Exhibit 10.53
THIS LEASE made this 23rd day of April, 1999
LANDLORD
between The Xxxxxx, Church Wardens and Vestrymen of Trinity Church in the city
of New York, a religious corporation (hereafter referred as as "the Landlord"),
having its offices at 00 Xxxxxxx Xxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and
State of New York, and
STARTEC GLOBAL COMMUNICATIONS CORPORATION
TENANT
(hereafter referred to as "the Tenant"), a Maryland corporation,
having its place of business at 00000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
00000.
Witnesseth:
GRANT PREMISES
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described space: a
portion of the 5th floor as hatched in red on the diagram attached hereto and
made part of this lease and marked Exhibit "A".
TERM
(such space is hereafter referred to as "the premises") in the building known
by street number as No. 000 Xxxxxx Xxxxxx in the Borough of Manhattan, City,
County and State of New York (hereafter referred to as "the building"), with
the privilege to the Tenant of using (subject to such rules and regulations
as the Landlord shall from time to time prescribe) the necessary entrances
and appurtenances to the premises, reserving to the Landlord all other
portions of the building not herein specifically demised, for a term to
commence on the first day of April, 1999, at noon, Standard Time, and to
expire on the thirty-first day of March, 2009, at noon, Standard Time (or
until such term shall sooner cease and
RENT
expire or be terminated as hereafter provided), at the rent at the annual
rate or rates as follows: TWO HUNDRED EIGHTY-NINE THOUSAND SEVEN HUNDRED AND
NO/100 ($289,700.00) Dollars,
ADDITIONAL RENT
payable at the offices of the Landlord in equal monthly payments of
$24,141.67 each or if more than one annual rate is specified above, then in
installments equal to 1/12th of the rent at the annual rates as above
prescribed for the respective periods in which they are payable, in advance
without demand therefor an installment equal to the amount of the rent
payable under this lease for the first month of the term for which rent is
payable upon the execution hereof by the Tenant, and thereafter, on the first
day of each month during said term, in lawful money of the United States,
plus (i) when due or demanded, such items as shall be provided hereafter
are payable by the Tenant as additional rent, and (ii), should the Tenant at
the commencement of the term of this lease be in default in the payment of
rent to the Landlord pursuant to the terms of any prior lease with the
Landlord, or with a predecessor in interest of the Landlord, the amount of
such arrears, which the Landlord may at its option and without notice thereof
to the Tenant, add to any monthly installments of rent due under this lease.
COVENANTS AND CONDITIONS
THE ABOVE LETTING IS UPON THE FOLLOWING COVENANTS AND CONDITIONS, each
and every one of which the Tenant covenants and agrees with the Landlord to
keep and perform, and the Tenant agrees that the covenants herein contained
on the part of the Tenant to be performed, shall be deemed conditional
limitations, as well as covenants and conditions:
(1)
FIRST: (a) The Tenant shall use the premises only for executive
and general offices and telecommunications switching center.
(b) If any portion of the premises consists of basement space, such
portion shall be used only for storage purposes.
(c) No auction sale and no other sale of all or substantially all of the
Tenant's property, stock, fixtures and machinery, except a sale made in
connection with an assignment of this lease to another tenant for which the
Landlord's consent shall have been obtained shall be held at the premises
unless the provisions of Article TWENTY-NINTH (b) of this lease shall have
been complied with.
RENT
SECOND: (a) The Tenant shall pay the rent and additional rent as
provided in this lease.
(b) If any installment or installments of rent or additional rent or any
service charge shall not be paid within ten (10) days following the date on
which the same shall be due and payable pursuant to this lease then in
addition to, and without waiving or releasing, any other rights and remedies
of the Landlord, the Tenant shall pay to the Landlord a late charge of one
and one-half (1 1/2%) percent per month computed (on the basis of a 30-day
month) from the date on which each such installment became due and payable to
the date of payment of the installment on the amount of each such installment
or installments, as liquidated damages for Tenant's failure to make prompt
payment, and the same may be collected on demand or as additional rent in
accordance with the provisions of Article TWENTY-FIFTH of this lease.
REPAIRS MACHINERY CLEANING AND WASTE
THIRD: (a) The Tenant shall take good care of the premises and the
fixtures, appurtenances, equipment and facilities therein and shall make, as
and when needed, all repairs in and about the premises required to keep them
in good order and condition; such repairs to be equal in quality to the
original work provided that the Tenant shall not be obligated for structural
or exterior repairs to the building or for repairs to the systems and
facilities of the building for the use or service of tenants generally,
(Landlord hereby agreeing to make such repairs as are necessary in order to
keep the building and its common systems and equipment (including the
bathrooms on the floor) in reasonable working order in accordance with the
Landlord's building standards (the Tenant hereby agreeing that the Landlord
shall have no liability for any inconvenience, annoyance, interruption or
injury to business arising from the Landlord's making of any such repairs)
and Landlord further agreeing to clean the bathrooms on the floor and provide
bathroom supplies), other than fixtures, appurtenances, equipment and
facilities in the premises, except where structural or exterior repairs or
repairs to such systems and facilities are made necessary by reason of one or
more of the occurrences described below in clauses (i) through (iv) of this
Article THIRD (a). Should the Tenant fail to repair any condition in or about
the premises or the fixtures, appurtenances, equipment and facilities therein
which is of such a nature that its neglect would result in damage or danger
to the building, its fixtures, appurtenances, facilities and equipment, or to
its occupants (of which nature the Landlord shall be the judge) or, in the
case of repairs of any other nature, should the Tenant have failed to make
the required repairs or to have begun in good faith, the work necessary to
make them within five days after notice from the Landlord of the condition
requiring repair, the Landlord may, in either such case, immediately enter
the premises and make the required repairs at the expense of the Tenant. The
Landlord may make, at the expense of the Tenant (with credit to the Tenant
for any sums reimbursed by Landlord's insurance) any repairs to the building
or to its fixtures, appurtenances, facilities or equipment, whether of a
structural or any other nature, which are required by reason of damage or
injury due (i) to the negligence or the improper acts of the Tenant or its
employees, agents, licenses or visitors; (ii) to the moving, into or out of
the building, of property being delivered to or taken from the premises;
(iii) to the installation, repair or removal of the property of the Tenant in
the premises; or (iv) to the faulty operation of any machinery, equipment, or
facility installed in the premises by or for the Tenant. The Tenant will pay
the reasonable cost of any repairs made by the Landlord pursuant to this
paragraph upon presentation of bills, therefor, or the Landlord may, at its
option, add such amounts to any installment or installments of rent due under
this lease and collect the same as additional rent. The liability of the
Tenant under this Article Third shall survive the expiration or other
termination of this lease.
MACHINERY
(b) If the Tenant shall install or maintain machinery or manufacturing
equipment of any description in the premises, the operation of which produces
noise or vibration which is transmitted beyond the premises and the Landlord
deems it necessary that the noise or vibration of such machinery or equipment
be diminished, eliminated, prevented or confined to the premises, the
Landlord may give written notice to the Tenant, requiring that the Tenant
provide and install rubber or other approved settings for absorbing,
preventing or decreasing the noise or vibration of such machinery or
equipment within fifteen days. The judgment of the Landlord of the necessity
of such installation shall be conclusive, and the installation shall be made
in such manner and of such material as the Landlord may direct. Should the
Tenant fail to comply with such request within fifteen days, the Landlord may
do the work necessary to absorb, prevent or decrease the noise or vibration
of such machinery or equipment and the Tenant will pay to the Landlord the
cost of such work upon demand or such cost may, at the option of the
Landlord, be added to any installment or installments of rent under this
lease and shall be payable by the Tenant as additional rent. The Landlord
agrees that this, or a substantially similar, provision shall be included in
all future leases affecting the fourth, fifth and sixth floors of this
building and that the Landlord shall take reasonable efforts (without,
however, being obligated to expend any money in excess of $1,000.00 or
initiate any legal proceedings) to enforce such provision in the event that
any such noise or vibration disturbs the operation of the Tenant's equipment.
CLEANING AND WASTE
(c) The premises shall be kept clean and in order by the Tenant, at the
Tenant's expense, and to the satisfaction of the Landlord. The Tenant shall,
as its own expense, clean the interior surfaces of the windows at such times
as the windows become dirty to a degree which, in the judgment of the
Landlord, adversely affects the appearance of the building or the premises
(the Landlord hereby agreeing to wash the exterior of the windows once prior
to the commencement of rent payment by the Tenant and otherwise in accordance
with the Landlord's schedule of window cleaning for this building). Such
window cleaning shall be done in a manner which complies with the
requirements of this lease and all applicable laws and regulations. The
Tenant shall, at its own expense, remove from the building any and all
rubbish, refuse and waste originating in the premises of the Tenant or cause
the same to be removed (provided that the Tenant places the same neatly at
the freight elevator serving the floor on which the premises are located, the
Landlord, at the Tenant's request and at the Landlord's then current rates
(which rates are currently $1,000 per year) will (once per business day after
business hours) remove ordinary office quality refuse from the floor.) The
removal of such refuse, rubbish and waste shall be subject to such rules and
regulations as to time and manner of removal as, in the judgment of the
Landlord, are necessary for the proper operation of the building. In the
event that the Tenant shall fail to clean the windows or remove its refuse,
rubbish and waste, such cleaning or removal may be done by the Landlord, and
the Tenant shall pay to the Landlord the cost of the cleaning of the windows
or the removal of any of the Tenant's refuse, rubbish and waste from the
building. Bills for the same shall be rendered by the Landlord to the Tenant
at such times as the Landlord may elect and shall be due and payable when
rendered, and the amount of such bills shall be deemed to be, and be paid as,
additional rent. Should the Landlord clean the windows or remove the rubbish
of the Tenant and of other tenants, the cost of such cleaning or removal
shall be apportioned as between the Tenant and such other tenants
respectively on the basis of the number of windows or the respective
approximate quantities of such rubbish and waste as the case may be. The
Landlord's apportionment of such respective quantities shall be conclusive on
the parties.
(2)
ALTERATIONS AND FIXTURES
FOURTH: (a) The Tenant shall not make any alteration, decoration,
addition or improvement in or upon the premises, nor incur any expense
therefor, without having first obtained the written consent of the Landlord
therefor. If the Tenant shall desire to make alterations, decorations,
additions or improvements to fit out the premises for the Tenant's use which
will not adversely affect the structure of the building or the operation of
any of the systems or facilities of the building for the use of all tenants
or violate the requirements of government hereafter referred to and if the
Tenant shall furnish the Landlord with the Tenant's plans and specifications
for the proposed alteration, decoration, addition or improvement in
sufficient detail to permit the Landlord to determine that the same will
comply with the requirements of this subdivision (a), the Landlord's approval
will not be unreasonably withheld or delayed. Whenever any alterations,
decorations, additions or improvements of the premises are made by the
Tenant, the Tenant shall not, knowingly, employ or permit to be employed
therein any labor which, will cause strikes or labor troubles with other
employees in the building employed by the Landlord or its contractors. All
alterations, decorations, additions or improvements shall be made and
installed in a good and workmanlike manner and shall comply with all
requirements, by law, regulation or rule, of the Federal, State and City
Governments and all subdivisions and agencies thereof, and with the
requirements of the New York Fire Insurance Exchange, New York Board of Fire
Underwriters and all other bodies exercising similar functions, and shall
conform to any particular reasonable requirements of the Landlord expressed
in its consent for the making of any such alterations, decorations,
additions, and improvements. Any such work once begun shall be completed with
all reasonable dispatch, but shall be done at such time and in such manner as
not to interfere with the occupancy of any other tenant or the progress of
any work being performed by or on account of the Landlord. If requested to do
so by the Tenant in connection with the Landlord's approval of any
alteration, decoration, addition or improvement, the Landlord will advise the
Tenant whether the alteration, decoration, addition or improvement will be
required to be removed by the Tenant at the expiration or earlier termination
of this lease or may remain upon the premises to become the property of the
Landlord. In no such advice is given by the Landlord, the provision of
subdivision (b) of this Article shall apply.
(b) All alterations, decorations, additions or improvements, which may
be made or installed in or upon the premises (whether made during or prior to
the term of this lease or during the term of any prior lease of the premises
by the Landlord, the Tenant or any previous tenant), except the furniture,
trade fixtures, stock in trade, and like personal property of the Tenant,
shall be conclusively deemed to be part of the freehold and the property of
the Landlord, and shall remain upon the premises, and, upon the expiration or
any termination of the term of this lease, shall be surrendered therewith as
a part thereof, unless the Landlord shall, prior to the expiration or
termination of the term, notify the Tenant that any or all of such
alterations, decorations, additions or improvements shall be removed, in
which event, the Tenant shall remove the same in accord with the Landlord's
notice at its own cost and expense at or prior to the expiration or
termination of the term. The Tenant, at or prior to the expiration or any
termination of the term of this lease shall, at its own expense, remove all
its furniture, trade fixtures, stock in trade and like personal property. The
Tenant shall restore and repair, at its own cost and expense, any damage or
disfigurement of the premises occasioned by any such removals or remaining
after such removals, so as to leave the premises in good order and condition
or, the Landlord, at its option, may do such restoration and repair and the
Tenant will pay the cost thereof upon demand. If any furniture, trade
fixtures, stock in trade or other personal property of the Tenant shall not
be removed at the expiration or any termination of this lease, the Landlord,
at the Landlord's option, may treat the same as having been irrevocably
abandoned, in which the Tenant shall have no further right, title or interest
therein and the Landlord may remove the same from the premises, disposing of
them in any way which the Landlord sees fit to do, and the Tenant shall, on
demand, pay to the Landlord the expense incurred by the Landlord for the
removal thereof, as well as the cost of any restoration of the premises above
provided. The Tenant's obligations under this subdivision (b) of this Article
Fourth shall survive the expiration of this lease.
(c) The Landlord may at any time during the term of this lease, change
the arrangement or location of the entrances or passageways, doors and
doorways, and the corridors, elevators, stairs, toilets or other parts of the
building used by the public or in common by the Tenant and other tenants
(including, without limitation, the conversion of elevators from a manually
operated to an automatic self-service basis) and may alter the staffing of
the building and the scale and manner of the operation thereof, provided that
the services to which the Tenant is entitled as specified in this lease are
not diminished and access to the premises is not materially impaired and may
alter the facilities, fixtures, appurtenances and equipment of the building
as it may deem the same advisable, or as it may be required so to do by any
governmental authority, law, rule or regulation. The Landlord may, after
reasonable notice, change the name, street number or designation by which the
building is commonly known.
