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Exhibit 10.35
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LEASE DATED AS OF ____________ ___, 2000
BY AND BETWEEN
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN
OF TRINITY CHURCH IN THE CITY OF NEW YORK, AS LANDLORD
AND
PRINCETON REVIEW PUBLISHING, L.L.C., AS TENANT
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PORTION OF 00XX XXXXX
XXXXXXXX: 00 XXXXXX XXXXXX
ADDRESS: 000-000 XXXXXX XXXXXX
XXX XXXX, XXX XXXX
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PARISH OF TRINITY CHURCH IN THE CITY OF NEW YORK
REAL ESTATE DEPARTMENT
00 XXXXXXX XXXXX
XXX XXXX, XXX XXXX 00000-0000
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TABLE OF CONTENTS
ARTICLE ONE
TERM; RENT; FREE RENT .............................................. (1)
ARTICLE TWO
USE ................................................................ (2)
ARTICLE THREE
REPAIRS; NOISE AND VIBRATION ....................................... (3)
ARTICLE FOUR
ALTERATIONS AND FIXTURES ........................................... (4)
ARTICLE FIVE
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS ................. (7)
ARTICLE SIX
RULES AND REGULATIONS .............................................. (7)
ARTICLE SEVEN
PLATE GLASS ........................................................ (7)
ARTICLE EIGHT
CARE OF SIDEWALKS .................................................. (8)
ARTICLE NINE
LANDLORD'S ACCESS TO THE PREMISES .................................. (8)
ARTICLE TEN
ELECTRIC CURRENT; LIVE STEAM ....................................... (8)
ARTICLE ELEVEN
CONDEMNATION AND DEMOLITION ........................................ (10)
ARTICLE TWELVE
MECHANIC'S LIENS ................................................... (11)
ARTICLE THIRTEEN
SUBORDINATION ...................................................... (12)
ARTICLE FOURTEEN
CERTIFICATE OF OCCUPANCY ........................................... (13)
ARTICLE FIFTEEN
VAULTS ............................................................. (14)
ARTICLE SIXTEEN
FIRE AND OTHER CASUALTY ............................................ (14)
ARTICLE SEVENTEEN
CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT ............... (16)
ARTICLE EIGHTEEN
WAIVER AND SURRENDER; REMEDIES CUMULATIVE .......................... (22)
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ARTICLE NINETEEN
NO REPRESENTATIONS AS TO PREMISES, CERTIFICATE OF OCCUPANCY AND
USE ................................................................ (22)
ARTICLE TWENTY
LIMITATION OF LANDLORD'S LIABILITY ................................. (23)
ARTICLE TWENTY-ONE
INDEMNITY BY TENANT ................................................ (24)
ARTICLE TWENTY-TWO
NOTICES ............................................................ (24)
ARTICLE TWENTY-THREE
INSOLVENCY ......................................................... (25)
ARTICLE TWENTY-FOUR
REMEDIES OF THE LANDLORD ON DEFAULT IN PERFORMANCE BY THE
TENANT ............................................................. (26)
ARTICLE TWENTY-FIVE
DEFAULT ............................................................ (27)
ARTICLE TWENTY-SIX
REMEDIES AND DAMAGES ............................................... (28)
ARTICLE TWENTY-SEVEN
SURRENDER AT EXPIRATION ............................................ (30)
ARTICLE TWENTY-EIGHT
QUIET ENJOYMENT .................................................... (31)
ARTICLE TWENTY-NINE
SECURITY DEPOSIT ................................................... (31)
ARTICLE THIRTY
REAL ESTATE TAX AND CPI ESCALATION ................................. (32)
ARTICLE THIRTY-ONE
SERVICES ........................................................... (36)
ARTICLE THIRTY-TWO
INSURANCE .......................................................... (37)
ARTICLE THIRTY-THREE
DEFAULT UNDER OTHER LEASES ......................................... (38)
ARTICLE THIRTY-FOUR
WORK TO BE DONE BY LANDLORD ........................................ (38)
ARTICLE THIRTY-FIVE
CONSENT TO JURISDICTION ............................................ (39)
ARTICLE THIRTY-SIX
TENANT LIABILITY ................................................... (39)
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ARTICLE THIRTY-SEVEN
ADJACENT EXCAVATION -SHORING ....................................... (40)
ARTICLE THIRTY-EIGHT
FAILURE TO GIVE POSSESSION ......................................... (40)
ARTICLE THIRTY-NINE
BROKER ............................................................. (40)
ARTICLE FORTY
RENT RESTRICTIONS .................................................. (40)
ARTICLE FORTY-ONE
CERTIFICATES BY TENANT ............................................. (40)
ARTICLE FORTY-TWO
RESTRICTIONS ON TENANT'S USE ....................................... (41)
ARTICLE FORTY-THREE
HAZARDOUS MATERIALS ................................................ (41)
ARTICLE FORTY-FOUR
MISCELLANEOUS ...................................................... (41)
ARTICLE FORTY-FIVE
CONSTRUCTION OF OFFICE IMPROVEMENTS ................................ (42)
ARTICLE FORTY-SIX
COMBINATION OF 160 AND 000 XXXXXX XXXXXX ........................... (43)
ARTICLE FORTY-SEVEN
GUARANTY ........................................................... (45)
ARTICLE FORTY-EIGHT
DEMOLITION REIMBURSEMENT ........................................... (45)
SCHEDULES AND EXHIBITS
SCHEDULE A
RULES AND REGULATIONS .............................................. (i)
SCHEDULE B
CLEANING SPECIFICATIONS ............................................ (v)
EXHIBIT A - FLOOR PLAN
EXHIBIT B - WORK LETTER
EXHIBIT C - GUARANTY
EXHIBIT D - POSSIBLE RECAPTURED SPACE
EXHIBIT E
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THIS LEASE made this day of , 2000 between THE XXXXXX, CHURCHWARDENS AND
VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK, a religious corporation
(hereafter referred to as "the Landlord"), having its offices at 00 Xxxxxxx
Xxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, and PRINCETON
REVIEW PUBLISHING, L.L.C. (hereafter referred to as "the Tenant"), a limited
liability company formed under the laws of the State of Delaware, having an
address at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
W I T N E S S E T H :
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described space: a
portion of the twelfth floor (such space is hereafter referred to as "the
premises" and shown as the cross-hatched area on EXHIBIT A annexed hereto) in
the building known by the name 00 Xxxxxx Xxxxxx and located at 000-000 Xxxxxx
Xxxxxx, xx xxx Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York
(hereafter referred to as "the building"), with the privilege to the Tenant of
using (subject to such rules and regulations as the Landlord shall from time to
time prescribe) the necessary entrances and appurtenances to the premises,
reserving to the Landlord all other portions of the building not herein
specifically demised. This letting is upon the following covenants and
conditions, each and every one of which the Tenant covenants and agrees with the
Landlord to keep and perform, and the Tenant agrees that the covenants herein
contained on the part of the Tenant to be performed, shall be deemed conditional
limitations, as well as covenants and conditions.
ARTICLE ONE
TERM; RENT; FREE RENT
(a) The term shall commence on August 1, 2000 (such date being referred
to as the "Commencement Date"), and shall expire on August 31, 2010 (or until
such term shall sooner cease and expire or be terminated as hereinafter
provided) (the "Expiration Date"), at an annual rent ( the "fixed rent") of:
(i) During the period commencing on the Commencement Date and ending on
the last day of the fortieth month of the term of the lease, the fixed
rent shall be Five Hundred Thirteen Thousand Nine Hundred Thirty and
00/100 Dollars ($513,930.00), payable in equal monthly installments of
Forty Two Thousand Eight Hundred Twenty Seven and 50/100 Dollars
($42,827.50); and
(ii) During the period commencing on the first day of the forty-first
month of the term of the lease and ending on the last day of the
eightieth month of the term of the lease, the fixed rent shall be Five
Hundred Forty Four Thousand Eight and 00/100 Dollars ($544,008.00),
payable in equal monthly installments of Forty Five Thousand Three
Hundred Thirty Four and 00/100 Dollars ($45,334.00); and
(iii) During the period commencing on the first day of the eighty-first
month of the term of the lease and ending on the Expiration Date, the
fixed rent shall be Five Hundred Seventy Four Thousand Eight Six and
00/100 Dollars ($574,086.00), payable in equal monthly installments of
Forty Seven Thousand Eight Hundred Forty and 50/100 Dollars
($47,840.50).
(b) Fixed rent shall be payable in advance on the first day of each
month during the term of this lease at the offices of the Landlord or at such
other place as the Landlord may designate. The Tenant shall pay the fixed rent
without demand therefor and without any set-off, deduction, abatement or offset
whatsoever, except that the Tenant shall pay the first monthly installment of
fixed rent upon the execution of this lease. 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 pro-rated based on the number of days in the month. All
rent payments shall be paid in lawful money of the United States of America,
which shall be legal tender in payment of any debts and dues, public and
private, at the time of payment by good and sufficient check subject to
collection and drawn on a New York State bank or trust company which is a member
of the New York Clearinghouse Association.
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(c) All sums and charges other than fixed rent due and payable by the
Tenant pursuant to this lease, including, without limitation, charges for
electricity (as defined in Article TEN), escalation charges (as defined in
Article THIRTY) and late charges assessed pursuant to this lease are called
"additional rent". All regularly recurring items of additional rent, including,
without limitation, escalation charges which are payable on a monthly basis
pursuant to the provisions of Article THIRTY, shall be due and payable together
with the fixed rent on the first day of each month during the term of this
lease. All other items of additional rent shall be paid to the Landlord within
ten business days after delivery of a notice or demand therefor, unless
otherwise set forth herein. Fixed rent and additional rent are collectively
referred to herein as "rent". The failure of the Tenant to make any payment of
additional rent shall entitle the Landlord to exercise all of the rights and
remedies provided herein for the non-payment of fixed rent.
(d) If at the Commencement Date, the Tenant is in default in the
payment of rent to the Landlord pursuant to the terms of any other or any prior
lease with the Landlord, or with a predecessor in interest of the Landlord, the
Landlord may, at its option and without notice thereof to the Tenant, add the
amount of such arrears to any monthly installments of rent due under this lease
and the same shall be payable to the Landlord as additional rent.
(e) If any installment of rent shall not be paid within five (5) days
following the date on which the same shall be due and payable pursuant to this
lease then, in addition to, and without waiving or releasing any other rights
and remedies of the Landlord, the Tenant shall pay to the Landlord a late charge
of one and one-half (1 1/2%) percent per month computed (on the basis of a
30-day month) from the date on which each such installment became due and
payable to the date of payment of the installment on the amount of each such
installment or installments, as liquidated damages for the Tenant's failure to
make prompt payment, and the same may be collected on demand.
(f) In the event any check issued by the Tenant is dishonored for any
reason, the Tenant shall submit a replacement check within three (3 ) days
following notice from the Landlord that the check was dishonored. Tenant's
failure to submit a replacement check within such time period shall constitute
an Event of Default under this lease.
(g) Notwithstanding the foregoing, provided no Event of Default shall
have occurred, following the payment of the twelfth installment of fixed rent,
the Tenant shall receive a credit of $203,677.50 against the next installments
of fixed rent becoming due and payable hereunder. Notwithstanding the foregoing,
the Tenant shall during such abatement period pay all other amounts due under
this lease including, but not limited to, any additional rent payable pursuant
to Article THIRTY of this lease and any service charges for electric current,
and overtime elevator, air-conditioning or heat services. Upon the occurrence of
an Event of Default, the fixed rent at the monthly rate set forth in this lease
shall be payable during the period in which the Tenant would otherwise be
entitled to the use of the premises free of fixed rent. Any such rent payment
shall be paid within ten business days after demand therefore and shall
constitute additional rent under this lease.
ARTICLE TWO
USE
(a) The Tenant shall use the premises only for executive offices in
connection with the Tenant's educational testing business. In addition, the
Tenant may use the premises to conduct training, classes and/or seminars for its
employees, as well as for employees of a Related Entity (as defined in Article
SEVENTEEN), as well as to conduct meetings for purposes incidental and ancillary
to the Tenant's educational testing business. The Tenant may not use the
premises to conduct classes or seminars which are open to the general public.
(b) If any portion of the premises consists of basement space, such
portion shall be used only for storage purposes.
(c) No auction sale and no other sale of all or substantially all of
the Tenant's property, stock, fixtures and machinery, except a sale made in
connection with an assignment of this lease to another
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tenant for which the Landlord's consent shall have been obtained shall be held
at the premises unless the provisions of Article THIRTY-ONE (g) of this lease
shall have been complied with.
ARTICLE THREE
REPAIRS; NOISE AND VIBRATION
(a) The Tenant shall take good care of the premises and the fixtures,
appurtenances, equipment and facilities therein and shall make, as and when
needed, all repairs in and about the premises required to keep them in good
order and condition; such repairs to be equal in quality to the original work.
Except as set forth herein, the Tenant shall not be obligated for structural or
exterior repairs to the building or for repairs to the systems and facilities of
the building for the use or service of tenants generally, except where
structural or exterior repairs or repairs to such systems and facilities are
made necessary by reason of one or more of the occurrences described below in
clauses (i) through (iv) of this Article THREE (a), and further provided that
the Tenant shall be obligated to maintain in good order and condition such
portions of the fixtures, appurtenances, equipment and facilities located in and
serving exclusively any portion of the premises up to the point of such systems
are connected to the main risers, conduit or disconnect switch, as the case may
be. All repairs for which the Tenant is responsible pursuant to this Article
shall be made by a contractor reasonably approved by the Landlord. Should (A)
the Tenant fail to repair any condition in or about the premises or the
fixtures, appurtenances, equipment and facilities therein which is the Tenant's
responsibility and which is of such a nature that its neglect would result in
damage or danger to the building, its fixtures, appurtenances, facilities and
equipment, or to its occupants (of which Landlord's judgment shall be
conclusive) or, (B) in the case of repairs of any other nature required to be
made by the Tenant hereunder, should the Tenant have failed to make the required
repairs or to have begun in good faith, the work necessary to make them within
five business days after notice from the Landlord of the condition requiring
repair, the Landlord may, in either such case, immediately enter the premises
and make the required repairs at the expense of the Tenant. The Landlord may
make, at the expense of the Tenant, any repairs to the building or to its
fixtures, appurtenances, facilities or equipment, whether of a structural or any
other nature, which are required by reason of damage or injury due (i) to the
negligence or the improper acts of the Tenant or its employees, agents,
licensees or visitors; (ii) to the moving into or out of the building, of
property being delivered to the Tenant or taken from the premises by or on
behalf of the Tenant; (iii) to the installation, repair or removal, use or
operation of the property of the Tenant in the premises; or (iv) to the faulty
operation of any machinery, equipment, or facility installed in the premises by
or for the Tenant. The Tenant will pay the cost of any repairs made by the
Landlord pursuant to this paragraph within ten business days after presentation
of bills therefor, or the Landlord may, at its option, add such amounts to any
installment or installments of rent due under this lease and collect the same as
additional rent. The liability of the Tenant under this Article THREE clauses
(i) through (iv) shall survive the expiration or other termination of this
lease.
(b) Except to the extent hereinabove set forth, and subject to the
provisions of Article SIXTEEN, the Landlord shall maintain in working order and
repair the exterior and the structural portions of the building, including the
structural portions of the premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems,
(excluding all ductwork, diffusers, thermostat controls and any other part of
the ventilating system located outside of the machine room, if any, in the
premises) serving the premises, it being agreed that the Landlord shall not be
obligated to install such systems to the extent they do not presently exist in
the building. Upon becoming aware of the need for any such repair or
maintenance, the Landlord will commence promptly to make such repair or
maintenance and use reasonable commercial efforts (i) to complete such repair or
maintenance as quickly as practicable and (ii) in a manner which minimizes
interference with the Tenant's business operations. The Tenant shall give prompt
notice of any defective condition in the premises for which the Landlord may be
responsible hereunder to the extent that Tenant is aware of such defective
condition. There shall be no allowance to the Tenant for diminution in rental
value and no liability on the part of the Landlord by reason of inconvenience,
annoyance or injury to business arising from the Landlord or others making
repairs, alterations, additions or improvements in or to any portion of the
building or the premises or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that the Tenant shall not be
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entitled to any set off or reduction of rent by reason of any failure of the
Landlord to comply with the provisions of this or any other Article of the
lease.
(c) Tenant shall not install or maintain equipment, machinery or
manufacturing equipment of any description in the premises, the operation of
which produces noise or vibration which is transmitted beyond the premises. If
the Tenant does install such equipment or machinery and the Landlord deems it
necessary that the noise or vibration of such machinery or equipment be
diminished, eliminated, prevented or confined to the premises, the Landlord may,
at its election, give written notice to the Tenant, requiring either (i) that
the Tenant immediately remove said equipment from the premises or (ii) that the
Tenant provide and install rubber or other approved settings for absorbing,
preventing or decreasing the noise or vibration of such machinery or equipment
within fifteen days. The judgment of the Landlord of the necessity of such
installation shall be conclusive, and the installation shall be made in such
manner and of such material as the Landlord may direct. Should the Tenant fail
to comply with such request within fifteen days, the Landlord may do the work
necessary to absorb, prevent or decrease the noise or vibration of such
machinery or equipment and the Tenant will pay to the Landlord the cost of such
work within five days after demand or such cost may, at the option of the
Landlord, be added to any installment or installments of rent under this lease
and shall be payable by the Tenant as additional rent.
ARTICLE FOUR
ALTERATIONS AND FIXTURES
(a) The Tenant shall not make any alteration, addition or improvement
in or upon the premises, nor incur any expense therefor, without having first
obtained the written consent of the Landlord therefor. The Tenant shall not be
required to obtain the Landlord's consent for alterations, additions or
improvements which are decorative in nature, such as painting or carpeting
(although the Tenant shall give the Landlord prior written notice of the
performance of such work). If the Tenant shall desire to make alterations,
additions or improvements to fit out the premises for the Tenant's use which
will not affect the exterior of the building or adversely affect the structure
of the building or the operation of any of the systems or facilities of the
building for the use of any tenant or violate the requirements of government
hereafter referred to, the Landlord's approval will not be unreasonably withheld
or delayed. In no event shall the Tenant make any alteration at any time when an
Event of Default is outstanding. Any and all alterations may be made only
subject to and in compliance with the following, as well as all other rules and
regulations promulgated by the Landlord with respect to the performance of
alterations:
(i) Prior to the commencement of any alteration, the Tenant shall,
except in an emergency, give at least 20 days' notice to Landlord for
all alterations and shall obtain the Landlord's prior approval of the
licensed architect and/or licensed professional engineer and the
contractors and/or mechanics selected by the Tenant, as well as the
Landlord's prior written approval of detailed plans and specifications
prepared by the approved architect and/or engineer and shall reimburse
the Landlord for its reasonable out-of-pocket expenses in reviewing
such plans and specifications; and no alterations shall be made except
as are in all material respects in accordance with such plans and
specifications or any approved changes thereto. The Landlord agrees to
respond to the Tenant's request for approval of plans and
specifications within twenty days following the Landlord's receipt of
the items referred to in this paragraph (a)(i). If the Landlord fails
to timely respond, and such failure to respond continues for more than
five (5) business days following the Landlord's receipt of a notice
from the Tenant that the Landlord's failure to respond to the Tenant's
request shall result in the plans and specifications being deemed
approved by the Landlord, then the Landlord's failure to respond within
such five (5) business day period shall constitute the Landlord's
approval of such plans and specifications. If requested by the
Landlord, the Tenant shall submit a copy of the general contractor's
contract or other contract for the alterations which shall show the
cost thereof.
(ii) No alteration shall be commenced until the Tenant shall have
obtained and paid for all required permits and authorizations of any
City, State or Federal governmental agency or any
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board, bureau, department or body thereof, having or asserting
jurisdiction, copies of which shall be supplied to the Landlord.
(iii) Prior to the commencement of any alteration, the Tenant shall
submit to the Landlord duplicate original policies or certificates
thereof of worker's compensation insurance covering all persons
employed in connection with the work, and builder's all risk and
comprehensive general public liability insurance in such amounts and
with such companies as may be approved by the Landlord and such
coverage shall be maintained until all such alterations have been
completed. Such policies shall name the Landlord and any mortgagee or
holder of any ground or underlying lease as additional named insureds.
(iv) Upon completion of the alterations, the Tenant, at the Tenant's
expense shall obtain certificates of final approval as may be required
by any governmental agency, board, bureau, department or body thereof,
and shall deliver such approvals to the Landlord, together with
"as-built" plans and specifications for such alterations. In addition,
one copy of final drawings shall be delivered to the Landlord in
AutoCad, Release 14 format, either on a 3 1/2" disk or CD Rom, or such
other format as shall from time to time be reasonably designated by the
Landlord.
(v) The cost of all alterations shall be paid when due so that the
premises shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied to the premises and free from
any encumbrances, or security interests.
(vi) All alterations, additions or improvements shall be made and
installed in a good and workmanlike manner and shall comply with all
requirements, by law, regulation or rule, of the Federal, State and
City Governments and all subdivisions and agencies thereof, and with
the requirements of the New York Fire Insurance Exchange, New York
Board of Fire Underwriters and all other bodies exercising similar
functions, and shall conform to any particular requirements of the
Landlord expressed in its consent for the making of any such
alterations, additions, and improvements. The Landlord's review and
approval of the Tenant's plans shall not constitute, nor be deemed to
constitute a representation or agreement by the Landlord that such
plans and specifications comply with such requirements. Such compliance
shall be the sole responsibility of the Tenant.
Any such work once begun shall be completed with all reasonable
dispatch, but shall be done at such time and in such manner as not to interfere
with the occupancy of any other tenant or the progress of any work being
performed by or on account of the Landlord. If requested to do so by the Tenant
in connection with the Landlord's approval of any alteration, addition or
improvement, the Landlord will advise the Tenant whether any alteration is a
Specialty Alteration (as defined in paragraph (b)) which will be required to be
removed by the Tenant at the expiration or earlier termination of this lease or
may remain upon the premises to become the property of the Landlord. If the
Tenant fails to request such advice from the Landlord, it shall be obligated to
remove any Specialty Alteration in accordance with the provisions of paragraph
(b) below.
(b) All alterations, additions or improvements, which may be made or
installed in or upon the premises (whether made during or prior to the term of
this lease or during the term of any prior lease of the premises by the
Landlord, the Tenant or any previous tenant), except the furniture, trade
fixtures, stock in trade, and like personal property of the Tenant, shall be
conclusively deemed to be part of the freehold and the property of the Landlord,
and shall remain upon the premises, and, upon the expiration or any termination
of the term of this lease, shall be surrendered therewith as a part thereof,
except for any Specialty Alterations which the Landlord advised the Tenant would
have to be removed by the Tenant, at the Tenant's expense, upon the expiration
or earlier termination of this lease. A "Specialty Alteration" shall mean an
alteration which is in excess of standard office installations such as kitchens,
cafeterias, vaults, sloping or terraced or raised floors, internal staircases,
and other slab penetrations, fire suppression or uninterrupted power supply
systems, dumbwaiters, and other improvements of a similar nature. A standard
office pantry installation shall not be deemed a "Specialty Alteration". Any
alterations, additions, or improvements which are to be removed by the Tenant
shall be removed by the Tenant at its own cost and expense at or prior to
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the expiration or termination of the term. The Tenant, at or prior to the
expiration or any termination of the term of this lease shall, at its own
expense, remove all its furniture, trade fixtures, stock in trade and like
personal property. The Tenant shall restore and repair, at its own cost and
expense, any damage or disfigurement of the premises occasioned by any removals
required hereunder or remaining after such removals, so as to leave the premises
in good order and condition. If any furniture, trade fixtures, stock in trade or
other personal property of the Tenant shall not be removed at the expiration or
any termination of this lease, the Landlord, at the Landlord's option, may treat
the same as having been irrevocably abandoned, in which the Tenant shall have no
further right, title or interest therein and the Landlord may remove the same
from the premises, disposing of them in any way which the Landlord sees fit to
do, and the Tenant shall, on demand, pay to the Landlord the reasonable,
out-of-pocket expense incurred by the Landlord for the removal thereof, as well
as the cost of any restoration of the premises above provided, if the Tenant
fails to restore any damage caused by such removal. The Tenant's obligations
under this subdivision (b) of this Article FOUR shall survive the expiration of
this lease.
