
this lease, take good care of the Demised Premises including the windows and
window frames and, the fixtures and appurtenances therein and at Tenant's sole
cost and expense promptly make all repairs thereto and to the Building, whether
structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees. Tenant shall also repair all damage
to the Building and the Demised Premises caused by the moving of Tenant's
fixtures, furniture or equipment. All the aforesaid repairs shall be of quality
or class equal to the original work or construction. If Tenant fails, after ten
(10) days notice, to proceed with due diligence to make repairs required to be
made by Tenant, the same may be made by the Landlord at the expense of Tenant,
and the expenses thereof incurred by Landlord shall be collectible, as
additional rent, after rendition of a xxxx or statement therefor. If the Demised
Premises be or become infested with vermin, Tenant shall, at its expense, cause
the same to be exterminated. Tenant shall give Landlord prompt notice of any
defective condition in any plumbing, heating system or electrical lines located
in the Demised Premises and following such notice, Landlord shall remedy the
condition with due diligence, but at the expense of Tenant, if repairs are
necessitated by damage or injury attributable to Tenant, Tenant's servants,
agents, employees, invitees or licensees as aforesaid. There shall be no
allowance to the 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 Demised Premises or in and to the fixtures, appurtenances or equipment
thereof, except that the foregoing shall not apply to Landlord's failure to make
repairs which prevent the operation of Tenant's switching equipment or backup
generator. The provisions of this Article 4 with respect to the making of
repairs shall not apply in the case of fire or other casualty with regard to
which Article 9 shall apply.
5. WINDOW CLEANING: Tenant will not clean nor require, permit,
suffer or allow any window in the Demised Premises to be cleaned from the
outside in violation of Section 202 of the New York State Labor Law or any other
applicable law or of the Rules of the Board of Standards and Appeals, or of any
other Board or body having or asserting jurisdiction.
6. REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS: Prior to
the commencement of the lease term, if Tenant is then in possession, and at all
times thereafter, Tenant shall, at Tenant's sole cost and expense, promptly
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and boards
and any direction of any public officer pursuant to law, and all orders, rules
and regulations of the New York Board of Fire Underwriters, or the Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Landlord or Tenant with respect to the Demised Premises, solely when
arising out of Tenant's manner of use thereof, or, with respect to the Building,
if arising out of Tenant's use or manner of use of the Demised Premises or the
Building. Nothing herein shall require Tenant to make structural repairs or
alterations unless Tenant has, by its manner of use of the Demised Premises or
method of operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant shall not do not permit
any act or thing to be done in or to the Demised Premises which is contrary to
law, or which will invalidate or be in conflict with public liability, fire or
other policies of insurance at any time carried by or for the benefit of
Landlord. Tenant shall not keep anything in the Demised Premises except as now
or hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization and other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the Building, nor use the Demised Premises in a manner
which will increase the insurance rate for the Building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy. If
by reason of failure to comply with the foregoing the fire insurance rate shall,
at the beginning of this lease or at any time thereafter, be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make-up" or rate for the Building or
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Demised Premises issued by a body making fire insurance rates applicable to said
Demised Premises, shall be conclusive evidence of the facts therein stated and
of the items and changes in the fire insurance rates applicable to the Demised
Premises. Tenant shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient, in Landlord's judgement, to absorb and prevent vibration,
noise and annoyance. Landlord represents and warrants that the floor load in the
Demised Premises is 100 pounds per square foot and Tenant acknowledges that the
switching equipment and backup generator which Tenant proposes to install do not
exceed this floor load.
7. SUBORDINATION: This lease is subject and subordinate to all
ground or underlying leases and to all mortgages which may now or hereafter
affect such leases or the real property of which the Demised Premises form a
part thereof, and to all renewals, modifications, consolidations, replacements
and extensions of any such underlying leases and mortgages. This clause shall be
self-operative and no further instrument or subordination shall be required by
any ground or underlying lessor or by any mortgagee, affecting any lease or the
real property of which the Demised Premises are a part. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord may
request.
Landlord agrees that it shall use all commercially best
efforts (at no cost or expense to Landlord) to obtain and deliver to Tenant, as
to the existing mortgage and mortgages hereafter made covering the real property
of which the Demised Premises form a part, and/or any renewal, modification,
consolidation, replacement and extension of the existing mortgage, or future
mortgages, non-disturbance agreements (the "NDA") in recordable form (or such
agreement shall be contained in such mortgage or any renewal, modification,
consolidation, extension or replacement thereof) from the holder of any such
mortgage, providing in substance that provided Tenant shall have entered into
possession and occupancy of the Demised Premises and commenced payment of fixed
rent and additional rent hereunder, and so long as Tenant is not in default in
its obligations for the payment of fixed rent and additional rent and in the
performance of the other terms, covenants and conditions to be performed on its
part under this Lease, its possession of the Demised Premises will not be
disturbed during the term hereof, notwithstanding the foreclosure of any such
mortgage, and Tenant will not be named as a party defendant in any foreclosure
proceedings brought for the recovery of possession, it being hereby covenanted
and agreed to by Tenant that the holder of any such mortgage, or anyone claiming
by, through or under said holder shall not be:
(a) liable for any act or omission for any prior landlord
(including Landlord), or
(b) subject to any offsets or defenses which Tenant might
have against any prior landlord (including Landlord),
or
(c) bound by any fixed rent or additional rent or other
charges which Tenant might have paid for more than the
current month to a prior landlord (including Landlord),
or
(d) bound by any modification of this Lease made without
the consent of such mortgagee. The inability of
Landlord to obtain such agreement shall not be deemed a
default on Landlord's part of its obligations
hereunder, or impose any claim in favor of Tenant
against Landlord by reason thereof, or affect the
validity of this Lease. Tenant agrees to (i) execute
and deliver to such mortgagee a nondisturbance and
attornment agreement in form and substance customarily
adopted by such mortgagee and (ii) reimburse Landlord
for all reasonable expenses incurred by Landlord in
connection therewith, including legal expenses.
Notwithstanding anything contained herein above to the
contrary, in the event that Landlord is unable to deliver the NDA within six (6)
months from the Commencement Date then, in such event, Tenant shall have a one
(1) time option to terminate this Lease by ten (10) days written notice given to
Landlord in which event this Lease shall expire ten (10) days after the date of
rendition note Tenant's notice of termination with the same force and effect as
said date were the Expiration Date.
8. PROPERTY - LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY: Landlord
or its agents shall not be liable for any damage to property of Tenant or of
others entrusted to employees of the Building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence or wilful acts of Landlord, its agents, servants or
employees. Landlord or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said Building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the Demised Premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Landlord's own acts, Landlord
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor any abatement or diminution of
rent nor shall the same release Tenant from its obligations hereunder nor
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constitute an actual or constructive eviction. Tenant shall indemnify and save
harmless Landlord against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Landlord shall not be reimbursed
by insurance, including reasonable attorney's fees, paid, suffered or incurred
as a result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant and any sub-tenant,
agent, contractor, employee, invitee or licensee of any subtenant. In case any
action or proceeding is brought against Landlord by reason of any such claim,
Tenant, upon written notice from Landlord, will, at Tenant's expense, resist or
defend such action or proceeding by counsel approved by Landlord in writing,
such approval not to be unreasonably withheld.
9. DESTRUCTION, FIRE AND OTHER CASUALTY: (a) If the Demised
Premises or any part thereof shall be damaged by fire or other casualty, Tenant
shall give immediate notice thereof to Landlord and this lease shall continue in
full force and effect except as hereinafter set forth. (b) If the Demised
Premises are partially damaged or rendered partially unusable by fire or other
casualty, the damages thereto shall be repaired by and at the expense of
Landlord and the rent, until such repair shall be substantially completed, shall
be apportioned from the day following the casualty according to the portion of
the Demised Premises which is usable. (c) If the Demised Premises are totally
damaged or rendered wholly unusable by fire or other casualty, then the rent
shall be proportionately paid up to the time of the casualty and thenceforth
shall cease until the date when the Demised Premises shall have been repaired
and restored by Landlord, subject to Landlord's right to elect not to restore
the same as hereinafter provided. (d) If the Demised Premises are rendered
wholly unusable or (whether or not the Demised Premises are damaged in whole or
in part) if the Building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then, in any such events, Landlord may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, specifying a date for the expiration of the lease, which
date shall not be more than 60 days after the giving of such notice, and upon
the date specified in such notice the term of this lease shall expire as fully
and completely as if such date were the date set forth above for the termination
of this lease and Tenant shall forthwith quit, surrender and vacate the Demised
Premises without prejudice however, to Landlord's rights and remedies against
Tenant under the lease provisions in effect prior to such termination, and any
rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Landlord's control. After
any such casualty, Tenant shall cooperate with Landlord's restoration by
removing from the Demised Premises as promptly as reasonably possible, all of
Tenant's salvageable inventory and movable equipment, furniture, and other
property. Tenant's liability for rent shall resume thirty (30) days after
written notice from Landlord that the Demised Premises are substantially ready
for Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law,
Landlord and Tenant each hereby releases and waives all right of recovery
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if both releasors' insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance. If, and to the extent,
that such waiver can be obtained only by the payment of additional premiums,
then the party benefitting from the waiver shall pay such premium within ten
(10) days after written demand or shall be deemed to have agreed that the party
obtaining insurance coverage shall be free of any further obligation under the
provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Landlord will not carry insurance on Tenant's furniture and or furnishing
or any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this Article shall govern
and control in lieu thereof.
If the Building or the Demised Premises shall be so damaged by
fire or other casualty so as to interfere substantially with the use of the
Demised Premises by Tenant, Landlord and its architect shall determine, no later
than thirty (30) days from the occurrence of the event, whether such damage can
be repaired within six (6) months from the date of the occurrence of the event.
If they determine that such damage cannot be repaired within six (6) months, or
if in fact such damage is not in fact repaired within six (6) months, then
Tenant shall have the right, by giving written notice to Landlord to such effect
within fifteen (15) days after it has been determined that the damage can not be
restored or repaired within the aforesaid period, or the expiration of such
6-month period, as the case may be, to terminate this Lease and its obligations
hereunder, in which event the fixed rent and additional rent shall be prorated
to the date of the occurrence of such damage. If Tenant shall fail to serve such
notice as aforesaid, then this Lease shall continue in full force and effect
subject, however, to Landlord's right of termination as set forth in Article 9.
If there be any dispute between Landlord and Tenant with respect to the
foregoing, the issue shall be expeditiously submitted to the American
Arbitration Association in New York City for determination and the decision of
the arbitrators appointed pursuant thereto shall be binding upon the parties,
and may be entered
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as a judgment in any court having jurisdiction thereover. The arbitration fees
shall be borne equally by the parties.
10. EMINENT DOMAIN: If the whole or any part of the Demised
Premises shall be acquired or condemned by eminent domain for any public or
quasi public use or purpose, then and in that event, the term of this lease
shall cease and terminate from the date of title vesting in such proceeding and
Tenant shall have no claim for the value of any unexpired term of said lease.
Nothing contained in Article 10 hereof shall prohibit
Tenant from making a separate claim with the condemning authority for (a) the
value of property owned by Tenant, (b) any loss of profits, and any moving or
other expenses incurred by Tenant as a result of such condemnation and (c) any
other separate claim which Tenant may hereafter be permitted to make provided,
however, that such separate claim shall not reduce or adversely affect the
amount of Landlord's award.
11. ASSIGNMENT, MORTGAGE, ETC.: Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber this
Lease, nor underlet, or suffer or permit the Demised Premises or any part
thereof to be used by others without the prior written consent of Landlord in
each instance. If this lease be assigned, or if the Demised Premises or any part
thereof be underlet or occupied by anybody other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an
assignment or underletting shall not in anyway be constructed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting.
