SAGE REALTY CORPORATION, AGENT
LANDLORD
and
CORPORATE TV GROUP, INC.
TENANT
INDENTURE OF LEASE
PREMISES: Part of the 24th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
Article Page
------- ----
1 DEFINITIONS, TERM....................................................... 1
2 COMMENCEMENT OF TERM.................................................... 2
3 FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS....................... 3
A. Operating Expense Adjustment.............................. 5
B. Real Estate Tax Adjustment................................ 6
4 ELECTRICITY............................................................. 8
5 USE..................................................................... 12
6 REPAIRS, ALTERATIONS AND LIENS.......................................... 13
7 FLOOR LOAD, NOISE, WINDOW CLEANING...................................... 18
8 LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES.................... 18
9 INSURANCE, PROPERTY LOSS, REIMBURSEMENT................................. 19
10 DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE............................ 22
11 ASSIGNMENT, SUBLETTING, MORTGAGING...................................... 24
12 NO LIABILITY ON LANDLORD................................................ 30
13 MOVING OF HEAVY EQUIPMENT............................................... 30
14 CONDEMNATION............................................................ 31
15 ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING.................. 32
16 BANKRUPTCY.............................................................. 33
17 DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION.......................... 34
18 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS........................ 37
19 COVENANT OF QUIET ENJOYMENT............................................. 38
20 EXCAVATION.............................................................. 38
21 SERVICES AND EQUIPMENT.................................................. 38
22 DEFINITION OF LANDLORD.................................................. 42
23 INVALIDITY OF ANY PROVISION............................................. 42
24 BROKER.................................................................. 43
i
25 SUBORDINATION........................................................... 43
26 ESTOPPEL CERTIFICATE.................................................... 44
27 LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL................................. 45
28 SURRENDER OF PREMISES/HOLDOVER.......................................... 47
29 RULES AND REGULATIONS................................................... 48
30 NOTICES................................................................. 48
31 NO WAIVER: ENTIRE AGREEMENT............................................. 49
32 CAPTIONS................................................................ 50
33 INABILITY TO PERFORM.................................................... 50
34 NO REPRESENTATION BY LANDLORD........................................... 50
35 NAME OF BUILDING........................................................ 51
36 SUCCESSORS AND ASSIGNS.................................................. 51
37 DEFERRED COLLECTIONS.................................................... 51
38 FEES/INTEREST/LATE CHARGES.............................................. 51
39 ABATEMENT OF RENT....................................................... 52
40 TENANT'S EXPANSION OPTION............................................... 52
41 TENANT'S TERMINATION OPTION............................................. 55
Schedule A Floor Plan
Schedule B Work Letter
Schedule C Rules and Regulations
Schedule D Cleaning Specifications
ii
INDENTURE OF LEASE made as of this ____ day of July 1996, between SAGE
REALTY CORPORATION, a New York corporation having its principal office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Agent for the owner of the Building
hereinafter mentioned (herein "Landlord"), and CORPORATE TV GROUP, INC., a New
York corporation having its office at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (herein "Tenant").
W I T N E S S E T H:
ARTICLE 1
DEFINITIONS, TERM
Section 1.01. The terms defined in this Article shall, for all purposes
of this Lease and all agreements supplemental thereto, have the meanings herein
specified unless the context otherwise requires.
(a) "Building" shall mean the office building known as 000
Xxxxx Xxxxxx, in the Borough of Manhattan, City and State of New York. The plot
of land on which the Building is erected is hereinafter called the "Land."
(b) "Business Days" shall mean all days excluding Saturdays,
Sundays and days observed by the State of New York or Federal Government as
legal holidays, and further excluding holidays established by any union contract
applicable to employees at the Building.
(c) "Commencement Date" shall have the meaning set forth in
Section 2.02.
(d) "Demised Premises" shall mean a portion of the
twenty-fourth (24th) floor of the Building, as shown on the Floor Plan annexed
hereto as Schedule A and made a part of this Lease, including all fixtures and
equipment which at the Commencement Date or during the Term of this Lease are
attached thereto and which become a part thereof.
(e) "Expiration Date" shall mean the last day of the month in
which occurs the day which is ten (10) years and seven (7) months following the
Commencement Date, or any sooner date of termination pursuant to the provisions
hereof.
(f) "Fixed Rent" shall mean the annual rental payable by
Tenant for the Demised Premises in equal monthly installments as provided for in
Article 3 of this Lease.
(g) "Interest Rate" shall mean the lesser of (i) 2% above the
prime commercial lending rate of Marine Midland Bank, N.A. in effect from time
to time or (ii) the maximum applicable legal rate, if any.
- 2 -
(h) "Landlord's Work" shall mean the work agreed to be done by
Landlord in the Demised Premises as provided for in Schedule B hereof.
(i) "Lease" shall mean this Indenture of Lease and any and all
Schedules annexed hereto.
(j) "Term of this Lease" and "Term" shall mean the term of
years commencing on the Commencement Date and expiring on the Expiration Date,
subject to the terms and conditions hereinafter set forth.
Section 1.02. Landlord hereby leases to Tenant, and Tenant hereby rents
from Landlord, the Demised Premises, subject to the provisions hereinafter set
forth, together with appurtenances, including the right to use in common with
others the lobbies, elevators and other public portions of the Building.
TO HAVE AND TO HOLD unto Tenant, its successors and permitted assigns,
for the Term of this Lease or until the Term of this Lease sooner terminates as
hereinafter provided.
ARTICLE 2
COMMENCEMENT OF TERM
Section 2.01. Tenant acknowledges that it has examined the Demised
Premises and is taking same "as is" as of the Commencement Date. Tenant
acknowledges that Landlord is not required to do any work with respect thereto,
except as set forth in Schedule B hereof.
Section 2.02. The Term of this Lease and the payment of rent shall
commence on the date that the Demised Premises shall be "substantially
completed" as defined in Schedule B (herein the "Commencement Date"). Promptly
after the Commencement Date, Landlord and Tenant agree to execute an agreement
("Commencement Date Agreement") in form and substance satisfactory to Landlord
setting forth, among other things, the Commencement Date and the Expiration Date
of this Lease.
The taking of possession by Tenant of the Demised Premises shall be
deemed an acceptance of same by Tenant and shall be conclusively deemed
Substantial Completion (as defined in Schedule B) of Landlord's Work. Such
taking of possession shall also be conclusive evidence, as against Tenant, that
the Demised Premises and the Building of which the same form a part were in good
and satisfactory condition at the time of such occupancy and that the Demised
Premises were substantially as shown on Schedule A. Landlord shall, however,
thereafter complete any "punchlist" items required for completion of Landlord's
Work as described in Schedule B.
- 3 -
Section 2.03. If Landlord shall be unable to give possession of the
Demised Premises on the date anticipated for the commencement of the Term hereof
for any reason whatsoever, Landlord shall not be subject to any liability, nor
shall the validity of this Lease nor the obligations of Tenant hereunder be
thereby affected. Landlord shall use diligent efforts to substantially complete
the work necessary to deliver possession of the Demised Premises promptly,
subject to any delays beyond the reasonable control of Landlord. In the event
that Landlord's Work shall not be deemed substantially complete on or before
November 30, 1996 (the "Outside Completion Date") (subject to extension for a
period of three (3) months in the aggregate by reason of force majeure [set
forth immediately below]), Tenant may cancel and terminate this Lease by giving
notice thereof to Landlord on or prior to the Outside Completion Date, in which
event this Lease shall terminate upon the giving of such notice, and the parties
hereto shall have no further liabilities or obligations to each other hereunder.
Any delay in Landlord's substantial completion of Landlord's Work caused by
labor trouble, governmental controls, act of God, or any other cause beyond
Landlord's reasonable control shall extend such time period for Landlord to
substantially complete Landlord's Work and give possession of the Demised
Premises to Tenant. Without limiting the foregoing, the parties hereto expressly
negate the provisions of Section 223-a of the Real Property Law and agree that
such Section shall be inapplicable hereto. Tenant agrees that the provisions of
this Article are intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a. If by reason of such delay, the Term of
this Lease shall commence subsequent to such anticipated date, the Term of this
Lease shall be deemed extended for the same period.
ARTICLE 3
FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS
Section 3.01. During the Term of this Lease, Tenant shall pay, at
Landlord's address as herein set forth, or at such other address that Landlord
may from time to time designate, a Fixed Rent payable in lawful money of the
United States of America (by check of Tenant drawn on a bank that is a member of
the New York Clearinghouse Association) in equal monthly installments in advance
on the first day of each calendar month, without notice or demand, and without
setoff or deduction whatsoever at annual rates as follow (subject to adjustment
pursuant to Article 4 hereof):
(a) $143,024.10 during the period beginning on the
Commencement Date and continuing through the day prior to the fifth (5th)
anniversary of the Commencement Date;
- 4 -
(b) $151,462.10 during the period beginning on the fifth (5th)
anniversary of the Commencement Date and continuing through the balance of the
Term.
If Tenant's obligation to pay Fixed Rent shall commence on a
date other than the first day of a calendar month, the first installment of
Fixed Rent shall be in an amount equal to that required to cover the period up
to and including the last day of the month wherein the obligation to pay Fixed
Rent occurs, computed on a per diem basis.
Section 3.02. The Fixed Rent does not take into account increases of
real estate taxes and/or expenses during the Term of this Lease or other
adjustments in rent, or other payments to be made by Tenant, during the Term of
this Lease. Provision therefor is hereinafter made.
Section 3.03. All costs, expenses, adjustments and payments which
Tenant is obligated to pay to Landlord pursuant to this Lease and/or its
Schedules shall be deemed additional rent whether or not denominated as such
and, in the event of nonpayment thereof, Landlord shall have all rights and
remedies with respect thereto as herein provided for in case of nonpayment of
Fixed Rent.
Tenant covenants and agrees to pay the Fixed Rent and additional rent
as in this Lease provided, when due.
Section 3.04. For the purposes of this Section 3.04, the following
definitions shall apply:
(a) The term "Base Tax Year" as hereinafter set forth for the
determination of real estate tax escalation shall mean the period commencing on
July 1, 1996 and ending on June 30, 1997.
(b) The term "the Percentage" shall mean 1.17%.
(c) The term "Real Estate Taxes" shall mean all real estate
taxes, assessments, water and sewer rents, governmental levies, county taxes or
any other governmental charges, general or special, ordinary or extraordinary,
unforeseen as well as foreseen, of any kind or nature whatsoever, which are or
may be assessed or imposed upon the Land, the Building and the sidewalks, plazas
or streets in front of or adjacent thereto, including any tax, excise or fee
measured by or payable with respect to any rent, and levied against Landlord
and/or the Land and/or Building, under the laws of the United States, the State
of New York, or any political subdivision thereof, or by the City of New York,
or any political subdivision thereof. If, due to a future change in the method
of taxation or in the taxing authority, a franchise, income, transit, profit or
other tax or governmental imposition, however designated, shall
- 5 -
be levied against Landlord, and/or the Land and/or the Building, in substitution
in whole or in part for said Real Estate Taxes, or in lieu of additional real
estate taxes, then such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the definition of
"Real Estate Taxes" for the purposes hereof. In the event that the Real Estate
Taxes for the Base Tax Year shall include any charge with respect to any so
called "Business Improvement District" or similar charge (a "Bid Charge"), and
if any such Bid Charge is subsequently discontinued or eliminated, then, as of
the date of such discontinuance or elimination, the Real Estate Taxes for the
Base Tax Year shall be recalculated as if the Bid Charge had not originally been
included therein.
(d) The term "Tax Year" shall mean every twelve- month
consecutive period commencing each July 1st during the Term of this Lease.