(c) The Landlord may at any time during the term of this lease, change
the arrangement or location of the entrance or passageways, doors and doorways,
and the corridors, elevators, stairs, toilets or other parts of the building
used by the public or in common by the Tenant and other tenants (including,
without limitation, the conversion of elevators from a manually-operated to an
automatic self-service basis) and may alter staffing of the building and the
scale and manner of the operation thereof, provided that neither the services to
which the Tenant is entitled as specified in this lease are diminished nor the
Tenant's access to the premises is materially impeded other than to a deminimis
amount. The Landlord may alter the facilities, fixtures, appurtenances and
equipment of the building as it may deem the same advisable, or as it may be
required so to do by any governmental authority, law, rule or regulation. The
Landlord may change the name, street number or designation by which the building
is commonly known.
(d) The Tenant shall not at any time prior to or during the term of
this lease, directly or indirectly, employ or permit the employment of any
contractor, mechanic or laborer in or about the premises, whether in connection
with any alteration or improvement or the providing of any services or
otherwise, if such employment would, in the judgment of the Landlord, disrupt,
or interfere or cause any conflict with, any other contractors, mechanics, or
laborers engaged by the Landlord or any other tenant in the building. In the
event of any such disruption, interference or conflict, the Tenant, upon demand
of the Landlord, shall immediately cause all contractors, mechanics or laborers
causing such disruption, interference or conflict to leave the building.
(e) Prior to the commencement of any alterations by the Tenant named
herein with a cost in excess of $100,000 (or any alteration regardless of cost
for any subtenant or assignee) other than the initial alterations to be made by
the Tenant to prepare the premises for its initial occupancy for which no
Alteration Security shall be required, the Tenant agrees to obtain and deliver
to the Landlord either (i) a Letter of Credit issued by a commercial bank
reasonably satisfactory to the Landlord and containing language reasonably
satisfactory to the Landlord; (ii) a bond in accordance with Section 37 of the
Lien Law of the State of New York either from the Tenant or the general
contractor; (iii) a negotiable Certificate of Deposit issued by a commercial
bank reasonably satisfactory to Landlord; (iv) a cash deposit, or (v) a personal
guaranty from an individual reasonably satisfactory to the Landlord ((i)-(v)
being collectively called the "Alteration Security"), any of which shall be in
an amount equal to 100% of the cost of all work, labor, and services to be
performed and materials to be furnished in connection with such work, as said
cost may be increased from time to time. The Landlord shall be the beneficiary
of the Alteration Security, and any such security shall remain in effect until
the alterations have been substantially completed and waivers of mechanics liens
from the contractors performing such work or material men supplying the
materials in connection therewith have been delivered to the Landlord. In the
event the Alteration Security is in the form of a cash deposit, the Landlord
shall refund such amounts as the Tenant has paid to contractors, upon submission
to the Landlord of proof of payment thereof and a waiver of mechanics lien for
such amount being refunded. The Tenant, at its own sole cost and expense, shall
defend the premises and the Landlord against all suits for the enforcement of
any mechanics lien or any bond in lieu of such lien, and the Tenant hereby
indemnifies the Landlord and the premises against any and all damages, expenses,
or liabilities resulting from any such lien or suit. Should the Tenant fail to
commence or
(6)
11
diligently proceed to timely discharge any such lien, the Landlord may do so by
payment, bond, or by applying the Alteration Security, or otherwise on thirty
days' prior written notice to the Tenant and the amount paid or incurred
therefor by the Landlord shall be payable by the Tenant as additional rent.
Tenant represents and warrants that it has not performed any alterations in the
premises prior to the Commencement Date.
ARTICLE FIVE
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
The Tenant shall promptly comply, at the Tenant's own expense, with all
laws, ordinances, regulations and requirements now or hereinafter enacted, of
the City, State and Federal Government, and all subdivisions and agencies
thereof, and the New York Fire Insurance Exchange, the New York Board of Fire
Underwriters, and of any fire insurance rating organization, and of all other
departments, bureaus, officials, boards and commissions with regard to the
premises or the use thereof by the Tenant, and (if the premises are situated on
the ground floor) the sidewalks adjoining the same in so far as such compliance
is made necessary by the Tenant's use of the sidewalks, provided that the Tenant
shall not be required to make structural alterations or additions to the
premises, except where the same are required by reason of the nature of the
Tenant's use of the premises, the alterations performed in the premises by the
Tenant, the manner in which its business is carried on in the premises, a
failure on the part of the Tenant to conform to the provisions of this lease, or
any other provision of this lease. The Tenant will not permit the maintenance of
any nuisance upon the premises or permit its employees, licensees or visitors to
do any illegal act therein, or in and about the building after notice thereof
from the Landlord. If any such law, ordinance, regulation or requirement shall
not be promptly complied with by the Tenant, then the Landlord may, at its
option, and on 5 days prior notice to the Tenant (except in an emergency), enter
upon the premises to comply therewith, and should any fine or penalty be imposed
for failure to comply therewith or by reason of any such illegal act, the Tenant
agrees that the Landlord may, at its option, pay such fine or penalty, which the
Tenant agrees to repay to the Landlord, with interest from the date of payment,
as additional rent.
ARTICLE SIX
RULES AND REGULATIONS
The Tenant and the Tenant's employees, and any other persons subject to
the control of the Tenant, shall well and faithfully observe all the rules and
regulations annexed hereto as SCHEDULE A, and also any and all reasonable rules
and regulations affecting the premises, the building or the equipment,
appurtenances, facilities and services thereof, hereafter promulgated by the
Landlord. The Landlord may at any time, and from time to time, prescribe and
regulate the placing of safes, machinery and other things, and regulate which
elevator and entrance shall be used by the Tenant's employees, and for the
Tenant's shipping; and may make such other and further rules and regulations as
in its judgment may, from time to time, be needed or desirable for the safety,
care or cleanliness of the building and for the preservation of good order
therein. The Landlord shall not be liable to the Tenant for violations of any
rules and regulations by any other tenant, its servants, employees, agents,
visitors or licensees. Notwithstanding the foregoing, the Landlord agrees that
it shall not discriminate against the Tenant in the enforcement of the rules and
regulations promulgated by the Landlord for the building.
ARTICLE SEVEN
PLATE GLASS
The Landlord may, at its option, either (i) at the Tenant's expense,
keep the plate glass, if any, in the premises insured in the name of the
Landlord against loss or damage, the premium for which, whether by separate
policy or as a part of a schedule of another policy, shall be paid by the Tenant
to the Landlord, upon demand, or (ii) require the Tenant, at the Tenant's
expense, to keep the plate glass, if any, in the premises insured in the name of
the Landlord against loss or damage, in which event, the Tenant shall deliver
such policy and evidence of due payment of the premium therefor to the Landlord.
The Tenant shall promptly replace, at its own expense, any and all plate glass
(to the extent not insured) and any other glass damaged or broken from any cause
whatsoever in and about
(7)
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the premises. If the Tenant fails to do so, the Landlord shall have the right to
replace such glass at the Tenant's expense.
ARTICLE EIGHT
CARE OF SIDEWALKS
If the premises, or any part thereof, consist of a first floor or any
part thereof, the Tenant shall, at the Tenant's own expense, keep the sidewalk,
gutter and curb in front thereof in a clean condition.
ARTICLE NINE
LANDLORD'S ACCESS TO THE PREMISES
(a) The Tenant, shall, without in any way affecting the Tenant's
obligations hereunder, and without constituting any eviction, permit the
Landlord and its agents and designees: (i) at all reasonable hours, and on
reasonable notice in non-emergency situations (which notice may be oral) to
enter the premises and have access thereto, for the purpose of inspecting or
examining them and to show them to other persons; (ii) on reasonable notice
(which notice may be oral, and except that no notice shall be required in
emergencies) to enter the premises (including, specifically, all mechanical and
air conditioning rooms located therein) to make repairs and alterations, and to
do any work on the premises or any adjoining premises and any work in connection
with excavation or construction on any adjoining premises or property
(including, but not limited to, the shoring up of the building) and to take in
any of the foregoing instances, any space needed therefor; and (iii) during the
six months preceding the termination hereof, to place and maintain thereon the
usual "for rent" notices. The Tenant shall permit the Landlord to erect and
maintain ducts, pipes and conduits in and through the premises. In the exercise
of the rights of the Landlord reserved under this Article NINE, the Landlord
will do so in a manner which minimizes the interference with the Tenant's use of
the premises so far as practicable and where ducts, pipes or conduits are to be
erected through the premises will locate them along walls or ceilings wherever
practicable.
(b) In the event that the premises shall, in the Landlord's judgment,
become substantially vacated before the expiration of this lease, or in the
event the Tenant shall be removed by summary proceedings or in the event that,
during the last month of the term, the Tenant shall have removed all or
substantially all of the Tenant's property therefrom, the Landlord may
immediately enter into and upon said premises for the purpose of decorating,
renovating or otherwise preparing same for a new tenant, without thereby causing
any abatement of rent or liability on the Landlord's part for other
compensation, and such acts shall have no effect upon this lease.
(c) If the Tenant or an officer or authorized employee of the Tenant
shall not be personally present to open and permit an entry into said premises,
at any time, when for any reason an entry therein shall be necessary or
permissible hereunder, the Landlord or the Landlord's agents, may enter the same
by a master key, or may forcibly enter the same without rendering the Landlord
or such agents liable therefor (if during such entry the Landlord shall accord
reasonable care to the Tenant's property) and without in any manner affecting
the obligations and covenants of this lease and in no event shall any such entry
by the Landlord or its agents be deemed an acceptance of a surrender of this
lease, either expressed or implied, nor a waiver by the Landlord of any covenant
of this lease on the part of the Tenant to be performed.
ARTICLE TEN
ELECTRIC CURRENT; LIVE STEAM
(a) So long as electric current is to be supplied by the Landlord, the
Tenant covenants and agrees to purchase the Tenant's requirements therefor at
the premises from the Landlord or the Landlord's designated agent at a price
equal to 108% of the Rates (as hereinafter defined) set forth in the rate
schedule of Consolidated Edison Company of New York, Inc. applicable to the
building (or the conjunctional group in which the building is included), plus an
amount equal to all sales, use and gross receipt taxes and other governmental
charges or levies, generally applicable to the purchase and sale of electricity
in New York City (and without regard to whether the Landlord is exempt from
(8)
13
paying or collecting any such tax, charge or levy); provided, however, that if
such rate schedule includes any adjustment for time-of-day for either demand or
consumption, the rate applicable to the Tenant's demand for and consumption of
electricity, shall be that specified for the peak period. As used herein, the
term "Rates" shall mean the rates for all components of the aggregate cost of
purchasing electricity for the building, including, without limitation, all
charges related to the generation, transmission, distribution and service and
all charges for consumption and demand (including, without limitation, all
seasonal and time-of-day adjustments and fuel escalation charges relating to
such consumption and demand charges). All amounts payable under this Article TEN
shall constitute additional rent for the purpose of the enforcement of the
Landlord's rights.
(b) Where more than one meter measures the service of the Tenant in the
building, the service rendered through each meter may be computed and billed
separately in accord with the rates herein provided for. The Tenant shall pay,
upon demand, the bills for electric current furnished or the Landlord may, at
its option, add such amounts to any installment or installments of fixed rent
due under this lease and collect the same as additional rent. The Tenant shall
comply with such rules, regulations and contract provisions as are customarily
prescribed by public service corporations supplying such services, for
consumption similar to that of the Tenant.
(c) The Landlord represents that the electrical capacity serving the
premises is ten xxxxx per rentable square foot, inclusive of air conditioning.
(d) Notwithstanding the provisions of subdivision (a), provided
electrical service is discontinued to all tenants in the building, the Landlord
may discontinue the supply of electric current under subdivision (a) at such
time as the Tenant is able, after commercially reasonable efforts, to obtain
alternative electrical services without being liable to the Tenant therefor or
without in any way affecting this lease or the liability of the Tenant hereunder
or causing the diminution of rent, and the same shall not be deemed to be a
lessening or diminution of services within the meaning of any law, rule, or
regulation now or hereafter enacted, promulgated, or issued. Should the Landlord
give such notice of discontinuance, the Tenant shall make the Tenant's own
arrangements to receive such service direct from such public utility corporation
serving the building and the Landlord shall permit the Landlord's wires,
conduits and meters, to the extent to which they are safely available for such
use and to the extent to which they may be used under any applicable
governmental regulations or the regulations of such public utility, to be used
for the purpose. Should any additional or other wiring, conduits, meters or any
other or different distribution equipment be required in order to permit the
Tenant to receive such service directly from the public utility, the same will
be installed, as the Landlord shall elect, either by the Landlord, at the sole
cost and expense of the Tenant, or by the Tenant at the Tenant's sole cost and
expense. In the case of central distribution equipment which is used in
connection with the distribution or metering of current supplied to the tenant
and other tenants of the building, and which is required to be installed under
governmental regulations or the regulations of such utility, the cost of
installation thereof will be prorated among the several tenants, serviced
through the distribution facility in the proportion which their average
consumption of electric current over the next preceding period of not less than
six month's duration bears to the total consumption of electric current by all
tenants during such period, and the Tenant shall pay to the Landlord the
Tenant's share of such cost of installation, apportioned as above, within ten
business days following receipt of a statement showing the cost of the
distribution equipment and the manner in which the cost has been allocated to
the Tenant. Should the supply of electric current by the Landlord be
discontinued, but not as a result of the Landlord's election to discontinue the
supply of current, then the Tenant shall, at the Tenant's expense, install all
wiring, metering and distribution facilities which are required in order to
permit the Tenant to purchase the Tenant's requirements for electric current for
the premises from such utility and shall discontinue the use of the Landlord's
electric wires, cables, meters and distribution facilities. All such facilities
installed by the Tenant shall be installed in a workmanlike manner which
complies with applicable governmental regulations and the regulations of the
public utility. The Landlord will in any such case permit any pipe-chases or
channels available in the building to be used by the Tenant for the Tenant's
cables and conduits, to the extent that the same may be available and may be
safely used for the purpose.
(e) The Landlord shall not in any way be liable or responsible to the
Tenant for any loss or damage or expense which the Tenant may sustain or incur
if either the quantity or character or
(9)
14
electric service is changed or is no longer available or suitable for the
Tenant's requirements, nor shall the Landlord be in any way responsible for any
interruption of service due to breakdowns, repairs, malfunction of electrical
equipment or any other cause relating to electrical service which is beyond the
Landlord's reasonable control. The Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity of existing feeders
to the Tenant's floor(s) or space (if less than an entire floor) or the capacity
of the risers or wiring installation in the building. The Tenant agrees not to
connect any additional electrical equipment to the building electrical
distribution system, other than lamps, typewriters and other small office
machines which consume comparable amounts of electricity, without the Landlord's
prior written consent. If, in the Landlord's sole judgment, the Tenant's
electrical requirements necessitate installation of an additional riser, risers
or other necessary equipment, the same may be installed by the Landlord at the
sole cost and expense of the Tenant (together with Tenant's Proportionate Share
of any electrical panels which are required to be installed as a result of the
installation of such additional risers), which shall be chargeable and
collectible as additional rent. If the Tenant makes written request to install a
riser or risers to supply the Tenant's electrical requirements, such request
shall be subject to the prior written consent of the Landlord in each instance,
and such riser, risers or other equipment shall be installed by the Landlord at
the sole cost and expense of the Tenant, if in the Landlord's sole judgment, the
same are necessary and will not cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense or
interfere with or disturb other tenants or occupants. If the Tenant is not
utilizing the full electrical capacity available to the premises, the Landlord
shall have the right to make such excess capacity available to other occupants
of the building.
(f) If there be any facilities for the supply of live steam in the
building, such steam shall be supplied to the Tenant only if separate agreements
are made therefor and pursuant to such arrangements. In the event that such
separate agreements shall be made, the appropriate provisions of this Article
TEN shall be applicable thereto.
ARTICLE ELEVEN
CONDEMNATION AND DEMOLITION
(a) If the premises or any part thereof, shall be taken or condemned
for any public or quasi public use (other than for temporary use or occupancy),
this lease and the term hereby granted shall terminate as of the date of vesting
of title by reason of such taking. If any other part of the building shall be so
taken and such taking shall, in the judgment of the Landlord, make the operation
of the building impractical, unprofitable or uneconomical or would make
substantial structural alterations or reconstruction of the building necessary
(even though no part of the premises be taken), the Landlord may, at its option,
give to the Tenant, at any time after the vesting of title and prior to the
actual taking of possession, thirty (30) days' notice of intention to terminate
this lease, and upon the date designated in such notice, this lease and the term
hereby granted shall terminate. Anything herein to the contrary notwithstanding,
if twenty-five (25%) percent or less of the premises shall be so acquired or
condemned, the Landlord, at its option, may elect not to terminate this lease
and, in such case, the Landlord shall, at its expense, restore that part of the
premises not so acquired or condemned to a self-contained rental unit exclusive
of the Tenant's alterations. In no event shall any condemnation award be
apportioned, and the Tenant hereby assigns to the Landlord all right and claim
to any part of such award, but the rent, and all other sums payable by the
Tenant, shall be apportioned as of the date of any such termination of this
lease with respect to all or part of the premises, as the case may be, and in
the case of a partial taking, prospective rent obligations which are based on
square footage shall be adjusted accordingly. Nothing contained in the foregoing
portion of this Article ELEVEN shall be deemed to prevent the Tenant's making
claim for and retaining an award for the damage to or loss of value of its trade
fixtures and such of the installations made by the Tenant as remain the Tenant's
property or from making claim for and retaining any award which may be made to
the Tenant for the Tenant's moving expenses if, and to the extent that, the
award to be claimed and retained by the Tenant is independent of and does not
result in a diminution of the award, and is not payable out of the award to the
Landlord for the taking of the land, building and the Landlord's other property.
(b) If the Landlord shall desire to demolish or substantially alter the
building wherein the premises are located, the Landlord shall have the right and
option to terminate the term of this lease
(10)
15
at any time during the term thereof upon giving to the Tenant not less than six
months' notice of the Landlord's election to terminate this lease and of the
date, which shall be the last day of a calendar month, not less than 180 days
following the date of the Landlord's notice of election to terminate, on which
Landlord elects that this lease shall terminate and come to an end, together
with an affidavit, sworn to by an officer of the Landlord, if the Landlord at
such time is a corporation, or by a general partner of the Landlord, if the
Landlord at such time is a partnership, or by the Landlord, if the Landlord at
such time is an individual, to the effect that the Landlord, its successor in
interest or a lessee intends to demolish or substantially alter the building
containing the premises. The Landlord shall not terminate this lease pursuant to
the provisions of this Article ELEVEN (b) unless it also terminates
substantially all other leases in the building. If such notice and affidavit are
given to the Tenant, then this lease shall terminate and come to an end on the
date of termination specified in the Landlord's notice, as if that date were the
date originally fixed for the termination of the term of this lease, and on such
date the Tenant shall quit, vacate and surrender up the premises in accord with
the provisions of this lease relating to surrender at the expiration of the
term. Provided no Event of Default shall have theretofore occurred and be
continuing hereunder, including, without limitation, the Tenant's obligation to
vacate the premises on the date set forth in the Landlord's notice, then not
later than thirty (30) days following the Tenant's surrender of the premises,
the Landlord shall pay to the Tenant 100% of the Tenant's Unamortized
Improvement Expenses. As used herein, the term "Unamortized Improvement
Expenses" shall mean (i) an amount equal to the sum of Tenant's moving expenses
incurred in connection with its vacating the premises as a result of a lease
termination pursuant to this paragraph, and (ii) each of the net expenditures
actually incurred by the Tenant (over and above any amount reimbursed by the
Landlord to the Tenant pursuant to Article FORTY-FIVE of this lease) for
alterations and improvements in the premises (excluding items of moveable
furnishings, machinery and equipment, but including cabling costs), multiplied
by a fraction, (x) the numerator of which shall be the number of months in the
period commencing with the date of the termination of this lease pursuant to
this Article and ending with the Expiration Date and (y) the denominator of
which shall be the total number of months after the incurrence of such expense
until the Expiration Date, provided, however, that in no event shall the
Landlord's obligation to reimburse the Tenant for Unamortized Improvement
Expenses exceed the sum of Seven Hundred Fifty Thousand and 00/100 Dollars
($750,000.00). If the Tenant shall make the alterations and improvements in the
premises at its expense with respect to which it may wish to have the benefit of
reimbursement pursuant to this Article, the Tenant shall furnish the Landlord
within 60 days following the completion of the alterations and improvements with
a statement, in writing, certified to be correct by an officer or partner of the
Tenant setting forth the amount of the Tenant's expenditures for the alterations
and improvements broken down in reasonable detail to show the nature of the
various alterations and improvements with respect to which such expenditures
were made and the amount of the Tenant's expenses for such items. The Tenant
shall also furnish the Landlord with receipted copies of bills and such other
additional information as the Landlord may reasonably request.
ARTICLE TWELVE
MECHANIC'S LIENS
The Tenant will not permit, during the term hereby granted, any
mechanic's or other lien or order for payment of work, labor, services, or
materials furnished or to be furnished at the request of the Tenant to attach to
or affect the premises or any portion thereof, and agrees that no such lien or
order shall under any circumstances attach to or affect the fee, leasehold or
other estate of the Landlord herein, or the building. The Tenant's obligation to
keep the premises in repair, and its right to make alterations therein, if any,
shall not be construed as the consent of the Landlord to the furnishing of any
such work, labor or materials within the meaning of any present or future lien
law. Notice is hereby given that the Tenant has no power, authority or right to
do any act or to make any contract which may create, or be the foundation for,
any lien upon the fee or leasehold estate of the Landlord in the premises or
upon the land or building of which they are a part or the improvements now
erected or hereafter to be erected upon the premises or the land, or building of
which the premises are a part; and if any such mechanic's or other lien or order
shall be filed against the premises or the land or building of which the
premises are a part, the Tenant shall, within thirty (30) days thereafter,
discharge said lien or order by payment, deposit or by bond fixed in a proper
proceeding according to law. If the Tenant shall fail to take such action, or
shall not cause such lien
(11)
16
or order to be discharged within thirty (30) days after the filing thereof, the
Landlord may pay the amount of such lien or discharge the same by deposit or by
bond or in any other manner according to law, and pay any judgment recovered in
any action to establish or foreclose such lien or order, and any amount so paid,
together with the expenses incurred by the Landlord, including all attorneys'
fees and disbursements incurred in any defense of any such action, bonding or
other proceeding, shall be deemed additional rent. Any reasonable expenses
incurred by the Landlord in connection with the examination of title to the
premises in order to ascertain the existence of any lien or encumbrance and the
discharge of record thereof, shall be payable by the Tenant to the Landlord on
demand, together with interest as aforesaid as additional rent.
ARTICLE THIRTEEN
SUBORDINATION
(a) This lease, and all the rights of the Tenant hereunder, are and
shall be subject and subordinate to any and all mortgages now or hereafter liens
either in whole or in part on the building, or the land on which it stands, and
also to any and all other mortgages covering other lands or lands and buildings,
which may now or hereafter be consolidated with any mortgage or mortgages upon
the building and the land on which it stands or which may be consolidated and
spread to cover the building and such land and any such other lands or lands and
buildings, and any extension, renewal or modification of any such mortgages, and
to any and all ground or underlying leases which may now or hereafter affect the
buildings or the land on which it stands, and any extensions, renewals or
modifications thereof. This clause shall be self-operative and no further
instrument of subordination shall be required by any ground or underlying lessor
or by any mortgagee, affecting any lease or the building or the land on which it
stands. In confirmation of such subordination, the Tenant shall execute promptly
any certificate, in recordable form, that the Landlord may reasonably request.
(b) The Landlord agrees to make a written request to any future
mortgagee or future lessor of any underlying lease, that it deliver a
subordination, non-disturbance and attornment agreement (the "SNDA Agreement")
for the benefit of the Tenant, in the then customary form of such mortgagee or
lessor. If a SNDA Agreement is provided, the Tenant agrees that it will execute
any document which may be reasonably required by such mortgagee or lessor to
confirm the subordination of this lease. The Landlord shall have no obligation
to incur any expense in order to obtain such agreement and shall have no
liability if the mortgagee or lessor refuses or fails to enter into a SNDA
Agreement and the failure of the mortgagee or lessor to enter into such
Agreement shall not affect the validity of this lease, including, without
limitation, the provisions of this Article THIRTEEN.
(c) The Tenant hereby agrees that, in the event that any mortgagee
shall succeed to the rights of the Landlord, or if any Landlord of any
underlying lease shall succeed to the position of the Landlord under this lease,
then the Tenant will recognize such successor Landlord as the Landlord of this
lease and pay the rent and attorn to and perform the provisions of this lease
for the benefit of any such successor Landlord. No documentation other than this
lease shall be necessary to evidence such attornment but the Tenant agrees to
execute any documents, in recordable form, reasonably requested by the successor
Landlord to confirm such attornment or to otherwise carry out the intent and
purposes of this Article THIRTEEN.
