AGREEMENT OF LEASE between SLG Graybar Sublease LLC Landlord and Fusion Telecommunications International, Inc. Tenant Dated as of November 1, 2005 Room 1718-1722 420 Lexington Avenue New York, New York
Execution
Counterpart
AGREEMENT
OF LEASE
between
SLG
Graybar Sublease LLC
Landlord
and
Fusion
Telecommunications International, Inc.
Tenant
Dated
as of November 1, 2005
Room
1718-1722
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx
TABLE
OF CONTENTS
|
TABLE
OF CONTENTS
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I
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|
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ARTICLE
1
|
DEMISE;
PREMISES AND PURPOSE
|
1
|
|
ARTICLE
2
|
TERM
|
2
|
|
ARTICLE
3
|
RENT
AND ADDITIONAL RENT
|
2
|
|
ARTICLE
4
|
ASSIGNMENT/SUBLETTING
|
3
|
|
ARTICLE
5
|
DEFAULT
|
10
|
|
ARTICLE
6
|
RELETTING,
ETC.
|
11
|
|
ARTICLE
7
|
LANDLORD
MAY CURE DEFAULTS
|
12
|
|
ARTICLE
8
|
ALTERATIONS
|
12
|
|
ARTICLE
9
|
LIENS
|
16
|
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ARTICLE
10
|
REPAIRS
|
17
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ARTICLE
11
|
FIRE
OR OTHER CASUALTY
|
17
|
|
ARTICLE
12
|
END
OF TERM
|
18
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|
ARTICLE
13
|
SUBORDINATION
AND ESTOPPEL, ETC.
|
19
|
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ARTICLE
14
|
CONDEMNATION
|
21
|
|
ARTICLE
15
|
REQUIREMENTS
OF LAW
|
21
|
|
ARTICLE
16
|
CERTIFICATE
OF OCCUPANCY
|
22
|
|
ARTICLE
17
|
POSSESSION
|
22
|
|
ARTICLE
18
|
QUIET
ENJOYMENT
|
23
|
|
ARTICLE
19
|
RIGHT
OF ENTRY
|
23
|
|
ARTICLE
20
|
INDEMNITY
|
24
|
|
ARTICLE
21
|
LANDLORD'S
LIABILITY, ETC.
|
24
|
|
ARTICLE
22
|
CONDITION
OF PREMISES
|
25
|
|
ARTICLE
23
|
CLEANING
|
25
|
|
ARTICLE
24
|
JURY
WAIVER
|
26
|
|
ARTICLE
25
|
NO
WAIVER, ETC.
|
26
|
|
ARTICLE
26
|
OCCUPANCY
AND USE BY TENANT
|
27
|
i
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ARTICLE
27
|
NOTICES
|
28
|
|
ARTICLE
28
|
WATER
|
28
|
|
ARTICLE
29
|
SPRINKLER
SYSTEM
|
29
|
|
ARTICLE
30
|
HEAT,
ELEVATOR, ETC.
|
29
|
|
ARTICLE
31
|
SECURITY
DEPOSIT
|
29
|
|
ARTICLE
32
|
TAX
ESCALATION
|
31
|
|
ARTICLE
33
|
RENT
CONTROL
|
34
|
|
ARTICLE
34
|
SUPPLIES
|
35
|
|
ARTICLE
35
|
AIR
CONDITIONING
|
35
|
|
ARTICLE
36
|
SHORING
|
37
|
|
ARTICLE
37
|
EFFECT
OF CONVEYANCE, ETC.
|
37
|
|
ARTICLE
38
|
RIGHTS
OF SUCCESSORS AND ASSIGNS
|
38
|
|
ARTICLE
39
|
CAPTIONS
|
38
|
|
ARTICLE
40
|
BROKERS
|
38
|
|
ARTICLE
41
|
ELECTRICITY
|
39
|
|
ARTICLE
42
|
LEASE
SUBMISSION
|
44
|
|
ARTICLE
43
|
INSURANCE
|
44
|
|
ARTICLE
44
|
SIGNAGE
|
47
|
|
ARTICLE
45
|
RIGHT
TO RELOCATE
|
47
|
|
ARTICLE
46
|
FUTURE
CONDOMINIUM CONVERSION
|
48
|
|
ARTICLE
47
|
MISCELLANEOUS
|
49
|
|
ARTICLE
48
|
COMPLIANCE
WITH LAW
|
49
|
|
ARTICLE
49
|
LANDLORD’S
CONTRIBUTION
|
50
|
|
RULES
AND REGULATIONS
|
54
|
|
ii
INDEX
OF DEFINED TERMS
|
TERM
|
PAGE
|
|
Additional
Rent
|
2
|
|
Alterations
|
14
|
|
Base
Tax Year
|
32
|
|
Brokers
|
38
|
|
Building
|
1
|
|
Building
Cleaning Contractor
|
25
|
|
Building
Project
|
32
|
|
Commencement
Date
|
2
|
|
Comparative
Year
|
32
|
|
Cooling
Season
|
36
|
|
Declaration
|
49
|
|
Delivery
Personnel
|
1
|
|
ERIF
|
39
|
|
excess
electricity
|
40
|
|
Existing
HVAC Equipment
|
36
|
|
Expiration
Date
|
2
|
|
Fixed
Annual Rent
|
2
|
|
HVAC
System
|
36
|
|
Landlord
|
1
|
|
Landlord’s
Electrical Consultant
|
40
|
|
Landlord’s
Relocation Work
|
48
|
|
Landlord’s
Restoration Work
|
17
|
|
Landlord's
Contribution
|
50
|
|
Lease
|
1
|
|
Leaseback
Area
|
4
|
|
Ordinary
Business Hours
|
39
|
|
Ordinary
Equipment
|
39
|
|
Premises
|
1
|
|
Qualified
Renovations
|
50
|
|
Real
Estate Taxes
|
32
|
|
Recapture
Date
|
4
|
|
Relocation
Effective Date
|
47
|
|
Relocation
Notice
|
47
|
|
Relocation
Space
|
47
|
|
Rent
|
2
|
|
Requisition
|
50
|
|
Retainage
|
51
|
|
Security
|
29
|
|
Supplemental
Systems
|
36
|
|
Tenant
|
1
|
|
Tenant
Cleaning Services
|
25
|
|
Tenant’s
Initial Alteration Work
|
50
|
iii
|
Tenant’s
Recapture Offer
|
4
|
|
Tenant’s
Share
|
32
|
|
Term
|
2
|
|
Work
Cost
|
50
|
iv
LEASE
(this
“Lease”)
made
as of the 1st
day of
November 2005 between SLG Graybar Sublease LLC having an office c/o XX Xxxxx
Realty Corp., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, hereinafter
referred to as "Landlord", and Fusion Telecommunications International, Inc.,
a Delaware corporation having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX, 00000, hereinafter referred to as "Tenant".
WITNESSETH
Landlord
and Tenant, in
consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby
covenant and agree as follows:
ARTICLE
1
DEMISE;
PREMISES AND PURPOSE
1.01 Landlord
hereby leases and demises to Tenant, and Tenant hereby hires and takes from
Landlord, those certain Premises located on and comprising a rentable portion
of
the seventeenth (17th) floor designated as Room 1718-22, approximately as
indicated by hatch marks on the plan annexed hereto and made a part hereof
as
“Exhibit A” (the “Premises”)
in the
building known as and located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the
“Building”)
subject to the provisions of this Lease.
1.02 The
Premises shall be used and occupied for executive and general office use
consistent with that found in Class “A” high-rise office buildings located in
midtown Manhattan only and for no other purpose.
1.03 Neither
the Premises, nor the halls, corridors, stairways, elevators or any other
portion of the Building shall be used by the Tenant or the Tenant's servants,
employees, licensees, invitees or visitors in connection with the aforesaid
permitted use or otherwise so as to cause any congestion of the public portions
of the Building or the entranceways, sidewalks or roadways adjoining the
Building whether by trucking or by the congregating or loitering thereon of
the
Tenant and/or the servants, employees, licensees, invitees or visitors of the
Tenant.
1.04 Tenant
shall not permit messengers, delivery personnel or other individuals providing
such services to Tenant (“Delivery
Personnel”)
to:
(i) assemble, congregate or to form a line outside of the Premises or the
Building or otherwise impede the flow of pedestrian traffic outside of the
Premises or Building or (ii) park or otherwise leave bicycles, wagons or other
delivery carts outside of the Premises or the Building except in locations
outside of the Building designated by Landlord from time-to-time. Tenant shall
require all Delivery Personnel to comply with rules promulgated by Landlord
from
time-to-time regarding the use of outside messenger services.
1
ARTICLE
2
TERM
2.01 The
Premises are leased for a term of ten (10) years (the "Term")
which
shall commence on November 1, 2005 (the “Commencement
Date”)
and
shall end on October 31, 2015 (the “Expiration
Date”)
or on
such earlier date upon which the Term shall expire, be canceled or terminated
pursuant to any of the conditions or covenants of this Lease or pursuant to
law.
ARTICLE
3
RENT
AND ADDITIONAL RENT
3.01 Tenant
shall pay fixed annual rent without electricity (the “Fixed
Annual Rent”)
at the
rates provided for in the schedule annexed hereto and made a part hereof as
“Exhibit B” in equal monthly installments in advance on the first (1st)
day of
each calendar month during the Term, except that the first (1st)
monthly
installment of Fixed Annual Rent shall be paid by Tenant upon its execution
of
this Lease. All sums other than Fixed Annual Rent payable hereunder shall be
deemed to be "Additional
Rent"
and
shall be payable on demand, unless other payment dates are hereinafter provided.
Tenant shall pay all Fixed Annual Rent and Additional Rent due hereunder at
the
office of Landlord or such other place as Landlord may designate, payable in
United States legal tender, by cash, or by good and sufficient check drawn
on a
New York City bank which is a member of the New York Clearing House or a
successor thereto, and without any set off or deduction whatsoever. The term
"Rent"
as used
in this Lease shall mean Fixed Annual Rent and Additional Rent. Landlord may
apply payments made by Tenant towards the payment of any item of Fixed Annual
Rent and/or Additional Rent payable hereunder notwithstanding any designation
by
Tenant as to the items against which any such payment should be
credited.
3.02 Subject
to the provisions hereof, if and so long as Tenant is not in material default
under this Lease
after
notice and the expiration of any applicable cure period,
the
first (1st)
three
(3) monthly installments of Fixed Annual Rent (without electricity) accruing
under the Lease shall each be abated by the amount of $35,699.21 (for an
aggregate abatement in the sum of $107,097.63). Anything contained hereinabove
to the contrary notwithstanding, if Tenant at any time during the term of the
Lease, breaches any material covenant, condition or provision of the Lease
and
fails to cure such breach within any applicable grace period, and provided
that
the Lease is terminated by Landlord because of such material default, then,
in
addition to all other damages and remedies herein provided and to which Landlord
may be otherwise entitled, Landlord shall also be entitled to the repayment
in
full of all Rent which has theretofore been abated under the provisions of
this
Lease, which repayment Tenant shall make upon demand therefore, provided,
however, that for purposes of this subsection, said payment shall equal the
product obtained by multiplying said credit by a fraction, the numerator of
which is the number of months, and portions thereof, remaining in the term
of
this Lease after such breach, and the denominator of which is one hundred twenty
(120).
2
ARTICLE
4
ASSIGNMENT/SUBLETTING
4.01 Neither
Tenant nor Tenant's legal representatives or successors in interest by operation
of law or otherwise, shall assign, mortgage or otherwise encumber this Lease,
or
sublet or permit all or part of the Premises to be used by others, without
the
prior written consent of Landlord in each instance, which consent shall not
be
unreasonably withheld, denied or delayed in accordance with Section 4.07 herein.
Subject to the provisions of Section 4.09 hereof, the transfer of a majority
of
the issued and outstanding capital stock of any corporate tenant or sublessee
of
this Lease or a majority of the total interest in any partnership tenant or
sublessee or company, however accomplished, and whether in a single transaction
or in a series of related or unrelated transactions, the conversion of a tenant
or sublessee entity to either a limited liability company or a limited liability
partnership or the merger or consolidation of a corporate tenant or sublessee,
shall be deemed an assignment of this Lease or of such sublease. The transfer
of
issued and outstanding capital stock, for purposes of this Article, shall not
include the public sale of such stock (i) by persons who are not those deemed
"insiders" within the meaning of the Securities Exchange Act of 1934 as amended,
and which sale is (ii) effected through the "over-the-counter market" or through
any legitimate stock exchange recognized in the United States. If this Lease
is
assigned, or if the Premises or any part thereof is underlet or occupied by
anybody other than Tenant, Landlord may, after default by Tenant, collect rent
from the assignee, undertenant or occupant, and apply the net amount collected
to the rent herein reserved, but no assignment, underletting, occupancy or
collection shall be deemed a waiver of the provisions hereof, the acceptance
of
the assignee, undertenant or occupant as tenant, or a release of Tenant from
the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not
in
any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting, as provided
herein. In no event shall any permitted sublessee assign or encumber its
sublease or further sublet all or any portion of its sublet space, or otherwise
suffer or permit the sublet space or any part thereof to be used or occupied
by
others, without Landlord's prior written consent in each instance, as provided
herein. A modification, amendment or extension of a sublease shall be deemed
a
sublease. The listing of the name of a party or entity other than that of Tenant
on the Building or floor directory or on or adjacent to the entrance door to
the
Premises shall neither grant such party or entity any right or interest in
this
Lease or in the Premises nor constitute Landlord's consent to any assignment
or
sublease to, or occupancy of the Premises by, such party or entity. If any
lien
is filed against the Premises or the Building of which the same form a part
for
brokerage services claimed to have been performed for Tenant in connection
with
any such assignment or sublease, whether or not actually performed, the same
shall be discharged within twenty-five (25) days after Tenant receives or has
actual notice thereof, at Tenant's expense, by filing the bond required by
law,
or otherwise, and paying any other necessary sums, and Tenant agrees to
indemnify Landlord and its agents and hold them harmless from and against any
and all claims, losses or liability resulting from such lien for brokerage
services rendered.
3
4.02 If
Tenant
desires to assign this Lease or to sublet all or any portion of the Premises,
it
shall first submit in writing to Landlord the documents described in Section
4.06 hereof, and shall offer in writing (“Tenant’s
Recapture Offer”),
(i)
with respect to a prospective assignment, to assign this Lease to Landlord
without any payment of moneys or other consideration therefor, or, (ii) with
respect to a prospective subletting, to sublet to Landlord the portion of the
Premises involved (“Leaseback
Area")
for
the term specified by Tenant in its proposed sublease or, at Landlord's option
for the balance of the term of the Lease less one (1) day, and at the lower
of
(a) Tenant's proposed subrental or (b) the rate of Fixed Annual Rent and
Additional Rent, and otherwise on the same terms, covenants and conditions
(including provisions relating to escalation rents), as are contained herein
and
as are allocable and applicable to the portion of the Premises to be covered
by
such subletting. Tenant’s Recapture Offer shall specify the date when the
Leaseback Area will be made available to Landlord, which date shall be in no
event earlier than thirty (30) days nor later than ninety (90) days following
the acceptance of Tenant’s Recapture Offer (the “Recapture
Date”).
If an
offer of sublease is made, and if the proposed sublease will result in all
or
substantially all of the Premises being sublet, then Landlord shall have the
option to extend the term of its proposed sublease for the balance of the term
of this Lease less one (1) day. Landlord shall have a period of thirty (30)
days
from the receipt of such Tenant’s Recapture Offer to either accept or reject
Tenant’s Recapture Offer or to terminate this Lease.
4.03. If
Landlord exercises its option to terminate this Lease, then (i) the term of
this
Lease shall end at the election of Landlord either (x) on the date that such
assignment or sublet was to become effective or commence, as the case may be,
or
(y) on the Recapture Date and (ii) Tenant shall surrender to Landlord and vacate
the Premises on or before such date in the same condition as is otherwise
required upon the expiration of this Lease by its terms, (iii) the Rent and
Additional Rent due hereunder shall be paid and apportioned to such date, and
(iv) Landlord shall be free to lease the Premises (or any portion thereof)
to
any individual or entity including, without limitation, Tenant’s proposed
assignee or subtenant.
4
4.04. If
Landlord shall accept Tenant’s Recapture Offer Tenant shall then execute and
deliver to Landlord, or to anyone designated or named by Landlord, an assignment
or sublease, as the case may be, in either case in a form reasonably
satisfactory to Landlord's counsel.
If
a
sublease is so made it shall expressly:
(i) permit
Landlord to make further subleases of all or any part of the Leaseback Area
and
(at no cost or expense to Tenant) to make and authorize any and all changes,
alterations, installations and improvements in such space as
necessary;
(ii) provide
that Tenant will at all times permit reasonably appropriate means of ingress
to
and egress from the Leaseback Area;
(iii) negate
any intention that the estate created under such sublease be merged with any
other estate held by either of the parties;
(iv) provide
that Landlord shall accept the Leaseback Area "as is" except that Landlord,
at
Tenant's expense, shall perform all such work and make all such alterations
as
may be required physically to separate the Leaseback Area from the remainder
of
the Premises and to permit lawful occupancy, it being intended that Tenant
shall
have no other cost or expense in connection with the subletting of the Leaseback
Area;
(v) provide
that at the expiration of the term of such sublease Tenant will accept the
Leaseback Area in its then existing condition, subject to the obligations of
Landlord to make such repairs thereto as may be necessary to preserve the
Leaseback Area in good order and condition, ordinary wear and tear
excepted.
