XXXXX PROPERTIES INC.,
Landlord
AND
EMPIRE BLUE CROSS AND BLUE SHIELD
Tenant
LEASE
PREMISES:
The Kent Building
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Entire 5th Floor and a
Portion of the 6th Floor
LEASE, dated August 14, 1991 between Xxxxx Properties Inc., a California
corporation having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called "Landlord") and Empire Blue Cross and Blue Shield, a New
York Not-For-Profit Health Service Corporation, having an office at 000 Xxxxx
Xxxxxx Xxx Xxxx Xxx Xxxx 00000 (hereinafter called "Tenant").
W I T N E S S E T H:
ARTICLE
1.1 Landlord hereby leases to Tenant, and Tenant here hires from
Landlord, the premises hereinafter described, in the building known as The Kent
Building, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the
"Building"), for the term hereinafter stated, for the rents hereinafter reserved
and upon and subject to the conditions (including limitations, restrictions and
reservations) and covenants hereinafter provided. A copy of the Certificate of
occupancy for the Building in effect on the date hereof is annexed to this Lease
as Exhibit A. The plot of land on which the Building is erected is hereinafter
called the "Land". Each party hereto hereby expressly covenants and agrees to
observe and perform all of the conditions and covenants herein contained on its
art to be observed and performed.
1.2 The premises hereby leased to Tenant is the entire 5th floor and a
portion of the 6th floor of the Building, containing a total of approximately
forty-one thousand three hundred twenty (41,320) rentable square feet as shown
hatched the floor plan annexed hereto as Exhibit B. Said premises together with
all fixtures and equipment which at the commencement, or during the term, of
this Lease are thereto attached (except items not deemed to be included therein
and removable by Tenant as provided in Article 14) constitute and are
hereinafter called the "Demised Premises".
1.3 The term of this Lease, for which the Demised Premises are hereby
leased, shall commence on a date (hereinafter called the "Commencement Date")
which shall be the later of August 15, 1991 or the date that Landlord shall have
both, substantially completed Landlord's Work as required by (and defined in)
Section 3.1(a) and shall have removed asbestos from the Demised Premises
pursuant to Section 3.3 (a), and shall on the date which is the last day of the
calendar month in which shall occur the date which is five (5) years and six (6)
months after the Commencement Date, which ending date is hereinafter called the
"Expiration Date", or shall end on such earlier date upon which said term may
expire or be canceled or terminate pursuant to any of the conditions or
covenants of this Lease pursuant to law. For the purposes of this Section 1.3,
Landlord shall be deemed to have substantially completed Landlord's Work when
the Demised Premises are ready for Tenant's Initial Alterations (as hereinafter
defined), and any remaining Landlord's Work will not unreasonably or materially
interfere with or delay any of Tenant's Initial Alterations. Promptly following
the Commencement Date, Landlord and Tenant shall both execute a written
instrument to confirm the Commencement Date and anticipated Expiration Date.
1.4 The rents reserved under this Lease, for the term thereof, shall be and
consist of (a) fixed rent of one million three hundred sixty-three thousand five
hundred sixty dollars and no cent ($1,363,560.00) per year which shall be
payable in equal installments in advance on the first day of each and every
calendar month during the term of this Lease, except that Tenant shall pay the
first monthly installment of fixed rend on the execution of this Lease, and
(b) additional rent consisting of all other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in the payment of which Landlord shall have the same remedies as for a default
in the payment of fixed rent), all to be paid to Landlord at its office, or such
other place, or to such agent and at such place, as Landlord may designate by
notice to Tenant, in lawful money of the United States of America. Such payment
of rent shall be in cash or by check (drawn upon a bank whose principal office
is located within the continental United States of America), subject to
collection.
(c) Tenant shall receive a rental credit of one hundred thirteen
thousand six hundred thirty dollars and no cent ($113,630.00) per month for the
first six (6) months of the term. In recognition of this credit, Tenant shall
not be required to pay fixed rent or any portion thereof which is attributable
to the first six (6) months of the term of this Lease beginning on
1.5 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable, without demand
therefor and without any abatement, deduction or setoff whatsoever except as
expressly provided in this Lease.
1.6 If the Commencement Date occurs on a day other than the first day of
a calendar month, the fixed rent for such calendar month shall be prorated and
the balance of the first month's fixed rent theretofore paid shall be credited
against the next monthly installment of fixed rent.
ARTICLE 2
Use
2.1 The Demised Premises shall be used for the following, but for no
other purpose, namely: Executive and administrative office of Tenant and any
Related Entity (hereinafter defined) whose business is in an affiliated health
field. Landlord acknowledges that Tenant intends to occupy the Demised Premises
for the operation of a program proprietary of Tenant to be conducted under the
name "Empire Mental Health Choice".
2.2 Tenant shall not use or permit the use of the Demised Premises or
any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in an unlawful manner or in violation of the Certificate of
Occupancy for the Demised Premises or the Building. Tenant shall not suffer or
permit the Demised Premises or any part thereof to be used in any manner or
anything to be done therein or anything to be brought into or kept therein which
shall in any way impair the character, reputation or appearance of the Building
as a high quality office building, impair or interfere with any of the Building
services or the proper and economic heating, cleaning, air-conditioning or other
servicing of the Building or the Demised Premises, or impair or interfere with
the use of any of the other areas of the Building by, or occasion discomfort,
inconvenience or annoyance to, any of the other tenants or occupants of the
Building. Without limiting the generality of the foregoing, under no
circumstances shall the Demised Premises be used for the treatment of any
patients. Tenant shall not install any electrical or other equipment of any kind
which might cause any such impairment, interference, discomfort, inconvenience,
or annoyance. Those portions, if any, of the Demised Premises which are
identified as toilets and utility areas shall be used by Tenant only for the
purposes for which they are designed.
2.3 It is understood that no property, other than such as might normally
be brought upon or kept in the Demised Premises as an incident to the reasonable
use of the Demised Premises for the purposes herein permitted, will be brought
upon or be kept in the Demised Premises.
2.4 If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business or other activity carried on in
the Demised Premises, and if the failure to secure such license or permit, might
or would, in any way, affect Landlord, then Tenant, at Tenant's expense, shall
duly procure and thereafter maintain such license or permit and submit the same
for inspection by Landlord. Tenant, at Tenant' expense, shall, at all times,
comply with the requirements of each such license or permit.
ARTICLE 3
3.1 Landlord shall perform the following work (collectively the "Landlord's
Work"):
(a) Prior to delivery of the Demised Premises to Tenant, to demolish and
remove the existing walls, ceilings, doors, HVAC ducts and other improvements,
if any, now in the Demised Premises and deliver the Demised Premises to Tenant
broom clean; and
(b) Within a reasonable time after the Commencement Date, but not later
than thirty (30) days after Tenant shall have delivered to Landlord Tenant's
plans and specifications for Tenant's Initial Alterations, to construct a
demising wall on the 6th floor of the Building in the area denoted on Exhibit B
hereto to separate the Demised Premises from the balance of the 6th floor of the
Building and create a public corridor and, in connection therewith, to leave an
opening for a door from the Demised Premises to the public corridor (which door
will be installed by Tenant as art of Tenant's Initial Alterations); and
(c) Within a reasonable period of time after the Commencement Date, but
not later than November 1, 1991, and only at such time or times and in such
matter as shall not unreasonably and materially interfere with Tenant's Initial
Alterations, to "box-in" the top portions of any risers or columns from which
Landlord shall have removed asbestos or asbestos-treated material as
contemplated by Section 3.3 (a) of this Lease; and
(d) Within seventy-five (75) days after the Commencement Date (i) clean
the 5th and 6th floor public rest rooms, replace or repair broken fixtures or
tiles therein, replace or repair broken light fixtures, paint the ceilings the
stall doors and replace the toilet seats, (ii) install the ceiling light
fixtures, paint and otherwise finish the public corridor on the sixth floor in
accordance with the standards of the balance of the Building, and (iii) finish
and modernize the elevator lobby on the sixth floor to the standards of the
elevator lobbies in the balance of the Building.
3.2 Landlord shall undertake and complete Landlord's Work in a
good, workmanlike manner and in compliance with all laws, ordinances, rules,
orders and regulations of all governmental authorities and of all insurance
bodies having jurisdiction. With respect to any work by Landlord or Tenant in or
about the Demised Premises for the period from and after the Commencement Date
is contemplated in Section 3.1, Landlord and Tenant agree that they will
cooperate each with the other so as to perform their respective work in a manner
which will not unreasonably and materially interfere with or delay the work of
the other.
3.3 (a) Tenant acknowledges that Landlord has delivered to Tenant
a copy of a report prepared by a duly licensed asbestos inspector stating the
extent, if any, that the Demised Premises or the elevator shafts for the bank of
the elevators which service floors two through six contain asbestos-treated
materials, Prior to the execution and delivery of this Lease, Landlord and
Tenant have inspected the Demised Premises and indicated on a floor plan
thereof, those areas in which asbestos treated materials are located (such areas
being known as the "Designated Asbestos Areas"), Landlord shall, at Landlord's
sol cost and expense, prior to the Commencement Date remove the asbestos-treated
materials from the Designated Asbestos Areas. Without limiting the generality of
the foregoing, if, pursuant to Asbestos Requirements (hereinafter defined),
either the encapsulation, removal or treatment of asbestos-treated material
located in or about the Demised Premises or the common areas of the Building
("Common Areas") shall be required, Landlord shall, at Landlord's cost and
expense, comply with such Asbestos Requirements with respect to the
encapsulation, removal or treatment of the asbestos-treated materials. Landlord
further acknowledges and agrees that if the asbestos report referred to above
indicates that the Demised Premises contains any asbestos-treated material in
areas in addition to the Designated Asbestos Areas (from which areas the
asbestos shall be removed as aforesaid) if and only to the extent required by
the Asbestos Requirements, Landlord shall, as part of Landlord's Work, comply
with all Asbestos Requirements with respect to the encapsulation, removal or
treatment of the asbestos-treated material in the Demised Premises; it being
understood, however, that if, pursuant to Asbestos Requirements, the
encapsulation, removal or treatment of any such asbestos-treated material in the
Demised Premises (other than the Designated Asbestos Areas) shall not be
required, Landlord shall have no obligation with respect thereto.
(b) During the term of this Lease, Landlord shall advise Tenant whether
any work has been commenced, is on-going or is contemplated to remove, treat or
encapsulate asbestos or asbestos-treated material in any part of the Building
(such work hereinafter the "Building Asbestos Work") provided, however, it being
understood and agreed that Landlord shall not be require to advise Tenant with
respect to any building asbestos work, except upon Tenant's request, where such
building asbestos work is occurring anywhere in the Building other than on the
third through eighth floors. With respect to Building Asbestos Work on the third
through eighth floors, inclusive, Landlord shall be obligated to advise Tenant
without necessity of a request from Tenant. During the course of any Building
Asbestos Work, or at any time during the term of this Lease, Tenant shall have
the right, at its sole cost and expense, to have the Demised Premises or Common
Areas of the Building tested by a licensed asbestos inspector to determine
whether the air within the Common Areas the Building or the Demised Premises
contain levels of friable asbestos in excess of levels permitted by applicable
Asbestos Requirements. If Tenant's licensed asbestos inspector shall issue its
written report indicating that the air in the Common areas of the Building or in
the Demised Premises contains levels of friable asbestos in excess of levels
permitted by the applicable Asbestos Requirements, Tenant shall forthwith notify
Landlord thereof and shall provide to Landlord a copy of the written report.
Thereafter, Landlord shall have the right to have its own licensed asbestos
inspector test the air in the Common Areas of the Building and the Demised
Premises provided that Landlord shall do so within five (5) days after
Landlord's receipt of Tenant's written report. If the inspection by Landlord's
licensed asbestos inspector does not indicate that the air in Common Areas of
the Building or the Demised Premises contains levels of friable asbestos in
excess of levels permitted by applicable Asbestos Requirements, Landlord and
Tenant shall instruct their licensed asbestos inspectors to immediately select a
third licensed asbestos inspector who shall be acceptable to both Landlord's and
Tenant's inspector and whose determination shall be binding on Landlord and
Tenant. Each party shall pay the costs of its own inspector. The costs of the
third inspection shall be paid by the party with whose inspection report said
third inspector disagrees. If the third inspector's test shall disclose that the
air in the Common Areas of the Building or the Demised Premises contains levels
of friable asbestos in excess of levels permitted by applicable Asbestos
Requirements (or if Landlord does not contest Tenant's inspector's determination
or if Landlord's inspector agrees with Tenant's inspector), and, as a result of
the presence in the air in the Common Areas of the Building or the Demised
Premises of levels of friable asbestos in excess of levels permitted by
applicable Asbestos Requirements (i) Tenant shall cease using all or a part of
the Demised Premises for the uses described in Section 2.1 of this Lease (which
shall not preclude access to the Demised Premises for removal by Tenant of its
property, or the inspection of the Demised Premises or Common Areas for the
presence of asbestos containing materials or otherwise) or if Tenant is
prevented from having access to the Demised Premises by reason of Asbestos
Requirements, in either event, for in excess of seven (7) consecutive business
days (of which condition Tenant shall give to Landlord notice forthwith upon the
commencement of such period and upon the expiration of such period), then the
fixed rent and additional rent hereunder shall be abated one day for each day
thereafter (in the same proportion as the ratio of the portion of the Demised
Premises in which Tenant has ceased to conduct its business bears to the entire
Demised Premises or, if the entire Demised Premises shall such abatement shall
be affected, such abatement shall be for the entire fixed rent and additional
rent) until such time as the level of friable asbestos in the Demised Premises
or the Common Areas of the Building shall be reduced to or below the level
permitted by the applicable Asbestos Requirements (as determined by the
agreement of Landlord's inspector and Tenant's inspector or by the third
licensed asbestos inspector); and (ii) if Tenant shall cease using the Demised
Premises for the uses described in Section 2.1 of this Lease or if Tenant is
prevented from having access to the Demised Premises by reason of Asbestos
Requirements, in either event, for more than one hundred five (105) consecutive
days then, at any time after the expiration of the one hundred fifth (105th)
day, but prior to the date that Landlord shall have reduced the levels of
friable asbestos in the air to or below the permitted by applicable Asbestos
Requirements, Tenant shall have the right to give to Landlord written notice of
Tenant's intention to terminate this Lease, which notice shall set a date not
less than fifteen (15) Business Days (hereinafter defined) after the date of
such notice as the Expiration Date of this Lease such right of termination being
Tenant's sole and exclusive remedy (as between Landlord and Tenant, but without
precluding third party claims or cross-claims) due to the fact that Landlord
shall not have reduced the levels of friable asbestos in the air to or below the
levels permitted by applicable Asbestos Requirements within said one hundred
five (105) consecutive period. Notwithstanding the foregoing, if prior to the
expiration of the fifteen (15) Business Day period set forth in Tenant's notice,
Landlord shall have reduced the level of friable asbestos in the air to or below
the levels permitted by applicable Asbestos Requirements, Tenant shall not have
the right to terminate this Lease and this Lease shall continue in full force
and effect. If this Lease terminates in accordance with the provisions of this
Section 3.3(b), the term of this Lease shall expire as of the date set forth in
Tenant's notice of termination as if such date was the Expiration Date, and all
rights, obligations and liabilities of the parties hereunder shall cease and
terminate as of said date.
(c) Notwithstanding anything in this Section 3.3 to the contrary,
Tenant acknowledges and agrees that Landlord shall have absolutely no obligation
to encapsulate, remove or treat any asbestos-treated materials in the Additional
Premises (hereinafter defined), except as specifically set forth in Article 44
of this Lease.
(d) Asbestos Requirements shall mean all present and future laws,
rules, orders, ordinances, regulations, statutes, requirements, codes and
executive orders, of all governmental and municipal authorities having
jurisdiction and of any and all of their departments and bureaus pertaining or
relating to the use, maintenance, presence, encapsulation, removal or treatment
of asbestos containing or treated materials applicable to the Building.
3.4 Other than Landlord's Work, Landlord shall not be obligated to make
any improvements or alterations to or within the Demised Premises whatsoever.
ARTICLE 4
Deleted Prior to Execution
ARTICLE 5
Adjustments of Rents
5.1 As used in this Article 5 the words and terms which follow mean and
include the following:
(a) "Tax Year" shall mean each period of twelve months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve months occurring
during the term of this Lease as hereafter may be duly adopted as the fiscal
year for real estate tax purposes of the City of New York.
(b) "Operation Year" shall mean each calendar year, subsequent to
the calendar year 1992 in which occurs any part of the term of this Lease.
(c) "Tenant's Proportionate Share" shall mean .087.
(d) Deleted Prior to Execution.
(e) "Assessed Valuation" shall mean the amount for which any
parcel of real property or structure or improvement is assessed by the City of
New York for the purposes of Real Estate Taxes.
(f) "Real Estate Taxes" shall mean the sum of (i) the amount
determined by multiplying (x) the Assessed Valuation of the Land and the
Building for any Tax Year by (y) the real of such event on a basis consistent
with the principles underlying the provisions of this Article 5 taking into
consideration (y) the portion of such Tax Year or Operation Year which shall
have elapsed prior to the date of such event or (z) in the case of any such
increase or decrease in the area of the Demised Premises the portion of the
Demised Premises to which the same relates.
5.7 Payments shall be made pursuant to this Article 5 notwithstanding
the fact that an Escalation statement is furnished to Tenant after the
expiration of the term of this Lease.
5.8 In case the Real Estate Taxes for any Tax Year or part thereof shall
be reduced before Tenant shall have paid Tenant's Proportionate Share of any
excess thereof in respect of such Tax Year, pursuant to Section 5.2 hereof, the
Real Estate Taxes for such Tax Year shall be deemed to include any expenses
including counsel fees incurred by Landlord in connection with reducing the
Assessed Valuation and/or in obtaining such reduction.
5.9 Deleted Prior to Execution.
5.10 Unless Tenant shall be a tax exempt organization, Tenant shall pay
to Landlord any occupancy tax or rent tax now effect or hereafter enacted, if
payable by Landlord in the firs instance or hereafter required to be paid by
Landlord. Such tax shall be paid to Landlord as additional rent upon demand.
5.11 If all or any part of the fixed rent or addition rent shall at any
time become uncollectible, reduced or require to be refunded by virtue of any
rules, regulations, orders, la or stabilization laws, of governmental or
quasi-governmental authorities having jurisdiction, then for the period
prescribe thereby Tenant shall pay to Landlord the maximum amounts permitted
pursuant thereto but not in excess of the fixed rent and additional rent
reserved under this Lease. Upon the expiration of the applicable period of time
during which such amounts shall be uncollectible, reduced or refunded, Tenant
shall pay to Landlord as additional rents, within fifteen (15) days after
demand, all such uncollected, reduced or refunded amount that would have been
payable for the period absent such rules, regulations, orders, laws or
ordinances; provided, however, that the retroactive collection thereof shall
then be lawful.
ARTICLE 6
Failure to Give Possession
6.1 If the Demised Premises shall not be available delivery to Tenant on
the specific date, if any, hereinbefore designated for the commencement of the
term of this Lease for reason whatsoever, then this Lease shall not be affected
thereby, in such case, said specified date, if any, shall be deemed to be
postponed until the date when the Demised Premises shall be available for
delivery to Tenant, and Tenant shall not be entitled to possession of the
Demised Premises until the same available for delivery to Tenant, provided,
however, that Ten shall have no claim against Landlord, and Landlord shall have
liability to Tenant by reason of any such postponement of said specific date,
and the parties hereto further agree that any failure to have the Demised
Premises available for delivery to Tenant on said specific date or on the
Commencement Date shall no way affect the obligations of Tenant hereunder nor
shall the same be construed in any way to extend the term of this Lease and
furthermore, this Section 6.1 shall be deemed to be an express provision to the
contrary of Section 223-a of the Real Property Law of the State of New York and
any other law of like import now or hereafter in force.
6.2 Notwithstanding the provisions of Section 6.1 to the contrary, if
the Commencement Date shall not have occurred on or before November 15, 1991, at
any time thereafter, but prior to the Commencement Date, Tenant shall have the
right to terminate this Lease by giving written notice of its election to do so
to Landlord, which notice shall set a date which is not less than fifteen (15)
days after the date of giving of such notice as the date for the termination of
the Lease. In such event, unless the Commencement Date shall occur prior to the
date set forth in Tenant's notice as the date for termination of this Lease,
this Lease shall terminate as of such date as if such date were originally set
forth herein as the Expiration Date and neither party shall have any further
rights hereunder. Tenant's right of termination as aforesaid shall be Tenant's
sole and exclusive remedy and the provisions of this Section 6.2 shall be deemed
to be an express provision to the contrary as contemplated by Section 223-a of
the Real Property Law of the State of New York and any other law of like
important now or hereafter in force.
6.3 The provisions of Section 6.1 shall apply not only to the delivery
of the Demised Premises to Tenant as of the Commencement Date but shall also
apply to the delivery to Tenant of any Additional Premises (hereinafter defined)
pursuant to Tenant's options as set forth in Article 44 of this Lease.
ARTICLE 7
Subordination, Notice to
Lessors and Mortgagees
7.1 This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section 7.1 shall be self-operative and
no further instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall promptly execute and deliver any instrument
that Landlord, the lessor of any such lease or the holder of any such mortgage
or any of their respective successors in interest may reasonably request to
evidence such subordination. The leases to which this Lease is, at the time
referred to, subject and subordinate pursuant to this Article are hereinafter
sometimes called "superior leases" and the mortgages to which this Lease is, at
the time referred to, subject and subordinate are hereafter sometimes called
"superior mortgages" and the lessor of a superior lease or its successor in
interest at the time referred to is sometimes hereinafter called a "lessor" and
the holder of a superior mortgage or its successor in interest at the time
referred to is sometimes hereinafter called a "holder". Landlord agrees that
Landlord shall request the holder of the existing superior mortgage, and any
future holder of any future superior mortgage, to enter into a non-disturbance
and attornment agreement with Tenant, which agreement shall be substantially in
the form of the agreement annexed hereto as Schedule 1 ("Non-Disturbance
Agreement"). Landlord agrees to use all reasonable efforts to cause the existing
holder of the current superior mortgage, and any future holder of any future
superior mortgage, to execute the Non-Disturbance Agreement; it being understood
and agreed, however, that Landlord shall have no obligation to expend any money
in excess of one Thousand Dollars ($1,000.00) or commence any action or
proceeding to induce any such holder to do so or to agree to any modification of
any mortgage in connection with the obtaining of such Non-Disturbance Agreement.
Landlord shall have no liability to Tenant for its failure to obtain such
NonDisturbance Agreement and Tenant's obligations under this Lease shall not be
affected by reason of such failure to obtain such Non-Disturbance Agreement.
7. In the event of any act or omission of Landlord 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 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 Landlord or such 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 Landlord
would be entitled under this Lease or otherwise, after similar notice to effect
such remedy), provided such holder of lessor shall with due diligence give
Tenant written notice of its intention to, and commence and continue to, remedy
such act or omission.
7.3 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord und this Lease, whether through
possession or foreclosure action or delivery of a new lease or deed, then (but
subject to the provisions of any Non-Disturbance Agreement between Tenant and
such lessor or holder) at the request of such party so succeeding to Landlord's
rights (herein sometimes called "successor landlord") and upon such successor
landlord's providing to Tenant reasonably acceptable evidence that it has
succeeded to Landlord's interest under this Lease and a written agreement to
accept Tenant's attornment, Tenant shall attorn to and recognize such successor
landlord as Tenant's landlord under this Lease, and shall promptly execute and
deliver any instrument that such successor landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in full
force and effect as, or as if it were, a direct lease between the successor
landlord and Tenant upon all of the terms covenants, conditions, agreements and
provisions, as are set forth in this Lease except that the successor landlord
shall not
(a) be liable for any previous act or omission of Landlord under
this Lease,
(b) be subject to any offset, not expressly provided for in this
Lease, which shall have theretofore accrued to Tenant against Landlord, or
(c) be bound by any previous modification of the Lease, not expressly
provided for in this Lease, or by any previous prepayment of more than one
month's fixed rent, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the superior lease or the holder
of the superior mortgage through or by reason of which the property tax rate
applicable to the Borough of Manhattan for such Tax Year plus (ii) any special
or extraordinary assessments and governmental levies imposed against the Land
and the Building. If, due to a future change in the method of taxation, any
franchise, income, profit or other tax, however designated, shall be levied
against Landlord in substitution, in whole or part, for or in lieu of any tax
which would otherwise constitute "Real Estate Taxes", such franchise, income,
profit or other tax shall be deemed to be Real Estate Taxes for the purposes
hereof and shall be deemed to be included in the term "Real Estate Taxes".