(e) The term "Wage Rate" shall mean the minimum regular hourly
wage rate plus all other sums, including, but not limited to, sums paid for
pensions, welfare funds, vacations, bonuses, social security unemployment,
disability benefits, health, life, accident and other type of insurance required
to be paid to or for the benefit of employees engaged in the general maintenance
and operation of office buildings of the type in the vicinity of the Building
pursuant to a collective bargaining agreement (designated as "Others" in said
agreement) between Realty Advisory Board on Labor Relations, Inc. (or any
successor thereto) and Local 32B/32J of the Building Service Employees
International Union AFL-CIO (or any successor thereto). The Wage Rate is
intended to be an index in the nature of a cost of living index, and is not
intended to reflect the actual costs of wages or expenses for the Building. If
any such agreement is not entered into, or such parties or their successors
shall cease to bargain collectively, then the Wage Rate shall be the minimum
regular hourly wage rate and other sums as aforesaid payable to or for the
benefit of employees engaged in the maintenance and operation of first class
office buildings of the same general type as the Building in the Manhattan area.
(f) The term "Base Wage Rate" shall mean the Wage Rate in
effect on January 1, 1996.
(g) The term "Wage Rate Factor" shall mean 4,219.
A. Operating Expense Adjustment
It is agreed that if at any time the Wage Rate shall be greater than
the Base Wage Rate, Tenant shall be required to pay to Landlord as additional
rent an "Operating Expense Adjustment" in an annual sum equal to the product
obtained by multiplying (i) the number of cents (including any fraction of a
cent) by which the Wage Rate exceeds the Base Wage Rate by (ii) the Wage Rate
- 6 -
Factor by (iii) 75%. Such Operating Expense Adjustment shall be payable to
Landlord together with Fixed Rent in equal monthly installments on the first day
of each calendar month commencing with the first month during the Term of this
Lease in which the Wage Rate shall be greater than the Base Wage Rate and, as
billed by Landlord, continuing thereafter until a new adjustment in the
additional rent shall be established and become effective in accordance with the
provisions of this paragraph. Notwithstanding any change in Wage Rate downwards,
the Fixed Rent shall not be reduced. In the event any change in the Wage Rate
shall be made retroactive, Tenant shall pay Landlord the amount of any resulting
retroactive adjustment in such additional rent within fifteen (15) days after
being billed therefor.
B. Real Estate Tax Adjustment
In the event that the Real Estate Taxes payable for any Tax Year shall
exceed the amount of such Real Estate Taxes, as finally determined, payable with
respect to the Base Tax Year, Tenant shall pay to Landlord, as additional rent
("Tenant's Tax Payment") for such Tax Year, an amount equal to the Percentage of
the excess. By or after the start of the Tax Year following the Base Tax Year,
and by or after the start of each Tax Year thereafter, Landlord shall furnish to
Tenant a statement of the Real Estate Taxes payable with respect to such Tax
Year, and a statement of the Real Estate Taxes payable during the Base Tax Year.
Within thirty (30) days after the issuance by the governmental
authority having jurisdiction thereover of tax bills for Real Estate Taxes
assessed, levied and/or imposed upon the Land and Building for any Tax Year,
Landlord shall submit to Tenant a photostatic copy of such xxxx and/or bills and
thereafter on or about each respective anniversary date shall submit a copy of
the tax xxxx and/or bills for the Real Estate Taxes assessed, levied or imposed
upon the Land and Building for such Tax Year, together with a statement which
shall indicate the amount, if any, of Tenant's Tax Payment. Landlord's failure
to submit copies of bills as aforesaid shall not be considered a default by
Landlord or a defense by Tenant to such tax payment.
Within thirty (30) days after the issuance of the statement, Tenant
shall pay Tenant's Tax Payment in the amount set forth on such statement. Such
statement shall be conclusively deemed binding upon Tenant unless Tenant shall
have objected thereto in writing within thirty (30) days of receipt thereof.
In the event Landlord shall receive a final reduction or refund of Real
Estate Taxes for any Tax Year for which Tenant is obligated to pay any
additional rent under the provisions of this subsection B of Section 3.04, the
amount or the proceeds of such reduction or refund, less legal fees and other
expenses
- 7 -
incurred in collecting the same or achieving such reduction, shall be applied
and allocated to the periods for which such final reduction or refund was
obtained, and proper adjustment shall be made between Landlord and Tenant and if
such refund or reduction shall be received following the Expiration Date,
Landlord shall pay to Tenant the amount of such adjustment, as determined above,
promptly following Landlord's receipt of such refund or reduction. Tenant has
been advised that proceedings to protest the Real Estate Tax Assessment for the
Base Tax Year may have been filed and may result in a reduction of Real Estate
Taxes for the Base Tax Year.
Any payments or refunds due hereunder for any period of less than a
full Tax Year at the commencement or end of the Term of this Lease shall be
equitably prorated to reflect such event.
In addition to Tenant's obligation to pay Tenant's Tax Payment as
aforesaid, Tenant shall pay to Landlord as additional rent payable upon demand,
any occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
Section 3.05. Upon the date of the expiration or any sooner termination
of this Lease, whether the same be the date hereinabove set forth as the
expiration of the Term of this Lease or any prior or subsequent date, a
proportionate share of the Fixed Rent, adjustments and additional rents for the
year (calendar or fiscal) in which such expiration or termination occurs, shall
immediately become due and payable by Tenant to Landlord as hereinafter
provided, if not theretofore already billed and paid. Such proportionate share
shall be based upon the length of time that this Lease shall have been in
existence during such year. Promptly after any such expiration or termination,
Landlord shall compute the amounts due from Tenant, as aforesaid, which
computations shall either be based on that year's actual figures or be an
estimate based on the most recent statements theretofore prepared by Landlord
and furnished to Tenant pursuant to this Lease. If an estimate is used, then
Landlord shall promptly cause statements to be prepared on the basis of the
comparative year's actual figures as soon as they are available, and within ten
(10) days after such statement or statements are prepared by Landlord and
furnished to Tenant, Landlord and Tenant shall make appropriate adjustments of
any estimated payments theretofore made.
Tenant's obligation to pay any and all rents, adjustments and
additional rents under this Lease shall continue and shall cover all periods up
to the Expiration Date. Landlord's and Tenant's obligations to make the
adjustments hereinabove referred to shall survive any expiration or termination
of this Lease. Any delay or failure of Landlord in billing any Fixed Rent or
additional rent herein provided for shall not constitute a waiver of or in any
way impair the
- 8 -
continuing obligation of Tenant to pay such rent adjustments hereunder.
ARTICLE 4
ELECTRICITY
Section 4.01. The Fixed Rent reserved in this Lease includes the agreed
sum of $12,235.10 per annum in consideration of which Landlord, as an additional
service, will supply Tenant with electricity for normal use in the Demised
Premises between the hours 9:00 A.M. and 5:30 P.M. on Business Days. If
Landlord's electric rates (i.e., the public utility rate schedule at the time in
question, including all surcharges, taxes, fuel adjustments, taxes regularly
passed on to consumers by the public utility, and other sums payable in respect
thereof for the supply of electric energy to Landlord for the Building) are
increased, the Fixed Rent reserved in this Lease shall be adjusted by applying
to the sum specified above, the same percentage as such rate increase, and such
adjusted Fixed Rent shall be billed by Landlord to Tenant, with effect as of the
date of the increase of Landlord's electric rate. Landlord shall not be liable
in any way to Tenant for any failure or defect in the supply or character of
electric energy furnished to the Demised Premises by reason of any requirement,
act or omission of the public utility serving the Building with electricity or
for any other reason not attributable to the Landlord. At Landlord's option,
Tenant shall purchase from the Landlord or Landlord's agent all lighting tubes,
lamps, bulbs and ballasts used in the Demised Premises and Tenant shall pay
Landlord's reasonable charges for providing and installing same on demand, as
additional rent.
Section 4.02. Tenant's use of electric energy in the Demised Premises
shall not at any time exceed the capacity of any of the electrical conductors,
machinery and equipment in or otherwise serving the Demised Premises. In order
to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building electric service, Tenant shall not, without Landlord's
prior written consent in each instance, connect any additional fixtures,
machinery, appliances or equipment to the Building electric distribution system
or make any alteration or addition to Tenant's machinery, appliances or
equipment, or the electric system of the Demised Premises existing on the
Commencement Date. Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be provided by Landlord, and the cost
thereof shall be paid by Tenant upon Landlord's demand. As a condition to
granting such consent, Landlord may require Tenant to agree to an increase in
the Fixed Rent by an amount which will reflect the value to Tenant of the
additional service to be furnished by Landlord, that is, the potential
additional electrical energy to be made available to Tenant based upon the
estimated additional capacity of such additional risers or other equipment. If
- 9 -
Landlord and Tenant cannot agree on the amount of such increase, Tenant shall
nevertheless pay the same as billed until such amount shall be determined by an
independent utility consultant to be selected by Landlord and paid equally by
Landlord and Tenant. The determination of the consultant shall be binding upon
the parties. When the amount of such increase is so determined, the parties
shall execute an agreement supplementary hereto to reflect such increase in the
amount of the Fixed Rent stated in this Lease and in the amount set forth in
Section 4.01, effective from the date such additional service is made available
to Tenant, but such increase shall be effective from such date even if such
supplementary agreement is not executed.
Section 4.03. If there shall be an increase in the space
constituting the Demised Premises, or if Tenant's failure to maintain its
machinery and equipment in good order and repair causes greater consumption of
electrical current, or if Tenant uses electricity on days or hours other than
those specified in Section 4.01, or if Tenant adds any machinery, appliances or
equipment requiring additional electrical current, the Fixed Rent herein
reserved shall be increased accordingly. The amount of such increase shall be
billed by Landlord to Tenant, effective as of the date of the increased usage.
Such sum shall be due, and shall be paid by Tenant, as additional rent hereunder
at the time billed. If Tenant disputes the amount of such increase, Tenant shall
nevertheless pay the same as billed, and the amount shall be determined by an
independent utility consultant to be selected by Landlord and paid equally by
Landlord and Tenant. The determination of the consultant shall be binding upon
the parties.
Section 4.04. Landlord reserves the right to discontinue furnishing
electric energy to Tenant in the Demised Premises at any time upon not less than
thirty (30) days' notice to Tenant. If Landlord exercises such right of
termination, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
termination, Landlord shall not be obligated to furnish electric energy to
Tenant and the Fixed Rent under this Lease shall be reduced by the amount set
forth in Section 4.01, plus or minus the amount of any change pursuant to
Sections 4.01, 4.02, 4.03 and 4.05. If Landlord so discontinues furnishing
electric energy to Tenant, Tenant shall arrange to obtain electric energy
directly from the public utility company furnishing electric service to the
Building. Such electric energy may be furnished to Tenant by means of the then
existing building system feeders, risers and wiring to the extent that the same
are available, suitable and safe for such purposes. All meters and additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electric energy directly from such public utility
company shall be installed and maintained by Tenant at its expense.
- 10 -
Section 4.05. Tenant covenants and agrees that at no time will the
connected electrical load serving the Demised Premises exceed 5 xxxxx per square
foot. Should Landlord consent to an increase in the connected electrical load,
as a condition to granting such consent, Landlord may require Tenant to agree to
an increase in the Fixed Rent by an amount which will reflect the value to
Tenant of the additional connected electrical load. If Tenant disputes the
amount, Tenant shall nevertheless pay the same as billed, and the amount shall
be determined by an independent utility consultant to be selected by Landlord
and paid equally by Landlord and Tenant. The determination of the consultant
shall be binding upon the parties.