4.05 Landlord
shall indemnify and save Tenant harmless from all obligations under this Lease
as to the Leaseback Area during the period of time it is so sublet, except
for
Fixed Annual Rent and Additional Rent, if any, due under the within Lease,
which
are in excess of the rents and additional sums due under such sublease. Subject
to the foregoing, performance by Landlord, or its designee, under a sublease
of
the Leaseback Area shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease,
nor
shall Tenant be liable for any default under this Lease or deemed to be in
default hereunder if such default is occasioned by or arises from any act or
omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease.
5
4.06 If
Tenant
requests Landlord's consent to a specific assignment or subletting, it shall
submit in writing to Landlord (i) the name and address of the proposed assignee
or sublessee, (ii) a duly executed counterpart of the proposed agreement of
assignment or sublease, (iii) reasonably satisfactory information as to the
nature and character of the business of the proposed assignee or sublessee
and
as to the nature of its proposed use of the space, and (iv) banking, financial
or other credit information relating to the proposed assignee or sublessee
reasonably sufficient to enable Landlord to determine the financial
responsibility and character of the proposed assignee or sublessee.
4.07. If
Landlord shall not have accepted Tenant’s Recapture Offer and Landlord shall not
have terminated this Lease, as provided for in Section 4.02 hereof, then
Landlord will not unreasonably withhold or delay its consent to Tenant's request
for consent to such specific assignment or subletting for the use permitted
under this Lease, provided that:
(i) The
Premises shall not, without Landlord's prior consent, have been listed or
otherwise publicly advertised for assignment or subletting at a rental rate
lower than the higher of (a) the Fixed Annual Rent and all Additional Rent
then
payable, or (b) the then prevailing rental rate for other space in the
Building;
(ii) The
proposed assignee or subtenant shall have a financial standing, be of a
character, be engaged in a business, and propose to use the Premises, in a
manner consistent with the permitted use and in keeping with the standards
of
the Building;
(iii) The
proposed assignee or subtenant shall not then be a tenant, subtenant, assignee
or occupant of any space in the Building, nor shall the proposed assignee or
subtenant be a person or entity who has dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during
the
four (4) months immediately preceding Tenant's request for Landlord's
consent;
(iv) The
character of the business to be conducted in the Premises by the proposed
assignee or subtenant shall not be likely to increase operating expenses or
the
burden on existing cleaning services, elevators or other services and/or systems
of the Building;
(v) In
case
of a subletting, the subtenant shall be expressly subject to all of the
obligations of Tenant under this Lease and the further condition and restriction
that such sublease shall not be assigned, encumbered or otherwise transferred
or
the Premises further sublet by the subtenant in whole or in part, or any part
thereof suffered or permitted by the subtenant to be used or occupied by others,
without the prior written consent of Landlord in each instance;
6
(vi) No
subletting shall end later than one (1) day before the Expiration Date nor
shall
any subletting be for a term of less than two (2) years unless it commences
less
than two (2) years before the Expiration Date;
(vii) At
no
time shall there be more than two (2) occupants, including Tenant, in the
Premises;
(viii) Tenant
shall reimburse Landlord on demand for any reasonable costs, including
attorneys' fees and disbursements, that may be incurred by Landlord in
connection with said assignment or sublease;
(ix) The
character of the business to be conducted in the Premises by the proposed
assignee or subtenant shall not require any alterations, installations,
improvements, additions or other physical changes to be performed, or made
to,
any portion of the Building or the Real Property other than the Premises;
and
(x) The
proposed assignee or subtenant shall not be any entity which is entitled to
diplomatic or sovereign immunity or which is not subject to service of process
in the State of New York or to the jurisdiction of the courts of the State
of
New York and the United States located in New York County.
4.08 Any
consent of Landlord under this Article shall be subject to the terms of this
Article and conditioned upon there being no default by Tenant, beyond any grace
period, under any of the terms, covenants and conditions of this Lease at the
time that Landlord's consent to any such subletting or assignment is requested
and on the date of the commencement of the term of any proposed sublease or
the
effective date of any proposed assignment. Tenant acknowledges and agrees that
no assignment or subletting shall be effective unless and until Tenant, upon
receiving any necessary Landlord's written consent (and unless it was
theretofore delivered to Landlord) causes a duly executed copy of the sublease
or assignment to be delivered to Landlord within ten (10) days after execution
thereof. Any such sublease shall provide that the sublessee shall comply with
all applicable terms and conditions of this Lease to be performed by the Tenant
hereunder. Any such assignment of this Lease shall contain an assumption by
the
assignee of all of the terms, covenants and conditions of this Lease to be
performed by the Tenant.
4.09. Anything
hereinabove contained to the contrary notwithstanding, Landlord will not
unreasonably withhold or delay its consent to an assignment of this Lease,
or
sublease of all or part of the Premises, to the parent of Tenant or to a
wholly-owned subsidiary of Tenant or of said parent of Tenant, provided the
net
worth of transferor or sublessor, after such transaction, is not less than
its
net worth as of (a) the Commencement Date or (b) the day immediately prior
to
such transaction, whichever is greater, and provided also that any such
transaction complies with the other provisions of this Article.
7
4.10 If
Landlord shall not have elected to terminate this Lease in accordance with
Section 4.02 hereof, and Tenant effects any assignment or subletting (other
than
pursuant to Section 4.09 above), then Tenant thereafter shall pay to Landlord
a
sum equal to fifty (50%) percent of (a) any rent or other consideration payable
to Tenant by any subtenant (after deducting the cost of Tenant, if any, in
effecting the subletting or assignment, for reasonable alteration costs,
advertising expenses, brokerage commissions, reasonable rent concessions and
legal fees) which is in excess of the rent allocable to the subleased space
which is then being paid by Tenant to Landlord pursuant to the terms hereof,
and
(b) any other profit or gain realized by Tenant (after deducting the cost of
Tenant, if any, in effecting the subletting or assignment, for reasonable
alteration costs, advertising expenses, brokerage commissions, reasonable rent
concessions and legal fees not previously deducted pursuant to subsection a
above) from any such subletting or assignment. The foregoing amounts shall
be
payable to Landlord only if, as and when, the same are received by Tenant from
said assignee or sublessee.
4.11. In
no
event shall Tenant be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim or defense) based upon any claim
or assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed its consent or approval to a proposed assignment or subletting as
provided for in this Article. Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment.
4.12
Notwithstanding anything contained herein to the contrary, Tenant shall be
permitted to license to third parties, free of any termination right of Landlord
hereunder and without seeking the prior consent of Landlord, up to thirty (30%)
percent of the Premises for “desk space” for uses permitted under this Lease
only, provided that (i) any such “desk space” so licensed by Tenant does not
have separate means of ingress to or egress from the Premises to the public
corridors of the Building, and (ii) Landlord is delivered advance written notice
of each such “desk space” license agreement entered into by Tenant along with a
copy of same which is, by its express terms, made subject to this Lease, and
comprehensive identification and contact information of each proposed licensee.
In the event of a licensing of “desk space” by Tenant in accordance with the
provisions of this Section, any “recapture” and termination rights of Landlord
under this Article 4 shall not apply, but the remaining provisions of this
Article 4, exclusive of the provisions of 4.10, shall apply thereto as if all
references therein to a “sublease” or “assignment” were, instead, to a
“license”.
8
4.13
Solely with respect to the provisions of Article 4 of this Lease, if
a
dispute arises between the parties which cannot be resolved by negotiation,
they
shall submit the matter to binding arbitration before the American Arbitration
Association or any successor organization, in accordance with the rules,
regulations and/or procedures for expedited proceedings then obtaining of the
American Arbitration Association or such successor organization. The parties
shall jointly designate an independent arbitrator (the "Arbitrator"). In the
event that the parties shall be unable to jointly agree on the designation
of
the Arbitrator within five (5) days after written request by either party,
the
parties shall allow the American Arbitration Association, or any successor
organization, to designate the Arbitrator in accordance with the rules,
regulations and/or procedures for expedited proceedings then obtaining of the
American Arbitration Association or such successor organization. The arbitration
shall be held at New York, New York, on seven (7) days notice, within seven
(7)
days of the appointment of the Arbitrator. The Arbitrator shall conduct such
hearings, discovery and investigations as he/she may deem appropriate, provided
that they shall be concluded within thirty (30) days after the date of
designation of the Arbitrator. Within ten (10) after the conclusion thereof,
the
Arbitrator shall issue a determination. The determination of the arbitrator
shall be conclusive and binding upon the parties and shall be set forth, along
and with the Arbitrator's rationale for such determination, in a written report
delivered to the parties. Each party shall pay its own counsel fees and
expenses, if any, in connection with any arbitration under this Article. The
Arbitrator appointed pursuant to this Article shall be an independent real
estate construction professional with at least ten (10) years' experience in
commercial real estate /commercial leasing. The Arbitrator shall not have the
power to add to, modify or delete any of the provisions of this Agreement.
The
sole function of the Arbitrator shall be to determine whether Landlord has
acted
reasonably and whether to require Landlord to grant such consent or approval;
the Arbitrator may not award damages or grant any other monetary award or
relief.
4.14 Anything
hereinabove contained to the contrary notwithstanding, the "recapture"
provisions of this Article and the provisions of Section 4.10 hereof shall
not
apply in connection with, and Landlord's consent shall not be required for
(a)
an assignment of this Lease, or sublease of all or part of the Premises for
the
uses permitted hereunder, to a Related Entity or (b) in connection with a deemed
assignment of this Lease resulting from a transfer of a majority of the issued
and outstanding shares of capital stock or ownership interests of Tenant
provided that such transfer shall be for a legitimate business purpose and
not
principally for the purpose of transferring this Lease, and provided further,
with respect to both clauses (a) and (b), to the extent applicable, that: (i)
Landlord is given prior notice thereof and reasonably satisfactory proof that
the requirements of this Article 4 (to the extent applicable to the transaction)
have been met and Tenant agrees to remain primarily liable, jointly and
severally, with any assignee, for the obligations of Tenant under this Lease
and
(ii) in Landlord's reasonable judgment the proposed assignee or subtenant is
engaged in a business and the Premises, or the relevant part thereof, will
be
used in a manner which (x) is in keeping with the standards of the Building
and
(y) would not adversely affect or increase Landlord's cost in the operation
of
the Building.
4.14 For
purposes of this Article:
A.
a
"Related
Entity"
shall
mean:
9
(x)
a
wholly-owned subsidiary of Tenant or any corporation or entity which controls
or
is controlled by Tenant or is under common control with Tenant, or
(y)
any
entity (a "Successor
Entity")
(i) to
which substantially all the assets of Tenant are transferred, or (ii) into
which
Tenant may be merged or consolidated, provided that in either such case both
the
net worth and ratio of current assets to current liabilities (exclusive of
good
will) of such transferee or of the resulting or surviving corporation or other
business entity, as the case may be, as certified by the certified public
accountants of such transferee or the resulting or surviving business entity
in
accordance with generally accepted accounting principles, consistently applied,
is not less than Tenant's net worth and ratio of current assets to current
liabilities (exclusive of good will), as so certified, as of the day immediately
prior to such transaction and provided also that any such transaction complies
with the other provisions of this Article; and
B.
the
term "control"
shall
mean, in the case of a corporation or other entity, ownership or voting control,
directly or indirectly, of at least fifty (50%) percent of all of the general
or
other partnership (or similar) interests therein and the power to determine
the
actions of such entity.
ARTICLE
5
DEFAULT
5.01 Landlord
may terminate this Lease on five (5) business days' notice: (a) if Fixed Annual
Rent or Additional Rent is not paid within five (5) business days after written
notice from Landlord; or (b) if Tenant shall have failed to cure a default
in
the performance of any covenant of this Lease (except the payment of Rent),
or
any rule or regulation hereinafter set forth, within twenty (20) days after
written notice thereof from Landlord, or if default cannot be completely cured
in such time, if Tenant shall not promptly proceed to cure such default within
said twenty (20) days, or shall not complete the curing of such default with
due
diligence; or (c) when and to the extent permitted by law, if a petition in
bankruptcy shall be filed by or against Tenant or if Tenant shall make a general
assignment for the benefit of creditors, or receive the benefit of any
insolvency or reorganization act; or (d) if a receiver or trustee is appointed
for any portion of Tenant's property and such appointment is not vacated within
thirty (30) days; or (e) if an execution or attachment shall be issued under
which the Premises shall be taken or occupied or attempted to be taken or
occupied by anyone other than Tenant; or (f) if the Premises become and remain
abandoned for a period of twenty-five (25) days; or (g) if Tenant shall default
beyond any grace period under any other lease between Tenant and Landlord.
At
the expiration of the five (5) business day notice period, this Lease and any
rights of renewal or extension thereof shall terminate as completely as if
that
were the date originally fixed for the expiration of the Term of this Lease,
but
Tenant shall remain liable as hereinafter provided.
10
5.02 In
the
event that Tenant is in arrears for Fixed Annual Rent or any item of Additional
Rent, Tenant waives its right, if any, to designate the items against which
payments made by Tenant are to be credited and Landlord may apply any payments
made by Tenant to any items which Landlord in its sole discretion may elect
irrespective of any designation by Tenant as to the items against which any
such
payment should be credited.
5.03 Tenant
shall not seek to remove and/or consolidate any summary proceeding brought
by
Landlord with any action commenced by Tenant in connection with this Lease
or
Tenant's use and/or occupancy of the Premises.
5.04 In
the
event of a default by Landlord hereunder, no property or assets of Landlord,
or
any principals, shareholders, officers, directors, partners or members of
Landlord, whether disclosed or undisclosed, other than the Building in which
the
Premises are located and the land upon which the Building is situated, shall
be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship
of
Landlord and Tenant hereunder or Tenant's use and occupancy of the
Premises.
ARTICLE
6
RELETTING,
ETC.
6.01 If
Landlord shall re-enter the Premises on the default of Tenant, by summary
proceedings or otherwise: (a) Landlord may re-let the Premises or any part
thereof, as Tenant's agent, in the name of Landlord, or otherwise, for a term
shorter or longer than the balance of the term of this Lease, and may grant
concessions or free rent; (b) Tenant shall pay Landlord any deficiency between
the rent hereby reserved and the net amount of any rents collected by Landlord
for the remaining term of this Lease, through such re-letting. Such deficiency
shall become due and payable monthly, as it is determined. Landlord shall have
no obligation to re-let the Premises, and its failure or refusal to do so,
or
failure to collect rent on re-letting, shall not affect Tenant's liability
hereunder. In computing the net amount of rents collected through such
re-letting, Landlord may deduct all reasonable expenses incurred in obtaining
possession or re-letting the Premises, including legal expenses and fees,
brokerage fees, the cost of restoring the Premises to good order, and the cost
of all alterations and decorations deemed necessary by Landlord to effect
re-letting. In no event shall Tenant be entitled to a credit or repayment for
rerental income which exceeds the sums payable by Tenant hereunder or which
covers a period after the original term of this Lease; (c) Tenant hereby
expressly waives any right of redemption granted by any present or future law.
"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 of any
of
the covenants or provisions hereof, Landlord shall have the right of injunctive
relief. Mention herein of any particular remedy shall not preclude Landlord
from
any other available remedy; (d) Landlord shall recover as liquidated damages,
in
addition to accrued rent and other charges, if Landlord's re-entry is the result
of Tenant's bankruptcy, insolvency, or reorganization, the full rental for
the
maximum period allowed by any act relating to bankruptcy, insolvency or
reorganization.
11
6.02 If
Landlord re-enters the Premises for any cause, or if Tenant abandons the
Premises, or after the expiration of the term of this Lease, any property left
in the Premises by Tenant shall be deemed to have been abandoned by Tenant,
and
Landlord shall have the right to retain or dispose of such property in any
manner without any obligation to account therefor to Tenant. If Tenant shall
at
any time default hereunder, and if Landlord shall institute an action or summary
proceeding against Tenant based upon such default, then Tenant will reimburse
Landlord for the legal expenses and fees thereby incurred by
Landlord.
ARTICLE
7
LANDLORD
MAY CURE DEFAULTS
7.01 If
Tenant
shall default in performing any covenant or condition of this Lease, Landlord
may perform the same for the account of Tenant, and if Landlord, in connection
therewith, or in connection with any default by Tenant, makes any expenditures
or incurs any obligations for the payment of money, including but not limited
to
reasonable attorney's fees, such sums so paid or obligations incurred shall
be
deemed to be Additional Rent hereunder, and shall be paid by Tenant to Landlord
within ten (10) business days of rendition of any xxxx or statement therefor,
and if Tenant's lease term shall have expired at the time of the making of
such
expenditures or incurring of such obligations, such sums shall be recoverable
by
Landlord as damages.