12. ELECTRIC CURRENT: Tenant covenants and agrees that at all
times its use of electric current shall not exceed the capacity of existing
feeders to the Building (which feeders be in place and operable as of the
Commencement Date) or the risers or wiring installation and Tenant may not use
any electrical equipment which, in Landlord's opinion will overload such
installations or interfere with the use thereof by other tenants of the
Building. The change at any time of the character of electric service shall in
no manner make Landlord liable or responsible to Tenant, for any loss, damages
or expenses which Tenant may sustain.
13. ACCESS TO PREMISES: Landlord or Landlord's agents shall
have the right (but shall not be obligated) to enter the Demised Premises in any
emergency at any time, and, at other reasonable times, upon reasonable prior
notice to examine the same and to make such repairs, replacements and
improvements as Landlord may deem necessary and reasonably desirable to any
portion of the Building or which Landlord may elect to perform in the Demised
Premises after Tenant's failure to make repairs or perform any work which Tenant
is obligated to perform under this lease, or for the purpose of complying with
laws, regulations and other directions of governmental authorities. Landlord
shall perform any work using all reasonable efforts to minimize interference and
interruption with Tenant's occupancy and the conduct of its business in the
Demised Premises. Tenant shall permit Landlord to use and maintain and replace
pipes and conduits in and through the Demised Premises and to erect new pipes
and conduits therein. Landlord may, during the progress of any work in the
Demised Premises, take all necessary materials and equipment into the Demised
Premises without the same constituting an actual or constructive eviction nor
shall the Tenant be entitled to any abatement of rent while such work is in
progress nor to any damages by reason of loss or interruption of business or
otherwise. Throughout the term hereof, Landlord shall have the right to enter
the Demised Premises at reasonable hours for the purpose of showing the same to
prospective purchasers or mortgagees of the Building, and during the last six
(6) months of the term for the purpose of showing the same to prospective
tenants and may, during said six (6) months period, place upon the Building the
usual notices "To Let" and "For Sale" which notices Tenant shall permit to
remain thereon without molestation. If Tenant is not present to open and permit
an entry into the Demised Premises, Landlord or Landlord's agents may enter the
same whenever such entry may be necessary or permissible by master key (or in an
emergency only) forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Landlord or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately
enter, alter, renovate or redecorate the Demised Premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
14. VAULT, VAULT SPACE, AREA: No Vaults, vault space or area,
whether or not enclosed or covered, not within the property line of the Building
is leased hereunder, anything contained in or indicated on any sketch, blue
print or plan, or anything contained elsewhere in this lease to the contrary
notwithstanding. Landlord makes no representation as to the location of the
property line of the Building. All vaults and vault space and all such areas not
within the property line of the Building, which Tenant may be permitted to use
and/or occupy, is to be used and/or occupied under a revocable license, and if
any such license be revoked or if the amount of such space or area be diminished
or required by any federal, state or municipal authority
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or public utility, Landlord shall not be subject to any liability nor shall
Tenant be entitled to any compensation or diminution or abatement of rent, nor
shall such revocation, diminution or requisition be deemed an actual or
constructive eviction. Any tax, fee or charge of municipal authorities for such
vault or area shall be paid Tenant, if used by Tenant, whether or not
specifically leased hereunder.
15. OCCUPANCY: Tenant will not at any time use or occupy the
Demised Premises in violation of the Certificate of Occupancy issued for the
Building. Tenant has inspected the Demised Premises and accepts them as is,
subject to any Riders annexed hereto with respect to Landlord's Work, if any. If
any event, Landlord makes no representation as to the condition of the Demised
Premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
16. BANKRUPTCY: (a) Anything elsewhere in this lease to the
contrary notwithstanding, this lease may be cancelled by Landlord by sending of
a written notice to Tenant within a reasonable time after the happening of any
one or more of the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as the debtor, which, in
the case of an involuntary bankruptcy, is not dismissed within sixty (60) days
after the commencement thereof or (2) the making by Tenant of an assignment or
any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
Demised Premises but shall forthwith quit and surrender the Demised Premises. If
this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event
of the termination of this lease pursuant to (a) hereof, Landlord shall
forthwith, notwithstanding any other provisions of this lease to the contrary,
be entitled to recover from Tenant as and for liquidated damages an amount equal
to the difference between the rental reserved hereunder for the unexpired
portion of the term and the fair and reasonable rental value of the Demised
Premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the Demised Premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If the Demised
Premises or any part thereof be relet by Landlord for the unexpired term of said
lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the Demised Premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of the
Landlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
17. DEFAULT: A. If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for the payment of rent or
additional rent; or if the Demised Premises becomes vacant or deserted; or if
any execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the Demised Premises shall be taken or occupied by someone
other than Tenant; or if this lease be rejected under Section 235 of Title 11 of
the U.S. Code (bankruptcy code); or if Tenant shall fail to move into or take
possession of the Demised Premises within thirty (30) days after the
commencement of the terms of this lease, then, in any one or more of such
events, upon Landlord serving a written ten (10) days notice upon Tenant
specifying the nature of said default and upon the expiration of said ten (10)
days if Tenant shall have failed to comply with or remedy such default, or if
the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said ten (10) day period, and if
Tenant shall not have diligently commenced curing such default within such ten
(10) day period, and shall not thereafter with reasonable diligence and in good
faith, proceed to remedy or cure such default, then Landlord may serve a written
five (5) days' notice of cancellation of this lease upon Tenant, and upon the
expiration of said five (5) days this lease and the term thereunder shall end
and expire as fully and completely as if the expiration of such five (5) day
period were the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender the Demised
Premises to Landlord but Tenant shall remain liable as hereinafter provided.
B. If the notice provided for in (1) hereof shall have been given and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of any item of rent reserved herein or any item of additional rent
herein mentioned or any part of either or in making any other payment herein
required: then and in any of such events, Landlord may dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of the Demised Premises and remove their effects and hold the
Demised Premises as if this lease had not been made, and Tenant hereby waives
the service of notice of intention to re-enter or to institute legal proceedings
to that end. If Tenant shall make default hereunder prior to the date fixed as
the commencement of any renewal or extension of this lease, Landlord may cancel
and terminate such renewal or extension agreement by written notice.
18. REMEDIES OF LANDLORD AND WAIVER OF REDEMPTION: In case of
any such default, re-entry, expiration and/or dispossess by summary proceedings
or otherwise, (a) the rent, and additional rent,
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shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Landlord may re-let the Demised Premises or
any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms, which may at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the term of this lease and
may grant concessions or free rent or charge a higher rental than that in this
lease, (c) Tenant or the legal representatives of Tenant shall also pay Landlord
as liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the Demised Premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Landlord to re-let the Demised
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages hereunder. In computing such liquidated damages there
shall be added to the said deficiency such expenses as Landlord may incur in
connection with re-letting, such as legal expenses, attorneys' fees, brokerage,
advertising and for keeping the Demised Premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Landlord, in putting the Demised
Premises in good order or preparing the same for re-rental may, at Landlord's
option, make such alterations, repairs, replacements, and/or decorations in the
Demised Premises as Landlord, in Landlord's sole judgment, considers advisable
and necessary for the purpose of re-letting the Demised Premises, and the making
of such alterations, repairs, replacements, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to re-let
the Demised Premises, or in the event that the Demised Premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Landlord hereunder. In the event of a breach
or threatened breach by Tenant of any of the covenants or provisions hereof,
Landlord shall have the right of injunction and the right to invoke any remedy
allowed at law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in this lease of any particular
remedy, shall not preclude Landlord from any other remedy, in law or in equity.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws.
19. FEES AND EXPENSES: If Tenant shall default in the
observance or performance of any term or covenant on Tenant's part to be
observed or performed under or by virtue of any of the terms or provisions in
any Article of this lease, then, unless otherwise provided elsewhere in this
lease, Landlord may immediately or at any time thereafter and without notice
perform the obligations of Tenant hereunder. If Landlord, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to attorney's fees, in instituting,
prosecuting or defending any action or proceedings, then Tenant will reimburse
Landlord for such sums so paid or obligations incurred with interest and costs.
The foregoing expenses incurred by reason of Tenant's default shall be deemed to
be additional rent hereunder and shall be paid by Tenant to Landlord within five
(5) days after rendition of any xxxx or statement to Tenant therefor. If
Tenant's lease term shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable by
Landlord as damages.
20. BUILDING ALTERATIONS AND MANAGEMENT: Landlord shall have
the right at any time without the same constituting an eviction and without
incurring liability to Tenant therefor to change the arrangement and or location
of public entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets or other public parts of the Building and to change the name, number or
designation by which the Building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Landlord
by reason of inconvenience, annoyance or injury to business arising from
Landlord or other Tenant making any repairs in the Building or any such
alterations, additions and improvements. Furthermore, Tenant shall not have any
claim against Landlord by reason of Landlord's imposition of any controls on the
manner of access to the Building by Tenant's invitees as the Landlord may deem
necessary for the security of the Building and its occupants.
21. NO REPRESENTATIONS BY LANDLORD: Except as specifically
provided herein, neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the land upon which it is erected or the Demised Premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the Demised Premises or the Building except as herein expressly set forth and
no rights, easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the Building and the Demised Premises and is thoroughly acquainted
with their condition and, except as specifically provided herein, agrees to take
the same "as is" on the date possession is tendered and acknowledges that the
taking of possession of the Demised Premises by Tenant shall be conclusive
evidence that the said Demised Premises and the Building of which the same form
a part were in good and satisfactory condition at the time such possession was
so taken. All understandings and agreements heretofore made between the parties
hereto are merged in this contract, which alone fully and completely expresses
the agreement between Landlord and Tenant and any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of it in whole or in part, unless such executory
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agreement is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
22. END OF TERM: Upon the expiration or sooner termination of
the term of this lease, Tenant shall quit and surrender to Landlord the Demised
Premises, broom clean, in good order and condition, ordinary wear and damages
which Tenant is not required to repair as provided elsewhere in this lease
excepted, and Tenant shall remove all its property from the Demised Premises,
provided that Tenant shall have a period of up to one (1) month to remove its
backup generator. Tenant's obligation to observe or perform its covenant shall
survive the expiration or other termination of its lease. If the last day of the
term of this Lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
23. QUIET ENJOYMENT: Landlord covenants and agrees with Tenant
that upon Tenant paying the rent and additional rent and observing and
performing all the terms, covenants and conditions, on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the Demised
Premises hereby demised, subject, nevertheless, to the terms and conditions of
this lease.
24. FAILURE TO GIVE POSSESSION: If Landlord is unable to give
possession of the Demised Premises on the date of the commencement of the term
hereof, because of the holding-over or retention of possession of any tenant,
undertenant or occupants, or if Landlord has not completed any work required to
be performed by Landlord, or for any other reason, Landlord shall not be subject
to any liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the same be
construed in any manner to extend the term of this lease, but the rent payable
hereunder shall be abated until after Landlord shall have given Tenant notice
that the Demised Premises are substantially ready for Tenant's occupancy, and
the period of free rent specified in Article 41 shall not commence until five
(5) business days after such notice is given. If permission is given to Tenant
to enter into the possession of the Demised Premises or to occupy any space in
the Building other than the Demised Premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this Article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property Law.
Notwithstanding the foregoing provisions of this
Lease, in the event that Landlord fails to deliver possession of the Demised
Premises on or prior to December 31, 1998, Tenant shall have the right to
terminate this Lease within the following ten (10) days by giving notice thereof
to Landlord. Upon receipt of such notice by Landlord, all liability between the
parties hereto shall be extinguished, except that Landlord shall return to
Tenant any monies deposited with Landlord pursuant to this Lease. The foregoing
right of termination shall be Tenant's exclusive remedy with respect to the
failure to deliver possession, subject to the provisions of Article 54 hereof.