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
FIFTH: The Tenant shall promptly comply, at the Tenant's own expense,
with all laws, ordinances, regulations and requirements of the City, State
and Federal Government, and all subdivisions and agencies thereof, and the
New York Fire Insurance Exchange, the New York Board of Fire Underwriters,
and of any fire insurance rating organization, and of all other departments,
bureaus, officials, boards and commissions with regard to the premises or the
use thereof by the Tenant, and (if the premises are situated on the ground
floor) the sidewalks adjoining the same in so far as such compliance is made
necessary by the Tenant's use of the sidewalks, provided that the Tenant
shall not be required to make alterations or additions to the premises,
except where the same are required by reason of the particular manner of the
Tenant's use of the premises (as distinguished from mere use and occupancy),
the manner in which its business is carried on in the premises or a failure
on the part of the Tenant to conform to the provisions of this lease. The
Tenant will not permit the maintenance of any nuisance upon the premises or
permit its employees, licensees or visitors to do any illegal act therein, or
in and about the building after notice thereof from the Landlord. If any such
law, ordinance, regulation or requirement shall not be complied with by the
Tenant, within ten (10) business days following notice to Tenant from
Landlord demanding compliance (or such earlier date as may be necessary in
the circumstances) or if compliance is not possible within such period, then
if Tenant shall not have commenced compliance within such period and
diligently proceeds to completion, then the Landlord may, at its option,
enter upon the premises to comply therewith, and should any fine or penalty
be imposed for failure to comply therewith or by reason of any such illegal
act (which, unless the imposition of the same shall otherwise affect
(including the payment of additional costs) the Landlord's ownership or
operation of the building, fine or penalty the Tenant shall not have paid or
protested (to the extent permitted by, and in accordance with, all applicable
laws) within ten (10) days after notice of the imposition of the same), the
Tenant agrees that the Landlord may, at its option, pay such fine or penalty,
which the Tenant agrees to repay to the Landlord, with interest from the date
of payment, as additional rent.
(3)
COMPLIANCE WITH LANDLORD'S RULES
SIXTH: The Tenant and the Tenant's employees, and any other persons
subject to the control of the Tenant, shall well and faithfully observe all
the rules and regulations annexed hereto, and also any and all reasonable
rules and regulations affecting the premises, the building or the equipment,
appurtenances, facilities and services thereof, hereafter promulgated by the
Landlord. The Landlord may at any time, and from time to time, reasonably
prescribe and regulate the placing of safes, machinery, quantities of
merchandise and other things, and reasonably regulate which elevator and
entrance shall be used by the Tenant's employees, and for the Tenant's
shipping; and may make such other and further reasonable rules and
regulations as in its judgment may, from time to time, be needed or desirable
for the safety, care or cleanliness of the building and for the preservation
of good order therein.
CARE OF SIDEWALKS
EIGHTH: If the premises, or any part thereof, consist of a first floor
or any part thereof, the Tenant shall, at the Tenant's own expense, keep the
sidewalk, gutter and curb in front thereof free from snow and ice, and in a
cleanly condition.
LANDLORD'S ACCESS TO THE PREMISES
NINTH: (a) The Tenant shall, without in any way affecting the Tenant's
obligations hereunder, and without constituting any eviction, permit the
Landlord and its agents upon reasonable notice, except (the circumstances
constituting the same being determined in the Landlord's reasonable judgment)
in an emergency; (i) at all reasonable hours, to enter the premises and have
access thereto, for the purpose of nspecting or examining them and to show
them to other persons and if requested by Tenant, an employee of Tenant shall
be permitted to accompany those persons entering the premises; (ii) to enter
the premises to make repairs and alterations, and to do any work on the
premises and any work in connection with excavation or construction on any
adjoining premises or property (including, but not limited to, the shoring up
of the building) and if requested by Tenant, an employee of Tenant shall be
permitted to accompany those persons entering the premises and to take in any
of the foregoing instances, any space needed therefor. The Tenant shall
permit the Landlord to erect and maintain ducts, pipes and conduits in and
through the premises. In the exercise of the rights of the Landlord reserved
under clause (ii) or under the next preceding sentence of this subdivision
(a) of Article NINTH the Landlord will do so in a manner which minimizes the
interference with the Tenant's use of the premises so far as practicable and
where ducts, pipes or conduits are to be erected through the premises will
locate them along walls or ceilings wherever practicable.
(b) In the event the Tenant shall be removed by summary proceedings or
in the event that, during the last month of the term, the Tenant shall have
removed all or substantially all of the Tenant's property therefrom, the
Landlord may immediately enter into and upon said premises for the purpose of
decorating, renovating or otherwise preparing same for a new tenant, without
thereby causing any abatement of rent or liability on the Landlord's part for
other compensation, and such acts shall have no effect upon this lease.
(c) If the Tenant or an officer or authorized employee of the Tenant
shall not be personality present to open and permit an entry into said
premises, at any time in an emergency (the circumstances constituting the
same being determined in the Landlord's reasonable judgment), when for any
reason an entry therein shall be necessary or permissible hereunder, the
Landlord or the Landlord's agents, may enter the same by a master key, or may
forcibly enter the same without rendering the Landlord or such agents liable
therefor (if during such entry the Landlord shall accord reasonable care to
the Tenant's property) and without in any manner affecting the obligations
and covenants of this lease and in no event shall any such entry by the
Landlord or its agents be deemed an acceptance of a surrender of this lease,
either expressed or implied, nor a waiver by the Landlord of any covenant of
this lease on the part of the Tenant to be performed.
ELECTRIC CURRENT LIVE STEAM
TENTH: (a) (re-written): Electric current is to be supplied by the
Landlord. The Tenant covenants and agrees to purchase the Tenant's
requirements therefor at the premises from the Landlord or the Landlord's
designated agent at (i), 105% of the rates set forth in the rate schedule of
Consolidated Edison Company of New York, Inc. applicable to the building (or
the conjunctional group in which the building is included), plus (ii) a rate
adjustment amount equal to all sales, use and gross receipt taxes and other
governmental charges or levies, generally applicable to the purchase and sale
of electricity in New York City (and without regard to whether the Landlord
is exempt from paying or collecting any such tax, charge or levy); provided,
however, that if such rate schedule includes any adjustment for time-of-day
for either demand or consumption, the rate applicable to the Tenant's demand
for and consumption of electricity, shall be that specified for the peak
period unless, at Tenant's expense, Tenant installs time-of-day meters, in
which case Landlord shall charge on that basis. The calculation of the rate
shall include the effect of all direct and indirect charges which affect the
cost of the electricity, including without limitation, consumption charges,
demand charges and fuel cost escalation charges. All amounts payable with
respect to electricity constitute additional rent under this lease.
If the Tenant is not utilizing the full electrical capacity to the
premises, the Landlord shall have the right to make such excess capacity
available to other occupants of the building. If (i) Tenant is not utilizing
the full electrical capacity to the premises because Tenant is using the
premises for a type of use (e.g., office use) different than that anticipated
as of the date of this Lease., or (ii) Tenant has not used a quantifiable
portion of the electrical capacity to the premises for a period of more than
twelve (12) months, then, in either such event, Landlord, after written
notice to Tenant, shall have the right to make such portion of the electrical
capacity to the premises as Tenant is not reasonably anticipated to require
during the remaining term of the Lease (the "Excess Capacity") available to
other occupants of the Building. Upon Tenant's receipt of Landlord's notice,
the parties, acting reasonably, shall attempt to agree upon the Excess
Capacity. If the parties are unable to agree upon the Excess Capacity within
fifteen (15) days after Tenant's receipt of Landlord's notice, then they
shall mutually appoint an independent engineer to determine the Excess
Capacity (based upon his review of the records of Tenant's electrical
consumption and discussions with Landlord and Tenant), and such engineer's
determinations shall be binding on the parties. Landlord and Tenant shall
each pay one-half of the fee of the appointed engineer.
(b) Where more than one meter measures the service of the Tenant in the
building, the service rendered through each meter may be computed and billed
separately in accord with the rates herein provided for. No current shall be
furnished until the equipment of the Tenant has been approved by the proper
authorities, and after such approval, no changes shall be made in such
equipment without the written consent of the Landlord which consent shall not
be unreasonably withheld, conditioned or delayed. The Tenant shall pay, upon
demand, the bills for electric current furnished and the use of meters; the
Landlord and its agent reserving the right, without releasing the Tenant from
any liability, and without constituting any eviction, and without any
liability on the Landlord's part, to cut off such electric current after five
days' notice for non-payment of any such xxxx or bills. The Tenant shall
comply with such rules, regulations and contract provisions as are
customarily prescribed by public service corporations supplying such
services, for consumption similar to that of the Tenant.
(c) The Landlord may discontinue the supply of electric current under
subdivision (a) at any time on sixty (60) days' notice to the Tenant without
being liable to the Tenant therefor or without in any way affecting this
lease or the liability of the Tenant hereunder or causing the diminution of
rent (except that the Landlord shall use reasonable efforts (without,
however, being obligated to expend any money in excess of $1,000.00 or
institute any legal proceedings) so that there is no interruption in the
supply of electrical current to the premises), and the same shall not be
deemed to be a lessening or diminution of services within the meaning of any
law, rule, or regulation now or hereafter enacted, promulgated, or issued.
Should the Landlord give such notice of discontinuance, the Tenant shall make
the Tenant's own arrangements to receive such service direct from such public
utility corporation serving the building and the Landlord shall permit the
Landlord's wires, conduits and meters, to the extent to which they are safely
available for such use and to the extent to which they may be used under any
applicable governmental regulations or the regulations of such public
utility, to be used for the purpose. Should any additional or other wiring,
conduits, meters or any other or
(4)
different distribution equipment be required in order to permit the Tenant to
receive such service directly from the public utility, the same will be
installed, as the Landlord shall elect, either by the Landlord, at the sole
cost and expense of the Tenant, or by the Tenant at the Tenant's sole cost
and expense. In the case of central distribution equipment which is used in
connection with the distribution of metering of current supplied to the
Tenant and other tenants of the building, and which is required to be
installed under governmental regulations or the regulations of such utility,
the cost of installation thereof will be prorated among the several tenants,
serviced through the distribution facility in the proportion which their
average consumption of electric current over the next preceding period of not
less than six month's duration bears to the total consumption of electric
current by all tenants during such period, and the Tenant shall pay to the
Landlord the Tenant's share of such cost of installation, apportioned as
above, within five (5) days following receipt of a statement showing the cost
of the distribution equipment and the manner in which the cost has been
allocated to the Tenant. Should the supply of electric current by the
Landlord be discontinued, but not as a result of the Landlord's election to
discontinue the supply of current, then the Tenant shall, at the Tenant's
expense, install all wiring, meeting and distribution facilities which are
required in order to permit the Tenant to purchase the Tenant's requirements
for electric current for the premises from such utility and shall discontinue
the use of the Landlord's electric wires, cables, meters and distribution
facilities. All such facilities installed by the Tenant shall be installed in
a workmanlike way which complies with applicable governmental regulations and
the regulations of the public utility. The Landlord will in any such case
permit any pipe-chases or channels available in the building to be used by
the Tenant for the Tenant's cables and conduits, to the extent that the same
may be available and may be safely used for the purpose.
(d) The Landlord shall not in any way be liable or responsible to the
Tenant for any loss or damage or expense which the Tenant may sustain or
incur if either the quantity or character of electric service is changed or
is no longer available or suitable for the Tenant's requirements (unless
caused by the negligence or willful misconduct of the Landlord, its agents or
employees), nor shall the Landlord be in any way responsible for any
interruption of service due to breakdowns, repairs, malfunction of electrical
equipment (unless caused by the negligence or willful misconduct of the
Landlord, its agents or employees), or any other cause relating to electrical
service which is beyond the Landlord's reasonable control; it being agreed
that in no circumstance shall the Landlord be liable for any incidental or
consequential damages to the Tenant.
(c) If there be any facilities for the supply of live steam in the
building, such steam shall be supplied to the Tenant only if separate
agreements are made therefor and pursuant to such arrangements. In the event
that such separate agreements shall be made, the appropriate provisions of
this Article TENTH shall be applicable thereto.
CONDEMNATION AND DEMOLITION
ELEVENTH: (a) If the premises or any part thereof, shall be taken or
condemned for any public or quasi public use, this lease and the term hereby
granted shall terminate on the date when title to the premises or such part
shall be actually taken for such public or quasi public use. If any other
part of the building shall be so taken and such taking shall, in the judgment
of the Landlord, make the operation of the building impractical, unprofitable
or uneconomical (even though no part of the premises be taken), the Landlord
may, at its option, give to the Tenant, at any time after the vesting of
title and prior to the actual taking of possession, thirty (30) days' notice
of intention to terminate this lease, and upon the date designated in such
notice, this lease and the term hereby granted shall terminate. In no event
shall any condemnation award be apportioned, and the Tenant hereby assigns to
the Landlord all right and claim to any part of such award, but the rent, and
all other sums payable by the Tenant, shall be apportioned as of the date of
any such termination of this lease, provided that nothing contained in the
foregoing portion of this Article ELEVENTH shall be deemed to prevent the
Tenant's making claim for and retaining an award for the damage to or loss of
value of its trade fixtures and such of the installations made by the Tenant
as remain the Tenant's property or from making claim for and retaining any
award which may be made to the Tenant for the Tenant's moving expenses if,
and to the extent that, the award to be claimed and retained by the Tenant is
independent of and does not result in a diminution of the award to the
Landlord for the taking of the land, building and the Landlord's other
property.