Section 4.06. If any tax is imposed upon Landlord with respect to
electrical energy furnished as a service to Tenant by any Federal, State or
Municipal Authority, Tenant covenants and agrees that where permitted by law or
applicable regulations, Tenant's pro rata share of such taxes shall be
reimbursed by Tenant to Landlord.
Section 4.07. (a) Landlord, at its sole cost and expense, shall have
the right to procure periodic surveys made by an independent utility consultant
selected by Landlord. If such utility consultant determines that there has been
(i) an increase in Tenant's use of electrical current or (ii) the amount set
forth in Section 4.01 is insufficient, then, the amount set forth in Section
4.01 shall be adjusted and in addition to the other requirements and obligations
imposed on Tenant in this Article, and notwithstanding the provisions of the
first sentence of this Section 4.07(a), Landlord and Tenant shall equally pay
the fees of the utility consultant making such survey. The findings of such
utility consultant shall be binding and conclusive upon the parties.
(b) If Tenant wishes to dispute any determination of the additional
rental value of electricity service to the Demised Premises on the basis of any
survey made pursuant to Section 4.07(a) or as otherwise determined pursuant to
Sections 4.02 and 4.03 hereof, it shall notify Landlord to such effect within
thirty (30) days after receipt of written notice of such determination. Unless
and until such dispute is determined in Tenant's favor, Tenant shall pay the
Fixed Rent as computed in accordance with such determination. The dispute shall
be determined in the following manner: Tenant shall retain an independent
electrical engineer or consultant ("Tenant's Consultant") to review Landlord's
survey or other basis of Landlord for such determination, as the case may be,
and, if deemed advisable, to make an independent survey. Not later than thirty
(30) days after Tenant shall have given Landlord the notice of dispute, Tenant
shall deliver to Landlord (i) Tenant's Consultant's comments on Landlord's
survey or on Landlord's other basis for such determination, and/or (ii) Tenant's
Consultant's survey. Landlord shall refer such comments and/or survey to the
- 11 -
consultant who prepared the original survey or to its electrical consultant
("Landlord's Consultant") who shall meet with Tenant's Consultant for the
purpose of reaching agreement upon the additional rental value of the
electricity service to the Demised Premises. If they are unable to reach such
agreement within thirty (30) days after the delivery of such comments or report,
Landlord's Consultant and Tenant's Consultant shall appoint a disinterested
third electrical consultant, who shall, within twenty (20) days thereafter,
resolve whatever differences may remain between Landlord's Consultant and
Tenant's Consultant and on the basis of such resolution determine the additional
rental value of the electricity service to the Demised Premises. If Landlord's
Consultant and Tenant's Consultant are unable to agree upon a disinterested
third electrical consultant within the thirty (30) day period above specified
for agreement between Landlord's Consultant and Tenant's Consultant, and if the
parties are unable to agree upon such a third electrical consultant within ten
(10) days thereafter, either party, upon written notice to the other, may apply
for the appointment of such a third electrical consultant to the President of
the Real Estate Board of New York, Inc. or any organization successor thereto,
or in his absence or refusal or failure to act, to the Supreme Court of the
State of New York in the County of New York. The fees and expenses of Landlord's
Consultant shall be borne entirely by Landlord. The fees and expenses of
Tenant's Consultant shall be borne entirely by Tenant. The fees and expenses of
the disinterested third electrical consultant shall be shared equally by
Landlord and Tenant. If and to the extent that the additional rental value of
the electricity service to the Demised Premises shall be so determined to be
less than the value originally determined by Landlord's Consultant, the amount
of the resulting overpayment of the Fixed Rent shall be refunded by Landlord to
Tenant on Tenant's demand therefor.
Section 4.08. Notwithstanding the aforesaid provisions of this Article,
if, pursuant to an action of the Public Service Commission of the State of New
York, or otherwise, submetering of electricity is permitted at the Building,
then Landlord shall have the option, at Landlord's sole cost and expense, of
installing submeters to measure Tenant's electricity consumption. Upon
installation of the submeters, Tenant's electricity consumption and demand shall
be measured by said submeters, and Tenant agrees to purchase such electricity
from Landlord or Landlord's designated agent at Landlord's electric rates, plus
ten (10%) percent thereof to reimburse Landlord for administrative services in
connection with supplying and billing such electricity and for line loss. All
such sums shall be paid by Tenant to Landlord as additional rent hereunder. If
more than one meter measures the electricity consumption and demand of Tenant in
the Building, the service rendered through each meter shall be aggregated and
billed in accordance with the above rate classification, unless Landlord shall
elect separate billing on a per-meter basis. Landlord may at any time render
bills for
- 12 -
Tenant's consumption and demand and Tenant shall pay the same within thirty (30)
days following the date the same are rendered. If Landlord exercises such right
of submetering, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
submetering, the Fixed Rent under this Lease shall be reduced by the amount set
forth in Section 4.01, plus or minus the amount of any change pursuant to
Sections 4.01, 4.02, 4.03 and 4.05, and Tenant shall purchase electric energy
pursuant to this Section 4.08.
ARTICLE 5
USE
Section 5.01. Tenant shall use and occupy the Demised Premises for
administrative, executive and general business office purposes only and for no
other purposes.
Section 5.02. Tenant shall not suffer or permit the Demised Premises or
any part thereof to be used in any manner, or suffer or permit anything to be
done therein, or suffer or permit anything to be brought into or kept in the
Demised Premises which would in any way (i) violate any law or requirement of
public authorities, (ii) cause structural injury to the Building or any part
thereof, (iii) interfere with the normal operation of the heating,
air-conditioning, ventilating, plumbing or other mechanical or electrical
systems of the Building or the elevators installed therein, (iv) constitute a
public or private nuisance, or (v) alter the appearance of the exterior of the
Building or of any portion of the interior thereof other than the Demised
Premises.
Section 5.03. Tenant shall not, without the prior written consent of
Landlord (which shall not be unreasonably withheld or delayed), allow a
"Servicing Company" (defined below) to install any telephone, data, information
or other communications equipment in the Demised Premises to service premises
occupied by persons other than Tenant (and its subtenants, if any) and/or its
affiliates. For example, the Demised Premises may not be used as a so-called
"switching" or "relay" station serving third parties (that is, parties other
than Tenant, its subtenants, if any, and its affiliates) without such consent by
Landlord. In granting such consent, Landlord may require that the Servicing
Company enter into a license agreement with Landlord confirming that the
Servicing Company shall have no independent rights in the Demised Premises and
that upon termination of this Lease, for whatever reason, the Servicing Company
will have no right to leave its equipment in the Demised Premises. Landlord may
make a reasonable charge to the Servicing Company for allowing it to install its
equipment in the Demised Premises. A "Servicing Company" shall mean a person,
firm, corporation or other entity other than Tenant whose equipment
- 13 -
services not only the Demised Premises, but other premises or parties as well.
ARTICLE 6
REPAIRS, ALTERATIONS AND LIENS
Section 6.01. Tenant shall take good care of the Demised Premises and
the fixtures and appurtenances and equipment therein and, at its sole cost and
expense, make all repairs thereto as and when needed to preserve the aforesaid
in good working order and condition (other than structural repairs and repairs
to the plumbing, wiring and other Building equipment for the general supply of
water, heat, air-conditioning, gas and electricity which are not caused by the
carelessness, omission, neglect, improper conduct or other cause of Tenant, its
servants, employees, agents, visitors or licensees). All damage or injury to the
Demised Premises and to its fixtures, appurtenances and equipment or to the
Building of which the same form a part, or to its fixtures, appurtenances and
equipment caused by Tenant moving property, or resulting from any
air-conditioning unit or system, any short circuit, flow or leakage of water,
steam, illuminating gas, sewer gas, sewerage or odors, or by frost or by
bursting or leaking of pipes or plumbing works or gas, or from any other cause
of any other kind or nature whatsoever due to carelessness, omission, neglect,
improper conduct or other cause of Tenant, its servants, employees, agents,
visitors or licensees, shall be repaired, restored or replaced promptly by
Tenant, at its sole cost and expense, to the satisfaction of Landlord exercised
in good faith. If Tenant fails to make such repairs, restorations or
replacements, same may be made by Landlord at the expense of Tenant and any
costs therefor shall be collectible as additional rent or otherwise, and shall
be paid by Tenant within fifteen (15) days after rendition of a xxxx or
statement therefor.
Section 6.02. Landlord shall, at its expense, make all repairs and
replacements, structural and otherwise, necessary in order to maintain and keep
in good order and repair the exterior of the Building and the public portions of
the Building, the need for which Landlord shall have knowledge (including the
public halls and stairways, fire safety system, plumbing, wiring and other
Building equipment for the general supply of water, heat, air-conditioning, gas
and electricity) except repairs hereinabove provided to be made by Tenant and
repairs, the need for which Tenant has not reported to Landlord. Landlord hereby
covenants to maintain the Building and the public portions thereof in a manner
consistent with other first-class buildings in Midtown Manhattan.
Section 6.03. All repairs, restorations or replacements by either party
shall be of first-class quality and done in good and workmanlike manner. Tenant
shall, and shall include in all contracts, subcontracts and purchase orders, a
- 14 -
requirement that such contractors, subcontractors or materialmen, as the case
may be, shall, cause all workers at the Demised Premises to work harmoniously
with each other and with Building personnel and in a manner which will not
disrupt access to or use of the common areas of the Building, cause
inconvenience to the other tenants in the Building or interfere with the conduct
of other tenants' business. Tenant agrees that should Tenant, its agents and/or
contractors, enter upon the Demised Premises for the purpose of performing any
work, the labor employed by Tenant or anyone performing such work, for or on
behalf of Tenant, shall always be harmonious and compatible with the labor
employed by Landlord or any contractors or subcontractors of Landlord. Should
such labor be unharmonious or incompatible, Landlord may require Tenant to
withdraw such labor from the Demised Premises. In the event Tenant or Tenant's
contractor shall enter upon the Demised Premises or any other part of the
Building, Tenant agrees to indemnify and save Landlord free and harmless, from
and against any and all claims whatsoever arising out of said entry or such
work. Tenant's agents and contractors and their employees shall comply with the
special rules, regulations and requirements of Building management with respect
to the performance and coordination of said agents, contractors and their
employees so as to avoid intrusion into the operation of the Building and to
avoid disturbing the quiet enjoyment of other tenants.
Section 6.04. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk adjacent to the Building.
Section 6.05. Tenant shall do no work and shall make no alterations,
decorations, installations, additions or improvements in or to the Demised
Premises, including, but not limited to, installation of a water cooler, an
air-conditioning or cooling system unit or part thereof, or other apparatus of
like or other nature without Landlord's prior written consent which consent
shall not be unreasonably withheld or delayed in the case of alterations,
decorations, installations, additions or improvements in the Demised Premises
which are non-structural in nature and do not affect the structure, exterior or
common areas at the Building or adversely affect the functioning of the heating,
ventilating or air-conditioning, electrical, mechanical, plumbing or elevator
systems of the Building or other tenants' use thereof, and then only by
contractors or mechanics approved by Landlord. Such approval must be obtained
prior to any bidding for said work. All such work, alterations, decorations,
installations, additions or improvements shall be done at Tenant's sole expense
and at such times and in such manner as Landlord may from time to time designate
and in full compliance with all governmental bodies having jurisdiction
thereover. Tenant's work, alterations, decorations, installations, additions or
improvements shall be completed free of all liens and
- 15 -
encumbrances and, as a condition precedent to Landlord's consent to the making
by Tenant of alterations, decorations, installations, additions or improvements
to the Demised Premises, Tenant agrees to obtain, and deliver to Landlord,
written and unconditional waivers of mechanics' liens upon the real property in
which the Demised Premises are located, for all work, labor and services to be
performed and materials to be furnished by them in connection with such work,
signed by all contractors, subcontractors, materialmen and laborers to become
involved in such work. As a condition to Landlord's permission to Tenant to make
any of Tenant's installations in the Demised Premises prior to the Commencement
Date, Landlord may require that Tenant agree with Landlord to fixing the
Commencement Date of this Lease.