(d) If, in connection with obtaining financing or refinancing for the
building of which the premises form a part, a lender shall request modifications
to this lease as a condition to such financing or refinancing, the Tenant will
not unreasonably withhold, delay or defer its consent thereto, provided that
such modifications do not increase the obligations of the Tenant hereunder or
adversely affect the Tenant's leasehold interest. A provision requiring the
Tenant to give notices of any defaults by the Landlord to such lender and/or
permit the curing of such defaults by such lender together with the granting of
such additional time for such curing as may be required for such lender to get
possession of the building shall not be deemed to increase the Tenant's
obligations or adversely affect the Tenant's leasehold interest. In no event
shall a requirement that the consent of any such lender be given for any
modification, termination or surrender of this lease be deemed to materially
adversely affect the leasehold interest hereby created.
(12)
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(e) Anything herein to the contrary notwithstanding, the Landlord
represents and warrants to the Tenant that as of the date of this lease there is
no mortgage or superior lease encumbering the premises.
ARTICLE FOURTEEN
CERTIFICATE OF OCCUPANCY
(a) The Certificate of Occupancy currently applicable to the twelfth
floor of the building permits the premises on that floor to be used for factory
and showroom purposes. The Landlord represents that it shall, promptly and at
its expense, obtain a No Work Permit from the New York City Department of
Buildings (the "Building Department"). The Tenant shall, promptly and at its
expense, file an "Alt 2" application with the Building Department in connection
with the initial alterations to be performed by the Tenant (subject to the
Landlord's approval) and shall obtain all life and safety sign-offs required in
connection with such work (the "Tenant's C/O Work"). Upon completion of the
Tenant's C/O Work, the Landlord shall, at its expense, obtain a Temporary
Amended Certificate of Occupancy (the "Temporary Certificate") or a Permanent
Amended Certificate of Occupancy (the "Amended Certificate") permitting the
premises to be used for office use. The Tenant shall be solely responsible for
complying with all legal requirements governing the number of occupants which
each floor of the premises can accommodate (the "Density Requirements").
(ii) If the Tenant has performed Tenant's C/O Work and is in compliance
with Density Requirements, but a Temporary Certificate or an Amended Certificate
is not issued for any reason other than Tenant's failure to complete Tenant's
C/O Work or comply with Density Requirements, and if any governmental action is
taken or a proceeding is commenced (collectively, the "Proceeding") by the City
of New York or any agency thereof or any other governmental agency based on the
fact that neither an Amended Certificate or a Temporary Certificate has been
issued, which Proceeding (x) imposes or seeks to fine or assess a penalty
against the Tenant, or (y) specifically prohibits or seeks to prohibit the
Tenant from utilizing the premises for the purposes set forth herein, or (z)
evicts or seeks to evict the Tenant from the premises, then the Tenant shall
notify the Landlord in writing of such fact and Landlord shall defend the Tenant
against such Proceeding, and, in the event of a final judgment or administrative
determination assessing a fine or penalty, the Landlord shall pay such amount,
and in the event that Tenant is actually evicted as a result of the Proceeding
or a final judgment or administrative determination evicting the Tenant or
specifically prohibiting it from occupying the premises is issued, the Tenant
shall receive an abatement of the fixed and additional rent due under this lease
for the period during which the Tenant is evicted or prohibited from using the
premises because a Temporary Certificate or Amended Certificate has not been
issued, provided, however, that in no event shall the Tenant be entitled to
receive an abatement of rent for any period during which the Tenant actually
occupies or utilizes the premises for the normal conduct of its business.
(iii) In the event that the Tenant is entitled to an abatement of rent
pursuant to the provisions of clause (ii) above, then following the expiration
of a six-month abatement period, either the Landlord or the Tenant may elect to
terminate this lease, and the Tenant will vacate and surrender the premises
(such vacation to be in accord with the provisions of this lease relating to
surrender at the expiration of the term) on a date not earlier than the 10th day
and not later than the 30th day following the date on which the Landlord or the
Tenant notifies the other of its election to terminate this lease.
(iv) In the event that either the Landlord or the Tenant terminates
this lease as permitted by clause (iii) of this paragraph (a), then not later
than 30 days following the Tenant's surrender of the premises, the Landlord
shall pay to the Tenant 100% of the Tenant's Unamortized Improvement Expenses,
as hereinabove defined.
(b) Prior to the issuance of the Amended Certificate or the Temporary
Certificate, if (i) the Tenant's application for alteration of the premises for
the use permitted herein is not accepted for filing by the Building Department
as a result of the Landlord's failure to complete Landlord's C/O Work, and the
Tenant's contractors are unable to obtain the requisite work permits or (ii)
such
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permits, once issued, are subsequently withdrawn, rescinded or voided, because
Landlord has failed to complete Landlord's C/O Work, then the Tenant shall
notify the Landlord in writing of such fact, and the Landlord shall make a good
faith effort to make any filings which would permit the Tenant or its
contractors to complete any required work. If the Landlord is unable to obtain
rescission of such refusal to accept the Tenant's alteration application and
issuance or reinstatement of work permits within 60 days of the date of such
notice, (and such failure is not due to the fault of the Tenant or its
contractors), the Tenant may elect to terminate this lease and vacate the
premises (such vacation to be in accord with the provisions of this lease
relating to the surrender of the expiration of the term) on a date not earlier
than the 10th day and not later than the 30th day following the date on which
the Tenant notified the Landlord of its election to terminate this lease, and
the Tenant shall be entitled to reimbursement, as provided in clause (iv) of
paragraph (a) of this Article.
(c) The rights of termination of the lease, abatement, and
reimbursement, as described in paragraphs (a) and (b) above, shall constitute
the Tenant's sole remedy either pursuant to this lease or otherwise relating to
the Certificate of Occupancy, and the Landlord will not have any obligations
with respect to the Certificate of Occupancy under this lease except to return
the Tenant's security deposit within five business days of the date on which the
Tenant delivers vacant possession of the premises to the Landlord. If the Tenant
shall not exercise either such right of termination, then the lease shall remain
in full force and effect.
(d) The Tenant shall not use the premises for any purpose other than
the uses specified herein. Following the issuance of the Amended Certificate or
the Temporary Certificate, the Tenant shall immediately discontinue any use of
the demised premises, which may be claimed or declared by the City or State of
New York or other governmental authority to be in violation of or contrary to
the Amended Certificate or the Temporary Certificate, or by reason of which any
attempt may be made to penalize the Landlord or require the Landlord to secure
any other Certificate of Occupancy for the building, in either case, other than
office purposes.
(e) Once an Amended Certificate of Occupancy has been obtained for the
premises pursuant to the provisions of this Article FOURTEEN, the Landlord shall
not thereafter seek to amend such Certificate of Occupancy so as to prevent the
uses permitted by this lease.
ARTICLE FIFTEEN
VAULTS
Notwithstanding anything herein contained, or shown on any sketch, plan
or schedule hereto attached, to the contrary, if any vault space forms a part of
the premises, or adjoins the same, or any part or portion of the premises is not
within the property line of the building or premises, and if the use of the said
space shall hereafter be prevented or curtailed by exercise of any governmental
authority, the Tenant shall have no claim whatever upon the Landlord for the
loss of such space, by any abatement of the rent, or otherwise, nor shall the
Tenant be relieved from any obligations under this lease, and the Landlord's
covenant of quiet enjoyment hereinafter contained, shall not be deemed to apply
to any such space. The Landlord makes no representation as to the location of
the property line of the building. The Tenant shall reimburse the Landlord for
the vault charge or tax, if any, imposed by the City of New York in respect of
any such vault space.
ARTICLE SIXTEEN
FIRE AND OTHER CASUALTY
(a) If the premises shall be damaged by fire, action of the elements or
other casualty or cause which is within the risks covered by insurance carried
by the Landlord, the Tenant shall give immediate notice thereof to the Landlord,
and said damage shall be repaired by the Landlord, at the Landlord's expense,
with all reasonable speed, making due allowance for delay due to labor troubles,
settlement of loss and other causes beyond the control of the Landlord, and the
Tenant shall, in every reasonable way, facilitate the making of such repairs,
and (unless the fire shall be due to the negligence or other fault of the Tenant
or its employees) the rent shall be suspended during such period as the premises
shall have been rendered wholly untenantable until five (5) days after the
Landlord notifies the Tenant that the premises are substantially ready for the
Tenant's occupancy (or
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the premises are sooner occupied by the Tenant) and, in the event that the
premises are rendered partially untenantable, the rent shall be abated during
such period, in the proportion which the area of the premises which is rendered
untenantable bears to the area of the whole premises. No damage to the premises
or the building by fire, or other cause, however extensive, shall terminate this
lease, or give the Tenant the right to quit and surrender the premises, or
impair any obligations of the Tenant hereunder, except with respect to the
payment of rent (and with respect thereto to the extent above provided) and
except that (i) if the damage shall be so extensive that the Landlord shall
determine to demolish or substantially alter the building, whether or not the
premises are affected, the Landlord may at any time within one hundred twenty
(120) days following the occurrence of the damage give to the Tenant thirty (30)
days' notice of intention to terminate this lease; (ii) if the damage to the
premises is substantial so that the whole or substantially the whole of the
premises is rendered untenantable by the Tenant or if 50% or more of the common
areas of the building are destroyed or substantially damaged and the Landlord
does not within 60 days following the occurrence of the damage notify the Tenant
of the Landlord's intention to repair the damage to the premises so that the
premises are again useable by the Tenant within a period of not more than 180
days following the occurrence of the damage subject to delays due to settlement
of loss or causes of the kinds described in Article THIRTY-FOUR of this lease,
the Tenant may cancel this lease by notice given within 10 days following the
expiration of the said 60-day period for the Landlord's notice of election to
repair, time being of the essence; (iii) if the Landlord has given notice of its
intention to restore the premises, but fails to substantially complete such
restoration within 180 days following the occurrence of the damage, subject to
delays due to settlement of loss or delays of the kind described in Article
THIRTY-FOUR of this lease, the Tenant may cancel this lease by notice given
within 10 days following the expiration of the said 180-day period, time being
of the essence; and (iv) in the event of the occurrence of damage to the
premises of the degree described above in clause (ii) of this paragraph (a), the
Landlord may also elect to terminate this lease by notice of election to do so
given within 60 days following the occurrence of the damage. If notice of
election to terminate this lease shall be given as above provided, then, upon
the date for termination designated in any such notice, this lease and the term
hereby granted shall terminate and the rent shall be apportioned as of the date
of the damage or as of such later date as the Tenant may actually surrender
possession. Nothing herein contained shall be deemed to obligate the Landlord to
restore the Tenant's trade fixtures, equipment, stocks, furnishings,
improvements or other property remaining the property of the Tenant. The Tenant
acknowledges that the Landlord will not carry insurance on the Tenant's
furniture or any fixtures or equipment, improvements or appurtenances removable
by Tenant and agrees that the Landlord will not be obligated to repair any
damage thereto or replace the same. The Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
Article SIXTEEN shall govern and control in lieu thereof.
(b) The Tenant shall conduct its business and use the premises in such
a manner and so as not to increase the rate of fire insurance applicable to the
building or any property located therein over the rates in effect prior to the
commencement of the Tenant's occupancy, and the Tenant shall install and
maintain all its furniture, fixtures, equipment, stocks and materials in such a
manner as to accomplish the foregoing purposes. The Tenant further agrees not to
permit any act to be done or anything brought into or kept upon the premises
which will void or avoid the insurer's liability under any contract of fire
insurance on the building or its contents. Should the fire insurance rate on the
building be increased beyond the present rate, by reason of the Tenant's
occupancy or character of its business, or the Tenant's failure to comply with
the terms hereof, the Tenant agrees to pay to the Landlord, on demand, the
additional cost of such insurance, or, at the option of the Landlord, the same
may be added to any installment of rent and be payable as additional rent. The
schedule of the makeup of a rate issued by an authorized rating organization
shall be conclusive evidence of the facts therein stated and of the items in the
rate applicable to the premises.
(c) The Landlord, as to the premises, and the Tenant, as to the
improvements made therein at the Tenant's expense and all of the Tenant's stock,
trade fixtures and other property in the premises shall each look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, the Landlord and the Tenant each hereby release one another or
any one claiming through or under each of them by way of subrogation or
otherwise from all liability for any loss or damage caused by fire or any of the
risks
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enumerated in standard extended coverage insurance. This foregoing release and
waiver shall be in force only if both releasors' insurance policies contain a
clause providing that such a release or waiver shall not invalidate the
insurance, and also provided that such a policy can be obtained without
additional premiums. The Landlord and Tenant agree that their respective
insurance policies will include the aforesaid clause so long as the same is
obtainable without extra cost or if extra cost be charged, so long as the party
for whose benefit the clause is obtained shall pay such extra cost. If extra
cost shall be chargeable therefor the party so affected shall advise the other
thereof, of the amount of the extra cost and the other party at its election may
pay the same or decline to so pay, in which event the release from liability
given to said party by this Article SIXTEEN shall be deemed to be withdrawn and
of no force and effect.
(d) The Landlord shall keep in full force and effect a policy of
insurance against loss or damage by fire and such other risks and hazards as are
insurable under standard forms of "all risk" insurance policies, with extended
coverage, covering the building, in an amount sufficient to avoid the effects of
co-insurance, in such amounts as the Landlord may deem appropriate.
(e) If notwithstanding the recovery of insurance proceeds by the Tenant
for loss, damage or destruction to its property, the Landlord is liable to the
Tenant with respect thereto or is obligated under this lease to repair or
restore such damage, the amount of the net proceeds paid to the Tenant shall
either be offset against the Landlord's liability to the Tenant, or shall be
made available to the Landlord to pay for the cost of such repair or
restoration.
ARTICLE SEVENTEEN
CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT
(a) The use to be made of the premises by the Tenant and the identity
of the Tenant being among the inducements to the making of this lease by the
Landlord, the Tenant shall not, without first having obtained the Landlord's
prior written consent thereto, and otherwise in accordance with the terms of
this lease, (i) sublet or underlet, or permit the subletting or underletting of
the premises or any part thereof; (ii) assign or transfer, by operation of law
or transfer of stock or otherwise, this lease or any interest therein; (iii) use
or permit the premises or any part thereof to be used for any purposes other
than those specified in the lease; (iv) permit the premises or any part thereof
to be occupied by anyone other than the Tenant or its officers or employees; or
(v) mortgage or encumber this lease or any interest therein.
(b) If the Tenant shall desire to assign this lease or to sublet the
premises, in whole or in part, the Tenant shall send to the Landlord a written
notice (the "Tenant's Notice") stating (i) the action which the Tenant proposes;
(ii) the portion of the premises with respect to which the Tenant proposes to
take such action (the "Affected Premises"); (iii) the principal terms and
conditions of the desired assignment or subletting, including without
limitation, the rent payable, the proposed commencement and expiration dates of
the terms of the desired subletting, or the effective date of the desired
assignment; and (iv) such other information as the Landlord shall reasonably
request. The Tenant's Notice shall also contain a statement directing the
Landlord's attention to the provisions of Article SEVENTEEN (c) of the lease.
(c) Within thirty (30) days after receipt of Tenant's Notice which
contains all the information required in paragraph (b) above, the Landlord shall
notify the Tenant (the "Landlord's Notice") whether it elects to (i) terminate
the lease in its entirety, if the desired transaction is an assignment of lease
or a subletting of all or substantially all of the premises or (ii) terminate
the lease as to the Affected Premises only if the desired transaction is a
subletting of less than substantially all of the premises. For purposes of this
Article SEVENTEEN, a Tenant shall be deemed to be subletting "substantially all
of the premises" if the Affected Premises constitutes seventy five (75%) percent
or more of the rentable square footage of the premises.
(d) If the Landlord exercises the option set forth in paragraph (c) (i)
above to terminate this lease in its entirety, then (i) the term of this lease
shall end and expire with respect to the entire premises on the ninetieth (90th)
day following the date of Landlord's Notice and (ii) the Tenant shall surrender
the entire premises to the Landlord on such date, in the same manner and
condition as is
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21
required by this lease, as if such date were the Expiration Date set forth in
this lease, and (iii) fixed rent and additional rent shall be apportioned as of
such expiration date. Instead of terminating the lease, the Landlord may, at its
option, elect to have the Tenant assign all of its right, title and interest in
and to this lease to the Landlord, such assignment to be effective as of the
date such lease termination would be effective and otherwise on the terms and
conditions set forth in this paragraph (d). Upon such assignment, the Tenant
shall be relieved of all liability accruing under this lease after the effective
date of such assignment, and the Landlord may thereafter further assign this
lease or sublet all or part of the premises to any party and the Tenant shall
have no right to any proceeds derived from such assignment or subletting. In no
event shall the provisions of this paragraph (d) relieve the Tenant of any
obligations which accrued prior to the termination of this lease or the
assignment to the Landlord, as the case may be.
(e) If the Landlord exercises the option set forth in paragraph (c)(ii)
above to terminate the lease with respect to the Affected Premises, then (i) the
term of this lease shall end and expire with respect to the Affected Premises on
the ninetieth (90th) day following the date of the Landlord's Notice and (ii)
the Tenant shall surrender the Affected Premises to the Landlord on such date,
in the same manner and condition as is required by this lease, as if such date
were the Expiration Date set forth in this lease and (iii) fixed rent and
additional rent with respect to the Affected Premises shall be apportioned as of
such Expiration Date and the Tenant's prospective rent obligations which are
based on square footage (including, without limitation, fixed rent and
additional rent payable pursuant to Article THIRTY of this lease) shall be
reduced accordingly, and (iv) at the Landlord's election, either the Landlord,
at the Tenant's expense, or the Tenant, at its own expense, shall erect the
partitioning required to separate the Affected Premises from the remainder of
the premises, create any doors required to provide an independent means of
access to the Affected Premises from elevators and lavatories and segregate the
wiring and meters and electric current facilities, so that the Affected Premises
may be used as a unit for commercial purposes, separate from the remainder of
the premises. If the remaining premises contain the core lavatories, the
occupant of the Affected Premises shall have the right to use such lavatories in
common with the Tenant. If the Tenant performs such work, it shall commence such
work promptly upon receipt of Landlord's Notice and shall proceed to complete
such work in a diligent and workmanlike manner. Instead of terminating the lease
with respect to the Affected Premises, the Landlord may, at its option, elect to
have the Tenant assign all of its right, title and interest with respect to the
Affected Premises to the Landlord, such assignment to be effective as of the
date such lease termination would be effective and otherwise on the terms and
conditions set forth in this paragraph (e). Upon the assignment of the lease to
the Landlord with respect to the Affected Premises, the Landlord may further
assign the lease or sublet all or part of the Affected Premises to any party and
the Tenant shall have no right to any proceeds derived from such assignment or
subletting. In no event shall the provisions of this paragraph (e) relieve the
Tenant of any obligations with respect to the Affected Premises which accrued
with respect to the Affected Premises prior to the termination of the lease or
the assignment to the Landlord, as the case may be.
(f) In the event the Landlord does not elect either of the alternatives
set forth in paragraph (c) (i) or (ii) above, or in the event the Landlord fails
to timely deliver the Landlord's Notice, the Landlord agrees not to unreasonably
withhold or delay its consent to any proposed assignment or subletting,
provided, however, that the Landlord shall have the right to condition its
consent to any proposed assignment or sublease on the following:
(1) No Event of Default shall have theretofore occurred and be
continuing under this lease.
(2) The Tenant shall have delivered to the Landlord the Tenant's Notice
as required by paragraph (b) above.
(3) With respect to a sublease, the Tenant shall collaterally assign to
the Landlord, and grant the Landlord a security interest in, the
sublease and the rents payable thereunder and shall take all necessary
steps required to perfect such assignment and security interest.
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(4) The sublease shall include provisions to the effect that (i) if the
Landlord shall notify the sublessee that the Tenant is in default in
the payment of rent or in the performance of its other obligations
under this lease, the subtenant shall, if so requested by the Landlord,
pay all rent and other amounts due under the sublease directly to the
Landlord, (ii) notwithstanding any such payment by the subtenant
directly to the Landlord, the term of the sublease shall terminate
simultaneously with the termination of the term of this lease and the
subtenant shall surrender the subleased premises upon such termination,
(iii) the sublease shall be subject and subordinate to this lease and
to all matters to which this lease is or shall be subordinate, and (iv)
any act or omission by the subtenant which, if performed by the Tenant
would constitute an Event of Default under the lease, shall also
constitute an Event of Default under the sublease.
(5) The proposed subtenant or assignee shall be reasonably creditworthy
in light of the obligations it is undertaking, be of a character, be
engaged in a business, and propose to use the premises in a manner,
which in the Landlord's reasonable judgment, is in keeping with the
Landlord's reasonable standards in such respect of the other office
tenancies in the building. The parties acknowledge that the Landlord,
as a religious institution, may have special considerations in
determining if the business or proposed use of a proposed subtenant or
assignee is objectionable, and the parties agree that the Landlord's
judgment in such matters shall be conclusive.
(6) The proposed assignee or subtenant shall not then be a tenant,
subtenant or assignee of any space in the building or any other
building then owned, directly or indirectly, by the Landlord, nor shall
the proposed subtenant or assignee be a person or entity with whom the
Landlord is then negotiating to lease space in the building or any
other building then owned, directly or indirectly, by the Landlord.
(7) The premises may be listed with a broker for any rental rate, but
shall not, without the Landlord's prior consent, be otherwise publicly
advertised for subletting at a rental rate less than the prevailing
asking rental rate then set by the Landlord for comparable space in the
building, and if no comparable space is then available, at the
prevailing rental rate set by the Landlord (provided that nothing
contained in this subparagraph (7) shall be deemed to prohibit the
Tenant from negotiating and consummating a sublease at a lower rental
rate).
(8) The character of the business to be conducted or the proposed use
of the premises by the proposed assignee or subtenant shall not (i) be
likely to increase the Landlord's operating expenses beyond that which
would be incurred for use by the Tenant or for use in accordance with
the standards of use of other tenancies in the building, (ii) increase
the burden on elevators over the burden prior to such proposed
assignment or subletting, (iii) unreasonably interfere with the use and
enjoyment by other tenants in the building of their premises, or (iv)
violate or be likely to violate any provisions or restrictions
contained herein relating to the use or occupancy of the premises.
(9) Any proposed sublease shall provide that in the event of the
termination of this lease, or the re-entry or dispossession of the
Tenant by the Landlord under this lease, such subtenant shall, at the
Landlord's option, attorn to the Landlord as its sublessor pursuant to
the then applicable terms of such sublease for the remaining term
thereof, except that the Landlord shall not be (i) liable for any
previous act or omission of Tenant as sublessor under such sublease,
(ii) subject to any offset which theretofore accrued to such subtenant
against the Tenant, (iii) bound by any modification of such sublease
not consented to in writing by the Landlord or by any prepayment of
rent more than one month in advance, (iv) bound to return such
subtenant's security deposit until it has come into its actual
possession and the subtenant would be entitled to its return pursuant
to the terms of the sublease, and (v) bound by any obligation to make
any payment to any subtenant or perform any work in the premises.
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23
(10) The proposed assignee or subtenant is not entitled, directly or
indirectly, to diplomatic or sovereign immunity, and/or is subject to
the service or process in, and the jurisdiction of the courts of New
York.
(11) There shall be no more than two (2) occupants in the premises,
including the Tenant, at any time during the term of the lease.
(12) The subletting shall end no later than one (1) day before the
Expiration Date and shall be for a term of no less than two (2) years,
unless it commences less than two (2) years before the Expiration Date
of the term.
(13) The term of the sublease or the effective date of any assignment
shall not commence prior to the one (1) year anniversary of the
Commencement Date.
(14) The assignee shall assume, in writing, all obligations of the
Tenant under this lease from and after the date of such assignment.
(15) A fully executed counterpart of the assignment or sublease shall
be delivered to the Landlord within five (5) days after execution
thereof.
(g) In the event the Landlord waives its rights set forth in paragraph
(c) (i) and (ii) above, or consents to any assignment or subletting pursuant to
this Article SEVENTEEN, and the Tenant fails to execute and deliver an
assignment or sublease document, as approved by the Landlord, within six (6)
months after the date of Landlord's Notice, then the Tenant shall again comply
with all of the requirements of this Article SEVENTEEN before assigning its
interest in this lease, or subletting all or part of the premises, respectively.
(h) The Tenant shall pay all of the reasonable Landlord's costs
(including, without limitation, attorneys' fees and expenses) related to the
Landlord's review of a proposed sublease or assignment and the preparation,
review and approval of any assignment of rents, financing statement and other
documents related to such sublease or assignment, irrespective of whether
consent is granted or the transaction is ultimately consummated. The Tenant
shall also pay the cost of recording or filing any assignment of rents and
financing statements.