(b) If the Landlord shall desire to demolish the building wherein the
premises are located, the Landlord shall have the right and option to
terminate the term of this lease at any time during the term thereof upon
giving to the Tenant not less than six months' notice of the Landlord's
election to terminate this lease and of the date, which shall be the last day
of a calendar month, not less than 270 days following the date of the
Landlord's notice of election to terminate, on which Landlord elects that
this lease shall terminate and come to an end, together with an affidavit,
sworn to by an officer of the Landlord, if the Landlord at such time is a
corporation, or by a general partner of the Landlord, if the Landlord at such
time is a partnership, or by the Landlord, if the Landlord at such time is an
individual, to the effect that the Landlord, its successor in interest or a
lessee intends to demolish the building containing the premises and to erect
a different building in lieu thereof. If such notice and affidavit are given
to the Tenant, then this lease shall terminate and come to an end on the date
of termination specified in the Landlord's notice, as if that date were the
date originally fixed for the termination of the term of this lease, and on
such date the Tenant shall quit, vacate and surrender up the premises in
accord with the provisions of this lease relating to surrender at the
expiration of the term. Notwithstanding the foregoing to the contrary, the
Landlord agrees that it shall not exercise its option under this Article
ELEVENTH (b) prior to the fifth (5th) anniversary of the commencement date of
this lease. In the event that Landlord exercises its option under this
Article ELEVENTH (b) at any time after the fifth (5th) anniversary of the
commencement date of this lease and prior to February 28, 2009, then,
provided that Tenant complies with all of the terms and conditions of this
lease, including the payment of all rent and additional rent through the
termination date, and vacates the premises on or before the termination date,
then, within thirty days following Tenant's vacating of the premises,
Landlord shall pay to Tenant the unamortized cost of the initial alterations
and improvements in the premises made by Tenant at Tenant's expense
(excluding moveable furnishings and machinery and equipment, including
telephone equipment), as calculated in accord with the provisions of the
following sentence. The expression "unamortized cost" with reference to
alterations and improvements in the premises made by Tenant at Tenant's
expense shall mean a sum equal to the total of Tenant's out-of-pocket
expenditures for alterations and improvements in the premises (excluding
items of moveable furnishings, machinery and equipment, including telephone
equipment), multiplied by a fraction, of which (i) the numerator shall be the
number of full months from the termination date specified in Landlord's
notice to the original expiration date of the lease and (ii) the denominator
is 120. No part of the cost of the initial alterations and improvements
reimbursed to Tenant by Landlord pursuant to the Work Sheet or otherwise
shall be considered part of Tenant's out-of-pocket expenditures. In order to
have the benefit of this provision, Tenant shall supply to Landlord, no later
than December 31, 1999, time being of the essence, a breakdown of all
expenditures for which Tenant would seek reimbursement pursuant to this
paragraph. Tenant shall not be entitled to any payment pursuant to this
paragraph if this lease terminates other than by reason of Landlord exercise
of its option under this Article Eleventh(b).
MECHANIC'S LIENS
TWELFTH: The Tenant will not permit, during the term hereby granted, any
mechanic's or other lien or order for payment of work, labor, services, or
materials furnished or to be furnished to Tenant to attach to or affect the
premises or any portion thereof, and agrees that no such lien or order shall
under any circumstances attach to or affect the fee, leasehold or other
estate of the Landlord herein, or the building. The Tenant's obligation to
keep the premises in repair, and its right to make alterations therein, if
any, shall not be construed as the consent of the Landlord to the furnishing
of any such work, labor or materials within the meaning of any present or
future lien law. Notice is hereby given that the Tenant has no power,
authority or right to do any act or to make any contract which may create, or
be the foundation for, any lien upon the fee or leasehold estate of the
Landlord in the premises or upon the land or buildings of which they are a
part or the improvements now erected or hereafter to be erected upon the
premises or the land or building of which the premises are a part; and if any
such mechanic's or other lien or order shall be filed against the premises or
the land or building of which the premises are a part, the Tenant shall,
within ten (10) days after receipt of notice of the filing thereof
discharge said lien or order by payment, deposit or by bond fixed in a proper
proceeding according to law. If the Tenant shall fail to take such action, or
shall not cause such lien or order to be discharged within ten (10) days
receipt of notice of the filing thereof, the Landlord may pay the amount of
such lien or discharge the same by deposit or by bond or in any other manner
according to law, and pay any judgment recovered in any action to establish
or foreclose such lien or order, and any amount so paid, together with the
expenses incurred by the Landlord, including all attorneys' fees and
disbursements incurred in any defense of any such action, bonding or other
proceeding, shall be deemed additional rent.
(5)
SUBORDINATION
THIRTEENTH: This lease, and all the rights of the Tenant hereunder, are
and shall be subject and subordinate to any and all mortgages now or hereafter
liens either in whole or in part on the building, or the land on which it
stands, and also to any and all other mortgages covering other lands or lands
and buildings, which may now or hereafter be consolidated with any mortgage
or mortgages upon the building and the land on which it stands or which may
be consolidated and spread to cover the building and such land and any other
lands or lands and buildings, and any extension, renewal or modification of
any such mortgages, and to any and all underlying leases on record, or
hereafter to be recorded, against the building or the land on which it
stands, and any extensions, renewals or modifications thereof.
(SIC) The Landlord agrees to use its best efforts to obtain from each
mortgagee or from each lessor of any underlying lease, an agreement to the
effect that, so long as the Tenant shall not be in default under the terms of
this lease, the Tenant shall not be made party to any proceeding to foreclose
the mortgage or to terminate the underlying lease; and the Tenant's
possession of the premises under the terms of this lease, shall not be
terminated or disturbed as a result of the foreclosure of any mortgage or
termination of any underlying lease. The Tenant agrees it will execute any
agreement consistent with the foregoing provisions which may be required to
confirm the subordination of this lease subject to the non-disturbance
provisions above outlined. In any such agreement the Tenant shall agree that,
in the event that the mortgagee shall succeed to the rights of the Landlord
herein named, or if any Landlord of any underlying lease shall succeed to the
position of the Landlord under this lease, then the Tenant will recognize
such successor Landlord as the Landlord of this lease and pay the rent and
attorn to and perform the provisions of this lease for the benefit of any
such successor Landlord.
CERTIFICATE OF OCCUPANCY
FOURTEENTH: The Tenant shall immediately discontinue any use of the
demised premises, which may, at any time, be claimed or declared by the City
or State of New York or other governmental authority to be in violation of or
contrary to the certificate of occupancy of the building, or by reason of
which any attempt may be made to penalize the Landlord or require the
Landlord to secure any certificate of occupancy other than the one, if any,
now issued for the building.
VAULTS
FIFTEENTH: Notwithstanding anything herein contained, or shown on any
sketch, plan or schedule hereto attached, to the contrary, if any vault space
forms a part of the premises, or adjoins the same, or any part or portion of
the herein demised premises is not within the property line of the building
or premises, and if the use of the said space shall hereafter be prevented or
curtailed by exercise of any governmental authority, the Tenant shall have no
claim whatever upon the Landlord for the loss of such space, by any abatement
of the rent, or otherwise, and the Landlord's covenant of quiet enjoyment
hereinafter contained, shall not be deemed to apply to any such space. The
Landlord makes no representation as to the location of the property line of
the building. The Tenant shall reimburse the Landlord for the vault charge or
tax, if any, imposed by the City of New York and respect of any such vault
space.
LIQUORS
SIXTEENTH: Neither the Tenant nor any occupant of the premises or of
any part thereof, shall at any time during the continuance of the term, sell,
traffic in, expose for sale, dispense or give away, upon any part of the
premises, any strong or spirituous liquor, wine, ale or beer, or take or have
a license for such sale.
FIRE AND FIRE INSURANCE
SEVENTEENTH: (a) If the premises shall be damaged by fire, action of
the elements or other casualty or cause which is within the risks covered by
standard fire and extended coverage insurance, the Tenant shall give
immediate notice thereof to the Landlord, and said damage (unless the same
shall be due to the negligence or other fault of the Tenant or its employees)
shall be repaired by the Landlord, at the Landlord's expense, with all
reasonable speed, making due allowance for delay due to labor troubles,
settlement of loss and other causes beyond the control of the Landlord, and
the Tenant shall, in every reasonable way, facilitate the making of such
repairs, and the rent shall be suspended during such period as the premises
shall have been rendered wholly, untenantable and, in the event that the
premises are rendered partially untenantable, the rent shall be abated during
such period, in the proportion which the area of the premises which is
rendered untenantable bears to the area of the whole premises, but no damage
to the premises or the building by fire, or other cause, however extensive,
shall terminate this lease, or give the Tenant the right to quit and
surrender the premises, or impair any obligations of the Tenant hereunder,
except with respect to the payment of rent (and with respect thereto to the
extent above provided) and except that (i) if the damage shall be so
extensive that the Landlord shall determine to demolish or substantially
alter the building, the Landlord may at any time within sixty (60) days
following the occurrence of the damage give to the Tenant 30 days' notice of
intention to terminate this lease; (ii) if the damage to the premises is
substantial so that the whole or substantially the whole of the premises is
rendered untenantable by the Tenant and the Landlord does not within 60 days
following the occurrence of the damage notify the Tenant of the Landlord's
intention to repair the damage to the premises so that the premises are again
useable by the Tenant within a period of not more than 120 days following the
occurrence of the damage (or if the Landlord does not, in fact, substantially
complete the repairs within 150 days following the occurrence of the damage)
subject to delays due to causes of the kinds described in Article
THIRTY-FOURTH of this lease, the Tenant may cancel this lease by notice given
within 10 days following the expiration of the said 60-day period for the
Landlord's notice of election to repair; and (iii) in the event of the
occurrence of damage to the premises of the degree described above in clause
(ii) of this paragraph (a), the Landlord may also elect to terminate this
lease by notice of election to do so given within 60 days following the
occurrence of the damage. If notice of election to terminate this lease shall
be given as above provided, then, upon the date for termination designated in
any such notice this lease and the term hereby granted shall terminate and
the rent shall be apportioned as of the date of the damage or as of such
later date as the Tenant may actually surrender possession. Nothing herein
contained shall be deemed to obligate the Landlord to restore the Tenant's
trade fixtures, stocks, furnishings or other property remaining the property
of the Tenant.
(b) The Tenant shall conduct its business and use the premises in such a
manner as shall make and keep the rate of insurance upon the entire building
as low as such rate can be made and kept, and so as not to increase the rate
of insurance applicable to the property of other tenants, and the Tenant
shall install and maintain all its furniture, fixtures, equipment, stocks and
materials in such a manner as to accomplish the foregoing purposes. the
Tenant further agrees not to permit any act to be done or anything brought
into or kept upon the premises which will void or avoid the insurer's
liability under any contract of fire insurance on the building or its
contents. Should the fire insurance rate on the building be increased beyond
the present rate, by reason of the Tenant's occupancy or character of its
business, or the Tenant's failure to comply with the terms hereof, the Tenant
agrees to pay to the Landlord, on demand, the additional cost of such
insurance, or, at the option of the Landlord, the same may be added to any
installment of rent and be payable as additional rent. The schedule of the
makeup of a rate issued by an authorized rating organization shall be
conclusive evidence of the facts therein stated and of the items in the rate
applicable to the premises.
(6)
(c) The Landlord, as to the premises, and the Tenant, as to the
improvements made therein at the Tenant's expense and all of the Tenant's
stock, trade fixtures and other property in the premises, hereby release one
another from all liability for any loss or damage caused by fire or any of
the risks enumerated in standard extended coverage insurance. This release
is conditioned upon the inclusion in their respective policies of insurance
of a provision stating that such release shall not adversely affect said
policies or prejudice any right of the insured to recover thereunder. The
Landlord Tenant agree that their respective insurance policies will include
the aforesaid provision so long as the same is obtainable without extra cost
or if extra cost be charged, so long as the party for whose benefit the
clause is obtainable without extra cost. If extra cost shall be chargeable
therefor the party so affected shall advise the other thereof, of the amount
of the extra cost and the other party at its election may pay the same or
decline to so pay in which event the release from liability given to said
party by this Article SEVENTEENTH (c) shall be deemed to be withdrawn and of
no force and effect.
CHANGE IN USE OF PREMISES, SUBLETTING AND ASSIGNMENT
EIGHTEENTH (re-written): (a) The use to be made of the premises by the
Tenant and the identity of the Tenant being among the inducements to the
making of this lease by the Landlord, the Tenant shall not, except in
accordance with the terms of this Article, (i) use or permit the premises or
any part thereof to be used for any purposes other than those specified in
the lease, (ii) sublet or underlet the premises or any part thereof, (iii)
permit the premises or any part thereof to be occupied by anyone other than
the Tenant or its officers or employees, (iv) mortgage or encumber this lease
or any interest therein, (v) assign or transfer, by operation of law or
otherwise, this lease or any interest therein.
(b) The Tenant shall not, without having first obtained the Landlord's
prior written consent thereto, (i) use or permit the premises or any part
thereof to be used for any purposes other than those specified in the lease,
or (ii) mortgage or encumber this lease or any interest therein. Landlord
shall not unreasonably withhold, delay or condition its consent to a change
in the permitted use provided that the new use does not conflict with the
certificate of occupancy of the building and provided further that such use
does not generate noise, vibrations or odors which are transmitted beyond the
premises or result in a significant increase in the number of persons
occupying the premises.
(c) The Tenant shall not, except in accordance with the provisions of
paragraphs (d) through (l) of this Article, (i) assign or transfer, by
operation of law or otherwise, this lease or any part therein, (ii) sublet or
underlet the premises or any part thereof, or (iii) permit the premises or
any part thereof to be occupied by anyone other than the Tenant or its
officers or employees.
(d) If the Tenant shall desire to assign this lease or to sublet the
whole or any part of the premises or to permit the premises to be occupied by
any person other than the Tenant, the Tenant will notify the Landlord as to
(i) the action which the Tenant proposes; (ii) the portion of the premises
with respect to which the Tenant proposes to take such action (the "Affected
Premises"); (iii) the name and business address of the proposed assignee,
sublessee or occupant (the "Proposed Undertenant"); (iv) the name and
resident address of an officer and a principal stockholder of the Proposed
Undertenant, if a corporation is involved (unless a publicly-held company),
or the names and residence addresses of the managing partner thereof if a
partnership or joint venture is involved; (v) the information, in reasonable
detail, as to the Proposed Undertenant which is required to permit the
Landlord to make the determinations described in paragraph (h) below; (vi)
the terms upon which the Tenant proposes to assign this lease or sublet the
premises or permit the premises to be occupied by the Proposed Undertenant
(including the terms under which any conditions, alterations or decorations
are to be made to the Affected Premises and the terms on which the Proposed
Undertenant is to buy or lease any fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property from the
Tenant); and (vii) the name and address of any real estate broker or other
person to whom a commission may be owed by any person in connection with such
assignment, subleasing or occupation. (The Tenant's notice of desire to
assign, sublease or permit occupancy of the Affected Premises by others, with
the information prescribed above is hereafter referred to as a "Tenant's
Subleasing Notice").
(e) By written notice executed by the Landlord and delivered to the
Tenant within thirty (30) days following receipt of the Tenant's Subleasing
Notice (for the purposes hereof such notice shall not be deemed to have been
received by the Landlord until all of the information required by paragraph
(d) above shall have been furnished to the Landlord), the Landlord shall have
the absolute right to select one of the alternatives set forth in paragraphs
(f), (g) or (h) below.
