1
Exhibit 10.26
AGREEMENT OF LEASE
between
000 XXXX 00XX XXXXXX, XXX,
Xxxxx
and
XXXXX XXXXXX, XXX.,
Xxxxxx
Xxxxx Xx. 0000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
2
INDEX
LEASE dated as of the 7th day Of February, 2000
between
000 XXXX 00XX XXXXXX, XXX, Xxxxx
and
XXXXX ONLINE, INC., Tenant
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Printed Provisions
Article Page
------- ----
Granting Clause
1 Rent 1
2 Occupancy 1
3 Alterations 1
4 Repairs 1
5 Window Cleaning 1
6 Requirements of Law, Fire Insurance,
Floor Loads 1
7 Subordination 2
8 Property-Loss, Damage, Reimbursement, Indemnity 2
9 Destruction, Fire and Other Casualty 2
10 Eminent Domain 2
11 Assignment, Mortgage, Etc. 2
12 Electric Current 2
13 Access to Demised Premises 2
14 Vault, Vault Space, Area 3
15 Occupancy 3
16 Bankruptcy 3
17 Default 3
18 Remedies of Owner and Waiver of Redemption 3
19 Fees and Expenses 3
20 Building Alterations and Management
21 No Representations by owner 3
22 End of Term 4
23 Quiet Enjoyment 4
24 Failure to Give Possession 4
25 No Waiver 4
26 Waiver of Trial by Jury 4
27 Inability to Perform 4
28 Bills and Notices 4
29 Services Provided by Owner - Water, Elevators
Heat, Cleaning, Air Conditioning 4
30 Captions
31 Definitions 4
32 Adjacent Excavation-Shoring 5
33 Rules and Regulations 5
34 Security 5
35 Estoppel Certificate 5
36 Successors and Assigns
37 Application of this Rider 6
A - Rider Provisions Paramount
B - Definitions
C - Some Qualifications of Certain Preceding Printed Articles 7
38 Electricity 12
39 Superior Leases and Mortgages 16
40 Estoppel Certificate 17
41 Indemnification and Liability of Owner 18
42 Escalation for Increases in Real Estate Taxes 19
43 Additional Escalation Payment 21
44 Brokerage 21
45 Partnership Tenant 00
-x-
0
00 Xxxxxxxxxx xxx Xxxxxxxxxx 00
00 Leaseback by owner 28
48 Rent Control 30
49 Insurance 30
50 Services 32
51 Condition of the Demised Premises 34
52 Commencement Date and Fixed Expiration Date 34
53 Fixed Rent 35
54 Owner's Contribution to Tenant's Initial
Alterations 35
55 Security Deposit 37
56 Miscellaneous 38
Exhibit
"A" Floor Plan
-ii-
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STANDARD FORM OF OFFICE LEASE 3/1/86
The Real Estate Board of New York, Inc.
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Agreement of Lease, made as of this 7th day of February, 2000, between 000 XXXX
00XX XXXXXX, XXX, a Delaware limited liability company, having an office at c/o
COLLIERS ABR, INC., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 party of the
first part, hereinafter referred to as OWNER, and XXXXX ONLINE, INC., A Delaware
corporation, duly qualified to do business in the State of New York, having an
address at 00 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX party of the second part,
hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner a
portion of the twenty-seventh (27th) floor shown on the floor plan annexed
hereto as Exhibit "A" and made a part hereof (the "demised premises" or
"premises" whether or not capitalized) known as Suite No. 2700 in the building
known as 000 Xxxx 00xx Xxxxxx (xxx "building" whether or not capitalized) in the
Borough of Manhattan, City of New York, for the term (the "Term") of
approximately seven (7) years and two (2) months (or until such term shall
sooner cease and expire as hereinafter provided) to commence on the Commencement
Date (as defined in Article 52 hereof) and to end on the Fixed Expiration Date
(as defined in Article 52 hereof), both dates inclusive, at an annual rental
rate (the "Fixed Rent") as set forth in Article 53 hereof 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 Owner or such other place as Owner may designate, without any
set off or deduction whatsoever, except that Tenant shall pay the first
monthly installment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent 1. Tenant shall pay the rent as above and as hereinafter
Occupancy provided.
2. Tenant shall use and occupy demised premises for executive
and administrative offices and for no other purpose.
Tenant 3. Tenant shall make no changes in or to the demised premises of
Alterations: any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
(collectively, "Alterations") which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises by using contractors or mechanics first approved by Owner.
Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereto (collectively, "Permits") and shall
deliver promptly duplicates of all such permits, approvals and certificates to
Owner and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance as Owner may require. If any mechanic's
lien is filed against the demised premises, or the building of which the same
forms a part, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this article, the same shall be
discharged by Tenant within thirty days thereafter, at Tenant's expense, by
filing the bond required by law. All fixtures and all paneling, partitions,
railings and like installations, installed in the premises at any time, either
by Tenant or by Owner in Tenant's behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later than twenty days prior to
the date fixed as the termination of this lease, elects to relinquish Owner's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the premises by Tenant prior to the expiration of the lease, at
Tenant's expense. Nothing in this Article shall be construed to give Owner title
to or to prevent Tenant's removal of shade fixtures, moveable office furniture
and equipment, but upon removal of any such from the premises or upon removal of
other installations as may be required by Owner, Tenant shall immediately and at
its expense, repair and restore the premies to the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such removal. All property permitted or required to be removed, by Tenant at
the end of the term remaining in the premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or may be removed from the premises by Owner, at Tenant's
expense.
Maintenance 4. Tenant shall, throughout the term of this lease, take good
and care of the demised premises and the fixtures and appurtenances
Repairs therein. Tenant shall be responsible for all damage or injury to
the demised premises or any other part of the building and the
systems and equipment thereof. Whether requiring structural or nonstructural
repairs caused by or resulting from carelessness, omission, neglect or improper
conduct of Tenant, Tenant's subtenants, agents, employees, invitees or
licensees, or which arise out of any work, labor, service or equipment done for
or supplied to Tenant or any subtenant or arising out of the installation, use
or operation of the property or equipment of Tenant or any subtenant. Tenant
shall also repair all damage to the building and the demised premises caused by
the moving of Tenant's fixtures, furniture and equipment. Tenant shall promptly
make, at Tenant's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant's expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems
(to the extent such systems presently exist) serving the demised premises.
Tenant agrees to give prompt notice of any defective condition in the premises
for which Owner may be responsible hereunder. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
others making 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. -- It is specifically agreed that Tenant
shall not be entitled to any setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants of this or any other article of
this Lease. Tenant agrees that Tenant's sole remedy at law in such instance will
be by way of an action for damages for breach of contract. The provisions of
this Article 4 shall not apply in the case of fire or other casualty which are
dealt with in Article 9 hereof.
Window 5. Tenant will not clean nor require, permit, suffer or allow
Cleaning: any window in the demised premises to be cleaned from the
outside in violation of Section 202 of the Labor Law or any
other applicable law or of the Rules of the Board of Standards and Appeals, or
of any other Board or body having or asserting jurisdiction.
Requirements 6. Prior to the commencement of the lease term, if Tenant is
of Law, then in possession, and at all times thereafter, Tenant, at
Fire Insurance, Tenant's sole cost and expense, shall promptly comply with all
Floor Loads: 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, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, arising out of Tenant's manner of use thereof, or, with respect to
the building if arising out of Tenant's
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manner of use of the 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 may, after securing Owner to Owner's satisfaction
against all damages, interest, penalties and expenses, including, but not
limited to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company satisfactory to Owner, contest and appeal any such laws,
ordinances, orders, rules, regulations or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject Owner
to prosecution for a criminal offense or constitute a default under any lease or
mortgage under which Owner may be obligated, or cause the demised premises or
any part thereof to be condemned or vacated. Tenant shall not do or permit any
act or thing to be done in or to the demised premises which is contrary to law,
or which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. 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
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all sales, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgement, to
absorb and prevent vibration, noise and annoyance.
Subordination:
7. 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 demised premises are a part 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 of 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 Owner may request.
Property - Loss, Damage, Reimbursement, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, not 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 of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or caused by operations
in construction of any private, public or quasi public work.
If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by-law) for any reason whatsoever including, but not limited to Owner's
own acts. Owner shall not be liable for any damage Tenant may sustain thereby
and Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by insurance,
including reasonable attorneys-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 agent, contractor, employee,
invitee or licensee of any sub-tenant. In case any action or proceeding is
brought against Owner by reason of any such claim, Tenant, upon written notice
from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by Owner in writing, such approval not to be
unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casualty. Tenant shall give immediate notice thereof to Owner 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 Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner'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 Owner shall decide to demolish
it or to rebuild it, then, in any of such events, Owner 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 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
owning 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 Owner shall serve a termination notice as provided for herein,
Owner 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 Owner's control. After any
such casualty. Tenant shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) days after written notice from Owner
that the 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, Owner 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 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 Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner 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.
Eminent Domain:
10. 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 and assigns to Owner, Tenant's entire
interest in any such award.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. (2) Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein provided they are concealed within the
walls, floor, or ceiling. Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress not to any damages by
reason of loss or interruption of business or otherwise. Throughout the term
hereof Owner shall have the right to enter the demised premises at reasonable
hours for the purpose of showing the
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same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the
premises, Owner or Owner's agents may enter the same whenever such entry may be
necessary or permissible by master key or forcibly and provided reasonable care
is exercised to safeguard Tenant's property, such entry shall not render Owner
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, Owner 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.
Vault, 14. No Vaults, vault space or area, whether or not enclosed or
Vault Space, covered, not within the property line of the building is leased
Area: hereunder, anything contained in or indicated on any sketch,
blue print or plan, or anything contained elsewhere in this
lease to the contrary notwithstanding. Owner makes no representation as to the
location of the property line of the building. All vaults and vault space and
all such areas not within the property line of the building, which Tenant may
be permitted to use and/or occupy, is to be used and/or occupied under a
revocable license, and if any such license be revoked, or if the amount of such
space or area be diminished or required by any federal, state or municipal
authority or public utility, Owner 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
constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy issued
for the building of which the demised premises are a part. Tenant has inspected
the premises and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no representation as
to the condition of the premises and Tenant agrees to accept the same subject
to violations, whether or not of record.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the
sending of a written notice to Tenant within a reasonable time after the
happening of any one or more of the following events: (1) the commencement of a
case in bankruptcy or under the laws of any state naming Tenant as the debtor;
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 premises demised but
shall forthwith quit and surrender the premises. If this lease shall be
assigned in accordance with its terms, the provisions of this Article 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, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised 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 such premises or any
part thereof be relet by the Owner 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 premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default: 17. (1) 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 premises within fifteen (15) days after the
commencement of the term of this lease, then, in any one or more of such
events, upon Owner serving a written twenty (20) days notice upon Tenant
specifying the nature of said default and upon the expiration of said twenty
(20) 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 twenty (20) day period,
and if Tenant shall not have diligently commenced during such default within
such twenty (20) day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, then Owner
may serve a written three (3) days' notice of cancellation of this lease upon
Tenant, and upon the expiration of said three (3) days this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such three (3) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof and Tenant shall then quit and
surrender the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) 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 the rent reserved herein or any item of additional
rent herein mentioned or any part of either or in making any other payment
herein required (3): then and in any of such events Owner may without notice,
re-enter the demised premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of demised premises and remove their effects and hold
the premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end. If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
Remedies of 18. In case of any such default, re-entry, expiration and/or
Owner and dispossess by summary proceedings or otherwise, (a) the rent
Waiver of shall become due thereupon and be paid up to the time of such
Redemption: re-entry, dispossess and/or expiration, (b) Owner may re-let
the premises or any part or parts thereof, either in the name
of Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would otherwise have constituted the balance of
the term of this lease and may grant concessions or free rent or charge a
higher rental than that in this lease, and/or (c) Tenant or the legal
representatives of Tenant shall also pay Owner as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and/or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
lease or leases of the demised premises for each month of the period which
would otherwise have constituted the balance of the term of this lease. The
failure of Owner to re-let the premises or any part or parts thereof shall not
release or affect Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses as Owner 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 Owner to collect the deficiency
for any subsequent month by a similar proceeding. Owner, in putting the demised
premises in good order or preparing the same for re-rental may, at Owner's
option, make such alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner'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. Owner 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 Owner hereunder. In the
event of a breach or threatened breach by Tenant of any of the covenants or
provisions hereof, Owner 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 Owner from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Owner
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
Fees and 19. If Tenant shall default in the observance or performance of
Expenses 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, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, 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 proceeding, then Tenant will reimburse
Owner 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 Owner within
five (5) days of 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 Owner as damages.
Building 20. Owner shall have the right at any time without the same
Alterations constituting an eviction and without incurring liability to
and Tenant therefor to change the arrangement and/or location of
Management: 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 Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of Owner's
imposition of such controls of the manner of access to the building by Tenant's
social or business visitors as the Owner may deem necessary for the security of
the building and its occupants.
No Repre- 21. Neither Owner nor Owner's agents have made any
sentations by representations or promises with respect to the physical
Owner: condition of the building, the land upon which
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it is erected or the demised premises, the rents, leases, expenses of operation
or any other matter or thing affecting or related to the premises except as
herein expressly set forth and no rights, easements or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in the
provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the time "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term:
22. Upon the expiration or other termination of the term of
this lease, Tenant shall quit and surrender to Owner 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. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Quiet Enjoyment:
23. Owner 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 premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to Article 3 [hereto] and so the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure to Give Possession:
24. If Owner 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 the demised premises are located in a building being constructed, because
such building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner 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
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupancy
premises 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
occupy 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.
No Waiver:
25. The failure of Owner 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 Owner,
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 Owner 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 Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner 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 or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
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 premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant
that the respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counter-claim 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 Owner and Tenant. Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any summary proceeding for
possession of the premises. Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner 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 Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever including, but not limited
to, government preemption in connection with a National Emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at (5) or at the last known residence address or business address of
Tenant or left at any of the aforesaid premises addressed to Tenant(6) and the
time of the rendition of such xxxx or statement and of the giving of such notice
or communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by Tenant
to Owner must be served by registered or certified mail addressed to Owner at
the address first hereinabove given or at such other address as Owner shall
designate by written notice.