(g) "Real Estate Tax Base" shall mean the Real Estate Taxes for
the Tax Year commencing July 1, 1992 and ending on June 30, 1993.
(h) Deleted Prior to Execution.
(i) Deleted Prior to Execution.
(j) Deleted Prior to Execution.
(k) "Escalation Statement" shall mean a statement in writing
signed by Landlord, setting forth the amount payable by Tenant for a specified
Tax Year or Operation Year (as the case may be) pursuant to this Article 5.
5.2 If the Real Estate Taxes for any Tax Year shall be greater
(resulting in an excess) than the Real Estate Tax Base, then Tenant shall pay to
Landlord as additional rent for such Tax Year, an amount equal to the Tenant's
Proportionate share of such excess.
5.3 If the Operating Expenses as defined in Exhibit for any operation
Year shall be greater (resulting in an excess than the operating Expenses for
the Base Year then Tenant shall pay to Landlord as additional rent for such
operation Year and proportionate Share of Increase as defined in Exhibit C.
5.4 Any such additional rent payable by reason of the provisions of
Section 5.2 hereof shall be payable within fifteen (15) days after Landlord
shall furnish to Tenant (and Tenant shall have received from Landlord) an
Escalation Statement with respect to Real Estate Taxes for any tax Year.
5.5 Any such additional rent payable by reason of the provisions of
Section 5.3 shall commence as of the first day the relevant Operation Year and,
after Landlord shall furnish Tenant with an Escalation Statement relating to
such Operation Year, all monthly installments of rental shall reflect
one-twelfth of the annual amount of such adjustment until a new adjustment
becomes effective pursuant to the provisions of this Article 5, provided
however, that if said Escalation Statement furnished to Tenant after the
commencement of such Operation Year, there shall be promptly paid by Tenant to
Landlord, an amount equal to the portion of such adjustment allocable to the
part of such Operation Year which shall have elapsed prior to the first day of
the calendar month next succeeding the calendar month in which said Escalation
Statement is furnished to Tenant.
5.6 In the event (i) that the date of the expiration or other
termination of this Lease shall be a day other than the last day of a Tax Year
or an Operation Year, or (ii) of any increase or decrease in the area of the
Premises (as may be provided herein), then in each such event in applying the
provisions of this Article 5 with respect to any Tax Year or Operation Year in
which such event shall have occurred, appropriate adjustments shall be made to
reflect the occurrence successor landlord shall have succeeded to the rights of
Landlord under this Lease.
ARTICLE 8
Quite Enjoyment
8.1 So long as Tenant pays all of the fixed rent and additional rent due
hereunder and performs and observes all of the other terms, covenants and
conditions of this lease to be performed and observed by Tenant, Tenant shall
peaceably and quietly have, hold and enjoy the Demised Premises subject,
nevertheless, to the terms and provisions of this Lease and, as provided in
Article 7 (but subject to the provisions of any Non-Disturbance Agreement
between Tenant and any lessor or holder) to the superior leases and the superior
mortgages.
ARTICLE 9
Brokerage
9.1 Tenant covenants, represents, and warrants that Tenant has had no
dealings or negotiations with any broker, or agent other than Xxxxxxx &
Xxxxxxxxx, Inc. in connection with the consummation of this Lease. Tenant and
Landlord covenant and agree to pay, hold harmless and indemnify the other from
and against any and all cost, expense (including reasonable attorneys' fees) or
liability for any compensation, commissions or charges claimed by any other
broker or agent, other than the broker set forth in this Section 9.1, with
respect to this Lease or the negotiation thereof based upon the acts of the
indemnifying party or its agents or representatives, Landlord will pay any
commission due Xxxxxxx & Wakefield, Inc., in connection with this Lease based
upon the terms of The Agency Agreement between Xxxxx Properties Inc., and
Xxxxxxx & Wakefield Inc. The liability of Landlord and Tenant under this Article
9 shall survive the Expiration Date or the date of sooner termination of the
term of this Lease.
ARTICLE 10
Compliance With Laws
10.1 Tenant, at Tenant's expense, shall comply with laws and ordinances
(including but not limited to local laws #5 and #16), and all rules, orders and
regulations of all governmental authorities and of all insurance bodies, at any
duly issued or in force, applicable to the Demised Premises or any part thereof
or to Tenant's use thereof, except that Tenant shall not hereby be under any
obligation to comply with any ordinance, rule, order or regulation requiring any
structural alteration of the Demised Premises unless such alteration is required
by reason of a condition has been created by, at the instance of Tenant, or is
attributable to the use or manner of use to which Tenant puts the Demised
Premises, or is required by reason of a breach of any of Tenant's covenants and
agreements hereunder. Where any structural alteration of the Demised Premises is
required by any such law, ordinance, rule, order or regulation, and, (i) by
reason of the express except hereinabove contained, Tenant is not under any
obligation to such alteration, and (ii) the reasonably estimated cost of such
alteration exceeds Two Hundred Thousand Fifty Dollars ($250,000.00) (the "Cost
Base") then Landlord shall have the option of making such alteration and paying
the cost thereof by giving to Tenant not less than thirty (30) days' prior
written notice of such termination; provided, however, that if within fifteen
(15) days after the giving by Landlord of its notice of termination as
aforesaid, Tenant shall give written notice to Landlord stating that Tenant
elects to make such alteration at the expense of Tenant (with respect to costs
in excess of the Cost Base), then such notice of termination shall be
ineffective provided that Tenant, at Tenant's expense, shall, concurrently with
the giving of such notice to Landlord, execute and deliver to Landlord Tenant's
written undertaking, with a surety and in form and substance satisfactory to
Landlord, obligating Tenant to promptly and duly make such alteration in a
manner satisfactory to Landlord and to save Landlord harmless from any and all
costs, expenses, penalties and/or liabilities (including, but not limited to,
accountants' and attorneys' fees) in connection therewith or by reason thereof
in excess of the Cost Base; and Tenant covenants and agrees that, after so
electing to make any such alteration, Tenant will, at Tenant's expense in excess
of the Cost Base, and in compliance with all the covenants, agreements, terms,
provisions and conditions of this Lease, make such alteration, and will promptly
and duly perform all the conditions of such undertaking and that all such
conditions of such undertaking shall be deemed to constitute provisions of this
Lease to be kept or performed on the part of Tenant with the same force and
effect as if the same had been set forth herein, Upon the completion of all such
work and the furnishing by Tenant to Landlord of the documentation required
under Article 13 with respect to Tenant's Changes (as defined in Article 13),
including, without limitation, the architect's certificate that Tenant has
substantially completed all work required of Tenant and mechanic's lien waivers
from each contractor employed by Tenant in connection therewith Landlord shall
pay to Tenant the Two Hundred Fifty Thousand Dollars ($250,000.00) representing
the Cost Base.
10.2 In the event that a notice of termination shall be given by
Landlord under the provisions of this Article 10 and such notice shall not be
negated by Tenant as provided in Section 10.1, this Lease and the term and
estate hereby granted shall expire as of the date specified in such notice with
the same effect as if that Date were the Expiration Date of this Lease, and the
fixed rent and additional rent payable hereunder shall be apportioned as of such
date of termination.
10.3 Landlord, at its sole cost and expense (but subject to inclusion of
such cost and expenses as part of Operating Expenses), shall comply with, or
shall cause the other tenants occupants of space within the Building to comply
with, all laws and ordinances (including, but not limited to local laws #5 and
#16) and all rules, orders and regulations of all governmental authorities and
of all insurance bodies at any time duly issue or in force, applicable to the
Demised Premises or the Building, except to the extent that Tenant is required
by the provisions of Section 10.1 to comply therewith, and subject, further, to
Landlord's right to contest the applicability or legality thereof.
ARTICLE 11
Insurance
11.1 Tenant shall not violate, or permit the violation of, any condition
imposed by the standard fire insurance policy then issued for office buildings
in the Borough of Manhattan City of New York, and shall not do, or permit
anything to be done, or keep or permit anything to be kept in the Demised
Premises, which would increase the fire or other casualty insurance rate on the
Building or the property therein over the rate which would otherwise then be in
effect (unless Tenant pays the resulting premium as provided in Section 11.3
hereof) or which would result in insurance companies refusing to insure the
Building or any of such property in amount reasonably satisfactory to Landlord.
11.2 Landlord and Tenant shall each secure an appropriate clause in, or
an endorsement upon, each fire or extended coverage or rent insurance policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waive of
any claim hereinbefore referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this Lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge then the part benefitting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of an further obligations under the revisions hereof
relating to such waiver or permission.
Subject to the foregoing provisions of this Section 11.2, and insofar as
may be permitted by the terms of the insurance policies carried by it, each
party hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interest as the case may be occurring during
the term of this Lease.
11.3 If, by reason of any failure of Tenant to comply with the
provisions of Section 10.1 or Section 11.1 the rate fire insurance with extended
coverage on the Building or equipment or other property of Landlord shall be
higher than it otherwise would be, Tenant shall reimburse Landlord, on demand,
for that part of the premiums for fire insurance and extended coverage paid by
Landlord because of such failure on the part of Tenant.
11.4 A schedule or make up of rates for the Building the Demised
Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rate
with extended coverage then applicable to such premises.
l1.5(a)Tenant shall obtain prior to the Commencement Date, and
thereafter during the term of this Lease keep in full force and effect the
following insurance:
(i) a policy of commercial general liability and property damage insurance
with a contractual liability endorsement that extends to, among other
events, the indemnities by Tenant as set forth in Section 21.2 of this
Lease, with minimum limits of liability of a combined single limit with
respect to each occurrence of five million dollars ($5,000,000,00) for
injury or death to persons and damage to property, or such greater amount
as Landlord may from time to time reasonably require with respect to
similar premises, uses and occupancies; and
(ii) insurance against loss or damage by fire, with extended coverage
including "all risk" coverage, such coverage intended to provide the
broadest possible coverage available, in an amount equal to one hundred
(100%) percent of the full replacement value of (a) all of Tenant's
furniture, trade fixtures, equipment and other personal property located in
or appurtenant to the Premises and (b) all leasehold improvements made by
Tenant during the term of the Lease, including Tenant's Initial
Alterations, without diminution of such replacement cost for depreciation
or obsolescence.
(b) All insurance policies required to be maintained by Tenant
under this Lease shall contain provisions that:
(i) no act (other than willful, deliberate acts which are customarily not
covered under the type of insurance policies Tenant is required to maintain
pursuant to this Lease) or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss
sustained;
(ii) such policy shall not be cancelled or modified without at least ten
(10) days prior written notice to Landlord, which notice to be effective
must be actually received by Landlord and shall contain the policy number
and the names of the insureds and certificate holder;
(iii) Tenant is named as the insured and Landlord, and each lessor and each
holder of a mortgage (whose names and addresses shall have been provided to
Tenant by such lessor, such holder or Landlord) are each named as an
additional insured, except as to that portion of Tenant's fire and casualty
policy which relates solely to Tenant's furniture, moveable trade fixtures,
personal property and business equipment (including its telephone
equipment), which shall name Tenant as the sole insured;
(iv) such policy is primary and non-contributory with any insurance carried
by Landlord; and
(v) such policy shall be for a term of not less than one (1) year.
(c) All insurance required to be carried by Tenant pursuant to
the terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent insurers licensed to do business in the
State of New York each of which shall be rated by Best's Rating Guide Property
Casualty Division not less than "A" or "A+" as to its general policy holder
rating, and at least "XIII" as to its financial rating provided that such
ratings are then available to an insurance company licensed to do business in
the State of New York, it being understood that if such ratings are not then
available to an insurance company licensed to do business in the State of New
York, the insurance required to be carried by Tenant pursuant to the terms of
this Lease shall be effected under valid and enforceable policies issued by
reputable and independent insurers licensed to do business in the State of New
York each of which shall have the highest rating then available from Best's
Rating Guide Property - Casualty Division. The casualty and liability insurance
required to be maintained by Tenant may be effected by a policy or policies of
blanket insurance which may cover other properties provided that the protection
and coverage afforded thereunder shall not be less than the protection or
coverage which would have been afforded under a separate policy relating to the
Demised Premises only and, that in all other respects of such policy shall
comply with the other provisions of this Article 11.
(d) An original or a certified copy of each such Policy or a
certificate thereof shall be delivered to Landlord prior to the Commencement
Date and thereafter not less than fifteen (15) days prior to the scheduled
expiration thereof. Tenant's failure, in whole or in part, to provide to
Landlord a policy or certificate of insurance as set forth in this Article 11
and in the form required by this Article 11 shall be, and shall be deemed to be,
a material default hereunder entitling Landlord to exercise any and all of the
remedies provided herein and at law or in equity, and the parties hereto
expressly acknowledge and agree that Landlord may, but shall have no obligation
or duty whatsoever, to cure such a default whether by obtaining the
aforementioned insurance at its own or at Tenant's cost or expense, or
otherwise. If Landlord elects to obtain any such insurance following Tenant's
default in so doing, the costs incurred by Landlord, including without
limitation, the premiums and other charges and expenses, shall be additional
rent hereunder and shall be due immediately upon demand.
(e) It is expressly understood and agreed that Landlord will not
carry insurance on Tenant's fixtures, furnishings, equipment or other property
or effects or insurance against interruption of Tenant's business.
11.6 Except as specifically set forth in this Lease, Landlord and Tenant
and agree that, to the extent a claim is covered by the insurance that the
claimant is obligated by this Lease to obtain and maintain, the claimant will
look first to its own insurance for satisfaction of the claim.
ARTICLE 12
Rules and Regulations 12.1 Tenant and its employees and agents shall
observe and comply with the Rules and Regulations annexed hereto as Exhibit
D, and such reasonable changes therein (whether by modification,
elimination, or addition) as Landlord at any time or times hereafter may
make and communicate in writing to Tenant, provided, however, that in case
of any conflict or inconsistency between the provisions of this Lease and
any of the Rules and Regulations as originally promulgated or as changed,
the provisions of this Lease shall control.
12.2 Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants or conditions in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents, or visitors, except that Landlord
shall not enforce any Rule or Regulation against Tenant which Landlord shall not
then be enforcing against all other office tenants in the Building.
12.3 Nothing contained in Paragraph 5 of the Rules and Regulations shall
or shall be deemed to prohibit or prevent the Tenant first named in this Lease
from displaying (a) on the entrance doors of the Demised Premises and (b) in the
elevator lobbies of the floors which are occupied entirely by such Tenant, such
Tenant's usual and customary logo, trademark, service xxxx or other symbol
identifying Tenant or Tenant's services offered from the Demised Premises,
including Empire Mental Health Choice.
ARTICLE 13
Tenant's Changes
13.1 Tenant covenants and agrees that Tenant will make no alterations,
installations, repairs, additions, improvements or replacements, including,
without limitation, Tenant's Initial Alterations (as defined in Section 13-2)
(hereinafter collectively called "Tenant's Changes") in, to or about the Demised
Premises without Landlord's prior written consent, and then only by contractors
or mechanics set forth in Schedule 2 annexed hereto or otherwise approved in
advance by Landlord which consent, provided that such contractors comply with
the provisions of Section 13.3, shall not be unreasonably withheld or unduly
delayed. Tenant's Changes shall be done at Tenant's sole expense and at such
times and in such manner as Landlord may from time to time designate. Prior to
the commencement of any Tenant's Changes, Tenant shall submit to Landlord, for
Landlord's written approval, three sets of plans and specifications (to be
prepared by a licensed architect and/or engineer and at the expense of Tenant)
of such proposed Tenant's Changes in detail reasonably satisfactory to Landlord.
The Landlord reserves the right to refer such plans and specifications to
Landlord's consulting architects and/or engineers for review at Tenant's expense
not to exceed fifty cents ($0.50) for each square foot of the Demised Premises
affected by the applicable Tenant's Changes, provided, however, that in no event
shall the expenses for such architects and/or engineer's review of Tenant's
plans and specifications for Tenant's Initial Alterations exceed $5,000,00. The
Tenant shall comply with all reasonable changes or requirements recommended by
Landlord's consultants. Landlord shall not unreasonably withhold or unduly delay
its consent to any non-structural Tenant's Changes provided that such Tenant's
Changes (i) are not visible from the-outside of the Building, (ii) do not affect
any part of the Building other than the Demised Premises, (iii) do not adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building, (iv) do not adversely affect the
proper functioning of any of the Building mechanical, electrical, sanitary,
heating, air-conditioning, ventilating, elevator, plumbing, life safety or other
service systems and (v) do not reduce the value or utility of the Demised
Premises or the Building. In no event shall any material or equipment be
incorporated in or to the Demised Premises in connection with any such Tenant's
Changes which is subject to any lien, security agreement, charge, mortgage or
encumbrance of any kind whatsoever or is subject to any conditional sale or
other similar or dissimilar title retention agreement. Tenant's Changes shall at
all times comply with (1) all laws, rules, orders, regulations and ordinances of
governmental and municipal authorities having jurisdiction thereof, (2) the
rules and regulations of Landlord, and (3) architectural plans and
specifications prepared by and at the expense of Tenant theretofore submitted to
Landlord for Landlord's prior written approval and approved by Landlord, and
shall be undertaken and completed in a good, workmanlike manner using new or
comparable to new materials which shall be of a quality comparable to the
original installations in the Demised Premises. No Tenant's Changes shall be
commenced by Tenant or any one acting for or on behalf of Tenant until Landlord
has approved such plans and specifications, and no amendments or additions to
such plans and specifications shall be made without the prior written consent of
Landlord. With respect to any Tenant's Changes having a cost in excess of Fifty
Thousand Dollars ($50,000.00), Tenant shall deliver to Landlord waivers of lien
from all contractors, subcontractors and material suppliers involved in the
performance of such Tenant's Changes and the furnishing of materials in
connection therewith, together with a certificate from Tenant's architect
stating that (i) in the architect's opinion, such Tenant's Changes have been
performed (and completed) in a good and workmanlike manner and in accordance
with the plans and specifications therefore as approved by Landlord, and (ii)
all contractors, subcontractors and material suppliers have been paid for the
work performed in connection with such Tenant's Changes or the material
furnished in connection therewith.
13.2 Following the Commencement Date, Tenant shall commence and proceed
to complete within one (1) year after the Commencement Date all of the work
necessary for Tenant to prepare the Demised Premises for Tenant's use and
occupancy and, at Tenant's election, to construct an internal stairway, to be
denoted on Tenant's plans and specifications, and to be in an area of the
Demised Premises reasonably agreed to by Landlord and Tenant (all of the work
necessary to do so, exclusive of Landlord's Work, is herein referred to as
"Tenant's Initial Alterations"). Tenant's Initial Alterations shall be
undertaken and completed in accordance with this Lease and the provisions of
this Article 13 provided, however, that Landlord agrees that, provided Tenant's
plans and specifications for Tenant's Initial Alterations are in reasonably
sufficient detail so as to show the design, character and appearance of the work
to be included as Tenant's Initial Alterations, Landlord shall review and
approve or disapprove same within ten (10) business days after Tenant's
submission thereof to Landlord. If Landlord shall inform Tenant in writing, of
its objections to said plans and specifications, Tenant shall comply with all
changes or requirements reasonably recommended by Landlord's consultants and
shall submit revised plans and specifications to Landlord. The failure of
Landlord to inform Tenant of any further objections to the revised plans and
specifications within seven (7) business days after Tenant's submission of such
revised plans and specifications shall constitute Landlord's approval thereof.
13.3 Tenant agrees that it will not at any time prior or during the term
of this Lease, either directly or indirectly use any contractors, labor or
materials if the use of such contractors, labor or materials would create any
difficulty with other contractors, or labor engaged by Tenant or Landlord or
other engaged in the construction, maintenance or operation of the Building or
any part thereof. Landlord acknowledges and agrees that the contractors and/or
engineers set forth on Schedule 2 annexed to this Lease do not violate the
provisions of this Section 13.3.
13.4 (a) Prior to making any Tenant's Changes, include Tenant's Initial
Alterations, Tenant shall, at Tenant's sole cost and expense obtain all permits,
approvals and certificates required by all governmental or municipal authorities
having jurisdiction and shall furnish copies thereof to Landlord, shall furnish
to Landlord duplicate original policies or certificate thereof of workers'
compensation and builder's risk insurance covering all persons to be employed by
Tenant and Tenant's contractors and subcontractors in connection with Tenant's
changes, such insurance to otherwise comply with the provisions of Article 11 of
this Lease and, upon completion of Tenant's Changes, obtain, at Tenant's expense
certificates of final approval thereof if same are required by any governmental
or municipal authority having jurisdiction, a copy of which shall be furnished
to Landlord.
(b) Any review or approval by Landlord of any plans and/or
specifications with respect to any Tenant's Changes is solely for Landlord's
benefit and without any representation to Tenant or another person or entity
with respect to the adequacy, correctness, legality or efficiency thereof, or
otherwise.
13.5 All plans and specifications submitted by Tenant to Landlord for
Landlord's approval shall, if applicable, comply with the compartmentation
requirements of the City of New York Local Law #5/1973, as amended, and Landlord
shall not be deemed unreasonable in withholding its consent to any plans or
specifications not complying therewith.
13.6 If any mechanic's lien is filed against the Building or the Demised
Premises for work done or claimed to be done or for materials furnished or
claimed to be furnished to Tenant, including, without limitation, in connection
with Tenant's Changes, the same shall be discharged by Tenant, at its expense,
within thirty (30) days thereafter, by filing the bond required by law, by
payment or otherwise. Nothing contained in this Lease shall constitute a consent
or request by Landlord, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Demised Premises or any part thereof, nor as giving Tenant any right, power or
authority to contract for or permit the performance of any labor or services or
the furnishing of any materials of other property in such fashion as would
permit the making of any claim against Landlord in respect thereof. Notice is
hereby given that Landlord shall not be liable for any labor or materials
furnished or to be furnished to Tenant on credit and that no mechanic or other
lien for any such labor or material shall attach to the Building or affect the
reversion or other estate or interest of Landlord in and to the Demised
Premises.
ARTICLE 14
Tenant's Property
14.1 All fixtures, equipment, improvements, installations and
appurtenances attached to or built into the Demised Premises at the commencement
or during the term of the Lease, whether by Landlord at its own expense or at
the expense of Tenant, or by Tenant at the expense of Landlord (including
Tenant's Initial Alterations) shall be and remain a part Demised Premises and
shall not be removed by Tenant, except as hereinafter in this Article 14
expressly provided.
14.2 All paneling, movable partitions, lighting fixtures, special
cabinet work, other business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises or
for the account of Tenant, without expense to Landlord, and which can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any time during the term of the Lease; provided that if any of Tenant's
Property is removed, Tenant shall repair or pay the cost of repairing any damage
to the Demised Premises or the Building resulting from such removal. Any
equipment or other property for which Landlord shall have granted any allowance
or credit to Tenant (including the Tenant Improvement Allowance and Additional
Tenant Improvement Allowance, if any) shall not be deemed to have been installed
by or for the account of Tenant, without expense to Landlord, and shall not be
removed by Tenant.
14.3 At or before the Expiration Date, or the date of any earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and shall repair any damage to the Demised Premises or the
Building resulting from such removal.
14.4 Any other items of Tenant's Property (except money, securities and
other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of the Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, in such manner as Landlord may
see fit at Tenant's expense.
ARTICLE 15
Repairs and Maintenance
15.1 Tenant shall, throughout the term of this Lease, at Tenant's sole
cost and expense, take good care of the Demised Premises and the fixtures,
equipment, facilities and appurtenances therein and shall make all
non-structural repairs thereto as and when needed to preserve them in good
working order and condition, reasonable wear and tear accepted. All of Tenant's
repairs shall be of quality or class comparable to the original work or
construction and shall be made in accordance with the applicable provisions of
Article 13 hereof. In addition, Tenant, at its expense, shall promptly make all
repairs, ordinary or extraordinary, interior or exterior, structural or
otherwise, in and about the Demised Premises and the Building, as shall be
required by reason of (i) the performance or existence of Tenant's Initial
Alterations or other Tenant's Changes, (ii) the installation, use or operation
of Tenant's Property in the Demised Premises, (iii) the moving of Tenant's
Property or any other property owned or being delivered to or from Tenant in or
out of the Building, or (iv) the acts or omissions of Tenant or any of its
employees, agents, contractors quests and invitees; but Tenant shall not be
responsible, for any of such repairs as are required by reason of Landlord's
neglect or other fault in the manner of performing any of Tenant's Changes which
may be undertaken by Landlord for Tenant's account or are otherwise required by
reason of neglect or other fault of Landlord or its employees, agents,
contractors, guests and invitees. Except if due to the neglect or other fault of
Landlord or its employees, agents or contractors, Tenant, at its expense, shall
replace all scratched, damaged or broken doors and glass in the Demised Premises
and shall be responsible for all repairs, maintenance and replacement of wall
and floor coverings in the Demised Premises and for the repair and maintenance
of all lighting fixtures therein.