(f) In the event of a proposed assignment of this lease or the subleasing
or occupation of the entire premises subject to this lease for the then
remaining balance of the term of this lease, (i) the Landlord may elect to
require the Tenant to surrender the premises to the Landlord and terminate
this lease with respect to the premises on the last day of the second
complete calendar month following the Tenant's Subleasing Notice and comply
with the provisions of this lease respecting surrender at the end of the term
not later than such date or (ii) the Landlord may gives its consent to any
such assignment, sublease or occupation. Any subletting or occupancy by a
third party as a consequence of which 25% or less in an area of the Premises
shall remain in occupancy by the Tenant herein named may, at the Landlord's
option, be considered a subleasing of the whole of the Premises. In the event
that the Landlord elects to terminate this lease as set for in (i) above at
any time during the initial term of the lease, then, in such circumstance the
Landlord shall pay to the Tenant the unamortized cost of the initial
alterations and improvements made in the Premises at the Tenant's expense
(excluding moveable furnishings and machinery and equipment, including
telephone equipment) as calculated in accordance with provisions set forth in
Article Eleventh (b) of this lease.
(g) In the event of a proposed subleasing or occupation of less than the
entire premises subject to this lease or the entire premises for less than
the then remaining balance of the term of this lease, (i) the Landlord may
elect to require the Tenant to surrender to the Landlord and vacate the
Affected Premises not later than the date upon which the proposed subleasing
or occupation is proposed to commence and comply on such date with the
provisions of this lease as to surrender at the expiration of the term with
respect to the Affected Premises, and Tenant shall, at it's expense, erect
the partitioning required to separate the Affected Premises from the
remainder of the premises, create any doors required to provide an
independent means of access to the Affected Premises from elevators and
lavatories and to segregate the wiring and meters and electric facilities, so
that the Affected Premises may be used as a unit for commercial purposes,
separate from the remainder of the premises remaining in occupation of the
Tenant in which event the rent and all additional rent payable under this
lease shall be reduced proportionately with the diminution in the area of the
premises upon surrender of the Affected Premises or (ii) the the Landlord may
give its consent to any such sublease or occupation. In the event that the
Landlord elected to recapture the Affected Premises as set forth in (i)
above, then in such circumstance the Landlord shall pay to the Tenant a
fraction (as hereinafter set forth) of the unamortized cost of the initial
alterations and improvements made in the Premises at the Tenant's expense
(excluding moveable furnishings and machinery and equipment, including
telephone equipment) as calculated in accordance with the provisions set
forth in Article Eleventh (b) of this lease. The numerator of such fraction
shall be the rentable square foot area of the Affected Premises and the
denominator of such fraction shall be the rentable square foot area of the
entire Premises, unless either Landlord or Tenant notifies the other, in
writing, that it believes that the Affected Premises is significantly more
improved, or less improved, than the remainder of the Premises. In such
event, the parties, acting reasonably, shall attempt to agree upon the
appropriate fraction. If the parties are unable to agree upon the appropriate
fraction within fifteen (15) days after the date of Landlord's or Tenant's
notice, then they shall mutually appoint an independent engineer to determine
the appropriate fraction, and such engineer's determination shall be binding
on the parties. Landlord and Tenant shall each pay one-half of the fee of the
appointed engineer.
(h) In the case of an assignment, the Landlord shall be under no
obligation to consent thereto or to select one of the alternatives set forth
in paragraph (f) above, unless the Landlord's investigation of the financial
standing of the proposed assignee discloses that there is no reason to doubt
the financial ability of the assignee to carry out its obligations under this
lease for the balance of the term and the Landlord's investigation of the
manner in which the proposed assignee conducts its business indicates that
the assignee will conduct its business in the premises in conformity with the
requirements of this lease or that there will be no interference with the
orderly conduct of their business and the enjoyment of their premises by
other tenants in the building. In the case of a sublease or occupation, the
Landlord shall be under no obligation to consent thereto or select one of the
alternatives set forth in paragraph (f) or (g) above, as the case may be,
unless the Landlord's investigation of the nature of the business of the
proposed sublessee or occupant or the manner in which the proposed sublessee
or occupant will conduct such business indicates that there is no reason to
doubt that such business will be conducted in conformity with the
requirements of this lease and that the use of the premises by the proposed
sublessee or occupant will not result in damage to or deterioration of the
premises or the building, or interfere with the orderly conduct of their
businesses and the enjoyment of their premises by other tenants in the
building. The Landlord shall be under no obligation to consent to any
assignment of this lease or any subletting or occupation of the premises to
or by any person other than the Tenant unless the criteria set forth in this
paragraph are, in Landlord's reasonable judgment, satisfied.
(i) If the Landlord's Subleasing Notice shall be to the effect that the
Landlord elects that the Affected Premises be surrendered, then the Affected
Premises shall be surrendered in accordance with clause (i) of paragraph (f)
or (g) above, as the case may be, and any work required to be done to
separate the Affected Premises from the remainder shall be commenced promptly
following the Tenant's receipt of the Landlord's Subleasing Notice and
carried on with diligence and continuity.
(j) No consent given by the Landlord shall be deemed to permit any act
except the act to which it specifically refers, or to render unnecessary any
subsequent consent, and any assignment or subletting of the premises shall
not relieve the Tenant or any mesne assignee from any obligations, duty or
covenant under this lease, and in all cases a violation of any of the
covenants or duties or obligations under this lease, and in all cases a
violation of any of the covenants or duties or obligations under this lease
by a subtenant or assignee shall, in addition, be deemed to be the act of the
Tenant herein. No assignment, transfer, mortgage,
encumbrance, subletting or arrangement in respect of the occupancy of the
premises shall create any right in the assignee, transferee, mortgagee,
subtenant or occupant, unless the consent of the Landlord shall first have
been obtained, and unless, if an assignment is involved, the transferee or
assignee shall have delivered an agreement duly executed by the assignee or
transferee wherein the assignee or transferee assumes and agrees to pay or
otherwise keep and perform the obligations of the Tenant in this lease or, if
a sublease is involved wherein the sublessee agrees that any act or omission
by the sublessee which, if performed or omitted by the Tenant under this
lease would be a default thereunder shall also be a default under the
provisions of the sublease. Any assignee by accepting an assignment shall
nevertheless be conclusively deemed to have assumed this lease and all
obligations already accrued or to accrue thereunder and further to have
agreed to fully and duly perform all the Tenant's covenants herein contained.
If the Tenant shall, at any time, be in default in the payment of rent, the
Landlord shall have the right to collect rent from any assignee, undertenant
or occupant, and credit the same to the account of the Tenant, and no such
collection shall constitute a waiver of the foregoing covenant or the
acceptance of anyone other than the Tenant, as Tenant or shall otherwise
release, impair or otherwise affect any obligation of the Tenant under this
lease. Immediately following the execution and delivery of any assignment of
this lease or any subleasing of the premises or an agreement as to the
occupancy thereof, the Tenant will furnish a duplicate of the instrument in
question to the Landlord.
(k) Subject to paragraphs (j) and (l) of this Article and to continued
compliance with Article FIRST of this Lease, the Tenant is authorized to
sublease portions of the premises to a subsidiary corporation or corporations
or to a corporation affiliated with the Tenant, without compliance with the
provisions of paragraph (c) through (g), m(ii) through m(iv) and (o) of this
Article. A subsidiary corporation shall mean and include a corporation of
which the Tenant owns and holds at least a majority of each class of stock
which is authorized to vote at the time when the sublease is executed. An
affiliated corporation shall mean and include a corporation which is owned
and controlled by the corporation which owns and controls the Tenant by
ownership of at least a majority of each such class of stock. Before making
any sublease to any such subsidiary or affiliated corporation, the Tenant
shall certify to the Landlord the manner in which such subsidiary or
affiliated corporation is related to and controlled by the Tenant and the
purposes for which the subleased premises will be used. Notwithstanding the
foregoing, this lease may be assigned to a purchaser of all of Tenant's
stock or all, or substantially all, of Tenant's assets, or to a company with
which Tenant merges or consolidates, without compliance with the provisions
of paragraphs (c) through (h), m(ii) through m(iv) and (o) of this Article,
so long as the net worth of the surviving corporation is at least equal to
the Tenant's net worth immediately before the acquisition, merger or
consolidation and Tenant gives Landlord prompt written notice of such
assignment.
(1) Anything herein to the contrary notwithstanding, the Tenant may not
assign this lease or sublet or permit the occupancy by any other party of all
or any part of the demised premises at any time when the Tenant has not paid
any rent and additional rent when it is payable. The Tenant shall furnish
the Landlord with a counterpart (which may be a conformed or reproduced copy)
of each sublease, assignment or agreement of occupancy made hereunder within
ten days after the date of its execution. Tenant shall remain fully liable
for the performance of all of Tenant's obligations hereunder notwithstanding
anything provided for herein, and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant, assignee or occupant or anyone claiming under
or through any such person which shall be in violation of any of the
obligations of this lease and any such violation shall be deemed to be a
violation by Tenant. Tenant shall pay Landlord on demand any expense which
Landlord any reasonably be required to incur in acting upon any request for
consent pursuant to this Article.
(m) Notwithstanding anything else in this Article, the Landlord shall
have the right to condition its consent to any proposed sublease of all or a
portion of the premises on the following:
(i) The Tenant shall not be in default in the payment of rent or the
performance of any other of its obligations under this lease.
(ii) The Tenant shall have delivered to the Landlord a Tenant's
Subleasing Notice as required by Subparagraph (d) above.
(iii) The Tenant shall have complied with the provisions of
paragraphs (j) and (l) of this Article.
(iv) The Tenant shall grant the Landlord a security interest in the
sublease and the rents payable thereunder and shall take all
necessary steps required to perfect such security interest.
(v) The sublease shall include a provision to the effect
that if the Landlord shall notify the sublessee that the
Tenant is in default in the payment of rent or the
performance of its other obligations under this lease
the sublessee shall, if so requested by the Landlord pay
all rent and other amounts due under the sublease
directly to the Landlord.
(n) At the request of the Landlord, the Tenant will furnish to the
Landlord, within twenty days of receipt of a request therefor, a certificate
executed in the name and on behalf of the Tenant, confirming that, except as
previously consented to in writing by the Landlord or a otherwise
specifically set forth in such certificate, and excluding the arrangements
described in paragraph (p) of this Article, the Tenant has not (i) used or
permitted the premises or any part thereof to be used for any purposes other
than those specified in this lease, (ii) mortgaged or encumbered this lease
or any interest therin, (iii) assigned or transferred, by operation of law or
otherwise, this lease or any interest therin, (iv) sublet or underlet the
premises or any part thereof, or (v) above which the Landlord has not
previously consented to in writing, the Landlord in its sole discretion, may
either consent thereto (which consent may be subject to any conditions
specified by the Landlord) or exercise the rights and remedies available to
the Landlord under the terms of this lease.
(o) In the event the Tenant obtains the consent of the Landlord pursuant
to paragraph (f) or (g) above and sublets or assigns all or a portion of the
premises, the Tenant shall pay to the Landlord, monthly, as additional rent,
one hundred (100%) percent of all Subleasing Profit (as hereinafter defined).
"Subleasing Profit" shall mean all consideration received by the Tenant,
less (i) the rent and additional rent payable by the Tenant under this lease
for the period in question (exclusive of any amount payable by the Tenant
under this subparagraph (o)), (ii) any brokerage commission (not exceeding
110 of those set forth in Landlord's brokerage commission schedule as
published from time to time) and reasonable legal fees paid by the Tenant in
connection with such subletting and assignment, (iii) the cost of demising
and improving the premises for subtenant or assignee, (iv) any amounts paid
by Tenant to subtenant or assignee as a cash or rental concession and (v) any
amounts paid to the Tenant by its subtenant or assignee solely with respect
to the Tenant's telecommunications equipment and installations ("Equipment
Fees"); it being agreed that if subleasing rent collected by the Tenant
("Subleasing Rent") shall, in the event of dispute, be
less than the fair market rental value of the premises (which fair market
rental value shall be determined in a manner similar to that set forth in
paragraphs (ii), (iii) and (iv) of Article FORTY-FOURTH of this lease) then,
in such circumstance, the deduction for Equipment Fees which is used in
computing Subleasing Profits shall be reduced by an amount equal to the
lesser or (y) the difference between the fair market rental value of the
premises and the Subleasing Rent, and (z) the Equipment Fees.
(p) Notwithstanding anything to the contrary in this Article, Tenant
may, from time to time, allow other telecommunications providers ("Other
Providers") to use portions of the capacity of Tenant's telecommunications
equipment ("Other Provider Equipment") belonging to such Other Providers
(Tenant hereby agreeing that in all such circumstances such Other Providers
shall only pay fees to Tenant based on access to such equipment and not on
the renting of, and there shall be no separate demising of, any floor area),
provided that, Tenant notifies Landlord, in advance, of the name and address
of each Other Provider to the extent that any such Other Provider physically
occupies any portion of the Premises or that Landlord, in the ordinary course
of conducting Landlord's business and Landlord has need to know such
information. All of the Tenant's agreements with such Other Providers shall
remain subject and subordinate to the terms of this lease and in all such
circumstances, the Tenant shall remain fully liable under the terms of this
lease for all the actions of each Other Provider.
WAIVER AND SURRENDER; REMEDIES CUMULATIVE
NINETEENTH: No consent or waiver of any provision hereof or acceptance
of any surrender shall be implied from any act or forbearance by the Landlord
or Tenant. No agreement purporting to accept a surrender of this lease, or
to modify, alter, amend or waive any term or provision thereof, shall have
any effect or validity whatever, unless the same shall be in writing, and
executed by the Landlord and by the Tenant, and be duly delivered, nor shall
the delivery of any keys to anyone have any legal effect, any rule or
provision of law to the contrary notwithstanding. Any consent, waiver or
acceptance of surrender in writing, and properly executed and delivered as
aforesaid, shall be limited to the special instance for which it is given,
and no superintendent or employee, other than an officer of the Landlord or
of its managing agent, and no renting representative shall have any authority
to accept a surrender of the premises, or to make any agreement or
modification of this lease, or any of the terms and provisions hereof. No
provision of any lease made by the Landlord to any other tenant of the
building shall be taken into consideration in any manner whatever in
determining the rights of the Tenant herein. No payment by the Tenant or
receipt by the Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated
rent, nor shall any endorsement on any check, nor any letter accompanying any
such payment of rent be deemed an accord and satisfaction (unless an
agreement to accept a lesser amount be signed by the Landlord), but the
Landlord may accept such payment without prejudice to the Landlord's full
right to recover the balance of such rent and to institute summary
proceedings therefor. The receipt by the Landlord of any rent, or additional
rent or of any other sum of money which may be payable under this lease, or
of any portion thereof, shall not be deemed a waiver of the right of the
Landlord to enforce the payment of any sum of any kind previously due or
which may thereafter become due under this lease, or of the right to forfeit
this lease by such remedies as may be appropriate, or to terminate this lease
or to exercise any of the rights and remedies reserved to the Landlord
hereunder, and the failure of either party to enforce any covenant or
condition (although the other party shall have repeatedly or continuously
broken the same without objection from the such party) shall not estop the such
party at any time from taking any action with respect to such breach which
may be authorized by this lease, or by law, or from enforcing said covenant
or any other covenant or condition on the occasion of any subsequent breach
or default. In the event of any continuing or threatened breach by the
Tenant, the Landlord shall have the right of injunction. The various rights,
remedies, powers and elections of the Landlord and of the Tenant, as provided
in this lease or created by law, are cumulative, and none of them shall be
deemed to be exclusive of the others, or of such other rights, remedies,
powers or elections as are now or may hereafter be conferred upon the
Landlord or the Tenant by law.