ARTICLE
8
ALTERATIONS
8.01 (A)
Tenant shall make no decoration, alteration, addition or improvement in the
Premises, without the prior written consent of Landlord, and then only by
contractors or mechanics and in such manner and time, and with such materials,
as reasonably approved by Landlord (notwithstanding the foregoing, however,
Landlord’s prior negative experience with, concerns regarding the financial
stability of, and any criminal proceedings pending against, any such contractor
or mechanic shall be deemed to be a reasonable basis upon which for Landlord
to
refuse to grant its approval). All alterations, additions or improvements to
the
Premises, including air-conditioning equipment and duct work, except movable
office furniture and trade equipment installed at the expense of Tenant, shall,
unless Landlord elects otherwise in writing, become the property of Landlord,
and shall be surrendered with the Premises, at the expiration or sooner
termination of the term of this Lease. Any such alterations, additions and
improvements which Landlord shall designate, shall be removed by Tenant and
any
damage repaired, at Tenant's expense, prior to the expiration of this Lease,
unless written request has been made by Tenant at the time of Tenant’s request
for Landlord’s approval of the installation of such item(s) by means of the
following sentence in capital letters:
12
TENANT
REQUESTS THAT LANDLORD NOTIFY TENANT TOGETHER WITH LANDLORD’S CONSENT TO THE
ENCLOSED TENANT'S PLANS WHETHER LANDLORD REQUIRES ANY ALTERATION SHOWN ON THE
ENCLOSED PLANS TO BE REMOVED FROM THE PREMISES AT THE EXPIRATION OR SOONER
TERMINATION OF THE TERM. IF LANDLORD SHALL FAIL TO RESPOND HERETO AT THE TIME
OF
LANDLORD’S CONSENT TO SUCH ALTERATION AND RESERVE SUCH RIGHT, THEN LANDLORD
SHALL BE DEEMED TO HAVE WAIVED LANDLORD’S RIGHT TO REQUIRE SUCH ALTERATION TO BE
REMOVED AT THE END OF THE TERM.
Landlord
elects by notice to Tenant in response thereto to relinquish Landlord's right
thereto and to have them removed by Tenant, in which case, the item(s) shall
be
removed from the Premises by Tenant, and any resulting damage to the Premises
or
the Building repaired by Tenant, at Tenant's expense, prior to the expiration
of
the Lease.
(B)
Notwithstanding
anything contained in this Lease to the contrary, Tenant shall not be obligated
to remove any Alterations (hereinafter defined) hereinafter performed in or
to
the Premises except for Specialty Alterations. For purposes of this Section
8.01
(B), "Specialty
Alterations"
shall
mean Alterations consisting of kitchens, pantries, executive bathrooms, raised
computer floors, server rooms, vaults, libraries, filing systems, internal
staircases, dumbwaiters, pneumatic tubes, vertical and horizontal transportation
systems, any Alterations which are structural in nature or penetrate or
otherwise affects any floor slab, and other Alterations of a similar character
which are not customary for general office use in non-institutional office
buildings in midtown Manhattan. Tenant shall, at Tenant's cost and expense,
remove any Specialty Alteration designated by Landlord, repair any damage to
the
Premises or the Building due to such removal, cap all electrical, plumbing
and
waste disposal lines in accordance with sound construction practice and restore
the Premises to the condition existing prior to the making of such Specialty
Alteration, reasonable wear and tear and damage from casualty excepted. All
such
work shall be performed in accordance with plans and specifications first
approved by Landlord, such approval not to be unreasonably withheld or delayed,
and all applicable terms, covenants, and conditions of this Lease. If the
Landlord’s insurance premiums increase as a result of any Specialty Alterations,
Tenant shall pay each such increase each year as Additional Rent within thirty
(30) days after receipt of a xxxx therefore from Landlord.
13
(C)
Notwithstanding anything contained herein to the contrary, Tenant shall not
be
required to obtain Landlord’s prior written consent or approval for any
nonstructural, purely decorative, interior improvements to the Premises
provided, however that said improvements do not consist of changes or
modifications to any Building plumbing, electrical, air conditioning or other
Building wide systems and do not affect and are not visible from any portion
of
the Building outside of the Premises.
8.02 Anything
hereinabove to the contrary notwithstanding, Landlord will not unreasonably
withhold or delay approval of written requests of Tenant to make nonstructural
interior alterations, decorations, additions and improvements (herein referred
to as "Alterations")
in the
Premises, provided that such Alterations do not affect utility services or
plumbing and electrical lines or other systems of the Building and do not affect
and are not visible from any portion of the Building outside of the Premises.
All Alterations shall be performed in accordance with the following
conditions:
(i) Prior
to
the commencement of any Alterations costing more than $10,000.00, Tenant shall
first submit to Landlord for its approval detailed dimensioned coordinated
plans
and specifications, including layout, architectural, mechanical, electrical,
plumbing and structural drawings for each proposed Alteration. Landlord shall
be
given, in writing, a good description of all other Alterations.
(ii) All
Alterations in and to the Premises shall be performed in a good and workmanlike
manner and in accordance with the Building’s rules and regulations governing
Tenant Alterations. Prior to the commencement of any such Alterations, Tenant
shall, at its sole cost and expense, obtain and exhibit to Landlord any
governmental permit required in connection with such Alterations. In order
to
compensate Landlord for its general conditions and the costs incurred by
Landlord in connection with Tenant’s performance of Alterations in and/or to the
Premises (including, without limitation, the costs incurred by Landlord in
connection with the coordination of Alterations which may affect systems or
services of the Building or portions of the Building outside of the Premises),
Tenant shall pay to Landlord a fee equal to Landlord’s actual out of pocket
expenses incurred in connection therewith. Such fee shall be paid by Tenant
as
Additional Rent hereunder within ten (10) days following receipt of an invoice
therefor.
(iii) All
Alterations shall be done in compliance with all other applicable provisions
of
this Lease and with all applicable laws, ordinances, directions, rules and
regulations of governmental authorities having jurisdiction, including, without
limitation, the Americans with Disabilities Act of 1990 and New York City Local
Law No. 57/87 and similar present or future laws, and regulations issued
pursuant thereto, and also New York City Local Law No. 76 and similar present
or
future laws, and regulations issued pursuant thereto, on abatement, storage,
transportation and disposal of asbestos and other hazardous materials, which
work, if required, shall be effected at Tenant's sole cost and expense, by
contractors and consultants approved by Landlord and in strict compliance with
the aforesaid rules and regulations and with Landlord's rules and regulations
thereon.
14
(iv) All
work
shall be performed with union labor having the proper jurisdictional
qualifications.
(v) Tenant
shall keep the Building and the Premises free and clear of all liens for any
work or material claimed to have been furnished to Tenant or to the Premises.
(vi) Prior
to
the commencement of any work by or for Tenant, Tenant shall furnish to Landlord
certificates evidencing the existence of the following insurance:
(a) Workmen's
compensation insurance covering all persons employed for such work and with
respect to whom death or bodily injury claims could be asserted against
Landlord, Tenant or the Premises.
(b) Broad
form general liability insurance written on an occurrence basis naming Tenant
as
an insured and naming Landlord and its designees as additional insureds, with
limits of not less than $3,000,000 combined single limit for personal injury
in
any one occurrence, and with limits of not less than $500,000 for property
damage (the foregoing limits may be revised from time to time by Landlord to
such higher limits as Landlord from time to time reasonably requires). Tenant,
at its sole cost and expense, shall cause all such insurance to be maintained
at
all time when the work to be performed for or by Tenant is in progress. All
such
insurance shall be obtained from a company authorized to do business in New
York
and shall provide that it cannot be canceled without thirty (30) days prior
written notice to Landlord. All polices, or certificates therefor, issued by
the
insurer and bearing notations evidencing the payment of premiums, shall be
delivered to Landlord. Blanket coverage shall be acceptable, provided that
coverage meeting the requirements of this paragraph is assigned to Tenant's
location at the Premises.
(vii) In
granting its consent to any Alterations, Landlord may impose such conditions
as
to guarantee of completion (including, without limitation, requiring Tenant
to
post additional security or a bond to insure the completion of such Alterations,
payment, restoration or otherwise), as Landlord may reasonably require.
(viii) All
work
to be performed by Tenant shall be done in a manner which will not interfere
with or disturb other tenants and occupants of the Building.
15
(ix) The
review and/or approval by Landlord, its agents, consultants and/or contractors,
of any Alteration or of plans and specifications therefor and the coordination
of such Alteration work with the Building, as described in part above, are
solely for the benefit of Landlord, and neither Landlord nor any of its agents,
consultants or contractors shall have any duty toward Tenant; nor shall Landlord
or any of its agents, consultants and/or contractors be deemed to have made
any
representation or warranty to Tenant, or have any liability, with respect to
the
safety, adequacy, correctness, efficiency or compliance with laws of any plans
and specifications, Alterations or any other matter relating thereto.
(x) Promptly
following the substantial completion of any Alterations, Tenant shall submit
to
Landlord: (a) one (1) sepia and one (1) copy on floppy disk or CD (using a
current version of Autocad or such other similar software as is then commonly
in
use) of final, “as-built” plans for the Premises showing all such Alterations
and demonstrating that such Alterations were performed substantially in
accordance with plans and specifications first approved by Landlord and (b)
an
itemization of Tenant’s total construction costs, detailed by contractor,
subcontractors, vendors and materialmen; bills, receipts, lien waivers and
releases from all contractors, subcontractors, vendors and materialmen;
architects' and Tenant's certification of completion, payment and acceptance,
and all governmental approvals and confirmations of completion for such
Alterations.
ARTICLE
9
LIENS
9.01 Prior
to
commencement of its work in the Premises, Tenant shall obtain and deliver to
Landlord a written letter of authorization, in form satisfactory to Landlord's
counsel, signed by all architects, engineers and designers to become involved
in
such work, which shall confirm that any of their drawings or plans are to be
removed from any filing with governmental authorities on request of Landlord,
in
the event that said architect, engineer or designer thereafter no longer is
providing services with respect to the Premises. With respect to contractors,
subcontractors, materialmen and laborers, and architects, engineers and
designers, for all work or materials to be furnished to Tenant at the Premises,
Tenant agrees to obtain and deliver to Landlord written and unconditional waiver
of mechanics liens upon the Premises or the Building after payments to the
contractors, etc., subject to any then applicable provisions of the Lien Law.
Notwithstanding the foregoing, Tenant at its expense shall cause any lien filed
against the Premises or the Building, for work or materials claimed to have
been
furnished to Tenant, to be discharged of record within twenty (20) days after
notice thereof.
16
ARTICLE
10
REPAIRS
10.01 Tenant
shall take good care of the Premises and the fixtures and appurtenances therein,
and shall make all repairs necessary to keep them in good working order and
condition, including structural repairs when those are necessitated by the
act,
omission or negligence of Tenant or its agents, employees, invitees or
contractors, subject to the provisions of Article 11 hereof. During the term
of
this Lease, Tenant may have the use of any air-conditioning equipment servicing
the Premises, subject to the provisions of Article 35 of this Lease, and shall
reimburse Landlord, in accordance with Article 41 of this Lease, for electricity
consumed by the equipment. The exterior walls and roofs of the Building, the
mechanical rooms, service closets, shafts, areas above any hung ceiling and
the
windows and the portions of all window xxxxx outside same are not part of the
Premises demised by this Lease, and Landlord hereby reserves all rights to
such
parts of the Building. Tenant shall not paint, alter, drill into or otherwise
change the appearance of the windows including, without limitation, the xxxxx,
jambs, frames, sashes, and meeting rails.
ARTICLE
11
FIRE
OR OTHER CASUALTY
11.01 Damage
by
fire or other casualty to the Building and to the core and shell of the Premises
(excluding the tenant improvements and betterments and Tenant's personal
property) shall be repaired at the expense of Landlord (“Landlord’s
Restoration Work”),
but
without prejudice to the rights of subrogation, if any, of Landlord's insurer
to
the extent not waived herein. Landlord shall not be required to repair or
restore any of Tenant's property or any alteration, installation or leasehold
improvement made in and/or to the Premises. If, as a result of such damage
to
the Building or to the core and shell of the Premises, the Premises are rendered
untenantable, the Rent shall xxxxx in proportion to the portion of the Premises
not usable by Tenant from the date of such fire or other casualty until
Landlord’s Restoration Work is substantially completed. Landlord shall not be
liable to Tenant for any delay in performing Landlord’s Restoration Work,
Tenant's sole remedy being the right to an abatement of Rent, as provided above.
Tenant shall cooperate with Landlord in connection with the performance by
Landlord of Landlord’s Restoration Work. If the Premises are rendered wholly
untenantable by fire or other casualty and if Landlord shall decide not to
restore the Premises, or if the Building shall be so damaged that Landlord
shall
decide to demolish it or not to rebuild it (whether or not the Premises have
been damaged), Landlord may within ninety (90) days after such fire or other
cause give written notice to Tenant of its election that the term of this Lease
shall automatically expire no less than ten (10) days after such notice is
given. Notwithstanding the foregoing, each party shall look first to any
insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to the extent
permitted by law, Landlord and Tenant each hereby releases and waives all right
of recovery against the other or any one claiming through or under each of
them
by way of subrogation or otherwise. The foregoing release and waiver shall
be in
force only if both releasors' insurance policies contain a clause providing
that
such a release or waiver shall not invalidate the insurance and also, provided
that such a policy can be obtained without additional premiums. Tenant hereby
expressly waives the provisions of Section 227 of the Real Property Law and
agrees that the foregoing provisions of this Article shall govern and control
in
lieu thereof.
17
11.02 In
the
event that the Premises has been damaged or destroyed and this Lease has not
been terminated in accordance with the provisions of this Article, Tenant shall
(i) cooperate with Landlord in the restoration of the Premises and shall remove
from the Premises as promptly as reasonably possible all of Tenant's salvageable
inventory, movable equipment, furniture and other property and (ii) repair
the
damage to the tenant improvements and betterments and Tenant’s personal property
and restore the Premises within one hundred eighty (180) days following the
date
upon which the core and shell of the Premises shall have been substantially
repaired by Landlord.
ARTICLE
12
END
OF TERM
12.01 Tenant
shall surrender the Premises to Landlord at the expiration or sooner termination
of this Lease in good order and condition, except for reasonable wear and tear
and damage by fire or other casualty, and Tenant shall remove all of its
property. Tenant agrees it shall indemnify and save Landlord harmless against
all costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made by
any
succeeding tenant founded on such delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant timely to surrender
the Premises will be substantial, will exceed the amount of monthly Rent
theretofore payable hereunder, and will be impossible of accurate measurement.
Tenant therefore agrees that if possession of the Premises is not surrendered
to
Landlord within one (1) day after the date of the expiration or sooner
termination of the Term of this Lease, then Tenant will pay Landlord as
liquidated damages for each month and for each portion of any month during
which
Tenant holds over in the Premises after expiration or termination of the Term
of
this Lease, a sum equal to two (2) times the average Rent and Additional Rent
which was payable per month under this Lease during the last six months of
the
Term thereof. The aforesaid obligations shall survive the expiration or sooner
termination of the Term of this Lease. At any time during the Term of this
Lease, Landlord may exhibit the Premises to prospective purchasers or mortgagees
of Landlord's interest therein. During the last year of the term of this Lease,
Landlord may exhibit the Premises to prospective tenants and shall use
commercially reasonable efforts to minimize interference with Tenant’s permitted
use of the Premises during such entry to the Premises.
18
ARTICLE
13
SUBORDINATION
AND ESTOPPEL, ETC.
13.01 This
Lease is and shall be subject and subordinate to all present and future ground
leases, underlying leases and to all subleases of the entire premises demised
by
that certain ground lease (hereinafter referred to as the “Mesne Lease”) dated
December 30, 1957 and recorded in the office of the Register of the City of
New
York in the County of New York on December 31, 1957, in Liber 5024 of
Conveyances, Page 430 of which the premises hereby demised form a part (the
Mesne Lease and any or all present and future ground leases, underlying leases
and subleases of the entire premises demised by the Mesne Lease are hereunder
referred to as the "ground leases" and the lessors and lessees thereunder are
hereinafter referred to respectively as the "ground lessors" and "ground
lessees" ) and to all renewals, modifications, replacements and extensions
of
the ground leases, and to all present and future mortgages affecting such ground
leases (such mortgages are hereinafter referred to as the "mortgages" and the
mortgagees thereunder are hereinafter referred to as the "the mortgagees")
including, without limitation, that certain Amended and Restated Indenture
of
Leasehold Mortgage, Security Agreement, Financing Statement, Fixture Filing
and
Assignment of Leases, Rents and Security Deposits, dated as of May 21, 1999
by
and between SLG Graybar Mesne Lease LLC and SLG Graybar Sublease LLC, as
mortgagor, and Midland Loan Services, Inc., as mortgagee, and to all renewals,
modifications, replacements and extensions of the mortgages.
13.02 Notwithstanding
the subordination of this Lease to all ground leases and mortgages, this Lease
shall not terminate or be terminable by Tenant by reason of the expiration
or
earlier termination or cancellation of any ground lease in accordance with
its
terms or by reason of the foreclosures of any mortgage, except that this lease
may be terminated if Tenant is named as a party and served with process in
a
summary or other proceeding brought by the lessor under the Mesne Lease
(hereinafter referred to as the "Mesne Lessor") for the possession of the
premises demised by the Mesne Lease or the space occupied by Tenant, or in
such
proceeding brought with the written consent of the Mesne Lessor delivered to
Tenant, and a final order or judgment is entered, and a warrant for possession
of such space issued and executed against the defendants or respondents in
such
proceedings.
13.03 Tenant
agrees that if this Lease terminates, expires or is canceled for any reason
or
by any means whatsoever (other than by a summary or other proceeding brought
by
the Mesne Lessor or with the Mesne Lessor's written consent delivered to Tenant,
in which summary or other proceeding Tenant is made a party and in which a
final
order or judgment is entered and warrant for possession is issued and executed
against Tenant) and Mesne Lessor or a ground lessor so elects by written notice
to Tenant, this lease shall automatically be reinstated for the balance of
the
term which would have remained but for such termination, expiration or
cancellation, at the same rental, and upon the same agreements, covenants,
conditions, restrictions and provisions herein contained, with the same rental,
and upon the same agreements, covenants, conditions, restrictions and provisions
herein contained, with the same force and effect as if no such termination,
expiration or cancellation had taken place. Tenant covenants to execute and
deliver any instrument required to confirm the validity of the foregoing.