15.2 Landlord, at its expense, shall keep and maintain the Building and
its fixtures, appurtenances, systems and facilities serving the Building and
Demises Premises, in working order, condition and repair and shall make all
repairs, structural and otherwise, interior and exterior, as and when needed in
or about the Demised Premises, except for those repairs for which Tenant is
responsible pursuant to any other provisions of this Lease.
15.3 Except as expressly provided in this Lease, Landlord shall have no
liability to Tenant by reason of any inconvenience, annoyance, interruption or
injury to business arising from Landlord's making any repairs or changes which
Landlord is required or permitted by this Lease, or required by law, to make in
or to any portion of the Building or the Demised Premises, or in or to the
fixtures, equipment, or appurtenances of the Building or the Demised Premises.
Landlord shall undertake any such repairs or changes in a manner which will not
unreasonably and materially interfere with Tenant's use or occupancy of the
Demised Premises.
ARTICLE 16
Electricity
16.1 Landlord will furnish to Tenant, through transmission facilities
installed by it in the Building, alternating electric current to be used by
Tenant for the lighting fixtures and electrical receptacles installed in the
Demised Premises, but Landlord shall not be liable in any way to Tenant for any
failure or defect in supply or character of electric current furnished to the
Demised Premises, except as set forth in Section 16.7 of this Lease. Landlord
shall furnish and install (unless such installation is made by a duly qualified
employee of Tenant) all lighting tubes, lamps and bulbs used in the Demised
Premises and Tenant shall pay Landlord's reasonable charges therefor on demand
as additional rent. All ballasts shall be installed by Landlord and Tenant shall
pay Landlord's reasonable charges therefore on demand as additional rent
provided, however, that Tenant shall have the right to install such ballasts, at
Tenant's sole cost and expense, provided that Tenant employs a licensed
electrical contractor who complies with the provisions of Section 13.3, to do
so. Tenant shall use said electric current for lighting and, insofar as
Landlord's facilities are not burdened thereby and applicable laws and insurance
regulations permit, for operation, during normal business hours (i.e., the
Regular Hours of each Business Day, as both terms are defined in Article 17) of
such equipment as is normally used in connection with the operation of a usual
business office.
16.2 Tenant's use of electric current in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises and in no event shall
exceed the Building Standard allotment of six (6) xxxxx per square foot. Tenant
shall be allowed to make or perform or permit the making or performing of, any
alterations to wiring installations or other electrical facilities in or serving
the Demised Premises or any additions to the business machines, office equipment
or other appliances in the Demised Premises which utilize electrical energy
without the prior consent of Landlord so long as such usage does not exceed six
(6) xxxxx per square foot. If the usage should exceed six (6) xxxxx per square
foot, all additional risers, connections and/or other equipment required
therefor shall be installed by Landlord and the cost thereof shall be paid by
Tenant upon Landlord's demand. Landlord may also require that Tenant shall agree
to an increase in the annual fixed rent payable hereunder by an amount which
will reflect additional electric current made available to Tenant. If Landlord
and Tenant cannot agree thereon, such amount shall be determined by a reputable
independent electrical engineer to be selected by Landlord. If the Tenant
disputes the results of such survey, the dispute may, at Tenant's option to be
exercised strictly in accordance with section 16.3 (f), be submitted to dispute
resolution as provided in said Section 16.3 (f). When the amount of such
increase is so determined, the parties shall execute an agreement supplementary
hereto to reflect such increase in the amount of the annual fixed rent payable
hereunder effective from the date such additional service is made available to
Tenant; but such increase shall be effective from such date even if such
supplementary agreement is not executed.
16.3 (a) The annual fixed rent specified in this Lease includes
$123,960,00 per annum (the "Electric Charge") representing the estimated charge
for the furnishing of electrical service by Landlord to the Demised Premises,
based upon the rates charged as of August 1, 1991 by the public utility
furnishing electric energy to the Building. The Electric Charge is based upon
certain theoretical assumptions incorporating estimates of consumption of
electrical energy by lighting fixtures and other office equipment and machines
incident to the use of any premises as ordinary executive and general offices,
the anticipated periods of operation of such lighting fixtures, and office
equipment and machines and the cost of furnishing such electric energy.
(b) From time to time during the term hereof, the Electric Charge
may be increased to take into account:
(i) any material addition to the lighting fixtures, equipment and machines
in the Demised Premises;
(ii) use by Tenant of electric energy in the Demised Premises in excess of
the quantity considered and/or during periods of use other than those
considered in estimating the Electric Charge or determining any "Adjusted
Electric Charge" (as hereinafter defined) pursuant to this Article 16; or
(iii) any increase in Landlord's cost or expenses for or in connection with
the furnishing by it of electric energy to Tenant, in accordance with the
provisions of this Lease, which shall be due to any change in the rates
char by the public utility furnishing electric energy to the Building from
the rates charged as of August 1, 1991 by such utility or any change in
taxes based on the amounts charged by said public utility since the
effective date of the Electric Charge or the Adjusted Electric Charge, as
the case may be, then in effect.
Such increases in costs, except for those pursuant to subsection 16.3
(b) (iii) above, which increases in costs pursuant to said subsection 16.3 (b)
(iii) shall be based solely upon and equal to the increase in the rates charged
by the public utility for furnishing such electrical energy, shall be calculated
and reflected in the electricity and fixed rent in following manner: First: the
average monthly number of kilowatts of demand and the average monthly number of
kilowatt hours of consumption (or at the option of Landlord only the average
monthly number of kilowatt hours of consumption) shall first determined for the
electricity used in the entire Building over the twelve (12) monthly periods
immediately preceding rate change. Second: the cost thereof to Landlord shall be
at the rates in effect immediately prior to the rate change and at the rates in
effect immediately after the rate change. Third: the percentage by which such
cost after the rate change is greater than such cost before the rate change
shall be determined. Fourth: the Electric Charge or Adjusted Electric Charge, as
the case may be, shall be increased by the same percentage.
(c) Whenever, at any time during the term of this Lease, the
Electric Charge shall be increased, pursuant to clause (1) or (2) of paragraph
(b) of this Section 16.3, Landlord shall furnish to Tenant a survey setting
forth a new Electric Charge. (Any new Electric Charge pursuant to clauses (1),
(2), or (3) of paragraph (b) of this Section 16.3 is hereinafter sometimes
called the "Adjusted Electric Charge.")
(d) Upon the determination of an Adjusted Electric Charge
pursuant to clauses (1) or (2) of paragraph (b) of this Section 16.3, Landlord
shall furnish to Tenant a statement in writing recomputing and adjusting the
annual fixed rent hereunder by an appropriate sum representing any increase from
the Electric Charge then in effect, which statement shall be accompanied by the
survey upon which said increase was based, or in the case of any increase made
pursuant to clause (3) of paragraph (b) of this Section 16.3. the inclusion of
sufficient detail to enable Tenant to verify the increase referred to therein.
(e) Each such adjustment shall be effective retroactively
as of
(i) the effective date of the material addition in usage by Tenant, as
respects any increase made pursuant to clause (1) and (2) of paragraph (b)
of this Section 16.3, or
(ii) the date of the change in rates, as respects any increase made
pursuant to clause (3) of paragraph (b) of this Section 16.3.
Within twenty (20) days after the furnishing of any such
statement in writing, Tenant shall pay to Landlord as additional rent the
retroactive underpayment of annual fixed rent.
(f) Landlord and Tenant agree that Landlord's reputable, licensed
and independent electrical consultant may, from time to time, make surveys in
the Demised Premises covering the electrical equipment and fixtures and the uses
of current therein and, as aforesaid, the Electric Charge may be changed in
accordance with such survey. The determination of the change in the Electric
Charge by Landlord's consultant shall be binding and conclusive on Landlord and
on Tenant from and after the date of the delivery of copies of such
determination to Landlord and Tenant unless, within twenty (20) days after
delivery of a copy to Tenant, Tenant to Landlord written notice of its dispute
of such determination. If Tenant disputes such determination. it shall, at its
own expense within seven (7) Business Days after the date of its notice, at its
own expense, obtain from an independent, reputable, licensed electrical
consultant, its own survey of Tenant's electrical lighting and power load and
hours of use thereof and a determination in the change of the Electrical Charge
in accordance with the provisions of this Article 16. Upon completion of
Tenant's survey, Tenant shall forthwith provide to Landlord a copy. Thereafter,
Tenant's consultants and Landlord's consultants shall seek to agree on the
revised Electric Charge or Adjusted Electric Charge. If the two consultants can
not agree, they shall choose a third reputable, independent electrical
consultant the cost of which shall be shared equally by Landlord and Tenant, to
make a similar survey and the determination of the change in the Electric Charge
by such third electrical consultant shall be controlling. If Landlord's
consultant and Tenant's consultant can not agree on such third consultant within
ten (10) days after it is determined by either consultant that they are unable
to agree upon the revised Electric Charge or Adjusted Electric Charge, then
either Landlord or Tenant may apply to the Real Estate Board of New York, Inc.,
for the appointment of such third consultant. However, pending such final
determination, Tenant shall pay to Landlord the amount of the increased Electric
Charge as determined by Landlord's electrical consultant provided, however, that
if the final determination differs from the determination made by Landlord's
consultant, Landlord and Tenant shall make an adjustment for any deficiency owed
by Tenant or average paid by Tenant pursuant to the decision of Landlord's
electrical consultant.
(g) Landlord shall not be required, in connection with any survey
to be conducted in accordance with clauses (1) or (2) of paragraph (b) of this
Section 16.3. to document the basis for its belief that there has been material
addition to the lighting fixtures, equipment and machines in the Demised
Premises or that Tenant uses electrical energy in the Demised Premises in excess
of the quantity considered or during periods other than those considered in
estimating the Electric Charge or any Adjusted Electric Charge, or to have or
produce any basis therefor whatever, it being the intention of the parties that
Landlord shall have the right to initiate a survey or determination hereunder at
any time during the term of this Lease for any reason whatsoever.
16.4 Provided that Landlord elects to discontinue furnishing electric
energy to not less than ninety percent (90%) of the tenants in the Building, and
provided that electrical energy is available to Tenant from Consolidated Edison
Company of New York-or another public utility or private company, Landlord
reserves the right to discontinue furnishing electric energy to Tenant in the
Demised Premises at any time upon not less than ninety (90) days notice to
Tenant. If Landlord exercises such right of termination, 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 termination, Landlord shall not
be obligated to furnish electric energy to Tenant and the fixed rent payable
under this Lease shall be reduced by $123,960,00 per year plus the amount of any
increases pursuant to this Section 16.4. If Landlord so discontinues furnishing
electric energy to Tenant, Tenant shall arrange to obtain electric energy
directly from the public utility company furnishing electric service to the
Building. Such electric energy may be furnished to Tenant by means of the then
existing building system feeders, risers and wiring to the extent that the same
are available, suitable and safe for such purposes. All meters an additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electric energy directly from such public utility
company shall be installed by Landlord at its expense.
16.5 Notwithstanding the aforesaid provisions of this Article, if
pursuant to an action of the Public Service Commission of the State of New York,
or otherwise, sub-metering of electricity is permitted at the Building, Landlord
shall have the option, at Landlord's sole cost and expense, of installing
sub-meters to measure Tenant's electricity consumption and to charge the Tenant
for its electric consumption at the then applicable rate, if any, for
sub-metered electricity. In the event no such rate is promulgated, then Landlord
shall xxxx Tenant and Tenant shall pay Landlord for Tenant's electric
consumption at the same rates and frequency that Landlord is obligated to pay to
the local utility company furnishing electricity to the Building and all such
sums shall be collectible as additional rent payable hereunder.
16.6 In no event will the amount of fixed annual rent be decreased due
to adjustments in the Electric Charge or Adjusted Electric Charge pursuant to
this Article 16.
16.7 If the supply of electrical energy to the Demised Premises shall be
interrupted due to a cause or causes within Landlord's control for a period of
fifteen (15) consecutive Business Days, then, unless within said fifteen (15)
consecutive Business Day period Landlord shall have restored the service of
electrical energy to the Demised Premises (or if such restoration of service, in
good faith and with the exercise of diligence, cannot be completed within said
fifteen (15) Business Day period, then, unless Landlord has commenced to restore
such electrical energy service and is proceeding with diligence and continuity
to do so) at the end of the fifteen (15) Business Day period, as Tenant's sole
and exclusive remedy, at Tenant's option, the fixed rent and additional rent
payable by Tenant under this Lease shall be abated one day for each day after
said fifteen (15) Business Day period until such time as the electrical energy
service to the Demised Premises shall have been restored following an
interruption due to a cause or causes within Landlord's control. For the
purposes of this Section 16.7, if the supply of electrical energy to the
Premises shall be interrupted due to a strike or labor troubles, laws, rules,
regulations of governmental ordinances, governmental action or preemption in
connection with a national emergency or by reason or any legal requirement, fire
or other-casualty, failure of the public utility to supply same to the Building,
acts of God, civil commotion, third-party criminal behavior, terrorism, war, or
other acts or occurrences outside of Landlord's control and which are commonly
described as "force ___ events, such events, and each of them, shall be deemed
to be causes not within Landlord's control. Without limiting the generality of
the foregoing, an event shall be deemed to be within Landlord's control if such
event is due to repairs or alterations performed (or failed to be performed) by
Landlord or the failure of Landlord to maintain the Building systems owned or
controlled by Landlord which provide the electrical energy to the Building and
the Demised Premises. In no other event shall Landlord be liable, in any way,
for an interruption of the service of electrical energy or a failure or defect
in the supply or character or electrical current or energy furnished to the
Demised Premises.
ARTICLE 17
Heat, Ventilation
and Air Conditioning
17.1 Landlord, at its expense, shall maintain and operate in accordance
with Section 15.2 of this Lease, the heating, ventilating and air-conditioning
systems (the "Systems") and shall furnish heat, ventilating and air-conditioning
(hereinafter collectively called "air-conditioning service") in the Demised
Premises through the Systems, during "Regular Hours" (i.e., daytime business
hours, but not before 8:30 a.m. or after 6:00 p.m. Monday through Friday) of
"Business Days" (which shall mean all days except Saturdays, Sundays and days
observed by the Federal, state or municipal government or unions whose members
are employed at the Building, as holidays) throughout the year. If Tenant shall
require air-conditioning service at any other time (hereinafter called "After
Hours"), Landlord shall furnish such After Hours air-conditioning service upon
reasonable advance notice from Tenant, and Tenant shall pay Landlord's then
established charges therefor on Landlord's demand. In no event shall Tenant be
required to pay more for After Hours air-conditioning service then any other
tenant in the Building. Notwithstanding the foregoing, on or before January 31st
during each year of the term of this Lease, Tenant shall have the right to
designate two non-Business Days during such calendar year on which dates Tenant
intends to open the Demised Premises for business notwithstanding that such
dates are non-Business Days. Landlord agrees that on such days, Landlord shall
furnish After Hours air-conditioning service to the Demised Premises and Tenant
shall pay to Landlord in lieu of Landlord's established charges therefore, an
amount equal to fifty percent (50%) of Landlord's then established charges for
each such day, or such other amount as Landlord and Tenant may agree upon by
written instrument signed by both parties. Upon receipt of Tenant's notice
designating the two non-Business Days as aforesaid, Landlord shall advise Tenant
of the costs to Tenant for such After Hours air-conditioning service for the two
designated dates.
17.2 The use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions thereof (including occupancy and connected
electrical load) for air-conditioning service in the Demised Premises, or
rearrangement of partitioning which interferes with normal operation of the
air-conditioning service in the Demised Premises, or the use of computer or data
processing machines (other than customary desk top network personal computers
and workstations) may require changes in the Systems servicing Tenant, at its
expense, as Tenant's Changes pursuant to Article 13. Tenant agrees to lower and
keep closed the Venetian blinds or other window coverings in the Demised
Premises whenever required for the proper operation of the air-conditioning
service.
ARTICLE 18
Landlord's Other Services
18.1 Landlord, at its expense, shall provide public elevator service,
passenger and service, by elevators serving the floor on which the Demised
Premises are situated during Regular Hours of Business Days, and shall have at
least one passenger elevator subject to call at all other times including
non-Business Days.
18.2 Landlord, at its expense, shall cause the Demised Premises,
including the exterior and the interior of the windows thereof, to be cleaned.
Tenant shall pay to Landlord on demand the costs incurred by Landlord for (a)
extra cleaning work in the Demised Premises required because of (i) misuse or
neglect on the part of Tenant or its employees or visitors, (ii) use of portions
of the Demised Premises for preparation, serving or consumption of food or
beverages, data processing or reproducing operations in excess of customary
office operations, private lavatories or toilets or other special purposes
requiring greater or more difficult cleaning work than office areas, (iii)
unusual quantity of interior glass surfaces, (iv) non-building standard
materials or finishes installed by Tenant or at its request, (b) removal from
the Demised Premises and the Building of so much of any refuse and rubbish of
Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy, and (c) cleaning services used by Tenant on days
other than Business Days. Landlord, its cleaning contractor and their employees
shall have After Hours access to the Demised Premises and the use (at Tenant's
expense) of light, power and water in the Demised Premises as reasonably
required for the purpose of cleaning the Demised Premises in accordance with
Landlord's obligations hereunder.
18.3 Landlord, at its expense, shall furnish adequate hot and cold water
to the floors on which the Demised Premises are located, for drinking, lavatory
and cleaning purposes. If Tenant uses water for any other purpose Landlord, at
Tenant's expense, may install meters to measure Tenant's consumption of water
and/or steam, as the case may be. Tenant shall pay for the quantities of water
and/or steam shown on such meters, at Landlord's cost thereof, on the rendition
of Landlord's bills therefor.
18.4 Landlord reserves the right, without any liability to Tenant,
except as otherwise expressly provided in this Lease, to stop service of any of
the heating, ventilating, air-conditioning, electric, sanitary, steam, elevator
or other Building systems serving the Demised Premises or the rendition of any
of the other services required of Landlord under this Lease, whenever and for so
long as may be reasonably necessary, by reason of accidents, emergencies,
strikes or the making of repairs or changes which Landlord is required by this
Lease or by law to make or in good xxxxx xxxxx necessary, by reason of
difficulty in securing proper supplies of fuel, steam, water, electricity, labor
or supplies, or by governmental restriction or by reason of any other cause
beyond Landlord's reasonable control including those events enumerated in
Section 16.7 as not being within Landlord's control.
ARTICLE 19
Access, Changes in
Building Facilities, Name
19.1 Except for the inside surfaces of all walls, windows and doors
bounding the Demised Premises, all of the Building, including exterior Building
walls, core corridor walls and doors and any core corridor entrance, any
terraces or roofs adjacent to the Demised Premises, and any space in or adjacent
to the Demised Premises, used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other Building facilities, and the
use thereof, as well as access thereto through the Demised Premises for the
purposes of operation, maintenance, decoration and repair, are reserved to
Landlord.
19.2 Landlord reserves the right to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Demised Premises) and the fixtures and equipment thereof, as well
as in or to the street entrances, halls, passages, elevators, escalators,
stairways and other parts thereof, and to erect, maintain and use pipes, duct
and conduits in and through the Demised Premises, all as Landlord may deem
necessary or desirable; provided, however, that there no unreasonable
obstruction of the means of access to the Demised Premised or unreasonable
interference with the use of the Demised Premises. Nothing contained in this
Article 19 shall impose upon Landlord any duty, obligation or liability with
respect to making any repair, replacement or improvement or complying with any
law, order or requirement of any governmental or other authority, except only to
the extent otherwise specifically set forth in this Lease.
19.3 Landlord reserves the right to name the Building and to change the
name or address of the Building at any time from time to tine. Neither this
Lease nor any use by Tenant shall give Tenant any easement or other right in or
to the use, if any, of any door or any passage or any concourse or any place
connecting the Building with any subway or any other building; or to any public
conveniences, and the use of such doors, passages, concourses, plazas and
conveniences may without notice to Tenants be regulated or discontinued at any
time by Landlord. If at a time any windows of the Demised Premises are
temporarily darkened or obstructed incident to or by reason of repairs,
replacement maintenance and/or cleaning in, on, to or about the Building of any
part or parts thereof, or are temporarily or permanently closed or rendered
inoperable, Landlord shall not be liable for any damage Tenant may sustain
thereby, and Tenant shall not be entitled to and compensation therefor nor
abatement of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction.
19.4 There shall be no allowance to Tenant for a diminution of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or others making
any changes, alterations, additions, improvements, repairs or replacements in or
to any portion of the Building or the Demised Premises, or in or to fixtures,
appurtenances or equipment thereof, and no liability upon Landlord for failure
of Landlord or others to make any changes, alterations, additions, improvements,
repairs or replacements in or to any portion of the Building or the Demised
Premises, or in or to the fixtures, appurtenances or equipment thereof, unless
with respect to a failure by Landlord to make repairs, such failure is a default
by Landlord of its obligations under this Lease.
19.5 Landlord or Landlord's agent shall have the right to enter and/or
pass through the Demised Premises or any part thereof, at reasonable times
during reasonable hours (i) to examine the Demised Premises and to show them to
the fee owners, lessors of superior leases, holders of superior mortgages, or
prospective purchasers, mortgagees or lessees of the Building as an entirety,
and (ii) for the purpose of making such repairs or changes or doing such
repainting in or to the Demised Premises in or to the Building or its facilities
as may be provided for this Lease or as it may be required to make by law or in
order repair and maintain the Building or its fixtures or facilities. Landlord,
without cost or charge to Landlord by Tenant, shall be allowed to take all
materials into and upon the Demised Premise that may be required for such
repairs, changes, repainting and maintenance, without liability to Tenant
(except to the extent not covered by the insurance that Tenant is required to
maintain pursuant to this Lease, for damages to property or injuries to persons
caused by the negligence of Landlord, its employees, agents, contractors and
representatives). Landlord shall also have the right to enter on and/or pass
through the Demised Premises, or any part thereof, at such times as such entry
shall be required by circumstances of emergency affecting the Demised Premises
or the Building. Entry by Landlord to or through the Demised Premises, where
possible, shall be upon prior notice to Tenant, oral or written, as the
circumstances may dictate, except in emergencies. During any such entry,
Landlord shall not unreasonably obstruct the means of access to the Demised
Premise or unreasonably interfere with the use of the Demised Premises by
Tenant.
19.6 During the period of twelve (12) months prior to the Expiration
Date Landlord may exhibit the Demised Premises prospective tenants, such entry
to be at reasonable times during normal business hours.
19.7 For purposes of this Article 19, the term "Landlord" shall include
lessors of leases and the holders mortgages to which this Lease is subject and
subordinate as provided in Article 7.
19.8 Landlord acknowledges that Tenant has advised Landlord that some of
the business records to be maintained by Tenant in the Demised Premises may be
of a confidential nature or contain other proprietary information. Landlord
agrees that Landlord, its agents, employees, contractors and representatives
shall use all reasonable efforts to avoid a breach of confidentiality and the
disclosure of any such confidential information. Tenant agrees to take such
precautions as may be necessary or appropriate to prevent the inadvertent
disclosure and such confidential or other information to Landlord or Landlord's
agents, employees, contractors or representatives. The foregoing shall not apply
to any information which, at the time of its disclosure is or which thereafter
becomes, through no fault of Landlord, part of the public domain by publication
or otherwise or information which might have been acquired directly or
indirectly without violation of the foregoing provisions of this Lease, Landlord
agrees to indemnify and hold Tenant harmless from any cost, expense, loss,
liability or claims therefore arising directly from a breach by Landlord, its
agents, employees, contractors or representatives of the confidentiality
provisions of this Section 19.8 due to Landlord's active gross negligence or
wilful malfeasance, provided, however, that it is a condition precedent to the
effectiveness of this indemnification that (i) Tenant shall have taken such
precautions as may be necessary or appropriate to prevent the inadvertent
disclosure of any such confidential or proprietary information to Landlord or
Landlord's agents, employees, contractors or representatives, and (ii) Landlord
shall have reasonably prompt notice of any such claim, loss, cost or expense
asserted against Tenant and the opportunity for Landlord to appear and defend
against such claims, utilizing counsel of Landlord's choice. Nothing contained
in this Section 19.8 shall or shall be deemed to require Landlord to provide any
service to the Demised Premises, including, without limitation, cleaning
services, in a fashion which differs in any material respect from the provision
of such service to the other tenants in the Building.