Landlord shall not be liable for any failure of the air-conditioning
and ventilating equipment in the Demised Premises installed by Landlord caused
by any work, alterations, decorations, installations, additions or improvements
by Tenant, and Tenant shall correct any such condition causing such failure
promptly upon notice from Landlord of the need therefor. If Tenant shall fail to
correct same, Landlord may make such correction and charge Tenant for the cost
thereof. Such sum due Landlord shall be deemed additional rent and shall be paid
by Tenant promptly upon being billed therefor.
Section 6.06. Prior to commencing any work pursuant to the provisions
of Section 6.05, Tenant shall furnish to Landlord:
(i) Copies of all governmental permits and authorizations which may be
required in connection with such work.
(ii) A certificate evidencing that Tenant (or Tenant's contractors) has
(have) procured workers' compensation insurance covering all persons employed in
connection with the work who might assert claims for death or bodily injury
against Landlord, "Overlandlord" (as hereinafter defined), Tenant or the
Building.
(iii) Such additional personal injury and property damage insurance
(over and above the insurance required to be carried by Tenant pursuant to the
provisions of Article 9) as Landlord may reasonably require because of the
nature of the work to be performed by Tenant.
Section 6.07. All work, alterations, decorations, installations,
additions or improvements upon the Demised Premises made by either party,
including all paneling, decorations, partitions, railings, mezzanine floors,
galleries and the like, affixed to the realty or for which Tenant shall have
received a credit or contribution shall, unless Landlord elects otherwise (which
election shall be made by giving a notice pursuant to the provisions of Article
30 not less than thirty
- 16 -
(30) days prior to the expiration or other termination of this Lease or any
renewal or extension thereof) become the property of Landlord and shall remain
upon, and be surrendered with the Demised Premises as a part thereof at the end
of the Term or renewal or extension term, as the case may be. In the event that
Landlord shall elect otherwise, then such alterations, decorations,
installations, additions or improvements made by Tenant upon the Demised
Premises which are atypical of an ordinary office installation (atypical shall
be deemed to include, but not be limited to, a raised floor, louvered windows,
any kitchen facility, any vault and any audio or video installation), as
Landlord shall select shall be removed by Tenant, and Tenant shall restore the
Demised Premises to its original condition, at its own cost and expense, at or
prior to the expiration of the Term.
Where furnished by or at the expense of Tenant (except where same is a
replacement of an item theretofore furnished and paid for by Landlord or against
which Tenant has received a credit or contribution from Landlord), all movable
property, furniture, furnishings and trade fixtures other than those affixed to
the realty so that they cannot be removed without material damage shall remain
the property of Tenant and shall be removed from the Demised Premises on or
before the Expiration Date. In the event of damage to the Demised Premises or
the Building by reason of such removal, Tenant shall restore the same to good
order and condition (normal wear and tear excepted). If Tenant should desire to
leave any part of such property in the Demised Premises upon the expiration of
the Term, it shall so notify Landlord in writing not less than thirty (30) days
prior to the expiration of the Term, specifying the items of property which it
desires to so leave. If within fifteen (15) days after the service of such
notice Landlord shall request Tenant to remove any of the said property, Tenant
shall, at its expense, at or before the expiration of the Term, remove said
property and, in case of damage to the Demised Premises or the Building by
reason of such removal, restore the Demised Premises to good order and condition
(normal wear and tear excepted).
Section 6.08. Landlord shall not be responsible for supervision and/or
coordination in respect to Tenant's activities pursuant to this Lease.
Landlord's managing agent shall perform such supervision and coordination and,
with respect to any work, alteration, decoration, addition or improvement
costing more than $15,000, Tenant agrees to pay such managing agent, promptly
upon being billed therefor, a sum equal to ten (10%) percent of the cost of such
work for indirect costs, field supervision and coordination in connection
therewith. Tenant agrees to keep records of Tenant's work, alterations,
decorations, additions and improvements costing in excess of $15,000 and of the
cost thereof. Tenant agrees to furnish to Landlord's managing agent copies of
such records certified as correct by Tenant within
- 17 -
forty-five (45) days after Landlord's managing agent's request therefor.
Section 6.09. Tenant will not do any act or suffer any act to be done
which will in any way encumber the title of Landlord or Tenant in and to the
Demised Premises or the Building or the Land, nor will the interest or estate of
Landlord or Tenant in the Demised Premises or the Building or the Land be in any
way subject to any claim by way of lien or encumbrance, whether by operation of
law or by virtue of any express or implied contract by Tenant.
Section 6.10. Tenant will not suffer or permit any liens to stand
against the Demised Premises, the Building or the Land or any part thereof, by
reason of any work, labor, services or materials done for, or supplied to, or
claimed to have been done for, or supplied to, Tenant, or anyone holding the
Demised Premises or any part thereof through or under Tenant. If any such lien
is at any time filed against the Demised Premises or the Building or the Land,
Tenant will cause the same to be discharged of record within thirty (30) days
after the date of filing of the same, by either payment, deposit or bonding (and
the failure of Tenant to do so shall be a material default hereunder entitling
Landlord to give a notice to Tenant pursuant to the provisions of Section
17.01(1) hereof). In addition to any other right or remedy of Landlord, Landlord
may, but will not be obligated to, procure the discharge of such lien either by
paying the amount claimed to be due by deposit in court or bonding, and/or
Landlord will be entitled, if Landlord so elects, to compel the prosecution of
an action for the foreclosure of such lien by the lienor and to pay the amount
of the judgment, if any, in favor of the lienor with interest computed at the
Interest Rate, costs and allowances. Any amount paid or deposited by Landlord
for any of the aforesaid purposes, and all legal and other expenses of Landlord,
including, without limitation, attorneys' fees incurred in defending such action
or in procuring the discharge of such lien, with all necessary disbursements in
connection therewith, will become due and payable on the date of payment or
deposit, as additional rent.
Section 6.11. Nothing in this Lease will be deemed to be, or construed
in any way as constituting, the consent or request of Landlord, express or
implied by inference or otherwise, to any person, firm or corporation for the
performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration or repair of or to the Demised Premises,
the Building or the Land or any part thereof, nor as giving Tenant any right,
power or authority to contract for or permit the rendering of any services or
the furnishing of any materials which might in any way give rise to the right to
file any lien against Landlord's interest in the Demised Premises, the Building
or the Land.
- 18 -
ARTICLE 7
FLOOR LOAD, NOISE, WINDOW CLEANING
Section 7.01. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law.
Section 7.02. Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that may be transmitted to the structure
of the Building or the Demised Premises to such a degree as to be objectionable
to Landlord shall be placed and maintained by the party owning the machines or
equipment, at such party's expense, in settings of cork, rubber or spring type
vibration eliminators sufficient to eliminate noise or vibration.
Section 7.03. Tenant will not clean, nor require, permit, suffer 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 asserting
jurisdiction.
ARTICLE 8
LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES
Section 8.01. Tenant shall, at its expense, comply with all laws,
orders, ordinances and regulations or any direction made pursuant to any law,
ordinance, rule, regulation or order of any public office or officer which or
who shall, with respect to the occupancy, use or manner of use of the Demised
Premises or to any abatement of nuisance, impose any violation, order or duty
upon Landlord or Tenant arising from Tenant's occupancy, use or manner of use of
the Demised Premises, or as a result of any installations made therein (whether
or not in compliance with the work article hereof) by Tenant or at Tenant's
request, or required by reason of a breach of any of Tenant's covenants or
agreements hereunder.
Section 8.02. If Tenant should desire to contest the validity of any
such law, ordinance, rule, regulation or order with which Tenant is obligated to
comply, it may, at its expense, carry on such contest and non-compliance by it
during such contest (so long as Tenant proceeds with due diligence) shall not
constitute a breach of this Lease provided that it shall, to the satisfaction of
Landlord, indemnify and hold Landlord harmless from and against all liability
for any loss, damages and expenses (including, without limitation, attorneys'
fees) which might result from or be incurred in connection with such contest or
non-compliance. Notwithstanding the foregoing, non-compliance as aforesaid shall
not commence or continue if it might subject Landlord to any fine or penalty or
to prosecution for a crime,
- 19 -
or if it would constitute a default by Landlord under any mortgage or lease
affecting the Building and/or the Land.
Section 8.03. If Tenant receives written notice of any violation of
law, ordinance, rule, regulation or order applicable to the Demised Premises, it
shall give prompt notice thereof to Landlord.
Section 8.04. Except as aforesaid, Landlord shall, at its expense,
comply with or cause to be complied with, all laws, ordinances, rules,
regulations and orders of federal, state, county and municipal authorities and
any direction made pursuant to law of any public officer or officers which
shall, with respect to the public portions of the Building, impose any
violation, order or duty upon Landlord or Tenant and with respect to which
Tenant is not obligated by Section 8.01 to comply. Except as aforesaid, Landlord
shall further, at its expense, comply with or cause to be complied with, all
laws, ordinances, rules, regulations and orders of federal, state, county and
municipal authorities and any direction made pursuant to law of any public
officer or officers which affect Tenant's use or enjoyment of, or access to, the
Demised Premises and with respect to which Tenant is not obligated by Section
8.01 to comply. Landlord may, at its expense, contest the validity of any such
law, ordinance, rule, order or regulation.
ARTICLE 9
INSURANCE, PROPERTY LOSS, REIMBURSEMENT
Section 9.01. Tenant shall not do or permit to be done any act or thing
upon the Demised Premises which will invalidate or be in conflict with the
Certificate of Occupancy or the terms of the New York State standard form of
fire, boiler, sprinkler, water damage or other insurance policies covering the
Building and the fixtures and property therein and Tenant shall, at its own
expense, comply with all rules, orders, regulations or requirements of the New
York Board of Fire Underwriters or any other similar body having jurisdiction
and shall not knowingly do or permit anything to be done in or upon the Demised
Premises in a manner which increases the rate of fire insurance upon the
Building or on any property or equipment located therein over the rate in effect
at the commencement of the Term of this Lease.
Section 9.02. If, by reason of any failure of Tenant to comply with the
provisions of this Lease, the rate of fire, boiler, sprinkler, water damage or
other insurance (with extended coverage) on the Building or on the property and
equipment of Landlord or any other tenant or subtenant in the Building shall be
higher than it otherwise would be, Tenant shall reimburse Landlord and the other
tenants in the Building for that part of the fire, boiler, sprinkler, water
damage or other insurance premiums thereafter paid by Landlord or by the other
tenants in
- 20 -
the Building which shall have been charged because of such failure by Tenant,
and Tenant shall make the reimbursement on the first day of the month following
such payment by Landlord or such other tenants. In any action or proceeding
wherein Landlord and Tenant are parties, a schedule or "make up" of any
insurance rate for the Building or Demised Premises issued by the New York Fire
Insurance Exchange, or other body establishing fire insurance rates for the
Building, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the insurance rates then applicable to the Building
or Demised Premises.
Section 9.03. Tenant, at Tenant's own cost and expense, shall maintain
insurance protecting and indemnifying Landlord and Tenant (and at Landlord's
request, the landlord under any ground or underlying lease [herein
"Overlandlord"], as well as the holder of any mortgage affecting the Land, the
Building or both) against any and all claims for injury or damage to persons or
property for the loss of life or of property occurring upon, in or about the
Demised Premises and the public portions of the Building used by Tenant, its
employees, agents, contractors, customers and invitees arising out of the
negligent act or omission of any of the foregoing, such insurance to afford
minimum protection during the Term of this Lease of not less than a single
combined limit of $2,000,000 in respect of property damage and bodily injury or
death to any one person or in respect of any one occurrence or accident.