Anything herein contained to the contrary notwithstanding, this lease shall
not
be deemed to be automatically reinstated as aforesaid, nor shall Tenant be
obligated to execute and deliver any instrument confirming such reinstatement,
if Tenant has delivered to the Mesne Lessor and any ground lessor so electing
a
notice that in Tenant's opinion this lease has so terminated, expired or been
canceled, and neither the Mesne Lessor nor such other ground lessor has, within
thirty (30) days after receipt of such notice from Tenant, delivered notice
to
Tenant of its election automatically to reinstate this lease.
19
13.04 Tenant
hereby consents to any and all assignment of Landlord's interest in this Lease
to any ground lessor or mortgagee as collateral security for the payment of
the
ground rent or monies due under any mortgage. Tenant agrees to attorn to and
pay
rent to any such ground lessor or mortgagee in accordance with the provisions
of
any such assignment.
13.05 Tenant
agrees that no act, or failure to act, on the part of Landlord, which would
entitle Tenant under the terms of this Lease, or by law to be relieved of
Tenant's obligations hereunder or to terminate this lease, shall result in
a
release or termination of such obligations or termination of this lease unless
(i) Tenant shall have first given written notice of Landlord's act or failure
to
act to the ground lessors under all then existing ground leases, to all then
existing mortgagees who have requested such notice from Tenant, and to Midland
Loan Services, Inc., as mortgagee, at (i) 10851 Mastin, Xxxxxxxx Xxxx, Xxxxxx
00000, Attn.: Xxxxxx Xxxxx, Vice President/Portfolio Management, specifying
the
act or failure to act on the part of Landlord which could or would give basis
to
Tenant's rights and (ii) the ground lessors and such mortgagees, after receipt
of such notice, have failed or refused to correct or cure the condition
complained of within a reasonable time thereafter but nothing herein contained
shall be deemed to impose any obligation on any ground lessor or such mortgagee
to correct or cure any such condition.
13.06 This
Lease may not be modified or amended so as to reduce the rent, shorten the
term,
or otherwise materially affect the rights of Landlord hereunder, or be canceled
or surrendered except as provided in Section 13.05 this Article without the
prior written consent in each instance of the ground lessors and of any
mortgagees whose mortgages shall require such consent. Any such modification,
agreement, cancellation or surrender made without such prior written consent
shall be null and void.
20
13.07 From
time
to time, Tenant, on at least ten (10) business days' prior written request
by
Landlord, shall deliver to Landlord a statement in writing certifying that
this
Lease is unmodified and 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) and the dates to which the Rent and other charges have been
paid and stating whether or not, to Tenant’s knowledge, Landlord is in default
in performance of any covenant, agreement or condition contained in this Lease
and, if so, specifying each such default. In the event that Tenant shall fail
to
deliver such statement to Landlord within such ten (10) business day period,
and
provided Landlord gives Tenant a reminder notice of such failure, and Tenant
continues to fail to deliver such statement to Landlord within five (5) days
after such reminder notice is deemed given, pursuant to Section 27.01 hereof,
then such failure by Tenant shall constitute a default of its obligations under
this Lease.
ARTICLE
14
CONDEMNATION
14.01 If
the
whole or any substantial part of the Premises shall be condemned by eminent
domain or acquired by private purchase in lieu thereof, for any public or
quasi-public purpose, this Lease shall terminate on the date of the vesting
of
title through such proceeding or purchase, and Tenant shall have no claim
against Landlord for the value of any unexpired portion of the Term of this
Lease, nor shall Tenant be entitled to any part of the condemnation award or
private purchase price. If less than a substantial part of the Premises is
condemned, this Lease shall not terminate, but Rent shall xxxxx in proportion
to
the portion of the Premises condemned.
Notwithstanding the foregoing, however, Tenant shall not be prohibited from
making a claim for the value of its trade fixtures and alterations and for
its
relocation expenses, leasehold improvements, and non-moveable property or
furniture provided that such claim does not in any manner prejudice Landlord’s
claims.
ARTICLE
15
REQUIREMENTS
OF LAW
15.01 Unless
such obligation is the obligation of Landlord pursuant to this Lease or of
a
third party, Tenant at its expense shall comply with all laws, orders and
regulations of any governmental authority having or asserting jurisdiction
over
the Premises, which shall impose any violation, order or duty upon Landlord
or
Tenant with respect to the Premises or the use or occupancy thereof, including,
without limitation, compliance in the Premises with all City, State and Federal
laws, rules and regulations on the disabled or handicapped, on fire safety
and
on hazardous materials. The foregoing shall not require Tenant to do structural
work to the Building.
21
15.02 Tenant
shall require every person engaged by him to clean any window in the Premises
from the outside, to use the equipment and safety devices required by Section
202 of the Labor Law and the rules of any governmental authority having or
asserting jurisdiction.
15.03 Tenant
at
its expense shall comply with all requirements of the New York Board of Fire
Underwriters, or any other similar body affecting the Premises, and shall not
use the Premises in a manner which shall increase the rate of fire insurance
of
Landlord or of any other tenant, over that in effect prior to this Lease. If
Tenant's use of the Premises increases the fire insurance rate, Tenant shall
reimburse Landlord for all such increased costs. That the Premises are being
used for the purpose set forth in Article 1 hereof shall not relieve Tenant
from
the foregoing duties, obligations and expenses.
15.04 Unless
such compliance is the obligation of Tenant hereunder or any other third party,
Landlord shall, at Landlord’s expense, comply with laws, orders and regulations
affecting the use and occupancy of the Premises or the Building to the extent
that the failure to so comply would interfere with Tenant's permitted use and
occupancy of the Premises except to a de minimis extent.
ARTICLE
16
CERTIFICATE
OF OCCUPANCY
16.01 Tenant
will at no time use or occupy the Premises in violation of the certificate
of
occupancy issued for the Building. The statement in this Lease of the nature
of
the business to be conducted by Tenant shall not be deemed to constitute a
representation or guaranty by Landlord that such use is lawful or permissible
in
the Premises under the certificate of occupancy for the Building.
ARTICLE
17
POSSESSION
17.01 If
Landlord shall be unable to give possession of the Premises on the Commencement
Date because of the retention of possession of any occupant thereof, alteration
or construction work, or for any other reason, Landlord shall not be subject
to
any liability for such failure. In such event, this Lease shall stay in full
force and effect, without extension of its Term. However, the Rent hereunder
shall not commence until the Premises are available for occupancy by Tenant.
If
delay in possession is due to work, changes or decorations being made by or
for
Tenant, or is otherwise caused by Tenant, there shall be no rent abatement
and
the Rent shall commence on the date specified in this Lease. If permission
is
given to Tenant to occupy the Premises or other Premises prior to the date
specified as the commencement of the Term, such occupancy shall be deemed to
be
pursuant to the terms of this Lease, except that the parties shall separately
agree as to the obligation of Tenant to pay Rent for such occupancy. The
provisions of this Article are intended to constitute an "express provision
to
the contrary" within the meaning of Section 223(a), New York Real Property
Law.
22
ARTICLE
18
QUIET
ENJOYMENT
18.01 Landlord
covenants that if Tenant pays the Rent and performs all of Tenant's other
obligations under this Lease, Tenant may peaceably and quietly enjoy the
Premises, subject to the terms, covenants and conditions of this Lease and
to
the ground leases, underlying leases and mortgages hereinbefore
mentioned.
ARTICLE
19
RIGHT
OF ENTRY
19.01 Tenant
shall permit Landlord to erect, construct and maintain pipes, conduits and
shafts in and through the Premises. Landlord or its agents shall have the right
to enter or pass through the Premises at all times, by master key and, in the
event of an emergency, by reasonable force or otherwise, to examine the same,
and to make such repairs, alterations or additions as it may deem necessary
or
desirable to the Premises or the Building, and to take all material into and
upon the Premises that may be required therefor. Landlord shall use reasonable
efforts to minimize interference with Tenant’s normal business activities within
the premises provided, however, that Tenant acknowledges and agrees that all
work shall be performed on normal business days during normal business hours.
Notwithstanding the foregoing, in the event that Tenant requests that Landlord
make such repairs, alterations or additions during times other than ordinary
business hours, and such labor is then available, Tenant shall be responsible
for the cost of such overtime or premium labor charges as the case may be.
Such
entry and work shall not constitute an eviction of Tenant in whole or in part,
shall not be grounds for any abatement of Rent, and shall impose no liability
on
Landlord by reason of inconvenience or injury to Tenant's business. Landlord
shall have the right, upon reasonable advance notice (which may be verbal)
to
Tenant and under such circumstances whereby Tenant shall maintain reasonably
comparable access to and use of the Premises, without the same constituting
an
actual or constructive eviction, and without incurring any liability to Tenant,
to change the arrangement and/or location of entrances or passageways, windows,
corridors, elevators, stairs, toilets, or other public parts of the Building,
and to change the designation of rooms and suites and the name or number by
which the Building is known.
23
ARTICLE
20
INDEMNITY
20.01 Tenant
shall indemnify, defend and save Landlord harmless from and against any
liability or expense arising from the use or occupation of the Premises by
Tenant, or anyone on the Premises with Tenant's permission, or from any breach
of this Lease.
ARTICLE
21
LANDLORD'S
LIABILITY, ETC.
21.01 This
Lease and the obligations of Tenant hereunder shall not in any way be affected
because Landlord is unable to fulfill any of its obligations or to supply any
service, by reason of strike or other cause not within Landlord's control.
Landlord shall have the right, without incurring any liability to Tenant, to
stop any service for a reasonable period of time because of accident or
emergency, or for repairs, alterations or improvements, necessary or desirable
in the judgment of Landlord, until such repairs, alterations or improvements
shall have been completed. Landlord shall not be liable to Tenant or anyone
else, for any loss or damage to person, property or business; nor shall Landlord
be liable for any latent defect in the Premises or the Building. Neither
the partners, entities or individuals comprising the Landlord, nor the agents,
directors, or officers or employees of any of the foregoing shall be liable
for
the performance of the Landlord's obligations hereunder. Tenant
agrees to look solely to Landlord's estate and interest in the land and
Building, or the lease of the Building or of the land and Building, and the
Premises, for the satisfaction of any right or remedy of Tenant for the
collection of a judgement (or other judicial process) requiring the payment
of
money by Landlord, and in the event of any liability by Landlord, no other
property or assets of Landlord or of any of the aforementioned parties shall
be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship
of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Premises
or
any other liability of Landlord to Tenant.
21.02 If
Landlord fails to make any repair or provide any service Landlord is obligated
to provide under this Lease and as a result thereof, Tenant shall be not able
to
use and shall have discontinued its occupancy of all or any affected portion
of
the Premises for a period of forty-eight (48) consecutive hours or more after
notice thereof to Landlord then, except as provided in Article 10 hereof, Tenant
shall be entitled to an abatement of the Fixed Annual Rent and Additional Rent
allocable to such portion of the Premises which is not usable and is unoccupied
for each day after said forty-eight (48) consecutive hour period until said
repair is completed or services restored by Landlord (except if such repair
or
service restoration cannot be completed in such time or if Landlord shall not
promptly proceed to commence said repair or service restoration within said
forty-eight (48) consecutive hour period) provided further, however, Tenant
shall not be entitled to an abatement of rent in the event that such failure
results from (i) any installation, alteration or improvement which is not
performed by Tenant in a good workmanlike manner; (ii) Tenant's failure to
perform its obligations hereunder; (iii) reasons beyond Landlord’s reasonable
control; or (iv) the negligence or tortious conduct of Tenant.
24
ARTICLE
22
CONDITION
OF PREMISES
22.01 The
parties acknowledge that Tenant has inspected the Premises and the Building
and
is fully familiar with the physical condition thereof and Tenant agrees to
accept the Premises at the commencement of the Term in its then “as is”
condition. Tenant acknowledges and agrees that Landlord shall have no obligation
to do any work in or to the Premises in order to make it suitable and ready
for
occupancy and use by Tenant.
ARTICLE
23
CLEANING
23.01 Landlord
shall cause the Premises to be kept clean in accordance with Landlord's
customary standards for the Building and
pursuant to the cleaning specifications annexed hereto and made a part
hereof,
provided
they are kept in reasonable order by Tenant. Landlord, its cleaning contractor
and their employees shall have after-hours access to the Premises and the use
of
Tenant's light, power and water in the Premises as may be reasonably required
for the purpose of cleaning the Premises. Landlord may remove Tenant's
extraordinary refuse from the Building and Tenant shall pay the commercially
reasonable cost thereof.
25
23.02 Tenant
acknowledges that Landlord has designated a cleaning contractor for the
Building. Tenant agrees to employ said cleaning contractor or such other
contractor as Landlord shall from time to time designate (the “Building
Cleaning Contractor”)
to
perform all cleaning services required under the Lease to be performed by Tenant
within the Premises and for any other waxing, polishing, and other cleaning
and
maintenance work of the Premises and Tenant's furniture, fixtures and equipment
(collectively, “Tenant
Cleaning Services”)
provided that the prices charged by said contractor are comparable to the prices
customarily charged by other reputable cleaning contractors employing union
labor in midtown Manhattan for the same level and quality of service. Tenant
acknowledges that it has been advised that the cleaning contractor for the
Building may be a division or affiliate of Landlord. Tenant agrees that it
shall
not employ any other cleaning and maintenance contractor, nor any individual,
firm or organization for such purpose, without Landlord's prior written consent
which shall not be unreasonably withheld (notwithstanding the foregoing,
however, Landlord’s prior negative experience with, concerns regarding the
financial stability of, and any criminal proceedings pending against, any such
contractor or mechanic shall be deemed to be a reasonable basis upon which
for
Landlord to refuse to grant its approval). In the event that Landlord and Tenant
cannot agree on whether the prices then being charged by the Building Cleaning
Contractor for such cleaning services are comparable to those charged by other
reputable contractors as herein provided, then Landlord and Tenant shall each
obtain two (2) bona fide bids for such services from reputable cleaning
contractors performing such services in comparable buildings in
midtown Manhattan
employing union labor, and the average of the four bids thus obtained shall
be
the standard of comparison. In the event that the Building Cleaning Contractor
does not agree to perform such cleaning services for Tenant at such average
price, Landlord shall not unreasonably withhold its consent to the performance
of Tenant Cleaning Services by a reputable cleaning contractor designated by
Tenant employing union labor with the proper jurisdictional qualifications;
provided, however, that, without limitation, Landlord's experience with such
contractor or any criminal proceedings pending or previously filed against
such
contractor may form a basis upon which Landlord may withhold or withdraw its
consent.
ARTICLE
24
JURY
WAIVER
24.01 Landlord
and Tenant hereby waive trial by jury in any action, proceeding or counterclaim
involving any matter whatsoever arising out of or in any way connected with
this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of
the
Premises or involving the right to any statutory relief or remedy. Tenant will
not interpose any counterclaim of any nature in any summary
proceeding.
ARTICLE
25
NO
WAIVER, ETC.
26
25.01 No
act or
omission of Landlord or its agents shall constitute an actual or constructive
eviction, unless Landlord shall have first received written notice of Tenant's
claim and shall have had a reasonable opportunity to meet such claim. In the
event that any payment herein provided for by Tenant to Landlord shall become
overdue for a period in excess of ten (10) days, then at Landlord's option
a
"late charge" shall become due and payable to Landlord, as Additional Rent,
from
the date it was due until payment is made, at the following rates: for
individual and partnership lessees, said late charge shall be computed at the
maximum legal rate of interest; for corporate or governmental entity lessees
the
late charge shall be computed at two percent per month unless there is an
applicable maximum legal rate of interest which then shall be used. No act
or
omission of Landlord or its agents shall constitute an acceptance of a surrender
of the Premises, except a writing signed by Landlord. The delivery or acceptance
of keys to Landlord or its agents shall not constitute a termination of this
Lease or a surrender of the Premises. Acceptance by Landlord of less than the
Rent herein provided shall at Landlord's option be deemed on account of earliest
Rent remaining unpaid. No endorsement on any check, or letter accompanying
Rent,
shall be deemed an accord and satisfaction, and such check may be cashed without
prejudice to Landlord. No waiver of any provision of this Lease shall be
effective, unless such waiver be in writing signed by the party to be charged.
In no event shall Tenant be entitled to make, nor shall Tenant make any claim,
and Tenant hereby waives any claim for money damages (nor shall Tenant claim
any
money damages by way of set-off, counterclaim or defense) based upon any claim
or assertion by Tenant that Landlord had unreasonably withheld, delayed or
conditioned its consent or approval to any request by Tenant made under a
provision of this Lease. Tenant's sole remedy shall be an action or proceeding
to enforce any such provision, or for specific performance or declaratory
judgment. Tenant shall comply with the rules and regulations contained in this
Lease, and any reasonable modifications thereof or additions thereto provided
to
Tenant in writing before any effective date. Landlord shall not be liable to
Tenant for the violation of such rules and regulations by any other tenant.