25. NO WAIVER: The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of any covenant or
condition of this lease or of any of the Rules or Regulations, set forth or
hereafter adopted by Landlord, shall not prevent a subsequent act which would
have originally constituted a violation from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this lease shall not be deemed a waiver of such breach
and no provision of this lease shall be deemed to have been waived by Landlord
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement of any check, any letter accompanying any
check or payment of rent be deemed an accord and satisfaction and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy in this lease provided. All
checks tendered to Landlord as and for the rent of the Demised Premises shall be
deemed payments for the account of Tenant. Acceptance by Landlord of rent from
anyone other than Tenant shall not be deemed to operate as an attornment to
Landlord by the payor of such rent or as a consent by Landlord to an assignment
or subletting by Tenant of the Demised Premises to such payor, or as a
modification of the provisions of this lease. No act or thing done by Landlord
or Landlord's agents during the term hereby demised shall be deemed an
acceptance of a surrender of said Demised Premises and no agreement to accept
such surrender shall be valid unless in writing signed by Landlord. No employee
of Landlord or Landlord's agent shall have any power to accept the keys of said
Demised Premises prior to termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the Demised Premises.
26. WAIVER OF TRIAL BY JURY: It is mutually agreed by and
between Landlord and Tenant that the respective parties hereto shall and they
hereby do waive trial by jury in any action, proceeding 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
of or occupancy of the Demised Premises, and any emergency statutory or any
other statutory remedy. It is further mutually agreed that in the event Landlord
commences any
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summary proceeding for possession of the Demised Premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding.
27. INABILITY TO PERFORM: This Lease and the obligation of
Tenant to pay rent hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall in no manner be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this lease or to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repair, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strike or labor troubles or any cause
whatsoever beyond Landlord's sole control including, but not limited to,
government preemption in connection with a National Emergency or by reason of
any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the condition of supply and demand which have
been or are affected by war or other emergency.
Notwithstanding any other provision of this lease, in the event
that substantially all of the Demised Premises shall become unusable or
untenantable by Tenant due to the performance by Landlord of repairs, additions,
alterations, replacements, decorations or improvements or due to interruption of
services provided by Landlord or Landlord's failure to provide access to the
Demised Premises required to be provided to Tenant under this lease and not due
to any act or omission of Tenant or Tenant's employees, agents, contractors or
licensees (the "Affected Space"), which condition (an "Interruption Condition")
shall continue for a period of ten (10) consecutive business days after Tenant
shall have notified Landlord of the same, and Tenant shall not actually use or
occupy the Affected Space during such period, then Tenant shall be entitled be
entitled to xxxxx the payment of Basic Annual Rent and Additional Rent with
respect to the Affected Space to the extent not actually used or occupied by
Tenant, if applicable, due under this lease for the period commencing on the
eleventh (11th) business day of the existence of such condition and ending on
the date which condition no longer exists. Tenant agrees that other than as
specifically provided for in this paragraph, Tenant's sole remedy at law in
connection with an interruption of services to or access to the Demised Premises
shall be by way of an action for damages for breach of contract.
28. NOTICES: Except as otherwise expressly provided in this
Lease or by any Legal Requirement, every notice, demand, consent, approval,
request or other communication (collectively, "notices") which may be or is
required to be given under this Lease or by law shall be in writing and shall be
sent by United States certified or registered mail, postage prepaid, return
receipt requested and shall be addressed:
A. If to Landlord, to Landlord's address set forth on the
cover page hereof with a copy to Landlord's managing agent and attorney,
respectively;
Newmark & Company Real Estate Co., Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and to: Xxxxxx X. Xxxxxxxxxxx, P.C.
c/o Olshan Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
B. If to Tenant, to Tenant's address set forth on the
cover page hereto with a copy to Tenant's general counsel.
Notices shall be deemed delivered five (5) business
days after being deposited in the United States Mail. A notice given by counsel
for either party shall be deemed a valid notice if addressed and sent in
accordance with the provisions of this Paragraph. Either party may designate, by
similar written notice to the other party, any other address for such purposes.
Each of the parties hereto waives personal or any other service other than as
provided for in this Paragraph. Notwithstanding the foregoing, either party
hereto may give the other party telefax notice of the need of emergency repairs.
If there occurs any interruption of certified and registered mail service,
lasting more than five (5) consecutive business days, notices may be given by
telefax or personal delivery, but shall not be effective until personally
received by an executive officer of a party which is a corporation, or a member
of a party which is a partnership or joint venture, or a principal of any other
entity.
29. SERVICES PROVIDED BY LANDLORD: As long as Tenant is not in
default under any of the covenants of this lease, Landlord shall provide the
following services:
A. Elevator Service.
(i) Passenger Elevator Service. Landlord shall provide
necessary passenger elevator facilities twenty-four (24) hours a day, three
hundred, sixty five (365) days a year.
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(ii) Freight Elevator Service. Landlord shall provide freight
elevator service to the Demised Premises on a first-come, first-served basis
(i.e., no advance scheduling) on business days from 8:00 a.m. to 4:30 p.m.
Freight elevator service shall, provided same is available, be provided on a
reserved basis at all other times, upon the payment of Landlord's then
established charges therefor which shall constitute additional rent hereunder.
B. Cleaning Services.
(i) Provided Tenant shall keep the Demised Premises in good
order, Landlord, at Landlord's expense, shall cause the executive, sales and
administrative portions of the Demised Premises only to be cleaned, i.e. not any
telecommunications equipment portion of the Demised Premises. Tenant shall pay
to Landlord on demand Landlord's charges for cleaning work in the Demised
Premises or the Building required because of (i) misuse or neglect on the part
of Tenant or its employees or visitors, (ii) use of portions of the Demised
Premises for preparation, serving, or consumption of food or beverages,
reproducing operations, private lavatories or toilets or other special purposes
requiring greater or more difficult cleaning work than office areas, (iii)
interior partitioning glass surfaces, (iv) non-Building standard materials or
finishes installed by Tenant or at its request. Landlord and/or its cleaning
contractor and their employees shall have after hours access to the Demised
Premises and the use of Tenant's light, power and water in the Demised Premises
as may be reasonably required for the purpose of cleaning the Demised Premises.
(ii) Tenant, at Tenant's expense, shall cause all portions of
the Demised 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, roaches or rodents
regularly and, in addition, whenever there shall be evidence of any infestation.
(iii) Only Landlord or any one or more persons, firms or
corporations authorized in writing by Landlord shall be permitted to act as
maintenance contractor for any waxing, polishing, cleaning and maintenance work
in the Demised Premises. Nothing herein contained shall prohibit Tenant from
performing such work for itself by use of its regular employees. Landlord may
fix, in its absolute discretion, at any time and from time to time, the hours
during which and regulations under which such services are to be furnished.
Landlord expressly reserves the right to act as or to designate, at any time and
from time to time, an exclusive contractor for all or any one or more of such
services, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors, and Landlord expressly
reserves the right to exclude from the Building any person, firm or corporation
attempting to furnish any of such services.
C. Water. Landlord shall provide water for ordinary lavatory and
drinking purposes only, but if Tenant uses or consumes water for any other
purposes, Landlord may install a water meter at Tenant's expense which Tenant
shall thereafter maintain at Tenant's expense in good working order and repair
to register such water consumption and Tenant shall pay for water consumed as
shown on said meter as additional rent as and when bills are rendered.
D. HVAC. See Article 56.
E. Subject to the last paragraph of Article 27 hereof, Landlord
reserves the right, without same constituting an actual or constructive eviction
or entitling Tenant to any abatement and/or diminution of fixed rent and/or
additional rent, to stop services of the heating, elevators, plumbing,
air-conditioning, power systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgment of Landlord for as long as
may be reasonably required by reason thereof. If the Building of which the
Demised Premises are a part supplies manually-operated elevator service,
Landlord at any time may substitute automatic-control elevator service and upon
ten days' written notice to Tenant, proceed with alterations necessary therefor
without in any manner affecting this lease or the obligation of Tenant
hereunder. The same shall be done with a minimum of inconvenience to Tenant and
Landlord shall pursue the alteration with due diligence.
30. CAPTIONS: The Captions are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this lease nor the intent of any provision thereof.
31. DEFINITIONS: The term "Landlord" as used in this lease
means only the Landlord of the fee or of the leasehold of the Building, or the
mortgagee in possession, for the time being of the land and Building (or the
Landlord of a lease of the Building or of the land and Building) of which the
Demised Premises form a part, so that in the event of any sale or sales of said
land and Building or of said lease, or in the event of a lease of said Building,
or of the land and Building, Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder and it shall be
deemed and construed without further agreement between the parties or their
successors in interest, or between the parties and the purchaser, at any such
sale, or the said lessee of the Building, or of the land and Building, that the
purchaser or the lessee of the Building has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. Notwithstanding the
provisions of this Article 31 or of Article 34, no sale, assignment or transfer
by Landlord of Tenant's security deposit (in connection with the sale, transfer
or assignment by Landlord of its rights and obligations under this Lease and/or
in the Building) shall operate to release Landlord
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from its responsibility and liability to Tenant for said security deposit,
unless and until the party to whom such security deposit has been assigned or
transferred has acknowledged to Tenant its receipt of such security deposit, and
has assumed all of the obligations of Landlord with respect thereto. The words
"re-enter" and "re-entry" as used in this lease are not restricted to their
technical legal meaning. The term "business days" as used in this lease, shall
exclude Saturdays, Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
Building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
32. ESTOPPEL CERTIFICATE: Tenant shall execute, acknowledge and
deliver to Landlord, within five (5) business days after Landlord's request, a
certificate stating: (a) that this lease is unmodified and in full force and
effect (or, if there have been modifications, that this lease is in full force
and effect, as modified, and identifying the modifications); (b) the
commencement and expiration dates of the term of this lease; (c) the dates
through which fixed rent and additional rent have been paid; (d) whether or not
there is any existing default by Landlord or Tenant with respect to which a
notice of default has been delivered, and if there is any such default,
specifying the nature and extent thereof; (e) that this lease is subordinate to
any existing or future mortgage placed by Landlord on the Building; and (f)
whether or not there are any setoffs, defenses or counterclaims against the
enforcement of any of the agreements, terms, covenants or conditions of this
lease to be paid, complied with or performed by Tenant. Any such certificate may
be relied upon by Landlord and any mortgagee, purchaser or other person with
whom Landlord may deal. Tenant's only liability under this Article 35 is to be
estopped from any claim contrary to the certificate executed therein.
33. RULES AND REGULATIONS: Tenant and Tenant's servants,
employees, agents, visitors, and licensees shall observe faithfully, and comply
strictly with, the Rules and Regulations annexed hereto and made a part hereof
as Exhibit C and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt. Notice of additional
rules or regulations shall be given in writing to Tenant in accordance with the
provisions of Article 28 of this Lease. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Landlord or Landlord's agents, the parties hereto agree to submit the question
of the reasonableness of such Rule or Regulation for decision to the New York
office of the American Arbitration Association, whose determination shall be
final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Landlord within ten (10) days after the giving of notice thereof.