Services Provided by Owners:
29. As long as Tenant is not in default under any of the
covenants of this lease, Owners shall provide: (a) necessary elevator facilities
on business days from 8 a.m. to 6 p.m. and have one elevator subject to call at
all other times; (b) heat to the demised premises from the 2nd day of October to
the 30th day of April on business days from 8 a.m. to 6 p.m.; (c) water for
ordinary lavatory purposes, but if Tenant uses or consumes water for any other
purposes or in unusual quantities (of which fact Owner shall be the sole judge),
Owner 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) cleaning
service for the demised premises (excluding any portions thereof used for the
storage, preparation, service and consumption of food) in accordance with the
cleaning specifications in effect from time to time for the cleaning of
tenantable space in the Building on business days at Owner's expense provided
that the same are kept in order by Tenant. If, however, said premises are to be
kept clean by Tenant, it shall be done at Tenant's sole expense, in a manner
satisfactory to Owner and no one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building (7); (e) If the demised premises is
serviced by Owner's air conditioning/cooling and ventilating system, air
conditioning/cooling will be furnished to tenant from May 15th through September
30th on business days (Mondays through Fridays, holidays excepted) from 8:00
a.m. to 6:00 p.m., and Owner shall pay for all electricity consumed by said
air-conditioning system and ventilation will be furnished on business days
during the aforesaid hours except when air conditioning/cooling is being
furnished as aforesaid. If Tenant requires air conditioning/cooling or
ventilation for more extended hours or on Saturdays, Sundays or on holidays, as
defined under Owner's contract with Operating Engineers Local 94-94A, Owner will
furnish the same at Tenant's expense. RIDER to be added in respect to rates and
conditions for such additional service; (f) Owner reserves the right 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 Owner 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, Owner at any time may substitute
automatic-control elevator service without notice to Tenant, proceed with
alterations necessary therefor without in any wise affecting this lease or the
obligation of Tenant hereunder. The same shall be done with a minimum of
inconvenience to Tenant and Owner shall pursue the alteration with due
diligence.
Captions:
30. The Captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
lease nor the intent of any provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this
lease, shall not be construed to mean premises used as a store or stores, for
the sale or display, at any time, of goods, wares or merchandise, of any kind,
or as a restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for
other similar purposes or for manufacturing. The term "Owner" means a landlord
or lessor, and as used in this lease means only the owner, or the mortgage in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of 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, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner 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, 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 Owner, hereunder. The words "re-enter" and "re-entry" as used
in this lease are not restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article 29 hereof), Sundays
and all days observed by the State or Federal Government as legal holidays and
those designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service.
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Adjacent Excavation -- Shoring:
32. 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 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 foundation without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations
33. Tenant and Tenant's servants, employees, agents, visitors, and licenses
shall observe faithfully, and comply strictly with, the Rules and Regulations
and such other and further reasonable Rules and Regulations as Owner or Owner's
agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In ease Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner'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 Owner within ten (10) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
Security:
34.* Tenant has deposited with Owner the sum of $239,512.00 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults 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. Owner 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 Owner 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 premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
new Owner 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 Owner. 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 Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel Certificate
35. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
----------------------------
Space to be filled in or deleted. THIS LEASE IS
CONTINUED ON THE RIDER CONTAINING ARTICLES 37 THROUGH 56, INCLUSIVE, ANNEXED
HERETO AND MADE A PART HEREOF.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
000 XXXX 00XX XXXXXX, XXX, XXXXX
By: 000 XXXX 00XX XXXXXX FINANCING
CORP., ITS MANAGING MEMBER
Witness for Owner:
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------- --------------------------------
Xxxxxxx X. Xxxxx
Vice President
XXXXX ONLINE, INC., TENANT
Witness for Tenant:
By: /s/ Xxx Vor
---------------------------------- ------------------------------------
Name: Xxx Vor
Title:
Federal I.D. No. 00-0000000
*Subject to the terms, conditions, and provisions set forth in Article 55
hereof,
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Inserts to printed portion of the Lease
dated as of the 7th day of February, 2000, between
000 XXXX 00XX XXXXXX, XXX, as Owner,
and XXXXX ONLINE, INC., as Tenant
PREMISES: Portion of the Xxxxxx-Xxxxxxx Xxxxx
Xxxxx Xx. 0000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The following addenda are deemed to be inserted into the printed portion of the
Lease where indicated by the written numbers thereon.
1. Owner agrees that, during the course of making any such repairs, alterations,
additions, or improvements within the Demised Premises, Owner shall use
reasonable efforts, but without the necessity of Owner incurring overtime wages
or any additional cost or expense, to minimize interference with the conduct of
Tenant's business and its use of the Demised Premises, except in the case of an
emergency.
2. Owner agrees that, during the exercise of any right of entry or during the
course of making any such repairs, replacements, or improvements, Owner shall
use reasonable efforts, but without the necessity of Owner incurring overtime
wages or any additional cost or expense, to minimize interference with the
conduct of Tenant's business and its use of the Demised Premises, except in the
case of an emergency.
3. which default shall continue for ten (10) days after written notice of same,
provided, however, that Owner shall not be required to give Tenant more than
three (3) notices of non-payment within any twelve (12) month period
4. but specifically excluding compulsory counterclaims, and Tenant will not
seek to consolidate such proceeding with any other action or proceeding which
may have been or will be brought by Tenant, but the foregoing shall not apply if
the failure to consolidate such proceeding with such other action or proceeding
would preclude Tenant from asserting in such separate action or proceeding the
claim which is or would be the subject thereof.
5. 00 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Mr. Xxxx
Xxxxx, or
6. with a duplicate copy of any notice of default to Tenant to Xxxxxxx Krooks
Xxxx & Ball P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxxxx X. Xxxxxxx, Esq.
7. in excess of refuse and rubbish removal furnished by Owner pursuant to the
cleaning specifications in effect from time to time for the cleaning of
tenantable space in the Building
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RIDER attached to and forming part of LEASE dated as of the 7th day of February,
2000, between 000 XXXX 00XX XXXXXX, XXX, Xxxxx, and XXXXX ONLINE, INC., Tenant.
PREMISES: Portion of the Xxxxxx-Xxxxxxx Xxxxx
Xxxxx Xx. 0000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
37. Application of this Rider
A. Rider Provisions Paramount. 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, of the Rules and Regulations or of
the Construction Rules, Regulations and Procedures (hereinafter defined),
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 or said Construction Rules, Regulations and Procedures,
shall be deemed a waiver of such Rules and Regulations or such Construction
Rules, Regulations and Procedures with respect to Tenant to the extent of such
inconsistency.
B. Definitions:
(1) "Business Day (Days)" shall mean all days except for
Saturdays, Sundays and days observed by the Federal Government of the United
States of America or by New York State as legal holidays, and those days
designated as holidays by the applicable building service union employees
service contract or by the operating engineers contract with respect to heating
service and air conditioning service.
(2) "Construction Rules, Regulations and Procedures" shall
mean the construction rules, regulations and procedures in effect as of the date
hereof, and such other and further construction rules, regulations and
procedures as Owner or Owner's agents may from time to time adopt on such notice
to be given as owner may elect.
(3) "Escalation Rent" shall mean all payments required to be
made by Tenant to Owner pursuant to Articles 42 and 43 hereof.
(4) "Expiration Date" shall mean the Fixed Expiration Date or
such earlier or later date on which the Term shall sooner or later end pursuant
to any of the terms, conditions or covenants of this Lease or pursuant to law.
(5) "Governmental Authority (Authorities)" shall mean the
United States of America, the State of New York, the City of New York and any
agency, department, commission, board, bureau, instrumentality or political
subdivision of any of the foregoing, now existing or hereafter created, having
jurisdiction over the Real Property or any portion thereof.
(6) The term "in full force and effect" whenever used in
reference to this Lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such period
of time (after the notice, if any, required by this Lease), as would entitle
Owner in either such instance to terminate this Lease or to dispossess Tenant.
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(7) "Indemnitees" shall mean Owner and its managing agents,
and their respective members (direct and indirect), partners (direct and
indirect), shareholders, officers, directors, employees, agents and contractors.
(8) "Real Property" shall mean the real property of which the
Demised Premises is a part.
(9) "Rental" shall mean and be deemed to include Fixed Rent,
Escalation Rent, all additional rent and any other sums payable by Tenant
hereunder.
(10) "Requirements" shall mean all present and future laws,
rules, orders, ordinances, regulations, statutes, requirements, codes and
executive orders, extraordinary as well as ordinary, of all Governmental
Authorities now existing or hereafter created, and of any and all of their
departments and bureaus, and of any applicable fire rating bureau, or other body
exercising similar functions, affecting the Real Property, or any street, avenue
or sidewalk comprising a part of or in front thereof or any vault in or under
the same, or requiring removal of any encroachment, or affecting the
maintenance, use or occupation of the Real Property.
(11) "Tenant", on the date as of which this Lease is made,
shall mean XXXXX ONLINE, INC., but thereafter "Tenant" shall mean only the
tenant under this Lease at the time in question; provided, however, that XXXXX
ONLINE, INC. shall not be released from liability hereunder in the event of any
assignment of this Lease.
(12) "Tenant's Proportionate Share" shall mean sixty-seven
hundredths percent (.67%), as the same may be increased or decreased pursuant to
the terms hereof.
(13) The term "Unavoidable Delay(s)" shall mean any delay or
delays which shall prevent or delay the Owner from performing its obligations
hereunder by reason of strikes or labor troubles or by accident, adjustment of
insurance or by any cause whatsoever reasonably beyond owner's control,
including, but not limited to, laws, governmental preemption in connection with
a national emergency or by reason of any Requirements or by reason of the
condition of supply and demand which have been or are affected by war or other
emergency.
(14) The words "include", "including" and "such as" shall each
be construed as if followed by the phrase "without being limited to". The words
"herein", "hereof", "hereby", "hereunder" and words of similar input shall be
construed to refer to this Lease as a whole and not to any particular Article or
subdivision thereof unless expressly so stated. The rule of ejusdem generis
shall not be applicable to limit a general statement following or referable to
an enumeration of specific matters, to matters similar to the matters
specifically mentioned. Words and phrases used in the singular shall be deemed
to include the plural and vice versa and nouns and pronouns used in any
particular gender shall be deemed to include any other gender, as the sense of
the context may permit.
C. Some Qualifications of Certain Preceding Printed Articles.
(1) Supplementing Article 3:
(a) Tenant, at its expense, shall cause any permitted
Alterations to be performed in compliance with all applicable
Requirements, Rules and Regulations and Construction Rules,
Regulations and Procedures, and
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in such manner as not to interfere with, delay, or impose any
additional expense upon Owner in the construction, maintenance
or operation of the Building, or interfere with or disturb the
occupancy of other tenants in the Building, and so as to
maintain harmonious labor relations in the Building. In the
event of any such interference, disturbance or disharmony,
Tenant, upon demand of Owner, shall cause all contractors,
mechanics or laborers causing such interference, disturbance
or disharmony to leave the Building immediately. Tenant, at
its expense and with diligence and dispatch, shall procure the
cancellation or discharge of all notices of violation arising
from or otherwise connected with Alterations which shall be
issued by the Department of Buildings or any other
Governmental Authority.
(b) Except as set forth herein, Owner shall not
unreasonably withhold any consent or approval for Alterations
which are nonstructural and which do not adversely affect
utility services or plumbing and electrical lines of the
Building, but the foregoing shall not apply to Owner's
approval of contractors and mechanics, as to which Owner's
judgment shall be final. Owner may require submission to it of
plans and specifications for any proposed Alterations and in
granting its consent to any Alterations may impose such
conditions (in addition to those expressly provided in this
Lease) as to guaranty of completion and payment and of
restoration and otherwise as owner may reasonably consider
desirable. In no event shall Owner be required to consent to
any Alterations which could physically affect any part of the
Building outside of the Demised Premises or might adversely
affect the proper functioning of any of the mechanical,
electrical, sanitary or other service systems of the Building.
Owner may require Tenant to reimburse Owner for all reasonable
out-of-pocket expenses actually incurred by Owner, not to
exceed five percent (5%) of the cost of any Alterations, as
Owner may demand from time to time during the Term, within
twenty (20) days after demand of same, for review of Tenant's
plans and specifications for such Alterations and supervision
of compliance with the requirements of this Lease in the
performance of such Alterations. Any such approval or review
of Tenant's plans and specifications or supervision of such
compliance or any preparation of any plans or specifications
by Owner's architect, engineer or general contractor (or any
architect, engineer or general contractor designated by Owner)
with respect to such Alterations is solely for Owner's
benefit, and without any representation or warranty whatsoever
to Tenant or any other person, and without creating any
responsibility or liability on the part of Owner, with respect
to the compliance of such Alterations with any Requirements,
or the adequacy, design, sufficiency, completeness,
correctness or efficiency of such Alterations or otherwise.
(2) Supplementing Article 16:
(a) If at or before the Commencement Date or if at
any time during the Term:
(i) if Tenant is then a banking
organization, and shall file an application for
voluntary liquidation or dissolution applicable to
banking organizations;
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(ii) if a custodian, receiver, trustee or
liquidator of Tenant or of all or substantially all
of Tenant's property or of Tenant's property in the
Demised Premises shall be appointed in any
proceedings brought by Tenant; or if any such
custodian, receiver, trustee or liquidator shall be
appointed in any proceedings brought against Tenant
and shall not be discharged within sixty (60) days
after such appointment, or if Tenant shall consent to
or acquiesce in such appointment; or
(iii) if Tenant shall make an assignment for
the benefit of creditors or shall admit in writing
its inability to pay its debts generally as they
become due; or
(iv) if Tenant is then a banking
organization, if the Superintendent of Banks of the
State of New York, Office of Thrift Supervision,
Resolution Trust Company, Federal Deposit Insurance
Corporation, or any other public officer or entity,
having like authority and power over Tenant as a
banking organization shall take possession of the
business and property of Tenant at the Demised
Premises; or
(v) if Tenant is then an insurance company,
and shall become the subject of a conservation,
rehabilitation or liquidation proceeding; or
(vi) if any guarantor under any guaranty of
the payment, performance or observance by Tenant of
the terms, covenants and conditions of this Lease
should default under such guaranty beyond any
applicable notice or grace period;
then, Owner may, at its option, cancel or terminate this Lease by giving Tenant
written notice to such effect within a reasonable time after receipt of notice
of the happening of any one or more of such events.
(3) Supplementing Articles 17 and 18:
(a) Tenant expressly recognizes that Tenant's due and
punctual performance of all its obligations under this Lease
throughout the Term hereof is of paramount importance to Owner
and, without limiting the provisions of Article 17, Tenant
agrees that in addition to any other rights and remedies
hereunder, if Tenant (i) shall fail to pay for ten (10)
Business Days after it becomes due an installment of any
Rental payable monthly for three (3) consecutive months or for
a total of four (4) months in any period of twelve (12)
months, or (ii) shall default in the timely performance of any
other obligation of Tenant under this Lease with respect to
which Owner shall have given Tenant notice of default, and
such default shall occur more than three (3) times in any
period of twelve (12) months, then, notwithstanding that such
failure or other default shall have been cured within the
applicable grace period provided in said Article, any further
similar default within such twelve (12) month period shall be
deemed to be deliberate and Owner thereafter may, without
further notice of default, serve a three (3) day notice of
cancellation of this Lease and with the effects provided in
subparagraph (1) of Article 17.
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(b) Instead of the liquidated damages determined
pursuant to Article 18(c), Owner may, at its election, recover
from Tenant as liquidated damages an amount determined
pursuant to Article 16(b).