Landlord
agrees to enforce the rules and regulations in a uniform and non-discriminatory
manner. Failure
of
Landlord to enforce any provision of this Lease, or any rule or regulation,
shall not be construed as the waiver of any subsequent violation of a provision
of this Lease, or any rule or regulation. This Lease shall not be affected
by
nor shall Landlord in any way be liable for the closing, darkening or bricking
up of windows in the Premises, for any reason, including as the result of
construction on any property of which the Premises are not a part or by
Landlord's own acts.
ARTICLE
26
OCCUPANCY
AND USE BY TENANT
26.01 If
this
Lease is terminated because of Tenant’s default hereunder, then, in addition to
Landlord's rights of re-entry, restoration, preparation for and rerental, and
anything elsewhere in this Lease to the contrary notwithstanding, all Rent
and
Additional Rent reserved in this Lease from the date of such breach to the
expiration date of this Lease shall become immediately due and payable to
Landlord and Landlord shall retain its right to judgment on and collection
of
Tenant's aforesaid obligation to make a single payment to Landlord of a sum
equal to the total of all Rent and Additional Rent reserved for the remainder
of
the original Term of this Lease, subject to future credit or repayment to Tenant
in the event of any rerenting of the Premises by Landlord, after first deducting
from rerental income all commercially reasonable expenses incurred by Landlord
in reducing to judgment or otherwise collecting Tenant's aforesaid obligation,
and in obtaining possession of, restoring, preparing for and re-letting the
Premises. In no event shall Tenant be entitled to a credit or repayment for
rerental income which exceeds the sums payable by Tenant hereunder or which
covers a period after the original Term of this Lease.
27
ARTICLE
27
NOTICES
27.01 Any
xxxx,
notice or demand from Landlord to Tenant, may be delivered personally at the
Premises or sent by registered or certified mail or by any nationally recognized
overnight delivery service and addressed to Tenant at the Premises or at the
address first set forth herein. Such xxxx, notice or demand shall be deemed
to
have been given at the time of delivery, mailing or receipt by such delivery
service. Any notice, request or demand from Tenant to Landlord must be sent
by
registered or certified mail to the last address designated in writing by
Landlord.
ARTICLE
28
WATER
28.01 Tenant
shall pay the amount of Landlord's cost for all excessive water used by Tenant
for any purpose other than ordinary lavatory, cleaning and pantry uses, and
any
sewer rent or tax based thereon. In the event that Landlord has reason to
believe (using reasonable judgment) that Tenant’s water usage has become
excessive, Landlord may install a water meter to measure Tenant's water
consumption for all purposes and Tenant agrees to pay for the installation
and
maintenance thereof and for water consumed as shown on said meter at Landlord’s
cost therefor. If water is made available to Tenant in the Building or the
Premises through a meter which also supplies other Premises, or without a meter,
then Tenant shall pay to Landlord a reasonable charge per month for water.
If
necessary in order to comply with any law or regulation, Landlord reserves
the
right to discontinue water service to the Premises if either the quantity or
character of such service is changed or is no longer available or suitable
for
Tenant’s requirements or for any other reason without releasing Tenant from any
liability under this Lease and without Landlord or Landlord’s agent incurring
any liability for any damage or loss sustained by Tenant by such discontinuance
of service.
28
ARTICLE
29
SPRINKLER
SYSTEM
29.01 In
the
event that a sprinkler system shall be installed within the Premises during
the
term of this Lease and in the event that said sprinkler system serving the
Premises is damaged by any act or omission of Tenant or its agents, employees,
licensees or visitors, Tenant shall restore the system to good working condition
at its own expense. If the New York Board of Fire Underwriters, the New York
Fire Insurance Exchange, the Insurance Services Office, or any governmental
authority requires the installation of, or any alteration to a sprinkler system
by reason of Tenant's particular manner of occupancy or use of the Premises,
including any alteration necessary to obtain the full allowance for a sprinkler
system in the fire insurance rate of Landlord, or for any other reason, Tenant
shall make such installation or alteration promptly, and at its own
expense.
ARTICLE
30
HEAT,
ELEVATOR, ETC.
30.01 Landlord
shall provide elevator service during all usual business hours, except on
Sundays, State holidays, Federal holidays, or Building Service Employees Union
Contract holidays. Landlord shall furnish heat to the Premises during the same
hours on the same days in the cold season in each year. If the elevators in
the
Building are manually operated, Landlord may convert to automatic elevators
at
any time, without in any way affecting Tenant's obligations
hereunder.
ARTICLE
31
SECURITY
DEPOSIT
31.01 Tenant
shall deposit with Landlord the sum of $428,390.55
to be
held by Landlord as security (the “Security”)
for
the performance by Tenant of the terms of this Lease. Landlord may use any
part
of the Security to satisfy any default of Tenant and any expenses arising from
such default, including but not limited to reasonable legal fees and any damages
or rent deficiency before or after re-entry by Landlord. Tenant shall, upon
demand, deposit with Landlord the full amount so used, and/or any amount not
so
deposited by Tenant, in order that Landlord shall have the full Security on
hand
at all times during the term of this Lease. If Tenant shall comply fully with
the terms of this Lease, the Security shall be returned to Tenant after the
date
fixed as the end of the Lease. In the event of a sale or lease of the Building
containing the Premises, Landlord may transfer the Security to the purchaser
or
tenant, and Landlord shall thereupon be released from all liability for the
return of the Security. This provision shall apply to every transfer or
assignment of the Security to a new Landlord. Tenant shall have no legal power
to assign or encumber the Security herein described.
29
31.02
In the
event that at any time during the Term (i) Tenant shall have a net worth, as
determined in accordance with generally accepted accounting principles taking
into account contingent and all unmatured liabilities (“GAAP”)
equal
to or in excess of $30,000,000, and (ii) Tenant shall have a debt to equity
ratio of 1 to 2, and (iii) Tenant shall have posted at least $10,000,000.00
in
profit during the prior twelve (12) month period, then upon at least thirty
(30)
days prior written notice to Landlord accompanied by reasonable, detailed
documentary evidence, consistent with GAAP, which establishes the foregoing
to
the reasonable satisfaction of Landlord’s chief financial officer or certified
public accountant, Tenant may reduce the amount of the Security by the sum
of
$107,097.66 (the “Security
Reduction”),
provided Tenant has deposited with Landlord the full Security required by
Section 31.01, above; the Security Reduction shall be promptly returned to
Tenant by Landlord, so that the amount of the Security held by Landlord
thereafter shall be $321,292.89, provided further and on condition that Tenant
shall not be, or have been in, default in any of its obligations under this
Lease after notice at any time during the Term through the effective date of
such notice (in which event Tenant’s rights under this Article shall be
suspended until the earlier of (a) Tenant’s timely and full cure of the default
alleged in any such notice, at which time Tenant’s rights hereunder shall be
reinstated, and (b) the expiration of Tenant’s time in which to cure any such
default, at which time Tenant’s rights hereunder shall be extinguished). In the
event that Landlord shall dispute the debt equity ratio alleged by Tenant in
Tenant’s aforementioned notice, then the Security shall not be subject to
reduction under this Section, if any, until such time as such dispute is
resolved by arbitration pursuant to the provisions of Section 31.05 of this
Article.
31.03 Tenant
agrees that Landlord shall have the right on one (1) occasion during each
calendar year throughout the Term and any renewals and extensions thereof,
to
require by notice to Tenant that Tenant furnish Landlord with financial
statements certified by a certified public accountant and demonstrating with
reasonable detail, in accordance with GAAP, the net worth of Tenant, the debt
to
equity ratio of Tenant and the profits of Tenant. Upon such notice from
Landlord, Tenant shall furnish Landlord with such financial statements within
twenty (20) days thereafter.
31.04 Notwithstanding
any reductions in the Security which may be effected pursuant to the provisions
of Sections 31.02, above, at any time during the Term, in the event that there
has been a prior reduction of the Security pursuant to Section 31.02, above,
and
at any time thereafter Tenant’s net worth shall be less than $30,000,000 or
Tenant’s debt to equity ratio shall be inferior to 1 to 2 or Tenant’s posted
profits shall be less than $10,000,000.00 during the prior twelve (12) month
period, then upon ten (10) days notice from Landlord, Tenant shall replenish
the
Security by the amount of the Security Reduction enjoyed by Tenant pursuant
to
said Section 31.02, above. Tenant acknowledges that its covenant to furnish
financial statements upon request by Landlord pursuant to Section 31.03, above,
and its covenant to maintain the required levels of Security, as contemplated
in
this Section, are material inducements to Landlord to agree to the reductions
in
Security contemplated in this Article, and Tenant’s failure to timely produce
such financial statements or maintain such levels of Security shall constitute
a
material default under this Lease.
30
31.05
If
within thirty (30) days after Landlord’s dispute of any entitlement of Tenant to
any of the reductions of Security contemplated in this Article, Landlord and
Tenant are unable to resolve such dispute, then either party may within ten
(10)
days thereafter refer the dispute to an independent, third party certified
public accounting firm selected by Landlord and reasonably acceptable to Tenant.
In connection therewith, Landlord, Tenant and such firm shall enter into a
confidentiality agreement, in form and substance reasonably satisfactory to
the
parties, whereby such parties shall agree not to disclose to any third party
any
of the information in connection with the prosecution, review and determination
of such dispute or of any resulting reconciliation, compromise or resolution.
Such firm may request such supporting documentation as it reasonably deems
appropriate in order to promptly determine the dispute. The determination of
such firm shall be rendered within thirty (30) days after the referral of the
dispute, and shall be conclusive and binding upon Landlord and Tenant and shall
be set forth in a written determination along with the rationale for the
determination; however such firm shall
not
have the power to add to, modify or delete any of the provisions of this Lease
or to award any relief whatsoever to either party, the sole function of said
firm being to determine the accuracy of any and all documentation submitted
by
Tenant hereunder. Landlord
and Tenant shall each be responsible for any respective fees and expenses
(including, without limitation, attorneys’ fees) incurred in connection with
said dispute.
ARTICLE
32
TAX
ESCALATION
32.01 Tenant
shall pay to Landlord, as Additional Rent, tax escalation in accordance with
this Article:
(a) For
purposes of this Lease, Landlord and Tenant acknowledge and agree that the
rentable square foot area of the Premises shall be deemed to be 8,897 square
feet.
(b) For
the
purpose of this Article, the following definitions shall apply:
31
(i)
The
term "Tenant’s
Share",
for
purposes of computing tax escalation, shall mean eight hundred thousandths
percent (0.800%). Tenant’s Share has been computed on the basis of a fraction,
the numerator of which is the rentable square foot area of the Premises and
the
denominator of which is the total rentable square foot area of the office and
commercial space in the Building Project. The parties acknowledge and agree
that
the total rentable square foot area of the office and commercial space in the
Building Project shall be deemed to be 1,112,424 sq. ft.
(ii)
The
term the “Building
Project"
shall
mean the aggregate combined parcel of land on a portion of which are the
improvements of which the Premises form a part, with all the improvements
thereon, said improvements being a part of the block and lot for tax purposes
which are applicable to the aforesaid land.
(iii)
The
“Base
Tax Year”
shall
mean the New York City fiscal tax year commencing on July 1, 2005 through June
30, 2006.
(iv)
The
term “Comparative
Year”
shall
mean the twelve (12) month period following the Base Tax Year, and each
subsequent period of twelve (12) months thereafter.
(v)
The
term "Real
Estate Taxes"
shall
mean the total of all taxes and special or other assessments levied, assessed
or
imposed at any time by any governmental authority upon or against the Building
Project including, without limitation, any tax or assessment levied, assessed
or
imposed at any time by any governmental authority in connection with the receipt
of income or rents from said Building Project to the extent that same shall
be
in lieu of all or a portion of any of the aforesaid taxes or assessments, or
additions or increases thereof, upon or against said Building Project. If,
due
to a future change in the method of taxation or in the taxing authority, or
for
any other reason, a franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied against Landlord
in
substitution in whole or in part for the Real Estate Taxes, or in lieu of
additions to or increases of said Real Estate Taxes, then such franchise,
income, transit, profit or other tax or governmental imposition shall be deemed
to be included within the definition of "Real Estate Taxes" for the purposes
hereof.
(vi)
Where more than one assessment is imposed by the City of New York for any tax
year, whether denominated an "actual assessment" or a "transitional assessment"
or otherwise, then the phrases herein "assessed value" and "assessments" shall
mean whichever of the actual, transitional or other assessment is designated
by
the City of New York as the taxable assessment for that tax year.
32.02 In
the
event that the Real Estate Taxes payable for any Comparative Year shall exceed
the amount of the Real Estate Taxes payable during the Base Tax Year, Tenant
shall pay to Landlord, as Additional Rent for such Comparative Year, an amount
equal to Tenant’s Share of the excess. Before or after the start of each
Comparative Year, Landlord shall furnish to Tenant a statement of the Real
Estate Taxes payable during the Comparative Year. If the Real Estate Taxes
payable for such Comparative Year exceed the Real Estate Taxes payable during
the Base Tax Year, Additional Rent for such Comparative Year, in an amount
equal
to Tenant’s Share of the excess, shall be due from Tenant to Landlord, and such
Additional Rent shall be payable by Tenant to Landlord within thirty (30) days
after receipt of the aforesaid statement. The benefit of any discount for any
early payment or prepayment of Real Estate Taxes shall accrue solely to the
benefit of Landlord, and such discount shall not be subtracted from the Real
Estate Taxes payable for any Comparative Year. In addition to the foregoing,
Tenant shall pay to Landlord, within thirty (30) days after receipt of written
demand, as Additional Rent, a sum equal to Tenant's Share of any business
improvement district assessment payable by the Building Project.
32
32.03 Should
the Real Estate Taxes payable during the Base Tax Year be reduced by final
determination of legal proceedings, settlement or otherwise, then, the Real
Estate Taxes payable during the Base Tax Year shall be correspondingly revised,
the Additional Rent theretofore paid or payable hereunder for all Comparative
Years shall be recomputed on the basis of such reduction, and Tenant shall
pay
to Landlord as Additional Rent, within thirty (30) days after being billed
therefor, any deficiency between the amount of such Additional Rent as
theretofore computed and the amount thereof due as the result of such
recomputations.
32.04 If,
after
Tenant shall have made a payment of Additional Rent under Section 32.02,
Landlord shall receive a refund of any portion of the Real Estate Taxes payable
for any Comparative Year after the Base Tax Year on which such payment of
Additional Rent shall have been based, as a result of a reduction of such Real
Estate Taxes by final determination of legal proceedings, settlement or
otherwise, Landlord shall within ten (10) days after receiving the refund pay
to
Tenant Tenant’s Share of the refund less Tenant’s Share of expenses (including
attorneys' and appraisers' fees) incurred by Landlord in connection with any
such application or proceeding. In addition to the foregoing, Tenant shall
pay
to Landlord, as Additional Rent, within ten (10) days after Landlord shall
have
delivered to Tenant a statement therefor, Tenant’s Share of all expenses
incurred by Landlord in reviewing or contesting the validity or amount of any
Real Estate Taxes or for the purpose of obtaining reductions in the assessed
valuation of the Building Project prior to the billing of Real Estate Taxes,
including without limitation, the fees and disbursements of attorneys, third
party consultants, experts and others.
32.05 The
statements of the Real Estate Taxes to be furnished by Landlord as provided
above shall be certified by Landlord and shall constitute a final determination
as between Landlord and Tenant of the Real Estate Taxes for the periods
represented thereby, unless Tenant within sixty (60) days after they are
furnished shall give a written notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular
respects in which the statement is inaccurate or inappropriate. If Tenant shall
so dispute said statement then, pending the resolution of such dispute, Tenant
shall pay the Additional Rent to Landlord in accordance with the statement
furnished by Landlord.
33
32.06 In
no
event shall the Fixed Annual Rent under this Lease be reduced by virtue of
this
Article.
32.07 If
the
Commencement Date of the Term of this Lease is not the first day of the first
Comparative Year, then the Additional Rent due hereunder for such first
Comparative Year shall be a proportionate share of said Additional Rent for
the
entire Comparative Year, said proportionate share to be based upon the length
of
time that the lease Term will be in existence during such first Comparative
Year. Upon the date of any expiration or termination of this Lease (except
termination because of Tenant's default) whether the same be the date
hereinabove set forth for the expiration of the Term or any prior or subsequent
date, a proportionate share of said Additional Rent for the Comparative Year
during which such expiration or termination occurs shall immediately become
due
and payable by Tenant to Landlord, if it was not theretofore already billed
and
paid. The said proportionate share shall be based upon the length of time that
this Lease shall have been in existence during such Comparative Year. Landlord
shall promptly cause statements of said Additional Rent for that Comparative
Year to be prepared and furnished to Tenant. Landlord and Tenant shall thereupon
make appropriate adjustments of amounts then owing.
32.08 Landlord's
and Tenant's obligations to make the adjustments referred to in Section 32.07
above shall survive any expiration or termination of this Lease. Any delay
or
failure of Landlord in billing any tax escalation hereinabove provided shall
not
constitute a waiver of or in any way impair the continuing obligation of Tenant
to pay such tax escalation hereunder.
ARTICLE
33
RENT
CONTROL
33.01 In
the
event the Fixed Annual Rent or Additional Rent or any part thereof provided
to
be paid by Tenant under the provisions of this Lease during the Term shall
become uncollectible or shall be reduced or required to be reduced or refunded
by virtue of any Federal, State, County or City law, order or regulation, or
by
any direction of a public officer or body pursuant to law, or the orders, rules,
code or regulations of any organization or entity formed pursuant to law,
whether such organization or entity be public or private, then Landlord, at
its
option, may at any time thereafter terminate this Lease, by not less than thirty
(30) days' written notice to Tenant, on a date set forth in said notice, in
which event this Lease and the term hereof shall terminate and come to an end
on
the date fixed in said notice as if the said date were the date originally
fixed
herein for the termination of the demised term. Landlord shall not have the
right to so terminate this Lease if Tenant within such period of thirty (30)
days shall in writing lawfully agree that the rentals herein reserved are a
reasonable rental and agree to continue to pay said rentals, and if such
agreement by Tenant shall then be legally enforceable by Landlord.