34. SECURITY. Tenant shall, upon execution of this lease,
deposit with Landlord the sum of ONE HUNDRED THIRTEEN THOUSAND TWO HUNDRED
SEVENTY-ONE and 34/100 ($113,271.34) DOLLARS security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this lease and provided that Tenant is not then in default under the terms of
this lease on the fifth (5th) anniversary of the Commencement Date then in such
event, Tenant shall be entitled to a return of SEVENTY-FIVE THOUSAND FIVE
HUNDRED FOURTEEN and 23/200 ($75,514.23) DOLLARS of the security. It is also
agreed that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including, but not limited to, the
payment of rent and additional rent, and fails to cure the same within any
applicable grace and/or notice periods, then, Landlord may use, apply or retain
the whole or any part of the security so deposited to the extent required for
the payment of any rent and additional rent or any other sum as to which tenant
is in default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this lease, including but not limited to, any damages or
deficiency in the re-letting of the Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be promptly returned to Tenant. In the event of a sale of the land and
Building or leasing of the Building, of which the Demised Premises form a part,
Landlord shall have the right to transfer the security to the vendee or lessee
and Landlord shall thereupon be released by Tenant from all liability for the
return of such security for any claims accruing from and after the transfer
date; and Tenant agrees to look to the new Landlord solely for the return of
said security, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
In lieu of the cash security provided for in Article 34 hereof,
Tenant may deliver to Landlord, as security pursuant to said Article 34, an
irrevocable, clean, "Evergreen" commercial letter of credit in the amount of
$113,271.34 (the "Letter"), issued by a bank which is authorized by the State of
New York to conduct banking business in New York State and is a member of the
New York Clearing House Association, which shall permit Landlord (a) to draw
thereon up to the full amount of the credit evidenced thereby in the event of
any default by Tenant in the terms, provisions, covenants or conditions of this
Lease or (b) to draw the full amount thereof to be held as cash security
pursuant to Article 34 hereof if for any reason the Letter is not renewed within
sixty (60) days prior to its expiration date. The Letter (and each renewal
thereof) shall (i) be for a term of not less than one (1) year (except that the
last Letter shall be for a term expiring sixty (60) days after the Expiration
Date), (ii) expressly provide for the issuing bank to notify Landlord in writing
not less than sixty (60) days prior to its expiration as to its renewal or
non-renewal, as the case may be, and (iii) if not
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so renewed each year (or later period of expiration) shall be immediately
available for Landlord to draw up to the full amount of such credit (to be held
as cash security pursuant to said Article 34). Not less than forty-five (45)
days prior to the expiration date of each Letter (and every renewal thereof),
Tenant shall deliver to Landlord a renewal or new Letter subject to all of the
conditions aforesaid, all to the intent and purposes, that a Letter in the sum
of $113,271.34 shall be in effect during the first five (5) years of the term of
this lease and provided that Tenant is not then in default under the terms of
this lease, that a Letter in the sum of $37,757.08 shall be in effect for the
remainder of the term of this lease. Failure by Tenant to comply with the
provisions of this Article shall be deemed a material default hereunder
entitling Landlord to exercise any and all remedies as provided in this Lease
for default in the payment of fixed rent and, to draw on the existing Letter up
to its full amount.
35. ADJACENT EXCAVATION - SHORING: If an excavation shall be
made upon land adjacent to the Demised Premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demises Demised Premises for the purpose
of doing such work as said person shall deem necessary to preserve the wall or
the Building of which Demised Premises form a part from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
36. SUCCESSORS AND ASSIGNS: The covenants, conditions and
agreements contained in this lease shall bind and inure to the benefit of
Landlord and Tenant and their respective heirs, distributees, executors,
administrators, successors, and except as otherwise provided in this lease,
their assigns.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this lease as of the day and year first above written.
LANDLORD:
00 XXXXX XXXXXX LLC
By: /s/ [SIGNATURE TO COME]
------------------------
NAME:
TITLE: A MEMBER
TENANT:
PLD TELEKOM, INC.
By: /s/ E. Xxxxx Xxxxxxxx
------------------------
NAME: E. XXXXX XXXXXXXX
TITLE: Sr. V.P.
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RIDER ANNEXED TO
LEASE FOR 75 A/K/A 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX
TENANT: PLD TELEKOM, INC.
SPACE: PORTION 7TH FLOOR
37. RIDER PROVISIONS PREVAIL:
If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding printed provisions of
this Lease, or of the Rules and Regulations attached to this Lease, whether or
not such inconsistency is expressly noted in this Rider, the provisions of this
Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, the Rider shall govern and control.
38. ADDITIONAL DEFINITIONS:
For the purposes of this Lease and all agreements supplemental to this
Lease, and all communications with respect thereto, unless the context otherwise
requires:
1. The term "fixed rent" or "Fixed Rent" shall mean rent at the annual
rental rate or rates provided for in Schedule B annexed hereto and made a part
hereof.
2. The term "additional rent" shall mean all sums of money, other than
fixed rent, and which become due and payable from Tenant to Landlord hereunder,
and Landlord shall have the same remedies therefor as for a default in payment
of fixed rent.
3. The term "rent" and "rents" shall mean and include fixed rent and/or
additional rent hereunder.
4. The terms "Commencement Date" and "Expiration Date" shall mean the
dates fixed in this Lease, or to be determined pursuant to the provisions of
this Lease, respectively, as the beginning and the end of the term for which the
Demised Premises are hereby leased.
5. The term "Lease Year" shall mean the twelve (12) month period
commencing on the Commencement Date and each successive twelve (12) month period
thereafter.
6. The term "Superior Lessee" or "Superior Mortgagee" shall mean any
party then holding a ground lease or mortgage encumbering the land and/or
Building.
39. ESCALATION FOR INCREASE IN REAL ESTATE TAXES:
A. As used herein:
1. "Taxes" shall mean real estate taxes payable (adjusted after
protest or litigation, if any) for any part of the term of this lease, on the
Building and/or the land (the "Land"), (i) any taxes which shall be levied in
lieu of any such taxes, including any taxes levied on the gross rentals of the
Building and/or the Land, (ii) any special assessments against the Building
and/or the Land which shall be required to be paid during the fiscal year in
respect to which taxes are being determined, and (iii) the expense of contesting
the amount or validity of any such taxes, charges or assessments, such expense
to be applicable to the period of the item contested.
2. "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve (12) months
occurring during the term of this Lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
3. "Base Tax" shall mean the Taxes for the fiscal tax year
commencing July 1, 1998 and ending June 30, 1999 (the "Base Tax Year").
4. "Tenant's Proportionate Share" shall mean ninety-two
hundredths (.92%) percent.
B. If the Taxes for any Tax Year shall be greater than the Base Tax,
then Tenant shall pay as additional rent for such Tax Year, a sum equal to
Tenant's Proportionate Share of the amount by which the Taxes for such Tax Year
are greater than the Base Tax (which amount is hereinafter called the "Tax
Payment"). Should this Lease commence or terminate prior to the expiration of a
Tax Year, such Tax
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Payment shall be prorated to, and shall be payable on, or as and when
ascertained after, the Commencement Date or the Expiration Date as the case may
be. Tenant's obligation to pay such additional rent and Landlord's obligation to
refund pursuant to Paragraph C below, as the case may be, shall survive the
termination of this Lease. If the Taxes for any Tax Year subsequent to the Base
Tax Year, or an installment thereof, shall be reduced before such Taxes or such
installment shall be paid, the amount of Landlord's reasonable costs and
expenses of obtaining such reduction (but not exceeding the amount of such
reduction) shall be added to and be deemed part of the Taxes for such Tax Year.
Payment of additional rent for any Tax Payment due from Tenant shall be made as
and subject to the conditions hereinafter provided in this Article.
C. Only Landlord shall be eligible to institute proceedings to contest
the Taxes or reduce the assessed valuation of the land and Building. Landlord
shall be under no obligation to contest the Taxes or the assessed valuation of
the Land and the Building for any Tax Year and may settle any such contest on
such terms as Landlord in its sole judgment considers proper. If Landlord shall
receive a refund for any Tax Year for which a Tax Payment shall have been made
by Tenant pursuant to Paragraph B above, Landlord shall repay to Tenant, with
reasonable promptness, Tenant's Proportionate Share of such refund, less the
costs (including experts' and attorneys' fees) of obtaining such refund. If the
assessment for the Base Tax Year shall be changed from the comparative statement
(as provided in Paragraph D below) to Tenant with respect to a Tax Year, the
amount of the Tax Payment shall be adjusted in accordance with such change.
D. Landlord shall furnish to Tenant, prior to the commencement of any
Tax Year, a written statement setting forth the Tax Payment for such Tax Year.
Tenant shall pay to Landlord on the first day of each month during such Tax Year
an amount equal to one-twelfth (1/12th) of the Tax Payment for such Tax Year.
If, however, Landlord shall furnish any such statement for a Tax Year subsequent
to the commencement thereof, then (i) until the first day of the month following
the month in which such statement is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Paragraph in respect of the last month
of the immediately preceding Tax Year; (ii) promptly after such statement is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of the Tax Payment previously made for such Tax Year were greater
or less than the installments of the Tax Payment to be made for such Tax Year in
accordance with such 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 promptly either refund
to Tenant the amount thereof or permit Tenant to credit the amount thereof
against subsequent payments under this Article; and (iii) on the first day of
the month following the month in which such statement is furnished to Tenant,
and monthly thereafter throughout the remainder of such Tax Year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12th) of the Tax Payment shown
on such statement.
E. Landlord's failure during the lease term to prepare and deliver any
tax statements or bills, or Landlord's failure to make a demand under this
Article or under any other provision of this Lease shall not in any way waive
Landlord's right to collect any such amounts due hereunder. Tenant's liability
for the additional rent due under this Article shall survive the expiration or
sooner termination of this Lease.
F. In no event shall any adjustment of Tax Payments hereunder result in
a decrease in the fixed rent or additional rent payable pursuant to any other
provision of the lease, it being agreed that the payment of additional rent
under this Article 39 is an obligation supplemental to Tenant's obligation to
pay fixed rent.
40. INTENTIONALLY OMITTED.
41. FREE RENT:
Provided Tenant is not in default under the terms, covenants and
conditions of this lease, Tenant shall have the right to use and occupy the
Demised Premises free of fixed rent for the first six (6) months following the
Commencement Date i.e. all in Lease year one (1) (or, if Landlord shall not be
able to deliver possession on such date, following the date Landlord is actually
able to deliver possession), except that Tenant shall pay to Landlord all sums
due under Article 46 hereof representing reimbursement to Landlord for the
furnishing to Tenant of electric current during said period. Except for the free
fixed rent allowance as herein provided, Tenant shall use and occupy the Demised
Premises pursuant to all of the other terms, covenants and conditions of this
lease.
42. AMENDING ARTICLE 11:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A. If Tenant shall desire to assign this Lease or to sublet all or a
portion of the Demised Premises, Tenant shall submit to Landlord a written
request for Landlord's consent to such assignment or subletting, which request
shall contain or be accompanied by the following information: (i) the name and
address of the proposed assignee or subtenant; (ii) a duplicate original or
photocopy of the proposed assignment agreement or sublease or a true and correct
photocopy of the offer from the proposed assignee or subtenant signed by such
proposed assignee or subtenant; (iii) the nature and character of the business
of the proposed assignee or subtenant and its proposed use of the Demised
Premises; and (iv) banking,
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financial and other credit information with respect to the proposed assignee or
subtenant reasonably sufficient to enable Landlord to determine the financial
responsibility of the proposed assignee or subtenant.
Landlord shall then have the option to be exercised by written
notice given to Tenant within thirty (30) days after receipt of Tenant's request
for consent to either (x) require a surrender of the Demised Premises or portion
thereof or (y) to obtain a sublet from Tenant of the Demised Premises or portion
thereof, upon the terms and conditions hereinafter provided.
B. If Landlord shall exercise its option to require a surrender of the
Demised Premises or portion thereof as provided in clause (x) of paragraph A
above, then upon the proposed commencement date of the subletting specified in
Tenant's notice to Landlord, the Demised Premises or portion intended to be
sublet, as the case may be, shall be surrendered to Landlord in accordance with
the provisions of the Lease pertinent to surrender, and this Lease shall cease
and terminate insofar as the Demised Premises or portion thereof, as the case
may be, with the same force and effect as though such proposed commencement date
were the Expiration Date. If only a portion of the Demised Premises is involved,
the terms and conditions of the Lease shall remain in full force and effect,
except that the Fixed Rent and additional rent shall be proportionately reduced
based upon the number of square feet of the portion of the Demised Premise
surrendered. In addition, in the event that less than all of the Demised
Premises is surrendered:
1. Landlord shall cause to be constructed, at Landlord's sole
cost and expense, such alterations and connections as may be required in order
to physically separate such surrendered the portion of the Demised Premises from
the balance of the Demised Premises; and
2. At least thirty (30) days prior to the proposed commencement
date specified above, Landlord shall have free access to enter to the Demised
Premises in order to complete the construction referred to in "1" above.