(i) Provided no Event of Default shall have theretofore occurred and be
continuing under this lease, the Tenant named herein is authorized to (1) assign
the lease to any entity succeeding to the business and assets of the Tenant,
whether by way of merger or consolidation or by way of acquisition of all or
substantially all of the assets or stock of the Tenant, provided that the
acquiring entity shall have assumed in writing the Tenant's obligations under
this lease; or (2) to sublease all or a portion of the premises or assign the
lease to an entity which shall (x) control, (y) be under the control of, or (z)
be under common control with the Tenant (an entity described in (x), (y) or (z)
being a "Related Entity"). "Control" shall mean direct or indirect ownership of
more than fifty percent (50%) of each class of stock which is authorized to vote
of a corporation or other majority equity and control interest if not a
corporation and the possession, directly or indirectly, of power to direct or
cause the direction of the management and policy of such corporation or other
entity, whether through the ownership of voting securities, by statute or
according to the provisions of a contract. Upon making a sublease or assignment
to any Related Entity, the Tenant shall notify the Landlord and certify to the
Landlord the manner in which such Related Entity is related to the Tenant and
the purposes for which the premises will be used. Any subletting or assignment
described in this paragraph (i) shall be on notice to Landlord but shall not
require the prior written consent of the Landlord and may only be made on the
condition that (a) the subtenant or assignee shall continue to use the premises
for the purposes permitted in this lease, and (ii) the principal purpose of such
sublease or assignment is not the acquisition of the Tenant's interest in this
lease, or to circumvent the provisions of paragraph (a) of this Article
SEVENTEEN. In the event of an assignment pursuant to the provisions of clause
(1) of this paragraph (i), the successor entity, after giving effect to such
merger, consolidation or acquisition, shall have a tangible net worth, exclusive
of good will, computed in accordance with generally accepted accounting
principles ("Net Worth") at least equal to the Net Worth of the Tenant as of the
date of this lease. The provisions of paragraph (c) of this
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24
Article and the provisions of paragraph (k) of this Article shall not apply to a
subleasing or assignment made pursuant to the provisions of this paragraph (i).
(j) For purposes of this Article SEVENTEEN, an "assignment" shall be
deemed to include, whether occurring at one time or over a period of time
through a series of transfers, a sale or transfer of fifty (50%) percent or more
of beneficial interest in the guarantor of the Tenant's obligations under this
lease, or the issuance of additional stock where the issuance of such additional
stock will result in a change of "control" (as defined in paragraph (i)) in the
guarantor. The transfer of shares or issuance of additional stock of the
guarantor for purposes of this Article SEVENTEEN shall not include the issuance
and sale of shares as part of an initial public offering, or any sale of shares,
which sale is effected through the "over-the-counter market" or through any
nationally recognized exchange. Notwithstanding the foregoing, the Landlord's
consent shall not be required, and there shall be no right of recapture, in
connection with any deemed assignment pursuant to this paragraph (j) so long as
the Net Worth of the guarantor immediately following such deemed assignment is
not less than guarantor's Net Worth as of the date of this lease.
(k) In the event the Landlord, in its sole discretion, authorizes the
Tenant to assign the lease or to sublet all or a portion of the premises (other
than an assignment or subleasing authorized by paragraph (i) above), the Tenant
named herein shall pay to the Landlord, monthly, as additional rent, one hundred
percent (100%) of all Tenant's Profit. "Tenant's Profit" shall mean all
consideration received by the Tenant (other than rental or consideration
received by the Tenant under a sublease or assignment entered into pursuant to
paragraph (i) of this Article), less (i) the rent, payable by the Tenant under
this lease for the period in question (exclusive of any amount payable by the
Tenant under this subparagraph (k)), such rent to be pro-rated if less than all
of the premises are sublet, (ii) any brokerage commissions (not exceeding 110%
of those set forth in Landlord's brokerage commission schedule as published from
time to time) and reasonable legal fees paid by the Tenant in connection with
such subletting or assignment, (iii) any sums payable by the Tenant to the
Landlord pursuant to the provisions of paragraph (h) of this Article, (iv) any
payments made by the Tenant in connection with the assignment of its interest in
this lease pursuant to Article 31-B of the Tax Law of the State of New York or
any real property transfer tax of the United States or the City or State of New
York (other than income taxes), and (v) the reasonable cost of alterations
needed to prepare the premises for subletting. In the case of a sublease, the
expenses set forth in (ii), (iii) and (v) shall be amortized on a straight-line
basis over the term of the sublease. In the case of an assignment, if the
consideration to be paid to the Tenant shall be paid in installments, the
expenses set forth in (ii) through (iv) shall be amortized over the period
during which the installments are to be paid.
(l) No consent given by the Landlord shall be deemed to permit any act
except the act to which it specifically refers, or to render unnecessary any
subsequent consent, and any assignment or subletting of the premises shall not
relieve the Tenant or any mesne assignee from any obligations, duty or covenant
under this lease. No assignment, transfer, mortgage, encumbrance, subletting or
arrangement in respect of the occupancy of the premises shall create any right
in the assignee, transferee, mortgagee, subtenant or occupant, unless the
consent of the Landlord shall first have been obtained, in accordance with the
provisions of this Article SEVENTEEN. Any assignee by accepting an assignment
shall nevertheless be conclusively deemed to have assumed this lease and all
obligations already accrued or to accrue thereunder and further to have agreed
to fully and duly perform all the Tenant's covenants herein contained. If the
Tenant shall, at any time, be in default in the payment of rent, the Landlord
shall have the right to collect rent from any assignee or subtenant, and credit
the same to the account of the Tenant, and no such collection shall constitute a
waiver of the foregoing covenant or the acceptance of anyone other than the
Tenant, as tenant, or shall otherwise release, impair or otherwise affect any
obligation of the Tenant under this lease.
(m) The Tenant shall remain fully liable for the performance of all of
the Tenant's obligations hereunder notwithstanding anything provided for herein,
and without limiting the generality of the foregoing, shall remain fully
responsible and liable to the Landlord for all acts and omissions of any
subtenant or assignee or anyone claiming under or through any such person which
shall be in violation of any of the obligations of this lease and any such
violation shall be deemed to be a violation by the Tenant. Upon any termination
of this lease, it is expressly agreed that the Tenant shall deliver to the
Landlord all subleases, security deposits (including interest), contracts,
documents,
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rent rolls and other records used in the operation of the premises and, unless
the sublease shall have previously terminated and the security deposit returned
to subtenant or applied as provided by the sublease, all security deposits held
by the Tenant.
(n) With respect to any present or future subleases, the Tenant shall
not accept prepayment of rent prior to its due date in excess of one month (but
the provisions of the foregoing shall not prohibit the Tenant from collecting
from any subtenant a security deposit provided such security deposit is
delineated in the sublease as being not advance rent, but security, returnable
to the subtenant after the termination of the term of the sublease). The Tenant
agrees to indemnify and save the Landlord harmless from and against any claim or
lien against the Landlord or the premises for the return of any security under
any subleases with a subtenant which was not previously delivered to the
Landlord and agrees further that all subleases hereafter made with subtenants
shall provide that the lease security deposited by the subtenant shall not be a
lien or claim against the interest of the Landlord.
(o) (i) If the Tenant assumes this lease and proposes to assign the
same pursuant to the provisions of 11 U.S.C. Section 101 et. seq (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this lease on terms acceptable to the Tenant, then
notice of such proposed assignment shall be given to the Landlord by the Tenant
no later than twenty (20) days after receipt by the Tenant of such bona fide
offer, but in any event no later than ten (10) days prior to the date that the
Tenant shall make application to a court of competent jurisdiction for authority
and approval to enter into such assignment and assumption. Such notice shall set
forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) adequate assurance of future performance by
such person under this lease, including, without limitation, the assurance
referred to in Section 365 (b)(3) of the Bankruptcy Code. The Landlord shall
have the prior right and option, to be exercised by notice to the Tenant given
at any time prior to the effective date of such proposed assignment, to accept
an assignment of this lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person, less any
brokerage commission which would be payable in connection with such assignment.
(ii) The term "adequate assurance of future performance" as used in
this lease shall mean that any proposed assignee shall, among other things: (a)
deposit with the Landlord on the assumption of this lease an amount equal to the
then-fixed rent and additional rent as security for the faithful performance and
observance by such assignee of the terms and obligations of this lease, which
sum shall be held in accordance with the provisions of Article TWENTY-NINE
hereof; (b) furnish the Landlord with financial statements of such assignee for
the prior three (3) fiscal years, as finally determined after an audit and
certified as correct by a certified public accountant, which financial
statements shall show a Net Worth of at least two (2) times the Net Worth of the
Tenant named herein as of the date of this lease for each of such three (3)
years; (c) grant to the Landlord a security interest in such property of the
proposed assignee as the Landlord shall deem necessary to secure such assignee's
future performance under this lease; and (d) provide such other information or
take such action as the Landlord, in its reasonable judgment, shall determine is
necessary to provide adequate assurance of the performance by such assignee of
its obligations under this lease.
(p) Notwithstanding anything to the contrary contained herein, no
assignment or subletting by the Tenant, nor any other transfer or vesting of the
Tenant's interest hereunder (whether by merger, operation of law or otherwise),
shall be permitted if the proposed assignment or sublease (i) provides for a
rental or other payment for the leasing, use, occupancy or utilization of all or
any part of the premises based, in whole or in part, on the income or profits
derived by any person from the property so leased, used, occupied or utilized
other than an amount based on a fixed percentage or percentages of gross
receipts or sales or (ii) does not provide that such assignee or subtenant shall
not enter into any lease, sublease, license, concession or other agreement for
the use, occupancy or utilization of all or any portion of the premises which
provides for a rental or other payment for such use, occupancy or utilization
based, in whole or in part, on the income or profits derived by any person from
the property so leased, used, occupied or utilized other than an amount based on
a fixed percentage or percentages of gross receipts or sales.
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(q) Anything hereinabove to the contrary notwithstanding, provided no
Event of Default shall have occurred and be continuing under this lease, the
Tenant shall have the right, without the Landlord's consent and without being
subject to the Landlord's right of recapture in paragraph (c), to sublet up to
5,075 square feet of the premises. Any such demising of the sublet space shall
be performed in accordance with all Legal Requirements at no expense to the
Landlord. The provisions of paragraph (k) of this Article SEVENTEEN with respect
to Tenant's Profit shall apply to any such subletting.
ARTICLE EIGHTEEN
WAIVER AND SURRENDER; REMEDIES CUMULATIVE
No consent or waiver of any provision hereof or acceptance of any
surrender shall be implied from any act or forbearance by the Landlord. No
agreement purporting to accept a surrender of this lease, or to modify, alter,
amend or waive any term or provision thereof, shall have any effect or validity
whatever, unless the same shall be in writing, and executed by the Landlord and
by the Tenant, and be duly delivered, nor shall the delivery of any keys to
anyone have any legal effect, any rule or provision of law to the contrary
notwithstanding. Any consent, waiver or acceptance of surrender, in writing, and
properly executed and delivered as aforesaid, shall be limited to the special
instance for which it is given, and no superintendent or employee, other than an
officer of the Landlord or of its managing agent, and no renting representative
shall have any authority to accept a surrender of the premises, or to make any
agreement or modification of this lease, or any of the terms and provisions
hereof. No provision of any lease made by the Landlord to any other tenant of
the building shall be taken into consideration in any manner whatever in
determining the rights of the Tenant herein. No payment by the Tenant or receipt
by the Landlord of a lesser amount than the monthly rent herein stipulated shall
be deemed to be other than on account of the stipulated rent, nor shall any
endorsement on any check, nor any letter accompanying any such payment of rent
be deemed an accord and satisfaction (unless an agreement to accept a lesser
amount be signed by the Landlord), but the Landlord may accept such payment
without prejudice to the Landlord's full right to recover the balance of such
rent and to institute summary proceedings therefor. If the Tenant is in arrears
in the payment of fixed rent or additional rent or any other sum which may
become payable under this lease, the Tenant waives its right, if any, to
designate the items in arrears against which any payments made by Tenant are to
be credited and Landlord may apply any of such payments to any such items in
arrears as the Landlord, in its sole discretion, shall determine, irrespective
of any such designation or request by the Tenant as to the items against which
any such payments shall be credited. The receipt by the Landlord of any fixed
rent, or additional rent or of any other sum of money which may be payable under
this lease, or of any portion thereof, shall not be deemed a waiver of the right
of the Landlord to enforce the payment of any sum of any kind previously due or
which may thereafter become due under this lease, or of the right to forfeit
this lease by such remedies as may be appropriate, or to terminate this lease or
to exercise any of the rights and remedies reserved to the Landlord hereunder,
and the failure of the Landlord to enforce any covenant or condition (although
the Tenant shall have repeatedly or continuously broken the same without
objection from the Landlord) shall not estop the Landlord at any time from
taking any action with respect to such breach which may be authorized by this
lease, or by law, or from enforcing said covenant or any other covenant or
condition on the occasion of any subsequent breach or default. The various
rights, remedies, powers and elections of the Landlord, as provided in this
lease or created by law, are cumulative, and none of them shall be deemed to be
exclusive of the others, or of such other rights, remedies, powers or elections
as are now or may hereafter be conferred upon the Landlord by law or equity.
ARTICLE NINETEEN
NO REPRESENTATIONS AS TO PREMISES,
CERTIFICATE OF OCCUPANCY AND USE
The Tenant represents to the Landlord that the Tenant has made, or
caused to be made, a careful inspection of the premises and that the Tenant has
made an examination of the certificate of occupancy of the building and that the
area and present condition of the premises are in all respects satisfactory to
the Tenant, except (if at all) as may herein otherwise be expressly stated in
the Work Letter annexed hereto. The Tenant acknowledges that no representations
or promises have been made
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by the Landlord or the Landlord's agents with respect to the premises or the
building or the Certificate of Occupancy thereof, except as in this lease set
forth, and no rights, easements or licenses are acquired by the Tenant except as
expressly set forth herein. The statements contained in this lease regarding the
use of the premises by the Tenant shall not be deemed a representation or
warranty by the Landlord that such use is lawful or permitted by the Certificate
of Occupancy of the building. This Article NINETEEN shall not limit Landlord's
repair and maintenance obligations as set forth elsewhere in the lease.
ARTICLE TWENTY
LIMITATION OF LANDLORD'S LIABILITY
(a) The Tenant shall make no claim upon the Landlord for abatement of
rent, constructive eviction, rescission, or otherwise, and the Landlord shall be
exempt from all liability, except for injuries to the Tenant's person or
property which are due to the negligence of the Landlord, its agents, servants
or employees in the management of the premises or the real property of which the
premises are a part, for or on account of any annoyance, inconvenience,
interference with business, or other damage, caused by: (i) any interruption,
malfunction or curtailment of the operation of the elevator service, heating
plant, sprinkler system, gas, water, sewer or steam supply, plumbing, machinery,
electric equipment or other appurtenances, facilities, equipment and
conveniences in the building, whether such interruption, malfunction or
curtailment be due to breakdowns, or repairs, or strikes or inability to obtain
electricity, fuel or water due to any such cause or any other cause beyond the
Landlord's control; (ii) any work of repair, alteration, renovation or
replacement done by or on behalf of the Landlord or any other tenant; (iii) any
water, rain, snow, steam, gas, electricity or other element, which may enter,
flow from or into the premises or any part of the building, or any noise or
vibration audible in, or transmitted to the premises; (iv) any vermin; (v) any
falling paint, plaster or cement; (vi) any interference with light or with other
easements or incorporeal hereditaments; (vii) any latent defect or deterioration
in the building or the appurtenances thereof, whether or not the Landlord shall
have been notified of any condition allegedly causing same; (viii) any zoning
ordinance or other acts of governmental or public authority now or hereafter in
force; and (ix) any act or omission of any other occupant of the building or
other person temporarily therein. The Tenant will not hold the Landlord liable
for any loss or theft of, or damage to, any property in the premises done or
caused by any employee, servant, or agent of the Landlord who is invited into
the premises by the Tenant, nor for the loss, damage or theft of any property
stored or left in the basement or in any other part of the building, which is
not enclosed within the premises or of any property, left with any employee of
the Landlord, notwithstanding such theft, loss or damage may occur through
carelessness or negligence of the Landlord's employees; and the Tenant agrees
that any employee in entering the premises at the invitation of the Tenant or
accepting custody of property shall be then deemed agent of the Tenant or other
person at whose instance he may be acting, and not agent of the Landlord.
Employees are not permitted to receive or accept packages or property for
account of Tenants. The use of storerooms or storage space for personal property
(if provided) shall be at the Tenant's risk and the Tenant will not hold the
Landlord liable for any loss of or damage to person or property therein or
thereby. Nothing in this lease contained shall impose any obligation upon the
Landlord with respect to any real property other than the building, whether said
other real property be owned by the Landlord or otherwise, or shall in any way
limit the Landlord's right to build upon or otherwise use said other real
property in such manner as the Landlord may see fit. The Tenant shall make no
claim upon the Landlord for abatement of rent, constructive eviction or
rescission, and the Landlord shall have no liability by reason of the Landlord's
failure to enforce the provisions of the lease to any other tenant against such
other tenant.
(b) Any right and authority reserved by and granted to the Landlord
under this lease, to enter upon and make repairs in the premises shall not be
taken as obligating the Landlord to inspect and to repair the premises and the
Landlord hereby assumes no responsibility or liability for the care, inspection,
maintenance, supervision, alteration or repair of the premises except as herein
specifically provided. The Tenant assumes possession and control of the premises
and exclusively the whole duty of care and repair thereof, except as herein
specifically provided, and the duty of care, if any, owed by the Tenant to the
persons on the sidewalks or in the corridors of the building.
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(c) The officers, directors, employees, partners, shareholders, and
principals, direct or indirect, comprising the Landlord (collectively, the
"Parties") shall not be liable for the performance of the Landlord's obligations
under this lease. The Tenant shall look solely to the Landlord to enforce the
Landlord's obligations under this lease and shall not seek any damages against
any of the Parties. The liability of the Landlord for the Landlord's obligations
under this lease shall be limited to Landlord's Equity in the building.
"Landlord's Equity" as used herein means the lesser of (i) the interest of the
Landlord in and to the building and (ii) the interest the Landlord would have in
the building if it were encumbered by an indebtedness held by a person not a
party to this lease in an amount equal to 75% of the then-current fair market
value of the building (as such value of such interest is determined in good
faith by the Landlord). The Tenant shall not look to any other property or
assets of the Landlord, other than Landlord's Equity, or the property or assets
of any of the Parties in seeking either to enforce the Landlord's obligations
under this lease or to satisfy a judgment for the Landlord's failure to perform
such obligations.
(d) The term "Landlord" as used in this lease, means only the owner for
the time being of the premises. If the Landlord shall hereafter sell, exchange
or lease the entire building or the land and building wherein the premises are
located, or, being the lessee thereof, shall assign its lease, the grantee,
lessee, or assignee thereof, as the case may be, shall, without further
agreement by any party, be conclusively deemed to be the Landlord of this lease
and to have assumed and undertaken to carry out all of the obligations hereof on
the part of the Landlord to be performed, and the Tenant does hereby release the
above-named Landlord from any claim or liability arising or accruing hereunder
subsequent to such transfer of ownership or possession, for breach of the
covenant of quiet enjoyment, or otherwise.
(e) If the lease provides that the Landlord's consent is not to be
unreasonably withheld or delayed, and it is the final order of any court having
jurisdiction thereof that the Landlord has been unreasonable, the only effect
shall be that the Landlord shall be deemed to have given such consent; but in no
event shall the Landlord be liable to the Tenant for any monetary damages by
reason of the withholding or delaying of its consent.
ARTICLE TWENTY-ONE
INDEMNITY BY TENANT
The Tenant hereby indemnifies and agrees forever to save harmless the
Landlord against any and all liabilities, penalties, claims, damages, expenses
(including, without limitation, attorneys' fees whether in a proceeding between
the Landlord and the Tenant or between the Landlord and any third party) or
judgments, arising from injury to person or property of any kind, to the extent
occasioned wholly or in part by the Tenant's failure to perform or abide by any
of the covenants of this lease or to the extent occasioned wholly or in part by
any negligent act or acts, omission or omissions of the Tenant, or of the
employees, customers, agents, assigns, invitees or licensees or under-tenants of
the Tenant, or based on any matter or thing occurring in the premises and
growing out of the Tenant's use or occupation of the premises or any part of the
building. Notwithstanding the foregoing, the Tenant shall not be obligated to
indemnify the Landlord from liability arising from the negligence or wilful
misconduct of the Landlord or the Landlord's agents, servants or employees in
the operation or management of the premises or the building. The Tenant shall
not do or permit any act or thing to be done upon the premises which may subject
the Landlord to any liability or responsibility for injury, damages to persons
or property or to any liability by reason of any violations of any requirements
of law with which the Tenant is obligated to comply under this lease, and the
Tenant shall exercise such control over the premises as to protect the Landlord
against any such liability. In case any claim, action or proceeding is made or
brought against the Landlord by reason of any such claim, the Landlord shall
give prompt written notice to the Tenant of such claim and the Tenant, upon
written notice from the Landlord, shall, at the Tenant's sole cost and expense,
resist or defend and control the defense and/or settlement of such action or
proceeding by counsel approved by the Landlord in writing, such approval not to
be unreasonably withheld or delayed. The Landlord agrees that counsel for the
Tenant's insurance carrier shall be deemed satisfactory. If the damages sought
by the party asserting such claim exceed the limits of the Tenant's insurance
coverage, or if the Landlord has separate material defenses which would conflict
with those of the Tenant, the Landlord shall be entitled to have its own counsel
participate with the Tenant's counsel in resisting or defending
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such action and the Tenant shall reimburse the Landlord for any reasonable cost
it incurs in connection therewith. The provisions of this Article TWENTY-ONE
shall survive the expiration or sooner termination of this Lease.
ARTICLE TWENTY-TWO
NOTICES
Any notice which is to be given by either party to the other pursuant
to this lease shall be in writing and shall be given as follows: (a) if such
notice is to be given by the Landlord to the Tenant, such notice may be given
personally by delivering the same to the Tenant, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Chief Financial Officer, or by registered or certified mail,
postage prepaid, return receipt requested, or by nationally recognized overnight
service providing evidence of delivery, addressed to the Tenant at such address,
or such other address as the Tenant shall hereafter designate in writing; (b) if
such notice is to be given by the Tenant to the Landlord, such notice shall be
given by registered or certified mail, postage prepaid, return receipt
requested, or by nationally recognized overnight service providing evidence of
delivery, addressed to the Landlord at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Director of Commercial Real Estate Leasing, or at such other
address as the Landlord shall hereafter designate in writing. Any notice shall
be deemed to have been given on the date when same shall have been delivered, in
the case of personal delivery, or two business days after the same shall have
been properly mailed in the case of certified or registered mail, or on the
first following business day if sent by overnight mail service. The attorneys
for either party shall have the right, but not the obligation, to send notices
on behalf of their respective clients. Notwithstanding the foregoing, all bills
may be sent directly to the Tenant by regular mail.
ARTICLE TWENTY-THREE
INSOLVENCY
(a) Each of the following shall be a "Bankruptcy Event" hereunder:
(1) if the Tenant shall generally not, or shall be unable to, or shall
admit its inability to, pay its debts as they become due; or
(2) if the Tenant shall make a general assignment for the benefit of
creditors; or
(3) if the Tenant shall commence or institute any case, proceeding or
other action (i) seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (ii) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of
its property; or
(4) if any case, proceeding or other action shall be commenced against
or instituted against the Tenant (i) seeking an order for relief
entered against the debtor or to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to
its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, or (ii) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, which in either case (x) results in
the entry of any order for relief, adjudication of bankruptcy or
insolvency, or such an appointment or the issuance or entry of any
other order having a similar effect or (y) remains undismissed for a
period of sixty (60) days; or
(5) if any case, proceeding or other action shall be commenced or
instituted against the Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of the Tenant's property which results in the entry of
an
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order for such relief which is not vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
(6) if the Tenant shall take shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in any of clauses (2) through (5) above; or
(7) if a trustee, receiver or other custodian is appointed for any
substantial part of the assets of the Tenant and such appointment is
not vacated or stayed within seven days.
(b) If at any time (i) the Tenant shall be comprised of two or more
people; or (ii) the Tenant's obligations under this lease have been guaranteed
by any party other than the Tenant, or (iii) the Tenant's interest in this lease
has been assigned, the word "Tenant" as used in this Article TWENTY- THREE shall
be deemed to mean any one or more of the persons primarily or secondarily liable
for the Tenant's obligations under this lease. Any moneys received by the
Landlord from or on behalf of the Tenant during the pendency of any Bankruptcy
Event shall be deemed paid as compensation for the use and occupation of the
premises and the acceptance of any such compensation by the Landlord shall not
be deemed an acceptance of rent or a waiver by the Landlord of any rights under
Articles TWENTY-THREE or TWENTY-FIVE.