(4) Supplementing Article 22: Upon the expiration or other
termination of the Term of this Lease, Tenant shall quit and surrender to Owner
the Demised Premises, vacant, broom clean, in good order and condition, ordinary
wear and tear and damage for which Tenant is not responsible under the terms of
this Lease excepted, and otherwise in compliance with the provisions of Article
3 hereof. If the last day of the Term or any renewal thereof falls on Saturday
or Sunday, this Lease shall expire on the Business Day immediately preceding.
Tenant expressly waives, for itself and for any person or entity claiming
through or under Tenant, any rights which Tenant or any such person or entity
may have under the provisions of Section 2201 of the New York Civil Practice Law
and Rules and of any successor law of like import then in force in connection
with any holdover summary proceedings which Owner may institute to enforce the
foregoing provisions of this Paragraph. Tenant acknowledges that possession of
the Demised Premises must be surrendered to Owner on the Expiration Date. Tenant
agrees to indemnify and save Owner harmless from and against all claims, losses,
damages, liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements) resulting from delay by Tenant in so
surrendering the Demised Premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Owner resulting from any failure by Tenant timely to
surrender possession of the Demised Premises as aforesaid will be extremely
substantial, will exceed the amount of the monthly installments of the Fixed
Rent and Rental theretofore payable hereunder, and will be impossible to measure
accurately. Tenant therefore agrees that if possession of the Demised Premises
is not surrendered to Owner within twenty-four (24) hours after the Expiration
Date, in addition to any other rights or remedies Owner may have hereunder or at
law, and without in any manner limiting Owner's right to demonstrate and collect
any damages suffered by Owner and arising from Tenant's failure to surrender the
Demised Premises as provided herein, Tenant shall pay to Owner, on account of
use and occupancy of the Demised Premises for each month and for each portion of
any month during which Tenant holds over in the Demised Premises after the
Expiration Date, a sum equal to the greater of (i) one and one-half (1 1/2)
times the aggregate of that portion of the Fixed Rent, Escalation Rent and any
other Rental which was payable under this Lease during the last month of the
Term, and (ii) the then fair market rental value for the Demised Premises.
Nothing herein contained shall be deemed to permit Tenant to retain possession
of the Demised Premises after the Expiration Date or to limit in any manner
Owner's right to regain possession of the Demised Premises through summary
proceedings, or otherwise, and no acceptance by Owner of payments from Tenant
after the Expiration Date shall be deemed to be other than on account of the
amount to be paid by Tenant in accordance with the provisions of this Paragraph.
The provisions of this Paragraph shall survive the Expiration Date.
(5) If Tenant shall fail to pay any installment of Fixed Rent
or any amount of additional rent for more than ten (10) Business Days after it
shall have become due and payable, then whether or not a notice of default has
been given therefor, Tenant shall pay Owner a late charge of four (4) cents for
each dollar of the amount of such Fixed Rent or additional rent as shall not
have been paid to Owner within ten (10) Business Days after becoming due and
payable. Such late charge shall be without prejudice to any of Owner's rights
and remedies hereunder or at law for non-payment or late payment of rent,
including interest, and shall be in addition thereto.
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38. Electricity
A. (1) Tenant agrees that Owner may furnish electricity to Tenant on a
"submetering" basis pursuant to Article 38B or on a "rent inclusion" basis
pursuant to Article 38D. Notwithstanding the foregoing, until such time as owner
notifies Tenant otherwise, Owner shall furnish electricity to the Demised
Premises on a rent inclusion basis. Owner reserves the right, at any time upon
thirty (30) days' written notice, to change its furnishing of electricity to
Tenant from a rent inclusion basis to a submetering basis, or vice versa,
provided, however, that Owner shall not change its furnishing of electricity to
Tenant from a rent inclusion basis to a submetering basis unless the furnishing
of, or charging for, electricity to Tenant on a rent inclusion basis shall in
any manner be prohibited, restricted or otherwise affected adversely to Owner by
reason of any change in any applicable Requirements or in any applicable rules,
regulations, or requirements of any public service commission or of the public
utility supplying electricity to the Building.
(2) Tenant shall at all times comply with the rules, regulations, terms
and conditions applicable to service, equipment, wiring and requirements of the
public utility supplying electricity to the Building. Tenant shall not use any
electrical equipment which, in Owner's reasonable judgment, would exceed the
capacity of any of the electrical conductors or equipment in or otherwise
servicing the Demised Premises or interfere with the electrical service to other
tenants of the Building. In the event that, in Owner's sole judgment, Tenant's
electrical requirements necessitate installation of an additional riser, risers
or other proper and necessary conductors or equipment, Owner shall so notify
Tenant of same. Within five (5) Business Days after receipt of such notice,
Tenant shall either cease such use of such electrical equipment or shall request
that additional electricity capacity (specifying the amount requested) be made
available to Tenant. Owner, in Owner's sole judgment, shall determine whether to
make available such additional electricity capacity to Tenant and the amount of
such additional electricity capacity to be made available. If owner shall agree
to make available additional electrical capacity and the same necessitates
installation of an additional riser, risers or other proper and necessary
conductors or equipment, including, without limitation, any switchgear, the same
shall be installed by Owner. Any such installation shall be made at Tenant's
sole cost and expense, and shall be chargeable and collectible as additional
rent and paid within ten (10) days after the rendition of a xxxx to Tenant
therefor. Owner shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric service furnished to the Demised
Premises by reason of any requirement, act or omission of the utility serving
the Building or for any other reason not attributable to the gross negligence of
Owner, whether electricity is provided by public or private utility or by any
electricity generation system owned and operated by Owner.
B. (1) Unless Owner elects to have Tenant obtain electricity from the
public utility company furnishing electricity to the Building pursuant to the
provisions of Article 38E hereof or elects to furnish electricity to the Demised
Premises pursuant to the provisions of Article 38D hereof, electricity shall be
furnished by Owner to the Demised Premises and Tenant shall pay Owner for
Tenant's demand and consumption of electricity as determined by meters or
submeters (installed by Owner, at Tenant's cost, for the purpose of measuring
such demand and consumption) at charges, terms and rates set, from time to time,
during the term of this Lease by Owner but not more than those specified in the
service classification in effect on January 1, 1970 pursuant to which Owner then
purchased electric current from
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the public utility corporation serving the part of the city where the Building
is located; provided, however, said charges shall be increased in the same
percentage as any percentage increase in the billing to Owner for electricity
for the entire Building, by reason of increase in Owner's electric rates,
charges, fuel adjustment or service classifications, or by taxes or charges of
any kind imposed thereon, or for any other such reason, subsequent to January 1,
1970. Any such percentage increase in owner's billing for electricity shall be
computed by the application of the average consumption (energy and demand) of
electricity for the entire Building for the twelve (12) full months immediately
prior to the rate change, other change, or any changed methods of or rules on
billing for same, on a consistent basis to the new rate and to the service
classification in effect on January 1, 1970. If the average consumption of
electricity for the entire Building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or rules on
billing, then the percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire Building for the first
three (3) months after such change, projected to a full twelve (12) months; and
that same consumption, so projected, shall be applied to the service
classification in effect on January 1, 1970. Amounts required to be paid by
Tenant to Owner pursuant to this Article 38B shall be referred to as
"Electricity Additional Rent".
(2) Where more than one meter measures the electricity supplied to
Tenant, the electricity rendered through each meter may be computed and billed
separately in accordance with the provisions hereinabove set forth. Bills for
the Electricity Additional Rent shall be rendered to Tenant at such time as
Owner may elect, and Tenant shall pay the amount shown thereon to Owner within
ten (10) days after receipt of such xxxx.
[Paragraph 38C is intentionally omitted.]
D. (1) Unless Owner elects to supply electricity to the Demised
Premises pursuant to Article 38B hereof or to have Tenant obtain electricity
from the public utility furnishing electricity to the Building pursuant to the
provisions of Article 38E hereof, Owner shall furnish electric current to the
Demised Premises for the use of Tenant for the operation of the lighting
fixtures and the electrical receptacles for ordinary office equipment in the
Demised Premises on a "rent inclusion" basis, that is, there shall be no
separate charge to Tenant for such electric current by way of measuring such
electricity service on any meter. The Fixed Rent set forth in this Lease does
not include an annual charge for electricity service of Fourteen Thousand, Six
Hundred Sixty-Four and 00/100 ($14,664.00) Dollars (such amount, as it may be
increased pursuant to the provisions of this Lease, being referred to as the
"Electricity Inclusion Factor"), but as long as Owner furnishes electricity to
Tenant on a rent inclusion basis pursuant to this Article 38D, the Fixed Rent
shall be increased by the Electricity Inclusion Factor. The parties agree that
although the charge for furnishing electrical energy may be included in the
Fixed Rent on a so-called "rent inclusion" basis, the value to Tenant of such
service may not be fully reflected in the Fixed Rent. Accordingly, Tenant agrees
that Owner, at Owner's option, may cause a reputable and independent electrical
engineer or electrical consulting firm, selected by Owner (such engineer or
consulting firm being hereinafter referred to as "Owner's Engineer"), to make a
determination, following the commencement of Tenant's normal business activities
in the Demise Premises, of the Full Value of such service to Tenant. As used
herein, the "Full Value" to Tenant of such service shall mean the product
obtained by multiplying the demand and consumption of electric energy at the
Demised Premises by the Electric Rate (hereinafter defined). Owner's Engineer
shall certify such determination in writing to Owner and Tenant. If
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the Full Value to Tenant is in excess of the Electricity Inclusion Factor, the
Electricity Inclusion Factor and the Fixed Rent shall be increased by such
excess. However, if it shall be so determined that the Full Value to Tenant of
such service does not exceed the Electrical Inclusion Factor, there shall
nevertheless be no decrease in the Electricity Inclusion Factor or in the Fixed
Rent.
(2) If during the Term the Electric Rate (hereinafter defined) shall
increase over the Base Electric Rate, the Electricity Inclusion Factor (and
therefore the Fixed Rent) shall be proportionately increased.
(3) (a) Owner, from time to time during the Term, may cause Owner's
Engineer to survey the demand and consumption of electrical energy at the
Demised Premises. If the then Full Value shall exceed the then Electricity
Inclusion Factor, the. Electricity Inclusion Factor (and therefore the Fixed
Rent), shall be proportionately increased, based on the increased demand and
consumption and the then prevailing Electric Rate.
(b) Owner shall furnish to Tenant a written statement (an
"Electricity Statement") setting forth Owner's determination of any increase
which has occurred in the Full Value and the Electricity inclusion Factor (and
therefore the Fixed Rent) pursuant to the provisions of this Article 38D. Any
such increase in the Electricity inclusion Factor and the Fixed Rent shall be
effective as of the date of such increase in the Electric Rate or the
consumption and demand of electric energy by Tenant and shall be retroactive to
such dates if necessary. Any retroactive increase shall be paid by Tenant within
ten (10) days after demand and such amount shall be collectible by Owner as
Fixed Rent hereunder.
(c) Each such Electricity Statement given by Owner pursuant to
Article 38D(3)(b) above, shall be conclusive and binding upon Tenant, unless
within sixty (60) days after the receipt of such Electricity Statement, Tenant
shall notify Owner that it disputes the correctness of the Electricity
Statement. If such dispute is based on Tenant's demand and consumption of
electric current, Tenant shall submit a survey and determination of such
adjustment, made at its sole cost and expense, by a reputable and independent
electrical engineer or electrical consulting firm ("Tenant's Engineer"), within
sixty (60) days after receipt of such Electricity Statement. If Owner and Tenant
are unable to resolve the dispute between them within thirty (30) days after
receipt by Owner of a copy of the determination of Tenant's Engineer, the
dispute shall be decided by a third reputable and independent electrical
engineer or electrical consulting firm ("Third Engineer"). If the parties shall
fail to agree upon the designation of the Third Engineer within forty (40) days
after the receipt by owner of the determination of Tenant's Engineer, then
either party may apply to the American Arbitration Association or any successor
thereto for the designation of the Third Engineer. The Third Engineer shall
conduct such hearings as he deems appropriate. The Third Engineer, within thirty
(30) days after his designation, shall select the determination of either
Owner's Engineer or Tenant's Engineer and such determination shall be conclusive
and binding upon the parties whether or not a judgment shall be entered in any
court. The fees of the Third Engineer and the costs of arbitration shall the
fees of the Third Engineer and the costs of arbitration shall be paid equally by
the parties, except that each party shall pay its own counsel fees and expenses,
if any, in connection with the arbitration. Pending the resolution of such
dispute by agreement or arbitration as aforesaid, Tenant shall pay the increase
in the Electricity Inclusion Factor in accordance with the Electricity
Statement, without prejudice to Tenant's position, as herein provided. If the
dispute shall be resolved in Tenant's favor, Owner, at its option, shall either
credit the amount of such
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overpayment against subsequent monthly installments of Fixed Rent hereunder or
pay to Tenant the amount of such overpayment.
(4) Owner's failure during the Term to prepare and deliver any
Electricity Statement, or bills, or owner's failure to make a demand, under this
Article or any other provisions of this Lease, shall not in any way be deemed to
be a waiver of, or cause owner to forfeit or surrender, its rights to collect
any portion of the increase in the Electricity Inclusion Factor (and therefore
the Fixed Rent) which may have become due pursuant to this Article 38 during the
Term. Tenant's liability for the amounts due under this Article 38 shall survive
the expiration or sooner termination of this Lease and owner's obligation, if
any, to refund any payments by Tenant in excess of the amounts required to be
paid by Tenant to Owner pursuant to this Article 38 shall survive the expiration
or sooner termination of this Lease; The preceding sentence shall not, however,
be construed as limiting or restricting, in any manner whatsoever, Owner's right
pursuant to this Lease or pursuant to law to offset any such overpayments by
Tenant against any amounts which may be due and payable as provided in this
Lease.
(5) In no event shall any adjustment of the payments made or to be made
hereunder result in a decrease in Fixed Rent or additional rent payable pursuant
to any other provision of this Lease, or in the amount paid for electricity for
the prior year.
(6) The Electricity Inclusion Factor shall be collectible by Owner in
the same manner as Fixed Rent.
(7) For the purposes of this Article 38D, Owner and Tenant agree that:
(a) "Electric Rate" (including all applicable surcharges,
demand charges, energy charges, fuel adjustment charges, time of day charges,
taxes and other sums payable in respect thereof) shall mean the greater of:
(i) the service classification pursuant to which
owner purchases electricity from the utility company servicing the Building, and
(ii) the service classification pursuant to which
Tenant would purchase electricity directly from the utility company servicing
the Building.
(b) "Base Electric Rate" shall mean the Electric Rate in
effect on the date hereof.
(8) If Owner discontinues furnishing electricity to Tenant pursuant to
this Article 38D, the Fixed Rent shall be decreased by the Electricity Inclusion
Factor effective as of the date owner discontinues the provision of electricity
in such manner.