Landlord may from time to time require that the amount of liability insurance to
be maintained by Tenant under this Article be increased so that Landlord shall
be adequately protected giving due consideration to all relevant circumstances
and conditions. Any such increase shall be consistent with increases required by
landlords of similar buildings in the Midtown Manhattan area.
All such insurance shall be effected under valid and enforceable
policies (which may cover the Demised Premises and other locations), shall be
issued by insurers of recognized responsibility and shall contain a provision
whereby the insurer agrees not to cancel the insurance without ten (10) days'
prior written notice to Landlord.
On or before the Commencement Date of this Lease, Tenant shall furnish
Landlord with a certificate evidencing the aforesaid insurance coverage and
renewal certificates shall be furnished to Landlord at least thirty (30) days
prior to the expiration date of each policy for which a certificate was
theretofore required to be furnished.
Section 9.04. Tenant shall give Landlord immediate notice in case of a
fire or accident in the Demised Premises or the Building, or of defects therein
or in any fixtures or equipment promptly after Tenant becomes aware of the same.
- 21 -
Section 9.05. Tenant shall indemnify and hold Landlord harmless from
and against all liabilities, suits, claims, demands and actions, and costs and
expenses of any kind or nature, due to or arising out of any injury to person or
property, including death resulting at any time therefrom, occurring in or about
the Demised Premises. To the extent of any valid and collectible insurance
furnished by Tenant for the protection of Landlord, Tenant's obligation to
indemnify and hold Landlord harmless against liability which is covered by such
insurance shall be deemed, to the extent thereof, to be satisfied.
Section 9.06. Landlord and Tenant shall each endeavor to secure an
appropriate clause in, or an endorsement upon, each fire or extended coverage or
rent insurance policy obtained by it and covering the Building, the Demised
Premises or the personal property, fixtures and equipment located therein or
thereon, pursuant to which the respective insurance companies waive subrogation
or permit the insured, prior to any loss, to agree with a third party to waive
any claim it might have against said third party. The parties hereto shall give
prompt notice to the other in the event such clause is or becomes unavailable.
The waiver of subrogation or permission for waiver of any claim shall extend to
the agents of each party and the employees of each party and its respective
agents and, in the case of Tenant, shall also extend to all other persons and
entities occupying or using the Demised Premises. If and to the extent that such
waiver or permission can be obtained only upon payment of an additional charge,
then the party benefiting from the waiver or permission shall pay such charge
upon written demand, or shall be deemed to have agreed that the party obtaining
the insurance coverage in question shall be free of any further obligations
under the provisions hereof relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.06, each party
hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interest, as the case may be) occurring
during the Term of this Lease.
Section 9.07. Tenant agrees to look solely to Landlord's estate and
interest in the Land and Building, or the lease of the Building, or of the Land
and Building, and the Demised Premises, for the satisfaction of any right or
remedy of Tenant for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord, in the event of any liability by
Landlord, and no other property or assets of Landlord shall be subject to levy,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Demised
Premises, or any other liability of Landlord to Tenant.
- 22 -
ARTICLE 10
DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE
Section 10.01. If the Building or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause, then whether
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents or visitors (and if this Lease shall not
have been terminated as in this Article 10 hereinafter provided), Landlord shall
to the extent permitted by available insurance proceeds, repair the damage and
restore and rebuild the Building and/or the Demised Premises (without limiting
the rights of any insurance company, subrogated to Landlord's rights hereunder
pursuant to the terms of any insurance policy as to which Landlord shall have
been unable to obtain a waiver of subrogation in accordance with Section 9.06
hereof to seek recovery from Tenant, and any rights of Landlord under any other
provisions of this Lease or at law or in equity), with reasonable dispatch after
notice to it of the damage or destruction; provided, however, that Landlord
shall not be required to repair or replace any of Tenant's property.
Notwithstanding anything contained herein to the contrary, in no event shall
Tenant be relieved of liability or responsibility for damage or destruction
resulting from the fault or neglect of Tenant if the insurance policies carried
by Landlord on the Building do not contain a waiver of the right of subrogation.
Section 10.02. If the Building or the Demised Premises shall be
partially destroyed by fire or other cause, the rents payable hereunder shall be
abated to the extent that the Demised Premises shall have been rendered
untenantable and for the period from the date of such damage or destruction to
the date the damage shall be repaired or restored. If the Demised Premises or a
major part thereof shall be totally (which shall be deemed to include
substantially completely) untenantable on account of fire or other cause, the
rent shall xxxxx as of the date of the damage or destruction and until Landlord
shall repair, restore and rebuild the Building and the Demised Premises,
provided, however, that should Tenant occupy or reoccupy a portion of the
Demised Premises during the period the Demised Premises are made completely
untenantable, rents allocable to such portion shall be payable by Tenant from
the date of such occupancy.
Section 10.03. If the Building or Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause that Landlord shall decide not to
restore or rebuild it, then in either such case Landlord may terminate this
Lease by giving Tenant notice to such effect within ninety (90) days after the
date of the casualty. In case of any damage or destruction mentioned in this
Article 10, Tenant may terminate this Lease by notice to Landlord, if Landlord
has not completed the making of the required repairs and restored and rebuilt
the Building and
- 23 -
the Demised Premises within nine (9) months from the date of such damage or
destruction, or within such period after such date (not exceeding six (6)
months) as shall equal the aggregate period Landlord may have been delayed in
doing so by adjustment of insurance, labor trouble, governmental controls, act
of God, or any other cause beyond Landlord's reasonable control, and such
termination shall be effective upon the expiration of thirty (30) days after the
date of such notice.
Section 10.04. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article 10. Landlord shall endeavor to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's business, provided no additional costs, for labor at overtime or
premium rates, or otherwise, are incurred thereby.
Section 10.05. Notwithstanding any of the foregoing provisions of this
Article 10, if Landlord or Overlandlord or the holder of any superior mortgage
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Demised Premises
or the Building by fire or other cause by reason of some action or inaction on
the part of Tenant or any of its employees, agents or contractors, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement of Tenant's rent until the total amount of such rent not
abated which would otherwise have been abated equals the amount of uncollected
insurance proceeds.
Section 10.06. Landlord will not carry separate insurance of any kind
on Tenant's property and Landlord shall not be obligated to repair any damage
thereto or replace the same.
Section 10.07. In the event of the termination of this Lease pursuant
to any of the provisions of this Article 10, this Lease and the Term and estate
hereby granted shall expire as of the date of such termination with the same
effect as if that were the Expiration Date, and the Fixed Rent and additional
rent payable hereunder shall be apportioned as of such date.
Section 10.08. The provisions of this Article 10 shall be considered an
express agreement governing any case of damage or destruction of the Demised
Premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York providing for a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application to the Demised Premises and this Lease.
- 24 -
Section 10.09. In the event the Building or Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause and, as a
result thereof, Tenant's occupancy of the Demised Premises shall be temporarily
interrupted, in accordance with the terms of this Article 10, then the
Expiration Date of this Lease shall be deemed automatically extended for the
same number of days of such temporary interruption. In the event Expiration Date
shall be extended as aforesaid, the parties hereto agree to execute and deliver
an agreement setting forth the extended Expiration Date, provided the failure of
the parties to enter into such an agreement shall not affect their respective
rights and obligations hereunder.
ARTICLE 11
ASSIGNMENT, SUBLETTING, MORTGAGING
Section 11.01. (a) Tenant will not by operation of law or otherwise,
assign, mortgage or otherwise encumber this Lease, nor the estate and Term
hereby granted, nor sublet or permit the Demised Premises or any part thereof to
be used by others, without Landlord's prior written consent in each instance.
The consent by Landlord to any assignment or subletting shall not in any manner
be construed to relieve Tenant from obtaining Landlord's express written consent
to any other or further assignment or subletting.
If Tenant desires to assign or sublet all or any portion of the Demised
Premises, Tenant agrees to use as its exclusive rental agent for such purpose
for a period of thirty (30) days (and thereafter on a non-exclusive basis), the
then designated leasing agent of the Building and to notify such leasing agent
of its desire to assign this Lease or sublet the Demised Premises. Upon
obtaining a proposed assignee or sublessee, upon terms satisfactory to Tenant,
Tenant shall submit to Landlord in writing (1) the name of the proposed assignee
or subtenant; (2) the terms and conditions of the proposed assignment or
subletting; (3) the nature and character of the business of the proposed
assignee or subtenant and any other information reasonably requested by
Landlord.
Upon receipt of the foregoing submission from Tenant Landlord shall
have the following options to be exercised within thirty (30) days from the date
of such receipt:
1. If an assignment shall be proposed or if a proposed
subletting shall be for all or substantially all of the Demised Premises,
Landlord shall have the option to terminate this Lease effective as of the date
proposed by Tenant for such assignment or subletting.
2. If a proposed sublease shall be for less than all or
substantially all of the Demised Premises or if it shall be
- 25 -
for less than the balance of the Term of this Lease, Landlord shall have the
option to terminate this Lease as to the portion of the Demised Premises
proposed to be sublet for such portion of the Term as is included in such
proposed sublease, effective as of the effective date of such proposed sublease.
In the event of the exercise of such option under this subparagraph 2, the rent
and all other charges payable hereunder shall be equitably apportioned, and
Tenant shall be responsible for the cost of constructing any necessary demising
walls.
3. Landlord shall have the option to require Tenant to execute
an assignment or sublease to Landlord, or to any party designated by Landlord,
upon the same terms and conditions as contemplated with the proposed assignee or
subtenant, except that (A) Landlord (or Landlord's designee) as assignee or
sublessee shall have an express unlimited right to further assign or sublease to
others and to make any alterations required in connection therewith, and (B) the
rent or consideration payable under such assignment or sublease to Landlord (or
Landlord's designee) shall be the lower of (i) the rental payable by Tenant to
Landlord under this Lease, or (ii) the rental payable by the proposed assignee
or subtenant pursuant to the assignment or sublease originally proposed by
Tenant.
(b) If Landlord shall not exercise any of its foregoing options within
the time set forth above, provided Tenant shall not then be in default
hereunder, Landlord's consent to any such proposed assignment or subletting
shall not be "unreasonably" withheld, as described in paragraph (c) of this
Section 11.01.
If Landlord shall not exercise any of the options described in
paragraph (a) above and Tenant shall thereupon assign this Lease or sublet all
or any portion of the Demised Premises, then and in that event Tenant shall pay
to Landlord as additional rent the difference, if any, between the Fixed Rent
plus additional rent allocable to that part of the Demised Premises affected by
such assignment or sublease pursuant to the provisions of this Lease, and the
Fixed Rent and additional rent payable by the assignee or sublessee to Tenant.
Such additional rent payments shall be made monthly within five (5) days after
receipt of the same by Tenant. Any other cash or other consideration payable to
Tenant in connection with such assignment or sublease or the sale of Tenant's
property in connection therewith shall be similarly paid over to Landlord when
and as received by Tenant.
If Tenant fails to consummate any proposed assignment or subletting to
which Landlord shall have consented within sixty (60) days after granting such
consent, paragraph (a) shall again apply to said proposed assignment or
subletting.
No option exercised by Landlord pursuant to the above provisions of
paragraph (a), and no assignment or sublease made to Landlord under the above
provisions of paragraph (a), shall be
- 26 -
binding upon any purchaser of any ground or underlying lease who acquires such
ground or underlying lease by reason of the foreclosure of any mortgage to which
this Lease is subordinate, nor upon any assignee of any ground or underlying
lease who takes such assignment in lieu of such foreclosure, it being
understood, however, that such purchaser or assignee may, at its option, elect
to enforce such option, assignment or sublease.