REPRESENTATIONS AS TO PREMISES, CERTIFICATE OF OCCUPANCY AND USE
TWENTIETH: The Tenant represents to the Landlord that the Tenant has
made, or caused to be made, a careful inspection of the premises and that the
Tenant has made an examination of the certificate of occupancy of the
building and that the area and present condition of the premises are in all
respects satisfactory to the Tenant, except (if at all) as may herein
otherwise be expressly stated in the memorandum of repairs or decorations to
be done by the Landlord attached to this lease, and that the Tenant has
determined that the use of the premises, as set forth in this lease, is
consistent with the uses permitted under the certificate of occupancy. The
Tenant acknowledges that no representations or promises have been made by the
Landlord or the Landlord's agents with respect to the premises or the
building or the certificate of occupancy thereof, except as in this lease set
forth. The statements contained in this lease regarding the use of the
premises by the Tenant shall not be deemed a representation or warranty by
the Landlord that such use is lawful or permitted by the certificate of
occupancy of the building.
(7)
LIMITATION OF LANDLORD'S LIABILITY
TWENTY-FIRST: (a) The Tenant shall make no claim upon the Landlord for
abatement of rent, constructive eviction, rescission, or otherwise, and the
Landlord shall be exempt from all liability, except for injuries to the
Tenant's person or property which are due to the negligence of or willful
misconduct of the Landlord, its agents, servants or employees or contractors,
for or on account of any annoyance, inconvenience, interference with
business, or other damage, caused by: (i) any interruption, malfunction or
curtailment of the operation of the elevator service, heating plant,
sprinkler system, gas, water, sewer or steam supply, plumbing, machinery,
electric equipment or other appurtenances, facilities, equipment and
conveniences in the building, whether such interruption, malfunction or
curtailment be due to breakdowns, or repairs, or strikes or inability to
obtain electricity, fuel or water due to any such cause or any other cause
beyond the Landlord's control; (ii) any work of repair, alteration or
replacement done by or on behalf of the Landlord or the Tenant, pursuant to
the provisions of this lease; (iii) any water, rain, snow, steam, gas,
electricity or other element, which may enter, flow from or into the premises
or any part of the building, or any noise or vibration audible in, or
transmitted to the premises; (iv) any vermin; (v) any falling paint, plaster
or cement; (vi) any interference with light or with other easements or
incorporeal hereditaments; (vii) any latent defect or deterioration in the
building or the appurtenances thereof, whether or not the Landlord shall have
been notified of any condition allegedly causing same; (viii) any zoning
ordinance or other acts of governmental or public authority now or hereafter
in force; and (ix) any act or omission of any other occupant of the building
or other person temporarily therein. Intentional deleted prior to execution.
The Tenant will not hold the Landlord liable for any loss or theft of, or
damage to, any property in the premises done or caused by any employee,
servant or agent of the Landlord who is invited into the premises by the
Tenant, nor for the loss, damage or theft of any property stored or left in
the basement or in any other part of the building, which is not enclosed
within the premises or of any property, left with any employee of the
Landlord, not withstanding such theft, loss or damage may occur through
carelessness or negligence of the Landlord's employees; and the Tenant agrees
that any employee in entering the premises at the invitation of the Tenant or
accepting custody of property shall be then deemed agent of the Tenant or
other person at whose instance he may be acting, and not agent of the
Landlord. Employees are not permitted to receive or accept packages or
property for account of Tenants. Storerooms or storage space for personal
property (if provided) are provided gratuitously by the Landlord, and the use
of same shall be at the Tenant's risk and the Tenant will not hold the
Landlord liable for any loss of or damage to person or property therein or
thereby. Nothing in this lease contained shall impose any obligation upon the
Landlord with respect to any real property other than the building, whether
said other real property be owned by the Landlord or otherwise, or shall in
any way limit the Landlord's right to build upon or otherwise use said other
real property in such manner as the Landlord may see fit. The Tenant shall
make no claim upon the Landlord for abatement of rent, constructive eviction
or rescission, and the Landlord shall have no liability by reason of the
Landlord's failure to enforce the provisions of the lease to any other tenant
against such other tenant. Intentional deleted prior to execution.
(b) Any right and authority reserved by and granted to the Landlord under
this lease, to enter upon and make repairs in the premises shall not be taken
as obligating the Landlord to inspect and to repair the premises and the
Landlord hereby assumes no responsibility or liability for the care,
inspection, maintenance, supervision, alteration or repair of the premises
except as herein specifically provided. The Tenant assumes possession and
control of the premises except as herein specifically provided. The Tenant
assumes possession and control of the premises except as herein specifically
provided. The Tenant assumes possession and control of the premises and
exclusively the whole duty of care and repair thereof, except as herein
specifically provided, and the duty of care, if any, owed by the Tenant to
the persons on the sidewalks or in the corridors of the building.
INDEMNITY BY TENANT
TWENTY-SECOND: The Tenant hereby indemnifies and agrees forever to save
harmless the Landlord against any and all liabilities, penalties, claims,
damages, expenses (including attorneys' and counsel fees) or judgments,
arising from injury to person or property of any kind, occasioned wholly or
in part by the Tenant's failure to perform or abide by any of the covenants
of this lease or occasioned wholly or in part by any negligent act or acts,
negligent omissions or intentional misconduct of the Tenant, or of the
employees, customers, agents, assigns or under-tenants of the Tenant.
NOTICES
TWENTY-THIRD: Any notice which is to be given by either party to the
other pursuant to this lease shall be in writing and shall be given as
follows: (a) if such notice is to be given by the Landlord to the Tenant,
such notice shall be given by registered or certified mail, by depositing the
notice, enclosed in an envelope addressed to the Tenant at 00000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Mr. John Silverage (with a copy of all
default notices sent in the same manner to Xxxxxxx Xxxxxxx, Esq., Shulman,
Rogers, Gandal, Pordy & Xxxxx, XX., 11921 Rockville Pike, third floor,
Rockville, Maryland 20852-2743), in any United States Post Office, postage
and registry or certification fees prepaid; (b) if such notice is to be given
by the Tenant to the Landlord, the notice shall be given by registered or
certified mail, by depositing the notice, enclosed in an envelope, addressed
to the Landlord at 00 Xxxxxxx Xxxxx, Xxx Xxxx, N.Y., or at such other place
as the Landlord shall hereafter designate in writing, in any United States
Post Office, postage and registry or certification fees prepaid. Any notice
shall be deemed to have been given on the date when the same is delivered as
above provided or, if given by mail, 3 business days after the date when it
is deposited as above provided in the United States Post Office.
(8)
INSOLVENCY
TWENTY-FOURTH: If, at any time after the execution and delivery of this
lease, The tenant shall be adjudicated a bankrupt, or if the Tenant shall
make any assignment for the benefit of creditors, or attempt to take the
benefit of any insolvency law, or if a petition or answer to reorganize the
Tenant shall be approved by any court or judge, or if a petition or answer
for a composition or extension shall be filed by the Tenant, or if a receiver
or trustee shall be appointed for the Tenant's property, or if the Tenant's
interest in this lease shall be attached or levied upon or shall evolve upon
or pass to any party other than the Tenant except pursuant to an assignment
approved by Landlord in accordance with this lease (whether such event occurs
prior or subsequent to the commencement of the term or Tenant's entry into
possession) such event shall be conclusively deemed a default hereunder, and
the Landlord shall have the right to terminate this lease in the manner
hereinafter provided, as if such event were a breach by the Tenant of one of
the covenants of this lease. In the event of such termination, the Tenant or
any person claiming under, by or through the Tenant, by virtue of any statute
or of an order of any court, shall not be entitled to possession or to remain
in possession of the demised premises but shall forthwith quit and surrender
same. Exclusive of and in addition to any other rights or remedies the
Landlord may have through any other portion or provision of this lease or by
virtue of any rule of law or statute, said Landlord may keep and retain, as
liquidated damages, any rent, security, deposit or other moneys or
consideration received by the Landlord from the Tenant, or others on behalf
of the Tenant. Also, in the event of termination of this lease as aforesaid,
the Landlord shall be entitled, as and for liquidated damages from the Tenant
for breach of the unexpired term of this lease, to an amount equal to the
difference between the rental value of the remainder of the term at the time
of termination and the actual rent reserved, both discounted to present worth
at the rate of four per cent (4%) per annum. If at any time within a
reasonable period following the date of the termination of the lease, as
aforesaid, the premises should be re-rented by the Landlord, the rent
realized by any re-letting shall be deemed PRIMA FACIE to be the rental
value. In the event of the occurrence of any of the above-mentioned events of
default occasioned solely through the invocation by the Tenant or by third
parties of the laws of the State of New York, judicial or statutory, as
distinguished from the invocation of Federal laws relating to bankruptcy,
reorganization, or otherwise, the Landlord, in addition to the foregoing, may
accelerate the full amount of rent reserved for the remainder of the lease,
and the same shall forthwith become due and payable to the Landlord. Nothing
herein provided shall be deemed to prevent or restrict the Landlord from
proving and receiving as liquidated damages herein the maximum permitted by
any rule of law or statute prevailing when such damages are to be proved,
whether they be greater or less than those referred to above.
REMEDIES OF THE LANDLORD ON DEFAULT PERFORMANCE BY THE LANDLORD
TWENTY-FIFTH: (a) If the Tenant shall default in the full and due
performance of any covenant of this lease, the Landlord shall have the right,
upon ten (10) business days' notice to the Tenant (unless a shorter period of
notice or provision for the performance of such work without notice is
elsewhere established) and the failure by Tenant to cure within such period
(or if cure is not possible within such period, failure to commence cure
within such period and diligently proceed until cure is complete), to perform
the same for the account of the Tenant, and in such event all workmen
employed by the Landlord shall be deemed the agents of the Tenant, and any
reasonable payment made, and expense incurred, by the Landlord in this
connection, shall forthwith become due and payable by the Tenant to the
Landlord. If the Landlord is compelled to incur any expenses, including
reasonable attorneys' fees in instituting, prosecuting or defending any
action or proceeding instituted by reason of any default of the Tenant
hereunder, the sum or sums so paid by the Landlord with all interest, costs
and damages, shall be deemed immediately due to the Landlord upon demand. Any
and all sums payable by the Tenant to the Landlord shall bear interest at the
rate of six per centum (6%) per annum from the due date to the date of actual
payment, and any and all such sums (except the rent hereinabove expressly
reserved) shall be deemed to be additional rent for the period prior to such
due date, and the Landlord shall have the same remedies for default in the
payment of such additional rent as for default in the payment of the rent
expressly reserved.
PERFORMANCE BY THE LANDLORD NOT AN EXCLUSIVE REMEDY
(b) In the event that under the provisions of this lease the Landlord
shall have the privilege of performing any covenant in respect of which the
Tenant may be in default and of recovering the expenses so involved from the
Tenant as additional rent or otherwise, such remedy shall not be the
exclusive remedy of the Landlord but the Landlord may, at its option, treat
such default as a breach of substantial obligation of this lease and shall
have all the other remedies in respect thereof provided in this or any other
Article of this lease.
DISPOSSESS TERMINATION OF LEASE
(c) If the Tenant shall violate or default in the full and due
performance of any covenant, provision or condition of this lease (other than
the covenant to pay the rent or any additional rent), or any covenant,
provision or condition of any other lease under which the Tenant is a tenant
in the building, or if any of the events specified in the Article of this
lease numbered Twenty-fourth and headed "Insolvency" shall occur, or if the
conduct of the Tenant or any occupant of the premises shall reasonably be
deemed objectionable by the Landlord or the Landlord's managing agent, the
Landlord will give to the Tenant ten days' notice of such violation, default
or misconduct. In the event that (i) the Tenant shall default in the payment
of the rent or of any additional rent, after five (5) days notice from the
Landlord (it being agreed that if the Tenant is delinquent in the payment of
any rent or additional rent more than three (3) times over the term of this
lease, the Tenant's right to such five (5) days notice shall thereafter be
deemed waived), or (iii) in the event that the Tenant, after notice thereof
as above provided, shall fail to stop any violation or fully cure or remedy
any default or terminate any misconduct under this lease (or in the event
that the default is of a nature such that the steps required to cure or
remedy the same fully cannot reasonably be completed within ten days, then if
the Tenant shall not have commenced and have diligently and continuously
prosecuted the steps necessary to cure or remedy such default) the Landlord
may give to the Tenant ten (10) days' notice of its intention to terminate
this lease, and, in such event, on the tenth day following the giving such
notice this lease and the term hereby granted shall terminate and expire as
fully and completely as if that day were the date herein expressly fixed for
the expiration of the term, and the Tenant shall thereupon quit and surrender
the premises into the possession of the Landlord, but the Tenant shall
nevertheless remain liable for deficiency in future rent and for any other
defaults hereunder, as hereinafter provided. If the Tenant shall default in
the payment of the rent, or any additional rent herein
(9)
mentioned, or of any part of either beyond any grace and notice period set
forth above, or if this lease shall be terminated by the notice last above
provided for, the Landlord may immediately, or at any time thereafter,
re-enter the premises and remove all persons and property therefrom, either
by summary dispossess proceedings, or by any suitable action or proceeding at
law, or by force, or otherwise, without being liable to indictment,
prosecution or damages therefor, and re-possess and enjoy the premises,
together with all additions, alterations, installations and improvements, and
no entry by the Landlord shall be deemed an acceptance of surrender. Upon any
such re-entry, the Landlord may re-let the premises or any part or parts
thereof, and for such term or terms as to the Landlord may seem wise, even
though the same extend beyond the date herein expressly fixed for the
expiration of the term. Any such re-letting shall, at the Landlord's option,
be either for the Landlord's own account, or as the agent for the Tenant. If
the Landlord shall re-let as the agent of the Tenant, the Landlord shall
receive the rents and apply the same, first, to the payment of all expenses
which the Landlord shall have incurred by reason of the Tenant's default and
in connection with such re-entry and re-letting, including, but not by way of
limitation, legal expenses, brokers' commissions, and the cost of reasonable
repairs, re-decoration and alterations, and, secondly to the fulfillment of
the covenants of the Tenant herein contained, and the surplus, if any,
existing at the date herein expressly fixed for the expiration of the term,
shall be paid to the Tenant, but the Tenant shall be entitled to no such
payment until said date. So long as the premises, or any part thereof, shall
not be re-let, or shall be re-let by the Landlord as the agent of the Tenant,
the Tenant shall remain liable for the full and due performance of all the
covenants of this lease, and the Tenant hereby agrees to pay to the Landlord, as
damages for any default hereunder, until the date herein expressly fixed for
the expiration of the term, the equivalent of the amount of all the rent and
additional rent reserved herein, less the net avails of re-letting, as
hereinbefore defined, if any, and the same shall be due and payable by the
Tenant to the Landlord on the several rent days above specified, that is,
upon each of the said rent days the Tenant shall pay to the Landlord the
amount of deficiency then existing, and shall not be entitled to withhold any
such payment until the date herein expressly fixed for the expiration of the
term. The liability of the Tenant shall survive the issuance of a final
order and warrant of dispossess, and re-entry by the Landlord, and any other
termination of this lease for default of the Tenant, and the granting by the
Landlord of a new lease of the premises to another tenant, and the Tenant
hereby waives any defense which might be predicated upon any of said acts or
events.