E. If Owner elects to discontinue furnishing electricity to Tenant, this
Lease shall continue in full force and effect and shall be unaffected thereby,
except only that from and after the effective date of such discontinuance, Owner
shall not be obligated to furnish electricity to Tenant and Tenant shall not be
obligated to furnish electricity to Tenant and Tenant shall not be obligated to
pay the Electricity Additional Rent or the Electricity Inclusion Factor, as the
case may be. If Owner so discontinues furnishing electricity to Tenant, Tenant
shall use diligent efforts to obtain electric energy directly from the public
utility furnishing electric service to the Building. The costs of such service
shall be paid by Tenant directly to such public utility. Such electricity may be
furnished to Tenant by means of the existing electrical facilities serving the
Demised
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Premises, at no charge, to the extent the same are available, suitable and safe
for such purposes as determined by Owner. All meters and all additional panel
boards, feeders, risers, wiring and other conductors and equipment which may be
required to obtain electricity shall be installed by Owner at Tenant's expense.
Provided Tenant shall use and continue to use diligent efforts to obtain
electric energy directly from the public utility, Owner, to the extent permitted
by applicable Requirements, shall not discontinue furnishing electricity to the
Demised Premises until such installations have been made and Tenant shall be
able to obtain electricity directly from the public utility.
39. Superior Leases and Mortgages
A. The ground and underlying leases and mortgages referred to in
Article 7, to which this Lease is subject and subordinate, are hereinafter
sometimes called "Superior Leases" and "Superior Mortgages", respectively, and
the lessor of a Superior Lease or its successor in interest at the time referred
to is hereinafter sometimes called the "lessor" of such Superior Lease. No
prepayment of more than one month's Fixed Rent shall be valid or binding upon
the holder of a Superior Mortgage or the lessor of a Superior Lease unless
expressly approved in writing by such holder or lessor or any of its
predecessors in interest.
B. In the event of any act or omission of Owner which would give Tenant
the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease or to claim a partial or total eviction, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission to the holder of each Superior Mortgage and the lessor of each Superior
Lease whose name and address shall previously have been furnished to Tenant in
writing, and (ii) unless such act or omission shall be one which is not capable
of being remedied by Owner or such mortgage holder or lessor within a reasonable
period of time, until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such holder or lessor shall have become entitled under such Superior
Mortgage or Superior Lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Owner would
be entitled under this Lease or otherwise, after similar notice, to effect such
remedy and shall include such reasonable period as may be required to obtain
possession where possession is required in order to remedy such act or
omission), provided such holder or lessor shall with due diligence give Tenant
written notice of intention to, and commence and continue to remedy such act or
omission.
C. If the lessor of a Superior Lease or the holder of a Superior
Mortgage shall succeed to Owner's estate in the Building or the rights of Owner
under this Lease, whether through possession or foreclosure action or delivery
of a new lease or a deed or otherwise, then at the election of such party so
succeeding to Owner's rights (herein sometimes called "successor owner"), Tenant
shall attorn to and recognize such successor owner as Tenant's owner under this
Lease, and shall promptly execute and deliver any instrument that such successor
owner may reasonably request to evidence such attornment, provided that such
successor owner shall then be entitled to possession of the Demised Premises and
provided further that such successor owner or anyone claiming by, through or
under such successor owner, including a purchaser at a foreclosure sale, shall
not be:
(1) liable for any act or omission of any prior landlord (including,
without limitation, the then defaulting landlord), or
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(2) subject to any defense or offsets which Tenant may have against any
prior landlord (including, without limitation, the then defaulting landlord), or
(3) bound by any payment of Rental which Tenant may have made to any
prior landlord (including, without limitation, the then defaulting landlord)
more than thirty (30) days in advance of the date upon which such payment was
due, or
(4) bound by any obligation to make any payment to or on behalf of
Tenant, or
(5) bound by any obligation to perform any work or to make
improvements to the Demised Premises, except for (i) repairs and maintenance
pursuant to the provisions of Article 4, the need for which repairs and
maintenance first arises after the date upon which such successor owner shall be
entitled to possession of the Demised Premises, (ii) repairs to the Demised
Premises or any part thereof as a result of damage by fire or other casualty
pursuant to Article 9 hereof, but only to the extent that such repairs can be
reasonably made from the net proceeds of any insurance actually made available
to such successor owner, and (iii) repairs to the Demised Premises as a result
of a partial condemnation pursuant to Article 10 hereof, but only to the extent
that such repairs can be reasonably made from the net proceeds of any award made
available to such successor owner, or
(6) bound by any amendment or modification of this Lease made without
its consent, or
(7) bound to return Tenant's security deposit, if any, until such
deposit has come into its actual possession and Tenant would be entitled to such
security deposit pursuant to the terms of this Lease.
If Tenant should fail or refuse promptly to execute and deliver such instrument
to evidence such attornment, Tenant hereby irrevocably appoints such successor
owner Tenant's attorney-in-fact to execute and deliver such instrument for and
on behalf of Tenant. Tenant hereby waives any right Tenant may have under any
present or future law to terminate this Lease or surrender the Demised Premises
by reason of the institution of any proceeding to terminate a Superior Lease or
action to foreclose a Superior Mortgage and this Lease shall not be affected by
any such proceeding or action unless and until the lessor of the Superior Lease,
or holder of the Superior Mortgage, elects in such proceeding or action to
terminate this Lease.
D. If in connection with the procurement, continuation or renewal of
any financing for which the Building and/or the land on which it stands or the
interest of the lessee therein under a Superior Lease represents collateral in
whole or in part, or, if in connection with the entering into, continuation,
renewal or modification of a Superior Lease, a lender or lessor shall request
any modifications of this Lease as a condition thereof, Tenant will not withhold
its consent thereto provided that such modifications do not increase any of
Tenant's financial obligations or decrease any of Owner's services and do not
otherwise materially increase the obligations of Tenant under this Lease or
materially and adversely affect any rights of Tenant under this Lease.
40. ESTOPPEL CERTIFICATE
Each party shall, at any time and from time to time, but not more than
twice in any twelve (12) month period, at the request
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of the other party, upon not less than ten (10) days' notice, if given in
person, or fifteen (15) days' notice, if given by mail, execute and deliver to
the other a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and affect as modified and stating the modifications), certifying the dates to
which the Fixed Rent and additional rent have been paid, and stating whether or
not, to the best knowledge of the signer, the other party is in default in
performance of any of its obligations under this Lease, and, if so, specifying
each such default of which the signer may have knowledge, it being intended that
any such statement delivered pursuant hereto may be relied upon by others with
whom the party requesting such certificate may be dealing.
41. Indemnification and Liability of Owner
A. Tenant shall not do or permit any act or thing to be done upon the
Demised Premises which may subject Owner to any liability or responsibility for
injury, damages to persons or property or to any liability by reason of any
violation of law or of any Requirement, but shall exercise such control over the
Demised Premises as to fully protect Owner against any such liability. Tenant
shall indemnify and save the Indemnitees harmless from and against (a) all
claims of whatever nature against the Indemnitees arising from any act, omission
or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, (b) all claims against the Indemnitees arising
from any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in or about the Demised
Premises, (c) all claims against the Indemnitees arising from any accident,
injury or damage occurring outside of the Demised Premises but anywhere within
or about the Real Property, where such accident, injury or damage results or is
claimed to have resulted from an act, omission or negligence of Tenant or
Tenant's agents, employees, invitees or visitors, and (d) any breach, violation
or non-performance of any covenant, condition or agreement in this Lease set
forth and contained on the part of Tenant to be fulfilled, kept, observed and
performed. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature (including, without limitation, attorneys' fees
and disbursements) incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof and shall survive the
expiration or earlier termination of this Lease.
B. If any claim, action or proceeding is made or brought against any of
the Indemnitees, which claim, action or proceeding Tenant shall be obligated to
indemnify such Indemnitee against, pursuant to the terms of this Lease, then,
upon demand by the Indemnitee, Tenant, at its sole cost and expense, shall
resist or defend such claim, action or proceeding in the Indemnitee's name, if
necessary, by such attorneys as the Indemnitee shall approve, which approval
shall not be unreasonably withheld. Attorneys for Tenant's insurer shall hereby
be deemed approved for purposes of this Article 41B. Notwithstanding the
foregoing, an Indemnitee may retain its own attorneys to defend or assist in
defending any claim, action or proceeding (i) involving potential liability of
Five Million Dollars ($5,000,000) or more or (ii) in which the Indemnitee shall
have concluded that there may be defenses available to it which are different
from, additional to, or inconsistent with, those available to Tenant (in which
case Tenant shall not have the right to direct the defense of such claim, action
or proceeding with respect to such Indemnitee), and in either case Tenant shall
pay the reasonable fees and disbursements of such attorneys.
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42. Escalation for Increase in Real Estate Taxes
A. For the purposes of this Article 42, the following terms shall have
the meanings set forth below.
(1) "Assessed Valuation" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of imposition of Taxes.
(2) "Base Taxes" shall mean one-half (1/2) of the aggregate
Taxes payable for the Tax Year commencing on July 1, 1999, and ending on June
30, 2000, and for the Tax Year commencing on July 1, 2000, and ending on June
30, 2001.
(3) "Taxes" shall mean the aggregate amount of real estate
taxes and any general or special assessments (exclusive of penalties and
interest thereon) imposed upon the Real Property (including, without limitation,
(i) assessments made upon or with respect to any "air" and "development" rights
now or hereafter appurtenant to or affecting the Real Property, and (ii) any
assessments levied after the date of this Lease for the benefit of the Real
Property or the Building) without taking into account any discount that Owner
may receive by virtue of any early payment of Taxes or on account of any
exemption or abatements of Taxes to which the Real Property is entitled;
provided, that if because of any change in the taxation of real estate, any
other tax or assessment, however denominated (including, without limitation, any
franchise, income, profit, sales, use, occupancy, gross receipts or rental tax)
is imposed upon Owner or the owner of the Real Property or the Building, or the
occupancy, rents or income therefrom, in substitution for or in addition to, any
of the foregoing Taxes, such other tax or assessment shall be deemed part of
Taxes. With respect to any Tax Year, all expenses, including attorneys' fees and
disbursements, experts' and other witnesses' fees, incurred in contesting the
validity or amount of any Taxes or in obtaining a refund of Taxes shall be
considered as part of the Taxes for such Tax Year.
(4) "Tax Year" shall mean the period July 1 through June 30
(or such other period as hereinafter may be duly adopted by the Governmental
Authority then imposing taxes as its fiscal year for real estate tax purposes),
any portion of which occurs during the Term.
B. (1) If the Taxes payable for any Tax Year (any part or all of which
falls within the Term), as computed by Owner, shall represent an increase above
the Base Taxes, then Tenant shall pay as additional rent for such Tax Year and
continuing thereafter until a new Tax Statement is rendered to Tenant, Tenant's
Proportionate Share of such increase (the "Tax Payment"). Tenant shall not be
entitled to any credit against any Tax Payment on account of any discount that
Owner may receive by virtue of any early payment of Taxes or on account of any
exemptions or abatements of Taxes to which the Real Property is entitled, and
Taxes shall be calculated without taking into account any such discounts,
exemptions or abatements.
(2) At any time during or after the Term, Owner shall render to
Tenant, either in accordance with the provisions of Article 28 hereof or by
personal delivery at the Demised Premises, a statement or statements showing (i)
a comparison of the Taxes for the Tax Year with the Base Taxes and (ii) the
amount of the Tax Payment resulting from such comparison (a "Tax-Statement").
Tenant shall pay to Owner, in one (1) installment within
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thirty (30) days after receipt of any Tax Statement, the Tax Payment shown
thereon. If Taxes are required to be paid in full or on any other date or dates
than as presently required by the Governmental Authority imposing the same, then
the due date of the installments of the Tax Payment shall be correspondingly
accelerated or revised so that the Tax Payment (or the two (2) installments
thereof) is due at least thirty (30) days prior to the date the corresponding
payment is due to the Governmental Authority. If the Tax Year established by The
City of New York shall be changed, any Taxes for the Tax Year prior to such
change which are included within the new Tax Year and which were the subject of
a prior Tax Statement shall be apportioned for the purpose of calculating the
Tax Payment payable with respect to such new Tax Year. Owner's failure to render
a Tax Statement during or with respect to any Tax Year shall not prejudice
owner's right to render a Tax Statement during or with respect to any subsequent
Tax Year, and shall not eliminate or reduce Tenant's obligation to make Tax
Payments pursuant to this Article 42 for such Tax Year.
C. (1) Only owner shall be eligible to institute tax reduction or other
proceedings to reduce the Assessed Valuation.
(2) Anything in this Article 42 to the contrary notwithstanding,
under no circumstances shall the Rental payable under this Lease be less than
the Fixed Rent set forth herein.
(3) The expiration or termination of this Lease during any period
for any part or all of which a Tax Payment is payable under this Article shall
not affect the rights or obligations of the parties hereto respecting such
payments and any Tax Statement relating to such Tax Payment, on a pro rata
basis, may be sent to Tenant subsequent to, and all such rights and obligations
shall survive, any such expiration or termination. Any payments due under such
Tax Statement shall be payable within thirty (30) days after such Tax Statement
is sent to Tenant.
(4) In the event that, after a Tax Statement has been sent to
Tenant, the Assessed Valuation which had been utilized in computing the Base
Taxes is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then, and in such event: (i) the Base Taxes shall be
retroactively adjusted to reflect such reduction and (ii) all retroactive Tax
Payments resulting from such retroactive adjustment shall be due and payable
when billed by Owner. Owner promptly shall send to Tenant a statement setting
forth the basis for such retroactive adjustment and Tax Payments.
D. Every notice given by Owner pursuant to Article 42B(2) hereof above
shall be conclusive and binding upon Tenant unless within thirty (30) days after
the receipt of such notice Tenant shall notify owner that it disputes the
correctness of the notice, specifying the particular respects in which the
notice is claimed to be incorrect. If Tenant shall so dispute the correctness of
the notice, either party may refer the decision of the issues raised to a
reputable independent firm of certified public accountants selected by Owner and
reasonably acceptable to Tenant, and the decision of such accountants shall be
conclusively binding upon the parties. Pending the resolution of such dispute as
aforesaid, Tenant shall pay additional rent in accordance with Owner's notice
and such payment shall be without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Owner shall forthwith pay Tenant, or, at
Owner's election, Tenant shall be entitled to take a credit against the next
installment(s) of Fixed Rent equal to the amount of Tenant's overpayment of
rents resulting from compliance with Owner's notice.
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43. Additional Escalation Payment
A. Notwithstanding anything to the contrary contained herein, it is
agreed that for each lease year (as hereinafter defined) after the first (1st)
lease year, Tenant shall pay owner, as additional rent hereunder, in equal
monthly installments, together with the monthly installments of the Fixed Rent
hereunder, an amount (the "Additional Escalation Payment") equal to an increase,
on a cumulative basis, in the Fixed Rent at the rate of three (3%) percent per
annum compounded annually. Fixed Rent, as referred to in this Article 43, shall
mean the Fixed Rent exclusive of the Electricity Inclusion Factor.