ARTICLE 20
Notice of Accidents 20.1 Tenant shall give notice to Landlord, promptly
after Tenant learns thereof, of (i) any accident in or about the Demised
Premises for which Landlord might be liable, (ii) all fires in the Demised
Premises, (iii) all damages to or defects in the Demised Premises,
including the fixtures, equipment and appurtenances thereof for the repair
of which Landlord might be responsible, and (iv) all damage to or defects
in any parts of appurtenances or the Building's sanitary, electrical,
heating, ventilating, air-conditioning, elevator and other systems located
in or passing through the Demised Premises or any part thereof.
ARTICLE 21
Non-Liability and Indemnification
21.1 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage or loss,
unless caused by or due to the negligence of Landlord, its agents or employees,
with or without contributory negligence on the part of Tenant.
21.2 Tenant shall indemnify, save harmless and defend Landlord and its
agents against and from (a) any and all claims (i) arising from (x) the use or
occupancy of the Demised Premises, or (y) any work or thing whatsoever done, or
any condition created (other than by Landlord for Landlord's or Tenant's
account) in or about the Demised Premises during the term of this Lease or
during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises, or (ii) arising from any
negligent or otherwise wrongful act or omission of Tenant or any of its
subtenants or its or their employees, agents or contractors, and (b) all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend such action or proceeding.
21.3 Except as otherwise expressly provided in this Lease, this Lease
and the obligations of Tenant hereunder shall be in no way affected, impaired or
excused because Landlord is unable to fulfill, or is delayed in fulfilling, any
of its obligations under this Lease by reason of strike, other labor trouble,
governmental pre-emption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, or other like cause beyond Landlord's reasonable control.
ARTICLE 22
Destruction or Damage
22.1 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article 22 hereinafter provided), Landlord shall repair
the damage and restore and rebuild the Building and/or the Demised Premises, at
its expense, with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of Tenant's Property, including without limitation, Tenant's Initial
Alterations, it being understood and agreed that Landlord's obligations with
respect to the Demised Premises shall be to restore the Demised Premises to
substantially the same condition as existed on the Commencement Date.
22.2 If the Building or the Demised Premises shall be partially damaged
or partially destroyed by fire or other cause, the fixed rent and additional
rent payable hereunder shall be abated to the extent that the Demised Premises
shall have been rendered untenantable and for the period from the date of such
damage or destruction to the date which is thirty (30) days after the date that
the damage shall be substantially repaired or restored. If the Demised Premises
or a major part thereof shall be totally (which shall be deemed to include
substantially totally) damaged or destroyed or rendered completely (which shall
be deemed to include substantially completely) untenantable on account of fire
or other cause, the rent fixed rent and additional rent xxxxx as of the date of
the damage or destruction and until the date which is thirty (30) days after
Landlord shall have repaired, restored and rebuilt the Building and the Demised
Premises, provided, however, that should Tenant reoccupy a portion of the
Demised Premises during the period the Demised Premises are made completely
untenantable, fixed rent and additional rent allocable to such portion shall be
payable by Tenant from the date of such occupancy.
22.3 If the Building or the Demised Premises shall be totally damaged or
destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or other cause as to require a reasonably estimated
expenditure of more than forty (40%) percent of the full insurable value of the
Building immediately prior to the casualty, then in either such case Landlord
may terminate this Lease by giving Tenant notice to such effect within one
hundred eighty (180) days after the date of the casualty. In case of any damage
or destruction mentioned in this Article 22, Tenant may terminate this Lease by
notice to Landlord, if Landlord has not completed the making of the required
repairs and restored and rebuilt the Building and the Demised Premises within
eighteen (18) months from the date of such damage or destruction, or within such
period after such date (not exceeding six (6) months) as shall equal the
aggregate period Landlord may have been delayed in doing so by adjustment of
insurance, labor trouble, governmental controls, act of God, or any other cause
beyond Landlord's reasonable control and such termination shall be effective
upon the expiration of thirty (30) days after the date of such notice. Without
limiting the generality of the foregoing, if, during the last eighteen (18)
months of the term of this Lease, fifty percent (50%) or more of the area of the
Demised Premises is damaged or destroyed by fire or other casualty and are,
thus, rendered unusable and untenantable by Tenant, Tenant shall have the right
to terminate this Lease by giving Landlord notice to such affect within twenty
(20) days after the date of the fire or other casualty. If Tenant elects to
terminate this Lease as aforesaid, this Lease shall terminate on the date which
is thirty (30) days after the date of the fire of other casualty as if such date
were the Expiration Date herein originally fixed. In such event, and in any
other event under this Article 22 wherein Tenant has the right to terminate this
Lease due to a fire or other casualty, as a condition to the effectiveness of
Tenant's termination notice and to the termination of this Lease in accordance
therewith, Tenant shall, and hereby agrees to, assign to Landlord all of
Tenant's right, title and interest in and to all insurance proceeds with respect
to Tenant's Initial Alterations and Landlord shall have the sole right to adjust
any loss in connection therewith.
22.4 No damages, compensation or claim shall by payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article 22. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy.
22.5 Notwithstanding any of the foregoing provisions of this Article 22,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction to the Demised
Premises or the Building by fire or other cause, by reason of Tenant's willful
acts or omissions some action or inaction on the part of Tenant or any of its
employees, agents or contractors, then, without prejudice to any other remedies
which may be available against Tenant, there shall be no abatement of Tenant's
fixed rent and additional rent until the total amount of such rents not abated
which would otherwise have been abated equals the amount of uncollected
insurance proceeds. The provisions of this 22.5 shall not, in any way, obviate
or adversely affect Landlord's obligation under Section 11.2 of this Lease with
respect to obtaining a waiver of subrogation of permission for waiver of claim
in Landlord's fire and casualty insurance policies.
22.6 Landlord will not carry separate insurance of any kind on Tenant's
Property and Landlord shall not be obligated to repair any damage thereto or
replace the same.
22.7 In the event of the termination of this Lease pursuant to any of
the provisions of this Article 22, this Lease and the term and estate hereby
granted shall expire as of the date of such termination with the same effect as
if that were the Expiration Date, and the fixed rent and additional rent payable
hereunder shall be apportioned as of such date.
22.8 The provisions of this Article 22 shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for a contingency in the absence of an express agreement,
and any other law of like import, now or hereafter in force, shall have no
application to the Demised Premises and this Lease.
ARTICLE 23
Condemnation
23.1 In the event that the whole of the Demised Premises shall be
lawfully condemned or taken in any manner for any public use, this Lease and the
term and estate hereby granted shall forthwith cease and terminate as of the
date of vesting of title. In the event that only a part of the Demised Premises
shall be so condemned or taken, then, effective as of the date of vesting of
title, the fixed rent and additional rents under Article 5 hereunder shall be
abated in an amount proportionate to the area of the Demised Premises so
condemned or taken. In the event that only a part of the Building shall be so
condemned or taken, then (a) Landlord (whether or not the Demised Premises be
affected) may, at Landlord's option, terminate this Lease and the term and
estate hereby granted as of the date of such vesting of title by notifying
Tenant in writing of such termination within sixty (60) days following the date
on which Landlord shall have received notice of vesting of title, or (b) if such
condemnation or taking shall be of a substantial part of the Demised Premises or
of a substantial part, of the means of access thereto, Tenant may, at Tenant's
option, by delivery of notice in writing to Landlord within thirty (30) days
following the date on which Tenant shall have received notice of vesting of
title, terminate this Lease and the term and estate hereby granted as of the
date of vesting of title, or (c) if neither Landlord nor Tenant elects to
terminate this Lease, as aforesaid, this Lease shall be and remain unaffected by
such condemnation or taking, except that the fixed rent and additional rents
payable under Article 5 payable hereunder shall be abated to the extent
hereinbefore provided in this Article 23. In the event that only a part of the
Demised Premises shall be so condemned or taken and this Lease and the term and
estate hereby grant with respect to the remaining portion of the Demised
Premises are not terminated as hereinbefore provided, Landlord will, with
reasonable diligence and at its expense, restore the remaining portion of the
Demised Premises as nearly as practicable to the same condition as it was in
prior to such condemnation or taking.
23.2 In the event of its termination in any of the events hereinbefore
provided, this Lease and the term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the Expiration
Date, and the fixed rent and additional rent payable hereunder shall be
apportioned as of such date.
23.3 In the event of any condemnation or taking hereinbefore mentioned
of all or a part of the Building, Landlord shall be entitled to receive the
entire award in the condemnation proceeding, including any award made for the
value of the estate vested by this Lease in Tenant, and Tenant hereby expressly
assigns to Landlord any and all right, title and interest of Tenant now or
hereafter arising in or to any such award or any part thereof, and Tenant shall
be entitled to receive no part of such award.
23.4 It is expressly understood and agreed that the provisions of this
Article 23 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period, If the temporary use of all or any
part of the Demised Premises shall be taken at any time during the term of this
Lease for any public or quasi-public purpose by any lawful power or authority,
by the exercise of the right of condemnation or eminent domain, or by agreement
between Tenant and those authorized to exercise such right, the term of the
Lease shall not be affected in any way and Tenant shall continue to pay in full
the fixed rent and additional rent herein provided to be paid by Tenant, and,
subject to the other provisions of this Article 23 and except as hereinafter
provided, Tenant shall be entitled to receive any award or payment for such use.
If such taking is for a period extending beyond the term of this Lease and if
any award or payment made for such use is made in a lump sum, such award or
payment shall be apportioned between Landlord and Tenant as of the Expiration
Date. If such taking results in changes or alterations in or to the Demised
Premises which would necessitate an expenditure, after repossession, to restore
the Demised Premises to its former condition and such award or payment includes
an amount (whether or not specified) to compensate for such expenditure, and if
possession of the Demised Premises shall revert to Tenant prior to the
expiration of the term, Tenant shall restore the Demised Premises at Tenant's
own cost, and in all respects indemnify Landlord against and save Landlord
harmless from matters resulting from such taking, and the portion, if any, of
the award or payment to compensate for such expenditure shall be made available
by Landlord for the purpose of paying the cost of such restoration to be
performed by Tenant. If possession of the Premises shall revert to Landlord
after expiration of the term of this Lease, such portion of said award shall be
paid and shall belong solely to Landlord.
23.5 In the event any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article 23, then (i) if such compliance is
the obligation of Tenant under this Lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this Lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5 shall
be adjusted in the same manner as is provided in Section 23.1 according to the
reduction in rentable area of the Demised Premises resulting from such taking,
provided, however, that if such taking is of a substantial part of the Demised
Premises or of a substantial part of the means of access thereto, Tenant may, at
Tenant's option terminate this Lease in the manner, and following the procedures
as set forth in Section 23.1.
ARTICLE 24
Surrender
24.1 On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord in good order, condition and
repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and Tenant shall
remove all of Tenant's Property therefrom except as otherwise expressly provided
in this Lease.
24.2 Tenant agrees it shall indemnify and save Landlord harmless against
all costs, claims, loss or liability resulting from delay by Tenant i-n
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 Landlord resulting from any failure by Tenant timely to
surrender the Demised Premises will be substantial, will exceed the amount of
monthly rent theretofore payable hereunder, and will be impossible of accurate
measurement. Tenant therefore agrees that if possession of the Demised Premises
is not surrendered to Landlord within two (2) days after the date of the
expiration or sooner termination of the term of this Lease, then Tenant will pay
Landlord as liquidated damages for each month and for each portion of any month
during which Tenant holds over in the Demised Premises after expiration or
termination of the term of this Lease, a sum equal to two (2) times the average
rent and additional rent which was payable per month under this Lease during the
last six months of the term hereof. The aforesaid obligations shall survive the
expiration or sooner termination of the term of this Lease.
ARTICLE 25
Conditions of Limitation
25.1 This Lease and the term and estate hereby granted are subject to
the limitation that whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankruptcy or insolvency law or any involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant under
the reorganization provisions of any law of like import, or whenever a petition
shall be filed by Tenant under the arrangement provisions of the United States
Bankruptcy Act or under the provisions of any law of like import, or whenever a
permanent receiver of Tenant of or for the property of Tenant shall be
appointed, then, Landlord may, (a) at any time after receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for thirty (30)
days, give Tenant a notice of intention to end the term of this Lease at the
expiration of ten (10) days from the date of service of such notice of
intention, and upon the expiration of said ten (10) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
25.2 This Lease and the term and estate hereby granted are subject to
further limitation as follows:
(a) whenever Tenant shall default in the payment of any
installment of fixed rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, on any day upon which the same ought to be
paid, and such default shall continue for five (5) days after Landlord shall
have given Tenant notice specifying such default, or
(b) whenever Tenant shall fail to perform and observe the non
monetary obligations contained in this Lease on Tenant's part to perform and
observe, and if such default shall continue and shall not be remedied by Tenant
within fifteen (15) days after Landlord shall have given to Tenant a notice
specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of fifteen (15) days and the continuance of
which for the period required for cure will not subject Landlord to the risk of
criminal liability (as more particularly described in Article 10 hereof) or
termination of any superior lease or foreclosure of any superior mortgage, if
Tenant shall not, (i) within said fifteen (15) day period advise Landlord of
Tenant's intention to duly institute such steps necessary to remedy such
situation, (ii) duly institute within said fifteen (15) day period, and
thereafter diligently and continuously prosecute to completion all steps
necessary to remedy the same and (iii) complete such remedy within a reasonable
period of time after the date of the giving of said notice of Landlord, or
(c) whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 36, or
(d) whenever Tenant shall vacate and abandon the Demised Premises
(unless as a result of a casualty) with the intention not to return thereto, or
(e) whenever Tenant shall default in the due keeping, observing
or performance of any covenant, agreement, provision or condition of Article 2
hereof on the part of Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by Tenant within seventy-two
(72) hours after Landlord shall have given to Tenant a notice specifying the
same,
then in any of said cases set forth in the foregoing Subsections (a),(b),
(c),(d) and (e) Landlord may give to Tenant a notice of intention to end the
term of this Lease at the expiration of three (3) days from the date of the
service of such notice of intention, and upon the expiration of said three (3)
days this Lease and the term and estate hereby granted, shall terminate with the
same effect as if that day were the Expiration Date, but Tenant shall remain
liable for damages as provided in Article 27.
25.3 If an order for relief is entered in any case which is commenced by
or against Tenant under the present or any future federal bankruptcy code,
Landlord shall be entitled to invoke any and all rights and remedies available
to it under such bankruptcy code or this Lease, including, without limitation,
such rights and remedies as may be necessary to protect adequately Landlord's
right, title and interest in and to the Demised Premises or any part thereof.
ARTICLE 26
Re-Entry by Landlord 26.1 If Tenant shall default in the payment of any
installment of fixed rent, or of any additional rent, on any date upon
which the same ought to be paid, and if such default shall continue for
five (5) days after Landlord shall have given to Tenant a notice specifying
such default, or if this Lease shall expire or be terminated as in Article
25 provided, Landlord or Landlord's agents and employees may immediately or
at any time thereafter re-enter the Demised Premises, or any part thereof,
by summary dispossess proceedings or by any suitable action or proceeding
at law (but, absent a Court order, not by force), to the end that, Landlord
may have, hold and enjoy the Demised Premises again as and of its first
estate and interest therein. The word re-enter, as herein used, is not
restricted to its technical legal meaning. In the event of any termination
of this Lease under the provision of Article 25 or if Landlord shall
re-enter the Demised Premises under the provisions of this Article 26 or in
the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceedings or action or any provision of law
by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the fixed rent and additional rent payable by
Tenant to Landlord up to the time of such termination of this Lease, or of
such recovery of possession of the Demised Premises by Landlord, as the
case may be, and shall also pay to Landlord
26.2 In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as of specific remedies were
not provided for herein.
26.3 If this Lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such monies shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
Damages
27.1 If this Lease is terminated under the provisions Article 25, or if
Landlord shall re-enter the Demised Premises under the provisions of Article 26,
or in the event of the termination of this Lease, or of re-entry, by or under
any summary dispossess or other proceeding or action or any provisions of law by
reason of default hereunder on the part of Tenant, Tenant shall pay to Landlord
as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination this Lease or at
the time of any such re-entry by Landlord, as the case may be re resents the
then value of the excess, of
(i) the aggregate of the fixed rent and additional rent payable hereunder
which would have been payable by Tenant (conclusively presuming the
additional rent to be same as was payable for the year immediately
preceding such termination) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case may
be, and ending with the Expiration Date, had this Lease no so terminated or
had Landlord not so re-entered the Demised Premises, over
(ii) the aggregate rental value of the Demised Premises for the same
period, or
(b) sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due date therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall re-let the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, which shall be equal to the loss rents as and when received by
Landlord from such re-letting, less the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in securing
possession thereof, as well as the expenses of re-letting, including altering
and preparing the Demised Premises for new tenants, brokers' commissions, and
all other expenses properly chargeable against the Demised Premises and the
rental thereof. Any such re-letting may be for a period shorter or longer than
the remaining term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, or shall Tenant be entitled in any suit for the collection of damages
pursuant to this Subsection 27.1(b) to a credit in respect of any net rents from
a re-letting, except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be re-let in
combination with other space, the rent received from such re-letting and the
expenses of re-letting shall be apportioned on a square foot basis. If the
Demised Premises or any part thereof be re-let by Landlord for the unexpired
portion of the term of this Lease, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such re-letting shall, prima facie, be the fair and reasonable
rental value for the Demised Premises, or part thereof, so re-let during the
term of the re-letting.
27.2 Suit or suits for the recovery of such damages, any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
terminated under the provisions of Article 25, or under any provision of law, or
had Landlord not re-entered the Demised Premises, Nothing herein contained shall
be construed to limit or preclude recovery by Landlord against Tenant for any
sums of damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of tenant. Nothing herein contained shall be construed to limit or
prejudice the right of the termination of this Lease or re-entry of the Demised
Premises for the default of Tenant under this Lease, 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 any of the sums referred to in
Section 27.1.
ARTICLE 28
Waivers
28.1 Tenant does hereby waive and surrender all right and privilege
which Tenant might have under or by reason of present or future law, to redeem
the Demised Premises or to a continuance of this Lease for the term hereby
demised after being dispossessed or ejected therefrom by process of law or under
the terms of this Lease or after the termination of this Lease as herein
provided.
28.2 In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
28.3 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other or any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of landlord and tenant, Tenant's use or occupancy of the Demised
Premises including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto, Tenant also waives the provisions of any
law relating to notice and/or delay __ of execution in case of an eviction or
dispossess, and of any other law of like import now or hereafter in effect. If
Landlord commences any summary proceeding, Tenant agrees that Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding, except for mandatory counterclaims.
28.4 The provisions of Article 17 and 18 shall be considered express
agreements governing the services to be furnished by Landlord, and Tenant agrees
that any laws and/or requirements of public authorities, now or hereafter in
force, shall have no application in connection with any enlargement of
Landlord's obligations with respect to such services.
ARTICLE 29
No Other Waivers or Modifications
29.1 The failure of either party to insist in any one more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election here contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be made between Landlord and Tenant shall be
effective to change, modify, waive, release, discharge, terminate or effect an
abandonment of this Lease, in whole or in part, unless such executory agreement
is in writing, refers expressly to this Lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge or
termination or effectuation of the abandonment is sought.
29.2 The following specific provisions of this Section 29.2 shall not be
deemed to limit the generality of Section 29.1;
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord unless
same is pursuant to a final non-appealable Court order that does not require
Landlord's signature, The delivery of keys to an employee of Landlord or its
agents shall not operate as a termination of this Lease or surrender of the
Demised Premises. If Tenant shall at any time request Landlord to sublet the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive said keys for such purposes without releasing Tenant from any of its
obligations under this Lease.
ARTICLE 35
No other Representations,
Construction, Governing Law, Inability To Perform
35.1 Tenant expressly acknowledges and agrees that Landlords has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and shall expressly refer to this
Lease. This Lease and said other written agreement(s) made concurrently
herewith, if any, are hereinafter referred to as the "Lease Documents". it is
understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the Lease Documents, which alone fully and
completely express their agreement and that the same are entered into after full
investigation, neither party relying upon any statement nor representation made
by the other and not embodied in the Lease Documents.
35.2 If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of said provision
or provisions to persons of circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and, subject
to the foregoing, every provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
35.3 This Lease shall be governed in all respects by the laws of the
State of New York. Any legal action or proceeding with respect to this Lease, or
any of the transactions contemplated hereby shall be brought only in the Courts
of the State of New York located in the County of New York.
35.4 Except as otherwise specifically set forth in the Lease, this Lease
and the obligation of Tenant to pay fixed rent and additional rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no-way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of strike or labor troubles or any outside cause whatsoever including but
not limited to, governmental 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; and those events set
forth in Section 16.7 as being not withing Landlord's control.
ARTICLE 36
Assignment, Mortgaging, Subletting, Etc.
36.1 Tenant expressly covenants and agrees that it shall not, and does
not have the right or power to, assign, mortgage, pledge, encumber, hypothecate
or otherwise transfer this Lease or any interest of Tenant herein, nor sublet
all or any part of the Demised Premises or suffer or permit the Demised Premises
or any part thereof to be used or occupied by others (whether for desk space,
mailing privileges or otherwise), without the prior written consent of Landlord
in each instance.
36.2 If Tenant shall at any time or times during the term of this Lease
desire to assign this Lease or sublet all or any part of the Demised Premises,
Tenant shall give notice thereof to Landlord which notice shall be deemed an
offer from Tenant to Landlord whereby Landlord shall have the option to
terminate this Lease (as to a sublease of less than all or substantially all of
the Demised Premises, to terminate this Lease only as to the portion of the
Demised Premises which Tenant desires to sublet). Said option may be exercised
by Landlord by notice to Tenant at any time within forty-five (45) days after
the aforesaid notice has been given by Tenant to Landlord and during such
forty-five (45) day period Tenant shall not assign this Lease nor sublet such
space to any person. If Landlord exercises its option to terminate this Lease,
this Lease shall end and expire on the date set forth in Landlord's notice,
which date (the "Surrender Date") shall be the last day of the calendar month in
which occurs the date which is one hundred twenty (120) days after the date of
Landlord's notice, and the fixed rent and a coitional rent hereunder shall be
paid and apportioned to such date,
36.3 If Landlord exercises its option to terminate this Lease pursuant
to Section 36.2, Landlord shall be free to, and shall have no liability to
Tenant if Landlord should, lease the Demised Premises (or any part thereof) to
Tenant's prospective assignee or subtenant. In the event of such surrender by
Tenant of a portion of the Demised Premises, effective as of the date
immediately following the Surrender Date, the fixed rent payable by Tenant under
this Lease shall be reduced by an amount equal to that portion of the fixed rent
payable under this Lease which is allocable to the space so surrendered and the
additional rent payable by Tenant under this Lease shall be equitably adjusted,
If the entire Demised Premises be so surrendered by Tenant, this Lease shall be
canceled and terminated as of the Surrender Date with the same force and effect
as if the Surrender Date were the date herein specified for the expiration of
the full term of Lease, In the event of such surrender by Tenant of a portion of
the Demised Premises, any changes, improvements and alterations to the space
constituting the Demised Premises after the Surrender Date (i.e., the space not
so surrendered by Tenant) or any part thereof (including, but not limited to,
the erection of a demising wall to separate the space constituting the Demised
Premises after the Surrender Date from the space so surrendered) made necessary
or desirable by reason of such surrender shall be made by Landlord at Tenant's
expense. Tenant covenants and agrees that, in the event of such surrender by
Tenant of a portion of the Demised Premises, Tenant, at Tenant's expense, shall
and will at all times provide and permit reasonably appropriate means of ingress
to and egress from such portion of the Demised Premises so surrendered, permit
the occupant or occupants of such portion the use of the core facilities on said
floor, and permit on said floor reasonably appropriate directional signs for
each occupant or occupants and appropriate designations in the passenger cabs
serving said floor.
In the event of any such surrender by Tenant the Demised Premises or a
portion thereof, Landlord and Tenant shall, at the request of either party,
execute and deliver an agreement in recordable form to the effect hereinbefore
stated.