The Tenant hereby expressly waives (i) any and all right to regain
possession of said premises or to reinstate or redeem this lease as provided
by the Real Property Actions & Proceedings Law, (and as said law may be
amended) or any such right which is or may be given by any other statute, law
or decision now or hereafter in force; (ii) the service of any notice
demanding rent or stating an intention to re-enter; or any similar right
which is or may be given by any statute, law or decision now or hereafter in
force; (iii) any and all rights of redemption and all other rights to regain
possession or to reinstate this lease (in case the Tenant shall be
dispossessed or ejected by, or pursuant to judgment, order, execution or
warrant of any court or judge). Except as provided in Section 259-c of the
Real Property Law with respect to an action for personal injury or property
damage between the parties hereto, the Tenant and the Landlord each waives
and will waive all right to trial by jury in any summary proceedings and in
any other proceeding or action at law hereafter instituted by the Landlord
against the Tenant in respect of this lease, and also in any action or
proceeding between the parties hereto for any cause; and it is hereby agreed,
that in any of such events, the matter in dispute shall be tried before a
judge without a jury. In the event the Landlord shall commence any action or
summary proceeding for non-payment of rent or other breach of covenant or
condition, the Tenant hereby agrees not to interpose any counter-claim of
whatever nature or description in any such action or proceeding except
counter-claims which would be waived if not interposed in such action or
proceeding. The words "re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning.
SURRENDER AT EXPIRATION
TWENTY-SIXTH: Upon the expiration or any termination of the term of this
lease, the Tenant shall quit and surrender the demised premises, together
with any fixtures, equipment or appurtenances installed in the premises at
the commencement of this lease, and any alterations, decorations, additions
and improvements which are not to be removed in compliance with the
provisions of Article Fourth hereof, to the Landlord, in good order and
condition, ordinary wear and tear and casualty damage excepted. The Tenant
shall remove all its furnishings, trade fixtures, stock in trade and like
personal property in accord with the requirements of Article Fourth, so as to
leave the premises broom-clean and in an orderly condition. If the last day
of the term of this lease falls on Sunday, this lease shall expire on the
business day immediately preceding. The Tenant's obligation to observe and
perform this covenant shall survive the expiration or other termination of
the term of this lease.
QUIET ENJOYMENT
TWENTY-SEVENTH: The Landlord covenants that, if the Tenant shall duly
keep and perform all the terms and conditions hereof, the Tenant shall
peaceably and quietly have, hold and enjoy the premises for the term
aforesaid, subject however to ground leases, underlying leases and mortgages
as hereinbefore described. If the Landlord shall hereafter sell, exchange or
lease the entire building or the land and building wherein the premises are
located, subject to this lease, or, being the lessee thereof, shall assign
its lease, the grantee, lessee, or assignee thereof, as the case may be,
shall, without further agreement by any party, be conclusively deemed to be
the Landlord of this lease and to have assumed and undertaken to carry out
all of the obligations hereof on the part of the Landlord to be performed,
and the Tenant does hereby release the above-named Landlord from any claim or
liability arising or accruing hereunder subsequent to such transfer of
ownership or possession, for breach of the covenant of quiet enjoyment, or
otherwise.
(10)
TENANT'S DEPOSIT
TWENTY-EIGHTH: (a) The Tenant has deposited with the Landlord the sum
of FORTY-EIGHT THOUSAND TWO HUNDRED EIGHTY-THREE AND 34/100 ---- Dollars
($48,283.34----) to secure the faithful performance by the Tenant of all the
terms, conditions, covenants and agreements of this lease, and to make good
to the Landlord any damage which it may sustain by reason of any act or
omission of the Tenant. The Landlord shall segregate the said security
deposit as a trust fund not to be mingled with other funds of the Landlord,
and if, during the term of this lease, the Landlord shall sell, exchange or
lease the entire building, subject to this lease, or, being the lessee
thereof, shall assign its lease, the Landlord shall have the right to pay or
transfer the said deposit to such grantee, lessee, or assignee, as the case
may be, and, in such event, the Landlord shall be release from all
responsibility and liability in connection therewith, and the Tenant will
look solely to said grantee, lessee, or assignee for its return. The
aforesaid security deposit shall be deposited with a bank or trust company,
savings bank or savings and loan association, in an interest-bearing account,
and the Landlord shall advise the Tenant of the name and address thereof. The
Tenant shall be entitled to the payment of interest on the aforesaid security
deposit less the amount equal to 1% of the deposit, to which the Landlord
shall be entitled as administration expense shall be added to the amount of
the deposit. The Tenant's interest in said deposit shall not be assigned or
encumbered without the written consent of the Landlord, and within thirty
(30) days after the expiration of the term, the amount of said deposit shall
be repaid to the Tenant, less any proper charges against the same, as
hereinabove or hereinafter provided. If the Tenant shall at any time be in
default with respect to any payment of rent or of additional rent or of any
other payment due from the Tenant to the Landlord under this lease, or if the
Landlord shall be damaged by any act or omission of the Tenant the Landlord
may, at its option, apply such portion of said deposit as may be adequate to
cure such default or to make good such damage, including, but not by way of
limitation, interest, costs, fees and other expenses, paid or incurred by the
Landlord (and Landlord shall notify Tenant of the amount applied and the
reason therefor) and thereafter such portion so applied shall be free from
any claim by the Tenant for its return. If the Landlord shall re-enter,
pursuant to the provisions of this lease (other than in the event of
insolvency in which event the provisions of Article Twenty-fourth of the
lease shall apply, and shall re-let the premises for its own account, the
entire said deposit shall immediately be and become the absolute property of
the Landlord, as fixed, liquidated and agreed damages, and not as a penalty,
it being impossible in such event to ascertain the exact amount of the damage
which the Landlord may thus sustain, but unless the Landlord shall so re-let
the premises for its own account, the Landlord shall continue to hold the
said deposit, as security for the performance of the Tenant's obligations,
until the date herein expressly fixed for the expiration of the term, and
apply the same from time to time to the unpaid obligations of the Tenant,
under the same terms and conditions as if the said lease were still in full
force and effect. No termination of this lease or re-entry by the Landlord
for default of the Tenant shall entitle the Tenant to the return of any part
of said deposit, nor shall the retention of such deposit, after such
re-entry, impair or otherwise affect the Tenant's liability to the Landlord
during the balance of the term originally provided for. If, at any time, the
said deposit shall be diminished, by reason of the Landlord's having applied
any part thereof in accordance with the provisions of this paragraph, the
Tenant shall pay over to the Landlord upon demand, the equivalent of such
decrease, to be added to said deposit and to be held and applied in
accordance with the provisions of this paragraph.
(b) In lieu of delivering cash as all or any portion of the Deposit or
in exchange for all or any portion of cash previously delivered, the Tenant
may deliver to Landlord an unconditional, irrevocable letter of credit (such
letter of credit, or any extension or replacement thereof, being hereinafter
referred to as the "Letter of Credit") issued by a New York Clearing House
bank, in substance reasonably satisfactory to the Landlord, which Letter of
Credit is to be held by Landlord in accordance with the terms described in
paragraph (a) above. In the event that the Landlord receives notice from the
Bank or Tenant that the Letter of Credit is not renewed or in the event that
Tenant has not delivered a replacement Deposit or a similar Letter of Credit
to Landlord by thirty (30) days before the expiration of the Letter of
Credit, then Landlord shall be entitled to present the Letter of Credit for
immediate payment of the then-potential amount available pursuant to the
Letter of Credit, and such amount of the Letter of Credit shall become the
Deposit hereunder and shall be held, applied and returned by Landlord in
accordance with the terms provided by the ease for the holding, application
and return of the Deposit. If the Letter of Credit is not being renewed but
Tenant does deliver a replacement Deposit or a similar Letter of Credit by
thirty (30) days before expiration of the Letter of Credit, then Landlord
shall not thereafter be entitled to present the expiring Letter of Credit for
payment of any amounts.
(c) At Tenant's request, any cash or cash equivalent held by Landlord as
part of the security deposit, which is in excess of that required to be held
by Landlord pursuant to paragraph (a) which has not been or is not in the
process of being applied pursuant to the provisions of paragraph (a) of this
Article, shall be returned to Tenant within ten (10) days of Tenant's request
therefor. If Landlord is holding a Letter of Credit as part of the security
deposit and provided Landlord had not presented for payment such Letter of
Credit, upon delivery of a substitute Letter of Credit in the appropriate
amount and which otherwise satisfies the requirements of paragraph (b) of
this Article, the Landlord shall deliver to Tenant the Letter of Credit being
replaced.
ELEVATORS, HEAT
TWENTY-NINTH: (a) Except on Saturdays and Sundays, and on holidays
recognized as legal holidays by State or Federal Government, the Landlord
shall furnish, between the hours of eight a.m. and six p.m., elevator service
with the elevators now in the building, and sufficient heat during the cold
season to heat the premises. If the building is equipped with any automatic
elevators then the Landlord shall have one such elevator in service and
available for the Tenant's use at all other times. The Landlord may suspend
such service, if it should become necessary or proper so to do, at any time.
The Landlord shall restore such service within a reasonable time, making due
allowance for labor troubles, acts of God, or any cause beyond the Landlord's
control.
FORTIETH: (SIC) In addition to the elevator service described in
paragraph TWENTY-NINTH of this lease, the Landlord will maintain in service
and available for the use of the Tenant, one passenger elevator at all times
on all days of the week, including Saturdays, Sundays and legal holidays. In
the event that the Tenant requires freight elevator service, or heat on
Saturdays, Sundays, federal and state holidays and all holidays recognized by
the unions representing Landlord's building personnel or during hours in
addition to those prescribed under paragraph TWENTY-NINTH of this lease, the
Landlord will furnish the additional elevator service or heat or both, as the
case may be, upon notice of the Tenant's need therefor. Such notice may be
written or oral and shall be given as long as a time as practicable prior to
the time when the additional heat or freight elevator service is required.
The Tenant will pay for any additional freight elevator service and heat
furnished after the hours prescribed in paragraph TWENTY-NINTH at the
respective prevailing rates per hour as established from time to time by the
Landlord for such services at the building or in the buildings of the
Landlord, generally, for each hour during which the additional service is
supplied. All charges for additional freight elevator service and heat shall
be payable when billed and in the event of default of payment therefor, the
Landlord may refuse further service and the amount unpaid shall be deemed
additional rent for which the Landlord shall have all the remedies for
collection herein specified with respect to rent. The failure on the part of
the Landlord to furnish such additional elevator service or heat, if due to
breakdowns, repairs, maintenance, strikes, or other causes beyond the control
of the Landlord, shall involve no liability on the part of the Landlord nor
shall it constitute an eviction.
(b) The Landlord shall be entitled to refuse to furnish passenger or
freight elevator service in connection with any sale at auction of the
Tenant's fixtures, machinery, stock in trade and other property or a sale in
any other manner of all or substantially all of such property unless the
Landlord shall have been given not less than two days' notice of the
intention to hold the auction or other sale and unless the Landlord shall be
given an undertaking by a person, firm or corporation of satisfactory
financial resources wherein the Landlord shall be indemnified against (i) all
expense incurred by the Landlord in connection with the removal by purchasers
of any property sold to them at the auction or other sale, (ii) all expense
for removal or storage of any property sold at the auction or other sale
which is not removed by the purchaser within two days following the sale, and
(iii) all expenses which the Landlord may incur for the removal of property
not sold and waste and rubbish from the premises.
WATER AND SEWER RENTS
THIRTIETH: (a) The Tenant shall pay for all hot and cold water used on
the premises and the Tenant's proportionate share of the cost of such water
used for lavatory purposes in any lavatories used by the Tenant in common
with other tenants at the Landlord's standard rates. In the event that the
Tenant shall use water for any industrial purpose or any purpose other than
usual lavatory purposes, the Tenant shall, at its own expense, install a
meter or meters for the measurement of the quantity of water thus consumed
and keep the same in good working order. With respect to water used for
lavatory purposes, whether on the premises or in lavatories used by the
Tenant in common with other tenants, if the quantity of water so used is
measured by a meter which measures the consumption of water by other tenants,
the Tenant shall pay its proportionate share of all water so consumed. Such
proportionate part shall be fixed in
(11)
accord with the number of persons occupying the premises and the number of
persons occupying all premises using water which is measured by such meter.
In the event that there shall be a separate meter which measures the use of
water by the Tenant for lavatory purposes, the Tenant will pay for the water
so shown to have been used and the cost of maintenance of such meter. All
payments for water shall be due when billed to the Tenant. In the event that
the Tenant defaults in the payment for any water, the amount not paid shall
forthwith be payable as additional rent. The Landlord is not under obligation
to supply hot water (other than for lavatory purposes) and, if hot water is
supplied, the Landlord may at any time without notice discontinue such supply
without constituting an eviction or without incurring any liability or
disability therefor.