34
ARTICLE
34
SUPPLIES
34.01 Only
Landlord or any one or more persons, firms, or corporations authorized in
writing by Landlord (provided
that the cost, scope and quality of services offered by such persons, firms
or
corporations are commercially competitive) shall
be
permitted to furnish laundry, linens, towels, drinking water, water coolers,
ice
and other similar supplies and services to tenants and licensees in the
Building. Landlord may fix, in its reasonable discretion, from time to time,
the
hours during which and the regulations under which such supplies and services
are to be furnished. Landlord expressly reserves the right to act as or to
designate, from time to time, an exclusive supplier of all or any one or more
of
the said supplies and services provided
that the cost, scope and quality of services offered by such supplier are
commercially competitive;
and
Landlord furthermore expressly reserves the right to exclude from the Building
any person, firm or corporation attempting to furnish any of said supplies
or
services but not so designated by Landlord.
34.02 Only
Landlord or any one or more persons, firms or corporations authorized in writing
by Landlord shall be permitted to sell, deliver or furnish any food or beverages
whatsoever for consumption within the Premises or elsewhere in the Building,
provided
that the cost, scope and quality of food or beverages offered by such persons,
firms or corporations are commercially competitive.
Landlord expressly reserves the right to act as or to designate from time to
time an exclusive supplier or suppliers of such food and beverages, provided
that the cost, scope and quality of food or beverages offered are commercially
competitive.
Landlord further expressly reserves the right to exclude from the Building
any
person, firm or corporation attempting to deliver or purvey any such food or
beverages, but not so designated by Landlord. It is understood, however, that
Tenant or its regular office employees may personally bring food or beverages
into the Building for consumption within the Premises by the said employees,
but
not for resale or for consumption by any other tenant.
ARTICLE
35
AIR
CONDITIONING
35
35.01 Tenant
shall be permitted to use the equipment presently supplying air-conditioning
service to the Premises (the “Existing
HVAC Equipment”)
Monday
to Friday from 8:00 a.m. to 6:00 p.m. and on Saturdays from 9:00 a.m. to 1:00
pm, during the Building’s “Cooling
Season”
(which
is currently May 15 through October 15) subject to and in accordance with the
provisions of this Article. Landlord shall perform such work as is necessary,
if
any, in order to place the Existing HVAC Equipment in good working order
(“Landlord’s
Initial HVAC Work”)
subject, however, to Tenant’s obligation to thereafter maintain and repair the
Existing HVAC Equipment in accordance with the provisions of this Article.
Landlord shall perform Landlord’s Initial HVAC Work as promptly as is reasonably
practical following the commencement of the Term hereof. Tenant acknowledges
and
agrees that air-conditioning service to the Premises shall be supplied through
equipment operated, maintained and repaired by Tenant and that Landlord has
no
obligation to operate, maintain or to repair the said equipment or to supply
air-conditioning service to the Premises. The Existing HVAC Equipment and all
other air conditioning systems, equipment and facilities hereafter located
in or
servicing the Premises (the “Supplemental
Systems”)
including, without limitation, the ducts, dampers, registers, grilles and
appurtenances utilized in connection with both the Existing HVAC Equipment
and
the Supplemental Systems (collectively hereinafter referred to as the
“HVAC
System”),
shall
be maintained, repaired and operated by Tenant in compliance with all present
and future laws and regulations relating thereto at Tenant’s sole cost and
expense. Tenant shall pay for all electricity consumed in the operation of
the
HVAC System, and Tenant's proportionate share of the electric current (and/or
water, gas and steam) for the production of chilled and/or condenser water
and
its supply to the Premises, if applicable, which shall become the obligation
of
Tenant subject to the terms of Article 41 of this Lease. Tenant shall pay for
all parts and supplies necessary for the proper operation of the HVAC System
(and any restoration or replacement by Tenant of all or any part thereof shall
be in quality and class at least equal to the original work or installations);
provided, however, that Tenant shall not alter, modify, remove or replace the
HVAC System, or any part thereof, without Landlord’s prior written
consent.
35.02 Without
limiting the generality of the foregoing, Tenant shall, at its own cost and
expense, (a) cause to be performed all maintenance of the HVAC System, including
all repairs and replacements thereto, and (b) commencing as of the date upon
which Tenant shall first occupy the Premises for the conduct of its business,
and thereafter throughout the Term of the Lease, maintain in force and provide
a
copy of same to Landlord an air conditioning service repair and full service
maintenance contract covering the HVAC System in form satisfactory to Landlord
with an air conditioning contractor or servicing organization approved by
Landlord. All such contracts shall provide for the thorough overhauling of
the
HVAC System at least once each year during the Term of this Lease and shall
expressly state that (i) it shall be an automatically renewing contract
terminable upon not less than thirty (30) days prior written notice to the
Landlord (sent by certified mail, return receipt requested) and (ii) the
contractor providing such service shall maintain a log at the Premises detailing
the service provided during each visit pursuant to such contract. Tenant shall
keep such log at the Premises and permit Landlord to review same promptly after
Landlord's request. The HVAC System is and shall at all times remain the
property of Landlord, and at the expiration or sooner termination of the Lease,
Tenant shall surrender to Landlord the HVAC System in good working order and
condition, subject to normal wear and tear and shall deliver to Landlord a
copy
of the service log. In the event that Tenant fails to obtain the contract
required herein or perform any of the maintenance or repairs required hereunder,
Landlord shall have the right, but not the obligation, to procure such contract
and/or perform any such work and charge the Tenant as Additional Rent hereunder
the cost of same plus an administrative fee equal to fifteen percent (15%)
of
such cost which shall be paid for by Tenant on demand.
36
35.03
Tenant acknowledges and agrees that any after-hours heat or air conditioning
service requested by Tenant shall be furnished for a minimum of three (3) hours
per request on weekends and holidays, and a minimum of one (1) hour per request
on weekdays. The price charged for after hours heating service as of the date
hereof shall be $75.00 per hour for the entire Premises, plus sales tax, if
applicable, subject to future increases.
ARTICLE
36
SHORING
36.01 Tenant
shall permit any person authorized to make an excavation on land adjacent to
the
Building containing the Premises to do any work within the Premises necessary
to
preserve the wall of the Building from injury or damage, and Tenant shall have
no claim against Landlord for damages or abatement of rent by reason
thereof.
ARTICLE
37
EFFECT
OF CONVEYANCE, ETC.
37.01 If
the
Building containing the Premises shall be sold, transferred or leased, or the
lease thereof transferred or sold, Landlord shall be relieved of all future
obligations and liabilities hereunder and the purchaser, transferee or tenant
of
the Building shall be deemed to have assumed and agreed to perform all such
obligations and liabilities of Landlord hereunder. In the event of such sale,
transfer or lease, Landlord shall also be relieved of all existing obligations
and liabilities hereunder, provided that the purchaser, transferee or tenant
of
the Building assumes in writing such obligations and liabilities.
37
ARTICLE
38
RIGHTS
OF SUCCESSORS AND ASSIGNS
38.01 This
Lease shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and, except as otherwise provided herein, the
assigns of the parties hereto. If any provision of any Article of this Lease
or
the application thereof to any person or circumstances shall, to any extent,
be
invalid or unenforceable, the remainder of that Article, or the application
of
such provision to persons or circumstances other than those as to which it
is
held invalid or unenforceable, shall not be affected thereby, and each provision
of said Article and of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
ARTICLE
39
CAPTIONS
39.01 The
captions herein are inserted only for convenience, and are in no way to be
construed as a part of this Lease or as a limitation of the scope of any
provision of this Lease.
ARTICLE
40
BROKERS
40.01 Tenant
covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent in connection with the consummation of
this Lease other than XX Xxxxx Leasing LLC and Xxxxxxx & Wakefeld, Inc. (the
"Brokers")
and
Tenant covenants and agrees to defend, hold harmless and indemnify Landlord
from
and against any and all cost, expense (including reasonable attorneys' fees)
or
liability for any compensation, commissions or charges claimed by any broker
or
agent with whom Tenant has dealt, with respect to this Lease or the negotiation
thereof.
40.02
Landlord covenants, represents and warrants that Landlord has had no dealings
or
negotiations with any broker or agent in connection with the consummation of
this Lease other than the Brokers and Landlord covenants and agrees to defend,
hold harmless and indemnify Tenant from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commissions or charges claimed by any broker or agent, other than Brokers,
claiming to have dealt with Landlord with respect to this Lease or the
negotiation thereof. Landlord agrees that it shall be responsible for and shall
pay to the Brokers, pursuant to a separate agreement, the commissions payable
as
a result of this Lease.
38
ARTICLE
41
ELECTRICITY
41.01 Tenant
acknowledges and agrees that electric service shall be supplied to the Premises
on a “rent inclusion basis” in accordance with the provisions of this Article 41
(subject to Landlord’s right, in its sole discretion, to furnish such
electricity on a “submetering” basis as provided for herein).
41.02 Electricity
and electric service, as used herein, shall mean any element affecting the
generation, transmission, and/or distribution or redistribution of electricity,
including but not limited to services which facilitate the distribution of
service.
41.03 If
and so
long as Landlord provides electricity to the Premises on a rent inclusion basis,
Tenant agrees that the Fixed Annual Rent shall be increased by the amount of
the
Electricity Rent Inclusion Factor (“ERIF”),
as
hereinafter defined. Tenant acknowledges and agrees (i) that the Fixed Annual
Rent hereinabove set forth in this Lease does not yet, but is to include an
ERIF
of $3.00 per rentable square foot to compensate Landlord for electrical wiring
and other installations necessary for, and for its obtaining and making
available to Tenant the redistribution of electric current as an additional
service, and Tenant shall pay for Tenant’s Share of Building electric current
(i.e., all electricity used in lighting the public and service areas, and in
operating all the service facilities, of the Building and the parties
acknowledge and agree that twenty percent (20%) of the Building's payment to
the
public utility or other service providers for the purchase of electricity shall
be deemed to be payment for Building electric current) which shall be paid
for
by Tenant in accordance with provisions hereof; and (ii) that said ERIF, which
shall be subject to periodic adjustments as hereinafter provided, has been
partially based upon an estimate of the Tenant’s connected electrical load, in
whatever manner delivered to Tenant, which shall be deemed to be the demand
(KW), and hours of use thereof, which shall be deemed to be the energy (KWH),
for ordinary lighting and light office equipment and the operation of the usual
small business machines, including Xerox or other copying machines (such
lighting and equipment are hereinafter called “Ordinary
Equipment”)
during
ordinary business hours (“Ordinary
Business Hours”
shall
be deemed to mean 50 hours per week), with Landlord providing an average
connected load of 4 ½ xxxxx of electricity for all purposes per rentable square
foot. Any installation and use of equipment other than Ordinary Equipment and/or
any connected load and/or energy usage by Tenant in excess of the foregoing
and
the charge for Tenant’s Share of Building electric current shall result in
adjustment of the ERIF as hereinafter provided. For purposes of this Article,
the rentable square foot area of the Premises shall be deemed to be 8,897 square
feet.
39
41.04 If
the
cost to Landlord of electricity shall have been, or shall be, increased
subsequent to November 1, 2005 (whether such change occurs prior to or during
the term of this Lease), by change in Landlord’s electric rates or service
classifications, or electricity charges, including changes in market prices,
or
by an increase, subsequent to the last such electric rate or service
classification change or market price change, in fuel adjustments or charges
of
any kind, or by taxes, imposed on Landlord’s electricity purchases or on
Landlord’s electricity redistribution, or for any other such reason, then the
aforesaid ERIF portion of the fixed annual rent shall be changed in the same
percentage as any such change in cost due to changes in electric rates, service
classifications or market prices, and, also Tenant’s payment obligation, for
electricity redistribution, shall change from time to time so as to reflect
any
such increase in fuel adjustments or charges, and such taxes. Any such
percentage change in Landlord’s cost due to change in Landlord’s electric rate
or service classifications or market prices, shall be computed on the basis
of
the average consumption of electricity for the Building for the twelve full
months immediately prior to the rate change or other such changes in cost,
energy and demand, and any changed methods of or rules on billing for same,
applied on a consistent basis to the new electric rate or service classification
or market price and to the immediately prior existing electric rate or service
classification or market price. If the average consumption (energy and demand)
for the entire Building for said prior twelve (12) months cannot reasonably
be
applied and used with respect to changed methods of or rules on billing, then
the percentage increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three (3) months
after
such change, projected to a full twelve (12) months, so as to reflect the
different seasons; and that same consumption, so projected, shall be applied
to
the rate and/or service classification or market price which existed immediately
prior to the change. The parties agree that a reputable, independent electrical
consultant firm, selected by Landlord (“Landlord’s
Electrical Consultant”),
shall
determine the percentage change for the changes in ERIF due to Landlord’s
changed costs and the charge to Tenant for Tenant’s Share of Building electric
current, and that Landlord’s Electrical Consultant may from time to time make
surveys in the Premises of the electrical equipment and fixtures and use of
current. (i) If such survey shall reflect a connected electrical load in excess
of 4 ½ xxxxx of electricity for all purposes per rentable square foot and/or
energy usage in excess of Ordinary Business Hours (each such excess hereinafter
called “excess
electricity”)
then
the connected electrical load and/or the hours of use portion(s) of the then
existing ERIF shall be increased by an amount which is equal to a fraction
of
the then existing ERIF, the numerator of which is the excess electricity (i.e.,
excess connected load and/or excess usage) and the denominator of which is
the
connected load and/or the energy usage which was the basis of the then existing
ERIF. Such fractions shall be determined by Landlord’s Electrical Consultant.
The Fixed Annual Rent shall then be appropriately adjusted, effective as of
the
date of any such change in connected load and/or usage, as disclosed by said
survey. (ii) If such survey shall disclose installation and use of other than
Ordinary Equipment, then effective as of the date of said survey, there shall
be
added to the ERIF portion of Fixed Annual Rent (computed and fixed as
hereinbefore described) an additional amount equal to what would be paid under
the SC-4 Rate I Service Classification in effect on November 1, 2005 (and not
the time-of-day rate schedule) or the comparable rate schedule (and not the
time-of-day rate schedule) of any utility other than Con Ed then providing
electrical service to the building as same shall be in effect on the date of
such survey for such load and usage of electricity, with the connected
electrical load deemed to be the demand (KW) and the hours of use thereof deemed
to be the energy (KWH), as hereinbefore provided, (which addition to the ERIF
shall be increased by all electricity cost changes of Landlord, as hereinabove
provided, from November 1, 2005 through the date of billing).
40
41.05 In
no
event, whether because of surveys, rates or cost changes, or for any reason,
is
the originally specified $3.00 per rentable square foot ERIF portion of the
fixed annual rent (plus any net increase thereof by virtue of all electricity
rate, service classification or market price changes of Landlord subsequent
to
November 1, 2005) to be reduced.
41.06 The
determinations by Landlord’s Electrical Consultant shall be binding and
conclusive on Landlord and Tenant from and after the delivery of copies of
such
determinations to Landlord and Tenant, unless, within thirty (30) days after
delivery thereof, Tenant disputes such determination. If Tenant so disputes
the
determination, it shall, at its own expense, obtain from a reputable,
independent electrical consultant its own determinations in accordance with
the
provisions of this Article. Tenant’s consultant and Landlord’s consultant then
shall seek to agree. If they cannot agree within thirty (30) days they shall
choose a third reputable electrical consultant, whose cost shall be shared
equally by the parties, to make similar determinations which shall be
controlling. (If they cannot agree on such third consultant within ten (10)
days, then either party may apply to the Supreme Court in the County of New
York
for such appointment.) However, pending such controlling determinations Tenant
shall pay to Landlord the amount of Additional Rent or ERIF in accordance with
the determinations of Landlord’s Electrical Consultant. If the controlling
determinations differ from Landlord’s Electrical Consultant, then the parties
shall promptly make adjustment for any deficiency owed by Tenant or overage
paid
by Tenant.
41
41.07 If
and so
long as Landlord provides electricity to the Premises on a submetering basis,
Tenant covenants and agrees to purchase the same from Landlord or Landlord’s
designated agent at charges, terms and rates set, from time to time, during
the
term of this Lease by Landlord but not more than those specified in the service
classification in effect on January 1, 1970 pursuant to which Landlord then
purchased electric current from the public utility corporation serving the
part
of the city where the Building is located; provided however, said charges shall
be increased in the same percentage as any percentage increase in the billing
to
Landlord for electricity for the entire Building, by reason of increase in
Landlord’s electric rates or service classifications, subsequent to January 1,
1970, and so as to reflect any increase in Landlord’s electric charges,
including changes in market prices for electricity from utilities and/or other
providers, in fuel adjustments or by taxes or charges of any kind imposed on
Landlord’s electricity purchases or redistribution, or for any other such
reason, subsequent to said date. Any such percentage increase in Landlord’s
billing for electricity due to changes in rates, service classifications, or
market prices, shall be computed by the application of the average consumption
(energy and demand) of electricity for the entire Building for the twelve (12)
full months immediately prior to the rate and/or service classification change,
or any changed methods of or rules on billing for same, applied on a consistent
basis to the new rate and/or service classification or market price, and to
the
classification and rate in effect on January 1, 1970. If the average consumption
of electricity for the entire Building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or rules
on
billing, then the percentage shall be computed by the use of the average
consumption (energy and demand) for the entire Building for the first three
(3)
months after such change, projected to a full twelve (12) months, so as to
reflect the different seasons; and that same consumption, so projected, shall
be
applied to the service classification and rate in effect on January 1, 1970.