36.4 In the event Landlord does not exercise or timely exercise the
option referred to in Section 36.2 hereof, Landlord covenants not to
unreasonably withhold or delay its consent to such proposed assignment or
subletting by Tenant of such space to the proposed assignee or subtenant on said
covenants, agreements, terms, provisions and conditions set forth in the notice
to Landlord referred to in Section 36.2, provided, however, that Landlord shall
not in any event be obligated to consent to any such proposed assignment or
subletting unless all of the following conditions are satisfied:
(a) the proposed assignee or subtenant is (i) of a financial
standing and (ii) engaged in a business reasonably satisfactory to Landlord, and
the premises will be used in a manner which is in keeping with the then
standards of the Building and the proposed assignment or subletting does not
violate any negative covenants as to use contained in any other lease made
between Landlord and other tenant(s) of the Building;
(b) the proposed assignee or subtenant is a reasonably reputable
party;
(c) the proposed assignee or subtenant is not then a tenant,
subtenant or othhrwise an occupant of any part of The Chrysler or Building or
Building or a corporation or other entity which controls or is controlled
by such tenant, subtenant or occupant or is under common control with such
tenant, subtenant or occupant;
(d) that the assignment or subletting shall not have the effect
(or give the utility company serving the Building with electricity cause to
claim) that Landlord may not service the Demised Premises, or any part thereof,
or any other rentable portion of the Building with electricity on a "rent
inclusion" basis;
(e) there shall be no default by Tenant under any of the terms,
covenants and conditions of this Lease at the time that Landlord's consent to
any such assignment or subletting is requested and on the effective date of the
assignment or the proposed sublease;
(f) the proposed assignee or subtenant shall not be (i) a
government or any subdivision or agency thereof, or (ii) a school, college,
university or educational institution of any type, whether for profit or
nonprofit or (iii) an employment or recruitment agency;
(g) Tenant shall reimburse Landlord for any reasonable expenses
that may be incurred by Landlord in connection with the proposed assignment or
sublease, including without limitation the reasonable costs of investigating the
acceptability of a proposed assignee or subtenant and reasonable legal expenses
incurred in connection with the granting of any requested consent to the
assignment or sublease;
(h) the proposed assignment shall be for a consideration or the
proposed subletting shall be at a rental rate not less than the rental rates
being charged under leases being entered into by Landlord for comparable space
in the Building and for a comparable term and in no event shall Tenant advertise
or list with brokers at any lower rental rate;
(i) such proposed subletting will result in there being no more
than three (3) occupants per floor of the Demised Premises including Tenant and
all subtenants, and
(j) the space to be sublet shall be regular in shape with
appropriate means of ingress and egress and suitable for normal renting
purposes.
36.5 If Landlord fails to exercise its option under section 36.2 and
consents to a proposed assignment or sublease and Tenant fails to execute and
deliver the assignment or sublease to which Landlord consented within one
hundred twenty (120) days after the giving of such consent, then, Tenant shall
again comply with all of the provisions and conditions of Section 36.2 before
assigning this Lease or subletting all or part of the Demised Premises.
36.6 With respect to each and every sublease or subletting authorized by
Landlord or made without the need for Landlord's consent pursuant to Section
36.9, under the provisions of this Lease, it is further agreed that each
sublease shall provide that it is subject and subordinate to this Lease and to
the matters to which this Lease is or shall be subordinate, and that in the
event of termination, re-entry or dispossession by Landlord under this Lease,
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that Landlord shall not (a) be liable for any previous
act or omission of Tenant under such sublease, (b) be subject to any
counterclaim, offset or defense, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, (c) be responsible for any
monies owing by or on deposit with Tenant to the credit of such subtenant
whether in the nature of security or otherwise unless and to the extent such
monies are delivered to Landlord, or (d) be bound-by any previous modification
of such sublease or by any previous prepayment of more than one (1) month's
fixed rent and additional rent. The provisions of this Section shall be
self-operative and no further instrument shall be required to give effect to
this provision.
36.7 If the Landlord shall give its consent to any assignment of this
Lease or to any sublease or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment, an amount equal to all sums and
other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, lease-hold improvements, equipment, furniture, furnishings or other
personal property) less all expenses reasonably and actually incurred by Tenant
on account of brokerage commissions and advertising costs in connection with
such assignment; and
(b) in the case of a sublease, any rents, additional charges or
other consideration payable under the sublease to Tenant by the subtenant which
is in excess of the fixed rent and additional rent accruing during the term of
the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms hereof (including, but, not
limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property), less all
expenses reasonably and actually incurred by Tenant on account of brokerage
commissions, advertising costs and the cost of demising the premises so sublet
in connection with such sublease. The sums payable under this Section shall be
paid to Landlord as and when payable by the subtenant to Tenant.
36.8 If Tenant is a corporation other than a corporation whose stock is
listed and traded on an internationally recognized stock exchange (hereinafter
referred to as a "public corporation"), the provisions of Section 36.1 shall
apply to a transfer (by one or more transfers) of a majority of the stock of
Tenant as if such transfer or a majority of the stock of Tenant were an
assignment of this Lease; but said provisions shall not apply to transactions
with a corporation into or with which Tenant is merged or consolidated or to
which substantially all of Tenant's assets are transferred, provided that in any
of such events (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (a) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (b) the net worth of Tenant herein named on the
date of this Lease and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
If Tenant is a partnership, the provisions of Section 36.1 shall apply
in the case of a transfer of partnership interests as if such transfer were an
assignment of this Lease.
36.9 Tenant may, without Landlord's consent, but otherwise upon
compliance with the provisions of this Lease, including the provisions of
section 36.11, permit any corporations or other business entities which control,
are controlled by, or are under common control with Tenant including a joint
venture in which Tenant is a joint venture partner with control, (each a
"Related Entity") to sublet all or part of the Demised Premises for any of the
purposes permitted to Tenant, subject however to compliance with Tenant's
obligations under this Lease. Such subletting shall not be deemed to vest in any
such Related Entity any right or interest in this Lease or the Demised Premises
nor shall it relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than 50% of all of the legal and equitable interest in any other
business entities.
36.10 Any assignment or transfer, even if made with Landlord's consent,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed or observed.
36.11 Each subletting pursuant to this Article 36 shall be subject to
all the covenants, agreements, terms, provisions and conditions contained in
this Lease. Tenant shall promptly furnish to Landlord a copy of each such
sublease, Tenant covenants and agrees that, notwithstanding such assignment or
any such subletting to any subtenant and/or acceptance of rent or additional
rent by Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment of the fixed 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. Tenant further covenants and agrees that notwithstanding any such
assignment or subletting, no other and further assignment, underletting or
subletting of the Demised Premises or any part thereof shall or will be made
except upon compliance with and subject to the provisions of this Article 36.
36.12 If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, subtenant (but without
increasing the obligations of the subtenant under its sublease) or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article 36 or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained.
36.13 Landlord will, at the request of Tenant and at Tenant's expense,
maintain listings on the Building directory of the names of Tenant, Tenant's
program, Empire Mental Health Choice and any other Related Entity, person, firm,
association or corporation in occupancy of the Demised Premises or any part
thereof as permitted hereunder, and the names of any officers or employees of
any of the foregoing, provided, however, that the number of names so listed
shall be in the same proportion to the capacity of the Building directory as the
aggregate number of square feet of rentable area of the Demised Premises is to
the aggregate number of square feet of rentable area of the Building. The
listing of any name other than that of the Tenant and Empire Mental Health
Choice, whether on the doors of the Demised Premises, on the Building directory,
or otherwise shall not operate to vest any right or interest in this Lease or in
the Demised Premises or be deemed to be the written consent of the Landlord
mentioned in this Article 36, it being expressly understood that any such
listing is a privilege extended by Landlord revocable at will by written notice
to Tenant.
ARTICLE 37
Security Deposit
37.1 The original named tenant, Empire Blue Cross and Blue Shield shall
not be required to deposit with Landlord any security deposit. However, if this
Lease is assigned or otherwise transferred to any entity which is not a Related
Entity (for the purposes of this Article 37 such successor or assignee being
referred to as the "Successor Tenant"), Landlord shall have the right to
require, as a condition to Landlord's consent to such assignment of this Lease,
that the Successor Tenant deposit with Landlord an amount equal to two (2)
months fixed rent and additional rent, computed as of the effective date of the
assignment, which sum shall be deposited as security for the faithful
performance and observance by the Successor Tenant of the terms, provisions,
covenants and conditions of this Lease. It is agreed that in the event the
Successor Tenant defaults in respect of any of the terms, provisions, covenants
and conditions of this Lease, including, but not limited to, the payment of rent
and additional rent, Landlord may use, apply or retain the whole or any part of
the security so deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which the Successor Tenant is in default
or for any sum which Landlord may expend or may be required to expend by reason
of Successor Tenant's default in respect of any of the terms, provisions,
covenants and conditions of this Lease, including but not limited to, any
damages or deficiency accrued before or after summary proceedings or other
re-entry by Landlord. In the event that the Successor Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the security shall be returned to the Successor Tenant after the
date fixed as the end of the Lease and after delivery of entire possession of
the Demised Premises to Landlord. In the event of a sale of the Land and
Building or leasing of the Building of which the Demised Premises form a part,
Landlord shall have the right to transfer the security to the vendee or lessee
and Landlord shall thereupon be released by the Successor Tenant from all
liability for the return of such security; and the Successor Tenant agrees to
look solely to the new Landlord for the return of said security. It is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Landlord. The Successor Tenant covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. In the event Landlord applies or retains any-portion or all of the
security deposited, the Successor Tenant shall forthwith restore the amount so
applied or retained so that at all times the amount deposited shall be the
amount set forth above,
ARTICLE 38
Deleted Prior to Execution
ARTICLE 39
Miscellaneous
39.1 Notwithstanding anything contained in this Lease to the contrary,
Tenant covenants and agrees that Tenant will not use the Demised Premises or any
part thereof, or permit the Demised Premises or any part thereof to be used,
(a) for a banking, trust company, or safe deposit business,
(b) as a savings bank, or a savings and loan association or a loan company,
(c) for the sale of travelers checks and/or foreign money exchange,
(d) as a stock brokerage office dealing with the general public on an off
the street basis,
(e) as a news and/or cigar stand, or
(f) as a restaurant and/or bar and/or for the sale of confectionery and/or
soda and/or beverages and/or sandwiches and/or ice cream and/or baked goods
or the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, provided, however, that in connection with, and
incidental to, Tenant's use of the Demised Premises for general and
executive offices, Tenant, at its sole cost and expense, and upon
compliance with all applicable laws, rules, regulations and ordinances, may
use a portion of the Demised Premises for an employee's lounge and may
install therein a "xxxxx" or similar unit or microwave ovens for the
purposes of warming food, and vending machines ` which, if same dispense
beverages or other liquids or refrigerates, shall each have a waterproof
pan located thereunder, connected to a drain. 39.2 Tenant hereby
represents, covenants and agrees that Tenant's business is not photographic
reproductions and/or documentary reproductions and/or offset printing.
Notwithstanding anything contained in this Lease to the contrary, Tenant
covenants and agrees that Tenant will not use the Demised Premises or any
part thereof or permit the Demised Premises or any part thereof to be used,
for the business of photographic reproductions and/or documentary
reproductions and/or offset printing. Nothing contained in this Section
39.2 shall preclude Tenant from using any part of the Demised Premises for
photographic reproductions and/or documentary reproduction and/or offset
printing in connection with, either directly or indirectly, its own
business.
39.3 If, in connection with obtaining financing for the Building. a
bank, insurance company or other lending institution shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder, alter the
economic terms of this Lease, decrease Landlord's obligations or materially
adversely affect the leasehold interest hereby created.
39.4 If Landlord shall consent to Tenant's request for the omission or
removal of any part of, or the insertion of any door or other opening in, any
wall separating the Demised Premises from adjoining space leased to another
tenant, then (i) Tenant shall be responsible for all risk or damage to, or loss
or theft of, property arising as an incident to such omission or removal or the
use of such door or other opening, or because of the existence thereof, and
shall indemnify and save Landlord harmless from and against any claim, demand or
action for, or on account of, any such loss, theft or damage, subject to the
provisions of Section 11.6, unless due to Landlord's negligence, and (ii) in the
event of termination of this Lease or the lease of said other tenant, Landlord
may enter the Demised Premises and Landlord, at Tenant's expense, may close up
such door or other opening by erecting a wall to match the wall separating the
Demised Premises from said adjoining space, and Tenant shall not be entitled to
any diminution or abatement of rent or other compensation by reason thereof;
provided, however, that nothing herein contained shall be deemed to vest Tenant
with any right or interest in, or with respect to, said adjoining space, or the
use thereof, and Tenant hereby expressly waives any right to be made a party to,
or to be served with process or other notice under or in connection with any
proceeding or action which may hereafter be instituted by Landlord for the
recovery of the possession of said adjoining space, unless Landlord, in its sole
discretion, elects to make Tenant a party to such action.
39.5 Without incurring any liability to Tenant, but subject to the
provisions of Section 19.5, Landlord may permit access to the Demised-Premises
and open the same, whether or not Tenant shall be present, upon demand of any
receiver, trustees assignee for the benefit of creditors, sheriff, marshal or
court officer entitled to, or reasonably purporting to be entitled to, such
access for the purpose of taking possession of, or removing, Tenant's Property
or for any other lawful purpose (but this provision and any action by Landlord
shall not be deemed to be a consent or recognition that the person or official
making such demand has any right or interest in or to this Lease, or in or to
the Demised Premises), or upon demand of any representatives of the fire,
police, building, sanitation or other department of the city, state or federal
governments. Landlord shall be entitled to rely upon and assume the genuineness
of all certificates or credentials presented to Landlord by the individuals
seeking such access.
39.6 Tenant shall not be entitled to exercise any right of termination
or other option granted to it by this Lease (if any) at any time when Tenant
then currently is in default in the performance or observance of any of the
covenants, terms, provisions or conditions on its part to be performed or
observed under this Lease.
39.7 Tenant shall not place or permit to be placed any vending machines
in the Demised Premises, except as provided in Section 39.1(vi) or otherwise
with the prior written consent of Landlord in each instance.
39.8 Tenant shall not occupy any space in The Chrysler Building or the
Building (by assignment, sublease or otherwise) other than the Demised Premises,
except with the prior written consent of Landlord in each instance.
39.9 Tenant will not clean, nor require, permit, suffer or allow to be
cleaned, any window in the Demised Premises, from the outside in violation of
Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals, or of any other board or body having or asserting jurisdiction.
39.10 Tenant agrees that its sole remedies in cases where Landlord's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived.
39.11 The Article headings of this Lease are for convenience only and
are not to be given any effect whatsoever in construing this Lease.
39.12 This Lease shall not be binding upon Landlord unless and until it
is signed by Landlord and a signed copy thereof is delivered by Landlord to
Tenant.
39.13 The definitions set forth in Exhibit E annexed hereto shall be
utilized for purposes of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires.
39.14 The various terms which are defined in other Articles of this
Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and Exhibits for all purposes of this Lease and
all agreements supplemental thereto, unless the context shall otherwise require.
39.15 The Exhibits annexed to this Lease shall be deemed part of this
Lease with the same force and effect as if such Exhibits were numbered Articles
of this Lease.
39.16 Tenant shall not, except with the prior written consent of
Landlord, use or permit to be used the words "Chrysler Building" or any
combination or simulation thereof for any purpose whatsoever including (but not
limited to) as or for any corporate, firm or trade name, trademark or
designation or description of merchandise or services or as part of an address.
39.17 If either Landlord or Tenant shall institute any action or
proceeding against the other relating to the provisions of this Lease or any
default hereunder then, in that event, the unsuccessful party in such action or
proceeding (whether as plaintiff or defendant therein) agrees to reimburse the
successful party for all reasonable expenses incurred in connection therewith,
including reasonable attorney's fees, costs and disbursements incurred by the
successful party.
ARTICLE 40
Late Charges
40.1 If Tenant shall fail to pay all or any part of any installment of
fixed annual rent or additional rent for more than ten (10) days after the same
shall have become due and payable, then Tenant shall pay as additional rent
hereunder to Landlord a late charge of Six Cents ($0.06) for each dollar of the
amount of such fixed annual rent or additional rent which shall not have been
paid to Landlord within such ten (10) days after becoming due and payable.
Notwithstanding the foregoing, at such time or times during the term of this
Lease that the amounts payable by Tenant for items of additional rent shall be
increased or changed pursuant to the provisions of this Lease, no late charge
shall be due or payable until the expiration of twenty (20) days after the date
that Tenant shall receive a statement from Landlord requiring the payment
thereof at the increased or changed rate.
40.2 In every case in which Tenant is required by the terms of this
Lease to pay to Landlord a sum of money (including without limitation, payment
of fixed and additional rent) and payment is not made within ten (10) days after
the same shall become due, Tenant shall pay as additional rent hereunder,
interest on such sum or so much thereof as shall be unpaid from the date it
becomes due until it is paid. Such interest shall be computed at a rate which
shall be two (2%) percent per month; provided, however, in no event shall such
interest be in excess of the highest rate of interest which shall from time to
time be permitted under the laws of the State of New York to be charged on late
payments of sums of money due pursuant to the terms of a lease. Any late charge
paid pursuant to Section 40.1 above shall reduce interest accrued hereunder with
respect to the same late payment.
40.3 The late charge payable pursuant to Section 40.1 above and the
interest payable pursuant to Section 40.2 above shall be (i) payable on demand
and (ii) without prejudice to any of Landlord's rights and remedies hereunder at
law or in equity for nonpayment or late payment of rent or other sum and in
addition to any such rights and remedies. No failure by Landlord to insist upon
the strict performance by Tenant of Tenant's obligations to pay late charges and
interest as provided in this Article 40 shall constitute waiver by Landlord of
its right to enforce the provisions of this Article 40 in any instance
thereafter occurring. The provisions of this Article 40 shall not be construed
in any way to extend the grace periods or notice periods provided for in Article
25 of this Lease.
ARTICLE 41
Deleted Prior to Execution
ARTICLE 42
Tenant's Initial Alterations
Tenant Improvement Allowance
42.1 Following the Commencement Date, Tenant shall commence Tenant's
Initial Alterations and complete same within the one year after the Commencement
Date. Tenant's Initial Alterations shall be undertaken and completed in
accordance with the terms of this Lease, including, without limitation, the
provisions of Article 13 hereof. Subject to the provisions of this Article 42,
Landlord shall contribute an amount not to exceed One Million Eight Hundred
Fifty-Nine Thousand Four Hundred Dollars ($1,859,400.00) (the "Tenant
Improvement Allowance") toward the cost of Tenant's Initial Alterations.
Landlord shall disburse a portion of the Tenant Improvement Allowance to Tenant
from time to time, within fifteen (15) days after receipt of the items set forth
in Section 42.2 provided that on the date of a request and on the date of
disbursement from the Tenant Improvement Allowance, Tenant shall not be in
default in performing or observing any of the obligations on Tenant's part to be
performed and observed under this Lease following any required notice and the
expiration of any applicable grace period. Disbursements to Tenant of portions
of the Tenant Improvement Allowance shall not be made more frequently then
monthly.
42.2 Landlord shall reimburse Tenant from the Tenant Improvement
Allowance for costs incurred by Tenant in connection with Tenant's Initial
Alterations upon Landlord's receipt of the following items:
(a) A request from Tenant for such disbursement signed by the
officer of Tenant designated in writing for such purpose, which request shall
certify that the amount requested is equal to the aggregate amounts theretofore
paid or payable by Tenant to Tenant's contractors, subcontractors and material
suppliers which requested funds have not been the subject of a previous
disbursement from the Tenant Improvement Allowance;
(b) Photocopies of all receipts, invoices and bills for the work
completed and materials furnished in connection with Tenant's Initial
Alterations and incorporated in the Demised Premises which are to be paid from
the requested disbursement or which have been paid by Tenant and for which
Tenant is seeking reimbursement;
(c) A certificate of Tenant's independent licensed architect
stating (i) that, in the architect's opinion, 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 plans and specifications therefore, as approved by Landlord, (ii)
the percentage of completion of the Tenant's Initial Alterations as of the date
of such certificate, and (iii) the estimated total cost to complete the
performance of Tenant's Initial Alterations; and
(d) Any amounts payable to Landlord in connection with Tenant's
Initial Alterations including, without limitation, any payments due for use of
the freight elevator. The freight elevator charges payable by Tenant in
connection with Tenant's Initial Alterations and the initial "move-in" by Tenant
into the Demised Premises thereafter shall not exceed Eighty-Five Dollars
($85.00) per hour.
42.3 In no event shall the aggregate amount paid by Landlord to Tenant
under this Article 42 exceed the amount of the Tenant Improvement Allowance.
Within sixty (60) days after the completion of Tenant's Initial Alterations and
upon the satisfaction of the conditions set forth in Section 42.4, any amount of
the Tenant Improvement Allowance which has not previously been disbursed shall
be retained by Landlord, Upon the disbursement of the entire Tenant Improvement
Allowance (or the portion thereof if, upon completion of Tenant's Initial
Alterations, the Tenant Improvement Allowance is not exhausted) Landlord shall
have no further obligation or liability whatsoever to Tenant for any further
disbursements of any portion of the Tenant Improvement Allowance or otherwise to
contribute towards the cost of Tenant's Initial Alterations, it being understood
and agreed that Tenant shall complete, at its sole cost and expense, Tenant's
Initial Alterations whether or not the Tenant Improvement Allowance is
sufficient to fund such completion.
42.4 Notwithstanding anything in this Article or this Lease to the
contrary, on the earlier to occur of the date which is fifteen (15) days after
completion of Tenant's Initial Alterations or the date upon which Tenant makes a
request for disbursement to Tenant of the balance of funds remaining in the
Tenant Improvement Allowance, as a condition to such release, if appropriate but
in any event not later than fifteen (15) days following substantial completion
of Tenant's Initial Alterations, Tenant shall deliver to Landlord waivers of
lien from all contractors, subcontractors and material suppliers involved in the
performance of Tenant's Initial Alterations and the furnishing of materials in
connection therewith, together with a certificate from Tenant's independent
licensed architect stating that (i) in the architect's opinion, Tenant's Initial
Alterations have been performed (and completed) in a good and workmanlike manner
and in accordance with the final plans and specifications therefore as approved
by Landlord, and (ii) all contractors, subcontractors and material suppliers
have been paid for the work performed in connection with Tenant's Initial
Alterations or the materials furnished through such date.
42.5 Notwithstanding anything in this Article 42 or this Lease to the
contrary, Tenant, not Landlord shall be entitled to all rebates or credits due
in connection with the Consolidated Edison of New York rebate program in
connection with the work undertaken by Tenant as part of Tenant's Initial
Alterations or as part of Tenant's Changes to any Additional Premises (as
defined in Article 44). Landlord agrees to cooperate with Tenant, at Tenant's
sole cost and expense in connection with Tenant's application for any such
rebates or credits.
ARTICLE 43
Option to Renew
43.1 Provided that this Lease is in full force and effect and Tenant is
not then currently in default hereunder, Tenant shall have the option to extend
the original term of this Lease for one (1) extension period of five (5) years
("Renewal Term"), commencing upon the expiration of the original term of this
Lease, provided that Tenant shall give Landlord written notice of the exercise
of its option at least twelve (12) months prior to the Expiration Date. The
Renewal Term shall be on the same terms, covenants and conditions as are
contained in this Lease for the original term except for:
(i) the provisions of Section 1.4 (a) respecting the fixed rent,
which shall be payable during the Renewal Term in accordance with the provisions
of Section 43.2;
(ii) the provisions of Section 1.4(c);
(iii) the covenants relative to the preparation of the
Demised Premises byLandlord contained in Article 3 of this Lease;
(iv) the Tenant Improvement Allowance contained in Article 42
of this Lease;
(v) the Caption to Renew contained in this Article 43;
none of which shall be applicable to the Renewal Term. In addition, following
Tenant's exercise of the option to extend the original term of this Lease for
the Renewal Term, the Expiration Date referred to in Section 1.3 shall be deemed
to be the last day of the Renewal Term or such earlier date upon which the term
of this Lease may expire or be canceled or terminated. In no event shall Tenant
shall have any further right of renewal beyond the Renewal Term. Any termination
or expiration of this Lease during the original term shall terminate all rights
of renewal hereunder.
43.2 The provisions of Section 1.4 of this Lease shall not be applicable
to the Renewal Term. The fixed rent payable during each year of the Renewal Term
shall be the amount determined by (a) multiplying Thirty-Eight Dollars ($38.00)
by the number of rentable square feet then contained in the Demise Premises, and
adding thereto (b) the amount determined by multiplying the number of rentable
square feet then contained in the Demised Premises by the amount of all
increases in the Electrical Charge or Adjusted Electrical Charge pursuant to
Article 16 of this Lease, provided, however, that in no event shall the fixed
rent during the Renewal Term be less than one Million Five Hundred Seventy
Thousand One Hundred Sixty Dollars ($1,570,160.00).