(b) The Tenant shall pay the New York City sewer rents apportioned to
the Tenant's consumption of water at the premises. The apportionment of the
sewer rent to the premises shall be made in accord with the measurement or
apportionment of water consumed at the premises as in this lease hereinbefore
provided. The sewer rents shall be billed with the water charges and the
Landlord shall have the same remedies for the collection thereof provided in
the case of charges for water.
SPRINKLER MAINTENANCE
THIRTY-FIRST: The Tenant shall pay to the Landlord the Tenant's
proportionate share of the cost of maintenance, operation and rental of the
automatic fire alarm supervisory service and manual alarm and sprinkler
system now installed in the building and the premises. The Tenant's
proportionate share of such cost shall be the fraction of the annual
expenditures of the Landlord for such purposes, of which the numerator is the
area of the premises and the denominator is the rentable area of the entire
building. The amount so payable by the Tenant shall be due when bills
therefor are rendered by the Landlord to the Tenant, and in the event of
default in the payment thereof, the Landlord may add the amount of any such
xxxx to any succeeding installment of rent and the same shall be collectible
as additional rent.
INSURANCE
THIRTY-SECOND: The Tenant shall, during the demised term, provide and
keep in force public liability insurance, written by insurance companies
approved by the Landlord, covering the Tenant, which shall be in the limit of
at least $500,000 for claims arising from injury to any one person and
(subject to said limit for each individual) with a limit of at least
$1,000,000 for total claims arising from any one casualty.
The Tenant shall furnish the Landlord within five (5) days after the
commencement of the term hereof, with a certificate of such insurance, which
certificate shall provide, that in the event of any change or cancellation of
the policy, advance notice thereof will be given to the Landlord. Upon
failure at any time on the part of the Tenant to obtain or keep in force the
insurance required by this paragraph, or to pay the premiums thereof, in
addition to the rights and remedies provided in paragraph Twenty-fifth
hereof, the Landlord shall be at liberty from time to time, and as often as
such failure shall occur (after 5 days' notice to Tenant and Tenant's failure
to cure within such period), to pay the premiums therefor and any and all
sums so paid for insurance by the Landlord shall be and become, and are
hereby declared to be, additional rent under this lease due and payable on
the next rent day or any successive rent day.
DEFAULT UNDER OTHER LEASES
THIRTY-THIRD: (a) If the Tenant, before the commencement of the term
herein granted, shall default in any covenant of any other lease with the
Landlord, then at the option of the Landlord this lease shall not go into
effect and the Tenant shall have no right to possession of the premises; and
the Tenant agrees to reimburse the Landlord upon demand for any expense or
loss that may be suffered due to the Tenant's default.
(b) In the event that during the term herein granted the Tenant shall
default in the performance of the covenants of any other lease with the
Landlord such default shall be deemed a default under the terms of this lease
and the Landlord shall have all the remedies herein provided for in the event
of a default under this lease.
WORK TO BE DONE BY LANDLORD
THIRTY-FOURTH: If work of any nature is agreed herein to be done by the
Landlord, the Tenant agrees (provided that the Landlord shall have used
reasonable efforts to complete the same prior to the commencement of the term
and shall thereafter diligently proceed with the same in a timely manner; and
provided, further, that if any work to be done by the Landlord with respect
to the original provision of electricity to the premises shall not have been
substantially completed prior to the commencement of the Tenant's operation
for business from the premises, the Tenant's rent shall be equitably
apportioned (Tenant hereby acknowledging and agreeing that such original
provision of electricity will entail the delivery to the floor of 1,000
amperes of electricity at 120/208 volts)) that it may be done after the
commencement of the term of this lease and that no rebate of rent or
allowance will be granted therefor. The Landlord shall not be required to
furnish any work or materials to the premises, except as expressly provided
in the memorandum of repairs or decorations to be done by the Landlord
attached to this lease. In case the Landlord or Tenant is prevented from
making any repairs, improvements, decorations or alterations, installing any
fixtures or articles of equipment, furnishing any services or performing any
other covenant herein contained to be performed on the Landlord's or Tenant's
part, due to the Landlord's or Tenant's inability to obtain, or difficulty in
obtaining, labor or materials necessary therefor, or due to any governmental
rules and regulations relating to the priority of national defense
requirements, or due to labor troubles, or due to any other cause beyond the
Landlord's or Tenant's control, the Landlord or Tenant, as the case may be,
shall not be liable to the Tenant or the Landlord, as the case may be for
damages resulting therefrom, nor except as expressly otherwise provided in
Article Seventeenth hereof (in respect of damage to the premises due to
fire), shall the Tenant be entitled to any abatement or reduction of rent by
reason thereof, nor shall the same give rise to a claim in the Tenant's favor
that such failure constitutes actual or constructive, total or partial,
eviction from the premises.
TRADING WITH THE ENEMY
THIRTY-FIFTH: The Tenant represents and warrants that the Tenant is not
disqualified under the Trading with the Enemy Act or any other similar
legislation or under the rules and regulations of any governmental department
or authority, from acquiring, owning and holding any interest in real
property. The breach by the Tenant of this condition shall be deemed a
default within the meaning of Article Twenty-fifth of this lease.
MARGINAL NOTES
THIRTY-SIXTH: The marginal headings or titles of the various Articles or
paragraphs of this lease are for reference and index purposes only, and none
of them shall be taken into consideration or given any effect whatever in
determining the meaning or scope of the provisions to which any of them
apply. The use of any pronoun referring to either of the parties to this
lease shall be construed to include any or no gender and any number.
(12)
CPI ESCALATION
THIRTY-SEVENTH: (a) Real Estate Tax and CPI Escalation. In order (I) to
adjust, during the term of this lease, for increases in the expenses of the
Landlord for Real Estate Taxes, the Tenant shall
pay to the Landlord, as additional rent, the Tenant's Proportionate
Share of any increases in such Real Estate Taxes, and (ii) to adjust
for increases in other operating expenses of the Landlord, the
Tenant shall pay to the Landlord, as additional rent, the CPI
Adjustments for Increases in Other Operating Expenses, namely the
amount by which the Base Rent Allocated to Other Operating Expenses
is increased by application to the Base Rent Allocated to Other
Operating Expenses of increases in the Index over the Base Index,
all as computed as set forth below in this Article. Capitalized
words or expressions use above are defined in subparagraph (b) below.
(b) Definitions. As used in this Article the following
capitalized words or expressions shall have the meaning ascribed to
them below:
1. "Real Estate Taxes' shall mean and include the expenditures
of the Landlord for taxes or assessments payable by the Landlord
upon or with respect to the building and the land upon which it is
located, imposed by Federal, State or local government (plus all
expenditures for fees and expenses incurred in the course of
obtaining a reduction in any tentative assessed valuation), and all
taxes imposed by any such authority relating to the maintenance and
operation of the building, but shall not include income, franchise,
inheritance or capital stock taxes or transfer or recordation taxes.
2. "Base Rent Allocated to Other Operating Expenses' shall mean
an amount equal to 90% of the fixed annual rent prescribed on page 1
of this lease, as such rent may be payable from time to time.
3. "Increase in Real Estate Taxes' shall mean the amount by
which Real Estate Taxes in any Subsequent Year, exceed Real Estate
Taxes for the Base Year.
4. "CPI Adjustment for Increases in Other Operating Expenses' shall mean
the amount obtained by multiplying the Base Rent Allocated to Other Operating
Expenses by the percentage by which the Index as last published on the date
next prior to the Computation Date, shall exceed the Base Index; PROVIDED,
HOWEVER, that, with respect to any particular 12-month period ending on a
Computation Date (a "CPI Year"), if the percentage increase in the Index
occurring during any CPI Year, is less than 2.5% (a "CPI Adjustment Year"),
then in calculating the CPI Adjustment for Increases in Other Operating
Expenses with respect to such CPI Adjustment Year (whether in such CPI
Adjustment Year or in a subsequent CPI Year), the percentage increase for
such CPI Adjustment Year shall be deemed to have been 2.5%.
5. "Index' shall mean the ""Consumer Price Index for All Urban
Consumers'"(1982/84=100)' specified for "All Items,' relating to New
York City and published by the Bureau of Labor Statistics of the
United States Department of Labor. In the event the index shall
hereafter be converted to a different standard reference base or
otherwise revised, the determination of the CPI Adjustment for
Increases in Other Operating Expenses shall be made on the basis of
such conversion factor, formula or table for converting the Index as
may be published by the Bureau of Labor Statistics, or, if said
Bureau shall not publish the same, then with the use of such
conversion factor, formula or table as may be published by
Xxxxxxxx-Xxxx, Inc., or, failing such publication, by any other
nationally recognized published of similar statistical information.
In the event either Index shall cease to be published, then, for the
purposes of this Article, there shall be substituted for the Index
such other index as Landlord and Tenant shall agree upon, and, if
they are unable within ninety (90) days after the Index ceases to be
published, such matter shall be determined in New York City by
arbitration in accordance with the Rules of the American Arbitration
Association.
6. "Base Index' shall mean the Index as last published prior to
February 1, 1999.
7. "CPI Comparative Statement' shall mean a statement ,in
writing, signed by the Landlord, or , on its behalf, by an officer
of any corporation acting as its managing agent, showing (i) a
comparison of (a) Real Estate Taxes for the Base Year with (b)
Projected Real Estate Taxes for a Subsequent Year (which shall be
the same calendar year as the year of the Computation Date used in
such CPI Adjustment for Increases in Other Operating Expenses for
such Subsequent Year, and (iii)if the Tenant paid additional rent
pursuant to this Article with respect to the immediate preceding
Subsequent Year, and adjustment necessitated by a variance between
the Projected Real Estate Taxes for such Subsequent Year (as shown
in the current CPI Comparative Statement).
8. "Base Year' shall mean the Real Estate tax year commencing
July 1, 1998 and ending June 30, 1999.
9. "Subsequent Year' shall mean any calendar year following the
Base Year, falling wholly or partly within the term of the Tenant
under this lease and the calendar year following the year in which
the term of this lease terminates.
(1)
10. "Computation Date" shall mean the first day of
February , 2000, and in Subsequent Years, its anniversary date.
11. "Projected Real Estate Taxes" shall mean the Landlord's estimate
(which in any event must be reasonable in the light of past experience) of
Real Estate Taxes for a particular Subsequent Year.
12. "Tenant's Proportionate Share" shall mean a fraction, of which the
numerator shall be the number of Rentable Square Feet of Area of the premises
occupied by the Tenant and the denominator shall be 100% of the total number
of Rentable Square Feet of Area in the entire building.
13. "Rentable Square Feet of Area" shall mean, as to basement and
ground floor space, the number of net square feet of the area thereof and,
as to all floors above the ground floor, shall mean the number of gross
square feet of the area thereof.
The terms "Increases in Other Operating Expenses" and "Operating Expense
Comparative Statement" shall have the meanings assigned to such terms in
paragraph (b) of Article THIRTY-EIGHTH.
(c) Statements for the Tenant. On or before March 1, 2000, and on or
before that say in each Subsequent Year, the Landlord will furnish a CPI
Comparative Statement to the Tenant. The failure of the Landlord to furnish a
CPI Comparative Statement shall be without prejudice to the right of the
Landlord to furnish a CPI Comparative Statement at any time in the future.
Every CPI Comparative Statement furnished By the Landlord pursuant to
this Article shall be conclusive and binding upon the Tenant unless (i)
within ninety days after the receipt of such CPI Comparative Statement Tenant
shall notify Landlord that it disputes the correctness thereof, specifying
the particular respects in which the CPI Comparative Statement is claimed to
be incorrect, and (ii) if such dispute shall not have been settled by
agreement, the dispute shall have been submitted to arbitration within 180
days after receipt of the CPI Comparative Statement. Pending the
determination of such dispute by agreement of arbitration as aforesaid,
Tenant shall pay additional rent in accordance with the CPI Comparative
Statement and such payment shall be without prejudice to Tenant's position
and to the Tenant's rights to a refund of any overpayment. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay Tenant
the amount of Tenant's overpayment of additional rent resulting from
compliance with the CPI Comparative Statement.
(d) Computation of Increase in Tent Payable by the Tenant. When the
Landlord shall furnish the Tenant with any CPI Comparative Statement in
accordance with this Article which shall show an Increase in Projected Real
Estate Taxes or a CPI Adjustment for Increases in Other Operating Expenses,
then the rent payable under the lease shall be increased by the Tenant's
Proportionate Share of the increase in Projected Real Estate Taxes and by the
CPI Adjustment for Increases in Other Operating Expense which shall be
payable (with payment on account of such increases) as follows: (1) on the
first day for the payment of rent under this lease following the receipt of a
CPI Comparative Statement, the Tenant shall pay to the Landlord a sum equal
to one-twelfth of the Tenant's Proportionate Share of the increase in
Projected Real Estate Taxes plus one-twelfth of the CPI Adjustment for
Increases in Other Operating Expenses (plus or minus, as the case may be, any
adjustment necessitated by a variance between (x) the Projected Real Estate
Taxes for the calendar year prior to the year of the Computation Date used in
such CPI Comparative Statement and (y) the actual Real Estate Taxes for such
calendar year) and (2) thereafter, until a different CPI Comparative
Statement or Operating Expense Comparative Statement shall be submitted, the
monthly installments of rent payable under this lease shall continue to be
increased by such amount.
With respect to any CPI Comparative Statement furnished to the Tenant in
the Subsequent Year following the year in which the term of this lease
terminates, if such CPI Comparative Statement shall indicate an adjustment
necessitated by a variance between (x) the Projected Real Estate Taxes for
the calendar year prior to the year of the Computation Date used in such CPI
Comparative Statement (ie., the last calendar year of the lease term) and (y)
the actual Real Estate Taxes for such calendar year, then the Tenant shall
promptly pay to the Landlord, or the Landlord promptly shall pay to the
Tenant, as the case may be the amount of any such adjustment as indicated in
such CPI Comparative Statement.
(e) Inspection of Books. The Tenant or its authorized representative
shall have a right to examine the books of the Landlord showing the Real
Estate Taxes with respect to the building during regular business hours for
the purpose of verifying the information set forth in any CPI Comparative
Statement relating to any Increase in Real Estate Taxes shown in such CPI
Comparative Statement; provided that a written request for such inspection is
made by the Tenant within 180 days of the receipt of any such CPI Comparative
Statement.