(c) In determining reasonableness with respect to its consent to a
proposed assignment or sublease by Tenant, Landlord may take into consideration
all relevant factors surrounding the proposed assignment or sublease, including,
without limitation, the following:
(i) the financial stability and business reputation of the
proposed assignee or subtenant;
(ii) the nature of the business and the proposed use of the
Demised Premises by the proposed assignee or subtenant in relation to the
majority of other tenants in the Building;
(iii) that the proposed assignee or subtenant shall not be a
tenant of other space in the Building or a party which has dealt with Landlord
or Landlord's agent (directly or through a broker) with respect to space in the
Building during the six (6) months immediately preceding Tenant's request for
Landlord's consent, provided Landlord has space in the Building for such
proposed assignee or subtenant;
(iv) restrictions contained in leases of other tenants of the
Building;
(v) the effect that the proposed assignee's or subtenant's
occupancy or use of the Demised Premises would have upon the operation and
maintenance of the Building and Landlord's investment therein;
(vi) that not more than one entity shall occupy the Demised
Premises at any time.
Section 11.02. If this Lease shall be assigned, or if the Demised
Premises or any part thereof be sublet or occupied by any person or persons
other than Tenant, Landlord may after default by Tenant, collect rent from the
assignee, subtenant or occupant and apply the net amount collected to the rent
herein reserved, but no such assignment, subletting, occupancy or collection of
rent shall be deemed a waiver of the covenants in this Article, nor shall it be
deemed acceptance of the assignee, subtenant or occupant as a tenant, or a
release of Tenant from the full performance by Tenant of all the terms,
conditions and covenants of this Lease.
- 27 -
Section 11.03. Each assignee or transferee shall assume and be deemed
to have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the rent, additional rent and adjustments of
rent, and for the due performance of all the terms, covenants, conditions and
agreements herein contained on Tenant's part to be performed for the Term of
this Lease. No assignment shall be binding on Landlord unless such assignee or
Tenant shall deliver to Landlord a duplicate original of the instrument of
assignment which contains a covenant of assumption by the assignee of all of the
obligations aforesaid and shall obtain from Landlord the aforesaid written
consent prior thereto.
Section 11.04. For the purposes of this Lease, any sale, transfer or
assignment of more than fifty (50%) percent of the stock of a corporate Tenant
or any transfer in the control of Tenant by operation of law or otherwise shall
be deemed an assignment. For the purposes hereof, "control" shall be deemed to
mean ownership of not less than a majority of all of the voting stock of such
corporation or not less than a majority of all of the legal and equitable
interest in any other business entities.
Section 11.05. The listing of any name other than that of Tenant,
whether on the doors of the Demised Premises, on the Building directory or
otherwise, shall not operate to vest any right or interest in this Lease or the
Demised Premises. It is expressly understood that any such listing is a
privilege extended by Landlord that is revocable at will by written notice to
Tenant.
Section 11.06. Tenant shall reimburse Landlord for any out-of-pocket
costs incurred by Landlord to review the requested consent provided in Article
11, including reasonable attorneys' fees.
Section 11.07. If Landlord shall recover or come into possession of the
Demised Premises before the Expiration Date, Landlord shall have the right to
take over any sublease made by Tenant and to succeed to all rights of Tenant
thereunder, Tenant hereby assigning (effective as of the date of Landlord's
succession of Tenant's estate in the Demised Premises) such subleases as
Landlord may elect to take over. Every subletting hereunder shall be subject to
the condition that, from and after the termination of this Lease or re-entry by
Landlord hereunder or other succession by Landlord to Tenant's estate in the
Demised Premises, the subtenant under such sublease shall waive any right to
surrender possession or to terminate the sublease and, at Landlord's election,
shall be bound to Landlord for the balance of the term thereof and shall attorn
to and recognize Landlord, as its landlord, under all of the then executory
terms of such sublease, except that Landlord shall not be (a) liable for any
previous act, omission or negligence of Tenant under such
- 28 -
sublease, (b) subject to any counterclaim, defense or offset theretofore
accruing to such subtenant against Tenant, (c) bound by any previous
modification or amendment of such sublease made without Landlord's consent or by
any previous prepayment of more than one month's rent and additional rent unless
paid as provided in the sublease, or (d) obligated to perform any repairs or
other work in the subleased space or the Building beyond Landlord's obligations
under this Lease, and each subtenant shall execute and deliver such instruments
as Landlord may reasonably request to evidence and confirm such attornment.
Section 11.08. Notwithstanding anything to the contrary elsewhere
contained herein (including Section 11.01(a) hereof), provided that Tenant shall
not be in default in any of the terms of this Lease beyond notice and the
expiration of any applicable grace period, Tenant may, without Landlord's
consent but upon not less than ten (10) days' prior written notice to Landlord,
sublet to any corporations or other business entities which control, are
controlled by, or are under common control with Tenant (herein referred to as a
"Related Entity") all or part of the Demised Premises or permit any Related
Entity to occupy the same for any of the purposes permitted to Tenant, subject
however to compliance with Tenant's obligations under this Lease. Such
subletting or occupancy shall not be deemed to vest in any such Related Entity
any right or interest in this Lease nor shall such subletting or occupancy
relieve, release, impair or discharge any of Tenant's obligations hereunder.
Tenant shall deliver to Landlord a copy of any such sublease or occupancy
agreement for all or any portion of the Demised Premises.
Section ll.09. Notwithstanding anything to the contrary elsewhere
contained herein (including Section 11.01(a) which shall not be applicable to an
assignment or transfer pursuant to this Section 11.09), Tenant may, upon prior
written notice to Landlord, assign or transfer its entire interest in this Lease
and the leasehold estate hereby created to a "Successor Corporation" (as such
term is hereinafter defined) of Tenant, provided that Tenant shall not be in
default in any of the terms of this Lease beyond notice and the expiration of
any applicable grace period. A "Successor Corporation", as used in this Section,
shall mean (a) a corporation into which or with which Tenant, its corporate
successors or permitted assigns, is merged or consolidated, in accordance with
applicable statutory provisions for the merger or consolidation of a
corporation, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation, the liabilities of the
corporations participating in such merger or consolidation are assumed by the
corporation surviving such merger or consolidation, or (b) a corporation,
partnership or other business entity acquiring this Lease and the Term and the
estate hereby granted, the goodwill and all or substantially all of the other
property and assets (other than capital stock of such acquired corporation) of
Tenant, its corporate successors or
- 29 -
permitted assigns, and assuming all or substantially all of the liabilities of
Tenant, its corporate successors or permitted assigns, or (c) any corporate
successor to a Successor Corporation becoming such by either of the methods
described in subdivisions (a) and (b) above, provided that, (x) immediately
after giving effect to any such merger or consolidation, or such acquisition and
assumption, as the case may be, the corporation, partnership or other business
entity surviving such merger or created by such consolidation or acquiring such
assets and assuming such liabilities, as the case may be, shall have a net
worth, as determined in accordance with generally accepted accounting
principles, at least equal to the greater of (i) the net worth, similarly
determined, of Tenant, immediately prior to such merger or consolidation or such
acquisition and assumption, as the case may be, or (ii) the net worth, similarly
determined, of Tenant as of the date of this Lease and (y) proof of such net
worth, as evidenced by a statement from a certified public accounting firm
reasonably satisfactory to Landlord shall have been delivered to Landlord at
least ten (10) days prior to the effective date of any such merger or
consolidation, or acquisition and assumption, as the case may be. Upon the
compliance with the foregoing provisions of this Section 11.09, and the delivery
to Landlord of the agreement of the Successor Corporation, in form and substance
satisfactory to Landlord, to assume all the terms of this Lease to be performed
by Tenant, and to be bound thereby, the corporation, partnership or other
business entity so assigning or transferring this Lease shall thereafter be
released and discharged from any obligations thereafter arising under this
Lease.
Section 11.10 Anything herein to the contrary notwithstanding, the
provisions of Section (a) of Article 11.01 shall not apply to, and Tenant shall
be permitted to sublet or allow the occupancy of, "desk space" in the Demised
Premises, from time to time, without Landlord's consent to entities affiliated
with Tenant or to clients or customers of Tenant provided (a) there is no
separate demising of the area to be subleased or occupied and no additional
reception area for the same, (b) such sublet or occupied space shall not, in the
aggregate, exceed five hundred (500) rentable square feet of space in the
Demised Premises, (c) Landlord receives a copy of the sublease or occupancy
agreement prior to the effective date thereof which agreement shall be subject
to the terms of this Lease, including, but not limited to, this Article 11, and
(d) prior to the effective date of any such sublease or occupancy Landlord
receives proof, reasonably satisfactory to Landlord, that such subtenant or
occupant is affiliated with Tenant or is a client or customer of Tenant.
Permission to such persons to use the Demised Premises shall not create a
tenancy or any other interest in the Demised Premises other than a license which
shall cease and expire in any event automatically without notice upon expiration
or termination of the letting under this Lease. Tenant shall be responsible for
all acts, omissions and
- 30 -
operations of such persons associated with their use of the Demised Premises.
Use of the Demised Premises pursuant hereto shall not be deemed to entitle said
persons to rights or privileges which Landlord has accorded, or may hereafter
accord, to lessees of space in the Building. If Landlord determines that any
such occupant is not reputable or causes a nuisance or disruption to other
tenants in the Building or conducts itself or its business in a manner
inconsistent with the terms of this Lease, Landlord may revoke such license and
require Tenant to terminate such occupancy, and Landlord may exclude same from
the Building.
ARTICLE 12
NO LIABILITY ON LANDLORD
Section 12.01. Landlord or its agents shall not be liable for any
damage to property of Tenant or of others entrusted to employees of the
Building, nor for the loss of or damage to any property of Tenant by theft or
otherwise. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain or snow, leaks from any part of the Building or
from the pipes, appliances or plumbing works or from the roof, street or
sub-surface or from any other place or by dampness or by any other cause of
whatsoever nature, unless caused by or due to the negligence of Landlord, its
agents, servants or employees; nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work; nor
shall Landlord be liable for any latent defect in the Demised Premises or in the
Building of which they form a part. If at any time any windows of the Demised
Premises are temporarily or permanently closed, darkened or bricked up for any
reason whatsoever including but not limited to Landlord's own acts, Landlord
shall not be liable for any damage Tenant may sustain thereby, and Tenant shall
not be entitled to any compensation therefor nor abatement of rent, nor shall
the same release Tenant from its obligations hereunder nor constitute an
eviction.
ARTICLE 13
MOVING OF HEAVY EQUIPMENT
Section 13.01. Tenant shall not move any safe, heavy equipment or bulky
matter in or out of the Building without Landlord's written consent, which
consent Landlord agrees not to unreasonably withhold or delay. If the movement
of such items requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do said work and all such work shall be
done in full compliance with the Administrative Code of the City of New York and
other municipal requirements.
- 31 -
All such movements shall be made during hours which will least interfere with
the normal operations of the Building, and all damage caused by such movement
shall be promptly repaired by Tenant at Tenant's expense.
ARTICLE 14
CONDEMNATION
Section 14.01. In the event that the whole of the Demised Premises
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title. In the event
that only a part of the Demised Premises shall be so condemned or taken, then,
effective as of the date of vesting of title, the rent hereunder for such part
shall be abated. In the event that only a part of the Building shall be so
condemned or taken, then (a) if substantial structural alteration or
reconstruction of the Building shall in the reasonable opinion of Landlord be
necessary or appropriate as a result of such condemnation or taking (whether or
not the Demised Premises be affected), Landlord may, at its option, terminate
this Lease and the Term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing of such termination within sixty (60)
days following the date on which Landlord shall have received notice of vesting
of title, or (b) if Landlord does not elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the Fixed Rent and additional rent shall be abated to the
extent, if any, hereinbefore provided in this Article 14. In the event that only
a part of the Demised Premises shall be so condemned or taken and this Lease and
the Term and estate hereby granted are not terminated as hereinbefore provided,
Landlord will, at its expense, restore with reasonable diligence the remaining
structural portions of the Demised Premises as nearly as practicable to the same
condition as it was prior to such condemnation or taking.