ARTICLE 44
Options for Additional Space
44.1 With respect to the premises cross-hatched and highlighted in red
on page B-3 of Exhibit "B" and denoted there as the "6th Floor Rear Premises",
provided that this Lease is in full force and effect and Tenant is not then
currently in default hereunder, upon ten (10) Business Days written notice to
Landlord, given not later than the last day provided for Tenant to exercise its
option for the Renewal Term as provided in Article 43, Tenant shall have the
option to lease the entire 6th Floor Rear Premises which contains approximately
7,185 rentable square feet. In such event, on the eleventh (11th) Business Day
following the date of Tenant's notice to Landlord, the entire 6th Floor Rear
Premises shall be added to and be deemed a part of the Demised Premises, upon
and subject to all of the same terms and conditions of this Lease (provided,
however, in no event shall the exercise of the option pursuant to this Section
44.1 be or be deemed to extend the term of this Lease). Tenant acknowledges and
agrees that, except as set forth in Section 44.4 of this Lease, Landlord shall
have no obligation to perform any work (including, without limitation, any of
the work described herein as "Landlord's Work") with respect to the 6th Floor
Rear Premises if, as and when same is added to the Demised Premises pursuant
this Article 44, and Tenant shall accept the 6th Floor Rear Premises, as
appropriate, in its then "as is" condition provide that same is delivered to
Tenant vacant and broom-clean, Notwithstanding the foregoing, Landlord and
Tenant acknowledge and agree that from time to time and at various times during
the term of this Lease, at anytime prior to Landlord's receipt of notice from
Tenant exercising its option under this Section 44.1 Landlord shall have the
right to lease to other tenants, all or portion of the 6th Floor Rear Premises
provided, however, that Landlord agrees that all such leases for the 6th Floor
Rear Premises or any portion or portions thereof, to be entered into by Landlord
with such other tenants during the original term of this Lease, shall provide
for a term which is co-terminis with the original term of this Lease. If Tenant
elects to extend the term of this Lease as provided in Article 43, unless Tenant
simultaneously with or prior to the exercise of the option for the Renewal Term,
exercises the option contained in this Section 44.1, during the Renewal Term
Landlord shall have the right to enter into any lease for all or any portion of
the 6th Floor Rear Premises as Landlord shall, in its sole discretion, determine
without any limitation or restriction whatsoever, whether as to the term of such
lease or otherwise. Tenant's option which is provided in this Section 44.1 shall
terminate as of the date which is the last date for Tenant to exercise its
option for the Renewal Term as set forth in Article 43.
44.2 At all times during the original term of this Lease and the Renewal
Term, if any, with respect to the premises cross-hatched and highlighted in blue
on page B-4 of Exhibit "B" and denoted thereon as the "6th Floor Front
Premises", which contains approximately 14,700 rentable square feet provided
that this Lease is in full force and effect and Tenant is not then currently in
default hereunder, Landlord agrees that it shall not enter into a lease for the
entire 6th Floor Front Premises or any portion thereof with any tenant without
first notifying Tenant that Landlord in good faith, intends to enter into a bona
fide lease for all or a portion of the 6th Floor Front Premises. Tenant shall
have ten (10) Business Days after Landlord's notice to notify Landlord in
writing whether Tenant desires to exercise its option to lease all or such
portion of the 6th Floor Front Premises as Landlord then intends to lease, If
Tenant exercises its option to lease all or any such portion of the 6th Floor
Front Premises, then as of the expiration of said ten (10) Business Day period,
the 6th Floor Front Premises or such portion thereof shall be added to and be
deemed a part of the Demised Premises, upon and subject to all of the same terms
and conditions of this Lease (provided, however, in no event shall the exercise
of the option pursuant to this Section 44.2 be or be deemed to extend the term
of this Lease). Tenant acknowledges and agrees that, except as set forth in
section 44.4 of this Lease, Landlord shall have no obligation to perform any
work (including, without limitation, any of the work described herein as
"Landlord's Work") with respect to any portion of the 6th Floor Front Premises
which is added to the Demised Premises pursuant to this Article 44. Tenant shall
accept the 6th Floor Front Premises or the portions thereof, as appropriate, in
its then "as is" condition provided that same is delivered to Tenant vacant and
broom-clean, If Tenant shall not timely exercise its option for the 6th Floor
Front Premises or any such portion thereof, or shall reject same within the ten
(10) Business Days (failure to timely so accept, time being of the essence,
being deemed a rejection), then Landlord shall have the right to enter into any
lease for the 6th Floor Front Premises or such portion thereof as Landlord
intends to lease, as Landlord, in its sole discretion, shall determine, without
any limitation or restriction whatsoever, whether as to the term of such lease
or otherwise, and Tenant's option with respect to the entire 6th Floor Front
Premises or such portion thereof as Landlord intended to lease, shall be null,
void and of no further force or effect,
44.3 Provided that (i) this Lease is in full force and effect, (ii)
Tenant is not then currently in default hereunder, (iii) Tenant has exercised
its option for the Renewal Term and (iv) Tenant has, prior to the commencement
of the Renewal Term, exercised its option to add to the Demised Premises, and
has, in fact, added to the Demised Premises of the 6th Floor Rear Premises or
all or a portion of the 6th Floor Front Premises (collectively, the "Additional
Premises") then upon the commencement of the Renewal Term, Landlord agrees to
pay to Tenant an amount equal to $22,50 per rentable square foot, (Additional
Tenant Improvement Allowance") for each rentable square foot of the total
Additional Premises which Tenant has leased as of the commencement of the
Renewal Term. The Additional Tenant Improvement Allowance shall be paid to
Tenant upon the commencement of the Renewal Term. After the commencement of the
Renewal Term, no Additional Tenant improvement Allowance shall be due or payable
with respect to any Additional Premises. Except for the Additional Tenant
(b) The receipt by Landlord of rent with knowledge of breach of
any obligation of this Lease shall not be deemed a waiver of such breach or any
subsequent breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
ARTICLE 30
Curing Tenant's
Defaults, Additional Rent; Legal Fees
30.1 If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) cure such default for the account and at the
expense of Tenant, (a) without notice, in a case of emergency, and (b) in any
other case, only if such default continues after the expiration of (i) five (5)
days from the date Landlord gives Tenant notice of intention so to do, or (ii)
the applicable grace period provided in Section 25.2 or elsewhere in this Lease
for cure of such default, whichever occurs later, Any amount paid or any
contractual liability incurred by Landlord in curing such default, including
reasonable attorney's fees and disbursements, if any, shall be deemed paid or
incurred for the account of Tenant, and Tenant agrees to reimburse Landlord
therefor on demand, If Tenant shall fail to reimburse Landlord upon demand for
any amount paid for the account of Tenant hereunder, said amount shall be
additional rent and shall be due and payable along with the next installment of
fixed rent due hereunder.
ARTICLE 31
Parties Bound
31.1 The obligations of this Lease shall bind and benefit the successors
and assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 36 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article 31 shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in the event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee) Building, but
only with respect to the period ending with a subsequent transfer within the
meaning of this Article 31.
31.2 If Landlord shall be an individual, joint venture, tenancy in
common, copartnership, unincorporated association, or corporation, Tenant shall
look only to such Landlord's estate and property in the Building (or the
proceeds thereof) and, where expressly so provided in this Lease, to offset
against the rents payable under this Lease, for the satisfaction of Tenant's
remedies or the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord hereunder, and no other property or assets of
such Landlord 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 landlord and tenant hereunder or Tenant's use or occupancy
of the Demised Premises.
ARTICLE 32
Notices
32.1 Except as otherwise provided in this Lease, a notice or
communication which Landlord may desire or be required to give Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail or by overnight courier which
provides receipted delivery, addressed to Tenant at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 attn: Mr. Xxxxxxx Xxxxxxxx, Director of Real Estate. Any notice
by Tenant to Landlord must be served by registered or certified mail or by
overnight courier which provides receipted delivery, addressed to Landlord at
the address first hereinabove given with a copy of Landlord c/o Cushman &
Wakefield, Inc., The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other address as Landlord shall designate by written notice.
The time of the giving of such notice or communication shall be deemed to be the
time when the same is delivered to the intended recipient if personally
delivered or sent by overnight courier or two (2) days after same has been
postmarked if sent by mail. Either party hereto may change its mailing address
by giving notice to the other pursuant to the provisions of this Article 32 but
such notice of change of address shall be effective only if actually received.
ARTICLE 33
Estoppel Certificate, Memorandum
33.1 Each party agrees, at any time and from time to time, as requested
by the other party, upon not less than twenty (20) days prior notice, to 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 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 his 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.
33.2 At the request of either party, Landlord and Tenant shall promptly
execute, acknowledge and deliver a memorandum with respect to this Lease
sufficient for recording. Such memorandum shall not in any circumstances be
deemed to change or otherwise affect any of the obligations or provisions of
this Lease.
ARTICLE 34
Deleted Prior to Execution
ARTICLE 35
No Other Representations,
Construction, Governing Law. Inability To Perform
35.1 Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and shall expressly refer to this Lease.
This Lease and said other written agreement(s) made concurrently herewith, if
any, are hereinafter referred to as the "Lease Documents". It is understood and
agreed that all understandings and agreements heretofore had between the parties
are merged in the Lease Documents, which alone fully and completely express
their agreement and that the same are entered into after full investigation,
neither party relying upon any statement or representation made by the other and
not embodied in the Lease Documents.
35.2 If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of said provision
or provisions to persons of circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and, subject
to the foregoing, every provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
35.3 This Lease shall be governed in all respects by the laws of the
State of New York. Any legal action or proceeding with respect to this Lease, or
any of the transactions contemplated hereby shall be brought only in the Courts
of the State of New York located in the County of New York.
35.4 Except as otherwise specifically set forth in the Lease, this Lease
and the obligation of Tenant to pay fixed rent and additional rent hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no-way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of strike or labor troubles or any outside cause whatsoever including but
not limited to, governmental 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 and those
events set forth in Section 16.7 as being not within Landlord's control.
ARTICLE 35
Assignment, Mortgaging, Subletting, Etc.
36.1 Tenant expressly covenants and agrees that it shall not, and does
not have the right or power to, assign, mortgage, pledge, encumber, hypothecate
or otherwise transfer this Lease or any interest of Tenant herein, nor sublet
all or any part of the Demised Premises or suffer or permit the Demised Premises
or any part thereof to be used or occupied by others (whether for desk space,
mailing privileges or otherwise), without the prior written consent of Landlord
in each instance.
36.2 If Tenant shall at any time or times during the term of this Lease
desire to assign this Lease or sublet all or any part of the Demised Premises,
Tenant shall give notice thereof to Landlord which notice shall be deemed an
offer from Tenant to Landlord whereby Landlord shall have the option to
terminate this Lease (as to a sublease of less than all or substantially all of
the Demised Premises, to terminate this Lease only as to the portion of the
Demised Premises which Tenant desires to sublet). Said option may be exercised
by Landlord by notice to Tenant at any time within forty-five (45) days after
the aforesaid notice has been given by Tenant to Landlord and during such
forty-five (45) day period Tenant shall not assign this Lease nor sublet such
space to any person. If Landlord exercises its option to terminate this Lease,
this Lease shall end and expire on the date set forth in Landlord's notice,
which date (the "Surrender Date") shall be the last day of the calendar month in
which occurs the date which is one hundred twenty (120) days after the date of
Landlord's notice, and the fixed rent and additional rent hereunder shall be
paid and apportioned to such date.
36.3 If Landlord exercises its option to terminate this Lease pursuant
to Section 36.2, Landlord shall be free to, and shall have no liability to
Tenant if Landlord should, lease the Demised Premises (or any part thereof) to
Tenant's prospective assignee or subtenant. In the event of such surrender by
Tenant of a portion of the Demised Premises, effective as of the date
immediately following the Surrender Date, the fixed rent payable by Tenant under
this Lease shall be reduced by an amount equal to that portion of the fixed rent
payable under this Lease which is allocable to the space so surrendered and the
additional rent payable by Tenant under this Lease shall be equitably adjusted,
If the entire Demised Premises be so surrendered by Tenant, this Lease shall be
canceled and terminated as of the Surrender Date with the same force and effect
as if the Surrender Date were the date herein specified for the expiration of
the full term of Lease. In the event of such surrender by Tenant of a portion of
the Demised Premises, any changes, improvements and alterations to the space
constituting the Demised Premises after the Surrender Date (i.e., the space not
so surrendered by Tenant) or any part thereof (including, but not limited to,
the erection of a demising wall to separate the space constituting the Demised
Premises after the Surrender Date from the space so surrendered) made necessary
or desirable by reason of such surrender shall be made by Landlord at Tenant's
expense. Tenant covenants and agrees that, in the event of such surrender by
Tenant of a portion of the Demised Premises, Tenant, at Tenant's expense, shall
and will at all times provide and permit reasonably appropriate means of ingress
to and egress from such portion of the Demised Premises so surrendered, permit
the occupant or occupants of such portion the use of the core facilities on said
floor, and permit on said floor reasonably appropriate directional signs for
each occupant or occupants and appropriate designations in the passenger cabs
serving said floor.
In the event of any such surrender by Tenant of the Demised Premises or
a portion thereof, Landlord and Tenant shall, at the request of either party,
execute and deliver an agreement in recordable form to the effect hereinbefore
stated.
36.4 In the event Landlord does not exercise or timely exercise the
option referred to in Section 36.2 hereof, Landlord covenants not to
unreasonably withhold or delay its consent to such proposed assignment or
subletting by Tenant of such space to the proposed assignee or subtenant on said
covenants, agreements, terms, provisions and conditions set forth in the notice
to Landlord referred to in Section 36.2, provided, however, that Landlord shall
not in any event be obligated to consent to any such proposed assignment or
subletting unless all of the (a) the proposed assignee or subtenant is (i) of
financial standing and (ii) engaged in a business reasonably satisfactory to
Landlord, and the premises will be used in a manner which is in keeping with the
then standards of the Building and the proposed assignment or subletting does
not violate any negative covenants as to use contained in any other lease made
between Landlord and other tenant(s) of the Building;
(b) the proposed assignee or subtenant is a reasonably
reputable party;
(c) the proposed assignee or subtenant is not a tenant, subtenant
or otherwise an occupant of any part of The Chrysler or Building or the Building
or a corporation or other entity which controls or is controlled by such tenant,
subtenant or occupant or is under common control with such tenant, subtenant or
occupant or is under common control with such tenant, subtenant or occupant;
(d) that the assignment or subletting shall not have the effect
(or give the utility company serving the Building with electricity cause to
claim) that Landlord may not service the Demised Premises, or any part thereof,
or any other rentable portion of the Building with electricity on a "rent
inclusion" basis;
(e) there shall be no default by Tenant under any of the terms,
covenants and conditions of this Lease at the time that Landlord's consent to
any such assignment or subletting is requested and on the effective date of the
assignment or the propped sublease;
(f) the proposed assignee or subtenant shall not be (i) a government or
any subdivision or agency thereof, or (ii) school, college, university or
educational institution of any type, whether for profit or nonprofit or (iii) an
employment or recruitment agency;
(g) Tenant shall reimburse Landlord for any reasonable expenses that may
be incurred by Landlord in connection with the proposed assignment or sublease,
including without limitation the reasonable costs of investigating the
acceptability of a proposed assignee or subtenant and reasonable legal expenses
incurred in connection with the granting of any requested consent to the
assignment or sublease;
(h) the proposed assignment shall be for a consideration or the
proposed subletting shall be at a rental rate not less than the rental rates
being charged under leases being entered into by Landlord for comparable space
in the Building and for a comparable term and in no event shall Tenant advertise
or list with brokers at any lower rental rate;
(i) such proposed subletting will result in there being no more
than three (3) occupants per floor of the Demised Premises including Tenant and
all subtenants, and
(j) the space to be sublet shall be regular in shape with
appropriate means of ingress and egress and suitable for normal renting
purposes.
36.5 If Landlord fails to exercise its option under Section 36.2 and
consents to a proposed assignment or sublease and Tenant fails to execute and
deliver the assignment or sublease to which Landlord consented within one
hundred twenty (120) days after the giving of such consent, then, Tenant shall
again comply with all of the provisions and conditions of Section 36.2 before
assigning this Lease or subletting all or part of the Demised Premises.
36.6 With respect to each and every sublease or subletting authorized by
Landlord or made without the need for Landlord's consent pursuant to Section
36.9, under the provisions of this Lease, it is further agreed that each
sublease shall provide that it is subject and subordinate to this Lease and to
the matters to which this Lease is or shall be subordinate, and that in the
event of termination, re-entry or dispossession by Landlord under this Lease,
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that Landlord shall not (a) be liable for any previous
act or omission of Tenant under such sublease, (b) be subject to any
counterclaim, offset or defense, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, (c) be responsible for any
monies owing by or on deposit with Tenant to the credit of such subtenant
whether in the nature of security or otherwise unless and to the extent such
monies are delivered to Landlord, or (d) be bound by any previous modification
of such sublease or by any previous prepayment of more than one (1) month's
fixed rent and additional rent. The provisions of this Section shall be
self-operative and no further instrument shall be required to give effect to
this provision.
36.7 If the Landlord shall give its consent to any assignment of this
Lease or to any sublease or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment, an amount equal to all sums and
other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
fixtures, lease-hold improvements, equipment, furniture, furnishings or other
personal property) less all expenses reasonably and actually incurred by Tenant
on account of brokerage commissions and advertising costs in connection with
such assignment; and
(b) in the case of a sublease, any rents, additional charges or
other consideration payable under the sublease to Tenant by the subtenant which
is in excess of the fixed rent and additional rent accruing during the term of
the sublease in respect of the subleased space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms hereof (including, but, not
limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property), less all
expenses reasonably and actually incurred by Tenant on account of brokerage
commissions, advertising costs and the cost of demising the premises so sublet
in connection with such sublease. The sums payable under this section shall be
paid to Landlord as and when payable by the subtenant to Tenant.
36.8 If Tenant is a corporation other than a corporation whose stock is
listed and traded on an internationally recognized stock exchange (hereinafter
referred to as a "public corporation"), the provisions of Section 36.1 shall
apply to a transfer (by one or more transfers) of a majority of the stock of
Tenant as if such transfer or a majority of the stock of Tenant were an
assignment of this Lease; but said provisions shall not apply to transactions
with a corporation into or with which Tenant is merged or consolidated or to
which substantially all of Tenant's assets are transferred, provided that in any
of such events (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (a) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (b) the net worth of Tenant herein named on the
date of this Lease and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
If Tenant is a partnership, the provisions of Section 36.1 shall apply
in the case of a transfer of partnership interests as if such transfer were an
assignment of this Lease.
36.9 Tenant may, without Landlord's consent, but otherwise upon
compliance with the provisions of this Lease, including the provisions of
Section 36.11, permit any corporations or other business entities which control,
are controlled by, or are under common control with Tenant including a joint
venture in which Tenant is a joint venture partner with control, (each a
"Related Entity") to sublet all or part of the Demised Premises for any of the
purposes permitted to Tenant, subject however to compliance with Tenant's
obligations under this Lease. Such subletting shall not be deemed to vest in any
such Related Entity any right or interest in this Lease or the Demised Premises
nor shall it relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than 50% of all of the legal and equitable interest in any other
business entities.
36.10 Any assignment or transfer, even if made with Landlord's consent,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed or observed.
36.11 Each subletting pursuant to this Article 36 shall be subject to
all the covenants, agreements, terms, provisions and conditions contained in
this Lease. Tenant shall promptly furnish to Landlord a copy of each such
sublease, Tenant covenants and agrees that, notwithstanding such assignment or
any such subletting to any subtenant and/or acceptance of rent or additional
rent by Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment of the fixed 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. Tenant further covenants and agrees that notwithstanding any such
assignment or subletting, no other and further assignment, underletting or
subletting of the Demised Premises or any part thereof shall or will be made
except upon compliance with and subject to the provisions of this Article 36.
36.12 If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, subtenant (but without
increasing the obligations of the subtenant under its sublease) or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article 36 or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained.
36.13 Landlord will, at the request of Tenant and at Tenant's expense,
maintain listings on the Building directory of the names of Tenant, Tenant's
program, Empire Mental Health Choice and any other Related Entity, person, firm,
association or corporation in occupancy of the Demised Premises or any part
thereof as permitted hereunder, and the names of any officers or employees of
any of the foregoing, provided, however, that the number of names so listed
shall be in the same proportion to the capacity of the Building directory as the
aggregate number of square feet of rentable area of the Demised Premises is to
the aggregate number of square feet of rentable area of the Building. The
listing of any name other than that of the Tenant and Empire Mental Health
Choice, whether on the doors of the Demised Premises, on the Building directory,
or otherwise shall not operate to vest any right or interest in this Lease or in
the Demised Premises or be deemed to be the written consent of the Landlord
mentioned in this Article 36, it being expressly understood that any such
listing is a privilege extended by Landlord revocable at will by written notice
to Tenant.
ARTICLE 37
Security Deposit
37.1 The original named tenant, Empire Blue Cross and Blue Shield shall
not be required to deposit with Landlord any security deposit. However, if this
Lease is assigned or otherwise transferred to any entity which is not a Related
Entity (for the purposes of this Article 37 such successor or assignee being
referred to as the "Successor Tenant"), Landlord shall have the right to
require, as a condition to Landlord's consent to such assignment of this Lease,
that the Successor Tenant deposit with Landlord an amount equal to two (2)
months fixed rent and additional rent, computed as of the effective date of the
assignment, which sum shall be deposited as security for the faithful
performance, and observance by the Successor Tenant of the terms, provisions,
covenants and conditions of this Lease. It is agreed that in the event the
Successor Tenant defaults in respect of any of the terms, provisions, covenants
and conditions of this Lease, including, but not limited to, the payment of rent
and additional rent, Landlord may use, apply or retain the whole or any part of
the security so deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which the Successor Tenant is in default
or for any sum which Landlord may expend or may be required to expend by reason
of Successor Tenant's default in respect of any of the terms, provisions,
covenants and conditions of this Lease, including but not limited to, any
damages or deficiency accrued before or after summary proceedings or other
re-entry by Landlord. In the event that the Successor Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the security shall be returned to the Successor Tenant after the
date fixed as the end of the Lease and after delivery of entire possession of
the Demised Premises to Landlord. In the event of a sale of the Land and
Building or leasing of the Building of which the Demised Premises form a part,
Landlord shall have the right to transfer the security to the vendee or lessee
and Landlord shall thereupon be released by the Successor Tenant from all
liability for the return of such security; and the Successor Tenant agrees to
look solely to the new Landlord for the return of said security. It is agreed
that then provisions hereof shall apply to every transfer or assignment made of
the security to a new Landlord. The Successor Tenant covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. In the event Landlord applies or retains any-portion or all of the
security deposited, the Successor Tenant shall forthwith restore the amount so
applied or retained so that at all times the amount deposited shall be the
amount set forth above,
ARTICLE 38
Deleted Prior to Execution
ARTICLE 39
Miscellaneous
39.1 Notwithstanding anything contained in this Lease to the contrary,
Tenant covenants and agrees that Tenant will not use the Demised Premises or any
part thereof, or permit the Demised Premises or any part thereof to be used,
(a) for a banking, trust company, or safe deposit business,
(b) as a savings bank, or a savings and loan association or
a loan company,
(c) for the sale of travelers checks and/or foreign
money exchange,
(d) as a stock brokerage office dealing with the general
public on an off the street basis,
(e) as a news and/or cigar stand, or
(f) as a restaurant and/cr bar and/or for the sale of
Confectionery and/or soda and/or beverages and/or sandwiches and/or ice cream
and/or baked goods or the preparation, dispensing or consumption of food or
beverages in any manner whatsoever, provided, however, that in connection with,
and incidental to, Tenant's use of the Demised Premises for general and
executive offices, Tenant, at its sole cost and expense, and upon compliance
with all applicable laws, rules, regulations and ordinances, may use a portion
of the Demised Premises for an employee's lounge and may install therein a
"xxxxx" or similar unit or microwave ovens for the purposes of warming food, and
vending machines, which, if same dispense beverages or other liquids or
refrigerates, shall each have a waterproof pan located thereunder, connected to
a drain.
39.2 Tenant hereby represents, covenants and agrees that Tenant's
business is not photographic reproductions and/or documentary reproductions
and/or offset printing. Notwithstanding anything contained in this Lease to the
contrary, Tenant covenants and agrees that Tenant will not use the Demised
Premises or any part thereof or permit the Demised Premises or any part thereof
to be used, for the business of photographic reproductions and/or documentary
reproductions and/or offset printing. Nothing contained in this Section 39.2
shall preclude Tenant from using any part of the Demised Premises for
photographic reproductions and/or documentary reproduction and/or offset
printing in connection with, either directly or indirectly, its own business.