C. If Landlord shall exercise its option as provided in clause (y)
above to sublet from Tenant the Demised Premises or any portion thereof
("Leaseback Area"), Tenant automatically shall be deemed to have subleased the
Leaseback Area to Landlord for the term ("Backleasing" or "Backlease") for the
term ("Backlease Term") of the proposed sublease referred to in Tenant's notice
to Landlord, at a sublease rent equal to the lesser of (on a per square foot
basis) (a) the fixed rent payable under this lease or (b) rent specified in the
sublease proposed by Tenant. All other terms and conditions of this Lease shall
remain applicable to the Leaseback Area, except such as by their nature or
purport are inapplicable or inappropriate to such Backleasing, or are
inconsistent with the further provisions of the following subsections of this
paragraph, which further provisions shall be deemed to be part of the terms,
covenants, and conditions of such Backleasing.
In addition, the following provisions shall be applicable to
any Backleasing:
(i) Landlord shall have the unqualified and
unrestricted right, without Tenant's permission or consent, to underlet the
Leaseback Area in whole or in part to any person or entity, including Tenant's
proposed subtenant, for any period or periods of time not extending beyond one
(1) day before the expiration of the Backlease Term, at such rentals and on such
terms and conditions (including any alterations required to render the Leaseback
Area suitable for occupancy by an undertenant of Landlord) as Landlord shall
determine. Landlord may underlet the Leaseback Area or parts thereof separately
or in combinations, as Landlord deems appropriate. The Backlease may be assigned
by Landlord to any person, including Tenant's proposed subtenant, without
Tenant's consent but such assignment shall not be effective unless the
transferee executes and delivers to Tenant a written agreement assuming all of
Landlord's obligations under the Backlease, and in such event Landlord shall
continue to be fully responsible jointly and severally with such assignee for
all of Landlord's obligations under the Backlease. At the expiration or sooner
termination of the Backlease Term, Landlord shall have no obligations to restore
or alter or improve the Leaseback Area;
(ii) Tenant shall furnish to Landlord or its assignee
or subtenant under the Backlease any consents or approvals requested under the
Backlease so long as (a) Landlord furnishes such consents or approvals to Tenant
and, (b) Tenant incurs no expense by reason of any such consent or approval; and
(iii) Landlord and Tenant expressly negate any
intention that any estate created by or under the Backlease shall be merged with
any other estate held by either of them. At the request of either party,
Landlord and Tenant shall mutually execute, acknowledge, and deliver an
instrument or instruments of sublease and/or assignment to confirm and
separately set forth the rent, terms, conditions and other provisions of the
Backleasing or any Leaseback Area as may be appropriate.
D. If Landlord does not exercise either option specified in paragraphs
B and C above, then Landlord's consent to a subletting of all or a portion of
the Demised Premises or an assignment of Tenant's interest in this lease shall
not be unreasonably withheld or delayed on further condition that:
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1. The proposed subtenant or assignee shall not be a school of any
kind, or an employment or placement agency or governmental or quasi governmental
agency, medical office or executive recruitment office;
2. The subletting or assignment shall be to a tenant whose occupancy
will be in keeping with the dignity and character of the then use and occupancy
of the Building and whose occupancy will not be more objectionable or more
hazardous than that of Tenant herein or impose any additional burden upon
Landlord in the operation of the Building;
3. No space shall be advertised or openly promoted to the general
public utilizing the name of the Landlord or any principal or partner thereof,
or stating or otherwise characterizing a rental rate;
4. The proposed sublessee or assignee shall not be an occupant of any
space in the Building or a party who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during the
six (6) months immediately preceding Tenant's request for Landlord's consent;
5. Tenant shall reimburse Landlord on demand for any reasonable costs
that may be incurred in connection with any assignment or sublease, including,
without limitation, the reasonable costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and reasonable legal costs
incurred in connection with the granting of any requested consent;
6. In case of a subletting, it shall be expressly subject to all of the
obligations of Tenant under this Lease and the further condition and restriction
that the subleased Demised Premises shall not be further sublet by the sublessee
in whole or in part, or any part thereof suffered or permitted by the sublessee
to be used or occupied by others, without the prior written consent of Landlord
in each instance;
7. Tenant, at Tenant's expense, shall provide and permit reasonably
appropriate means of ingress to and egress from the space sublet by Tenant; and
8. Tenant is not then in default under the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed.
E. No permitted or consented to assignment or subletting shall be
effective or valid for any purpose whatsoever unless and until a counterpart of
the assignment or a counterpart or reproduced copy of the sublease shall have
been first delivered to the Landlord, and, in the event of an assignment, the
Tenant shall deliver to Landlord a written agreement executed and acknowledged
by the Tenant and such assignee in recordable form wherein such assignee shall
assume jointly and severally with Tenant the due performance of this Lease on
Tenant's part to be performed for the balance of the term of this Lease
notwithstanding any other or further assignment.
F. INTENTIONALLY OMITTED
G. Neither any assignment of Tenant's interest in this Lease nor any
subletting, occupancy or use of the Demised Premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant as provided in Article 11 hereof, nor any application of any
such rent as provided in said Article 11 shall, in any circumstances, relieve
Tenant of its obligations fully to observe and perform the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
H. Notwithstanding anything to the contrary contained herein, if
Landlord shall consent to any assignment or subletting, then (i) in the case of
an assignment, if Tenant shall receive any consideration from its assignee in
connection with the assignment of this Lease, Tenant shall pay over to Landlord,
as additional rent, a sum equal to fifty (50%) percent of any such consideration
(excluding sums designated by the assignee as paid for the purpose of Tenant's
property in the Demised Premises), as shall exceed the brokerage commissions,
alterations expenses and attorneys' fees and disbursements reasonably incurred
by Tenant for such assignment or (ii) if Tenant shall sublet the Demised
Premises or any portion thereof to anyone for rents, additional charges or other
consideration (other than the price paid for the purchase of Tenant's property)
which for any period shall exceed the rents payable for the subleased space
under this Lease for the same period, Tenant shall pay Landlord, as additional
rent, a sum equal to fifty (50%) percent of any such excess less brokerage
commissions, and attorneys' fees and disbursements reasonably incurred by Tenant
for such subletting. All sums payable to Landlord pursuant to subdivision (i) of
this Paragraph H shall be paid on the effective date of such assignment and all
sums payable to Landlord pursuant to subdivision (ii) of this Paragraph H shall
be paid on the date or dates such sums are actually paid to Tenant by the
subtenant.
I. Tenant may, without Landlord's prior written consent, but upon prior
written notice to Landlord, permit any corporations or other business entities
which control, are controlled by, or are under common control with Tenant
(herein referred to as "related corporation") to sublet all or part of the
Demised Premises for any of the purposes permitted to Tenant, subject however to
compliance with Tenant's obligations under this Lease. Such subletting shall not
be deemed to vest in any such related corporation any right or interest
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in this Lease or the Demised Premises nor shall it relieve, release, impair or
discharge any of Tenant's obligations hereunder. For the purposes hereof,
"control" shall be deemed to mean ownership of not less than fifty (50%) percent
of all of the voting stock of such corporation or not less than fifty (50%)
percent of all of the legal and equitable interest in any other business
entities.
J. Tenant may, without Landlord's prior consent, but upon prior written
notice to Landlord, assign or transfer its entire interest in this Lease and the
leasehold estate hereby created or sublet the whole of the Demised Premises to a
successor corporation of Tenant (as hereinafter defined); provided, however,
that (i) Tenant shall not be in default in any of the terms of this Lease, (ii)
the proposed occupancy shall not increase the office cleaning requirements (if
any) or impose an extra burden upon the building equipment or building services
and (iii) the proposed subtenant or assignee shall not be entitled, directly or
indirectly, to diplomatic or sovereign immunity and shall be subject to the
service of process in, and the jurisdiction of the courts of, New York State. A
"successor corporation", as used in this Section shall mean (a) a corporation
into which or with which Tenant, its corporate successors or assigns, is merged
or consolidated, in accordance with applicable statutory provisions for the
merger or consolidation of corporations, provided that by operation of law or by
effective provisions contained in the instruments of merger or consolidation,
the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or
consolidation, or (b) a corporation acquiring this lease and the term hereof and
the estate hereby granted, the goodwill and all or substantially all of the
other property and assets (other than capital stock of such acquiring
corporation) of Tenant, its corporate successors or assigns, and assuming all or
substantially all of the liabilities of Tenant, its corporate successors and
assigns, or (c) any corporate successor to a successor corporation becoming such
by either of the methods described in subdivisions (a) and (b) above; provided
that, immediately after giving effect to any such merger or consolidation, or
such acquisition and assumption, as the case may be, the corporation surviving
such merger or created by such consolidation or acquiring such assets and
assuming such liabilities, as the case may be, shall have assets, capitalization
and a net worth, as determined in accordance with generally accepted accounting
principles, at least equal to the assets, capitalization and net worth,
similarly determined, of Tenant, its corporate successors or assigns,
immediately prior to such merger or consolidation or such acquisition and
assumption, as the case may be.
43. ADDENDUM TO ARTICLE 3:
In connection with Landlord's agents' review, modification, approval,
supervisor and/or coordination of plans and specifications for any Tenant work,
Tenant shall, promptly upon demand, reimburse Landlord's agent for any
reasonable out-of-pocket fees, expenses and other charges incurred by Landlord
in connection with the review, modification and/or approval of such plans and
specifications. Landlord agrees at no charge to Tenant, to make Landlord's
structural engineer available and reasonable times and on reasonable prior
notice to meet with Tenant and its engineer regarding structural matters
including Tenant's proposed installation of batteries and generators.
In performing any alterations or installations Tenant shall be
responsible for the cost of compliance with all applicable governmental rules
and regulations including without limitation The Americans With Disabilities Act
of 1990, Public Law 101-336 42 U.S.C. Secs. 12101 et seq. together with all
amendments thereto which may be adopted from time to time, and all regulations
and rules promulgated thereunder.
44. LIMITATION OF LIABILITY:
Tenant agrees that the liability of Landlord under this Lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the Demised Premises, shall be limited to Landlord's interest in the Building.
In no event shall Tenant make any claim against or seek to impose any personal
liability upon any general or limited partner of Landlord, or any principal of
any firm or corporation that may hereafter be or become the Landlord.
45. INDEMNIFICATION AND INSURANCE:
A. Tenant shall indemnify and save harmless Landlord and its agents
against and from any and all claims arising from any work or thing whatsoever
done, or any condition created in or about the Demised Premises during the term
hereof or arising from any negligent or wrongful acts or omission of Tenant or
any of its subtenants or licensees or its or their employees, agents visitors,
invitees or contractors or subcontractors.
B. Tenant covenants to provide on or before the Commencement Date and
to keep in force during the term hereof the following insurance coverage:
(i) For the benefit of Landlord, Tenant, and all
Superior Mortgagees and Superior Lessees, a comprehensive policy of liability
insurance protecting and indemnifying Landlord, Tenant all Superior Mortgagees
and Superior Lessees against claims for personal injury, death or property
damage occurring upon, in or about the Demised Premises, and the public portions
of the Building used by Tenant, its employees, agents, con-tractors, customers,
invitees and visitors including, without limitation, personal injury, death or
property damage resulting from any work performed by or on behalf of Tenant,
with coverage
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of not less than Two Million ($2,000,000.00) Dollars combined single limit for
personal injury, death and property damage. The paid liability insurance shall
include a broad form contractual liability endorsement protecting Tenant against
loss arising out of liabilities assumed by Tenant by indemnity or otherwise.
(ii) Fire and extended coverage in an amount adequate
to cover the cost of replacement of all personal property, fixtures, furnishing
and equipment, including Tenant's work, located in the Demised Premises.
On or before the Commencement Date, Tenant
shall deliver to Landlord duplicate originals of the aforesaid policies or
certificates evidencing the aforesaid insurance coverage, and renewal policies
or certificates shall be delivered to Landlord at least thirty (30) days prior
to the expiration date of each policy with proof of payment of the premiums
thereof.