(c) If a Bankruptcy Event occurs at any time after the execution and
delivery of this lease, whether such event occurs prior or subsequent to the
Commencement Date or the Tenant's entry into possession, such an event shall be
deemed an Event of Default and the Landlord shall have the right to terminate
this lease in the manner hereinafter provided. In the event of such termination,
the Tenant or any person claiming under, by or through the Tenant, by virtue of
any statute or of an order of any court, shall not be entitled to possession or
to remain in possession of the premises but shall forthwith quit and surrender
same. Exclusive of and in addition to any other rights or remedies the Landlord
may have through any other portion or provision of this lease or by virtue of
any rule of law or statute, said Landlord may keep and retain, as damages, any
rent, security, deposit or other moneys or consideration received by the
Landlord from the Tenant, or others on behalf of the Tenant. Also, in the event
of termination of this lease as aforesaid, the Landlord shall be entitled, as
and for liquidated damages, and not as a penalty, from the Tenant for breach of
the unexpired term of this lease, to a sum equal to the amount by which the rent
for the period of the unexpired portion of the lease term exceeds the then fair
and reasonable rental value for the same period, both discounted to present
value at four percent (4%). If at any time within a reasonable period following
the date of the termination of the lease, as aforesaid, the premises should be
re-rented by the Landlord, the rent realized by any re-letting shall be deemed
prima facie to be the rental value. In the event of the occurrence of any
Bankruptcy Event occasioned solely through the invocation by the Tenant or by
third parties of the laws of the State of New York, judicial or statutory, as
distinguished from the invocation of Federal laws relating to bankruptcy,
reorganization, or otherwise, the Landlord, in addition to the foregoing, may
accelerate the full amount of rent reserved for the remainder of the lease, and
the same shall forthwith become due and payable to the Landlord. Nothing herein
provided shall be deemed to prevent or restrict the Landlord from proving and
receiving as damages herein the maximum permitted by any rule of law or statute
prevailing when such damages are to be proved, whether they be greater or less
than those referred to above.
ARTICLE TWENTY-FOUR
REMEDIES OF THE LANDLORD
ON DEFAULT IN PERFORMANCE BY THE TENANT
(a) If the Tenant shall default in the full and due performance of any
covenant of this lease, the Landlord shall have the right, upon ten business
days' notice to the Tenant (except in an emergency or unless a shorter period of
notice or provision for the performance of such work without notice is elsewhere
established), to perform the same for the account of the Tenant, and in such
event all xxxxxxx employed by the Landlord shall be deemed the agents of the
Tenant, and any reasonable payment made, and expense incurred, by the Landlord
in this connection, shall forthwith become due and payable by the Tenant to the
Landlord. If the Landlord is compelled to incur any expenses or incur any
obligation for the payment of money, including, without limitation, reasonable
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attorneys' fees in instituting, prosecuting or defending any action or
proceeding instituted by the Tenant or any third party by reason of any Event of
Default hereunder, the sum or sums so paid by the Landlord with all interest,
costs and damages, shall be deemed immediately due to the Landlord upon demand
as additional rent. Any and all sums payable by the Tenant to the Landlord shall
bear interest at the lesser of (x) one and one-half per cent (1 1/2%) per month
or (y) the maximum rate permitted by applicable law from the due date to the
date of actual payment, and any and all such sums (except the fixed rent
hereinabove expressly reserved) shall be deemed to be additional rent for the
period prior to such due date, and the Landlord shall have the same remedies for
default in the payment of such additional rent as for default in the payment of
the rent expressly reserved. If the Tenant's term shall have expired at the time
of the making of such expenditures or incurring such obligations, such sums
shall be recoverable by the Landlord as damages.
(b) In the event that under the provisions of this lease the Landlord
shall have the privilege of performing any covenant in respect of which the
Tenant may be in default and of recovering the expenses so involved from the
Tenant as additional rent or otherwise, such remedy shall not be the exclusive
remedy of the Landlord but the Landlord may, at its option, treat such default
as a breach of substantial obligation of this lease and shall have all the other
remedies in respect thereof provided in this or any other Article of this lease.
ARTICLE TWENTY-FIVE
DEFAULT
(a) Each of the following events shall be an "Event of Default"
hereunder:
(1) if the Tenant shall default in the payment when due of any
installment of fixed rent or any item of additional rent when same
shall be due and such default shall continue for a period of three
business days after notice from the Landlord; provided, however, that
the Tenant shall be entitled to receive from the Landlord no more than
two (2) notices in any twelve (12) month period of its failure to pay
rent; or
(2) if the Tenant shall default in the observance or performance of any
term, covenant or condition of any other lease with the Landlord or the
Landlord's predecessor in interest beyond the expiration of any grace
period set forth in such other lease; or
(3) if the premises shall be abandoned; or
(4) if a Bankruptcy Event shall occur; or
(5) Intentionally omitted.
(6) if the Tenant's interest or any portion thereof in this lease shall
devolve upon or pass to any person, whether by operation of law or
otherwise, except as expressly permitted by Article SEVENTEEN hereof;
or
(7) if the lease is assigned, or all or part of the premises are sublet
to a Related Entity and such Related Entity shall no longer (x)
control, (y) be under the control of, or (z) be under common control
with the Tenant (except for a permitted successor by merger,
consolidation or purchase as may be permitted by Article SEVENTEEN); or
(8) if the Tenant's obligations under this lease have been guaranteed
by any party and if the guarantor shall default in the observance or
performance of any of the terms of the guaranty or if the guarantor
shall repudiate the guaranty, or if the guaranty shall terminate or be
terminated for any reason without the prior written consent of the
Landlord or in accordance with the terms thereof, provided, however,
that such default, repudiation or termination shall not be an Event of
Default if the Tenant shall cure the condition giving rise to such
default on or before the expiration of the applicable grace period, and
delivers to the Landlord a certified check equal to the amount of the
security deposit then required in accordance with
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the terms of this lease, such amount to be held and applied by the
Landlord in accordance with the provisions of Article TWENTY-NINE; or
(9) if the Tenant shall default in the observance or performance of any
other term, covenant or condition of this lease and the Tenant shall
fail to remedy such default within ten (10) days after notice from the
Landlord to the Tenant of such default, except that if the default is
of such a nature that it cannot with due diligence by remedied within
such ten-day period, the Tenant shall not be in default if the Tenant
shall commence within said ten-day period and thereafter diligently
proceed to complete all steps necessary to remedy such default, and
further, so long as the extension of such cure period shall not (i)
subject the Landlord or any superior lessor or mortgagee to prosecution
for a crime or any other fine or charge, (ii) subject the premises, the
building or the land upon which the building is located to being
condemned or vacated, (iii) subject the land or the building to any
lien or encumbrance, or (iv) result in the termination of any superior
lease or mortgage.
(b) If an Event of Default shall occur, the Landlord may, at any time
thereafter and at its option, give the Tenant ten (10) days written notice of
its intention to terminate this lease, and in such event, on the tenth day
following the giving of such notice, this lease and the term and all rights of
the Tenant under this lease shall expire and terminate as if that were the
Expiration Date and the Tenant shall immediately quit and surrender the
premises, but the Tenant shall nonetheless be liable for all of its obligations
hereunder, as provided for in Article TWENTY-SIX.
(c) Notwithstanding the foregoing, if such termination is stayed by
order of any court having jurisdiction over any proceeding which constitutes a
Bankruptcy Event, or by federal or state statute, then, following the expiration
of any such stay, or if the trustee appointed in any such proceeding, the Tenant
or the Tenant as debtor-in-possession shall fail to assume the Tenant's
obligations under this lease within the period provided therefor by law or
within one hundred twenty (120) days after entry of the order for relief or as
may be allowed by the court, or if the trustee, the Tenant or the Tenant as
debtor-in-possession shall fail to provide adequate assurance of the complete
and continuous future performance of the Tenant's obligations under this lease
as provided in Article SEVENTEEN (o), the Landlord, to the extent permitted by
law or by leave of the court having jurisdiction over the proceeding
constituting the Bankruptcy Event, shall have the right, as its election, to
terminate this lease on five (5) days' notice to the Tenant, the Tenant as
debtor-in-possession or said trustee and upon the expiration of said five (5)
day period this lease shall cease and expire as aforesaid the Tenant, the Tenant
as debtor-in-possession or said trustee shall immediately quit and surrender the
premises as aforesaid.
(d) If an Event of Default described in clause (a)(1) shall occur, or
if this lease shall be terminated in accordance with the provisions of clauses
(b) and (c) above, the Landlord, without notice, may reenter and repossess the
premises, without being liable to indictment, prosecution or damages therefor
and may dispossess the Tenant by summary proceedings or otherwise.
(e) If an Event of Default shall occur prior to the date fixed as the
commencement of any renewal or extension of this lease, the Landlord may cancel
and terminate such right of renewal or extension by written notice to the
Tenant.
ARTICLE TWENTY-SIX
REMEDIES AND DAMAGES
(a) If an Event of Default shall occur and if this lease shall be
terminated as provided in Article TWENTY-FIVE:
(i) The Landlord and its agents may immediately, or at any time
thereafter, re-enter the premises and remove all persons and property
therefrom, either by summary dispossess proceedings, or by any suitable
action or proceeding at law, without being liable to indictment,
prosecution or damages therefor, and repossess and enjoy the premises,
together with all additions, alterations, installations and
improvements, and no entry by the Landlord shall be deemed an
acceptance of surrender.
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(ii) The Landlord may, at its option, re-let the premises in whole or
in part, for such term or terms and for such rentals and upon such
other conditions, which may include concessions and free rent periods
as the Landlord, in its sole discretion, determine, even though the
same may extend beyond the Expiration Date. The Landlord shall have no
liability to the Tenant to re-let the premises and the failure or
refusal of the Landlord to re-let the premises or any part thereof, or
if the premises are re-let, the failure of the Landlord to collect the
rent under such re-letting, shall not relieve the Tenant of any
liability under this lease. The Landlord may, at its option, make such
repairs, replacements, alterations, additions, improvements and other
physical changes in and to the premises as the Landlord, in its sole
discretion, considers advisable or necessary in connection with any
such re-letting. Any such re-letting shall, as the Landlord's option,
be either for the Landlord's own account, or as the agent for the
Tenant.
(b) The Tenant, on its behalf and on behalf of all persons claiming
through or under the Tenant, including all creditors, hereby expressly waives
(i) any and all right to regain possession of the premises or to reinstate or
redeem this lease under any present or future law; (ii) the service of any
notice demanding rent except as expressly provided herein, or stating an
intention to re-enter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law; and (iii) any
and all rights of redemption and all other rights to regain possession or to
reinstate this lease, after (x) the Tenant shall have been dispossessed by a
judgment or by warrant of any court or judge, or (y) any re-entry by the
Landlord, or (z) any expiration or termination of this lease, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this lease. Except as otherwise provided by law,
the Tenant waives and will waive all right to trial by jury in any summary
proceedings and in any other proceeding or action at law hereafter instituted by
the Landlord against the Tenant in respect of this lease, and also in any action
or proceeding between the parties hereto for any cause; and it is hereby agreed,
that in any of such events, the matter in dispute shall be tried before a judge
without a jury. In the event the Landlord shall commence any action or summary
proceeding for non-payment of rent, or other breach of any of the terms,
covenants or conditions of this lease, the Tenant agrees not to interpose any
counterclaim of whatever nature or description in any such action or proceeding,
except for mandatory counterclaims, if any. The words "re-enter" and "re-entry"
as used in this lease are not restricted to their technical legal meaning. In
the event of a breach or threatened breach by the Tenant, or anyone claiming by,
through or under the Tenant, of any of the covenants or provisions hereof, the
Landlord shall have the right to obtain an injunction and the right to invoke
any remedy allowed at law or in equity as if re-entry, summary proceedings and
other remedies were not herein provided for. The remedies set forth herein are
cumulative and the mention in this lease of any remedy shall not preclude the
Landlord from exercising any other remedy allowed at law or in equity.
(c) If this lease and the term shall expire as provided in Article
TWENTY-FIVE, or by or under any summary proceeding or any other action or
proceeding by the Landlord against the Tenant or any person claiming by, through
or under the Tenant, or if the Landlord shall re-enter the premises as provided
in paragraph (a) above, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(i) The Tenant shall pay to the Landlord all fixed rent and additional
rent and other charges payable under this lease by the Tenant to the
Landlord to the date upon which this lease and the term shall have
expired or has been terminated by the Landlord;
(ii) The Tenant shall also be liable for and shall pay to the Landlord,
as liquidated damages, any deficiency (the "Deficiency") between the
fixed rent and additional rent reserved in this lease for the period
which would have constituted the unexpired portion of the term
(including any renewal term exercised by the Tenant prior to the
termination of this lease or re-entry by the Landlord, and in such case
the additional rent for the renewal term shall be assumed to be the
same as was payable for the year immediately preceding such termination
or re-entry) and the net amount, if any, actually received by the
Landlord from any re-letting of the premises pursuant to paragraph
(a)(ii) above. The Landlord shall be entitled to deduct from the
rentals actually collected under any re-letting all of the reasonable
expenses which Landlord incurred by reason of the Tenant's default and
in connection with such re-entry and re-letting, including, but not
limited to, all repossession costs, legal expenses, brokerage
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commissions, attorneys' fees, court costs and disbursements, the cost
of repairs, re-decoration and alterations in preparing the premises for
re-letting, and the amount of rent concessions and work allowances and
the like granted in connection with such re-letting. The Deficiency
shall be paid in monthly installments by the Tenant on the days
specified in this lease for payment of installments of fixed rent, and
the Tenant shall not be entitled to withhold any such payment until the
Expiration Date set forth in this Lease. The Landlord shall be entitled
to recover from the Tenant each monthly Deficiency as the same arises,
and no suit to collect the amount of the Deficiency for any month shall
prejudice the Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding.
(iii) Whether or not the Landlord shall have collected any monthly
Deficiency, the Landlord shall be entitled to recover from the Tenant,
and the Tenant shall pay to the Landlord on demand, in lieu of any
further Deficiency as and for liquidated and agreed final damages, and
not as a penalty, a sum equal to the amount by which the rent for the
period of the unexpired portion of the lease term (commencing on the
date immediately succeeding the last day with respect to which a
Deficiency payment, if any, was collected) exceeds the then fair and
reasonable rental value of the premises for the same period, both
discounted to present value at four percent (4%). If, before
presentation of proof of such liquidated damages to any court, the
premises, or any part thereof, shall have been relet by the Landlord
for the period which would have constituted the unexpired portion of
the term, or any part thereof, the amount of rent reserved upon such
reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the premises so relet.
(d) The liability of the Tenant shall survive the issuance of a final
order and warrant of dispossess, and re-entry by the Landlord, and any other
termination of this lease as a result of an Event of Default, and the granting
by the Landlord of a new lease upon the premises to another tenant, and the
Tenant hereby waives any defense which might be predicated upon any of said acts
or events. If the premises are re-let together with any other space in the
building, the rental collected and the expenses incurred in connection with such
re-letting shall be apportioned as reasonably determined by the Landlord. In no
event shall the Tenant be entitled to receive any rents collected or payable
under any re-letting, whether or not such rents exceed the fixed rent reserved
under this lease. Nothing contained in Articles TWENTY-FIVE or TWENTY-SIX shall
be deemed to limit or preclude the recovery by the Landlord from the Tenant of
the maximum amount allowed to be obtained as damages by any statute or rule of
law, or of any sums or damages to which the Landlord may be entitled in addition
to the damages set forth in paragraph (c) above.
ARTICLE TWENTY-SEVEN
SURRENDER AT EXPIRATION
Upon the expiration or any termination of the term of this lease, the
Tenant shall quit and surrender the premises, together with any fixtures,
equipment or appurtenances installed in the premises at the commencement of this
lease, and any alterations, decorations, additions and improvements which are
not to be removed in compliance with the provisions of Article FOUR hereof, to
the Landlord, in good order and condition, ordinary wear excepted. The Tenant
shall remove all its furnishings, trade fixtures, stock in trade and like
personal property in accord with the requirements of Article FOUR, so as to
leave the premises broom-clean and in an orderly condition. If the last day of
the term of this lease falls on Saturday or Sunday, this lease shall expire on
the business day immediately preceding. The Tenant's obligation to observe and
perform this covenant shall survive the expiration or other termination of the
term of this lease. The Tenant expressly waives, for itself and for any person
claiming by, through or under the Tenant, any rights which the Tenant or any
such person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules or any law of like import then in force in connection
with any holdover summary proceedings that the Landlord may institute to enforce
the provisions of this Article. The Tenant acknowledges that possession of the
premises must be surrendered to the Landlord on the Expiration Date. The parties
recognize that the damage to the Landlord resulting from any failure by the
Tenant to timely surrender possession of the premises will be substantial, will
exceed the amount of the monthly installments of the fixed rent and additional
rent payable hereunder and will be impossible to accurately measure. The Tenant
agrees that if possession of the premises is not
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delivered to the Landlord on the Expiration Date (or any sooner termination
date), in addition to any other rights or remedies the Landlord may have
hereunder or in equity or at law, and without in any manner limiting the
Landlord's right to demonstrate and collect any damages suffered by the
Landlord, the Tenant shall pay to the Landlord on account of use and occupancy
of the premises for each month and for each portion of any month during which
the Tenant holds over in the premises after the Expiration Date, a sum equal to
one and one-half (1 1/2) times the aggregate of the fixed rent and additional
rent which was payable under this lease during the last month of the term. In
addition, and without in any manner limiting the Landlord's right to demonstrate
and collect any damages suffered by the Landlord and arising from the Tenant's
failure to surrender the premises as provided herein, the Tenant shall indemnify
and hold the Landlord harmless from and against all cost, liability, damages and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) resulting from delay by the Tenant in so surrendering the
premises, including, without limitation, any claims made by any succeeding or
prospective tenant as a result of such delay. Nothing herein contained shall be
deemed to permit the Tenant to retain possession of the premises after the
Expiration Date (or sooner termination) of this lease or to limit in any manner
the Landlord's right to regain possession of the premises through summary
proceedings, or otherwise, and no acceptance by the Landlord of payments from
the Tenant after the Expiration Date shall be deemed to be other than on account
of the amount to be paid by the Tenant in accordance with the provisions of this
Article. The provisions of this Article shall survive the expiration of the term
of this lease.
ARTICLE TWENTY-EIGHT
QUIET ENJOYMENT
The Landlord covenants that, if the Tenant shall duly keep and perform
all the terms and conditions hereof, the Tenant shall peaceably and quietly
have, hold and enjoy the premises for the term aforesaid, free from interference
from the Landlord or anyone claiming by, through or under the Landlord, subject
however to ground leases, underlying leases and mortgages as hereinbefore
described, and to the lien, rights and estate by virtue of unpaid taxes of any
government having jurisdiction of the premises of which the herein premises are
a part.
ARTICLE TWENTY-NINE
SECURITY DEPOSIT
(a) The Tenant has deposited with the Landlord the sum of Two Hundred
Twenty Five Thousand Five Hundred Eighty Five and 00/100 Dollars ($225,585.00)
to secure the faithful performance by the Tenant of all the terms, conditions,
covenants and agreements of this lease, and to make good to the Landlord any
damage which it may sustain by reason of any act or omission of the Tenant. The
Landlord shall segregate the said security deposit as a trust fund not to be
mingled with other funds of the Landlord, and if, during the term of this lease,
the Landlord shall sell, exchange or lease the entire building, subject to this
lease, or, being the lessee thereof, shall assign its lease, the Landlord shall
have the right to pay or transfer the said deposit to such grantee, lessee, or
assignee, as the case may be, and, in upon the transfer of the security to the
grantee, lessee or assignee and the assumption by such party of the Landlord's
obligations hereunder (a copy of which shall be delivered to the Tenant), the
Landlord shall be released from all responsibility and liability in connection
therewith, and the Tenant will look solely to said grantee, lessee, or assignee
for its return. If the aforesaid security deposit shall be deposited with a bank
or trust company, savings bank or savings and loan association, the Landlord
shall advise the Tenant of the name and address thereof. The Tenant shall not be
entitled to the payment of any interest on the aforesaid security deposit unless
earned and any interest earned upon such deposit less the amount equal to 1% of
the deposit, to which the Landlord shall be entitled as administration expense
shall be added to the amount of the deposit. The Tenant's interest in said
deposit shall not be assigned or encumbered without the written consent of the
Landlord and neither the Landlord nor its successors or assigns shall be bound
by any such attempted assignment or attempted encumbrance, and within sixty (60)
days after the expiration of the term, the amount of said deposit shall be
repaid to the Tenant, less any proper charges against the same, as hereinabove
or hereinafter provided. If the Tenant shall at any time be in default with
respect to any payment of rent or of additional rent or of any other payment due
from the Tenant to the Landlord under this lease, or if the Landlord shall be
damaged by any act or omission of the Tenant the Landlord may, at its option and
after notice to the Tenant, apply such portion of said
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deposit as may be adequate to cure such default or to make good such damage,
including, but not by way of limitation, interest, costs, fees and other
expenses, paid or incurred by the Landlord, and thereafter such portion so
applied shall be free from any claim by the Tenant for its return. If the
Landlord shall re-enter, pursuant to the provisions of this lease (other than in
the event of insolvency in which event the provisions of Article TWENTY-THREE of
the lease shall apply), and shall re-let the premises for its own account, the
entire said deposit shall immediately be and become the absolute property of the
Landlord, as fixed, liquidated and agreed damages, and not as a penalty, it
being impossible in such event to ascertain the exact amount of the damage which
the Landlord may thus sustain, but unless the Landlord shall so re-let the
premises for its own account, the Landlord shall continue to hold the said
deposit, as security for the performance of the Tenant's obligations, until the
date herein expressly fixed for the expiration of the term, and apply the same
from time to time to the unpaid obligations of the Tenant, under the same terms
and conditions as if the said lease were still in full force and effect. No
termination of this lease or re-entry by the Landlord for default of the Tenant
shall entitle the Tenant to the return of any part of said deposit, nor shall
the retention of such deposit, after such re-entry, impair or otherwise affect
the Tenant's liability to the Landlord during the balance of the term originally
provided for. If, at any time, the said deposit shall be diminished, by reason
of the Landlord's having applied any part thereof in accordance with the
provisions of this paragraph, the Tenant shall pay over to the Landlord upon
demand, the equivalent of such decrease, to be added to said deposit and to be
held and applied in accordance with the provisions of this paragraph. Upon the
Landlord's receipt of the twelfth monthly installment of fixed rent payable
hereunder (the "12 Month Rent Period"), and upon each subsequent 12 Month Rent
Period, and further provided that, as of any such date, no Event of Default is
then outstanding under the lease, the amount of the security deposit to be held
by the Landlord pursuant to this Article shall be reduced to the amount
indicated:
12 Month Rent Period Amount of Security Deposit
-------------------- --------------------------
1st 12 Month Rent Period $200,020.00
2nd 12 Month Rent Period $174,955.00
3rd 12 Month Rent Period $150,390.00
(b) In lieu of delivering cash as the security deposit, the Tenant may
deliver to the Landlord an unconditional, irrevocable and transferable letter of
credit (such letter of credit or any extension or replacement thereof, being
hereinafter referred to as the "L/C") issued for the account of the Landlord by
a New York Clearing House bank acceptable to the Landlord, in substance
satisfactory to the Landlord, which L/C is to be held by Landlord in accordance
with the terms of this Article TWENTY-NINE. The L/C shall designate an address
in New York City for presentment. The L/C shall permit the Landlord or its duly
authorized representative (1) to draw thereon up to the full amount of the
credit evidenced thereby upon presentation of the L/C and a sight draft in the
amount to be drawn, together with the Landlord's written statement that it is
entitled to draw thereon pursuant to the terms of the lease, and (2) to draw the
full amount thereof to be held as cash security pursuant to this Article if the
Landlord receives notice from the bank or the Tenant that (x) the L/C is not
being renewed, or (y) that the L/C may no longer be presented for payment in New
York City, and, in either case, the Tenant has not delivered to the Landlord a
replacement cash security deposit or L/C which is presentable in New York City
by thirty (30) days prior to the expiration date of the L/C, or the date when
presentment may no longer be made in New York City, as the case may be. The L/C
shall provide that the bank shall give the Landlord at least 60 days prior
written notice (by means of receipted delivery) that the L/C is not being
renewed or that the place of presentment is being changed from the address set
forth in the L/C. The term of the L/C, as same may be extended, shall not expire
prior to the date which is sixty (60) days after the Expiration Date (or sixty
days after any subsequent date through which the term of this lease may be
extended). The L/C shall be fully transferable by the Landlord and its
successors and assigns without charge to the Landlord. If the Landlord presents
the L/C for payment, the amount of the L/C shall become the Deposit hereunder
and shall be held, applied and returned by the Landlord in accordance with the
terms provided by the lease for the holding, application and return of the
Deposit.