In the event of termination in any of the cases hereinabove provided in
this Article 14, this Lease and the Term and estate hereby granted shall expire
as of the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the Term of this Lease, and the rent
hereunder shall be apportioned as of such date.
In the event of any condemnation or taking hereinabove mentioned of all
or a part of the Building, Landlord shall be entitled to receive the entire
award in the condemnation proceeding, including any award made for the value of
the estate vested by this Lease in Tenant, and Tenant hereby expressly assigns
to Landlord any and all right, title and interest of Tenant now or hereafter
arising in or to any such award or any
- 32 -
part thereof, and Tenant shall be entitled to receive no part of such award.
Tenant shall, at its own cost and expense, be entitled to pursue an independent
claim for moving expenses, Tenant's property (which does not become part of the
Building or property of Landlord) and injury to Tenant's business, provided,
however, that such claim shall not thereby lessen, reduce or otherwise affect
Landlord's award.
ARTICLE 15
ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING
Section 15.01. Tenant shall permit Landlord to erect, use and maintain
pipes and conduits in and through the Demised Premises. All such pipes and
conduits shall either be concealed above the suspended ceiling area, or within
the demising walls or installed in the service columns, or shall be installed
along the walls of the Demised Premises and appropriately enclosed, where
feasible. In the event the construction deprives the Tenant of the use of a
material or substantial portion of the usable area of the Demised Premises
(other than on a temporary basis), the Tenant shall be entitled to an pro rata
abatement of rent for the space so permanently taken. Landlord agrees that in
the event more than fifty percent (50%) of the Demised Premises is permanently
taken pursuant to this Article 15 and such taking materially interferes with
Tenant's ability to conduct its business in the balance of the Demised Premises,
Tenant shall, within thirty (30) days after such permanent taking, have the
right to cancel and terminate this Lease upon written notice to Landlord.
Landlord or its agents or designees shall have the right, but only upon
reasonable notice (except in emergencies, in which event no notice shall be
required) given to Tenant or any authorized employee of Tenant at the Demised
Premises, to enter the Demised Premises at reasonable times during business
hours, for the purpose of making such repairs or alterations as shall be
required or as Landlord shall have the right to make by the provisions of this
Lease. Landlord shall be allowed to take all material into and upon the Demised
Premises that may be required for the repairs and alterations above mentioned
without the same constituting an eviction of Tenant in whole or in part, and the
rent reserved hereunder shall in no wise xxxxx, except as otherwise provided in
this Lease, while said repairs or alterations are being made, by reason of loss
or interruption of the business of Tenant because of the prosecution of any such
work, or otherwise. Landlord agrees to do any work pursuant to this Article in
such a manner so as not to unreasonably interfere with Tenant's business,
provided no additional costs, for labor at overtime or premium rates, or
otherwise, are incurred thereby.
Section 15.02. During the six (6) months prior to the expiration of the
Term of this Lease, Landlord may exhibit the Demised Premises to prospective
tenants. Landlord shall also
- 33 -
have the right to enter the Demised Premises for the purpose of inspecting the
same or exhibiting the same to prospective purchasers or lessees of the entire
Building or to prospective mortgagees of the property of which the Demised
Premises forms a part. The holders of any mortgage of Landlord's interest in the
property, or such holders' agents or designees, shall also have such right of
inspection for itself and for any prospective assignees of any such mortgagees.
Landlord agrees, to the extent practicable, to give Tenant reasonable prior
notice of any exhibition or inspection pursuant to this Section 15.02 and to
perform any such exhibition or inspection at times convenient to Tenant and in a
manner so as to minimize interference with Tenant's business.
Section 15.03. Landlord shall have the right at any time without
thereby creating an actual or constructive eviction or incurring liability to
Tenant therefor, to change the arrangement or location of such of the following
as are not contained within the Demised Premises or any part thereof: entrances,
passageways, elevators, doors and doorways, corridors, stairs, toilets and other
like public service portions of the Building.
ARTICLE 16
BANKRUPTCY
Section 16.01. (a) Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease may be cancelled by Landlord by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (i) Tenant shall (A) have applied for or
consented to the appointment of a receiver, trustee, liquidator, or other
custodian of Tenant or any of its properties or assets, (B) be unable to pay its
debts generally as they become due or shall have taken any other action which
could result in it becoming the subject of an insolvency or bankruptcy
proceeding, (C) have made a general assignment for the benefit of creditors, (D)
have commenced a voluntary case for relief as a debtor under the United States
Bankruptcy Code or filed a petition to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debts, dissolution or liquidation
law or statute or an answer admitting the material allegations of a petition
filed against it in any proceeding under any such law, or (E) be adjudicated a
bankrupt or insolvent; or (ii) Without the acquiescence or consent of Tenant an
order, judgment or decree shall have been entered by any court of competent
jurisdiction approving as properly filed a petition seeking relief under the
United States Bankruptcy Code or any bankruptcy, reorganization, insolvency,
readjustment of debts, dissolution or liquidation law or statute with respect to
Tenant or appointing a receiver, trustee, liquidator or other custodian of all
or a substantial part of its properties or assets, and such order, judgment or
decree shall have continued unstayed and in effect for any period
- 34 -
of not less than sixty (60) days. Neither Tenant, nor any person claiming
through or under Tenant or by reason of any statute or order of court, shall
thereafter be entitled to possession of the Demised Premises, but shall
forthwith quit and surrender the Demised Premises. If this Lease shall be
assigned in accordance with its terms, the provisions of this Article shall be
applicable only to the party then owning Tenant's interest in this Lease.
(b) It is stipulated and agreed that in the event of the termination of
this Lease pursuant to paragraph (a) hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
Term demised and the then fair and reasonable rental value of the Demised
Premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the Demised Premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of six percent (6%) per annum. If the Demised
Premises or any part thereof be re-let by Landlord for the unexpired Term of
this Lease, or any part thereof, before the presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of rent
reserved upon such re-letting shall be prima facie evidence as to the fair and
reasonable rental value for the part or the whole of the Demised Premises so
re-let during the term of the re-letting. Nothing herein contained shall limit
or prejudice the right of Landlord to prove for and obtain as liquidated damages
by reason of such termination, an amount equal to the maximum allowed by any
statute or rule in effect at the time when, and governing the proceedings in
which, such damages are to be approved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
ARTICLE 17
DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION
Section 17.01.(1)If (A) Tenant defaults in fulfilling any of the
covenants of this Lease, (i) with respect to the covenant for the payment of
Fixed Rent or additional rent, if such default shall continue for seven (7)
days, and (ii) with respect to any other covenant, if such default shall
continue for thirty (30) days, in either event, after Landlord shall have given
to Tenant a written notice specifying such default, or (B), the Demised Premises
become abandoned, or if the Demised Premises are damaged by reason of negligence
or carelessness of Tenant, its agents, employees or invitees, or (C) in the case
of the happening of a default or omission (other than in the payment of Fixed
Rent, additional rent or other charges hereunder and other
- 35 -
than the failure to cause a lien against the Demised Premises, the Building or
the Land to be discharged of record within the time period provided elsewhere in
this Lease), such default or omission cannot with due diligence be completely
cured or remedied within such thirty (30) day period, if Tenant shall not have
diligently commenced curing such default within such thirty (30) day period, and
shall not thereafter with reasonable diligence and in good faith be proceeding
to remedy or cure such default, then, in any such case, Landlord may give to
Tenant a notice of intention to terminate this Lease upon the expiration of
three (3) days from the service of such notice of intention, and upon the
expiration of said three (3) days, this Lease and the Term hereof shall
terminate, and Tenant shall then quit and surrender the Demised Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
(2) If (A) the notice provided for in (1) hereof shall have been given,
and the Term shall expire as aforesaid; or (B) if Tenant shall make any default
in the payment of Fixed Rent or additional rent herein reserved, or any part of
either, or in making any other payment herein provided; or (C) if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the Demised Premises shall be taken or occupied or attempted to be
taken or occupied by someone other than Tenant; or (D) if Tenant shall make
default with respect to any other lease between Landlord and Tenant; or (E) if
Tenant shall fail to move into or take possession of the Demised Premises within
ninety (90) days after commencement of the Term of this Lease, of which facts
Landlord shall be the sole judge exercised in good faith; then in any of such
events Landlord may, without notice, re-enter the Demised Premises by any lawful
process, and dispossess Tenant and the legal representatives of Tenant or any
other occupants of the Demised Premises by summary proceedings or otherwise and
remove their effects and hold the Demised Premises as if this Lease had not been
made. Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to the aforesaid end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this Lease, Landlord may cancel and terminate such renewal or
extension agreement by written notice, but Tenant shall remain liable as
hereinafter provided.
Section 17.02. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (i) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration together with such costs as Landlord may incur for legal expenses,
reasonable attorneys' fees, brokerage and/or putting the Demised Premises in
good order, or for preparing the same for re-rental; (ii) Landlord may re-let
the Demised Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed
- 36 -
the period which would otherwise have constituted the balance of the Term of
this Lease and may grant concessions or free rent; and/or (iii) Tenant or the
legal representatives of Tenant shall also pay Landlord as liquidated damages
for the failure of Tenant to observe and perform Tenant's covenants herein
contained, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease
or at the time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (1) the aggregate of the installments
of Fixed Rent and the additional rent (if any) which would have been payable
hereunder by Tenant, had this Lease not so terminated, for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the date hereinbefore set for the expiration of
the full term hereby granted pursuant to Articles 1 and 2 hereof, over (2) the
aggregate rental value of the Demised Premises for the same period, said lump
sum to be discounted to the Expiration Date of this Lease at the then prevailing
prime rate of interest; or
(b) sums equal to the aggregate of the installments of Fixed
Rent and additional rent (if any) which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the date hereinbefore set for the
expiration of the full Term hereby granted; provided, however, that if Landlord
shall re-let the Demised Premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord for such re-letting, such net
rents to be determined by first deducting from the gross rents as and when
received by Landlord from such re-letting the expenses incurred or paid by
Landlord terminating this Lease or of re-entering the Demised Premises and of
securing possession thereof, including, without limitation, reasonable
attorneys' fees and costs of removal and storage of Tenant's property, as well
as the expenses of re-letting, including repairing, restoring, altering,
decorating and preparing the Demised Premises for new tenants, brokers'
commissions, advertising costs, reasonable attorneys' fees, and all other
similar or dissimilar expenses chargeable against the Demised Premises and the
rental therefrom in connection with such re-letting, it being understood that
any such re-letting may be for a period equal to or shorter or longer than the
remaining Term of this Lease; provided, further, that (1) in no event shall
Tenant be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, (2) in no event shall Tenant be entitled in any
suit for the collection of damages pursuant to this paragraph (b) to a credit in
respect of any net rents from a re-letting except to the extent that such net
rents are actually received by Landlord prior to the commencement of such suit,
and (3) if the Demised Premises or any part thereof should be re-let in
combination with other space,
- 37 -
then proper apportionment on a square foot area basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
For the purpose of paragraph (a) of this Section 17.02, the amount of
additional rent which would have been payable by Tenant under Article 3 hereof
for each year, as therein provided, ending after such termination of this Lease
or such re-entry, shall be deemed to be an amount equal to the amount of such
additional rent payable by Tenant for the calendar year and Tax Year ending
immediately preceding such termination of this Lease or such re-entry. Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Term of this Lease would have expired if it had not been terminated under
the provisions of Articles 16 or 17 hereof, or under any provision of law, or
had Landlord not re-entered the Demised Premises.