39.3 If, in connection with obtaining financing for the Building, a
bank, insurance company or other lending institution shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder, alter the
economic terms of this Lease, decrease Landlord's obligations or materially
adversely affect the leasehold interest hereby created.
39.4 If Landlord shall consent to Tenant's request for the omission or
removal of any part of, or the insertion of any door or other opening in, any
wall separating the Demised Premises from adjoining space leased to another
tenant, then Tenant shall be responsible for all risk or damage to, or loss or
theft of, property arising as an incident to such omission or removal or the use
of such door or other opening, or because of the existence thereof, and shall
indemnify and save Landlord harmless from and against any claim, demand or
action for, or on account of, any such loss, theft or damage, subject to the
provisions of Section 11.6, unless due to Landlord's negligence, and (ii) in the
event of termination of this Lease or the lease of said other tenant, Landlord
may enter the Demised Premises and Landlord, at Tenant's expense, may close up
such door or other opening by erecting a wall to match the wall separating the
Demised Premises from said adjoining space, and Tenant shall not be entitled to
any diminution or abatement of rent or other compensation by reason thereof;
provided, however, that nothing herein contained shall be deemed to vest Tenant
with any right or interest in, or with respect to, said adjoining space, or the
use thereof, and Tenant hereby expressly waives any right to be made a party to,
or to be served with process or other notice under or in connection with any
proceeding or action which may hereafter be instituted by Landlord for the
recovery of the possession of said adjoining space, unless Landlord, in its sole
discretion, elects to make Tenant a party to such action.
39.5 Without incurring any liability to Tenant, but subject to the
provisions of Section 19.5, Landlord may permit access to the Demised-Premises
and open the same, whether or not Tenant shall be present, upon demand of any
receiver, trustee, assignee for the benefit of creditors, sheriff, marshal or
court officer entitled to, or reasonably purporting to be entitled to, such
access for the purpose of taking possession of, or removing, Tenant's Property
or for any other lawful purpose (but this provision and any action by Landlord
shall not be deemed to be a consent or recognition that the person or official
making such demand has any right or interest in or to this Lease, or in or to
the Demised Premises), or upon demand of any representatives of the fire,
police, building, sanitation or other department of the city, state or federal
governments, Landlord shall be entitled to rely upon and assume the genuineness
of all certificates or credentials presented to Landlord by the individuals
seeking such access.
39.6 Tenant shall not be entitled to exercise any right of termination
or other option granted to it by this Lease (if any) at any tire when Tenant
then currently is in default in the performance or observance of any of the
covenants, terms, provisions or conditions on its part to be performed or
observed under this Lease.
39.7 Tenant shall not place or permit to be placed any vending machines
in the Demised Premises, except as provided in Section 39.1(vi) or otherwise
with the prior written consent of Landlord in each instance.
39.8 Tenant shall not occupy any space in The Chrysler Building or the
Building (by assignment, sublease or otherwise) other than the Demised Premises,
except with the prior written consent of Landlord in each instance.
39.9 Tenant will not clean, nor require, permit, suffer or allow to be
cleaned, any window in the Demised Premises, from the outside in violation of
Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals, or of any other board or body having or asserting jurisdiction.
39.10 Tenant agrees that its sole remedies in cases where Landlord's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived.
39.11 The Article headings of this Lease are for convenience only and
are not to be given any effect whatsoever in construing this Lease.
39.12 This Lease shall not be binding upon Landlord unless and until it
is signed by Landlord and a signed copy thereof is delivered by Landlord to
Tenant.
39.13 The definitions set forth in Exhibit E annexed hereto shall be
utilized for purposes of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires.
39.14 The various terms which are defined in other Articles of this
Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and Exhibits for all purposes of this Lease and
all agreements supplemental thereto, unless the context shall otherwise require.
39.15 The Exhibits annexed to this Lease shall be deemed -part of this
Lease with the same force and effect as if such Exhibits were numbered Articles
of this Lease.
39.16 Tenant shall not, except with the prior written consent of
Landlord, use or permit to be used the words "Chrysler Building" or any
combination or simulation thereof for any purpose whatsoever including (but not
limited to) as or for any corporate, firm or trade name, trademark or
designation or description of merchandise or services or as part of an address.
39.17 If either Landlord or Tenant shall institute any action or
proceeding against the other relating to the provisions of this Lease or any
default hereunder then, in that event, the unsuccessful party in such action or
proceeding (whether as plaintiff or defendant therein) agrees to reimburse the
successful party for all reasonable expenses incurred in connection therewith,
including reasonable attorney's fees, costs and disbursements incurred by the
successful party.
ARTICLE 40
Late Charges
40.1 If Tenant shall fail to pay all or any part of any installment of
fixed annual rent or additional rent for more than ten (10) days after the same
shall have become due and payable, then Tenant shall pay as additional rent
hereunder to Landlord a late charge of Six Cents ($0.06) for each dollar of the
amount of such fixed annual rent or additional rent which shall not have been
paid to Landlord within such ten (10) days after becoming due and payable.
Notwithstanding the foregoing, at such time or times during the term of this
Lease that the amounts payable by Tenant for items of additional rent shall be
increased or changed pursuant to the provisions of this Lease, no late charge
shall be due or payable until the expiration of twenty (20) days after the date
that Tenant shall receive a statement from Landlord requiring the payment
thereof at the increased or changed rate.
40.2 In every case in which Tenant is required by the terms of this
Lease to pay to Landlord a sum of money (including without limitation, payment
of fixed and additional rent) and payment is not made within ten (10) days after
the same shall become due, Tenant shall pay as additional rent hereunder,
interest on such sum or so much thereof as shall be unpaid from the date it
becomes due until it is paid. Such interest shall be computed at a rate which
shall be two (2%) percent per month; provided, however, in no event shall such
interest be in excess of the highest rate of interest which shall from time to
time be permitted under the laws of the State of New York to be charged on late
payments of sums of money due pursuant to the terms of a lease. Any late charge
paid pursuant to Section 40.1 above shall reduce interest accrued hereunder with
respect to the same late payment.
40.3 The late charge payable pursuant to Section 40.1 above and the
interest payable pursuant to Section 40.2 above shall be (i) payable on demand
and (ii) without prejudice to any of Landlord's rights and remedies hereunder at
law or in equity for nonpayment or late payment of rent or other sum and in
addition to any such rights and remedies. No failure by Landlord to insist upon
the strict performance by Tenant of Tenant's obligations to pay late charges and
interest as provided in this Article 40 shall constitute waiver by Landlord of
its right to enforce the provisions of this Article 40 in any instance
thereafter occurring. The provisions of this Article 40 shall not be construed
in any way to extend the grace periods or notice periods provided for in Article
25 of this Lease.
ARTICLE 41
Deleted Prior to Execution
ARTICLE 42
Tenant's Initial Alterations
Tenant Improvement Allowance
42.1 Following the Commencement Date, Tenant shall commence Tenant's
Initial Alterations and complete same within the one year after the Commencement
Date. Tenant's Initial Alterations shall be undertaken and completed in
accordance with the terms of this Lease, including, without limitation, the
provisions of Article 13 hereof. Subject to the provisions of this Article 42,
Landlord shall contribute an amount not to exceed One Million Eight Hundred
Fifty-Nine Thousand Four Hundred Dollars ($1,859,400.00) (the "Tenant
Improvement Allowance") toward the cost of Tenant's Initial Alterations.
Landlord shall disburse a portion o-f the Tenant Improvement Allowance to Tenant
from time to time, within fifteen (15) days after receipt of the items set forth
in Section 42.2 provided that on the date of a request and on the date of
disbursement from the Tenant Improvement Allowance, Tenant shall not be in
default in performing or observing any of the obligations on Tenant's part to be
performed and observed under this Lease following any required notice and the
expiration of any applicable grace period. Disbursements to Tenant of portions
of the Tenant Improvement Allowance shall not be made more frequently then
monthly.
42.2 Landlord shall reimburse Tenant from the Tenant Improvement
Allowance for costs incurred by Tenant in connection with Tenant's Initial
Alterations upon Landlord's receipt of the following items:
(a) A request from Tenant for such disbursement signed by the
officer of Tenant designated in writing for such purpose, which request shall
certify that the amount requested is equal to the aggregate amounts theretofore
paid or payable by Tenant to Tenant's contractors, subcontractors and material
suppliers which requested funds have not been the subject of a previous
disbursement from the Tenant Improvement Allowance;
(b) Photocopies of all receipts, invoices and bills for the work
completed and materials furnished in connection with Tenant's Initial
Alterations and incorporated in the Demised Premises which are to be paid from
the requested disbursement or which have been paid by Tenant and for which
Tenant is seeking reimbursement;
(c) A certificate of Tenant's independent licensed architect
stating (i) that, in the architect's opinion, 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 plans and specifications therefore, as approved by Landlord, (ii)
the percentage of completion of the Tenant's Initial Alterations as of the date
of such certificate, and (iii) the estimated total cost to complete the
performance of Tenant's Initial Alternations;
(d) Any amounts payable to Landlord in connection with Tenant's
Initial Alterations including, without limitation, any payments due for use of
the freight elevator. The freight elevator charges payable by Tenant in
connection with Tenant's Initial Alterations and the initial "move-in" by Tenant
into the Demised Premises thereafter shall not exceed Eighty-Five Dollars
($85.00) per hour.
42.3 In no event shall the aggregate amount paid by to Tenant under this
Article 42 exceed the amount of the Tenant Improvement Allowance. Within sixty
(60) days after the completion of Tenant's Initial Alterations and upon the
satisfaction of the conditions set forth in Section 42.4, any amount of the
Tenant Improvement Allowance which has not previously been disbursed shall be
retained by Landlord. Upon the disbursement of the entire Tenant Improvement
Allowance (or the portion thereof if, upon completion of Tenant's Initial
Alterations, the Tenant Improvement Allowance is not exhausted) Landlord shall
have no further obligation or liability whatsoever to Tenant for any further
disbursements of any portion of the Tenant Improvement Allowance or otherwise to
contribute towards the cost of Tenant's Initial Alterations, it being understood
and agreed that Tenant shall complete, at its sole cost and expense, Tenant's
Initial Alterations whether or not the Tenant Improvement Allowance is
sufficient to fund such completion.
42.4 Notwithstanding anything in this Article or this Lease to the
contrary, on the earlier to occur of the date which is fifteen (15) days after
completion of Tenant's Initial Alterations or the date upon which Tenant makes a
request for disbursement to Tenant of the balance of funds remaining in the
Tenant Improvement Allowance, as a condition to such release, if appropriate but
in any event not later than fifteen (15) days following substantial completion
of Tenant's Initial Alterations, Tenant shall deliver to Landlord waivers of
lien from all contractors, subcontractors and material suppliers involved in the
performance of Tenant's Initial Alterations and the furnishing of materials in
connection therewith, together with a certificate from Tenant's independent
licensed architect stating that (i) in the architect's opinion, Tenant's Initial
Alterations have been performed (and completed) in a good and workmanlike manner
and in accordance with the final plans and specifications therefore as approved
by Landlord, and (ii) all contractors, subcontractors and material suppliers
have been paid for the work performed in connection with Tenant's Initial
Alterations or the materials furnished through such date.
42.5 Notwithstanding anything in this Article 42 or this Lease to the
contrary, Tenant, not Landlord shall be entitled to all rebates or credits due
in connection with the Consolidated Edison of New York rebate program in
connection with the work undertaken by Tenant as part of Tenant's Initial
Alterations or as part of Tenant's Changes to any Additional Premises (as
defined in Article 44). Landlord agrees to cooperate with Tenant, at Tenant's
sole cost and expense in connection with Tenant's application for any such
rebates or credits.
ARTICLE 43
Option to Renew
43.1 Provided that this Lease is in full force and effect and Tenant is
not then currently in default hereunder, Tenant shall have the option to extend
the original term of this Lease for one (1) extension period of five (5) years
("Renewal Term") commencing upon the expiration of the original term of this
Lease, provided that Tenant shall give Landlord written notice of the exercise
of its option at least twelve (12) months prior to the Expiration Date. The
Renewal Term shall be on the same terms, covenants and conditions as are
contained in this Lease for the original term except for:
(i) the provisions of Section 1.4 (a) respecting the fixed rent, which
shall be payable during the Renewal Term in accordance with the provisions
of Section 43.2;
(ii) the provisions of Section 1.4(c);
(iii) the covenants relative to the preparation of the Demised Premises by
Landlord contained in Article 3 of this Lease;
(iv) the Tenant Improvement Allowance contained in Article 42 of this
Lease;
(v) the Option to Renew contained in this Article 43;
none of which shall be applicable to the Renewal Term. In addition, following
Tenant's exercise of the option to extend the original term of this Lease for
the Renewal Term, the Expiration Date referred to in Section 1.3 shall be deemed
to be the last day of the Renewal Term or such earlier date upon which the term
of this Lease may expire or be canceled or terminated. In no event shall Tenant
shall have any further right of renewal beyond the Renewal Term. Any termination
or expiration of this Lease during the original term shall terminate all rights
of renewal hereunder.
43.2 The provisions of Section 1.4 of this Lease shall not be applicable
to the Renewal Term. The fixed rent payable during each year of the Renewal Term
shall be the amount determined by (a) multiplying Thirty-Eight Dollars ($38.00)
by the number of rentable square feet then contained in the Demise Premises, and
adding thereto (b) the amount determined by multiplying the number of rentable
square feet then contained in the Demised Premises by the amount of all
increases in the Electrical Charge or Adjusted Electrical Charge pursuant to
Article 16 of this Lease, provided, however, that in no event shall the fixed
rent during the Renewal Term be less than One Million Five Hundred Seventy
Thousand One Hundred Sixty Dollars.
ARTICLE 44
Options for Additional Space
44.1 With respect to the premises cross-hatched and highlighted in red
on page B-3 of Exhibit "B" and denoted there as the "6th Floor Rear Premises",
provided that this Lease is i full force and effect and Tenant is not then
currently in default hereunder, upon ten (10) Business Days written notice to
Landlord, given not later than the last day provided for Tenant to exercise its
option for the Renewal Term as provided in Article 43, Tenant shall have the
option to lease the entire 6th Floor Rear Premises which contains approximately
7,185 rentable square feet. In such event, on the eleventh (11th) Business Day
following the date of Tenant's notice to Landlord, the entire 6 Floor Rear
Premises shall be added to and be deemed a part of the Demised Premises, upon
and subject to all of the same terms and conditions of this Lease (provided,
however, in no event shall the exercise of the option pursuant to this Section
44.1 be or opened to extend the term of this Lease). Tenant acknowledges and
agrees that, except as set forth in Section 44.4 of this Lease, Landlord shall
have no obligation to perform any work (including, without limitation, any of
the work described herein as "Landlord's Work") with respect to the 6th Floor
Rear Premises if, as and when same is added to the Demised Premises pursuant
this Article 44, and Tenant shall accept the 6th Floor Rear Premises, as
appropriate, in its then "as is" condition provide that same is delivered to
Tenant vacant and broom-clean. Notwithstanding the foregoing, Landlord and
Tenant acknowledge and agree that from time to time and at various times during
the term of this Lease, at any time prior to Landlord's receipt of notice from
Tenant exercising its option under this Section 44.1 Landlord shall have the
right to lease to other tenants, all or any portion of the 6th Floor Rear
Premises provided, however, that Landlord agrees that all such leases for the
6th Floor Rear Premises or any portion or portions thereof, to be entered into
by Landlord with such other tenants during the original term of this Lease,
shall provide for a term which is co-terminis with the original term of this
Lease. If Tenant elects to extend the term of this Lease as provided in Article
43, unless Tenant, simultaneously with or prior to the exercise of the option
for the Renewal Term, exercises the option contained in this Section 44.1,
during the Renewal Term Landlord shall have the right to enter into any lease
for all or any portion of the 6th Floor Rear Premises as Landlord shall, in its
sole discretion, determine without any limitation or restriction whatsoever,
whether as to the term of such lease or otherwise. Tenant's option which is
provided in this Section 44.1 shall terminate as of the date which is the last
date for Tenant to exercise its option for the Renewal Term as set forth in
Article 43.
44.2 At all times during the original term of this Lease and the Renewal
Term, if any, with respect to the premises cross-hatched and highlighted in blue
on page B-4 of Exhibit "B" and denoted thereon as the "6th Floor Front
Premises", which contains approximately 14,700 rentable square feet provided
that this Lease is in full force and effect and Tenant is not then currently in
default hereunder, Landlord agrees that it shall not enter into a lease for the
entire 6th Floor Front Premises or any portion thereof with any tenant without
first notifying Tenant that Landlord in good faith, intends to enter into a bona
fide lease for all or a portion of the 6th Floor Front Premises, Tenant shall
have ten (10) Business Days after Landlord's notice to notify Landlord in
writing whether Tenant desires to exercise its option to lease all or such
portion of the 6th Floor Front Premises as Landlord then intends to lease. If
Tenant exercises its option to lease all or any such portion of the 6th Floor
Front Premises, then as of the expiration of said ten (10) Business Day period,
the 6th Floor Front Premises or such portion thereof shall be added to and be
deemed a part of the Demised Premises, upon and subject to all of the same terms
and conditions of this Lease (provided, however, in no event shall the exercise
of the option pursuant to this Section 44.2 be or be deemed to extend the term
of this Lease), Tenant acknowledges and agrees that, except as set forth in
Section 44.4 of this Lease, Landlord shall have no obligation to perform any
work (including, without limitation, any of the work described herein as
"Landlord's Work") with respect to any portion of the 6th Floor Front Premises
which is added to the Demised Premises pursuant to this Article 44. Tenant shall
accept the 6th Floor Front Premises or the portions thereof, as appropriate, in
its then "as is" condition provided that same is delivered to Tenant vacant and
broom-clean. If Tenant shall not timely exercise its option for the 6th Floor
Front Premises or any such portion thereof, or shall reject same within the ten
(10) Business Days (failure to timely so accept, time being of the essence,
being deemed a rejection), then Landlord shall have the right to enter into
anylease for the-6th Floor Front Premises or such portion thereof as Landlord
intended to lease, as Landlord, in its sole discretion, shall determine, without
any limitation or restriction whatsoever, whether as to the term of such lease
or otherwise, and Tenant's option with respect to the entire 6th Floor Front
Premises or such portion thereof as Landlord intended to lease, shall be null,
void and of no further force or effect.
44.3 Provided that (i) this Lease is in full force and effect, (ii)
Tenant is not then currently in default hereunder, (iii) Tenant has exercised
its option for the Renewal Term and (iv) Tenant has, prior to the commencement
of the Renewal Term, exercised its option to add to the Demised Premises, and
has, in fact, added to the Demised Premises of the 6th Floor Rear Premises or
all or a portion of the 6th Floor Front Premises (collectively, the "Additional
Premises") then upon the commencement of the Renewal Term, Landlord agrees to
pay to Tenant an amount equal to $22.50 per rentable square foot, (Additional
Tenant Improvement Allowance") for each rentable square foot of the total
Additional Premises which Tenant has leased as of the commencement of the
Renewal Term. The Additional Tenant Improvement Allowance shall be paid to
Tenant upon the commencement of the Renewal Term. After the commencement of the
Renewal Term, no Additional Tenant Improvement Allowance shall be due or payable
with respect to any Additional Premises. Except for the Additional Tenant
Improvement Allowance, and the provisions of Section 44.4, Landlord -shall have
absolutely no obligation or liability whatsoever to Tenant for any disbursements
toward, or for any of the costs or expenses incurred by Tenant in connection
with, any Tenant's Changes with respect to the Demised Premises and the
Additional Premises or to provide any work, labor or materials with respect
thereto. It is understood and agreed that Tenant shall complete, at Tenant's
sole cost and expense, all Tenant's Changes with respect to the Additional
Premises whether or not the Additional Tenant Improvement Allowance is
sufficient to fund such Completion. The Failure of Landlord to pay to Tenant the
Additional Tenant Improvement Allowance upon the commencement of the Renewal
Term shall be a default by Landlord under this Lease.
44.4 If any Additional Premises are added to the Demised Premises
pursuant to this Article 44, and 3-f upon taking possession thereof, Tenant
shall discover asbestos or asbestos containing or asbestos-treated materials in
the ducts, pipes or other portions of the ceiling thereof running on a
horizontal plane through the Additional Premises, Tenant shall immediately
notify Landlord thereof, but in no event later than ninety (90) days after the
Additional Premises have been added to the Demised Premises. If Tenant so timely
notifies Landlord, Landlord shall promptly upon receipt of Tenant's notice,
commence and proceed with diligence to remove all such asbestos, asbestos
containing materials or asbestos-treated materials from the horizontal ceiling
plane portions of the Additional Premises, such removal to be undertaken in
accordance with Asbestos Requirements and at Landlord's sole cost and expense,
Landlord's removal of same shall be undertaken and completed in a manner which
shall minimize interference with, or any delay of, any Tenant's Changes in the
Additional Premises. In no event shall Landlord have any obligation to remove
asbestos or asbestos containing or asbestos-treated materials, if any, from any
portion of the walls, columns, risers, or other vertical plane portions of the
Additional Premises. If Tenant does not so notify Landlord of the presence of
asbestos or asbestos containing or asbestos-treated materials in the ducts,
pipes or other portions of the ceiling thereof running on a horizontal plane
through the Additional Premises within said ninety (90) day period, as
aforesaid, Landlord shall have no obligation pursuant to this Section 44.4 to
remove any asbestos or asbestos containing or asbestos-treated materials from
any portion of the Additional Premises.
44.5 If any Additional Premises are added to the Demised Premises
pursuant to this Article 44, promptly thereafter Landlord and Tenant shall
execute and deliver a written instrument to be prepared by Landlord which shall
set forth the revised rentable square footage of the Demised Premises, a revised
Tenant's Proportionate Share and the revised fixed rent The increases in fixed
rent and additional rent shall become due and payable immediately upon the
Additional Premises becoming part of the Demised Premises and shall be paid, if
such event occurs on a date other than the first day of a month, pro rata for
such partial month, upon such event occurring, and thereafter along with the
monthly payments of fixed rent and additional rent reserved under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
XXXXX PROPERTIES INC.
Landlord
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EMPIRE BLUE CROSS AND BLUE SHIELD
Tenant
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: C.O.B. - C.E.O.
EXHIBIT A
Certificate of Occupancy
See Attached two (2) Pages
EXHIBIT B
Floor Plan
All Areas, Dimensions And
Conditions Are Approximate
See Attached Four (4) Pages.
EXHIBIT C
Operating Expense Escalation
A.Tenant acknowledges that Tenant has been advised by Landlord that the
Building is operated, repaired, improved, altered and generally maintained
as a single integrated building along with The Chrysler Building located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and that Landlord's records
with respect to Operating Expenses are kept on a consolidated basis
treating both buildings as a single entity. Tenant has requested that
Landlord provide to Tenant the Statement of Operating Expenses and
Statement of Projected Operating Expenses and otherwise compute Tenant's
Proportionate Share of operating Expenses and of Increases in Operating
Expenses as if the Building were operated independent of The Chrysler
Building, and Landlord has agreed to do so. Tenant acknowledges that the
Operating expenses for the Building shall include the proportionate share
of the Common operating Expenses (hereinafter defined) attributable, on a
pro rata basis, to the Building (as opposed to the Chrysler Building) and
Tenant acknowledges and agrees that the proportionate allocation of the
Common Operating Expenses on such pro rata basis is fair and equitable,
Tenant acknowledges and agrees that, as of the date of this Lease, the pro
rata share of Common Operating Expenses allocated to the Building shall be
thirty-three and thirty-three one hundredths percent (33.33-%).
B. For the purpose of Exhibit C the following definitions shall apply:
1. The term "Common Operating Expenses" shall mean all Operating
Expenses incurred in connection with the unified operation of the
Building with the building known as The Chrysler Building located
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 as described in
Section A of this Exhibit C. Common Operating Expenses shall
include, without limitation the operating Expenses described in
Section C of this Exhibit C, exclusive of Operating Expenses
consisting of a Capital Expenditure which benefits solely The
Chrysler Building and not the Building.
2 The term "Building" when used in connection with this Exhibit C
and the determination of Operating Expenses shall mean not only
the Building as defined in this Lease, but also include the
Building's proportionate share of all Common Operating Expenses.
3 The term "Tenant's Proportionate Share" shall mean .087.
4. The term "Base Year" shall mean the calendar year 1992.
5. The term "Operation Year" shall mean each calendar year,
subsequent to the Base Year in which occurs any part of the term
of the Lease.