Where more than one meter measures the service of Tenant in the Building, the
service rendered through each meter may be computed and billed separately in
accordance with the rates herein specified. Bills therefore shall be rendered
at
such times as Landlord may elect and the amount, as computed from a meter,
shall
be deemed to be, and be paid as, Additional Rent. In the event that such bills
are not paid within five (5) days after the same are rendered, Landlord may,
without further notice, discontinue the service of electric current to the
Premises without releasing Tenant from any liability under this Lease and
without Landlord or Landlord’s agent incurring any liability for any damage or
loss sustained by Tenant by such discontinuance of service. If any tax is
imposed upon Landlord’s receipt from the sale, resale or redistribution of
electricity or gas or telephone service to Tenant by any Federal, State, or
Municipal authority, Tenant covenants and agrees that where permitted by law,
Tenant’s pro-rata share of such taxes shall be passed on to and included in the
xxxx of, and paid by, Tenant to Landlord.
41.08
If all
or part of the submetering Additional Rent or the ERIF payable in accordance
with Section 41.03 or 41.04 of this Article becomes uncollectible or reduced
or
refunded by virtue of any law, order or regulations, the parties agree that,
at
Landlord’s option, in lieu of submetering Additional Rent or ERIF, and in
consideration of Tenant’s use of the Building’s electrical distribution system
and receipt of redistributed electricity and payment by Landlord of consultant’s
fees and other redistribution costs, the Fixed Annual Rental rate(s) to be
paid
under this Agreement shall be increased by an “alternative charge” which shall
be a sum equal to $3.00 per year per rentable square foot of the Premises,
changed in the same percentage as any increase in the cost to Landlord for
electricity for the entire Building subsequent to November 1, 2005, because
of
electric rate, service classification or market price changes, such percentage
change to be computed as in Section 41.04 provided.
42
41.09 Landlord
shall not be liable to Tenant for any loss or damage or expense which Tenant
may
sustain or incur if either the quantity or character of electric service is
changed or is no longer available or suitable for Tenant’s requirements. Tenant
covenants and agrees that at all times its use of electric current shall never
exceed the capacity of existing feeders to the Building or wiring installation.
Any riser or risers to supply Tenant’s electrical requirements, upon written
request of Tenant, will be installed by Landlord, at the sole cost and expense
of Tenant, if, in Landlord’s sole judgment, the same are necessary and will not
cause permanent damage or injury to the Building or the Premises or 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. In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other equipment
proper and necessary in connection therewith subject to the aforesaid terms
and
conditions. The parties acknowledge that they understand that it is anticipated
that electric rates, charges, etc., may be changed by virtue of time-of-day
rates or changes in other methods of billing, and/or electricity purchases
and
the redistribution thereof, and fluctuation in the market price of electricity,
and that the references in the foregoing paragraphs to changes in methods of
or
rules on billing are intended to include any such changes. Anything hereinabove
to the contrary notwithstanding, in no event is the submetering Additional
Rent
or ERIF, or any “alternative charge”, to be less than an amount equal to the
total of Landlord’s payments to public utilities and/or other providers for the
electricity consumed by Tenant (and any taxes thereon or on redistribution
of
same) plus 5% thereof for transmission line loss, plus 15% thereof for other
redistribution costs. The Landlord reserves the right, at any time upon thirty
(30) days’ written notice, to change its furnishing of electricity to Tenant
from a rent inclusion basis to a submetering basis, or vice versa, or to change
to the distribution of less than all the components of the existing service
to
Tenant. The Landlord reserves the right to terminate the furnishing of
electricity on a rent inclusion, submetering, or any other basis at any time,
upon thirty (30) days’ written notice to the Tenant, in which event the Tenant
may make application directly to the public utility and/or other providers
for
the Tenant’s entire separate supply of electric current and Landlord shall
permit its wires and conduits, to the extent available and safely capable,
to be
used for such purpose, but only to the extent of Tenant’s then authorized load.
Any meters, risers, or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain electric
current directly from such utility and/or other providers shall be installed
at
Tenant’s sole cost and expense. Only rigid conduit or electricity metal tubing
(EMT) will be allowed. The Landlord, upon the expiration of the aforesaid thirty
(30) days’ written notice to the Tenant may discontinue furnishing the electric
current but this Lease shall otherwise remain in full force and effect. If
Tenant was provided electricity on a rent inclusion basis when it was so
discontinued, then commencing when Tenant receives such direct service and
as
long as Tenant shall continue to receive such service, the Fixed Annual Rent
payable under this Lease shall be reduced by the amount of the ERIF which was
payable immediately prior to such discontinuance of electricity on a rent
inclusion basis.
Notwithstanding the foregoing, provided that Tenant promptly applies for such
direct service and diligently pursues such application to completion, Landlord
shall not so discontinue such redistributed service until Tenant obtains
electric service directly from the public utility, unless required by law.
43
ARTICLE
42
LEASE
SUBMISSION
42.01 Landlord
and Tenant agree that this Lease is submitted to Tenant on the understanding
that it shall not be considered an offer and shall not bind Landlord in any
way
unless and until (i) Tenant has duly executed and delivered duplicate originals
thereof to Landlord and (ii) Landlord has executed and delivered one of said
originals to Tenant.
ARTICLE
43
INSURANCE
43.01. Tenant
shall not violate, or permit the violation of, any condition imposed by the
standard fire insurance policy then issued for office buildings in the Borough
of Manhattan, City of New York, and shall not do, or permit anything to be
done,
or keep or permit anything to be kept in the Premises which would subject
Landlord to any liability or responsibility for personal injury or death or
property damage, or which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would otherwise
then be in effect (unless Tenant pays the resulting premium as hereinafter
provided for) or which would result in insurance companies of good standing
refusing to insure the building or any of such property in amounts reasonably
satisfactory to Landlord.
43.02 Tenant
covenants to provide on or before the earlier to occur of (i) the Commencement
Date, and (ii) ten (10) days from the date of this Lease, and to keep in force
during the term hereof the following insurance coverage which coverage shall
be
effective on the Commencement Date:
(a) A
comprehensive policy of liability insurance naming Landlord and its designees
as
additional insureds protecting Landlord, its designees and Tenant against any
liability whatsoever occasioned by accident on or about the Premises or any
appurtenances thereto. Such policy shall have limits of liability of not less
than Five Million ($5,000,000.00) Dollars combined single limit coverage on
a
per occurrence basis, including property damage. Such insurance may be carried
under a blanket policy covering the Premises and other locations of Tenant,
if
any, provided such a policy contains an endorsement (i) naming Landlord and
its
designees as additional insureds, (ii) specifically referencing the Premises;
and (iii) guaranteeing a minimum limit available for the Premises equal to
the
limits of liability required under this Lease;
(b) Fire
and
extended coverage in an amount adequate to cover the cost of replacement of
all
personal property, fixtures, furnishings, equipment, improvements and
installations located in the Premises.
44
43.03 All
such
policies shall be issued by companies of recognized responsibility licensed
to
do business in New York State and rated by Best's Insurance Reports or any
successor publication of comparable standing and carrying a rating of A+ VIII
or
better or the then equivalent of such rating, and all such policies shall
contain a provision whereby the same cannot be canceled or modified unless
Landlord and any additional insured are given at least thirty (30) days prior
written notice of such cancellation or modification.
43.04 Prior
to
the time such insurance is first required to be carried by Tenant and
thereafter, at least fifteen (15) days prior to the expiration of any such
policies, Tenant shall deliver to Landlord either duplicate originals of the
aforesaid policies or certificates evidencing such insurance, together with
evidence of payment for the policy. If Tenant delivers certificates as aforesaid
Tenant, upon reasonable prior notice from Landlord, shall make available to
Landlord, at the Premises, duplicate originals of such policies from which
Landlord may make copies thereof, at Landlord's cost. Tenant's failure to
provide and keep in force the aforementioned insurance shall be regarded as
a
material default hereunder, entitling Landlord to exercise any or all of the
remedies as provided in this Lease in the event of Tenant's default. In
addition, in the event Tenant fails to provide and keep in force the insurance
required by this Lease, at the times and for the durations specified in this
Lease, Landlord shall have the right, but not the obligation, at any time and
from time to time, and without notice, to procure such insurance and/or pay
the
premiums for such insurance in which event Tenant shall repay Landlord within
five (5) days after demand by Landlord, as Additional Rent, all sums so paid
by
Landlord and any costs or expenses incurred by Landlord in connection therewith
without prejudice to any other rights and remedies of Landlord under this
Lease.
43.05 Landlord
and Tenant shall each endeavor to secure an appropriate clause in, or an
endorsement upon, each fire or extended coverage policy obtained by it and
covering the Building, the Premises or the personal property, fixtures and
equipment located therein or thereon, pursuant to which the respective insurance
companies waive subrogation or permit the insured, prior to any loss, to agree
with a third party to waive any claim it might have against said third party.
The waiver of subrogation or permission for waiver of any claim hereinbefore
referred to shall extend to the agents of each party and its employees and,
in
the case of Tenant, shall also extend to all other persons and entities
occupying or using the Premises in accordance with the terms of this Lease.
If
and to the extent that such waiver or permission can be obtained only upon
payment of an additional charge then, except as provided in the following two
paragraphs, the party benefiting from the waiver or permission shall pay such
charge upon demand, or shall be deemed to have agreed that the party obtaining
the insurance coverage in question shall be free of any further obligations
under the provisions hereof relating to such waiver or
permission.
45
43.06 In
the
event that Landlord shall be unable at any time to obtain one of the provisions
referred to above in any of its insurance policies, at Tenant's option, Landlord
shall cause Tenant to be named in such policy or policies as one of the
insureds, but if any additional premium shall be imposed for the inclusion
of
Tenant as such an insured, Tenant shall pay such additional premium upon demand.
In the event that Tenant shall have been named as one of the insureds in any
of
Landlord's policies in accordance with the foregoing, Tenant shall endorse
promptly to the order of Landlord, without recourse, any check, draft or order
for the payment of money representing the proceeds of any such policy or any
other payment growing out of or connected with said policy and Tenant hereby
irrevocably waives any and all rights in and to such proceeds and
payments.
43.07 In
the
event that Tenant shall be unable at any time to obtain one of the provisions
referred to above in any of its insurance policies, Tenant shall cause Landlord
to be named in such policy or policies as one of the insureds, but if any
additional premium shall be imposed for the inclusion of Landlord as such an
insured, Landlord shall pay such additional premium upon demand or Tenant shall
be excused from its obligations under this paragraph with respect to the
insurance policy or policies for which such additional premiums would be
imposed.
43.08 Subject
to the foregoing provisions of this Article, and insofar as may be permitted
by
the terms of the insurance policies carried by it, each party hereby releases
the other with respect to any claim (including a claim for negligence) which
it
might otherwise have against the other party for loss, damages or destruction
with respect to its property by fire or other casualty (including rental value
or business interruption, as the case may be) occurring during the Term of
this
Lease.
43.09 If,
by
reason of a failure of Tenant to comply with the provisions of this Lease,
the
rate of fire insurance with extended coverage on the building or equipment
or
other property of Landlord shall be higher than it otherwise would be, Tenant
shall reimburse Landlord, on demand, for that part of the premiums for fire
insurance and extended coverage paid by Landlord because of such failure on
the
part of Tenant.
43.10. Landlord
may, from time to time, require that the amount of the insurance to be provided
and maintained by Tenant hereunder be increased so that the amount thereof
adequately protects Landlord's interest, but in no event in excess of the amount
that would be required of other tenants in other similar office buildings in
the
borough of Manhattan.
43.11 A
schedule or make up of rates for the building or the Premises, as the case
may
be, issued by the New York Fire Insurance Rating Organization or other similar
body making rates for fire insurance and extended coverage for the premises
concerned, shall be conclusive evidence of the facts therein stated and of
the
several items and charges in the fire insurance rate with extended coverage
then
applicable to such premises.
46
43.12 Each
policy evidencing the insurance to be carried by Tenant under this Lease shall
contain a clause that such policy and the coverage evidenced thereby shall
be
primary with respect to any policies carried by Landlord, and that any coverage
carried by Landlord shall be excess insurance.
ARTICLE
44
SIGNAGE
44.01 Tenant
shall be permitted to affix either sign or plaque on or adjacent to the entrance
door to the Premises, subject to the prior written approval of Landlord which
shall not be unreasonably withheld subject to the other provisions of this
Article, with respect to location, design, size, materials, quality, coloring,
lettering and shape thereof, and subject, also, to compliance by Tenant, at
its
expense, with all applicable legal requirements or regulations. All such signage
shall be consistent and compatible with the design, aesthetics, signage and
graphics program for the Building as established by Landlord. Landlord may
remove any sign installed in violation of this provision, and Tenant shall
pay
the cost of such removal and any restoration costs.
ARTICLE
45
RIGHT
TO RELOCATE
45.01 Notwithstanding
anything contained in this Lease to the contrary, Landlord shall have the right,
subsequent to the first (1st)
anniversary of the Commencement Date and prior to the ninth (9th)
anniversary of the Commencement Date, to substitute in lieu of the Premises,
alternative space in the Building designated by Landlord (the “Relocation
Space”)
effective as of the date (the “Relocation
Effective Date”)
set
forth in a notice given to Tenant (the “Relocation
Notice”).
The
Relocation Space shall be reasonably comparable to the Premises with respect
to
internal configuration, quality of finish (e.g., paint, carpet and floor
coverings, ceiling tiles, moldings and millwork, if any, by means of
substantially the same materials as existed in the Premises provided that same
are then commercially reasonably available to Landlord, and to the extent they
are not so available, by means of materials which are substantially similar
in
nature and of a quality equal or superior to the materials as previously existed
in the Premises, in each instance) and rentable square foot area (i.e., plus
or
minus ten (10%) percent). The Relocation Effective Date shall not be less than
ninety (90) days following the date upon which the Relocation Notice is given
to
Tenant. In the event that Landlord exercises its rights hereunder, (i) Tenant
shall deliver to Landlord possession of the Premises on or before the Relocation
Effective Date vacant and broom clean, free of all occupancies and encumbrances
and otherwise in accordance with the terms, covenants and conditions of the
Lease as if the Relocation Effective Date were the expiration date of the Term
of this Lease, (ii) effective as of the Relocation Effective Date, the term
and
estate hereby granted with respect to the Premises originally demised hereunder
shall terminate, the Relocation Space shall be deemed to be the Premises and
the
Fixed Annual Rent and Additional Rent payable under this Lease shall be
adjusted, if necessary, so as to reflect any difference between the deemed
rentable square foot area of the original Premises and said Relocation Space.
Notwithstanding anything contained in this Article 45 to the contrary, Landlord
shall not substitute the Premises more than once during the original
Term.
47
45.02 Landlord
shall (i) at Landlord's cost and expense, remove and reinstall Tenants' personal
property, trade fixtures and equipment (including the relocation of Tenant’s
then existing telecommunications and voice capabilities) in the Relocation
Space
(“Landlord’s
Relocation Work”)
and
(ii) compensate Tenant for Tenant’s actual, reasonable, out-of-pocket moving and
related expenses, including the reasonable cost of reprinting a reasonable
amount of Tenant’s stationery necessitated by such relocation, upon Tenant’s
submission of paid invoices therefor. Landlord shall complete Landlord’s
Relocation Work on or before the Relocation Effective Date provided that Tenant
cooperates with Landlord and gives Landlord full access to the Premises to
facilitate the performance thereof. Landlord warrants that the physical
relocation of Tenant’s fixtures, goods, personality and equipment shall take
place after normal business hours on a Friday or on a Saturday or Sunday.
45.03 Following
any relocation undertaken pursuant to this Article, Tenant shall promptly
execute and deliver an agreement confirming such relocation and fixing any
corresponding adjustments in Fixed Annual Rent and Additional Rent payable
under
this Lease, but any failure to execute such an agreement by Tenant shall not
affect such relocation and adjustments as determined by Landlord.
45.04
Notwithstanding anything contained in this Article 45 to the contrary, Landlord
shall use reasonable efforts to provide a Relocation Space which has an existing
outdoor terrace, however, in the event that Landlord is unable to do so using
commercially reasonable efforts, and provided that Tenant is not in default
under the terms of this Lease after notice, Landlord shall furnish Tenant with
a
credit to be applied against the four (4) monthly installments of Fixed Annual
Rent accruing immediately following Tenant’s relocation into the Relocation
Space in compliance with the terms of this Article 45.