B. Accordingly, the Additional Escalation Payment for the second (2nd)
lease year shall be an amount equal to three (3%) percent of the Fixed Rent
payable for such lease year. The Additional Escalation Payment for each lease
year thereafter shall be an amount equal to the sum of (i) three (3%) percent of
the sum of (a) the Fixed Rent payable for such lease year and (b) the Additional
Escalation Payment payable for the immediately preceding lease year and (ii) the
Additional Escalation Payment payable for the immediately preceding lease year.
C. The following illustrates the intention of the parties with respect
to the computation of the Additional Escalation Payment.
(i) The Additional Escalation Payment for the second (2nd)
lease year shall be an amount equal to three (3%) percent of the Fixed Rent
payable for such lease year in the sum of $210,184.00, i.e., the sum of
$6,305.52.
(ii) The Additional Escalation Payment for the third (3rd)
lease year shall be an amount equal to the sum of (i) three (3%) percent of the
sum of (a) the Fixed Rent payable for such lease year in the sum of $210,184.00
and (b) the Additional Escalation Payment payable for the immediately preceding
lease year in the sum of $6,305.52 (i.e., $6,494.69) and (ii) the Additional
Escalation Payment for the immediately preceding lease year in the sum of
$6,305.52, i.e., the sum of $12,800.21.
(iii) The Additional Escalation Payment for the fourth (4th)
lease year shall be an amount equal to the sum of (i) three (3%) percent of the
sum of (a) the Fixed Rent payable for such lease year in the sum of $224,848.00
and (b) the Additional Escalation Payment payable for the immediately preceding
lease year in the sum of $12,800.21 (i.e., $7,129.45) and (ii) the Additional
Escalation Payment for the immediately preceding lease year in the sum of
$12,800.21, i.e., the sum of $19,929.66.
(iv) A similar computation shall be made for each of the
succeeding lease years.
D. The term "lease year" as used in this Article 43 shall mean the
first twelve (12) months of the Term commencing on the Commencement Date, each
successive twelve month period of the Term, and any final period of the Term
which is less than twelve months.
44. Brokerage.
A. Tenant represents and warrants that Tenant has not dealt with any
broker, finder, or like agent, other than Colliers ABR, Inc. and Insignia/ESG,
Inc. (collectively, the "Brokers"), in connection with this Lease, and the
execution and delivery of
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this Lease by Owner shall be conclusive evidence that owner has relied upon the
foregoing representation and warranty. Tenant shall indemnify and hold Owner
harmless from and against any and all claims for commission, fee or other
compensation by any broker, finder, or like agent, other than the Brokers, who
shall have dealt with Tenant in connection with this Lease and for any and all
costs incurred by Owner in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements.
B. Owner shall indemnify and hold Tenant harmless from and against any
and all claims for commission, fee or other compensation by the Brokers or by
any other broker, finder, or like agent who shall have dealt with Owner, but not
with Tenant, in connection with this Lease and for any and all costs incurred by
Tenant in connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. Owner shall pay the Brokers' commissions
pursuant to separate agreements, but the Brokers shall not be deemed to be a
thirdparty beneficiary of this provision.
C. The provisions of this Article 44 shall survive the expiration or
prior termination of this Lease.
45. Partnership Tenant
If Tenant is a partnership, a limited liability partnership, or a
professional corporation (or is comprised of two (2) or more persons,
individually or as co-partners of a partnership or a limited liability
partnership, or shareholders of a professional corporation) or if Tenant's
interest in this Lease shall be assigned to a partnership, a limited liability
partnership, or a professional corporation (or to two (2) or more persons,
individually or as co-partners of a partnership or a limited liability
partnership, or shareholders of a professional corporation) pursuant to Article
46 hereof (any such partnership, limited liability partnership, professional
corporation and such persons are referred to in this Article 45 as "Partnership
Tenant"), the following provisions shall apply to such Partnership Tenant: (a)
the liability of each of the parties comprising Partnership Tenant shall be
joint and several; (b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by (x) any written instrument
which may hereafter be executed by Partnership Tenant or any successor entity,
changing, modifying, extending or discharging this Lease, in whole or in part,
or surrendering all or any part of the Demised Premises to owner, and (y) any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of such parties shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners or shareholders, as the case may be, all of such new
partners or shareholders, as the case may be, shall, by their admission to
Partnership Tenant, be deemed to have assumed joint and several liability for
the performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; (e) Partnership Tenant shall give
prompt notice to Owner of the admission of any such new partners or
shareholders, as the case may be, and upon demand of Owner, shall cause each
such new partner or shareholder, as the case may be, to execute and deliver to
Owner an agreement in form satisfactory to Owner, wherein each such new partner
or shareholder, as the case may be, shall assume joint and several liability for
the observance and performance of all the terms, covenants and conditions of
this Lease on Tenant's
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part to be observed and performed (but neither owner's failure to request any
such agreement nor the failure of any such new partner or shareholder, as the
case may be, to execute or deliver any such agreement to Owner shall vitiate the
provisions of clause (d) of this Article 45), and (f) the liability of each of
the parties comprising the Partnership Tenant, including any new partner or
shareholder admitted to the Partnership Tenant, shall be continuing and shall
not be affected, modified or diminished by reason of (x) any withdrawal or
termination of any such party's interest in the Partnership Tenant or (y) any
transfer or disposition of any shares of stock of the Partnership Tenant.
46. Assignment and Subletting
A. 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 sublet,
underlet, or suffer or permit the Demised Premises or any part thereof to be
used by others, without the prior written consent of owner in each instance,
except as expressly hereinafter provided. If this Lease be assigned, whether or
not in violation of the provisions of this Lease, Owner may collect rent from
the assignee. If the Demised Premises be sublet or be used or occupied by
anybody other than Tenant, whether or not in violation of this Lease, Owner may,
after default by Tenant and expiration of Tenant's time to cure such default, if
any, collect rent from the undertenant or occupant. In either event, owner may
apply the net amount collected to the rents herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
any of the provisions of this Article 46, or the acceptance of the assignee,
undertenant or occupant as a tenant, or a release of Tenant from the further
performance by Tenant of Tenant's obligations under this Lease. The consent by
Owner to an assignment, mortgaging, subletting, underletting or use or occupancy
by others shall not in any way be considered to relieve Tenant from obtaining
the express written consent of Owner to any other or further assignment,
mortgaging, subletting, underletting .or use or occupancy by others not
expressly permitted by this Article 46. References in this Lease to use or
occupancy by others, that is anyone other than Tenant, shall not be construed as
limited to subtenants and those claiming under or through subtenants, but as
including also licensees and others claiming under or through Tenant,
immediately or remotely.
B. (1) Tenant may, upon prior notice to Owner, but without Owner's
prior written consent, assign this Lease for the use set forth in Article 2
hereof to a corporation or other business entity (herein sometimes called a
"successor corporation") into or with which Tenant shall be merged or
consolidated, or to which substantially all of Tenant's assets may be
transferred, provided that the successor corporation shall (i) have effectively
assumed substantially all of Tenant's obligations and liabilities, including all
obligations under this Lease, by operation of law or appropriate instruments of
merger, consolidation or transfer and (ii) be of a character and be engaged in a
business which shall be in keeping with the standards in such respects of the
tenancies then existing in the Building, and (iii) have a net worth determined
by generally accepted accounting principles, consistently applied, equal to or
greater than Tenant's net worth immediately preceding such transfer. In case of
an assignment by merger or consolidation, a true copy of the instrument of
merger or consolidation containing the successor corporations's assumption of
Tenant's obligations and liabilities, effectively assuming Tenant's obligations
and liabilities under this Lease, shall be acceptable to Owner in lieu of the
agreement mentioned in the first sentence of Article 46H hereof.
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(2) Tenant nay, upon prior notice to Owner, but without
Owner's prior written consent, sublet any portion of the Demised Premises for
the use set forth in Article 2 hereof to a corporation or other business entity
(herein called a "related corporation") which shall control, be controlled by or
be under common control with, Tenant provided (i) Tenant shall continue to
occupy at least twenty five percent (25%) of the rentable area of the Demised
Premises, (ii) Tenant shall comply with the provisions of Article 46F hereof,
and (iii) such subtenant shall continue to be a related corporation of Tenant
and its character and manner of use of the Demised Premises shall comply with
the standard in such respects of the other tenancies in the Building and the
provisions of this Lease. Any related corporation may use and occupy a portion
of the Demised Premises for any of the purposes permitted by this Lease, subject
to compliance with Tenant's obligations under this Lease, provided Tenant shall
notify Owner ten (10) days prior to the commencement of such use of (i) the name
of the related corporation, (ii) the manner in which the related corporation is
related to Tenant, and (iii) the period of time during which the related
corporation will use the Demised Premises; however such use shall not be deemed
to vest in any such related corporation any right or interest in this Lease or
the Demised Premises. As used herein in defining a related corporation, control
shall be deemed established by ownership of over fifty percent (50%) of the
stock or other voting interest of the controlled or controlling corporation or
other business entity.
(3) Notwithstanding anything to the contrary contained in this
Lease, if Tenant is a partnership, the admission of new partners, the
withdrawal, retirement, death, incompetency or bankruptcy of any partner, or the
reallocation of partnership interests among the partners shall not constitute an
assignment of this Lease, provided the principal purpose of any of the foregoing
is not to circumvent the restrictions on assignment set forth in the provisions
of this Article 46. The reorganization of Tenant into a professional corporation
if Tenant is a partnership, or the reorganization of Tenant from a professional
corporation into a partnership, shall not constitute an assignment of this
Lease, provided that immediately following such reorganization, the shareholders
of Tenant shall be the same as the partners of Tenant existing immediately prior
to such reorganization, or the partners of Tenant shall be the same as the
shareholders of Tenant existing immediately prior to such reorganization, as the
case may be. If Tenant shall become a professional corporation, each individual
shareholder in Tenant and each attorney-employee of a professional corporation
which is a shareholder in Tenant shall have the same personal liability as such
individual or attorney-employee would have under this Lease if Tenant were a
partnership and such individual or attorney-employee were a partner in Tenant.
If any individual partner in Tenant is or becomes an attorney-employee of a
professional corporation, such individual shall have the same personal liability
under this Lease as such individual would have if he and not the professional
corporation were a partner of Tenant.
C. If Tenant shall desire to assign this Lease or to sublet all or any
portion of the Demised Premises to anyone other than a related or successor
corporation, for the use set forth in Article 2 hereof, Tenant shall submit to
Owner a written request ("Tenant's Notice") for Owner'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 description identifying the space to be sublet and Tenant's
improvements included therein; (iii)
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the basic terms and conditions, including the effective date, of the proposed
assignment or subletting; (iv) the nature and character of the business of the
proposed assignee or subtenant and of its proposed use of the Demised Premises;
and (v) current financial information and any other information Owner may
reasonably request with respect to the proposed assignee or subtenant.
D. If Owner shall not exercise any of its options pursuant to Article
47 hereof, Owner shall not unreasonably withhold its consent to the proposed
assignment or subletting referred to in Tenant's Notice given pursuant to
Article 46 hereof provided that the following further conditions shall be
fulfilled:
(1) The Demised Premises shall not have been listed or
otherwise publicly advertised for assignment or subletting, without Owner's
prior written consent, at a rental rate less than the rate of Fixed Rent and
Escalation Rent for which leases of comparable space in the Building or in
comparable buildings are then being made.
(2) Tenant shall not then be in default hereunder beyond any
applicable notice or cure period.
(3) The proposed assignee or subtenant shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Demised Premises in accordance with Articles 2 and 37 hereof and in a manner in
keeping with the standards in such respect of the other tenancies in the
Building and the proposed assignee or subtenant shall not then be (i) a tenant,
occupant or prospective tenant of any space in the Building other than of space
included in the Demised Premises, or (ii) a prospective tenant with whom Owner
shall have been negotiating for the leasing of space in the Building.
E. Except for any subletting by Tenant to Owner or its designee
pursuant to the provisions of Article 47, every subletting hereunder shall be
subject to the following further conditions:
(1) The subletting shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions contained in this Lease.
Notwithstanding any such subletting to Owner or any such subletting to any other
subtenant and/or acceptance of Fixed Rent, Escalation Rent or additional rent by
Owner from any subtenant, Tenant shall and will remain fully liable for the
payment of the Fixed Rent, Escalation Rent and additional rent due and to become
due hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting, no other and
further subletting of the Demised Premises by Tenant or any person claiming
through or under Tenant shall or will be made except upon compliance with and
subject to the provisions of this Article 46. If Owner shall decline to give its
consent to any proposed assignment or sublease, or if Owner shall exercise
either of its options under Article 47 hereof, Tenant shall indemnify, defend
and hold harmless Owner against and from any and all loss, liability, damages,
costs, and expenses (including reasonable attorneys' fees) resulting from any
claims that may be made against Owner by the proposed assignee or sublessee or
by any brokers or other persons claiming a commission or similar compensation
in connection with the proposed assignment or sublease.
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(2) No subletting shall end later than one (1) day before the
Fixed Expiration Date or shall be for a term of less than two (2) years unless
there is less than two (2) years then remaining in the Term, in which event the
subletting shall be for a term ending not more than thirty (30) days prior to
the Fixed Expiration Date.
(3) The subletting is subject to the express condition, and by
accepting a sublease hereunder the subtenant shall be conclusively deemed to
have agreed, that if this Lease should be terminated prior to the Fixed
Expiration Date or if Owner should succeed to Tenant's estate in the Demised
Premises, then at Owner's election the subtenant shall attorn to and recognize
Owner as the subtenant's landlord under the sublease and the subtenant shall
promptly execute and deliver any instrument Owner may reasonably request to
evidence such attornment, except that Owner shall not be:
(a) liable for any act or omission of Tenant under
such sublease, or
(b) subject to any defense or offsets which such
subtenant may have against Tenant, or
(c) bound by any previous payment which such
subtenant may have made to Tenant more than thirty (30) days in advance of the
date upon which such payment was due, unless previously approved by Owner, or
(d) bound by any obligation to make any payment to or
on behalf of such subtenant, or
(e) bound by any obligation to perform any work or to
make improvements to the Demised Premises, or portion thereof demised by such
sublease, or
(f) bound by any amendment or modification of such
sublease made without its consent, or
(g) bound to return such subtenant's security
deposit, if any, until such deposit has come into its actual possession and such
subtenant would be entitled to such security deposit pursuant to the terms of
such sublease.
(4) The sublease shall contain, conspicuously set forth
therein, a notice to the subtenant, in compliance with the terms, conditions and
provisions of Section 25-322 of Chapter 3 of Title 25 of the Administrative Code
of the City of New York, that the subtenant must obtain a permit from the
Landmarks Preservation Commission before commencing any exterior or interior
work on the Building, as may be permitted pursuant to the terms and conditions
of the sublease and this Lease, except for ordinary repair and maintenance as
that term is defined in Subdivision r of Section 25-302 of said Chapter 3.