ARTICLE THIRTY
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REAL ESTATE TAX AND CPI ESCALATION
(a) REAL ESTATE TAX AND CPI ESCALATION. In order to adjust, during the
term of this lease, for increases (i) in the expenses of the Landlord for Real
Estate Taxes, the Tenant shall pay to the Landlord, as additional rent, Tenant's
Proportionate Share of any increases in such Real Estate Taxes, and (ii) in
operating expenses incurred by the Landlord, the Tenant shall pay to the
Landlord, as additional rent, the amount by which the Base Rent is increased by
reason of increases in the Index over the Base Index, both computed in the
manner set forth in this Article.
(b) DEFINITIONS. As used in this Article, the following capitalized
words or expressions shall have the meanings ascribed to them below:
1. "REAL ESTATE TAXES" shall mean the aggregate amount of real estate
taxes and any general or special assessments (exclusive of interest and
penalties thereon) imposed upon the building and the land upon which it is
located (collectively, the "Property"), by Federal, State or local government,
including, without limitation, (i) assessments made upon or with respect to any
"air" or "development" rights now or hereafter affecting the Property, (ii) any
fee, tax or charge imposed by any governmental authority for any vaults or vault
space within or outside the boundaries of the Property, (iii) any expenditures
for fees and expenses incurred by the Landlord in connection with any action or
proceeding to reduce the assessed valuation of the Property, and (iv) any taxes
or assessments levied after the date of this lease in whole or in part for
public benefits to the Property, including, without limitation, any Business
Improvement District taxes and assessments; without taking into account any
discount that the Landlord may receive by virtue of any early payment of Real
Estate Taxes. If because of any change in the taxation of real estate, any other
tax or assessment, however denominated (including, without limitation, any
franchise, income, profit, sales, use, occupancy, gross receipts or rental tax)
is imposed upon the Landlord or owner of the Property, or the occupancy, rents
or income therefrom, in substitution for any of the foregoing Real Estate Taxes,
such other tax or assessment shall be deemed part of Real Estate Taxes computed
as if the Landlord's sole asset were the Property. Anything to the contrary
notwithstanding, Real Estate Taxes shall not include (w) any taxes on the
Landlord's income, (x) franchise taxes, (y) estate or inheritance taxes or (z)
any similar taxes, imposed on the Landlord, unless such taxes are levied,
assessed or imposed in lieu of or as a substitute for the whole or any part of
the taxes, assessments, levies or impositions which now constitute Real Estate
Taxes. (If separate tax bills are received for each of 160 and 000 Xxxxxx
Xxxxxx, the term "Real Estate Taxes" shall mean the expenditures for both
buildings, and at such time as one xxxx is rendered for the combined building,
shall mean the expenditures for the combined building.)
2. "BASE RENT" shall mean an amount equal to the then applicable fixed
rent set forth in Article One of the lease.
3. "BASE YEAR" shall mean the New York City fiscal year commencing July
1, 2000 and ending June 30, 2001.
4. "BASE TAXES" shall mean the Real Estate Taxes payable during the
Base Year.
5. "TAX YEAR" shall mean the twelve month period following the Base
Year and each succeeding twelve month period thereafter, any portion of which
occurs during the term of this lease.
6. "TAX STATEMENT" shall mean a statement setting forth a comparison of
the Real Estate Taxes for a Tax Year with the Base Taxes.
7. "TENANT'S PROPORTIONATE SHARE" shall mean .0411.
8. "INDEX" shall mean the "Consumer Price Index for All Urban Consumers
(1982/84=100)" specified for "All Items," relating to New York, N.Y. -- Northern
N.J. Area, published by the Bureau of Labor Statistics of the United States
Department of Labor, or any successor index thereto, appropriately adjusted. In
the event the Index shall hereafter be converted to a different standard
reference base or otherwise revised, the determination of the CPI Adjustment
shall be made on the
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basis of such conversion factor, formula or table for converting the Index as
may be published by the Bureau of Labor Statistics, or, if said Bureau shall not
publish the same, then with the use of such conversion factor, formula or table
as may be published by Xxxxxxxx-Xxxx, Inc., or failing such publication, by any
other nationally recognized publisher of similar statistical information. In the
event either Index shall cease to be published, and there is no successor
thereto, then, for the purposes of this Article, there shall be substituted for
the Index such other index as the Landlord and Tenant shall reasonably agree
upon, and, if they are unable to agree within ninety (90) days after the Index
ceases to be published, such matter shall be determined in New York City by
arbitration in accordance with the Rules of the American Arbitration
Association, for the sole purpose of determining the appropriate index and any
appropriate conversion factor.
9. "BASE INDEX" shall mean the Index as last published prior to the
Commencement Date.
10. "COMPUTATION DATE" shall mean the first anniversary of the
Commencement Date and the anniversary of such date in each succeeding calendar
year, any portion of which occurs during the term of this lease.
11. "COMPARISON YEAR" shall mean the twelve month period commencing
with the initial Computation Date and each succeeding twelve month period
thereafter.
12. "CPI ADJUSTMENT" shall mean the amount obtained by multiplying the
Base Rent by the percentage by which the Index as published as of the date
immediately preceding the Computation Date in each Comparison Year exceeds the
Base Index, provided, however, that if the percentage increase in the Index
during any Comparison Year is less than 2.5%, then in calculating the CPI
Adjustment with respect to such Comparison Year (whether in such Comparison Year
or in a subsequent Comparison Year), the percentage increase for such Comparison
Year shall be deemed to have been 2.5%.
(c) REAL ESTATE TAXES. (1) If the Real Estate Taxes for any Tax Year
exceed the Base Taxes, the Tenant shall pay, as additional rent, an amount equal
to Tenant's Proportionate Share of such increase (the "Tax Payment"), which
amount shall be payable as hereinafter set forth.
(2) At any time during or after the term, the Landlord may render to
the Tenant a Tax Statement showing the amount of the Tax Payment due from the
Tenant. On the first day of the month following the delivery of a Tax Statement
to the Tenant, the Tenant shall pay to the Landlord a sum equal to one-twelfth
(1/12th) of the Tax Payment shown to be due for such Tax Year multiplied by the
number of months (and any fraction thereof) of the term of the lease then
elapsed since the commencement of such Tax Year. The Tenant shall continue to
pay to the Landlord a sum equal to one-twelfth (1/12th) of the Tax Payment shown
on such Tax Statement on the first day of each succeeding month until the first
day of the month following the month in which the Landlord delivers a new Tax
Statement to the Tenant. Promptly after delivery of a Tax Statement to the
Tenant, the Landlord shall give notice to the Tenant stating whether the amount
previously paid by the Tenant to the Landlord for the current Tax Year was
greater or less than the installments of the Tax Payment to be paid for the
current Tax Year in accordance with the Tax Statement. If there was a
deficiency, the Tenant shall pay the amount of such deficiency as additional
rent in accordance with the provisions of Article One hereof. If there shall
have been an overpayment, the Landlord shall credit the amount thereof against
the next monthly installments of rent payable. Tax Payments shall be collectible
by the Landlord in the same manner as fixed rent. The Landlord's failure to
render a Tax Statement shall not prejudice the Landlord's right to render a Tax
Statement during or with respect to any subsequent Tax Year, and shall not
eliminate or reduce the Tenant's obligation to make a Tax Payment for such Tax
Year.
(d) CPI ESCALATION. (1) At any time during or after each Comparison
Year, the Landlord may render a statement to the Tenant showing the amount of
the CPI Adjustment due from the Tenant for such Comparison Year (the "CPI
Statement"), which amount shall be payable as hereinafter set forth.
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(2) On the first day of the month following the delivery of a CPI
Statement to the Tenant, the Tenant shall pay to the Landlord a sum equal to
one-twelfth (1/12th) of the CPI Adjustment shown to be due for such Comparison
Year multiplied by the number of months (and any fraction thereof) of the term
of the lease then elapsed since the commencement of such Comparison Year. The
Tenant shall continue to pay to the Landlord a sum equal to one-twelfth (1/12th)
of the CPI Adjustment shown on such CPI Statement on the first day of each
succeeding month until the first day of the month following the month in which
the Landlord delivers a new CPI Statement to the Tenant. Promptly after delivery
of a CPI Statement to the Tenant, the Landlord shall give notice to the Tenant
stating whether the amount previously paid by the Tenant to the Landlord for
such Comparison Year was greater or less than the installments of the CPI
Adjustment paid by the Tenant for such Comparison Year. If there was a
deficiency, the Tenant shall pay the amount of such deficiency as additional
rent in accordance with the provisions of Article One hereof. The CPI Adjustment
shall be collectible by the Landlord in the same manner as fixed rent. The
Landlord's failure to render a CPI Statement shall not prejudice the Landlord's
right to render a CPI Statement during or with respect to any subsequent
Comparison Year, and shall not eliminate or reduce the Tenant's obligation to
pay the CPI Adjustment for such Comparison Year. For illustration purposes only,
assume a Base Rent of $10,000 and a Base Index of 100. If the Computation Date
is March 1, 1999, and the Index as of the date immediately preceding the
Computation Date is 115, the CPI Adjustment for the Comparison Year commencing
March 1, 1999 and ending February 29, 2000 is $1,500, payable in equal monthly
installments of $125 ($10,000 times the percentage increase in the Index as of
the Computation Date, 115, over the Base Index of 100). The Tenant would
continue to pay the $125 monthly payment until the next CPI Statement is
rendered. If the CPI Statement for the Comparison Year commencing March 1, 2000
and ending February 28, 2001 is rendered in June, 2000, and shows a monthly CPI
Adjustment payment of $150 for that Comparison Year, the Tenant shall pay a
monthly payment of $150 for June, 2000, together with a deficiency payment of
$45 (3 months times the $25 monthly deficiency), and thereafter shall pay the
monthly CPI Adjustment payment of $150 until a new CPI Statement is rendered.
(e) STATEMENTS. Every Tax Statement and CPI Statement furnished by the
Landlord pursuant to this Article shall be conclusive and binding upon the
Tenant unless within ninety days following the receipt of the Statement in
question, the Tenant shall notify the Landlord that it disputes the correctness
thereof, specifying the particular respects in which the Statement is claimed to
be incorrect. If such dispute shall not have been settled by agreement within
one hundred fifty days after receipt of the disputed Statement, the dispute
shall be submitted to arbitration in New York City in accordance with the rules
then obtaining of the American Arbitration Association. Each party shall bear
its own costs in connection with such arbitration. Pending the determination of
such dispute by agreement or arbitration as aforesaid, the Tenant shall pay the
additional rent in accordance with the disputed Tax Statement or CPI Statement,
as the case may be. If the dispute shall be settled in the Tenant's favor, the
Landlord shall, at its option, promptly refund to the Tenant the amount of the
Tenant's overpayment, or credit the amount of such overpayment against the
installments of fixed and additional rent next becoming due and payable under
this lease.
(f) INSPECTION OF BOOKS. If the Tenant timely notifies the Landlord
that it disputes the correctness of a Tax Statement, the Landlord, upon written
request of the Tenant, shall provide the Tenant and/or the Tenant's independent
certified accountants, reasonable access to review the Landlord's books and
records applicable to the building for the Tax Year in question, solely for the
purpose of verifying the information contained in the Tax Statement. Such
examination shall be made during the Landlord's regular business hours at the
office of the Landlord. The Tenant recognizes the confidential nature of such
records and agrees to maintain the information obtained from such examination in
strict confidence.
(g) DECREASES IN REAL ESTATE TAXES OR INDEX. In no event shall any
decrease in the Real Estate Taxes or the Index in any way reduce the fixed rent
or additional rent payable by the Tenant under this lease, except to the extent
to which any such decrease shall result in a decrease in the additional rent
payable pursuant to this Article; provided, however, that no decrease in Real
Estate Taxes shall in any way reduce the additional rent payable on account of
the CPI Adjustment, and that no decrease in the amount of the CPI Adjustment
shall in any way reduce any additional rent payable on account of any increase
in Real Estate Taxes. The foregoing shall not be deemed to relinquish the
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Tenant's right to receive the Tenant's Proportionate Share of any refund of Real
Estate Taxes actually received by the Landlord for any Tax Year subsequent to
the payment of Real Estate Taxes by the Tenant for such Tax Year, after
deducting all reasonable costs and expenses incurred by the Landlord in
obtaining such refund (except to the extent such cost and expenses were already
included in the Real Estate Taxes). Any such refund shall be applied against the
installments of fixed or additional rent next becoming due under the lease, or,
if the term of the lease has expired, shall be paid to the Tenant. If at any
time after a Tax Statement is sent to the Tenant, the Base Taxes are reduced,
then the Base Taxes shall be retroactively adjusted to reflect such reduction
and all retroactive Tax Payments resulting from such adjustment shall be due and
payable within five days after a revised Tax Statement is sent by the Landlord.
The Landlord shall promptly send to the Tenant a statement setting forth the
basis for such retroactive adjustment and Tax Payments.
(h) EXPIRATION OR TERMINATION OF LEASE. The expiration or termination
of this lease during any Tax Year or Comparison Year shall not affect the rights
or obligations of the parties hereto respecting any payments of Tax Payments for
such Tax Year and any payments for CPI Adjustment for such Comparison Year. Any
Tax Statement relating to such Tax Year and any CPI Statement relating to such
Comparison Year may be sent to the Tenant subsequent to, and all such rights and
obligations shall survive, any such expiration or termination. In determining
the amount of the Tax Payment for the Tax Year or the CPI Adjustment for the
Comparison Year in which the term of the lease shall expire, the payment of the
relevant escalation shall be prorated based on the number of days of the term
which fall within such Tax Year or Comparison Year, as the case may be. Any
payments due under such Tax Statement or CPI Statement shall be payable within
ten (10) business days after such Tax Statement or CPI Statement, as the case
may be, is sent to the Tenant.
ARTICLE THIRTY-ONE
SERVICES
(a) For purposes of this lease, "Business Hours" shall mean normal
building operation hours of eight a.m. to six p.m. and "Business Days" shall
mean Monday through Friday, except for those days designated as legal holidays
by the Federal or State government or by the unions now or hereafter
representing the Landlord's building personnel.
(b) During the term of this lease, the Landlord shall furnish during
Business Hours on Business Days passenger and freight elevator service and
sufficient heat during the cold season to heat the premises, and, if applicable,
condenser water from the Landlord's cooling tower equipment located on the roof
of the building from April 15th through October 15th. The Landlord shall
maintain in service and available for the non-exclusive use of the Tenant at
least one passenger elevator at all times. The Landlord shall maintain in
service and available for the non-exclusive use of the Tenant at least one
freight elevator at all times, which elevator shall be located in the portion of
the tenth floor in the building known as 000 Xxxxxx Xxxxxx. If the Tenant
requires freight elevator service, heat, or, if applicable, condenser water, on
non-Business Days or during non-Business Hours on Business Days, the Landlord
will furnish the additional requested service upon notice of the Tenant's need
therefor. Such notice may be written or oral and shall be given prior to 2 p.m.
on the day upon which such service is requested or by 2 p.m. of the last
preceding Business Day if service is requested on other than a Business Day. The
Tenant will pay for any overtime freight elevator service, heat, and, if
applicable, condenser water, at the respective prevailing rates per hour as
established from time to time by the Landlord for such services at the building
or in the buildings of the Landlord, generally, for each hour during which the
additional service is supplied. All charges for such overtime service shall
constitute additional rent and shall be payable within ten business days after
presentation of a xxxx, and in the event of default of payment therefor, the
Landlord may refuse further service and the Landlord shall have all remedies
available to it for collection herein specified with respect to rent. The
failure on the part of the Landlord to furnish elevator service, heat, or, if
applicable, condenser water, if due to breakdowns, repairs, maintenance, strikes
or other causes beyond the control of the Landlord, shall involve no liability
on the part of the Landlord and shall not constitute an actual or constructive
eviction, nor relieve the Tenant from any of its obligations under this lease
nor entitle the Tenant to an abatement of rent.
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(c) The Landlord shall deliver the air conditioning equipment currently
serving the premises in good working order. The Tenant shall maintain, at its
own cost and expense, all air-conditioning equipment now or hereafter serving
the premises, using a contractor approved by the Landlord. If the Tenant fails
to make any necessary repairs, the Landlord may perform the same for the account
of the Tenant in accordance with the provisions of this lease. Landlord
represents and warrants that the air-conditioning equipment shall be delivered
in good working order as of the Commencement Date.
(d) Provided the Tenant shall keep the premises in order, the Landlord,
at the Landlord's expense, shall cause the premises, excluding any portions
thereof used for the storage, preparation, service or consumption of food or
beverages, to be cleaned on Business Days substantially in accordance with the
Specifications set forth as SCHEDULE B annexed hereto. The Tenant, at the
Tenant's sole cost and expense, shall cause all portions of the premises used
for the storage, preparation, service or consumption of food or beverages to be
cleaned daily in a manner satisfactory to the Landlord, and to be exterminated
against infestation by vermin, rodents or roaches regularly and, in addition,
whenever there shall be evidence of any infestation. Any such extermination
shall be done at the Tenant's sole cost and expense and by contractors
reasonably approved by the Landlord. If the Tenant shall perform any additional
cleaning services in addition to the services provided by the Landlord, the
Tenant shall employ such cleaning contractor providing services to the building
on behalf of the Landlord or such other cleaning contractor as shall be
reasonably approved by the Landlord. The Tenant shall, at its sole cost and
expense, comply with all present and future laws, ordinances, regulations and
requirements of the City, State or Federal Government or any agency having
jurisdiction over the building, or any reasonable rules which the Landlord may
impose, with respect to the recycling or sorting of refuse and rubbish. The
Landlord reserves the right to refuse to collect or accept from the Tenant any
refuse or rubbish which is not separated and sorted as required and to require
the Tenant to arrange for such collection, at the Tenant's sole cost and
expense, using a contractor reasonably satisfactory to the Landlord. The Tenant
shall indemnify the Landlord from all liability arising from the Tenant's
failure to comply with the provisions of this Article. The Tenant shall pay to
the Landlord the cost of removal of any of the Tenant's refuse and rubbish from
the building which exceeds normal office requirements.
(e) The Landlord shall provide to the premises hot and cold water for
ordinary drinking, office pantry, cleaning and lavatory purposes. If the Tenant
uses or consumes water for any other purposes or in unusual quantities (of which
fact the Landlord shall be the sole judge), the Landlord may, at the Tenant's
expense, install a water meter or require the Tenant to install a meter. The
Tenant shall thereafter maintain the meter in good working order at the Tenant's
expense and the Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered at 110% of the Landlord's cost
therefor. In default in making such payment, the Landlord may pay such charges
and collect the same from the Tenant. The Tenant shall pay the New York City
sewer rents, charges or any other tax apportioned to the Tenant's metered
consumption of water at the premises. The apportionment of the sewer rent to the
premises shall be made in accord with the measurement or apportionment of water
consumed at the premises as provided herein. The sewer rents shall be billed
with the water charges and shall constitute additional rent.
(f) The Landlord may suspend any service which it is required to
provide hereunder, if it should become necessary or proper so to do, at any
time. The Landlord shall restore such service within a reasonable time, making
due allowance for labor troubles, acts of God, or any cause beyond the
Landlord's control. Should the Tenant be in default in the payment of any rent
hereunder, the Landlord may, upon not less than three days' notice, and without
diminution of the liability of the Tenant hereunder, and without constituting an
eviction, constructive or otherwise, suspend or refuse the Tenant freight and
passenger elevator service and should the Tenant, after notice, violate the
provisions of Rule 11, the Landlord may, without any diminution of such
liability or constituting such eviction, suspend or refuse the Tenant freight
elevator service until the conditions in violation of Rule 11 have been fully
remedied.
(g) The Landlord shall be entitled to refuse to furnish passenger or
freight elevator service in connection with any sale at auction of the Tenant's
fixtures, machinery, stock in trade and other property or a sale in any other
manner of all or substantially all of such property unless the Landlord
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shall have been given not less than two days' notice of the intention to hold
the auction or other sale and unless the Landlord shall be given an undertaking
by a person, firm or corporation of satisfactory financial resources wherein the
Landlord shall be indemnified against (i) all expense incurred by the Landlord
in connection with the removal by purchasers of any property sold to them at the
auction or other sale, (ii) all expense for removal or storage of any property
sold at the auction or other sale which is not removed by the purchaser within
two days following the sale, and (iii) all expenses which the Landlord may incur
for the removal of property not sold and waste and rubbish from the premises.
ARTICLE THIRTY-TWO
INSURANCE
(a) The Tenant shall obtain and keep in full force and effect during
the term of this lease, at the Tenant's sole cost and expense, (i) a policy of
comprehensive general public liability and property damage insurance on an
occurrence basis, with a broad form contractual liability endorsement and a
completed operations endorsement with minimum limits with a combined single
limit with respect to each occurrence in an amount of not less than $5,000,000
for injury (or death) to persons and damage to property; (ii) an "all risk"
insurance policy, with extended coverage, covering all of Tenant's personal
property and alterations for 100% of the replacement cost thereof, as well as
business interruption insurance adequate to cover the Tenant's loss of income as
a result of a loss sustained by a peril covered under the policy; (iii) Worker's
Compensation Insurance, as required by law; and (iv) such other insurance in
such amounts as Landlord may reasonably require from time to time. Such policies
shall provide that the Tenant is named as the insured. Landlord and any managing
agent, lessors and mortgagees (whose names have been furnished to the Tenant)
shall be named as additional insureds, as their respective interests may appear.
The Tenant shall have the right to insure and maintain the insurance coverages
required under this Article under blanket insurance policies covering other
premises occupied by the Tenant so long as such blanket policies comply as to
terms and amounts with the requirements set forth in this Article; provided
that, upon request, the Tenant shall deliver to the Landlord a certificate from
the Tenant's insurer evidencing the portion of such blanket insurance allocable
to the premises.
(b) All insurance required to be carried by Tenant hereunder shall be
written in form and substance reasonably satisfactory to the Landlord and issued
by a reputable and independent insurer permitted to do business in the State of
New York, and rated in Best's Insurance Guide (or any successor thereto) as
having a general policyholder rating of not less than "A" and a financial rating
of at least "XIII". The policy required to be carried pursuant to paragraph (a)
(i) above shall contain a provision that (1) the policy shall be non-cancelable
with respect to the Landlord and such managing agents, lessors and mortgagees
(whose names and addresses have been furnished to the Tenant) unless thirty (30)
days' prior written notice shall be given to the Landlord by certified mail,
return receipt requested, which notice shall contain the policy number and the
name of the insured and additional insureds, and (2) no act or omission of the
Tenant shall affect or limit the obligation of the insurer to pay the amount of
any loss sustained. Certificates of insurance (including endorsements and
evidence of the waivers of subrogation required pursuant to Article SIXTEEN
hereof), or evidence of renewal of such coverage, shall be delivered to the
Landlord prior to the Commencement Date (or any earlier entry upon the premises
by the Tenant or any of the Tenant's employees, agents or contractors prior to
the Commencement Date), and at least thirty (30) days prior to the expiration of
such policy. If the Tenant fails to obtain or keep in force the insurance
required by this Article, or to pay the premiums thereof, provided the Tenant is
afforded written notice of the Landlord's intention to pay such premium ten (10)
days prior thereto, in addition to all other rights the Landlord may have under
this lease, the Landlord may, from time to time, and as often as such failure
shall occur, pay the premiums therefor, and any and all sums so paid for
insurance by the Landlord shall be and become, and are hereby declared to be,
additional rent under this lease and shall be due and payable on demand.
ARTICLE THIRTY-THREE
DEFAULT UNDER OTHER LEASES
If the Tenant, before the Commencement Date shall default in any
covenant of any other lease with the Landlord, then at the option of the
Landlord this lease shall not go into effect and the Tenant
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shall have no right to possession of the premises; and the Tenant agrees to
reimburse the Landlord upon demand for any expense or loss that may be suffered
due to the Tenant's default.