ARTICLE
46
FUTURE
CONDOMINIUM CONVERSION
46.01 Tenant
acknowledges that the Building and the land of which the Premises form a part
may be subjected to the condominium form of ownership prior to the end of the
Term of this Lease. Tenant agrees that if, at any time during the Term, the
Building and the land shall be subjected to the condominium form of ownership,
then, this Lease and all rights of Tenant hereunder are and shall be subject
and
subordinate in all respects to any condominium declaration and any other
documents (collectively, the "Declaration")
which
shall be recorded in order to convert the Building and the land of which the
Premises form a part to a condominium form of ownership in accordance with
the
provisions of Article 9-B of the Real Property Law of the State of New York
or
any successor thereto. If any such Declaration is to be recorded, Tenant, upon
request of Landlord, shall enter into an amendment of this Lease in such
respects as shall be necessary to conform to such condominiumization, including,
without limitation, appropriate adjustments to Real Estate Taxes payable during
the Base Tax Year and Tenant's Share, as such terms are defined in Article
32
hereof.
48
ARTICLE
47
MISCELLANEOUS
47.01 This
Lease represents the entire understanding between the parties with regard to
the
matters addressed herein and may only be modified by written agreement executed
by all parties hereto. All prior understandings or representations between
the
parties hereto, oral or written, with regard to the matters addressed herein
are
hereby merged herein. Tenant acknowledges that neither Landlord nor any
representative or agent of Landlord has made any representation or warranty,
express or implied, as to the physical condition, state of repair, layout,
footage or use of the Premises or any matter or thing affecting or relating
to
Premises except as specifically set forth in this Lease. Tenant has not been
induced by and has not relied upon any statement, representation or agreement,
whether express or implied, not specifically set forth in this Lease. Landlord
shall not be liable or bound in any manner by any oral or written statement,
broker's "set-up", representation, agreement or information pertaining to the
Premises, the Building or this Agreement furnished by any real estate broker,
agent, servant, employee or other person, unless specifically set forth herein,
and no rights are or shall be acquired by Tenant by implication or otherwise
unless expressly set forth herein. This Lease shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this agreement to be drafted.
ARTICLE
48
COMPLIANCE
WITH LAW
48.01 If,
at
any time during the Term hereof, Landlord expends any sums for alterations
or
improvements to the Building which are required to be made pursuant to any
law,
ordinance or governmental regulation, Tenant shall pay to Landlord, as
Additional Rent, Tenant’s Share of such cost within twenty (20) days after
demand therefor; provided, however, that if the cost of such alteration or
improvement is one which is required to be amortized over a period of time
pursuant to applicable governmental regulations, Tenant shall pay to Landlord,
as Additional Rent, during each year in which occurs any part of the Term,
Tenant’s Share of the cost thereof amortized on a straight line basis over an
appropriate period, but not more than ten (10) years. Notwithstanding anything
to the contrary contained herein, in the event that the requirement for the
performance of any such alteration or improvement is attributable to the
actions, installations, use or manner of use of the Premises by Tenant, then
in
such event Tenant shall be responsible to pay the entire cost imposed by
Landlord with respect to such alteration or improvement.
49
ARTICLE
49
LANDLORD’S
CONTRIBUTION
49.01 Tenant
shall have prepared by
a
registered architect and/or a licensed professional engineer, at its sole cost
and expense, and
submit to Landlord
for its
approval in accordance with the applicable provisions of the Lease, final and
complete dimensioned architectural, mechanical, electrical and structural
drawings and specifications in a form ready for use as construction drawings
for
the
installation of alterations, installations, decorations and improvements in
the
Premises to prepare the same for Tenant’s initial occupancy thereof
(“Tenant’s
Initial Alteration Work”).
All
such construction plans and specifications and all such work shall be effected
in accordance with all applicable provisions of the Lease at Tenant’s sole cost
and expense. If and so long as Tenant is not in default under the Lease, subject
to and in accordance with the provisions of this Article, Landlord shall
contribute up to the sum of $355,880.00 ("Landlord's
Contribution")
to the
cost of labor and materials for the portion of the Tenant’s Initial Alteration
Work which constitutes Qualified Renovations. "Qualified
Renovations"
shall
be defined as the labor and materials used by Tenant to construct permanent
leasehold improvements and alterations to the Premises in compliance with this
Lease after the date hereof and prior to November 1, 2006. Without limitation,
for purposes of this Article, Qualified Renovations shall be deemed not to
include and Landlord’s Contribution shall not be applied to the cost of
interest, late charges, trade fixtures, furniture, furnishings, equipment,
professional fees, workstations, work surfaces (whether or not affixed to walls
and/or convector covers), related cabinetry, moveable business equipment or
any
personal property whatsoever, or to the cost of labor, materials or services
used to furnish or provide the same.
49.02 “Requisition"
shall
mean a request by Tenant for payment from Landlord for Qualified Renovations
and
shall consist of such documents and information from Tenant as Landlord may
require to substantiate the completion of, and payment for, such Qualified
Renovations to which the Requisition relates (the “Work
Cost”)
and
shall include, without limitation, the following: an itemization of Tenant’s
total construction costs, detailed by contractor, subcontractors, vendors and
materialmen; bills, receipts, lien waivers and releases from all contractors,
subcontractors, vendors and materialmen; architects' and Tenant's certification
of completion, payment and acceptance, and all governmental approvals and
confirmations of completion for the portion of the Tenant’s Initial Alteration
Work theretofore completed and for which Tenant seeks payment.
49.03 From
time-to-time, but not more than once a month, Tenant may give Landlord a
Requisition for so much of the Work Cost as arose since the end of the period
to
which the most recent prior Requisition related, or, with respect to the first
Requisition, for the initial Work Cost.
50
49.04 If
Tenant
is not in continuing default under this Lease and provided that all documents
and information required by Landlord have been provided, within thirty (30)
days
after Landlord receives a Requisition, Landlord shall pay Tenant eighty five
percent (85%) of the Work Cost reflected in such Requisition and shall withhold
the remaining fifteen percent (15%) of Work Cost (the "Retainage");
and
provided that Tenant is not in default under this Lease, within thirty (30)
days
after Tenant furnishes Landlord with (x) a final, stamped set of “as-built”
plans for the Premises which demonstrates that Tenant’s Initial Alteration Work
has been completed in accordance with plans and specifications first approved
by
Landlord and (y) its final Requisition which demonstrates that Tenant’s Initial
Alteration Work has been completed and paid for in full by Tenant and (z) all
documents and information required by Landlord, Landlord shall pay Tenant all
the Retainages.
49.05 It
is
expressly understood and agreed that if the amount of Landlord’s Contribution is
less than the cost of Tenant’s Initial Alteration Work, Tenant shall remain
solely responsible for the payment and completion of, and in all events shall
complete, at its sole cost and expense, Tenant’s Initial Alteration Work on or
before November 1, 2006. Any portion of Landlord’s Contribution not required to
be disbursed shall be retained by Landlord.
IN
WITNESS WHEREOF,
the said
Landlord, and the Tenant have duly executed this Lease as of the day and year
first above written.
| SLG GRAYBAR SUBLEASE LLC, as Landlord | ||
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FUSION
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51
CLEANING
SPECIFICATIONS
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GENERAL
CLEANING - NIGHTLY
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|
Dust
sweep all stone, ceramic tile, marble terrazzo, asphalt tile, linoleum,
rubber, vinyl and other types of
flooring
|
|
-
|
Carpet
sweep all carpets and rugs four (4) times per
week
|
|
-
|
Vacuum
clean all carpets and rugs, once (1) per
week
|
|
-
|
Police
all private stairways and keep in clean
condition
|
|
-
|
Empty
and clean all wastepaper baskets, ash trays and receptacles; damp
dust as
necessary
|
|
-
|
Clean
all cigarette urns and replace sand or water as
necessary
|
|
-
|
Remove
all normal wastepaper and tenant rubbish to a designated area in
the
premises. (Excluding cafeteria waste, bulk materials, and all special
materials such as old desks, furniture
etc.)
|
|
-
|
Dust
all furniture, and window xxxxx as
necessary
|
|
-
|
Dust
clean all glass furniture tops
|
|
-
|
Dust
all chair rails, trim and similar objects as
necessary
|
|
-
|
Dust
all baseboards as necessary
|
|
-
|
Wash
clean all water fountains
|
|
-
|
Keep
locker and service closets in clean and orderly
condition
|
|
B)
|
LAVATORIES-NIGHTLY
(EXCLUDING PRIVATE & EXECUTIVE
LAVATORIES)
|
|
-
|
Sweep
and mop all flooring
|
|
-
|
Wipe
clean all mirrors, powder shelves and brightwork, including flushometers,
piping toilet seat hinges
|
52
|
-
|
Wash
and disinfect all basins, bowls and
urinals
|
|
-
|
Wash
both sides of all toilet seats
|
|
-
|
Dust
all partitions, tile walls, dispensers and
receptacles
|
|
-
|
Empty
and clean paper towel and sanitary disposal
receptacles
|
|
-
|
Fill
toilet tissue holders, soap dispensers and towel dispensers; materials
to
be furnished by Landlord
|
|
-
|
Remove
all wastepaper and refuse to designated area in the
premises
|
|
C)
|
LAVATORIES-PERIODIC
CLEANING (EXCLUDES PRIVATE & EXECUTIVE LAVATORIES)
|
|
-
|
Machine
scrub flooring as necessary
|
|
-
|
Wash
all partitions, tile walls, and enamel surfaces periodically, using
proper
disinfectant when necessary
|
|
D)
|
DAY
SERVICES - DUTIES OF THE DAY
PORTERS
|
|
-
|
Police
ladies' restrooms and lavatories, keeping them in clean
condition
|
|
-
|
Fill
toilet dispensers; materials to be furnished by
Landlord
|
|
-
|
Fill
sanitary napkin dispensers; materials to be furnished by
Landlord
|
|
E)
|
SCHEDULE
OF CLEANING
|
|
-
|
Upon
completion of the nightly chores, all lights shall be turned off,
windows
closed, doors locked and offices left in a neat and orderly
condition
|
|
-
|
All
day, nightly and periodic cleaning services as listed herein, to
be done
five nights each week, Monday through Friday, except Union and Legal
Holidays
|
|
-
|
All
windows from the 2nd floor to the roof will be cleaned inside out
quarterly, weather permitting
|
53
RULES
AND REGULATIONS
MADE
A PART OF THIS LEASE
1.
No
animals, birds, bicycles or vehicles shall be brought into or kept in the
Premises. The Premises shall not be used for manufacturing or commercial
repairing or for sale or display of merchandise or as a lodging place, or for
any immoral or illegal purpose, nor shall the Premises be used for a public
stenographer or typist; xxxxxx or beauty shop; telephone, secretarial or
messenger service; employment, travel or tourist agency; school or classroom;
commercial document reproduction; or for any business other than specifically
provided for in the Tenant’s lease. Tenant shall not cause or permit in the
Premises any disturbing noises which may interfere with occupants of this or
neighboring Buildings, any cooking or objectionable odors, or any nuisance
of
any kind, or any inflammable or explosive fluid, chemical or substance.
Canvassing, soliciting and peddling in the Building are prohibited, and each
tenant shall cooperate so as to prevent the same.
2.
The
toilet rooms and other water apparatus shall not be used for any purposes other
than those for which they were constructed, and no sweepings, rags, ink,
chemicals or other unsuitable substances shall be thrown therein. Tenant shall
not place anything out of doors, windows or skylights, or into hallways,
stairways or elevators, nor place food or objects on outside window xxxxx.
Tenant shall not obstruct or cover the halls, stairways and elevators, or use
them for any purpose other than ingress and egress to or from Tenant’s Premises,
nor shall skylights, windows, doors and transoms that reflect or admit light
into the Building be covered or obstructed in any way. All drapes and blinds
installed by Tenant on any exterior window of the Premises shall conform in
style and color to the Building standard.
3.
Tenant
shall not place a load upon any floor of the Premises in excess of the load
per
square foot which such floor was designed to carry and which is allowed by
law.
Landlord reserves the right to prescribe the weight and position of all safes,
file cabinets and filing equipment in the Premises. Business machines and
mechanical equipment shall be placed and maintained by Tenant, at Tenant’s
expense, only with Landlord’s consent and in settings approved by Landlord to
control weight, vibration, noise and annoyance. Smoking or carrying lighted
cigars, pipes or cigarettes in the elevators of the Building is
prohibited.
4.
Tenant
shall not move any heavy or bulky materials into or out of the Building or
make
or receive large deliveries of goods, furnishings, equipment or other items
without Landlord’s prior written consent, and then only during such hours and in
such manner as Landlord shall approve and in accordance with Landlord’s rules
and regulations pertaining thereto. If any material or equipment requires
special handling, Tenant shall employ only persons holding a Master Rigger’s
License to do such work, and all such work shall comply with all legal
requirements. Landlord reserves the right to inspect all freight to be brought
into the Building, and to exclude any freight which violates any rule,
regulation or other provision of this Lease.
54
5.
No
sign, advertisement, notice or thing shall be inscribed, painted or affixed
on
any part of the Building, without the prior written consent of Landlord.
Landlord may remove anything installed in violation of this provision, and
Tenant shall pay the cost of such removal and any restoration costs. Interior
signs on doors and directories shall be inscribed or affixed by Landlord at
Tenant’s expense. Landlord shall control the color, size, style and location of
all signs, advertisements and notices. No advertising of any kind by Tenant
shall refer to the Building, unless first approved in writing by
Landlord.
6.
No
article shall be fastened to, or holes drilled or nails or screws driven into,
the ceilings, walls, doors or other portions of the Premises, nor shall any
part
of the Premises be painted, papered or otherwise covered, or in any way marked
or broken, without the prior written consent of Landlord.
7.
No
existing locks shall be changed, nor shall any additional locks or bolts of
any
kind be placed upon any door or window by Tenant, without the prior written
consent of Landlord. Two (2) sets of keys to all exterior and interior locks
shall be furnished to Landlord . At the termination of this Lease, Tenant shall
deliver to Landlord all keys for any portion of the Premises or Building. Before
leaving the Premises at any time, Tenant shall close all windows and close
and
lock all doors.
8.
No
Tenant shall purchase or obtain for use in the Premises any spring water, ice,
towels, food, bootblacking, barbering or other such service furnished by any
company or person not approved by Landlord. Any necessary exterminating work
in
the Premises shall be done at Tenant’s expense, at such times, in such manner
and by such company as Landlord shall require. Landlord reserves the right
to
exclude from the Building, from 6:00 p.m. to 8:00 a.m., and at all hours on
Sunday and legal holidays, all persons who do not present a pass to the Building
signed by Landlord. Landlord will furnish passes to all persons reasonably
designated by Tenant. Tenant shall be responsible for the acts of all persons
to
whom passes are issued at Tenant’s request.
9.
Whenever Tenant shall submit to Landlord any plan, agreement or other document
for Landlord’s consent or approval, Tenant agrees to pay Landlord as Additional
Rent, on demand, an administrative fee equal to the sum of the reasonable fees
of any architect, engineer or attorney employed by Landlord to review said
plan,
agreement or document and Landlord’s administrative costs for
same.
55
10.
The
use in the Premises of auxiliary heating devices, such as portable electric
heaters, heat lamps or other devices whose principal function at the time of
operation is to produce space heating, is prohibited.
11.
Tenant shall keep all doors from the hallway to the Premises closed at all
times
except for use during ingress to and egress from the Premises. Tenant
acknowledges that a violation of the terms of this paragraph may also constitute
a violation of codes, rules or regulations of governmental authorities having
or
asserting jurisdiction over the Premises, and Tenant agrees to indemnify
Landlord from any fines, penalties, claims, action or increase in fire insurance
rates which might result from Tenant's violation of the terms of this
paragraph.
12.
Tenant shall be permitted to maintain an "in-house" messenger or delivery
service within the Premises, provided that Tenant shall require that any
messengers in its employ affix identification to the breast pocket of their
outer garment, which shall bear the following information: name of Tenant,
name
of employee and photograph of the employee. Messengers in Tenant's employ shall
display such identification at all time. In the event that Tenant or any agent,
servant or employee of Tenant, violates the terms of this paragraph, Landlord
shall be entitled to terminate Tenant's permission to maintain within the
Premises in-house messenger or delivery service upon written notice to
Tenant.
13.
Tenant will be entitled to three (3) listings on the Building lobby directory
board, without charge. Any additional directory listing (if space is available),
or any change in a prior listing, with the exception of a deletion, will be
subject to a fourteen ($14.00) dollar service charge, payable as Additional
Rent.
14.
In
case of any conflict or inconsistency between any provisions of this Lease
and
any of the rules and regulations as originally or as hereafter adopted, the
provisions of this Lease shall control.
56
EXHIBIT
A
57
EXHIBIT
B
FIXED
ANNUAL RENT SCHEDULE
|
DATES
|
FIXED
ANNUAL RENT |
MONTHLY
INSTALLMENT |
||
|
November
1, 2005- October 31, 2006
|
$428,390.55
|
$35,699.21
|
||
|
November
1, 2006 - October 31, 2007
|
$439,100.31
|
$36,591.69
|
||
|
November
1, 2007 - October 31, 2008
|
$450,077.82
|
$37,506.49
|
||
|
November
1, 2008 - October 31, 2009
|
$461,329.77
|
$38,444.15
|
||
|
November
1, 2009 - October 31, 2010
|
$472,863.01
|
$39,4054.25
|
||
|
November
1, 2010 - October 31, 2011
|
$461,463.42
|
$38,455.28
|
||
|
November
1, 2011 - October 31, 2012
|
$473,000.00
|
$39,416.67
|
||
|
November
1, 2012 - October 31, 2013
|
$484,825.00
|
$40,402.08
|
||
|
November
1, 2013 - October 31, 2014
|
$496,945.63
|
$41,412.14
|
||
|
November
1, 2014 - October 31, 2015
|
$509,369.27
|
$42,447.44
|
58