C. All policies of insurance procured by Tenant shall be issued in form
reasonably acceptable to Landlord by insurance companies with general policy
holder's ratings of not less than A and in a Financial Size Category of not less
than XII, as rated in the most current available "Best's" insurance reports, and
licensed to do business in the State of New York and authorized to issue such
policy or policies;
D. All insurance procured by Tenant shall be issued in the names and
for the benefit of Landlord (and each member thereof in the event Landlord is a
partnership or joint venture), Landlord's managing agent, Tenant, and, unless
Landlord otherwise requests, any Superior Lessee and the Superior Mortgagee, as
their respective interests may appear, and shall contain an endorsement that
each of Landlord, the Superior Lessee and Superior Mortgagee, although named as
an insured, nevertheless shall be entitled to recover under said policies for
any loss or damage occasioned to it, its agents, employees, contractors,
directors, shareholders, partners and principals (disclosed and undisclosed) by
reason of the negligence of Tenant, its servants, agents, employees, and
contractors. In the case of insurance against damage by fire or other casualty,
the policy or policies shall provide that loss shall be adjusted with Landlord,
and shall be payable to Landlord and/or the Superior Mortgagee and/or Superior
Lessee as directed by the Landlord, to be held and disbursed by Landlord and/or
the Superior Mortgagee under a standard mortgage clause;
E. All policies of insurance procured by Tenant shall contain
endorsements providing as follows: (i) that such policies may not be materially
changed, amended, reduced, canceled (including for non-payment of premium) or
allowed to lapse with respect to Landlord or the Superior Lessor or the Superior
Mortgagee except after thirty (30) days' prior notice from the insurance company
to each, sent by registered mail: and (ii) that Tenant shall be solely
responsible for the payment of all premiums under such policies and that
Landlord or any other party named therein shall have no obligation for the
payment thereof notwithstanding that Landlord or certain other parties may be
named as an insured.
46. ELECTRIC CURRENT:
Tenant agrees that Landlord shall furnish electricity to Tenant on a
"submetering" basis.
A. Submetering: Landlord shall, at Landlord's sole expense, install a
meter (as hereinafter defined) at a location designated by Landlord, connections
from the riser servicing the Demised Premises to said meter and perform all
other work necessary for the furnishing of electric current by Landlord in the
manner provided for in this Paragraph A. If and so long as electric current is
supplied by Landlord to the Demised Premises to service Tenant's office
equipment and the air conditioning units therein contained, if any, Tenant will
pay Landlord or Landlord's designated agent, as additional rent for such
service, the amounts, (hereinafter collectively called the "Electricity
Additional Rent"), as determined by a meter or submeter (the "Submeter")
installed, by Landlord at Landlord's cost, for the purpose of measuring such
consumption. The readings from the Submeter shall then be used to compute the
Electricity Additional Rent. Such service shall be computed at the rates at the
beginning of the scale for any given xxxx period specified in the same service
classification at which Landlord purchases electric current for the entire
Building, plus a fee (the "Overhead Charge") equal to eight (8%) percent of such
charge to Landlord, representing administrative/overhead costs to Landlord. The
Overhead Charge shall be payable as Electricity Additional Rent as herein
provided. Landlord, at its option, may from time to time, increase the
Electricity Additional Rent based upon among other things, increases in the
average cost per kilowatt hour and kilowatt demand to Landlord of purchasing
electricity for the Building, and such other factors, such as, without
limitation, fuel adjustment charges (as determined for each month of said period
and not averaged), rate adjustment charges, sales tax, and or any other factors,
used by the public utility company in computing its charges to Landlord; as
applied to kilowatts of demand purchased by Landlord during a given period. The
periods to be used for the aforesaid computation shall be the xxxx periods
ending in February and August immediately preceding such change, or such other
period or periods as Landlord, in its sole discretion, may from time to time
elect. Where more than one meter measures the electric service to Tenant, the
electric service rendered through each meter may be computed above set forth.
Bills for the Electricity Additional Rent (the "Bills") shall be rendered to
Tenant at such time as Landlord may elect and the amount, as computed from the
meter, together with the Overhead Charge, shall be the Electricity Additional
Rent.
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In the event that such Bills are not paid within ten (10) days
after the same are rendered, Landlord may, without further notice, discontinue
the service of electric current to the Demised Premises without releasing Tenant
from any liability under this Lease and without Landlord or Landlord's agent
incurring any liability for any damage or loss sustained by Tenant as the result
of such discontinuance. If any tax is imposed upon Land lord's receipts from the
sale or resale of electric current to Tenant by any Federal, state or municipal
authority, Tenant agrees that, unless prohibited by law, Tenant's proportionate
share of such taxes shall be passed on to, and included in the xxxx of, and paid
by Tenant to Landlord as additional rent.
B. Tenant agrees not to connect any additional electrical equipment of
any type to the Building electric distribution system, without Landlord's prior
written consent, which consent shall not be unreasonably withheld. Any
additional risers, feeders, or other equipment proper or necessary to supply
Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord, at the sole cost and expense of Tenant, if, in Landlord's
sole judgment, the same are necessary and will not cause permanent damage or
injury to the Building or the Demised Premises, or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations, repair
or expense or interfere with or disturb other tenants or occupants.
C. Tenant's use of electric current in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises which on the Commencement
Date will be 20 xxxxx per useable square foot i.e. 300 amps of power at 208
volts three (3) phase. Tenant shall have the right at Tenant's sole election
exercisable at any time but at Tenant's sole cost and expense, to increase the
208 volts to 480 volts. Tenant shall not make or perform or permit the making or
performing of, any alterations to wiring, installations or other electrical
facilities in or serving the Demised Premises without the prior consent of
Landlord in each instance (which shall not be unreasonably withheld). Should
Landlord grant any such consent, all additional risers or other equipment
required therefor shall be installed by Landlord and the cost thereof shall be
paid by Tenant upon Landlord's demand. If Tenant requires amperage above the
amounts allotted on the Commencement Date pursuant to the foregoing, then solely
at Tenant's option, additional amperage may be installed at the then Building
standard charge (presently $250 per each additional amp).
D. Except when caused by Landlord's negligence. Landlord shall not be
liable in any way to Tenant for any failure or defect in the supply or character
of electric energy furnished to the Demised Premises by reason of any
requirement, act or omission of the public utility serving the Building with
electricity or for any other reason.
E. Solely if required by law, Landlord reserves the right to
discontinue furnishing electric energy to Tenant at any time upon sixty (60)
days' written notice to Tenant, and from and after the effective date of such
termination, Landlord shall no longer be obligated to furnish Tenant with
electric energy, provided, however, that such termination date may be extended
for a time reasonably necessary for Tenant to make arrangements to obtain
electric service directly from the public utility company servicing the
Building. If Landlord exercises such right of termination, this Lease shall
remain unaffected thereby and shall continue in full force and effect; and
thereafter Tenant shall diligently arrange to obtain electric service directly
from the public utility company servicing the Building, and may utilize the then
existing electric feeders, risers and wiring serving the Demised Premises to the
extent available and safely capable of being used for such purpose and only to
the extent of Tenant's then authorized connected load. Landlord shall be
obligated to pay no part of any cost required for Tenant's direct electric
service.
F. At Landlord's option, Tenant shall purchase all lighting tubes,
lamps, bulbs and ballasts used in the Demised Premises and Tenant shall pay
Landlord's reasonable charges for providing and installing same, on demand, as
additional rent.
G. Notwithstanding any provisions of this Article 46, in no event shall
(a) the Fixed Annual Rent under this Lease be reduced by virtue of this Article
46 and (b) the cost to Tenant for electric energy be less than 108% of the cost
incurred by Landlord to obtain electric energy from the public utility
furnishing same to the Building.
47. BROKER:
Landlord and Tenant represent and warrant to the other that neither
consulted nor negotiated with any broker or finder with regard to the rental of
the Demised Premises from Landlord other than Newmark & Company Real Estate,
Inc. and CB Xxxxxxx Xxxxx, Inc. Landlord and Tenant agree to indemnify and hold
the other harmless from any claims, suits, damages, costs and expenses suffered
by the other by reason of any breach of the foregoing representation. Landlord
shall pay any commission due either broker in accordance with Landlord's
separate agreement with said brokers.
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48. BINDING EFFECT:
It is specifically understood and agreed that this Lease may be offered
to Tenant for signature by the leasing or managing agent and is subject to
Landlord's acceptance and approval, and that Tenant shall have affixed its
signature hereto with the understanding that such act shall not, in any way,
bind Landlord or its agent until such time as this Lease shall have been
approved and executed by Landlord and delivered to Tenant.
49. MISCELLANEOUS:
A. Without incurring any liability to Tenant, Landlord may permit
access to the Demised Premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, xxxxxxxx or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a recognition
by Landlord that the person or official making such demand has any right or
interest in or to this Lease, or in or to the Demised Premises), or upon demand
of any representative of the fire, police, Building, sanitation or other
department of the city, state or federal governments.
B. No receipt of monies by Landlord from Tenant, after any reentry or
after the cancellation or termination of this Lease in any lawful manner, shall
reinstate the lease; and after the service of notice to terminate this Lease, or
after the commencement of any action, proceeding or other remedy, Landlord may
demand, receive and collect any monies due, and apply them on account of
Tenant's obligations under this Lease but without in any respect affecting such
notice, action, proceeding or remedy, except that if a money judgment is being
sought in any such action or proceeding, the amount of such judgment shall be
reduced by such payment.
C. If Tenant is in arrears in the payment of fixed rent or additional
rent, Tenant waives its right, if any, to designate the items in arrears against
which any payments made by Tenant are to be credited and Landlord may apply any
of such payments to any such items in arrears as Landlord, in its sole
discretion, shall determine, irrespective of any designation or request by
Tenant as to the items against which any such payments shall be credited.
D. No payment by Tenant nor receipt by Landlord of a lesser amount than
may be required to be paid hereunder shall be deemed to be other than on account
of any such payment, nor shall any endorsement or statement on any check or any
letter accompanying any check tendered as payment be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such payment due or pursue any other
remedy in this Lease provided.
E. If in this Lease it is provided that Landlord's consent or approval
as to any matter will not be unreasonably withheld, and it is established by a
court or body having final jurisdiction thereover that Landlord has been
unreasonable the only effect of such finding shall be that Landlord shall be
deemed to have given its consent or approval; but Landlord shall not be liable
to Tenant in any respect for money damages by reason of withholding its consent.
F. If payment of any Fixed Rent or Additional Rent shall not have been
paid by the fifth day after the date on which such amount was due and payable,
then, in addition to and without waiving or releasing any other remedies of
Landlord, a late charge of four cents ($.04) for each dollar overdue shall be
payable on demand by Tenant to Landlord as damages for Tenant's failure to make
prompt payment. In default of payment of any late charges, Landlord shall have
(in addition to all other remedies) the same rights as provided in this Lease
for nonpayment of Fixed Rent. Nothing in this Section contained and no
acceptance of late charges by Landlord shall be deemed to extend or change the
time for payment of Fixed Rent or Additional Rent.
G. If the Expiration Date or the date of sooner termination of this
Lease shall fall on a day which is not a business day, then Tenant's obligations
pursuant to Article 22 hereof shall be performed on or prior to the next
succeeding business day. 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 similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the provisions of this Lease. If the Demised Premises are not surrendered upon
the termination of this Lease, Tenant hereby indemnifies Landlord against
liability resulting from delay by Tenant in so surrendering the Demised
Premises, including any claims made by any succeeding tenant or prospective
tenant founded upon such delay. In the event Tenant remains in possession of the
Demised Premises after the termination of this Lease without the execution of a
new lease, Tenant, at the option of Landlord, shall be deemed to be occupying
the Demised Premises as a tenant from month to month, at a monthly rental equal
to 150% times the fixed rent and additional rent payable during the last month
of the term, subject to all of the other terms of this Lease insofar
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as the same are applicable to a month-to-month tenancy. Tenant's obligations
under this Paragraph shall survive the expiration or sooner termination of this
Lease.
H. This Lease shall be governed in all respects by the laws of the
State of New York. Tenant hereby specifically consents to jurisdiction in the
State of New York in any action or proceeding arising out of this Lease and/or
the use and occupation of the Demised Premises.