6 The term "Operating Expenses" shall mean the total of all costs
and expenses including any taxes thereon, incurred or borne by
Landlord or Landlord's managing agent (whether directly or
through independent contractors) in connection with the
operation, maintenance, management and security of the Building
and any plazas, sidewalks and curbs adjacent thereto, and the
services provided tenants therein, except as otherwise
specifically modified in section C of this Exhibit C.
7. The term "Projected operating Expenses" shall mean the reasonably
estimated operating Expenses for the current Operation Year. The
Projected Operating Expenses shall be computed by Landlord or
Landlord's managing agent based upon known conditions for the
current Operation Year.
8 The term "Statement of operating Expenses" shall mean the annual
statement of actual Operating Expenses for the Building, The
Statement of operating Expenses shall be written, detailed and
prepared on an annual basis after the expiration of the Base Year
and Operation Year. The Statement of operating Expenses shall be
prepared by Landlord or Landlord's managing agent for the purpose
of determining Tenant's Proportionate Share of Increase, The
Statement of Operating Expenses shall be certified in writing as
correct by an officer of Landlord or Landlord's managing agent.
9. The term "Statement of Projected Operating Expenses" shall mean
the written statement setting forth in detail the estimate of
Projected Operating Expenses for the current Operation Year. The
Statement of Projected Operating Expenses shall be prepared by
Landlord or Landlord's managing agent for the purpose of
determining Tenant's Proportionate Share of Projected Increase.
10. The term "Tenant's Proportionate Share of Increase" shall
mean the product obtained by multiplying Tenant's
Proportionate Share by the increase in Operating Expenses
for an Operation Year over Operating Expenses for the Base
Year.
11. The term "Tenant's Proportionate Share of Projected
Increase" shall mean the product obtained by multiplying
Tenant's Proportionate Share by the increase in Projected
Operating Expenses for the current Operation Year over
Operating Expenses for the Base Year.
12. The term "Labor Costs" shall include, without limitation,
the cost and expense of salaries, wages, payroll taxes and
other so-called "fringe" benefits which include without
limitation, medical benefits, surgical benefits, general
welfare benefits, group insurance benefits, retirement
plans, pension plans, vacation pay, sickness pay; etc.
13. The term "Capital Expenditure" shall mean the cost and
expense of any alteration, addition, change, replacement,
improvement or repair which under generally accepted
accounting principles consistently applied as pertaining
to the real estate industry, is properly classified as a
capital expenditure.
C. For the purpose of Exhibit C the definition operating Expenses shall be
modified as follows:
1. Operating Expenses shall include, without limitation, the cost and
expense of the following:
(a) Labor Costs for employees of Landlord or Landlord's managing agent who
are engaged in the operation and maintenance of the Building ("Building
Employees");
(b) uniforms and the cost of cleaning such uniforms for the Building
Employees;
(c) workmen's compensation insurance and any other insurance carried by
Landlord or Landlord's managing agent which relates to the Building
Employees;
(d) fire, casualty, liability, rent and other insurance carried by
Landlord;
(e) utilities furnished to the building, including any taxes on such
utilities, and such utilities shall include, without limitation, steam,
heat, ventilation, air-conditioning, water, sewer rental, oil, gas;
(f) electricity furnished to the Building, including any taxes on such
electricity, except the cost of electricity furnished to the demised space
of tenants of the Building shall be excluded;
(g) repairs, maintenance, replacements, improvements and the related
supplies which are necessary for the continued operations of the Building
as first class office building in the Borough of Manhattan, City of New
York;
(h) repair and maintenance for elevators and escalators;
(i) cleaning and window cleaning;
(j) management fees for Landlord and/or Landlord's managing agent;
(k) professional and consulting fees;
(1) protection and security;
(m) lobby decorations;
(n) interior and exterior landscape repair and maintenance;
(o) trash removal and snow removal;
(p) painting of public portions of the Building and other similar
non-tenanted areas;
(q) dues or fees for associations; and
(r) telephone usage.
2. Operating Expenses shall exclude, the cost and expense of the following:
(a) Labor Costs for employees of Landlord or Landlord's managing agent who
are above the grade of building manager;
(b) Real Estate Tax and any items specifically included in the definition
of Real Estate Taxes;
(c) Ground Rent;
(d) mortgage interest, financing charges and letter of credit fees;
(e) Capital Expenditures, subject however to Sections C3, C4 and C5 of this
Exhibit C;
(f) depreciation or amortization expense, subject however to Sections C3,
C4 and C5 of this Exhibit C;
(g) legal fees, brokerage commissions, advertising expenses and other costs
incurred in leasing or attempting to lease any portion of the Building;
(h) leasehold improvements made to space which is leased to tenants of the
Building and other expenses incurred in preparing space for use by other
tenants; (i) legal fees relating to the sale or financing of the Building,
a dispute with a tenant of the Building or the protesting of Real Estate
Taxes;
(j) expenses to the extent Landlord is compensated or reimbursed by any
insurance or other compensation from a third party (other than Tenant or
another tenant of the Building solely with respect to After Hours services,
including, without limitation, HVAC and freight elevators);
(k) insurance premiums to the extent Landlord is entitled to be reimbursed
by a tenant of the Building pursuant to Article 11 of the Lease;
(1) Capital Expenditures and other Operating Expenses which are not Common
operating Expenses and which benefit solely the tenant's of the Chrysler
Building; and
(m) Tax penalties, interest or fines incurred as a result of Landlord's
negligence, inability or unwillingness to make payments when due,
3. If a Capital Expenditure is made in an Operation Year and results in
savings or reductions in Operating Expenses or is in lieu of a repair, then
the annual amortization or depreciation of the cost of such Capital
Expenditure, as amortized or depreciated on a straight line basis over the
number of years utilized by Landlord for federal income tax purposes, plus
an annual charge for interest upon the unamortized or undepreciated portion
of such Capital expenditure at the prevailing prime rate plus 100 basis
points during the Operation Year in question or the amount by which the
Operating Expenses for each Operation Year Capital expenditure as
reasonably determined by Landlord, which ever is greater, shall be included
in Operating Expenses beginning with the Operating Year in which the
Capital Expenditure was made.
4. If a Capital Expenditure is made in an operation Year in compliance with
the requirement of any federal, state or local law, or governmental
regulation, the Federal Occupational, Safety and Health Act, and similar
laws now or hereafter in force or effect, or if such Capital Expenditure
generally benefits the tenants of the Buildings, then the annual
amortization or depreciation of the cost of the Capital Expenditure, as
amortized or depreciated on a straight line basis over the number of years
utilized by Landlord for federal income tax purposes, plus an annual charge
for interest upon the unamortized or undepreciated portion of such Capital
Expenditure at the prevailing prime rate plus l00 basis points shall be
included in Operating Expenses beginning with the Operation Year in which
the Capital Expenditure was made.
5. If an item of capital equipment is leased in an Operation Year and
results in savings or reductions in operating Expenses or is in lieu of a
repair, then the greater of the rentals and other costs paid pursuant to
such leasing or the amount by which operating Expenses for each operating
year during such lease term have been reduced shall be included in
Operating Expenses for the Operation Year in which they were incurred.
6. If during the Base Year or any Operation Year, less than one hundred
percent (100%) of the rentable area of the Building was occupied by tenants
making full utilization of such area, operating Expenses for such Base Year
or Operation Year shall be increased to an amount which would have been
reasonably incurred if the rentable area of the Building was one hundred
percent (100%) occupied by tenants making full utilization of such area.
7. If during the Base Year or any Operation Year, Landlord shall not
furnish any particular item(s) of work or service, which would constitute
an operating Expense hereunder, to a portion of the Building (including
without limitation the Demised Premises) because such item(s) of work or
service are not required or desired by the tenant (including without
limitation to Tenant) of such portion, or tenant is itself obtaining and
providing such item(s) of work or service, or for any other reasons, then,
Operating Expenses for such Base Year or Operation Year shall be increased
to an-a-mount which would have been reasonably incurred if Landlord had
furnished such item(s) of work or service at its own expense.
D. Commencing with the first Operation Year and any subsequent Operation
Year, Landlord shall furnish Tenant with a Statement of Projected Operating
Expenses which supports the computation of Tenant's Proportionate Share of
Projected Increase for the current operation Year. Tenant shall pay to
Landlord as additional rent, Tenant's Proportionate Share of Projected
Increase in equal monthly installments in advance; but if such statement
shall be delivered after the first month of such operation Year, the
charges which shall have accumulated for such Operation Year shall be paid
within ten (10) days of Tenant's receipt.
E. If during any Operation Year or part thereof Landlord shall not have
furnished Tenant with a Statement of Projected Operating Expenses for the
current Operation Year, then Tenant shall continue to pay Landlord the sums
payable for the immediately preceding Operation Year until the Statement of
Projected operating Expenses for the current Operation Year shall have been
furnished to Tenant, at which time the monthly installments by Tenant shall
be adjusted retroactively pursuant to Section C of this Exhibit C.
F. After the expiration of the Base Year and Each Operation Year, Landlord
shall furnish Tenant with the Statement of Operating Expenses setting forth
Tenant's Proportionate Share of Increase. For the Base Year or Operation
Year in question:
1. If Tenant's Proportionate Share of Projected Increase exceeds Tenant's
Proportionate Share of Increase, Landlord shall forthwith either (i) pay
the amount of such excess directly to Tenant or (ii) permit Tenant to
credit the amount of such excess against the subsequent payment of rent due
hereunder;
2. If Tenant's Proportionate Share of Increase exceeds Tenant's
Proportionate Share of Projected Increase, Tenant shall forthwith pay the
amount of such excess to Landlord.
G. Every statement given by Landlord pursuant to Section E of this Exhibit
C shall be conclusive and binding upon Tenant unless (i) within sixty (60)
days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness thereof, (ii) if such dispute shall not have
been settled by agreement, Tenant shall submit the dispute for resolution
in accordance with Section J of this Exhibit C within ninety (90) days
after receipt of the statement. Pending the determination of such dispute
by agreement or such dispute resolution as aforesaid, Tenant shall either
(i) within thirty (30) days after receipt of such statement, pay additional
rent in accordance with Landlord's statement if additional rent is owed, or
(ii) in the event that Landlord's statement shows that Landlord owes Tenant
money, Tenant may either accept such payment from Landlord or apply the
credit shown on such statement against subsequent payments of additional
rent, and such payment, acceptance of payment and credit against additional
rent shall all be without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay Tenant
the amount of Tenant's overpayment resulting from compliance with
Landlord's statement.
H. In the event (i) that the date of the expiration or other termination of
this Lease shall be a day other than the last day of an Operation year, or
(ii) of any increase or decrease in the space comprising the Demised
Premises (as may be provided herein), then in each such event in applying
the provisions of this Exhibit C with respect to any operation Year in
which such event shall have occurred, appropriate adjustments shall be made
to reflect the occurrence of such event on a basis consistent with the
principles underlying the provisions of this Exhibit C taking into
consideration (y) the portion of the Operation Year which shall have
elapsed prior to the date of such expiration or termination or, (z) in the
case of any increase or decrease the portion of the Demised Premises to
which the same relates and the portion of the Operation year which shall
have elapsed prior to the date of such increase or decrease.
I. Payments shall be made pursuant to this Exhibit C notwithstanding the
fact that statements pursuant to this Exhibit C are furnished to Tenant
after the expiration of the term of this Lease.
J. In the event of a dispute between Landlord and Tenant with respect to
Landlord's statement of Operating Expenses, such dispute shall be
determined as provided in this Section J of Exhibit C. Landlord and Tenant
shall each appoint a person as arbitrator who shall have had at least ten
(10) years experience in the City, County and State of New York in a
profession, business or occupation involving the determination of operating
expenses for buildings similar to the Building. The appointment of each
such arbitrator shall be confirmed in writing by each party to the other.
The arbitrator so appointed, in the event of their failure to agree upon
the matter so submitted within thirty (30) days of their appointment, shall
appoint a third arbitrator having similar qualifications to each of them,
If the two arbitrators can not agree on the appointment of such third
arbitrator, the third arbitrator shall be appointed by the Real Estate
Board of New York, Inc. from its qualified panel of arbitrators who shall
meet the experienced criteria set forth above. If Landlord or Tenant shall
fail to so appoint an arbitrator for a period of twenty (20) Business Days
after written notice from the other demanding such appointment, then the
arbitrator appointed by the party not in default hereunder shall appoint
the second arbitrator and the two arbitrators so appointed shall, in the
event of their failure to agree upon any decision within thirty (30) days
thereafter, appoint the third arbitrator. The two arbitrators, or the three
arbitrators, as appropriate, after being duly sworn to perform their duties
with impartiality and fidelity, shall proceed to determine the question
submitted. The decision of the arbitrators shall be rendered within thirty
(30) days after their appointment, and such decision shall be in writing
and in duplicate, one counterpart thereof to be delivered to each of
Landlord and Tenant. The decision of the arbitrators shall be binding,
final and conclusive on the parties. The fees of the arbitrators and the
expenses incident to the proceedings shall be borne equally between
Landlord and Tenant, unless the arbitrators, by their decision shall
otherwise direct. The fees of the respective counsel, if any, engaged by
the parties and the fees of expert witnesses and other witnesses called for
by the parties, if any, shall be paid by the respective party engaging such
counsel or calling or engaging such witnesses.
EXHIBIT D
Rules and Regulations
1. The right of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress and egress from the tenant's
premises for the tenants and their employees, licensees and invitees, and no
tenant shall use, or permit the use of, the entrances, corridors, escalators or
elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by other tenants. Fire exits and stairways are for emergency use only, and they
shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not having a pass issued by the Landlord or not
otherwise properly identified, and may require all persons admitted to or
leaving the Building outside of ordinary business hours to register. Any person
whose presence in the Building at any time shall, in the judgment of Landlord,
be prejudicial to the safety, character, reputation and interests of the
Building or of its tenants may be denied access to the Building or may be
ejected therefrom. In case of invasion, riot, public excitement or other
commotion Landlord may prevent all access to the Building during the continuance
of the same, by closing the doors or otherwise, for the safety of the tenants
and protection of property in the Building. Landlord may require any person
leaving the Building with any package or other object to exhibit a pass from the
tenant from whose premises the package or object is being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. Landlord shall, in no way, be
liable to any tenant for damages or person to or from the tenant's premises or
the Building under the provisions of this rule. Canvassing, soliciting or
peddling in the Building is prohibited, and every tenant shall co-operate to
prevent the same.
3. No Tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by Landlord in writing, in Landlord's reasonable
judgment, to furnish such services, provided that the charges for such services
by persons authorized by Landlord are reasonably competitive and, where
appropriate and consonant with the security and proper operation of the
Building, sufficient persons are so authorized for the same service to provide
tenants with a reasonably competitive selection. Such service shall be furnished
only at such hours, in such places within the tenant's premises and under such
reasonable regulations as may be fixed by Landlord.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by the acts or omissions of a tenant or the employees, licensees
or invitees of the tenant, shall be paid by such tenant as additional rent.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
premises, except that the name of the tenant may be displayed on the entrance
door of the tenant's premises, and in the elevator lobbies of the floors which
are occupied entirely by any tenant, subject to the approval of Landlord as to
the size, color and style of such display. The inscription of the name of the
tenant on the door of the tenant's premises shall be done by Landlord at
Tenant's expense; any other listings shall be in the discretion of Landlord.
6. No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window blinds as are supplied or
permitted by Landlord shall be used in a tenant's premises, Linoleum, tile or
other floor coverings shall be laid in a tenant's premises only in a manner
approved by Landlord which approval may be part of the approval of Tenant's
Initial Alterations or the Tenant's Changes.
7. Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon a tenant's premises. If, in the
judgment of Landlord, it is necessary to distribute the concentrated weight of
any heavy object, the work involved in such distribution shall be done at the
expense of the tenant and in such manner as Landlord shall determine. The moving
of safes and other heavy objects shall take place only outside of ordinary
business hours upon previous notice to Landlord, and the persons employed to
move the same in and out of the Building shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's license.
Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only in the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Landlord. Arrangements will be made by
Landlord with any tenant for moving large quantities of furniture and equipment
into or out of the Building.
8. No machines or mechanical equipment of any kind, other than
ordinary moveable business machines and such other equipment as may be permitted
pursuant to tenants and pursuant to their lease, may be installed or operated in
any tenant's premises without Landlord's prior written consent, and in no case
(even where the same are of a type so accepted or as so consented to by
Landlord) shall any machines or mechanical equipment be so placed or operated as
to disturb other tenants; but machines and mechanical equipment which may be
permitted to be installed and maintained by such tenant as to prevent any
disturbing noise, vibration, or electrical or other interference from being
transmitted from such premises to any other area of the Building.
9. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of Landlord, might disturb other tenants
in the Building, shall be made or permitted by any tenant, and no cooking shall
be done in any tenant's premises, except as expressly approved by Landlord.
Nothing shall be done or permitted in any tenant's premises, and nothing shall
be brought into or kept in any tenant's premises, which could impair or
interfere with any of the Building services or the proper and economic heating,
cleaning or other servicing of the Building or the premises, or the use or
enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any ventilating, air-conditioning, electrical or other
equipment of any kind which, in the judgment of Landlord, might cause any such
impairment or interference. No dangerous, inflammable, combustible or explosive
object or material shall be brought into the Building by any tenant or with the
permission of any tenant, Any cuspidors or similar containers or receptacles
used in any tenant's premises shall be cared for and cleaned by and at the
expense of the tenant.
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them, The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purpose for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows in any tenant's premises and no lock or any door
therein shall be changed or altered in any respect. Additional keys for a
tenant's premises and toilet rooms shall be procured only from Landlord, which
may make reasonable charge therefor. Upon the termination of a tenant's lease,
all keys of the tenant's premises and toilet rooms shall be delivered to
Landlord.
12. All entrance doors in each tenant's premises shall be left
locked and all windows shall be left closed by the tenant when the tenant's
premises are not in use. Entrance doors shall not be left open at any time.
13. Hand trucks not equipped with rubber tires and side
guards shall not be used within the Building.
14. All windows in each tenant's premises shall be kept closed and
all blinds therein above the ground floor shall be lowered and closed when and
as reasonably required because of the position of the sun, during the operation
of the Building air-conditioning system to cool or ventilate the tenant's
premises.
15. Landlord reserves the right to rescind, alter or waive any rule
or regulation at any time prescribed for the Building when, it its reasonable
judgment, it deems it reasonably necessary, desirable or proper for its best
interest and for the best interests of the tenants, and no alteration or waiver
of any rule or regulation in favor of one tenant shall operate as an alteration
or waiver in favor of any other tenant. The Landlord shall not be responsible to
any tenant for the non-observance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
EXHIBIT E
Definitions
(a) The term mortgage shall include an indenture of mortgage and
deed of trust to a trustee to secure an issue of bonds, and the term mortgagee
shall include such a trustee.
(b) The terms include, including, and such as shall each be
construed as if followed by the phrase "without being limited to".
(c) The term obligations of this Lease, and words of like import,
shall mean the covenants to pay rent and additional rent under this Lease and
all of the other covenants and conditions contained in this Lease. Any provision
in this Lease that one party or the other or both shall do or not do or shall
cause or permit or not cause or permit a particular act, condition or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term Tenant's obligations hereunder, and words of like
import, and the term Landlord's obligations hereunder, and words of like import,
shall mean the obligations of this Lease which are to be performed or observed
by Tenant, or by Landlord, as the case may be, Reference to performance of
either party's obligations under this Lease shall be construed as "performance
and observance".
(e) Reference to Landlord as having no liability to Tenant or being
without liability to Tenant shall mean that, except as may be specifically set
forth in the subject lease provisions, Tenant is not entitled to terminate this
Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated for loss or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Demised Premises.
(f) The term laws and/or requirements of public authorities, and
words of like import, shall means laws and ordinances of any or all of the
Federal, State, City, County and Borough Governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other governmental, public or
quasi-public authorities having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
(g) The term requirements of insurance bodies, and words of like
import, shall mean rules, regulations, orders and other requirements of the New
York Board of Fire Underwriters and/or the New York Fire Insurance Rating
organization and/or any other similar body performing the same, or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(h) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(i) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or to law. Upon a termination of
this Lease, the term and estate granted by this Lease shall end at midnight of
the date of termination as of such date of expiration of the term of
Jul 12, 1991
FLOORING:
X. XXXXXXX & SON
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
MR, XX XXXXXXX
(000) 000-0000
GUNDOLT CARPET WORKROOHJ,
000 XXXXXXXX XXXX
XXXXXX, XX 00000
XX. XXXXXXX XXXXXX
(000) 000-0000
SCS CARPET SYSTEHS
000 XXXXXXXXX XXXXXX
XXX XXXX, XX 00000
XX XXXXXXX XXXXXXXXX
(212)
SHERLAND & XXXXXXXXXX,INC.
000 XXXXX XXXXXX
XXX XXXX, XX 00000
XX. XXXXXX XXXXXXXX
(000) 000-0000
PATINGING & WALLPAPER
MAR-KAL CONTRACTING
000 00XX XXXXXX
XXXXXXXX XX 00000
XX. XXXX XXXXXXX
XXXXXX - XXXXX PAINTING CO., INC.
000 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
Xx. XXXXXXXXX MAH
XXXX PAINTING
0000 XXXXX XX.
XXXXXXXX XX. XX 00000
XX. XXXXX XXXXXX
Jul 12, 1991
LATHE & ACOUSTICS:
XXXXX X. XXXXXXXX, INC.
XXX XXXX XXXXX, XXXXX 0000
XXX XXXX, XX 00000
MR. XXXX XXXXXXX (000) 000-0000
NATIONAL ACOUSTICS, INC.
000 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
MR, XXXXX XXXXXXXXX
(000) 000-0000
ESS & VEE
00-00 00XX XXXXXX
XXXX XXXXXX XXXX,XX 000000
XX. XXXXXXX XXXXXXXXX
(718) 786-1100
Jul 12, 1991
MILLWORK:
WOOD DOORS
CUSTOM INTERIORS
000 XXXXXXXX XXXXXX
XXXXXXXXX, XX 00000
XX. XXXXXX XXXXX
(000) 000-0000
(000) 000-0000
INTERNATIONAL WOODCRAFT & CONSTRUCTI
00-00 000xx XXXXXX
XXXXXXX XXXXX, XX 00000
XX. XXXXXX NAPOLITATIO
(212) 461-5579 (BEEPER)
GLENDALE PRODUCTS COMPANY
0000 XXXXXX XXXXXX
XXX00XXXX, XX 00000
XX. XXXXXXXX XXXXXX
(000) 000-0000 OR 326-3424
MILLWRIGHT WOODWORK AND INSTALLERS,
000 XXXXXXX XXXXXX
XXXX XXXXXXX, XX 00000
XX. XXXXXX XXXXXXXX
(000) 000-0000
DRYWALL
XXXXXXX WHITE, INC.
000-00 00XX XXXX
XXXXXXXX, XX 11
XX. XXXXXXX XXXX
WELLCRAFT CONSTRUCTION
00 XXXXXXXX XXX.
XXXXXX XXXXXX XX 00000
XX. XXXXX XXXXXXXXXX
ESS & VEE
00-00 00XX XXXXXX
XXXX XXXXXX XXXX, XX ill
XX. XXXXXXX XXXXXXXXX
CUSTOM INTERIORS
000 XXXXXXXX XXXXX
XXXXXXXXX, XX 000
XX. XXXXXX XXXXX
(000) 000-0000
I II
Jul 12, 1991
SPRINKLERS:
TRIANGLE FIRE PROTECTION CORP,
00-00 XXXXXX XXXXXX
XXXXXXXX, XX 00000
KRe XXXXXXX RGCHSTEINL;R
(000) 000-0000
XXXX SPRIMMER
000 XXXXXXX XXx
XXXXXXXX XX, 000000
MR. XXXX ISRAEL
(000) 000-0000
PACE PLUMBING CORP,
00 XXX XXXXXX
XXXXXXXX, XX 00000
MR - XXXXXX BLOOCK
(000) 000-0000
PAGE 7 OF 15
Jul 12, 1991
DOOR & MIRRORS:
(ELEVATOR LOBBY
AND TOILETS)
ACTIVE STORE FRONTS, I
00 XXXX XXXXXX
XXXX XXXXXXXX XX 00000
MR, XXXXXX XXXXXXX
(000) 000-0000
UNION PORT GLASS INCE
0000-0000 XXXXXXX XXXXXX
XXXXXXXX, XX 00000-0000
XX. XXXX XXXXXXX
(000) 000-0000
ISLAND GLASS
000 XXXXXXXXX XXXXXX
XXXXXXXXX, XX 00000
XX. XXX XXXXX
(000) 000-0000
PAGE 8 OF 15