F. Tenant shall furnish Owner with a counterpart (which may be a
conformed or reproduced copy) of each sublease or assignment made hereunder
within ten (10) days after the date of its execution. Tenant shall remain fully
liable for the performance of all of Tenant's obligations hereunder
notwithstanding any subletting provided for herein, and without limiting the
generality of the foregoing, shall remain fully responsible and liable to Owner
for all acts and omissions of any subtenant or anyone claiming under or
through any subtenant which shall be in violation of any of the obligations of
this Lease and any such violation shall be deemed to be a violation by Tenant.
Tenant
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shall pay Owner on demand any expense which Owner may reasonably be required to
incur in acting upon any request for consent to assignment or subletting
pursuant to this Article 46.
G. Notwithstanding any assignment and assumption by the assignee of the
obligations of Tenant hereunder, Tenant herein named, and each immediate or
remote successor in interest of Tenant herein named, shall remain liable jointly
and severally (as a primary obligor) with its assignee and all subsequent
assignees for the performance of Tenant's obligations hereunder, and, without
limiting the generality of the foregoing, shall remain fully and directly
responsible and liable to Owner for all acts and omissions on the part of any
assignee subsequent to it in violation of any of the obligations of this Lease.
H. Notwithstanding anything to the contrary hereinabove set forth, no
assignment of this Lease shall be binding upon, Owner unless the assignee shall
execute and deliver to Owner an agreement, in recordable form, whereby such
assignee agrees unconditionally to be personally bound by and to perform all of
the obligations of Tenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this Article 46 shall continue
to be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement in recordable form shall not release the assignee from its liability
for the obligations of Tenant hereunder assumed by acceptance of the assignment
of this Lease.
I. (1) If Tenant shall receive any consideration from its assignee for
or in connection with the assignment of this Lease or from the sale or use of
Tenant's trade fixtures, moveable office furniture and equipment or Tenant's
interest in any fixtures, improvements or other installations that have been
incorporated into the Demised Premises in accordance with Articles 3 and 37,
other than from a successor corporation or a related corporation, then, Tenant
shall account to Owner therefor and shall pay over to Owner fifty (50%) percent
of such consideration as calculated pursuant to Article 461(3) hereof, after
deducting Tenant's reasonable expenses for attorneys' fees, brokers' fees and
advertising fees paid to unrelated third parties in connection with such
assignment, for which expenses Tenant shall furnish to Owner true and complete
copies of paid bills and invoices therefor evidencing such expenditures by
Tenant.
(2) If Tenant shall receive any rents and/or consideration from its
subtenant, other than from a related corporation, which for any period shall
exceed the per square foot rates of the Fixed Rent and the Escalation Rent
payable by Tenant under this Lease for the same period, or if Tenant shall
receive from its subtenant any consideration for the sale or use of Tenant's
trade fixtures, moveable office furniture and equipment or Tenant's right to use
the same, then, in each instance Tenant shall account to Owner therefor and
shall pay over to Owner fifty (50%) percent of such rents and/or other
consideration as calculated pursuant to Article 461(3) hereof, after deducting
Tenant's reasonable expenses for attorneys' fees, brokers' fees and advertising
fees paid to unrelated third parties in connection with such subletting, for
which expenses Tenant shall furnish to Owner true and complete copies of paid
bills and invoices therefor evidencing such expenditures by Tenant.
(3) If Tenant shall receive any consideration from any subtentant
or assignee from the sale or use of Tenant's trade fixtures, moveable office
furniture and equipment, Tenant shall not be required to pay to Owner any part
of such portion of the
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consideration therefor which equals the reasonable value of such trade fixtures,
moveable office furniture and equipment.
(4) Any transfer by operation of law or otherwise, of Tenant's
interest in this Lease or of any subtenant's interest in a sublease hereunder,
or, unless Tenant or the subtenant is an entity the securities of which are
registered under appropriate statutory authority and listed and traded on a
national exchange, of a fifty percent (50%) or greater interest in Tenant, or in
a subtenant hereunder (whether stock, partnership interest or otherwise), in a
single transaction or a related series of transactions, shall be deemed an
assignment of this Lease within the meaning of this Article 46 or an assignment
of the sublease within the meaning of Article 46E(l) as the case may be.
47. Leaseback By Owner
A. (1) If Tenant shall desire to assign this Lease or to sublet all or
any portion of the Demised Premises to anyone other than a related or a
successor corporation, as more particularly set forth in Article 46 hereof,
Tenant shall submit a Tenant's Notice to Owner. Tenant's Notice shall be deemed
an offer from Tenant to Owner whereby Owner (or Owner's designee) may, at its
option, (i) sublease such space (the "Leaseback Space") from Tenant upon the
terms and conditions hereinafter set forth (if the proposed transaction is a
sublease of all or a portion of the Demised Premises), or (ii) terminate this
Lease (if the proposed transaction is an assignment or a sublease of all or
substantially all of the Demised Premises). Said options may be exercised by
Owner by notice to Tenant at any time within forty-five (45) days after receipt
of Tenant's Notice to Owner; and during such forty-five (45) day period Tenant
shall not assign this Lease nor sublet such space to any person.
(2) If Owner exercises its option to terminate this Lease in
the case where Tenant desires either to assign this Lease or sublet all or
substantially all of the Demised Premises, then, this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the Fixed Rent and additional rent due hereunder shall be
paid and apportioned to such date.
(3) If Owner exercises its option to terminate this Lease
pursuant to Article 47A(l), Owner shall be free to and shall have no liability
to Tenant if Owner should lease the Demised Premises (or any part thereof) to
Tenant's prospective assignee or subtenant.
(4) If Owner exercises its option to sublet the Leaseback
Space, the rent payable under such sublease by Owner or its designee (as
subtenant) shall be at a rate equal to the lesser of (i) the rental rate per
rentable square foot of rent and additional rent then payable pursuant to this
Lease, and (ii) the rental rate set forth in the proposed sublease, and shall be
for the same term as that of the proposed subletting, and such sublease:
(i) shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease except
such as are irrelevant or inapplicable and except as otherwise expressly set
forth to the contrary in this Article 47;
(ii) shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Article 47;
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(iii) shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the space covered by such sublease or any part
or parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease, and if the proposed sublease
will result in all or substantially all of the Demised Premises being sublet,
grant Owner or its designee the option to extend the term of such sublease for
the balance of the Term less one (1) day;
(iv) shall provide that any assignee or further
subtenant of Owner or its designee, may, at the election of Owner, be permitted
to make alterations, decorations and installations in such space or any part
thereof and shall also provide in substance that any such alterations,
decorations and installations in such space therein made by any assignee or
subtenant of Owner or its designee may be removed, in whole or in part, by such
assignee or subtenant, at its option, prior to or upon the expiration or other
termination of such sublease provided that such assignee or subtenant, at its
expense, shall repair any damage and injury to such space so sublet caused by
such removal; and
(v) shall also provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties; (ii)
any assignment or subletting by Owner or its designee (as the subtenant) may be
for any purpose or purposes that Owner, in Owner's uncontrolled discretion,
shall deem suitable or appropriate, (iii) Tenant, at Tenant's expense, shall and
will at all times provide and permit reasonably appropriate means of ingress to
and egress from such space so sublet by Tenant to Owner or its designee; (iv)
Owner, at Tenant's expense, may make such alterations as may be required or
deemed necessary by Owner to physically separate the subleased space from the
balance of the Demised Premises and to comply with any legal or insurance
requirements relating to such sublease in its then existing condition, subject
to the obligations of the sublessee to make such repairs thereto as may be
necessary to preserve the premises demised by such sublease in good order and
condition.
B. If Owner exercises its option to sublet the Leaseback Space, Owner
shall indemnify and save Tenant harmless from all obligations under this Lease
as to the Leaseback Space during the term of the sublease of the Leaseback
Space; provided, however, the foregoing indemnity shall not apply to Tenant's
obligation to pay Fixed Rent, additional rent and other items of Rental coming
due hereunder.
C. If Owner exercises its option to sublet the Leaseback Space, the use
of the Demised Premises permitted under such subletting shall be any lawful use.
D. Performance by Owner, or its designee, under a sublease of the
Leaseback Space shall be deemed performance by Tenant of any similar obligation
under this Lease and any default under any such sublease shall not give rise to
a default under a similar obligation contained in this Lease nor shall Tenant be
liable for any default under this Lease or deemed to be in default hereunder if
such default is occasioned by or arises from any act or omission of the tenant
under such sublease or is occasioned by or arises from any act or omission of
any occupant holding under or pursuant to any such sublease.
E. Tenant shall have no obligation, at the expiration or earlier
termination of the Term, to remove any alteration,
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installation or improvement made in the Leaseback Space by Owner (or its
designee).
F. If Owner is unable to give Tenant possession of the Leaseback Space
at the expiration of the term of the sublease by reason of the holding over or
retention of possession of any tenant or other occupant, then (w) Owner shall
continue to pay all charges previously payable, and comply with all other
obligations, under the sublease until the date upon which Owner shall give
Tenant possession of the Leaseback Space free of occupancies, (x) neither the
Expiration Date nor the validity of this Lease shall be affected, (y) Tenant
waives any rights under Section 223-a of the Real Property Law of New York, or
any successor statute of similar import, to rescind this Lease and further
waives the right to recover any damages from Owner which may result from the
failure of Owner to deliver possession of the Leaseback Space at the end of the
term of the sublease, and (z) Owner, at Owner's expense, shall use its
reasonable efforts to deliver possession of the Leaseback Space to Tenant and in
connection therewith, if necessary, shall institute and diligently and in good
faith prosecute holdover and any other appropriate proceedings against the
occupant of such Leaseback Space; if Owner fails to prosecute such proceedings
in such manner and such failure continues after reasonable notice thereof by
Tenant, Tenant may prosecute such proceedings in Owner's name and at Owner's
expense.
G. In the event that (i) Owner fails to exercise either of its options
under this Article 47 and consents to a proposed assignment or sublease pursuant
to Article 46, and (ii) Tenant fails to execute and deliver the assignment or
sublease to which Owner consented within ninety (90) days after the giving of
such consent, then, Tenant shall again comply with all of the provisions and
conditions of Articles 46 and 47 before assigning this Lease or subletting all
or any portion of the Demised Premises.
48. Rent Control
If at the commencement of, or at any time(s) during the Term, the
rent(s) reserved in this Lease shall not be fully collectible for reason of any
Federal, State, County or City law, proclamation, order or regulation, or
direction of a public officer or body pursuant to law, Tenant shall enter into
such agreement(s) and take such other steps (without additional expense to
Tenant) as Owner may request and may be legally permissible to permit Owner to
collect the maximum rents which may from time to time during the continuance of
such legal rent restriction be legally permissible (and not in excess of the
amounts reserved thereof under this Lease). Upon the termination of such legal
rent restriction prior to the expiration of the Term, (a) the rents shall become
and thereafter be payable hereunder in accordance with the amounts reserved in
this Lease for the periods following such termination and (b) Tenant shall pay
to Owner, if legally permissible, an amount equal to (i) the rents which would
have been paid pursuant to this Lease but for such legal rent restriction less
(ii) the rents paid by Tenant to Owner during the period(s) such legal rent
restriction was in effect. Any security deposited by Tenant may be retained by
Owner for one (1) year after such termination of this Lease, to secure
collection of any amount Owner may be entitled to receive pursuant to clause
(b) above.
49. Insurance
A. Any Building employee to whom any property shall be entrusted by or
on behalf of Tenant shall be deemed to be acting as Tenant's agent with respect
to such property and neither Owner
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nor its agents shall be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, nor for the loss of or damage to any
property of Tenant by theft or otherwise. Neither Owner nor its agents shall be
liable for any injury or damage to persons or property, or interruption of
Tenant's business, resulting from fire or other casualty; nor shall Owner or its
agents be liable for any such damage caused by other tenants or persons in the
Building or caused by construction of any private, public or quasi-public work;
nor shall Owner be liable for any latent defect in the Demised Premises or in
the Building. Nothing in the foregoing sentence shall affect any right of Owner
to the indemnity from Tenant to which owner may be entitled under Article 41
hereof in order to recoup for payments made to compensate for losses of third
parties.
B. Tenant shall at all times during the Term keep Tenant's fixtures,
furnishings, equipment and other property and all alterations, installations,
additions, and improvements made by Tenant in the Demised Premises now or
hereafter included in the Demised Premises insured for damages by fire and
lighting, vandalism, malicious mischief and all other risks and hazards
comprehended by the full "extended coverage" endorsements, and against such
other hazards and risks as Owner may from time to time reasonably designate, for
the "full replacement cost" thereof. Such full replacement cost shall be
determined from time to time, but not more frequently than once in any twenty-
four (24) calendar month period, at the request of Owner or any Lessors or
Mortgagees by an appraiser, engineer, architect or contractor designated by
Owner or such Lessors or Mortgagees.
C. Tenant shall obtain and keep in full force and effect (a) a policy
of comprehensive general public liability and property damage insurance under
which Tenant is named as the insured, and (b) an Additional Insured Endorsement
Form GI 20 11 (or the insurer's equivalent thereof) under which Owner, Owner's
managing agent and any Lessors and any Mortgagees (whose names shall have been
furnished to Tenant) are named as additional insureds with respect to the
ownership, maintenance or use of the Demised Premises, and under which the
insurer will insure Tenant's liability under the indemnity provisions of Article
41 hereof. Tenant is hereby notified that Owner's current managing agent is
Colliers ABR, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, that the
current Lessor of the ground lease affecting the Real Property is C.B. Land
Associates, c/o Bloomingdale Properties, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and that the current holder of the Mortgage on Owner's leasehold
interest in the Real Property is Orix Real Estate Capital Markets, LLC, As
Master Servicer on behalf of Norwest Bank Minnesota, NA, as Trustee For the
Registered Holders of DLJ Commercial Mortgage Pass Through Certificates, Series
1998 CF2, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000. Such policy shall
contain a provision that no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained and
that the policy shall be non-cancelable with respect to Owner, Owner's managing
agent and such Lessors and Mortgagees unless at least thirty (30) days' prior
written notice shall have been given to Owner by certified mail, return receipt
requested, which notice shall contain the policy number and the names of the
insured and additional insureds. A certificate of such insurance complying with
the provisions hereof in all respects shall be delivered to Owner. The minimum
limits of liability shall be a combined single limit with respect to each
occurrence in an amount of not less than $1,000,000 for injury (or death) and
damage to property and umbrella coverage in an amount of not less than
$3,000,000 for injury (or death) or damage to property. All insurance required
to be carried by Tenant pursuant to the terms of this Lease shall
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be effected under valid and enforceable policies issued by reputable and
independent insurers admitted to do business in the State of New York, and rated
in Best's Insurance Guide, or any successor thereto (or if there be none, an
organization having a national reputation) as having a general policyholder
rating of "A" and a financial rating of at least "13."