I. Tenant shall not cause or permit any Hazardous Materials
(hereinafter defined) to be used, stored, transported, released, handled,
produced or installed in, on or from the Demised Premises or the Building in
violation of applicable law. "Hazardous Materials", as used herein, shall mean
any flammables, explosives, radioactive materials, hazardous wastes, hazardous
and toxic substances or related materials, asbestos or any material containing
asbestos, or any other substance or material included in the definition of
"hazardous substances", hazardous wastes", "hazard materials", "toxic
substances", "contaminants" or any other pollutant, or otherwise regulated by
any Federal, state or local environmental laws, ordinance, rule or regulation
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, the Resource Conservation and Recovery Act, as
amended, and in the regulations adopted and publications promulgated pursuant to
each of the foregoing, but shall not include normal office supplies and cleaning
materials. In the event of a violation of any of the foregoing provisions of
this Paragraph, Landlord may, without notice and without regard to any grace
period contained herein, take all remedial action deemed necessary by Landlord
to correct such condition and Tenant shall reimburse Landlord for the cost
thereof, upon demand, as additional rent.
J. The individual signatories to this lease each represent that they
are duly authorized to execute this document. Upon Landlord's request, Tenant
will execute and deliver to Landlord a Secretary's Certificate setting forth the
authority of the officer executing the lease by and on Tenant's behalf.
50. DOWNTOWN TAX APPLICATION:
Landlord and Tenant hereby acknowledge and agree that Tenant, at
Tenant's sole cost and expense, may make application (the "Application") after
the Commencement Date of this Lease to the appropriate governmental authority in
order to receive certain tax abatements (the "Tax Abatement") for the Building
pursuant to "The Lower Manhattan commercial Revitalization Program") (the
"Program") created by Title 4A of Article 4 of the real Property Tax Law,
Sections 499-a et. seq. (the "Law"); provided, however, Tenant shall not
make the Application (nor continue with its being processed) unless all of the
following are and remain true and correct, (and all of which are in any event
hereby agreed to and acknowledged by Tenant), (whereby, if all of the following
are and remain true and correct, Landlord shall cooperate with Tenant in
Tenant's attempt to obtain the Tax Abatement for the Building by joining in the
Application): (i) Tenant shall file the Application, and all related
documentation in accordance with all time frames and schedules as may be
required by the law (and all related rules and regulations) and the Program;
(ii) Tenant meets all eligibility requirements for the Program with respect to
the Premises (and, in this regard, upon request, Tenant shall deliver to
Landlord upon demand all information and documentation requested by Landlord
with respect to the Program, and Tenant's eligibility thereunder, with respect
to the Premises); (iii) Landlord shall incur no cost or expense in connection
with the Application or the Tax Abatement (as well as in connection with its
being obtained); (iv) Tenant shall reimburse Landlord for all of Landlord's
reasonable costs and expenses incurred in connection with the Application (and
related documentation) and the Tax Abatement and its being obtained) (including,
without limitation, all of Landlord's attorneys' and consultants' costs,
expenses and fees in connection with the review of any documentation concerning
the Application (and related documentation) and the Tax Abatement, the amount of
all administrative charges or fees which may be imposed by the Department of
Finance of the City of New York in connection with the Application (and all
related documentation), and in connection with ongoing compliance related to the
Program, as well as all such costs, expenses and fees which xxx incurred in
attending any and all hearings and/or meetings), which reimbursement shall be
payable to Landlord by Tenant on demand, (v) Landlord has not made, nor will
Landlord be making, any representations or warranties whatsoever regarding the
feasibility of obtaining the Tax Abatement (or any facts or circumstances
related thereto), or whether any Tax Abatement which may be received will
subsequently be reduced or eliminated, or regarding Tenant's eligibility for
receiving the Tax Abatement, or whether this Lease properly conforms with
requirements imposed by the Program, or whether the appropriate expenditures as
may be imposed by the Program will be made at the Premises and the Building (and
Landlord is not required to perform any other work other than as may expressly
be set forth in this Lease; (vi) all information which may be or is set forth on
the Application as well as on all related documentation shall be true and
correct in all respects and, in this regard, Tenant shall indemnify and hold
Landlord harmless from any and all claims, losses, expenses or liabilities in
connection with any inaccuracy; (vii) Landlord shall incur no liability
whatsoever in connection with the Application, or any other related
documentation, the Program, or the Tax Abatement (or in connection with its
being obtained) and, in this regard, Tenant shall indemnify and hold Landlord
harmless from any and all claims, losses, expenses or liabilities in connection
therewith; and (viii) Tenant complies, and continues to comply, at all times
with all of the provisions and requirements of the Program, including without
limitation, all eligibility requirements, together with the rules promulgated
thereunder and, in this regard, Tenant shall indemnify and hold Landlord
harmless from any claims, losses, expenses or liabilities in connection with
Tenant's failure to so comply.
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Notwithstanding the above, Landlord, upon written request made by
Tenant, agrees to join with Tenant in signing the Application (to the extent
Landlord is required by the Program to do so), provided, however, Landlord shall
not be required to join in if any of the terms or conditions set forth above are
untrue in any respect, or if Tenant is in default under this Lease (and, in this
regard, to the extent Landlord does so join in it shall not be deemed to be an
acknowledgment by Landlord that any of the applicable provisions or requirements
set forth above are necessarily true, nor shall the joining in ever be deemed to
be a waiver of any such provisions or requirements).
Provided all of the terms and conditions set forth above in this
Article are fully complied with by Tenant and Tenant is not otherwise in default
under this Lease (including, without limitation,as provided in this Paragraph
above), the, in such event, Landlord shall provide Tenant with a credit (the
"Tax Credit") against the Tax Amount payable by Tenant under this Lease in an
amount for any applicable Tax Year occurring during the Term which equals (but
does not exceed) the full amount of such particular Tax Year of the Tax
Abatement which is exclusively attributable to the Premises pursuant to the
Program and which is actually received by Landlord (with such amount being
called the "Actual Benefits").
Tenant shall pay to Landlord upon demand, as Additional Rent, the
amount of the Actual Benefits that have been credited against the Tax Amount
becoming due hereunder if such Tax Abatement related to the Actual Benefit is
thereafter revoked for any reason whatsoever (such as, for example, and without
otherwise limiting, as a result of the exercise by Tenant of a right to
terminate this Lease, or assignment of this Lease, or subleasing of the
Premises, or for Tenant's failure to meet and continue to meet any of the
eligibility requirements under the Program, or Tenant's breach under this
Lease), together with any interest at the highest rate allowed by law commencing
upon the date such payment is to be made, along with all penalties which may be
imposed against Landlord in connection with such Actual Benefits.
In addition, as set forth in the Law, all abatements granted under the
Program with respect to the Building pursuant to the Program will automatically
be revoked (without notice) if, during the benefit period, real estate taxes or
water or sewer charges or other lienable charges are unpaid for more than one
year, unless such delinquent amounts are paid as provided in the Law.
The provisions of this Article shall survive the expiration or earlier
termination of this Lease.
Pursuant to and in connection with the foregoing, Landlord and Tenant
agree to the following:
(1) Borough of Xxxxxxxxx
Xxxxx 00
Xxx 00
(2) Floor Number 7
(3) Lease execution date as of: ___________, 1998.
(4) Lease commencement date: December 15, 1998,
subject to Article 54.
(5) Rent commencement date: six (6) months after
Commencement Date.
(6) Lease expiration date: June 15, 2009
(7) Tenant's Proportionate Share: .92%
Landlord hereby informs the Tenant that:
(1) An application for abatement of real property
taxes will be made for the premises;
(2) The rent including amounts payable by the
Tenant for real property taxes will accurately reflect any abatement of real
property taxes;
(3) Certain stipulated sums must be spent on
improvements to the Demised Premises and the common areas, the amount being
dependent upon the length of the lease and whether it is a new, renewal or
expansion lease.
(4) All abatements granted will be revoked if,
during the benefit period, real estate taxes, water or sewer charges or other
lienable charges are unpaid for more than one (1 ) year, unless such delinquent
amounts are paid as provided in the relevant law.
Notwithstanding anything set forth herein to the contrary, nothing set
forth in this Article 50 shall impose any obligation on Landlord to make any
alterations or improvements to the Demised Premises, common areas, or any other
part of the Building.
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51. LANDLORD'S CONTRIBUTION:
A. In consideration of Tenant performing all of the work (other than
Landlord's Work pursuant to Article 54) necessary for its occupancy of the
Demised Premises and for Tenant completing such work therein, Landlord agrees
that if Tenant, shall have submitted to Landlord (a) a detailed itemization of
the leasehold improvements installed by Tenant in the Demised Premises, i.e.,
exclusive of soft costs except as hereinafter provided, (b) together with
receipted paid bills therefor, (c) partial and final lien waivers to the effect
that there has not been filed with respect to the Building and/or the Demised
Premises or any part thereof or upon Tenant's leasehold interest therein any
vendor's, mechanic's, laborer's, materialman's or other lien which has not been
discharged of record, Landlord shall reimburse or cause to be reimbursed to
Tenant an amount equal to the lesser of (i) the actual cost of the leasehold
improvements performed by Tenant in the Demised Premises or (ii) ONE HUNDRED
FIFTY THOUSAND AND 00/100 ($150,000.00) Dollars, representing "Landlord's
Contribution" to such work, it being understood and agreed that Landlord's
Contribution shall not exceed the sum of ONE HUNDRED FIFTY THOUSAND AND 00/100
($150,000.00) Dollars, and that all costs and expenses in excess of said sum
shall be borne solely by Tenant.
C. Upon Tenant's request, Landlord's Contribution as provided in
Paragraph B hereof shall be paid in monthly progress payments upon submission by
Tenant of the following:
(a) A certificate signed by Tenant or Tenant's architect, dated not
more than ten (10) days prior to such request, setting forth the following:
(i) That the sum then requested is justly due to persons
who have rendered services or furnished materials for
the work therein specified, and giving a brief
description of such services and materials and the
several amounts due to each of said persons in respect
thereof, and stating that no part of such expenditure
is being made the basis, in any previous or then
pending prior request, for the receipt of Landlord's
Contribution or has been made out of the proceeds of
Landlord's Contribution received by Tenant, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(ii) That except for the amount, if any, stated pursuant to
the foregoing subdivision (a)(i) in such certificate to
be due for services or materials, there is no
outstanding indebtedness (except for withholding of ten
(10%) percent of such amount) known to the persons
signing such certificate, which is then due for labor,
wages, materials, supplies or services in connection
with such work which, if unpaid, might immediately
become the basis of a vendor's, mechanic's, laborer's
or material man's statutory or similar lien upon such
work or upon the land and building or any part thereof
or upon Tenant's leasehold interest.
Tenant shall deliver to Landlord together with any
plans for Tenant's Work, a load letter specifying
proposed floor loads and electrical outlays.
52. ROOF RIGHTS.
A. Tenant, at its sole cost and expense and subject to the provisions
of this Article 52, shall have the following rights: (i) Tenant may install upon
the roof of the Building, in a specific location designated by Landlord (the
"Roof Location") in its sole discretion, a single antenna or single satellite
dish ("Tenant's Telecommunications Equipment") and may connect the same to the
Demised Premises provided, however, that the type of the same to be installed
shall be satisfactory to Landlord in its sole discretion. The rights afforded
Tenant pursuant to the preceding sentence are subject to and are granted upon
the express condition that: (1) any such installations shall be deemed a
structural alteration within the meaning and subject to the provisions of
Article 3 hereof; (2) Tenant, at its sole cost and expense shall maintain the
Tenant's Telecommunications Equipment; (3) Tenant shall promptly repair any
damage caused to the Building (including, without limitation, the roof or any
exterior portions thereof) by reason of the installation, maintenance,
operation, removal and replacement of any of Tenant's Telecommunications
Equipment; (4) Tenant shall remove the applicable Tenant's Telecommunications
Equipment (other than connections to the Demised Premises) upon the expiration
or sooner termination of the term of this lease; and (5) Tenant shall repair any
resulting damage to the Building (including, without limitation, the roof or any
exterior portions thereof) and restore the Building (including, without
limitation, the roof or any exterior portions thereof) to the condition which
existed prior to any such installation, ordinary wear and tear excepted. The
parties agree that Tenant's use of the roof of the Building is a non-exclusive
use and Landlord may permit the use of any other portion of the roof by any
other person for any use, including installation of other antennae, dishes and
similar telecommunications equipment so long as any such equipment which is
installed after the date on which the applicable piece of Tenant's
Telecommunications Equipment is installed does not unreasonably interfere with
such piece of Tenant's Telecommunications Equipment.