ARTICLE THIRTY-FOUR
WORK TO BE DONE BY LANDLORD
If work of any nature is agreed herein to be done by the Landlord, the
Tenant agrees that it may be done after the Commencement Date and that no rebate
of rent or allowance will be granted therefor. The Landlord shall not be
required to furnish any work or materials to the premises, except as expressly
provided in the Work Letter attached to this lease as EXHIBIT B. In case the
Landlord is prevented from making any repairs, improvements, decorations or
alterations, installing any fixtures or articles of equipment, furnishing any
services or performing any other covenant herein contained to be performed on
the Landlord's part, due to the Landlord's inability to obtain, or difficulty in
obtaining, labor or materials necessary therefor, or due to any governmental
rules and regulations relating to the priority of national defense requirements
or strikes, or due to labor troubles, accident or due to any other cause beyond
the Landlord's control, the Landlord shall not be liable to the Tenant for
damages resulting therefrom, nor (except as expressly otherwise provided in
Article SIXTEEN hereof in respect of damage to the premises due to fire), shall
the Tenant be entitled to any abatement or reduction of rent by reason thereof,
nor shall the same give rise to a claim in the Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the
premises.
ARTICLE THIRTY-FIVE
CONSENT TO JURISDICTION
This lease shall be governed in all respects by the laws of the State
of New York. The Tenant irrevocably consents and submits to the jurisdiction of
any Federal, State, or county court sitting in the State of New York in any
action or proceeding arising out of this lease and/or the use and occupation of
the premises. The Tenant agrees that any action or proceeding brought by the
Tenant against the Landlord in respect of any matters arising out of or relating
to this lease may only be brought in the State of New York, County of New York.
The Tenant hereby irrevocably designates its chief financial officer at 0000
Xxxxxxxx, Xxx Xxxx, XX 00000 to accept service of process on the Tenant's behalf
and agrees that such service shall be deemed sufficient. If the Tenant is not a
New York partnership or corporation or a foreign corporation qualified to do
business in the State of New York, it shall designate in writing, an agent in
New York County for service under the laws of the State of New York.
ARTICLE THIRTY-SIX
TENANT LIABILITY
(a) If more than one tenant is named as the tenant under this lease,
each of the named tenants shall be jointly and severally liable for the
performance of all of the terms, covenants and agreements on the Tenant's part
to be performed under this lease.
(b) If the Tenant (or any permitted assignee of Tenant) is a
partnership (or is comprised of two or more persons, individually or as
co-partners of a partnership or shareholders of a professional corporation) the
following provisions shall apply to each tenant: (i) the liability of each of
the partners comprising the Tenant shall be joint and several; (ii) each of the
parties comprising the Tenant hereby consents in advance to, and agrees to be
bound by, any modification, termination, discharge or surrender of this lease
which may hereafter be made and by any notices, or other communications which
may hereafter be given by the Tenant or any of the parties comprising the
Tenant; (iii) all statements, notices or other communications given to the
Tenant or to any of the parties comprising the Tenant shall be deemed given to
the Tenant and all parties; (iv) if the Tenant shall admit new partners, all
such new partners shall, by their admission to the Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this lease
on Tenant's part to be observed and performed, and (v) the Tenant shall give to
the Landlord notice of the admission of any new partners, and upon demand of the
Landlord, such new partners shall execute and deliver to the Landlord an
agreement in form satisfactory to the Landlord, wherein each new partner shall
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assume performance of all of the terms, covenants and conditions of this lease
on Tenant's part to be performed (but the Landlord's failure to request such an
agreement nor the partners failure to deliver such an agreement shall relieve
the partner of its liability hereunder).
(c) If the Tenant is a partnership, it shall not convert to or become a
corporation, limited liability company, registered limited liability partnership
or any other form of business organization (such entity being referred to as a
"Successor Entity") , without the Landlord's prior written consent. The Landlord
shall not unreasonably withhold its consent to the Tenant's conversion to a
Successor Entity provided that (i) the Tenant shall cause each partner of the
Tenant to execute and deliver to the Landlord an agreement, in a form reasonably
satisfactory to the Landlord, pursuant to which each partner of the Tenant
agrees to remain personally liable jointly and severally for all of the terms,
covenants and conditions of the lease that are to be performed by the Successor
Entity; (ii) the Successor Entity shall have a Net Worth (as hereinbefore
defined) of not less than the Net Worth of the Tenant on the date of execution
of the lease; (iii) no Event of Default has occurred and is continuing
hereunder; (iv) the Successor Entity succeeds to all of the business and assets
of the Tenant; (v) the Tenant shall deliver to the Landlord such documentation
as may be reasonably required by the Landlord to evidence compliance with the
requirements set forth above; and (vi) the Tenant shall reimburse the Landlord
for all reasonable costs and expenses, including, without limitation, attorneys'
fees, that may be incurred by the Landlord in connection with the conversion of
the Tenant to a Successor Entity.
ARTICLE THIRTY-SEVEN
ADJACENT EXCAVATION-SHORING
If an excavation shall be made upon land adjacent to the premises, or
shall be authorized to be made, the Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the premises for the
purpose of doing such work as said person shall deem necessary to preserve the
wall or the building from injury or damage and to support the same by proper
foundations without any claim for damages or indemnity against the Landlord, or
diminution or abatement of rent.
ARTICLE THIRTY-EIGHT
FAILURE TO GIVE POSSESSION
In the event the Landlord, for any reason, shall be unable to give
possession of the premises by the date set forth in this lease for the
commencement of the term, this lease shall nevertheless continue in full force
and effect and the Landlord shall tender and the Tenant shall take possession of
said premises under the terms of this lease as soon as the Landlord shall have
tendered possession thereof to the Tenant; the rent, however, to begin on the
date upon which such possession is tendered to the Tenant. This is intended to
constitute an "express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law. No such failure to give possession on
the date set forth in this lease for the commencement of this term shall affect
the validity of this lease or give rise to any claim for damages by the Tenant
or claim for rescission of this lease, nor shall the same be construed in any
way to extend the term of this lease.
ARTICLE THIRTY-NINE
BROKER
The Tenant represents and warrants to the Landlord that all of the
Tenant's negotiations respecting this lease which were conducted with or through
any person, firm or corporation, other than the officers of the Landlord, were
conducted through Xxxxxxxx Real Estate (the "Broker"). The Landlord agrees to
pay the commission due to the Broker pursuant to the terms of a separate
agreement. Landlord and Tenant agree to indemnify and hold one another harmless
from and against all demands, liabilities, losses, causes of action, damages,
costs and expenses (including, without limitation, attorneys' fees and
disbursements) suffered or incurred in connection with any claims for a
brokerage commission, finder's fee, consultation fees or other compensation
arising out of any conversations or negotiations had by the party against whom
indemnification is claimed with any broker or other party except for the Broker.
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ARTICLE FORTY
RENT RESTRICTIONS
If at the commencement of, or at any time or times during the term of
this lease, the fixed rent or additional rent reserved in this lease shall be or
become uncollectible by virtue of any law, governmental order or regulation, the
Tenant shall enter into such agreements and take such other steps (without
additional expense to the Tenant) as the Landlord may request and as may be
legally permissible to permit the Landlord to collect the maximum amounts which
may from time to time be legally collectible while such restrictions are in
effect (and not in excess of the amounts reserved for under this lease). Upon
the termination of such rent restrictions (a) the fixed rent and additional rent
shall become and thereafter be payable in accordance with the terms of this
lease, and (b) the Tenant shall pay to the Landlord, if legally permissible, an
amount equal to (i) the rent which would have been paid during the period had
such restrictions not been in effect, less (ii) the rents which were paid by the
Tenant to the Landlord during the period such restrictions were in effect.
ARTICLE FORTY-ONE
CERTIFICATES BY TENANT
At any time and from time to time, the Tenant, for the benefit of the
Landlord or any other entity specified by the Landlord, within ten business days
after request, shall deliver to the Landlord a duly executed and acknowledged
certificate, certifying that this lease is not modified and is in full force and
effect (or if there shall have been modifications that the same is in full force
and effect as modified and stating the modifications); the commencement and
expiration dates of the lease; the dates to which rent and additional rent have
been paid; whether or not, to the best knowledge of the Tenant, there are any
existing defaults on the part of either the Landlord or the Tenant in the
performance of the terms, covenants and conditions of the lease to be performed
by such party, and if so, specifying the default; and such other information as
the Landlord may reasonably request with respect to this lease. The Landlord
shall, upon fifteen business days' request, deliver for the benefit of the
Tenant, a duly executed and acknowledged certificate as to the matters to be
certified by the Tenant hereunder.
ARTICLE FORTY-TWO
RESTRICTIONS ON TENANT'S USE
(a) The Tenant agrees that the value of the premises and the building
of which the premises form a part and the reputation of the Landlord will be
seriously injured if the premises are used for any obscene or pornographic
purposes or any sort of commercial sex establishment. The Tenant covenants and
agrees not to sell, display or post, or knowingly allow to be sold, displayed or
posted any obscene or pornographic material on the premises. The Tenant agrees
that if at any time the Tenant violates any of the provisions of this Article,
such violation shall be deemed a breach of a substantial obligation of the terms
of this lease.
(b) The Tenant covenants and agrees that during the term of this lease,
it will not use the premises or any part thereof, or permit the premises or any
part thereof to be used (1) for banking, trust company or safe deposit business;
(2) as or by a commercial or savings bank, a trust company, a savings and loan
association, a loan company, or a credit union; (3) for the sale or travelers
checks, money orders and/or foreign exchange; (4) as a restaurant and/or bar
and/or for the sale of soda and/or beverage and/or sandwiches and/or ice cream
and/or baked goods; (5) by the United States Government, the City or State of
New York, any foreign government, the United Nations or any agency or department
of any of the foregoing, or any other person or entity having sovereign or
diplomatic immunity; (6) as an employment agency, search firm or similar
enterprise, school or vocational training center (except for the training of
employees of the Tenant intended to be employed at the premises); (7) as a
xxxxxx shop or beauty salon; or (8) as a diagnostic medical center and/or for
the practice of medicine.
ARTICLE FORTY-THREE
HAZARDOUS MATERIALS
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The Tenant shall not cause or permit any Hazardous Materials to be
used, stored, transported, released, handled, produced or installed in, on or
from the premises or the building. "Hazardous Materials" shall mean any
flammable, explosives, radioactive materials, hazardous wastes, hazardous and
toxic substances, asbestos or any material containing asbestos, or any other
substance or material which would be defined as a hazardous or toxic substance,
contaminant, or pollutant, or otherwise regulated by any Federal, state or local
environmental law, rule or regulation, including without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended. In the event of a violation of the foregoing provisions of this
Article, the Landlord may, without notice and without regard to any grace period
contained in this lease, take all remedial action deemed necessary by the
Landlord to correct such condition and the Tenant shall reimburse the Landlord
for the cost thereof, upon demand, as additional rent. Nothing contained herein
shall prevent the Tenant from maintaining customary and normal cleaning supplies
and office equipment and supplies, provided such items are used and stored in
compliance with the requirements of all applicable laws.
ARTICLE FORTY-FOUR
MISCELLANEOUS
(a) This lease contains the entire agreement between the parties and
all prior negotiations and agreements are merged into this lease.
(b) This lease may not be recorded.
(c) The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of the Landlord and the Tenant and their
respective heirs, executors, administrators, successors and permitted assigns.
(d) If any term, covenant or provision of this lease, or the
application thereof, shall be held invalid or unenforceable, the remainder of
this lease, or the application thereof to situations other than that as to which
it is invalid or unenforceable, shall not be affected thereby, and each term,
covenant and provision shall be valid and enforceable to the fullest extent
permitted by law.
(e) The submission of this lease for execution by the Tenant shall not
be binding upon the Landlord or the Tenant unless and until both the Landlord
and the Tenant have executed and unconditionally delivered a fully executed copy
of this lease to each other.
(f) The captions in this lease are inserted for convenience only and
shall not define, limit or describe the scope of the provisions to which any of
them apply. The use of any pronoun referring to either of the parties to this
lease shall be construed to include any or no gender and any number.
(g) If the Tenant is a corporation, the person executing this lease on
behalf of the Tenant represents and warrants that the Tenant is duly
incorporated and, if applicable, is duly qualified and authorized to conduct
business in the State of New York, and the person executing this lease on behalf
of the Tenant has been duly authorized to do so. The Tenant shall provide the
Landlord with a copy of a resolution to this effect, and evidence of its due
incorporation and qualification, if applicable, upon request of the Landlord.
ARTICLE FORTY-FIVE
CONSTRUCTION OF OFFICE IMPROVEMENTS
It is agreed that the Tenant will modify and improve the premises to
prepare them for the Tenant's initial occupancy (the "Initial Improvements"),
which Initial Improvements shall be performed in accordance with the terms of
this lease. The Landlord will reimburse the Tenant for the Initial Improvements
up to a maximum of $200,520.00 (the "Improvement Allowance") over and above the
items included in the Work Sheet (and the Tenant will pay the cost of the
Initial Improvements in excess of such amount), all in accordance with, and
subject to the limitations set forth in subparagraphs (a) through (e) below:
(42)
47
(a) The Initial Improvements for which reimbursement may be sought are
the costs of constructing the Initial Improvements. Such costs shall not include
any telephone systems, computer systems, furniture and decorations, but may
include carpeting, wall coverings, window blinds and telephone and data cabling.
(b) The Landlord shall reimburse the Tenant from time-to-time (but not
more often than semi- monthly) for work done in connection with the installation
and construction of the Tenant's Initial Improvements, up to an aggregate
maximum reimbursement of $200,520.00, within fifteen (15) days following receipt
of the following:
(i) a request for payment of the Improvement Allowance signed
by an officer of Tenant, specifying the work for which
reimbursement is being sought, which shall be accompanied by a
certificate signed by an officer of the Tenant certifying that
the payment requested in the invoice has been paid in full and
that the Initial Improvements specified therein have been
completed substantially in conformance with the plans therefor
which were approved by the Landlord and that such work has
been completed in a good and workmanlike manner;
(ii) copies of invoices from the vendors, supplier, or
contractor, or, if applicable, the general contractor,
evidencing the amount for which payment or reimbursement is
sought, such invoices, if submitted for reimbursement, to be
marked "paid in full" by such vendor, supplier or contractor
(or, in lieu thereof, the Landlord shall be furnished other
documentation satisfactory to the Landlord evidencing payment
in full);
(iii) a certificate from the Tenant's architect stating that
(x) such work for which reimbursement is being sought has been
fully completed substantially in accordance with the final
plans as approved by the Landlord, and (y) that such work has
been completed in a good and workmanlike condition; and
(iv) lien waivers from each contractor(s) or subcontractor(s)
to the extent of the amount to be paid to such parties, which
waivers may contain a condition that the effectiveness of such
waivers shall be subject to the payment to the applicable
contractor(s) or subcontractor(s) of the amount of the invoice
accompanying such waiver. The Landlord shall not be obligated
to reimburse the Tenant for any invoice which is not
accompanied by such a waiver.
(v) Notwithstanding the foregoing, the Landlord shall retain
an amount equal to ten percent (10%) of the Improvement
Allowance until the Tenant has submitted to the Landlord final
permits required in connection with the construction of the
Initial Improvements by any governmental department or agency
having jurisdiction thereof, together with a final,
unconditional sign-off from the New York City Department of
Buildings for such work.
(c) It is understood and agreed that the Landlord shall have no
responsibility for the performance of the contractor installing the Initial
Improvements (including matters of quality or timeliness), and in the event that
for any reason the Initial Improvements are not completed in a timely fashion
and/or there is any delay in the date on which the premises are ready for
occupancy by the Tenant for the purposes of conducting business, this lease
shall nevertheless continue in full force and effect, and, except in the
circumstances set forth below and to the extent set forth below, the Tenant
shall have no right, remedy or claim (including any claim for actual, punitive
or consequential damages) against the Landlord.
(d) The Landlord's maximum liability under this Article shall not
exceed $200,520.00. If the actual cost of the Initial Improvements shall exceed
the amount of the Improvement Allowance, the entire amount of the excess cost
shall be paid solely by the Tenant and the Landlord shall be under no obligation
to pay such excess.
(43)
48
(e) Within thirty (30) days after completion of the Initial
Improvements, the Tenant shall deliver to the Landlord general releases and
waivers of lien from the general contractor and from all contractors,
subcontractors and materialmen not working through the general contractor, if
any, involved in the performance of the Initial Improvements and the materials
furnished in connection therewith (unless the same were previously furnished
pursuant to subparagraph (c)(iv) above), and a certificate from the Tenant's
independent licensed architect certifying that, in its opinion, the Initial
Improvements have been performed in a good and workmanlike manner and
substantially completed in accordance with the final plans, as approved by the
Landlord.
ARTICLE FORTY-SIX
COMBINED TWELFTH FLOOR
(a) The premises leased hereunder are located on the 12th floor in the
buildings known as 000 Xxxxxx Xxxxxx and 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
Presently, the twelfth floors in each of 000 Xxxxxx Xxxxxx and 000 Xxxxxx Xxxxxx
are operated as though they are separate floors in each building. The Landlord
expects to physically combine some or all of the floors of 000 Xxxxxx Xxxxxx and
000 Xxxxxx Xxxxxx into a single building. Until such time as the buildings are
physically combined, all references herein to the "building" shall be deemed to
refer to each of 000 Xxxxxx Xxxxxx or 000 Xxxxxx Xxxxxx, as the case may be, and
as long as the Landlord receives a separate real estate tax xxxx for each
building, the definition of "Real Estate Taxes" in Article THIRTY of the lease
shall refer to the combined tax bills for both buildings, the parties
acknowledging that "Tenant's Proportionate Share" has been calculated on the
basis of the combined building.
(b) In connection with the combination and renovation of the buildings,
the Landlord reserves the right to combine the twelfth floors of each of the
buildings so as to constitute a single floor. In connection therewith, the
Landlord reserves the right to do construction work on the floor on which the
premises are located, such work to primarily be performed in the core area of
the combined floor and the areas immediately adjacent thereto. The Landlord may,
in the course of such work reconfigure the core area as it, in its sole
discretion deems desirable, subject to the terms of this lease. As part of such
work, the Landlord may remove freight elevators, so long as at least one freight
elevator is operational and servicing the combined building and the premises
during the term of the lease. The Landlord may also remove one of the fire
staircases, provided that the Landlord shall provide sufficient access to fire
stairs at all times during the term of the lease so as to comply with all Legal
Requirements. If any freight elevator(s) or fires stairs are removed, the
Landlord may, at its sole option, either (i) close up any or all of the openings
for the elevator(s) or fire stairs to form a contiguous wall surface with the
existing wall, (ii) use some or all of the additional space resulting from the
removal of the elevators or fire stairs for the construction of mechanical
equipment rooms, shaft space, or other space for other building systems or
services, or (iii) if the additional space is located within the premises, allow
the Tenant to incorporate some or all of such additional space into the premises
for the remainder of the term at no additional rent. In addition, if the
Landlord removes the fire stairs which are located adjacent to the passenger
elevators, the Landlord may, on any combined floor which is not wholly occupied
by a single occupant (including any floor which is partially sublet) use any or
all such space for a common corridor, and recapture a portion of the premises to
extend the then existing common corridors, so as to provide access to the two
remaining sets of fire stairs by means of a common corridor around the core of
the building, (the area where the common corridors may be extended are shown on
EXHIBIT D).
(c) If the Landlord combines the 12th floors in both buildings so as to
create a single floor, it reserves the right to convert the passenger elevators
currently serving both portions of the 12th floor into two different elevator
banks, so that, in the future, not all of the passenger elevators currently
serving each portion of the 12th floor may serve the combined floor. The
Landlord shall give the Tenant ninety days prior notice of the creation of
separate elevator banks and, if applicable, of its election to create a common
corridor so as to provide access to the passenger elevators to all occupants on
the combined floor, as more particularly described herein. If the Landlord has
given the Tenant notice of its election to create a common corridor, it shall be
entitled to commence such work immediately upon the expiration of the ninety day
notice period. The Tenant agrees to design its premises in such a manner as to
accommodate the potential recapture of space to create the common corridors as
indicated on EXHIBIT D. If the Landlord creates different passenger elevator
(44)
49
banks, it reserves the right, on any multi-tenanted floor (which, for purposes
of this Article shall include any floor which is leased wholly to the Tenant,
any portion of which is separately demised to a subtenant or an assignee), to
recapture a portion of the premises to create such common corridors, as shown
more particularly on EXHIBIT D annexed hereto. The Landlord shall, at its
expense, bear the expense of constructing the demising walls for such common
corridor, as well as painting or replacing wall coverings inside the premises,
and restoring Tenant's floor coverings in the area adjacent to the demising wall
if such restoration is necessary as a result of such construction. The Landlord
shall also paint the surface of the demising wall which faces the common
corridor. The Tenant shall otherwise bear the expense of relocating its
furnishings or any other alterations which may be necessary in the premises as
the result of the creation of the common corridor. There shall be no reduction
or abatement in rent payable, or adjustment of the Tenant's Proportionate Share
if any space is recaptured by the Landlord to create a common corridor in any of
the circumstances set forth in this paragraph (c). If any elevator bank located
within the premises is closed due to the creation of different elevator banks,
the Tenant shall not permanently obstruct the openings, so as to prevent the
Landlord from restoring service to that floor if deemed necessary or desirable.
(d) The Landlord may elect, at its sole option, to construct new
restrooms on the floor, either prior to or following combination of the floors.
In connection with such construction, the Landlord reserves the right to
recapture a portion of the premises in order to construct the new restrooms or
to provide access thereto, as shown on EXHIBIT D annexed hereto. The Landlord
shall provide handicapped accessible facilities in compliance with the
requirements of New York City Local Law #58 and the renovated restrooms on any
combined floor shall contain no less than the minimum number of toilets needed
in order to comply with the New York City Building Code. The restrooms shall be
constructed in accordance with Landlord's building standard specifications. If
there is any interruption in use of the restrooms as a result of such
renovation, the Landlord shall use reasonable efforts to provide the Tenant with
access to temporary bathroom facilities. Prior to renovation of the restrooms,
the Landlord shall not reduce the number of toilets in the restrooms currently
located on the 12th floor of the building in which the premises are located.
(e) The Tenant agrees to provide the Landlord with access to the
premises in order to perform the work described in this Article and to store
such materials in connection therewith. The Landlord agrees to use commercially
reasonable efforts to minimize interference with the Tenant's business in the
course of such work, but shall be under no obligation to perform any of this
work on an overtime or other premium labor basis. Any work performed by the
Landlord pursuant to this Article shall be performed in accordance with all
Legal Requirements.
ARTICLE FORTY-SEVEN
GUARANTY
Simultaneously with the execution of this lease, the Tenant shall
deliver to the Landlord a guaranty from The Princeton Review Inc.
ARTICLE FORTY-EIGHT
DEMOLITION REIMBURSEMENT
In exchange for the Tenant's agreement to demolish the premises in
order to prepare them for the Tenant's initial occupancy, the Landlord shall
reimburse the Tenant the sum of $15,101 as of July 15, 2001. The Tenant shall
submit to Landlord the information required in Article FORTY-FIVE (b) (i)-(iv)
in order to obtain reimbursement.
IN WITNESS WHEREOF, this agreement has been signed and sealed by the
parties hereto as of the date set forth above.
THE XXXXXX, CHURCH-WARDENS AND
VESTRYMEN OF TRINITY CHURCH IN THE
CITY OF NEW YORK
(45)
50
By: /s/ Xxxxxx Xxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
____________________________ _______________________________________
Xxxxxx Xxxx Xxxxxxxx, Xxxxxx Director of Leasing
By: /s/ Executive Vice President of
Real Estate
_______________________________________
Executive Vice President of Real Estate
Attest: PRINCETON REVIEW PUBLISHING, L.L.C.
As to the Tenant:
/s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
_________________________________ _________________________________(L.S.)
An Authorized Officer
(46)
51
SCHEDULE A
----------
RULES AND REGULATIONS
---------------------
1. The Tenant shall not clean, nor require, permit or allow any window in the
premises to be cleaned from the outside in violation of Section 202 of the New
York State Labor Law or of the Rules of the Board of Standards and Appeals, or
of any other board or body having or asserting jurisdiction.
2. All machinery shall be kept in approved settings sufficient, in the
Landlord's judgment, to absorb any shock and prevent any noise, vibration or
annoyance in the building of which the premises are a part and, if necessary,
shall be provided with oil pans between such machinery and the floor beneath it,
sufficient to prevent the seepage of oil on or into the floors.
3. During the cold season, the windows shall be kept closed to maintain the
temperature of the premises and to prevent any freezing thereof, or of any
equipment or appliance therein. If the building contains central
air-conditioning and ventilation, the Tenant agrees to keep all windows closed
at all times and to abide by all rules and regulations issued by the Landlord
with respect to such services. The Tenant shall draw and close the draperies or
blinds for the windows of the premises whenever the air-conditioning system is
in operation and the position of the sun so requires.
4. All trucks, vehicles or conveyances used by the Tenant or others in the
delivery or receipt of material in the premises or any other area in the
building shall have rubber tires and sideguards. The Tenant shall be responsible
for removing any oil deposited on the premises from such trucks, vehicles or
conveyances.