D. Each party hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance policy required
hereunder to be maintained by such party pursuant to which the insurance
companies waive subrogation or consent to a waiver of right of recovery and
having obtained such clauses or endorsements of waiver of subrogation or consent
to a waiver of right of recovery, will not make any claim against or seek to
recover from the other for any loss or damage to its property or the property of
others resulting from fire or other hazards covered by such fire and extended
coverage insurance, provided, however, that the release, discharge, exoneration
and covenant not to xxx herein contained shall be limited by and coextensive
with the terms and provisions of the waiver of subrogation clause or
endorsements or clauses or endorsements consenting to a waiver of right of
recovery. If the payment of an additional premium is required for the inclusion
of such waiver of subrogation provision, each party shall advise the other of
the amount of any such additional premiums and the other party at its own
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium, the first party shall not be
required to obtain such waiver of subrogation provision. If either party shall
be unable to obtain the inclusion of such clause even with the payment of an
additional premium, then such party shall attempt to name the other party as an
additional insured (but not a loss payee) under the policy. If the payment of an
additional premium is required for naming the other party as an additional
insured (but not a loss payee), each party shall advise the other of the amount
of any such additional premium and the other party at its own election may, but
shall not be obligated to, pay the same. If such other party shall not elect to
pay such additional premium or if it shall not be possible to have the other
party named as an additional insured (but not loss payee), even with the payment
of an additional premium, then (in either event) such party shall so notify the
first party and the first party's agreement to name the other party as an
additional insured shall be satisfied. Tenant acknowledges that Owner shall not
carry insurance on and shall not be responsible for damage to, any alterations,
improvements, installations or additions made by Tenant or any of Tenant's
fixtures, furnishings, equipment or other property or effects, and that Owner
shall not carry insurance against, or be responsible for any loss suffered by
Tenant due to interruption of Tenant's business.
50. Services
A. Commencing on the date Tenant shall occupy the Demised Premises for
the conduct of its business, there shall be one (1) freight elevator serving the
Demised Premises and the entire Building on call on a "first come, first served"
basis on Business Days from 8:00 A.M. to 5:00 P.M., and on a reservation, "first
come, first served" basis from 5:00 P.M. to 8:00 A.M. Business Days and at any
time on days other than Business Days. Tenant shall pay Owner Owner's standard
hourly charges in effect from time to time for Tenant's use of the freight
elevator from 5:00 P.M. to 8:00 A.M. on Business Days and at any time on days
other than Business Days.
B. (1) Owner reserves the right to suspend operation of the heating
system when Owner in its judgment deems it necessary
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by reason of accident or emergency, or of the making of necessary repairs,
additions, replacements, alterations or improvements, and such suspension may
continue until such time as said repairs, additions, replacements, alterations
or improvements have been completed, and Tenant agrees that Owner shall not
thereby be responsible in any way to Tenant or be subject to any claim by Tenant
therefor and that the same shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any compensation or to any
abatement or diminution of Rental, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise. Tenant further agrees that Owner shall have no
responsibility to Tenant or liability for failure to operate said heating system
when such operation by Owner is prevented by Unavoidable Delays or by failure of
equipment or electric current, steam and/or water or other suitable power
supply. Owner agrees, however, that it will use reasonable efforts to remove or
eliminate the cause of any such failure as promptly as possible.
(2) (a) Owner reserves the right to suspend the operation of
any air-conditioning system when Owner in its judgment deems it necessary by
reason of accident or emergency or of the making of necessary repairs,
additions, replacements, alterations or improvements, and such suspension may
continue until such time as said repairs, additions, replacements, alterations
or improvements have been completed, and Tenant agrees that Owner shall not
thereby be responsible in any way to Tenant or be subject to any claim by Tenant
therefor and that the same shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any compensation or to any
abatement or diminution of Rental, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise. Tenant further agrees that Owner shall have no
responsibility to Tenant or liability for failure to operate said
air-conditioning system when such operation by Owner is prevented by Unavoidable
Delays or by failure of equipment or electric current, steam and/or water or
other suitable power supply. Owner agrees, however, that it will use reasonable
efforts to remove or eliminate the cause of any such failure as promptly as
possible.
(b) Tenant will cause all windows in the Demised Premises
to be kept closed at all times when the aforesaid air-conditioning system is in
operation. Tenant shall draw and close the draperies or blinds for the windows
of the Demised Premises whenever the air-conditioning system is in operation and
the position of the sun so requires and will abide by all rules and regulations
which Owner may from time to time find necessary to promulgate for the proper
and efficient operation thereof.
(3) Owner, throughout the Term, shall have free access to any
and all mechanical installations of Owner, including but not limited to heating,
air-cooling, fan, ventilating and machine rooms and electrical closets; Tenant
shall not construct partitions or other obstructions which may interfere with
Owner's free access thereto, or interfere with the moving of Owner's equipment
to and from the enclosures containing said installations. Neither Tenant, nor
its agents, employees or contractors shall at any time enter the said
enclosures or tamper with, adjust or touch or otherwise in any manner affect
said mechanical installations.
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C. 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 Owner, and to be
exterminated against infestation by vermin, rodents or roaches regularly and, in
addition, whenever there shall be evidence of any infestation. Tenant shall not
permit any person to enter the Demised Premises or the Building for the purpose
of providing such extermination services, other than persons first approved by
Owner, such approval not to be withheld unreasonably.
D. Tenant shall pay the sewer rent, charge or any other tax, rent, levy
or charge which now or hereafter is assessed, imposed or shall become a lien
upon the Demised Premises or the realty of which they are a part pursuant to any
Requirement made or issued in connection with any metered use, consumption,
maintenance or supply of water, water system, or sewage or sewage connection or
system. The xxxx rendered by Owner for the above shall be based upon Tenant's
consumption and shall be payable by Tenant as additional rent within five (5)
days of rendition.
51. Condition of the Demised Premises
Tenant acknowledges that Owner has made and makes no representation or
warranty of any kind, express or implied, to Tenant with respect to the
condition of the Demised Premises. Tenant represents and warrants that it has
inspected and is fully familiar with the condition of the Demised Premises,
agrees to accept the Demised Premises in the condition existing on the date
hereof, and agrees that, notwithstanding anything to the contrary contained in
this Lease, Owner shall have no obligation to alter, improve, decorate or
otherwise prepare the Demised Premises for Tenant's initial occupancy.
52. Commencement Date and Fixed Expiration Date
The Term of this Lease shall (i) commence on the date (the
"Commencement Date") on which this Lease has been fully executed and
unconditionally delivered by the parties hereto and possession of the Demised
Premises, vacant, in broom-clean condition, has been delivered to Tenant (ii)
end on the date (the "Fixed Expiration Date") which is (a) seven (7) years and
two (2) months from the Commencement Date if the Commencement Date is the first
day of the month or (b) the last day of the month in which the end of the period
of seven (7) years and two (2) months from the Commencement Date shall occur if
the Commencement Date is not the first day of the month (unless such Term shall
sooner terminate pursuant to the terms of this Lease or by law). If the
Commencement Date shall occur on a date other than the first (1st) day of any
calendar month, on the Commencement Date Tenant shall pay to owner a sum equal
to Five Hundred Eighty-Three and 84/100 ($583.84) Dollars, multiplied by the
number of calendar days in the month from the Commencement Date to the last day
of the month in which the Commencement Date shall occur, both dates inclusive,
as Fixed Rent for such period. Promptly following the Commencement Date, Owner
and Tenant shall enter into an agreement confirming the Commencement Date and
the Fixed Expiration Date, provided, however, failure to execute and deliver
such agreement shall not affect the validity of the Commencement Date or the
Fixed Expiration Date as set forth herein.
53. Fixed Rent
A. Tenant shall pay Fixed Rent (exclusive of the Electricity Inclusion
Factor), at times and in the manner provided in this Lease, as follows:
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(i) Two Hundred Ten Thousand, One Hundred Eighty-Four and
00/100 ($210,184.00) Dollars per annum, payable in equal monthly installments of
Seventeen Thousand, Five Hundred Fifteen and 33/100 ($17,515.33) Dollars, for
the period commencing on the Commencement Date and ending on the day immediately
preceding the third (3rd) anniversary of the Commencement Date, both dates
inclusive, subject to the Fixed Rent credit referred to in Article 53B hereof;
and
(ii) Two Hundred Twenty-Four Thousand, Eight Hundred
Forty-Eight and 00/100 ($224,848.00) Dollars per annum, payable in equal monthly
installments of Eighteen Thousand, Seven Hundred Thirty-Seven and 33/100
($18,737.33) Dollars, for the period commencing on the third (3rd) anniversary
of the Commencement Date and ending on the Fixed Expiration Date.
B. Tenant shall be entitled to a credit against the Fixed Rent in an
aggregate amount of Thirty-Five Thousand, Thirty and 68/100 ($35,030.68) Dollars
to be applied in four (4) equal monthly installments of Eight Thousand, Seven
Hundred Fifty-Seven and 67/100 ($8,757.67) Dollars each against the Fixed Rent
due for each of the first four (4) full months following the Commencement Date,
provided that no default hereunder beyond any applicable grace or cure period
shall have occurred and be continuing on the dates upon which the foregoing
credit is to be applied. Notwithstanding anything to the contrary contained in
the immediately preceding sentence, should Tenant at any time during the Term
default under this Lease beyond any applicable grace or cure period, Tenant
shall promptly pay to Owner, upon Owner's demand, as additional rent hereunder,
the entire aggregate amount of Fixed Rent which would have otherwise been due
and payable hereunder but for said credit against the Fixed Rent.
54. Owner's Contribution to Tenant's Initial Alterations
A. Promptly after the date hereof Tenant shall deliver to Owner, for
Owner's approval, detailed working drawings and specifications for the work to
be performed by Tenant within the Demised Premises to prepare the Demised
Premises for Tenant's occupancy (hereinafter referred to as the "Tenant's
Initial Alterations"). Tenant's Initial Alterations shall be performed subject
to, and in accordance with, all applicable provisions of this Lease, including,
without limitations, the provisions of Articles 3 and 37C(l) hereof. Owner shall
contribute, pursuant to the provisions of this Article 54, an amount not to
exceed Twenty-Four Thousand, Four Hundred Forty and 00/100 ($24,440.00) Dollars
(the "Tenant Fund") towards the "hard costs" of Tenant's Initial Alterations.
Notwithstanding anything to the contrary contained herein, Tenant shall be
solely responsible for any and all costs and expenses of furnishing and
installing Tenant's telephone and computer systems, and any other
telecommunication wiring and equipment, security system, and access system, if
any, and it is expressly understood and agreed that no portion of any cost of
furnishing and installing any such wiring or equipment or system shall be paid
for out of the Tenant Fund. In addition, all "soft costs" in connection with
Tenant's Initial Alterations, including, without limitation, (i) any and all
architectural and engineering fees and expenses incurred in connection with the
preparation and execution of any and all drawings and specifications for
Tenant's Initial Alterations and the review and supervision of the performance
of Tenant's Initial Alterations, (ii) any and all attorneys' fees and
disbursements in connection with the preparation, execution and delivery of
this Lease and the preparation for, and performance of, Tenant's Initial
Alterations, (iii) any and all permit and filing fees and related expenses in
connection with filing all drawings and
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specifications for Tenant's Initial Alterations with the appropriate
Governmental Authorities, and (iv) any and all fees for expediter services
pertaining to obtaining necessary permits and approvals in connection with the
performance of Tenant's Initial Alterations, shall be the sole responsibility of
Tenant, and no portion of any "soft costs" shall be paid for out of the Tenant
Fund.
B. Owner shall disburse a portion of the Tenant Fund to Tenant from
time to time, within thirty (30) days after receipt of the items set forth in
Section 54.C hereof, provided that, on the date of a request and on the date of
disbursement from the Tenant Fund, no event of default hereunder on the part of
Tenant shall have occurred and be continuing. Disbursements from the Tenant
Fund shall not be made more frequently than monthly and shall not exceed the
amounts theretofore paid by Tenant (as certified by the Chief Financial Officer
of Tenant and Tenant's independent, licensed architect) to contractors,
subcontractors and materialmen with respect to the portion of Tenant's Initial
Alterations theretofore completed and for which the disbursements were
requested.
C. Owner's obligation to make disbursements from the Tenant Fund shall
be subject to Owner's receipt of: (a) a request for such disbursement from
Tenant signed by the Chief Financial Officer of Tenant, (b) copies of all
receipts, paid invoices and paid bills for the work completed and materials
furnished in connection with Tenant's Initial Alterations and incorporated in
the Demised Premises and for the prior payment of which Tenant seeks
reimbursement from the requested disbursement, (c) copies of all contracts, work
orders, change orders and other materials relating to the work or materials
which are the subject of the requested disbursement, and (d) a certificate of
Tenant's independent, licensed architect stating, in his opinion, that the
portion of Tenant's Initial Alterations theretofore completed and for which the
disbursement is requested was performed in a good and workmanlike manner and
substantially in accordance with the final detailed plans and specifications for
such Tenant's Initial Alterations, as approved by Owner.
D. In no event shall the aggregate amount paid by Owner to Tenant under
this Article 54 exceed the amount of the Tenant Fund. Upon the completion of
Tenant's Initial Alterations and satisfaction of the conditions set forth in
Section 54.E hereof, any amount of the Tenant Fund which has not been previously
disbursed shall be retained by Owner. Upon the disbursement of the entire Tenant
Fund (or the portion thereof if, upon completion of Tenant's Initial
Alterations, the Tenant Fund is not exhausted), Owner shall have no further
obligation or liability whatsoever to Tenant for further disbursement of any
portion of the Tenant Fund to Tenant. It is expressly understood and agreed that
Tenant shall complete, at its sole cost and expense, Tenant's Initial
Alterations whether or not the Tenant Fund is sufficient to fund such
completion. Any costs to complete Tenant's Initial Alterations in excess of the
Tenant Fund shall be the sole responsibility and obligation of Tenant.
E. Within thirty (30) days after completion of Tenant's Initial
Alterations, Tenant shall deliver to Owner (i) general releases and waivers of
lien from all contractors, subcontractors and materialmen involved in the
performance of Tenant's Initial Alterations and the materials furnished in
connection therewith, (ii) a certificate from Tenant's independent, licensed
architect certifying that Tenant's Initial Alterations have been completed
substantially in accordance with the plans and specifications therefor approve
by Owner, and (iii) a certificate from a duly authorized officer of Tenant
certifying that all contractors,
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subcontractors and materialmen have been paid for Tenant's Initial Alterations
and materials furnished through such date. Notwithstanding the foregoing, Tenant
shall not be required to deliver to Owner any general release or waiver of lien
if Tenant shall be disputing in good faith the payment which would otherwise
entitle Tenant to such release or waiver, provided that Tenant shall keep Owner
advised in a timely fashion of the status of such dispute and the basis therefor
and Tenant shall deliver to Owner the general release or waiver of lien when the
dispute is settled. Nothing contained in this Section 54.E, however, shall
relieve Tenant from complying with the provisions of Articles 3 and 37C(l)
hereof.