B. Landlord shall have the right at Landlord's expense, on not less
than 20 days' prior written notice, to relocate any portion(s) of Tenant's
Telecommunications Equipment, such expense to include the
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removal of the portion(s) to be relocated, the purchasing of materials and
equipment necessary for the relocation thereof and the reinstallation of the
applicable portion(s) at such other location as designated by Landlord on the
roof of the Building.
C. Tenant's Telecommunication Equipment is for the sole use of Tenant
and for no other parties. Tenant shall not resell in any form the use of the
Tenant's Telecommunications Equipment including, without limitation, the
granting of any licensing or other rights.
D. The rights granted in this Article 52 are given in connection with,
and as part of the rights created under, this lease and are not separately
transferable or assignable other than in connection with an assignment or
subletting as permitted by this lease.
E. Tenant's Telecommunications Equipment shall be considered Tenant's
property and Tenant shall maintain adequate insurance coverage as may from time
to time be reasonably required by Landlord.
53. INTENTIONALLY OMITTED.
54. LANDLORD'S WORK.
Tenant acknowledges and agrees that Landlord shall have no obligation
to prepare the Demised Premises for Tenant's occupancy except for those items
set forth below ("Landlord's Work").
1. Deliver the Premises demolished and in broom clean condition;
2. Provide connections to the Building sprinkler system;
3. Provide tie-ins to Building Class E system;
4. Deliver an ACP 5 Certificate;
5. Landlord shall provide Tenant with a credit of FORTY-TWO
THOUSAND AND 00/100 ($42,000.00) DOLLARS for the cost of an air-cooled package
unit sized to provide comfort cooling for the administrative areas of the
Demised Premises only. All maintenance, repair and replacement of said unit
shall be performed by Tenant at Tenant's sole cost and expense; and
6. Provide a clean floor and patch holes in ceiling and restore
fireproofing on beams.
It shall be a condition to all of Tenant's obligations under this Lease
that Landlord shall have completed all of the Landlord's Work.
If Landlord's Work is not substantially complete by December 15, 1998,
then, the Commencement Date shall be deemed to be the date fixed by Landlord in
a written notice to Tenant which notice shall state that on or prior to said
date, Landlord's Work shall have been substantially completed. The term of this
Lease shall expire nevertheless on June 15, 2009.
Notwithstanding anything contained hereinabove to the contrary, in the
event that Landlord's Work is not substantially completed sixty (60) days from
the date of execution of this Lease by Tenant and payment of the first month's
rent and security deposit then, in such event, in addition to Tenant's free
rent. set forth Article 41 hereof, Tenant shall be entitled to a day for day
additional abatement of fixed rent for each day past sixty (60) days that
Landlord Work is not substantially complete.
For purposes hereof, substantial completion of Landlord's Work shall
mean that Tenant can occupy the Demised Premises for purposes of performing all
of its initial work therein without material interference from Landlord or any
of Landlord's contractors.
With respect to certain common corridor work to be performed by
Landlord i.e. upgrade to Building standard of the common corridor including the
bathrooms. Landlord shall complete same within sixty (60) days after Tenant
completes all installations and actually takes occupancy of the Demised
Premises.
55. GENERATOR USE.
Landlord shall lease to Tenant at an annual license fee of based upon a
rental of $20 per square foot dependent on the size of the Generator, said
rental fee to increase by 3% on each anniversary of the Commencement Date)
coterminous with the term of this Lease, certain space on the seventeenth (17th)
floor set back of the Building or such other area of the Building designated by
Landlord, said location of any area designated by Landlord to be mutually
acceptable to Landlord and Tenant and their respective engineers (the
"Generator"). The Generator to be installed shall be installed by Tenant at
Tenant's sole cost and expense and may contain a weather enclosure and shall be
a 350 kw generator. No rental or other fee shall be payable by Tenant for either
the installation cost of the Generator. Until a fuel system is installed by
Landlord
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(which Landlord anticipates without representation should be installed within
six (6) months from the Commencement Date), the Generator will be serviced with
a day fuel tank which shall be filled by Tenant and at Tenant's sole cost and
expense. In addition to the foregoing:
1. Landlord shall provide for sufficient area around the generator to
include code required and maintenance clearances around equipment, controls,
electrical boxes, conduit, piping, fuel system components, etc.;
2. Landlord shall provide sufficient area for installation of
structural supports spanning from base building structural members as necessary
to support the generator system;
3. Landlord to allow Tenant to install generator support steel as
required, fasten to structural members of roof and to perform necessary
waterproofing. Tenant not responsible for leaks in roof due to age of existing
roof and/or ability of existing roofing to accept new waterproofing repair;
4. Subject to force majeure events and legal requirements. Tenant to
have access to generator and fuel area on the roof at all times, 24 hours a day
365 days a year. Tenant shall have the right to run and operate the generator at
any and all times as is reasonably necessary for maintenance and in all power
outage conditions. Testing of the Generator however may be done only at times
reasonably designated by Landlord; and
5. Tenant will be utilizing fourteen (14) 4 inch conduits, the last
four will be free of charge and the first ten (10) at the following rates:
(a) 2 inch conduits - $2.00 per linear foot per annum;
(b) 4 inch conduits - $4.00 per linear foot per annum.
Solely with respect to any initial installations, Tenant shall
incur no additional charges to riser or conduit runs above the third (3rd) floor
i.e. by reason of the relocation of Tenant from the third (3rd) to the seventh
(7th) floor.
56. TENANT'S HVAC.
Subject to Article 3 hereof, Tenant shall install its own
internal HVAC system in the Demised Premises (i.e., not on any other portion of
the Building) it being agreed that Landlord shall have no responsibility to
furnish any HVAC to the Demised Premises. Furthermore, Landlord shall have no
responsibility regarding repair, maintenance or replacement of Tenant's internal
HVAC unit, all such repairs, maintenance and service being Tenant's sole
responsibility. At the Tenant's option, Tenant may have system fully enclosed by
partition walls.
LANDLORD:
00 XXXXX XXXXXX LLC
By: /s/ [SIGNATURE TO COME]
------------------------
Name:
Title: A Member
TENANT:
PLD TELEKOM, INC.
By: /s/ E. Xxxxx Xxxxxxxx
------------------------
NAME: E. XXXXX XXXXXXXX
TITLE: Sr. V.P.
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EXHIBIT A
FLOOR PLAN
[FLOOR PLAN]
[DESCON LOGO]
DESCON INTERIORS INC. 000 XXXXXXX XXX.
XXX XXXX, XXX XXXX 00000 / (000) 000-0000
The New York Technology Exchange
00 XXXXX XXXXXX
0XX XXXXX
[NEWMARK LOGO]
X X X X X X X
Xxxxxxx X. Xxxxx
Executive Vice President
(000) 000-0000
Newmark & Company Real Estate, Inc. [LOGO]
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EXHIBIT B
FIXED RENT SCHEDULE
Tenant shall pay Fixed Rent as follows:
All fixed rent shall be payable in equal monthly installments
as heretofore provided, without offset, deduction or counterclaim.
RENT
LEASE YEAR PER ANNUM
---------- ---------
1 ONE HUNDRED EIGHTY THOUSAND AND 00/100 DOLLARS
($180,000.00);
2 TWO HUNDRED THREE THOUSAND NINE HUNDRED FORTY AND
00/100 DOLLARS ($203,940.00);
3 TWO HUNDRED TEN THOUSAND FIFTY EIGHT AND
20/100 DOLLARS ($210,058.20);
4 TWO HUNDRED SIXTEEN THOUSAND THREE HUNDRED FIFTY NINE
AND 95/100 DOLLARS ($216,359.95);
5 TWO HUNDRED TWENTY TWO THOUSAND EIGHT HUNDRED FIFTY AND
74/100 DOLLARS ($222,850.74);
6 TWO HUNDRED FORTY ONE THOUSAND EIGHT HUNDRED NINETY SIX AND
27/100 DOLLARS ($241,896.27);
7 TWO HUNDRED FORTY NINE THOUSAND ONE HUNDRED FIFTY THREE AND
15/100 DOLLARS ($249,153.15);
8 TWO HUNDRED FIFTY SIX THOUSAND SIX HUNDRED TWENTY SEVEN AND
75/100 DOLLARS ($256,627.75);
9 TWO HUNDRED SIXTY FOUR THOUSAND THREE HUNDRED TWENTY SIX AND
58/100 DOLLARS ($264,326.58); and
10 TWO HUNDRED SEVENTY TWO THOUSAND TWO HUNDRED FIFTY SIX AND
38/100 DOLLARS ($272,256.38).
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress to and egress from the
Demised Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Landlord. There shall not be used in any space, or in the public hall of the
Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks except those equipped with rubber tires
and sideguards. If the Demised Premises are situated on the ground floor of the
Building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said Demised Premises clean and free from ice, snow, dirt
and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the Building; and no tenant shall sweep or throw or permit to be swept or thrown
from the Demised Premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the Building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Demised Premises, or permit or suffer the Demised
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors, and/or
vibrations or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be kept in or about the Building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
Building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
Building without the prior written consent of Landlord.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside of the
Demised Premises or the Building or on the inside of the Demised Premises if the
same is visible from the outside of the Demised Premises without the prior
written consent of Landlord, except that the name of Tenant and corporate
insignia may appear on the entrance door of the Demised Premises, Landlord shall
list Tenant in the lobby directory and Tenant may place directional signs to the
Demised Premises in the 7th floor elevator lobby. In the event of the violation
of the foregoing by any tenant, Landlord may remove same without any liability,
and may charge the expense incurred by such removal to Tenant or any other
tenants violating this rule. Interior signs on doors and directory tablet shall
be inscribed, painted or affixed for each tenant by Landlord at the expense of
such tenant, and shall be of a size, color and style reasonably acceptable to
Landlord.
6. Except pursuant to Article 3 of the lease, no tenant shall xxxx, paint, drill
into, or in any way deface any part of the Building of which they form a part
and no boring, cutting or stringing of wires shall be permitted, except with the
prior written consent of Landlord, and as Landlord may direct. No tenant shall
lay linoleum, or other similar floor covering, so that the same shall come in
direct contact with the floor of the Demised Premises, and, if linoleum or other
similar floor covering is desired to be used as interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each tenant must, upon the termination of his Tenancy,
restore to Landlord all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such tenant, and in the event of the
loss of any keys, so furnished, such tenant shall pay to Landlord the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the Demised Premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Landlord. Landlord reserves the right
to inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these Rules and Regulations.
9. Canvassing, soliciting and peddling in the Building is prohibited and each
tenant shall cooperate to prevent the same.
10. 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 Sundays, and legal holidays all persons
who do not present a pass to the Building. Landlord
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will furnish passes to persons for whom any tenant requests same in writing.
Each tenant shall be responsible for all persons for whom he requests such pass
and shall be liable to Landlord for all acts of such persons.
11. Landlord shall have the right to prohibit any advertising by any tenant
which in Landlord's 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.
12. Tenant shall not bring or permit to be brought or kept in or on the Demised
Premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the Demised
Premises, other than normal office supplies and cleaning materials.
13. If the Building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by the Landlord with respect to such services. If Tenant
requests air conditioning or ventilation after the usual hours, Tenant shall
give reasonable prior notice to the Building superintendent.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the Building without Landlord's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, allow work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Landlord may
designate.
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