5. The Tenant shall not alter any lock or install a new or additional lock or
bolt on any doors or windows. On termination or expiration of this lease, all
keys must be surrendered to the Landlord and in the event of the loss of any
keys furnished at the Landlord's expense, the Tenant shall pay to the Landlord
the cost thereof. If the building has a central security system, the Tenant
shall provide the Landlord with all access codes to the premises. If the Tenant
fails to provide the Landlord with a means of access to the premises, the
Landlord shall be relieved of all obligation, if any, to provide cleaning
services to the premises.
6. The Landlord may exclude any persons visiting or attempting to visit the
premises between 7 P.M. and 7 A.M. on Business Days or on non-Business Days
unless such person shall be equipped with a pass signed or approved by the
Landlord and unless such person shall sign his name and the premises which he is
to visit on the night report. Each Tenant shall be responsible for all persons
for whom a pass shall be issued at the request of the Tenant and shall be liable
to the Landlord for all acts of such persons. The Tenant shall not have a claim
against the Landlord by reason of the Landlord excluding from the building any
person who does not present a pass. At all times, the Landlord retains the right
to prevent access to the building to all persons whose presence, in the judgment
of the Landlord, would be prejudicial to the safety, character or reputation of
the building.
7. All sanitary facilities, wash closets and plumbing fixtures shall be used
only for the purposes for which they were constructed, and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein, and the
expense of any stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant whose employees, agents or visitors caused it.
8. No sign or lettering shall be exhibited, inscribed, painted or affixed
outside of the premises or on the inside of the premises if the same can be seen
from the outside of the premises except as may be approved in writing by the
Landlord, except that the name of the Tenant may appear on the entrance door of
the premises. If the Tenant violates this rule, the Landlord may remove the same
without liability and the expenses so incurred by the Landlord shall be paid by
the Tenant as additional rent. The Tenant shall not allow noise to emanate from
the premises to the street or other portions of the building. Any sign or
display which may be installed by the Tenant shall be kept in good order and
repair and in a neat and attractive condition. The Landlord reserves the right
to use the roof and outside walls surrounding the premises for sign purposes.
The Landlord may remove any sign or signs or displays in order to paint the
premises or any part of the building, or make any repairs, alterations or
improvements in or upon the premises or building, or any part
(i)
52
thereof, provided it causes the same to be removed and replaced at the
Landlord's expense, whenever the painting, repairs, alterations or improvement
shall have been completed. Interior signs on doors shall be of a size, color and
style reasonably acceptable to the Landlord. The Landlord reserves the right to
approve the appearance and design of the elevator lobby on each floor of the
building.
9. The Landlord shall have the right to prohibit any advertising by the Tenant
which, in its reasonable judgment, tends to impair the reputation of the
building or its desirability as an office building, and upon written notice from
the Landlord, the Tenant shall refrain from or discontinue such advertising.
10. No awnings, antennae, aerials, ventilating and air-conditioning apparatus or
other projections shall be attached to the outside walls of the building. No
air-conditioning apparatus may be installed in windows of the premises.
11. The lights, skylights, entrances, passages, courts, elevators, vestibules,
stairways, loading platforms, corridors, halls or any part of the building
intended for use in common by the Tenant with other occupants of the building
shall not be obstructed or encumbered by the Tenant or used for any other
purpose than for ingress or egress from the premises and for delivery of
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by the Landlord. In the event of any encumbrance or
obstruction, the Landlord may remove the material causing such encumbrance or
obstruction and cause it to be stored and charge the cost of doing so to the
Tenant. No courtyard or yard appurtenant to the premises or the building shall
be used for parking vehicles of any kind. If the premises are on the ground
floor of the building, the Tenant shall, at its expense, keep the sidewalk and
curb in front of the premises clean and free from rubbish.
12. Subject to the provisions of Article FOUR of this lease, no part of the
premises or the building shall be marked, painted, bored, drilled into, or in
any way defaced. Any drilling which is permitted by the Landlord shall be done
in accordance with the provisions of Article FOUR and shall be done during
non-Business Hours unless otherwise authorized by the Landlord in writing. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of the Landlord. No linoleum or other similar floor covering
shall be laid so that the same shall come in direct contact with the floor of
the premises; and if such flooring is used, an interlining of builder's
deadening felt or other sound-attenuating materials shall be first affixed to
the floor, by a paste or other material, soluble in water. Cements and other
similar adhesive material shall not be used. Removal of any alterations,
decorations or improvements in compliance with Article FOUR of this lease shall
include the removal of all linoleum, lining and adhesive material.
13. No part of the premises shall be used in a manner or for a purpose that is
substantially objectionable to the Landlord or to another tenant, by reason of
noise, odors, vibrations or otherwise, or which in the reasonable judgment of
the Landlord might cause structural injury to the building or interfere in any
way with other tenants or those having business in the building or create a
nuisance. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television set, unmusical noise, singing or in
any other way.
14. The Tenant's employees, guests and visitors shall not stand or loiter around
the lobby, hallways, stairways, elevators, front, roof or any other part of the
building used in common by the occupants thereof.
15. No load shall be placed upon any floor of the building exceeding the floor
load per square foot area which such floor was designed to carry, and all loads
shall be evenly distributed. The Landlord reserves the right to prescribe the
weight and placement of all safes, machinery and other personal property in the
premises so as to distribute their weight.
16. Nothing shall be hung, shaken, thrown out of any window or doors, or down
any passages, stairways, elevators, or skylights of the building, nor shall any
of them be covered, obstructed or encumbered. The Tenant shall not use, keep or
permit to be used any foul or noxious gas or substance in the premises. No
bicycles, vehicles or animals (other than seeing-eye dogs), fish or
(ii)
53
birds shall be kept in the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
17. Building employees shall not perform any work or do anything outside of
their regular duties, unless under special instructions from the office of the
Landlord.
18. No peddling, soliciting or canvassing shall be permitted in the premises or
by the Tenant's employees elsewhere in the building.
19. All deliveries to or from the premises shall be made by means of the freight
elevators. The Landlord may prescribe, and from time to time vary, the time for
any removals or deliveries from or to the premises. Removals or deliveries of
safes, machinery, business equipment, furniture, freight, and any other heavy or
bulky matter shall be done only on the freight elevators and through the service
entrances and corridors and shall only be done upon written authorization of the
Landlord and only in such manner and by such persons as may be acceptable to the
Landlord, and the Landlord may require any further assurances or agreements or
indemnity from the Tenant to the movers to that effect. If any safe, machinery,
equipment, bulky matter or fixtures requires special handling, all work in
connection therewith shall comply with the Administrative Code of the City of
New York and all other laws and regulations applicable thereto. The Landlord
reserves the right to inspect all freight to be brought into the building and to
exclude from the building all freight which violates any of these Rules and
Regulations or the lease of which these Rules and Regulations are a part.
20. The Tenant shall not permit its servants, employees, agents, visitors or
licensees, at any time to bring or keep upon the premises any inflammable,
combustible, explosive or hazardous fluid, material, chemical or substance or
cause or permit any unusual or objectionable odors (from cooking or otherwise)
to be produced upon or emanate from the premises.
21. No Tenant shall operate any elevator in the building, except for automatic
self-service elevators.
22. The Tenant shall not use any method of heating or air-conditioning other
than that supplied or approved by the Landlord.
23. If the premises consist of basement space, or if any property of the Tenant
is stored in the basement portion of the building, all such property shall, at
the Tenant's own cost and expense, be placed entirely on skids or platforms,
which will raise such property at least six inches from the floor. The Landlord
shall have no liability for any materials stored in the basement.
24. No vending machine shall be installed or permitted to remain in the premises
unless the Landlord shall first have given its specific written authorization
for the installation of each such machine. If any vending machine dispenses any
beverages or other liquids or refrigerates, it shall have a waterproof pan
located thereunder, connected to a drain.
25. The Tenant shall not attach or install curtains, draperies, blinds, shades
or screens on any window in the premises without the Landlord's prior written
consent.
26. The Tenant shall keep the entrance door to the premises closed at all times.
27. No space in the building shall be used for manufacturing, for the storage of
merchandise, or for the sale or merchandise, goods or property of any kind at
auction or otherwise.
28. The Tenant shall have the right to its proportionate share of listings in
the building's directory, but in no event less than three listings.
29. The Landlord and its agents reserve the right to inspect all packages,
boxes, bags, handbags, attache, cases, suitcases, and other items carried into
the building, and to refuse entry into the building to any person who either
refuses to cooperate with such inspection or who is carrying any object which
may be dangerous to persons or property. In addition, the Landlord reserves the
right to implement such further measures designed to ensure safety of the
building and the persons and property located therein as the Landlord shall deem
necessary or desirable.
(iii)
54
(iv)
55
SCHEDULE B
CLEANING SPECIFICATIONS
COMMERCIAL TENANTS
FULL SERVICE CLEANING SPECIFICATIONS
A. TENANT SUITES
1. NIGHTLY
a) CARPETED FLOORS: All carpeted floors will be swept
nightly and vacuumed weekly using a high quality vacuum,
moving all light furniture such as chairs and stands.
All furniture will be replaced to its original position.
Vacuum under all desks and large furniture where
possible.
b) UNCARPETED FLOORS: All hard-surfaced floors will be
dust-mopped nightly, using a treated dust mop, moving
all light furniture. All furniture will be replaced to
its original position. Dust-mop under all desks and
large furniture where possible.
c) DUSTING AND CLEANING: Wipe all furniture tops, legs,
rungs and sides within hands' reach; wipe and disinfect
telephones. Wipe all horizontal surfaces within reach,
including window ledges, baseboards, ledges, molding and
xxxxx on glass and partitions. No feather dusters will
be allowed. Papers or other personal items (i.e.,
pictures, keys, wallets, etc.) left on desk tops will
not be moved.
d) FURNITURE AND ACCESSORIES: Dust, wipe clean and remove
finger marks, if necessary, from all furniture, file
cabinets, mapboards, and telephones using treated cloth.
e) TRASH REMOVAL: Collect and remove wastepaper, waste
material and cardboard boxes to designated area in or
adjacent to the premises.
f) MISCELLANEOUS:
i. Scour, wash clean and disinfect all water fountains
and coolers, emptying waste water as needed.
ii. Once entering a suite, the door is to be locked.
iii. Upon completion of all nightly chores, all lights
shall be turned off, windows closed, doors locked
and offices left in a neat and orderly condition.
2. QUARTERLY
A) HIGH DUSTING: Perform all high dusting throughout on a
quarterly basis unless otherwise specified, including
the following:
i. Vacuum and dust all pictures, frames, charts,
graphs and similar wall hangings not reached in
nightly cleaning.
ii. Dust all overhead pipes, sprinklers, ventilating
and air-conditioning louvers and adjacent ceiling
areas, ducts and other equipment items not reached
in nightly cleaning.
iii. Dust all venetian blinds and window frames.
iv. Wash all furniture glass.
B. RESTROOMS (Including Tenant Suites)
(v)
56
1) All lavatories shall be thoroughly cleaned with an approved
disinfectant.
2) Air fresheners shall not be used to cover-up unpleasant odors.
Should there be an unpleasant odor, proper disinfecting procedures
shall be used to xxxxx the odors. An odorless disinfectant shall be
used.
3) Remove all wastepaper and refuse, including sanitary napkins, to a
designated area in the building and dispose of same. All wastepaper
and sanitary napkin receptacles are to be thoroughly cleaned and
washed, and new liners installed; liners to be installed so as to
ensure maximum usage of receptacles.
4) Fill toilet tissue holders, seat cover containers, soap dispensers,
towel dispensers, and sanitary napkin dispensers.
5) All tasks detailed above are to be done on a nightly basis.
1. NIGHTLY CLEANING
a) WALLS AND METAL PARTITIONS: Damp wipe all metal toilet
partitions and tiled walls, removing graffiti with care
taken not to damage surfaces. All surfaces are to be
wiped dry so that all wipe marks are removed and surface
has a uniformly bright appearance. Dust the top edges of
all partitions, ledges and mirror tops.
b) FLOORS AND TILE: Floors will be swept clean and
wet-mopped with a germicidal detergent approved by the
Landlord using spray tank method. The floors will then
be mopped dry and all watermarks and stains wiped from
wall and metal partition bases, paying particular
attention to corners. Scuff marks and footmarks are to
be removed throughout.
c) METAL FIXTURES: Wash and polish all mirrors, powder
shelves, bright work (including flushometers and exposes
piping below wash basins and behind toilet fixtures),
towel dispensers, receptacles and any other metal
accessories.
d) CERAMIC FIXTURES: Scour, wash and disinfect all basins,
including faucet handles, bowls, urinals and tile walls
near urinals with approved germicidal detergent
solution. Wash both sides of all toilet seats with
approved germicidal solution and wipe dry. Toilet seats
are to be left in an upright position.
e) POWDER ROOMS: If applicable, should be thoroughly
cleaned and floors should be washed or vacuumed, as
applicable.
2. WEEKLY
a) FLOOR DRAINS: Clean, disinfect, and fill with water to
avoid the escape of sewer gases. Use of acids is
prohibited.
3. MONTHLY
a) WALLS AND METAL PARTITIONS AND WASHABLE CEILING: Wash
with water and germicidal solution. Wipe dry and polish
to a uniformly bright, clean condition.
b) HIGH DUSTING AND CLEANING: Perform all high dusting,
inclusive of grilles and diffusers, vacuum and wash all
ceiling diffusers.
c) FLOORS: All floors will be machine-scrubbed, using a
germicidal solution, detergent and water. After
scrubbing, floors will be rinsed with clean water and
dried. All water marks will be removed from walls,
partitions, and fixtures.
(vi)
57
EXHIBIT A
FLOOR PLANS
58
EXHIBIT B
WORK LETTER
A. It is agreed that the following work is to be done by the Landlord,
at the Landlord's expense prior to the Commencement Date:
1. Landlord shall deliver the premises broom clean and vacant.
2. Landlord shall provide an ACP-5 certificate relative to asbestos
compliance within the premises.
3. The Landlord shall provide the Tenant with connection points and all
fire safety lines brought to the premises to allow the Tenant to
install additional speakers and equipment necessitated by Tenant's
partitioning, as well as strobe devices required by Local Law #5. The
Tenant shall be required to install all devices within the premises and
to connect all to the Landlord's system, all at the Tenant's cost and
expense.
4. The Landlord shall deliver the existing electric system in its "as is"
condition.
5. The Landlord shall deliver the existing perimeter radiation and
sprinkler systems in good working order.
6. The Landlord shall deliver the existing bathrooms in their "as is"
condition.
***************************************************************************
It is stipulated and agreed that the foregoing constitutes the work to
be done by the Landlord referred to in the lease to which this Work Letter is
attached and all the work to be done by the Landlord in the premises, except as
otherwise expressly provided in such lease.
It is further stipulated and agreed that the aforesaid work shall be
commenced by the Landlord as soon as possible after full execution of the lease
and the payment by the Tenant of the first installment of rent and the
performance by the Tenant of any other obligations to be performed by the Tenant
at the time of the signing of the lease and shall be completed with reasonable
diligence, subject to delays of the sort in Article THIRTY-FOUR, provided that
the Landlord shall not be required to do the work on days or hours other than
usual working days and hours in the trades in question.
Subject to the foregoing provisions the Landlord reserves the right,
after according reasonable consideration to the Tenant's wishes in the matter,
to make all decisions as to the time or times when, the order and style in
which, said work is to be done, and the labor or materials to be employed
therefor. The work shall be done, unless the Landlord otherwise directs, during
the usual working hours observed by the trades in question. It is stipulated and
agreed that in case the Landlord is prevented from commencing, prosecuting or
completing said work, due to the Landlord's inability to obtain or difficulty in
obtaining the labor or materials necessary therefor, or due to any governmental
requirements or regulations relating to the priority or national defense
requirements, or due to any other cause beyond the Landlord's control, the
Landlord shall not be liable to the Tenant for damages resulting therefrom, nor
shall the Tenant be entitled to any abatement or reduction of rent by reason
thereof, nor shall the same give rise to a claim in the Tenant's favor that such
failure constitutes actual, constructive, total or partial eviction from the
premises.
59
EXHIBIT C
GUARANTY
GUARANTY AGREEMENT
FOR VALUE RECEIVED and in consideration for, and as an inducement to
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF
NEW-YORK (hereinafter referred to as "Lessor"), to make and enter into that
certain Lease dated as of _____________, 2000 with PRINCETON REVIEW PUBLISHING,
L.L.C., a New York limited liability company (hereinafter referred to as
"Lessee"), the undersigned guarantor, THE PRINCETON REVIEW INC. (hereinafter
referred to as "Guarantor") does hereby, unconditionally guarantee the full and
prompt performance and observance of all of the payments, conditions, covenants
and agreements therein provided to be paid, performed and observed by Lessee,
its successors and assigns, and agrees to pay all of Lessor's expenses,
including reasonable attorney fees, incurred in enforcing said obligations, or
incurred in enforcing this guaranty. Guarantor further agrees that its liability
under this guaranty shall be continuing, absolute, unconditional and primary and
that this guaranty shall remain in full force and effect until Lessee shall have
fully and satisfactorily discharged all of its obligations to Lessor under the
Lease and further that Lessor may, at Lessor's option, proceed against Guarantor
with or without having commenced any action against or having obtained any
judgment against Lessee or any assignee of Lessee.
Each and every default by the Lessee under the terms of the Lease shall
give rise to a separate cause of action hereunder, and separate suits may be
brought hereunder as each cause of action arises.
This guaranty and the liability hereunder shall in no wise be affected
or impaired by the creating of or any compromise, settlement, release, renewal,
extension, indulgence, change in or modification of any of the obligations and
liabilities of the Lessee under the Lease (and the Lessor is hereby expressly
authorized by Guarantor to make the same from time to time without notice to
anyone) or by any redelivery, repossession, surrender or destruction of the
leased premises in whole or in part, or by any failure, neglect or omission on
the part of the Lessor to realize upon any obligations or liabilities of the
Lessee. In order to hold Guarantor liable hereunder, there shall be no
obligation on the part of the Lessor at any time other than to have made a
written demand on the Lessee for payment that is then due and not to have
received such payment for a period of five days, or to resort for payment to any
other persons or corporations, their properties or assets or to any security,
property or other rights or remedies whatsoever and the Lessor shall have the
right to enforce this guaranty irrespective of whether or not proceedings or
steps are pending, seeking resort to or realization upon or from any of the
foregoing.
All diligence in the collection of rentals by the Lessor from the
Lessee, and all notices of any default by the Lessee under the Lease and any and
all notices of acceptance of this guaranty or of reliance by Lessor upon this
guaranty are hereby expressly waived by Guarantor. The Lease shall be
conclusively presumed to have been created and contracted in reliance upon this
guaranty.
The payment by Guarantor of any amount pursuant to this guaranty shall
not in any wise entitle Guarantor (whether by way of subrogation or otherwise)
to any right of possession of the leased property or any other right, title or
interest under the Lease.
No act of commission or omission of any kind or at any time upon the
part of the Lessor in respect of any matter whatsoever shall in any way affect
or impair this guaranty.
Guarantor expressly agrees that its obligations under this guaranty
shall (1) be absolute and unconditional irrespective of (a) any insolvency,
bankruptcy or reorganization, or dissolution of Lessee, (b) the validity,
genuineness, regularity or enforceability of the obligations of Lessee contained
in the Lease, (c) the absence of any action to enforce such obligations, (d) any
waiver or consent with respect to any of the provisions of the Lease, or (e) any
amendment, modification, consolidation, extension or renewal of the Lease,
whether or not consented to by Guarantor; and (2) constitute an absolute,
unconditional, present and continuing guaranty of performance and payment and
not of collection and not be in any way conditioned or contingent upon any
attempt to enforce performance by, or to collect from Lessee or any other
condition or contingency.
60
Guarantor expressly waives any and all presentment, demand, protest and
notice whatsoever, and (to the extent it may lawfully do so) the benefit of any
provision of law which is or might be in conflict with the terms of this
guaranty. The obligations of Guarantor shall not be affected by any action taken
by Lessor in the exercise of any right or power conferred by law or otherwise,
or by any failure or omission on the part of Lessor to enforce any rights given
by law or conferred thereby, or to take any other action thereunder, or by any
waiver of any such right or other action by Lessor or by any action of Lessor in
granting indulgence or extension to Lessee, or by any waiver by Lessor of any
notice under the provisions of the Lease. No proceedings taken for the
enforcement of the Lease shall affect the obligations of Guarantor hereunder;
nor shall the giving, taking or enforcement of any other additional security,
collateral, or guaranty for the performance of Lessee under the Lease operate to
prejudice, waiver, or affect the security of this guaranty of any rights,
powers, or remedies hereunder; nor shall Lessor be required first to look to,
enforce or exhaust such other or additional security, collateral, or guaranty.
Guarantor expressly agrees that no right, power or remedy in this
guaranty or in the Lease conferred upon Lessor is intended to be exclusive of
any other right, power or remedy, and each and every such right, power and
remedy shall, to the extent permitted by law, be cumulative and shall be in
addition to every other remedy given under this guaranty or the Agreement of
Lease, or hereafter existing at law or in equity, and may be exercised from time
to time as often as deemed expedient, separately or concurrently.
Guarantor expressly agrees that if Lessee shall be (a) merged with or
into or consolidated or amalgamated with another person, firm, corporation or
other entity, or (b) dissolved voluntarily or involuntarily, Guarantor's
obligation of guaranty hereunder shall continue in full force and effect and
apply to the performance by all successors and assigns of the obligations of
Lessee under the Lease with the same force and effect as such guaranty as set
forth above with respect to Lessee, unless in connection with such sale,
assignment, transfer, merger, consolidation, amalgamation or dissolution,
Guarantor has been expressly released in writing from its guaranty hereunder by
Lessor.
Guarantor expressly agrees that the obligations covered by this
guaranty include all obligations and liabilities of Lessee to Lessor under the
Lease now existing or hereafter coming into existence, and any renewals or
extensions, in whole or in part, of any of said obligations and liabilities
heretofore described, together with all damages, losses, costs, interest,
charges, expenses (including attorneys' fees), and liabilities of every kind,
nature and description, to the extent same are obligations and liabilities
arising under the Lease to Lessor.
The Lessor may without any notice whatsoever to anyone, sell, assign or
transfer all of its right, title, and interest as Lessor under said Agreement of
Lease or all of its right, title and interest in and to the rents and other sums
at any time due and to become due thereunder, and in such event each and every
immediate and successive assignee or transferee of the right, title and interest
of the Lessor shall have the right to enforce this guaranty by suit or otherwise
for the benefit of such assignee or transferee as fully as if such assignee or
transferee were herein by name specifically given such right, power and benefit.
This guaranty and every part thereof shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of the Lessor and
its successors and assigns.
Any notice to, or demand on, Guarantor elected to be given or made by
Lessor shall be deemed effective, on the date signed for or rejected or returned
as undeliverable if sent by certified mail, return receipt requested or be
nationally recognized overnight service providing evidence of delivery,
addressed to the Guarantor at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such
other address supplied by Guarantor with the same effect as if the same was
actually delivered to, and received by, Guarantor in person.
Guarantor waives a trial by jury and the right to interpose
counterclaims or set-offs of any kind and description in any litigation arising
out of or relating to said obligations or said liabilities or the matters
contained in this guaranty. Lessor shall not by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies hereunder and
no waiver shall be valid unless in writing, signed by Lessor and then only to
the extent therein set forth. The waiver by Lessor of any right or remedy
hereunder on any occasion shall not be construed as a bar to any right or remedy
which Lessor would otherwise have had on any future occasion. No
61
executory agreement shall be effective to change or modify or to discharge in
whole or in part this guaranty unless such executory agreement is in writing and
signed by Lessor. Guarantor shall be bound and liable hereunder.
In the event any clause or provisions of this guaranty shall be invalid
or void for any reason, such invalid or void clause or provisions shall not
affect the whole of this instrument and the balance of the provisions thereof
shall remain in full force and effect, subject to the terms of the Lease.
Whenever the context hereof shall require, the masculine pronoun
includes the feminine and neuter and the singular number includes the plural and
vice verse.
This agreement shall be construed in accordance with the laws of the
State of New York.
Guarantor represents and warrants that the person executing this
guaranty has been duly authorized to do so.
This guaranty may not be amended orally and may be amended in writing
only if Lessor shall sign such instrument as a party thereto.
IN WITNESS WHEREOF, the undersigned has hereunto executed guaranty as
of , 2000.
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THE PRINCETON REVIEW INC.
By:
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Address:
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Attention:
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Xxx.Xx.:
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Fax No.:
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62
EXHIBIT D