(f) Decreases in Real Estate Taxes or Index. In no event shall any
decrease in the Real Estate Taxes or the Index in any way reduce the fixed
rent or additional rent payable by the Tenant under this lease, except to the
extent to which any such decrease shall result in a decrease in the additional
rent payable pursuant to this Article; provided however that no decrease in
Real Estate Taxes shall in any way reduce any additional rent payable on
account of any CPI Adjustment for Increases in Other Operating Expenses, and
that no decrease in the amount of the CPI Adjustment for Increase in Other
Operating Expenses shall in any way reduce any additional rent payable on
account of any Increase in Real Estate Taxes.
(2)
WORK SHEET
Attached to and made part of lease dated April 23, 1999 between THE
XXXXXX, CHURCH-WARDENS AND VESTRYMEN OR TRINITY CHURCH IN THE CITY OF NEW
YORK, Landlord,
and STARTEC GLOBAL COMMUNICATIONS CORPORATION, Tenant.
-----------------------------------------
Building 000 Xxxxxx Xxxxxx
-------------------------------------
Space Part 5th Floor
-------------------------------------
It is agreed that the following work is to be done by the Landlord at
the Landlord's expense:
1. Deliver space demolished, demised and broom clean.
2. Provide ACP-5 certificates.
3. Upon completion of the lobby renovation, Landlord will have installed a
Local Law #5 system for the base building which includes a fire command
station, necessary risers, warden stations, pull stations and smoke
detectors required for the core area. Landlord will provide Tenant with
connection points and all fire safety lines brought to the premises to
allow Tenant to install within the premises additional speakers and
equipment necessitated by Tenant's partitioning, as well as strobe
devises required by Local Law #58. Tenant will be required to install
all devices within Tenant's premises and connect all to Landlord's
system, at Tenant's cost and expense.
4. Deliver the existing perimeter radiation and sprinkler system in good
working order.
5. Renovate existing toilets on the 5th floor of the building to Landlord's
specifications and deliver at least one (1) toilet in compliance with
ADA requirements.
6. Provided that the Tenant is not in default under any of the terms of
this lease, the Landlord agrees to reimburse the Tenant in an amount up
to a maximum of $144,850.00 toward the Tenant's actual out-of-pocket
cost of interior alterations and construction of permanent office
improvements (other than air conditioning equipment) made by the Tenant
in the premises. All such alterations and improvements shall be made in
accordance with the provisions of Article FOURTH of this lease. The
Landlord shall only be obligated to reimburse the Tenant upon submission
to the Landlord of invoices for the cost of such alterations and
improvements marked by the contractor, vendor or supplier "Paid In Full"
and upon submission to the Landlord of such other documents (including
lien waivers) as the Landlord may reasonably require to evidence payment
in full of the cost of such alterations and improvements.
7. Provided that the Tenant is not in default under any of the terms of
this lease, the Landlord agrees to reimburse the Tenant in an amount up
to a maximum of $70,000.00 toward the Tenant's actual out-of-pocket cost
of air conditioning equipment (including but not limited to, ductwork)
to be installed by the Tenant in the premises. The installation of all
such air conditioning equipment and ductwork shall be made in accordance
with the provisions of Article FOURTH of this lease. The Landlord shall
only be obligated to reimburse the Tenant upon submission to the
Landlord of invoices for the cost of such air conditioning equipment and
its installation marked by the vendor or supplier "Paid In Full" and
upon submission to the Landlord of such other documents (including lien
waivers) as the Landlord may require to evidence payment in full of the
cost of such air conditioning equipment and its installation.
It is stipulated and agreed that the foregoing constitutes the memorandum
of repairs or decorations to be done by the Landlord referred to in the
attached and all the work to be done by the Landlord in the demised premises,
except as otherwise expressly provided in the attached lease.
It is further stipulated and agreed that the aforesaid work shall be
commenced by the Landlord as soon as possible after the signing of the
attached lease and the payment by the Tenant of the first installment of rent
and the performance by the Tenant of any other obligations to be performed by
the Tenant at the time of the signing of the lease and shall be completed
with reasonable diligence, provided that the Landlord shall not be required
to do the work on days or hours other than usual working days and hours in
the trades in question.
Subject to the foregoing provisions the Landlord reserves the right,
after according reasonable consideration to the Tenant's wishes in the
matter, to make all decisions as to the time or times when, the order and
style in which, said work is to be done, and the labor or materials to be
employed therefor. The work shall be done, unless the Landlord otherwise
directs, during the usual working hours observed by the trades in question.
It is stipulated and agreed that in case the Landlord is prevented from
commencing, prosecuting or completing said work, due to the Landlord's
inability to obtain or difficulty in obtaining the labor or materials
necessary therefor, or due to any governmental requirements or regulations
relating to the priority or national defense requirements, or due to any
other cause beyond the Landlord's control, the Landlord shall not be liable
to the Tenant for damages resulting therefrom, nor shall the Tenant be
entitled to any abatement or reduction or rent by reason thereof, nor shall
the same [???illegible???] to a claim in the Tenant's favor that such failure
constitutes actual, constructive, total or partial eviction from the demised
premises.
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF
TRINITY CHURCH IN THE CITY OF NEW YORK, Landlord
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Director of Leasing
STARTEC GLOBAL COMMUNICATIONS CORP.
----------------------------------------------
Tenant
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------------
Senior Manager, Contracts
RULES AND REGULATIONS
1. The Tenant shall not clean, nor require, permit or allow any window
in the demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or of the Rules of the Board of Standards and
Appeals, or of any other board or body having or asserted jurisdiction;
2. All machinery shall be kept in approved settings, sufficient to
absorb any shock and prevent any noise, vibration or annoyance in the
building of which the demised premises are a part and shall be provided with
oil pans between such machinery and the floor beneath it, sufficient to
prevent the seepage of oil on or into the floors;
3. No acid that in any way may injure any of the pipes or plumbing
equipment in the building shall be poured or allowed to drain into the pipes
or plumbing equipment thereof, but shall in the event that the building is
provided with an acid line be poured or allowed to drain only therein, or if
there be no acid line, shall be neutralized in a manner satisfactory to the
Landlord. No substance which may cause any objectionable odor shall be left
in the demised premises;
4. During the cold season, the windows shall be kept closed to maintain
the temperature of the demised premises and to prevent any freezing thereof,
or of any equipment or appliance therein;
5. All trucks, vehicles or conveyances used by the Tenant in the demised
premises shall have rubber-tired wheels;
6. The Tenant's employees, except clerical or executive help, shall, if
the Landlord so directs, at all times use only the combination passenger and
freight elevator, if any, in going into or coming out of the demised premises;
7. No sign or lettering shall be inscribed on any door, wall or window
of the demised premises which is visible from the street or the portion of
the building used in common by other tenants except such as may be approved
in writing by the Landlord or its agents or designee;
8. No additional locks or bolts shall be placed anywhere upon or within
the demised premises or any on rooms therein, unless duplicate keys thereto
be given to the Landlord and all such keys must, on the termination of this
lease, be surrendered to the Landlord;
9. The Landlord may exclude any persons visiting or attempting to visit
the premises between 7 P.M. and 8 A.M. and on Saturdays, Sundays and the
holidays recognized as such by the state or federal government unless such
person shall be equipped with a pass signed by the Tenant and unless such
person shall sign his name and the premises which he is to visit on the night
report.
10. The sanitary and safety facilities used solely by the Tenant or by
the Tenant in common with other occupants of the building of which the
demised premises are a part, shall be used only for the purposes for which
they were constructed;
11. No signs, signals, devices, displays, sounds or advertisements
visible or audible from the street or from the halls and other parts of the
building used in common by the Tenant and other tenants shall be inscribed,
erected or maintained unless the kind, style, location and manner thereof
shall have been approved in writing by the Landlord and if any sign, signal,
sound display or advertising be erected, made or inscribed without such
approval, the Landlord may remove the same and charge the cost of so doing to
the Tenant as additional rent. Any sign or display which may be installed by
the Tenant shall be kept in good order and repair and in a neat and
attractive condition. The Landlord reserves the right to use the roof and
outside walls surrounding the premises for sign purposes. The Landlord may
remove any sign or signs or displays in order to paint the premises or any
part of the building, or make any repairs, alterations or improvements in or
upon the premises or building, or any part thereof, provided it causes the
same to be removed and replaced at the Landlord's expense, whenever the said
painting, repairs, alterations or improvements shall have been completed;
(13)
12. No advertising which, in the reasonable opinion of the Landlord,
tends to impair the reputation of the building or its desirability as a loft
or office building, shall be published or caused to be published by the
Tenant and, upon notice from the Landlord, the Tenant shall refrain from or
discontinue such advertising;
13. Awnings, antennae, aerials, ventilating and air-conditioning
apparatus or other projections from the window or outside walls of the
demised premises shall not be erected or installed. All air-conditioning
apparatus installed in windows shall be so arranged that condensate does not
drain on the outside of the building wall or into the street;
14. The lights, skylights, entrances, passages, courts, elevators,
stairways, loading platforms, halls or any part of the building intended for
the use in common by the Tenant and the other occupants thereof shall not be
obstructed or encumbered (whether by means of storing of materials and skids
or otherwise). In the event of any such encumbrance or obstruction, the
Landlord may remove the material causing such encumbrance or obstruction and
cause it to be stored and charge the cost of doing so to the Tenant. No
courtyard or yard appurtenant to the premises or the building shall be used
for parking vehicles of any kind;
15. Except for the hanging of pictures and for alterations approved by
the Landlord, no part of the premises or the building shall be marked,
painted, drilled into, or in any way defaced. No laying of linoleum, or other
similar floor covering so that the same shall come in direct contact with the
floor of the demised premises shall be made; and if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening
felt shall be first affixed to the floor, by a paste or other material,
soluble in water. Cements and other similar adhesive material shall not be
used. Removal of any alterations, decorations or improvements in compliance
with paragraph Fourth of this lease shall include the removal of all
linoleum, lining and adhesive material;
16. No part of the demised premises shall be used in a manner or for a
purpose that is substantially objectionable to the Landlord or to another
tenant, or which in the reasonable judgment of the Landlord, might cause
structural injury to the building;
17. The Tenant's employees shall not stand or loiter around the
hallways, stairways, elevators, front, roof or any other part of the building
used in common by the occupants thereof;
18. No load shall be placed upon any floor of the building exceeding the
floor load per square foot area which such floor was designed to carry, and
all loads shall be evenly distributed. The Landlord reserves the right to
prescribe the weight and position of all safes, machinery and other personal
property in the premises which must be placed so as to distribute their
weight;
19. Nothing shall be thrown out of the windows or doors, or down the
passages or skylights of the buildings, nor shall any of them be covered,
obstructed or encumbered. No improper noises shall be made in the building,
nor shall birds or animals be brought therein;
20. Where freight elevators are approved by the building and are in
operation, all deliveries shall be made to or from the demised premises
exclusively by means of such elevators;
21. Any one doing janitorial work for the Tenant shall at all times be
subject to order and direction by the superintendent of the building,
although he shall not be the servant of either the superintendent or the
Landlord;
22. No peddling, soliciting or canvassing shall be permitted in the
premises or by the Tenant's employees elsewhere in the building;
23. The Landlord may prescribe, and from time to time vary, the time for
any removals or deliveries from or into the premises, at any time, and such
prescriptions shall apply whether or not the material so removed or received
is the property of the Tenant. Removals or deliveries of safes, machinery and
any other heavy or bulky matter shall be done only upon written
authorization of the Landlord and only in such manner and by such persons as
may be acceptable to the Landlord, and the Landlord may require any further
assurances or agreements or indemnity from the Tenant and the movers to that
effect. The Landlord reserves the right to inspect all freight to be brought
into the building and to exclude from the building all freight which violates
any of these Rules and Regulations or the lease of which these Rules and
Regulations are a part;
(14)
24. The Tenant shall not permit its servants, employees, agents,
visitors or licensees, at any time to bring or keep upon the premises any
inflammable, combustible or explosive fluid, chemical or substance or cause
or permit any unusual or objectionable odors to be produced upon or emanate
from the premises;
25. The passenger and service elevators, other than automatic
self-service elevators, if any, shall be operated only by employees of the
Landlord, and must not in any event be interfered with by the Tenant, his
servants, employees, agents visitors or licensees. Manned freight elevators
will be operated only during such hours as the Landlord may from time to time
determine;
26. The Tenant shall not use any other method of heating than that
supplied by the Landlord;
27. If the premises consist of basement space, or if any merchandise of
the Tenant is stored in the basement portion of the building, all such
merchandise shall, at the Tenant's own cost and expense, be placed entirely
on skids or platforms, which will raise such merchandise at lease six inches
from the floor;
28. No drilling in floors, walls or ceilings shall be done except in
compliance with paragraph Fourth of this lease and no such drilling shall be
done during usual business hours unless authorized by the Landlord in writing;
29. No vending machine shall be installed or permitted to remain in the
premises unless the Landlord shall first have given its specific written
authorization for the installation of each such machine. The Tenant shall not
authorize or permit any vendor of sandwiches, coffee, or other foods, candies
or beverages to enter the premises for the purpose of soliciting sales of
such wares to the Tenant's employees.
THE TERMS, COVENANTS AND CONDITIONS contained in the foregoing lease
shall be binding on, and shall enure to the benefit of the parties hereto,
and their respective legal representatives, successors, and assigns, but no
assignment made or purported to be made in violation of the provisions of
this lease shall vest in such assignee any right or title in or to this
lease or in or to the estate hereby created.
IN WITNESS WHEREOF, this agreement, consisting of fifteen (15)
printed pages numbered 1 to 15 and typewritten or printed rider pages bearing
clauses, numbered TENTH(a)(re-written) EIGHTEENTH(re-written) and
THIRTY-SEVENTH to FIFTY-FIRST inclusive, has been signed and sealed by the
parties hereto, the day and year first above written.
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF
TRINITY CHURCH IN THE CITY OF NEW YORK
By:
----------------------------------------------
Xxxxxx Xxxx Xxxxxxxx, Xxxxxx
Attest:
As to Landlord:
------------------------- By: /s/ Xxxxxx X. Xxxxxx
Executive Vice President ----------------------------------------------
of Real Estate Director of Leasing
By: /s/ Xxxx X. McKepney
----------------------------------------------
Finance Department
Attest: STARTEC GLOBAL COMMUNICATIONS CORPORATION
As to Tenant: ----------------------------------------------
Tenant
/s/ Illegible
------------------------- By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------(L.S.)
Senior Manager, Contracts
March 22, 1999
----------------------------------------(L.S.)
(15)