F. Within thirty (30) days after the completion of Tenant's Initial
Alterations, Tenant shall deliver to Owner a full set of architectural,
structural, mechanical and electrical drawings and specifications showing the
Tenant's Initial Alterations "as built" by the performance of Tenant's Initial
Alterations.
55. Security Deposit.
A. Tenant shall deposit with Owner, on the execution and delivery of
this Lease by Tenant, a cash security deposit in the sum of Two Hundred
Thirty-Nine Thousand, Five Hundred Twelve and 00/100 ($239,512.00) Dollars
provided for in Article 34 hereof or, at Tenant's option, Tenant shall deposit
with Owner, on the execution and delivery of this Lease by Tenant, or at any
time thereafter during the first six (6) months of the Term of this Lease in
lieu of said cash security theretofore so deposited, a "clean," unconditional,
irrevocable and transferable letter of credit (the "Letter of Credit") in the
same amount as said cash security deposit, satisfactory to Owner, issued by and
drawn on a bank reasonably satisfactory to Owner and which is a member of the
New York Clearing House Association, for the account of Owner, for a term of not
less than twelve (12) months, as security for the faithful performance and
observance by Tenant of the terms, covenants, conditions and provisions of this
Lease, including, without limitation, the surrender of possession of the Demised
Premises to Owner as herein provided. If Tenant shall have elected to deposit
the Letter of Credit with Owner, Tenant shall renew the Letter of Credit, from
time to time, at least sixty (60) days prior to the expiration thereof, and
deliver to Owner a new Letter of Credit, or an endorsement to the Letter of
Credit, and any other evidence reasonably required by Owner that the Letter of
Credit has been renewed for a period of at least one (1) year. Tenant agrees to
continue the Letter of Credit, as renewed from time to time, in effect
throughout the period ending not less than one hundred twenty (120) days after
the Fixed Expiration Date. If Tenant shall fail to renew the Letter of Credit as
aforesaid, Owner may present the Letter of Credit for payment and retain the
proceeds thereof as security in accordance with the provisions of Article 34
hereof in lieu of the Letter of Credit. Furthermore, if a default shall occur
and be continuing, Owner may present the Letter of Credit for payment and apply
or retain the whole or any part of the proceeds thereof (i) for the payment of
any Fixed Rent, Escalation Rent or any other item of Rental as to which Tenant
is in default, (ii) for any sum which Owner may expend or be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including, without limitation, any damage, liability,
or expense (including, without limitation, any damage, liability, or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred or suffered by Owner, and (iii) toward any damages or deficiency
suffered or incurred by Owner in the reletting of the Demised Premises, whether
such damages or deficiency accrue or accrues before or after summary
proceedings or other re-entry by Owner. If Owner applies or
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retains any part of the proceeds of the Letter of Credit, Tenant, upon demand,
shall deposit with Owner a cash security equal to the amount so applied or
retained so that Owner shall have the full security deposit on hand at all times
during the Term, and Owner shall hold said cash security deposit in accordance
with the terms, conditions, and provisions set forth in Article 34 hereof. If
Tenant shall have at all times fully and faithfully complied with all of the
terms, provisions, covenants and conditions of this Lease, the amount of the
Letter of Credit may be reduced to the sum of One Hundred Seventy-Nine Thousand,
Six Hundred Thirty-Four and 00/00 ($179,634.00) Dollars after the first fourteen
(14) full months of the Term of this Lease. If Tenant shall then be in full and
faithful compliance with all of the terms, provisions, covenants and conditions
of this Lease, the Letter of Credit and cash security deposit, if any, shall be
returned to Tenant after the Expiration Date and after the delivery of
possession of the Demised Premises to Owner. In the event of a sale or leasing
of the Real Property or the Building, Owner shall have the right to transfer the
Letter of Credit and cash security deposit, if any, to the vendee or lessee, and
Owner shall thereupon be released by Tenant from all liability for the return of
the Letter of Credit and cash security deposit, if any, and, if the Letter of
Credit is so transferred, Tenant shall cause the bank which issued the Letter of
Credit to issue an amendment of the Letter of Credit, or issue a new Letter of
Credit, naming the vendee or lessee as the beneficiary thereunder. Tenant shall
look solely to the new landlord for the return of the Letter of Credit and cash
security deposit, if any. The provisions hereof shall apply to every transfer or
assignment of the Letter of Credit and cash security deposit, if any, to a new
landlord.
B. All cash security deposited hereunder will be deposited by Owner in
an interest bearing bank account at Apple Bank for Savings located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other branch of such bank or other
bank as Owner shall designate, and all interest which shall be earned by Tenant
on such account shall be accumulated and added to said security deposit as a
part thereof, except that Owner shall be entitled to withdraw from such account
and pay over to itself from time to time, as administration expenses, a sum
equal to one (1%) percent per annum upon the security monies so deposited. Owner
shall not be required to credit Tenant with any interest for any period during
which Owner does not receive any interest on such security deposit.
C. If Tenant shall have deposited the cash security deposit referred to
in Article 34 hereof, instead of the Letter of Credit, and provided that Tenant
at all times shall have fully and faithfully performed and observed all of the
terms, conditions and provisions of this Lease on Tenant's part to be performed
and observed, Owner shall return to Tenant, out of the cash security deposit
referred to in said Article 34, such sum as shall be required to reduce the
amount of such security deposit to One Hundred Seventy-Nine Thousand, Six
Hundred Thirty-Four ($179,634.00) Dollars after the first fourteen (14) full
months of the Term of this Lease.
56. Miscellaneous
A. This Lease is offered for signature by Tenant and it is understood
that this Lease shall not be binding upon Owner unless and until Owner shall
have executed and delivered a fully executed copy of this Lease to Tenant.
B. The obligations of Owner under this Lease shall not be binding upon
Owner named herein after the sale, conveyance, assignment or transfer by such
Owner (or upon any subsequent
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owner after the sale, conveyance, assignment or transfer by such subsequent
owner) of its interest in the Building or the Real Property, as the case may be,
and in the event of any such sale, conveyance, assignment or transfer, Owner
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder to the extent the same have been assumed in
writing by such subsequent owner. Neither the partners (direct or indirect)
comprising Owner or Owner's managing agent, nor the shareholders (nor any of the
partners comprising same), officers, directors, employees or agents of any of
the foregoing (collectively, the "Parties")' shall be liable for the performance
of Owner's obligations under this Lease. Tenant shall look solely to Owner to
enforce Owner's obligations hereunder and shall not seek any damages against any
of the Parties. The liability of Owner for Owner's obligations under this Lease
shall be limited to Owner's interest in the Real Property and Tenant shall not
look to any other property or assets of Owner or the property or assets of any
of the Parties in seeking either to enforce Owner's obligations under this Lease
or to satisfy a judgment for Owner's failure to perform such obligations. Tenant
shall look only to Owner's interest in the Building and the Real Property (or
the proceeds thereof) and, if and to the extent expressly provided for in this
Lease, offset against the rents payable under this Lease, for the satisfaction
of Tenant's remedies for the collection of any judgment (or other judicial
process) requiring the payment of money by Owner in the event of any default by
Owner under this Lease, and no other property or other assets of Owner shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
owner and tenant hereunder or Tenant's use and occupancy of the Demised
Premises.
[Article 56C is intentionally omitted.]
D. Notwithstanding anything contained in this Lease to the contrary,
all amounts payable by Tenant to or on behalf of Owner under this Lease, whether
or not expressly denominated Fixed Rent, Escalation Rent, additional rent or
Rental, shall constitute rent for the purposes of Section 502(b)(7) of the
Bankruptcy Code.
E. Neither this Lease nor a memorandum thereof shall be recorded.
F. (1) Subject to the terms and conditions hereinafter set forth, Owner
shall have the option (the "Relocation Option"), exercisable at any time during
the Term of this Lease, on not less than thirty (30) days' prior written notice
(the "Relocation Notice") to Tenant, to elect to relocate the Demised Premises
to another area of the Building (the "Substitute Premises"), which Relocation
Notice shall include a plan of the Substitute Premises and represent to Tenant
the usable (carpetable) number of square feet of space contained therein. As an
express condition to Owner's exercise of the Relocation Option, Owner
acknowledges and agrees that the Substitute Premises shall:
(a) not be below the twenty-second (22nd) floor of
the Building;
(b) have a reasonably comparable number of windows
and a reasonably comparable view as have the Demised Premises;
(c) be serviced by at least (x) the same number of
passenger elevators, and (y) equivalent heating, ventilating
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and air-conditioning service, as service or as is provided to the Demised
Premises;
(d) have not less than the number of usable
(carpetable) square feet of space as have the Demised Premises; and
(e) have reasonably comparable visibility and access
from the elevator lobby of the floor on which the Substitute Premises are
located as are enjoyed by the Demised Premises.
(2) If, prior to its receipt of the Relocation Notice, Tenant
shall have begun operating in the Demised Premises, Owner shall, at Owner's sole
cost and expense, prior to the "Move Date" (hereinafter defined), fully prepare
the Substitute Premises for Tenant's occupancy in like manner and with the same
or equivalent quality partitioning, paneling, doors, ceilings, and other fixed
leasehold improvements, fixtures, equipment (including, but not limited to,
electrical, telephone and computer lines and connections), lighting, carpeting
and other floor treatments, millwork, window treatments, and all decorative wall
coverings, if any, as are contained in the Demised Premises and thereafter, at
Owner's sole cost and expense, during Tenant's non-business hours, and on not
less than ten (10) days' written notice to Tenant of the actual date (the "Move
Date") on which Tenant is to move from the Demised Premises to the Substitute
Premises, Owner shall move all of Tenant's furniture, fixtures, equipment and
other property from the Demised Premises to the Substitute Premises (or if not
practical to move any of such items, replace such items with items of comparable
quality and utility). Tenant agrees to cooperate with Owner in expediting such
preparation of, and move to, the Substitute Premises, at no expense to Tenant.
(3) From and after the date that Owner relocates Tenant to the
Substitute Premises, this Lease (i) shall no longer apply to the Demised
Premises originally leased hereunder, except with respect to Owner's and
Tenant's obligations to each other which accrued on or prior to the Move Date,
and (ii) shall apply to the Substitute Premises as if the Substitute Premises
had been the space demised under this Lease, and the Substitute Space thereupon
shall be deemed to be the Demised Premises mentioned herein.
G. Notwithstanding anything to the contrary contained herein, if there
is a terrace adjacent to the Demised Premises and whether or not there is an
existing access from the Demised Premises to such terrace, Tenant shall have no
right to use such terrace, or any portion of such terrace, for any purpose
whatsoever. If the floors on which the Demised Premises, or any part thereof, is
located is a multitenanted floor, Owner may, without incurring any liability to
Tenant and without any effect on any of Tenant's obligations under this Lease,
rearrange the space unit divisions of said floor and change the public corridors
on said floor in any manner owner may determine, provided only that the demising
walls of the Demised Premises shall not be changed in any respect and that the
Demised Premises shall have adequate access by public corridor to the
elevators, fire stairs and public toilets serving said floor.
H. Any provisions in this Lease that one party or the other or both
shall do or not do or shall cause or permit or not cause or permit a particular
act, condition or circumstance shall be deemed to mean that such party so
covenants or both parties so covenant, as the case may be. Tenant's obligations
hereunder shall be construed in every instance as conditions as well as
covenants.
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I. All references in this Lease to numbered Articles and lettered
Exhibits are references to Articles of this Lease and Exhibits annexed to (and
thereby made part of) this Lease, as the case may be, unless expressly otherwise
designated in the context.
J. Notwithstanding Tenant's agreement to pay the Fixed Rent in lawful
money which shall be legal tender, Owner shall accept, subject to collection,
and Tenant shall pay all Fixed Rent and additional rent falling due under this
Lease by currently dated, unendorsed check of Tenant, payable to Owner or its
designated agent and drawn on a bank or trust company which is a member of the
New York Clearing House. If Tenant shall default in timely payment of any
Rental, and whether or not such default shall be cured, Owner may, by notice
given to Tenant at any time thereafter, require Tenant to make all further
Rental payments by currently dated, unendorsed certified or official bank check
payable to Owner on a bank or trust company that is a member of the New York
Clearing House.
K. 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.
L. Tenant hereby waives any claim against Owner which Tenant may have
based upon any assertion that Owner has unreasonably withheld or unreasonably
delayed any consent or approval requested by Tenant, and Tenant agrees that its
sole remedy shall be an action or proceeding to enforce any related provision or
for specific performance, injunction or declaratory judgment. In the event of a
determination that such consent or approval has been unreasonably withheld, the
requested consent or approval shall be deemed to have been granted; however,
Owner shall have no liability to Tenant for its refusal or failure to give
consent or approval. Tenant's sole remedy for Owner's unreasonably withholding
or delaying consent or approval shall be as provided in this Article 56L.
M. The Tenant is hereby notified that the Demised Premises are subject
to the jurisdiction of the New York City Landmarks Preservation Commission. In
accordance with Sections 25-305, 25-306, 25-309 and 25-310 of the Administrative
Code of the City of New York and the rules set forth in Title 63 of the Rules of
the City of New York, any demolition, construction, reconstruction, alteration
or minor work as described in such sections and such rules may not be commenced
within or at the Demised Premises without the prior written approval of the New
York City Landmarks Preservation Commission. Tenant is notified that such
demolition, construction, reconstruction, alterations or minor work includes,
but is not limited to, (a) work to the exterior of the Premises involving
windows, signs, awnings, flagpoles, and banners and (b) interior work to the
Demised Premises that (i) requires a permit from the Department of Buildings or
(ii) changes, destroys or affects an interior architectural feature of an
interior landmark or an exterior architectural feature of an improvement that is
a landmark or located on a landmark site or in a historic district. In addition,
Tenant understands and agrees that no such demolition, construction,
reconstruction, alteration, or minor work may be performed by Tenant without
Landlord's prior written approval. Tenant further represents, warrants, and
covenants that, at any time during the term of this Lease, in the event that
Tenant should enter into a sublease, or any renewal thereof, for all or any
portion of the Demised Premises, as may be permitted pursuant to the terms and
conditions of this Lease, such sublease, or renewal thereof, shall contain,
conspicuously set forth therein, a notice to the
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subtenant in compliance with the terms, conditions and provisions of Section
25-322 of the Administrative Code of the City of New York.
N. Tenant shall be entitled to up to three (3) listings on the
directory maintained in the lobby of the Building and a listing of Tenant's
name on the directory maintained on the floor on which the Demised Premises are
located. The installation cost of the initial name strippings for Tenant's
listings on the Building's directories shall be borne by owner, and the
reasonable cost of any additional name strippings for Tenant's listings shall be
borne by Xxxxxx.
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Xxxxxx Xxxxxxxx - Xxxxx 27
[FLOOR PLAN OF 27TH FLOOR OMITTED]
EXHIBIT "A"