Landlord, at Landlord's option, may make such alterations, repairs,
replacements and/or decorations in the Demised Premises as Landlord in
Landlord's sole judgment considers advisable and necessary for the purpose of
re-letting the Demised Premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from any
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to re-let the Demised Premises, or in the event that
the Demised Premises are re-let, for failure to collect the rent thereof under
such re-letting. In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Demised Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease, or
otherwise.
ARTICLE 18
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
Section 18.01. If Tenant shall default in the observance or performance
of any term or covenant on its part to be observed or performed under or by
virtue of any of the terms or provisions in any Article of this Lease, Landlord,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of Tenant.
- 38 -
If Landlord makes any expenditures or incurs any obligations for the payment of
money in connection therewith, including, but not limited to, attorneys' fees in
instituting, prosecuting or defending any action or proceedings, such sums paid
or obligations incurred with interest computed at the Interest Rate and costs
shall be deemed to be additional rent hereunder and shall be paid to it by
Tenant on demand.
ARTICLE 19
COVENANT OF QUIET ENJOYMENT
Section 19.01. Landlord covenants that upon Tenant paying the Fixed
Rent and additional rents and observing and performing all the terms, covenants
and provisions of this Lease on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Demised Premises, subject
nevertheless to the terms and conditions of this Lease and provided, however,
that no eviction of Tenant by reason of paramount title, the foreclosure of any
mortgage now or hereafter affecting the Demised Premises or by reason of any
termination of any ground or underlying lease to which this Lease is subject and
subordinate, whether such termination is by operation of law, by agreement or
otherwise, shall be construed as a breach of this covenant nor shall any action
by reason thereof be brought against Landlord, and provided further that this
covenant shall bind and be enforceable against Landlord, subject to the terms
hereof, only so long as Landlord is in possession and is collecting rent from
Tenant but not thereafter.
ARTICLE 20
EXCAVATION
Section 20.01. In the event that an excavation should be made for
building or other purposes upon land adjacent to the Building, or should be
authorized to be made, Tenant shall, if necessary, afford to the person or
persons causing or authorized to cause such excavation, license to enter upon
the Demised Premises for the purpose of doing such work as shall reasonably be
necessary to protect or preserve the wall or walls of the Building, or the
Building, from injury or damage and to support them by proper foundations,
pinning and/or underpinning.
ARTICLE 21
SERVICES AND EQUIPMENT
Section 21.01. So long as this Lease is in full force and effect,
Landlord shall, at its cost and expense:
(a) Provide necessary elevator facilities on Business Days
from 8:00 A.M. to 6:00 P.M. and shall have sufficient
- 39 -
elevators available at all other times. At Landlord's option, the elevators
shall be operated by automatic control or by manual control, or by a combination
of both of such methods.
(b) (i) Maintain and keep in good order and repair the
air-conditioning, heating and ventilating system installed by Landlord, which
system is further described hereinbelow. The "interior" portion of said system
will be operated by Landlord as seasonably required on Business Days from 8:00
A.M. to 6:00 P.M. and the "perimeter" portion of said system shall be under
Tenant's control. Landlord shall have no responsibility or liability for the
ventilating conditions and/or temperature of the Demised Premises during the
hours or days Landlord is not required to furnish heat, ventilation or
air-conditioning pursuant to this paragraph. Landlord has informed Tenant that
the windows of the Demised Premises and the Building may be sealed and that
accordingly, the Demised Premises may become uninhabitable and the air therein
unbreathable during the hours or days when Landlord is not required pursuant to
this paragraph to furnish heat, ventilation or air-conditioning. Such condition
of the Demised Premises shall not constitute nor be deemed to constitute a
breach or a violation of this Lease or of any provision thereof, nor shall such
condition of the Demised Premises constitute or be deemed to constitute an
eviction and Tenant shall not claim nor be entitled to claim any abatement of
rent or make any claim for any damages or compensation by reason of such
condition of the Demised Premises. Any use or occupancy of the Demised Premises
during the hours or days Landlord is not required to furnish heat, ventilation
or air-conditioning to the Demised Premises pursuant to this paragraph shall be
at the sole risk, responsibility and hazard of Tenant. Tenant shall in any event
cause all of the windows in the Demised Premises to be kept closed at all times
and shall cause all of the vents, intakes, outlets and grilles in the Demised
Premises to be kept entirely unobstructed at all times. Additionally, Tenant
shall comply with and observe any and all rules, regulations and requirements
hereafter prescribed by Landlord for the proper functioning of the heating,
ventilating and air-conditioning system.
(ii) The heating, ventilating and air-conditioning
system servicing the Demised Premises consists, as of the date hereof, of an
interior duct air distribution system and perimeter units. The perimeter units
serve that portion of the Demised Premises which is within 15 feet from the
glass line of the Building and operate automatically, commencing operation at
8:00 A.M. and ceasing operation at 6:00 P.M. The perimeter units may be
activated by Tenant at any other time and upon activation will operate for a
pre-programmed period of time and may be reactivated by Tenant thereafter on a
continuing basis. All electricity used in connection with the operation of the
perimeter units shall be supplied by Landlord upon and subject to all of the
terms and conditions contained in Article 4 hereof.
- 40 -
(iii) In the event that Tenant shall require operation
of the "interior" portion of the air-conditioning, heating or ventilation system
at times other than as described above, Tenant shall give Landlord at least
twenty-four (24) hours advance notice of such requirement and, if reasonably
practicable, Landlord will arrange for such operation and Tenant shall pay
Landlord's established charges therefor as additional rent, including with
respect to minimum number of hours and/or minimum floor area for such operation.
(c) Provide cleaning and janitorial services on Business Days
as described in Schedule D annexed hereto.
(d) Furnish hot and cold water for lavatory and drinking and
office cleaning purposes. If Tenant requires, uses or consumes water for any
other purposes, Tenant agrees to Landlord installing a meter or meters or other
means to measure Tenant's water consumption, and Tenant further agrees to
reimburse Landlord for the cost of the meter or meters and the installation
thereof, and to pay for the maintenance of said meter equipment and/or to pay
Landlord's cost of other means of measuring such water consumption by Tenant.
Tenant shall reimburse Landlord the cost of all water consumed, as measured by
said meter or meters or as otherwise measured, including sewer rents.
(e) Provide Tenant with its proportional share of directory
listings on the Building lobby directory, free of charge to Tenant. Landlord may
make a reasonable charge for any changes to the directory listings.
Section 21.02. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Article 21
when the necessity therefor arises by reason of accident, emergency, mechanical
breakdown, or when required by any law, order or regulation of any federal,
state, county or municipal authority, or for any other cause beyond the
reasonable control of Landlord. Landlord shall do any work pursuant to this
Article in such a manner so as to minimize interference with Tenant's business,
provided no additional costs, for labor at overtime or premium rates, or
otherwise, are incurred thereby. No diminution or abatement of rent or other
compensation shall or will be claimed by Tenant as a result of any interruption,
curtailment or suspension of services, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of such interruption,
curtailment or suspension.
Section 21.03. Tenant shall reimburse Landlord for the cost to Landlord
of removal from the Demised Premises and the Building of so much of any refuse
and rubbish of Tenant as shall exceed that ordinarily accumulated daily in the
routine of business
- 41 -
office occupancy or by any use of the Demised Premises after customary business
hours.
Section 21.04. It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen, towels, drinking water, ice and other
similar supplies and services to tenants and licensees in the Building. Landlord
may fix, in its sole and absolute discretion, at any time and from time to time,
the hours during which and the regulations under which such supplies and
services are to be furnished. Landlord expressly reserves the right to act as or
to designate, at any time and from time to time, an exclusive supplier of all or
any one or more of the said supplies and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers and Landlord furthermore expressly reserves the right to exclude from
the Building any person, firm or corporation attempting to furnish any of said
supplies or services but not so designated by Landlord.
Section 21.05. It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to sell, deliver or furnish any food or beverages, either personally
or through the use of vending machines, for consumption within the Demised
Premises or elsewhere in the Building. Landlord expressly reserves the right to
act as or to designate at any time, or from time to time, an exclusive supplier
or suppliers of such food and beverages sold in the Building and Landlord
further expressly reserves the right to exclude from the Building any person,
firm or corporation attempting to purvey any such food or beverages but not so
designated by Landlord. It is understood, however, that Tenant or regular office
employees of Tenant who are not employed by any supplier of such food or
beverages or by any person, firm or corporation engaged in the business of
purveying such food or beverages, may personally bring or have delivered into
the Building food or beverages for consumption within the Demised Premises by
employees of Tenant, but not for resale to or for consumption by any other
tenant. Landlord may fix in its absolute discretion, at any time and from time
to time, the hours during which and the regulations under which foods and
beverages may be brought or delivered into the Building by or for regular
employees of Tenant. Notwithstanding the foregoing, it is understood that Tenant
or regular office employees of Tenant who are not employed by any supplier of
such food or beverages or by any person, firm or corporation engaged in the
business of purveying such food or beverages, may personally bring food or
beverages into the Building for consumption within the Demised Premises by
employees of Tenant, but not for resale to or for consumption by any other
tenant. It is further understood that Tenant may order food and beverages for
delivery to Tenant in the Demised Premises for consumption by Tenant's employees
and invitees from contractors, restaurants and caterers selected by
- 42 -
Tenant, without obtaining Landlord's prior consent, provided however that if
Landlord determines that the delivery by any such contractor, restaurant or
caterer poses a security risk to the Building personnel or to other tenants in
the Building or otherwise causes a nuisance or disruption in the Building,
Landlord may exclude same from the Building.
Section 21.06. Tenant agrees to employ such office maintenance
contractor as Landlord may from time to time designate, for all waxing,
polishing, lamp replacement, cleaning (other than those cleaning services
Landlord is obligated to furnish) and the maintenance work in the Demised
Premises, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors. Tenant shall not employ any
other contractor without Landlord's prior written consent, which shall not be
unreasonably withheld (except that Tenant's own employees, not including any
affiliate or Related Entity, may provide such services to Tenant only).
Section 21.07. Landlord will not be required to furnish any other
services, except as otherwise provided in this Lease.
Section 21.08. (a) Tenant, at its sole cost and expense, shall cause
the Demised Premises to be exterminated on a monthly basis to the satisfaction
of Landlord and shall for such purposes employ exterminators designated by
Landlord.
(b) If Tenant shall have facilities on the Demised Premises
for cooking, drinking, eating, washing and/or storage of food, or similar items,
Tenant shall, on a weekly basis, cause the portion of the Demised Premises on
which such facilities are located to be exterminated to the satisfaction of
Landlord by exterminators designated by Landlord. The foregoing shall not,
however, constitute any approval or consent to the use of the Demised Premises
for such purposes.
(c) If Tenant fails to comply with the provisions of this
Section 21.08, Landlord, in addition to any other remedies available to it under
this Lease or pursuant to law, may perform such service, and the cost therefor
shall be paid by Tenant on demand as additional rent hereunder.
ARTICLE 22
DEFINITION OF LANDLORD
Section 22.01. The term "Landlord" wherever used in this Lease shall be
limited to mean and include only the owner or owners at the time in question of
the Land and the Building or the Building or the tenant under a ground or
underlying lease affecting the Land and the Building or the Building, or both,
to whom this Lease may be assigned, or a mortgagee in possession, so
- 43 -
that in the event of any sale, assignment or transfer of the Land and the
Building or the Building, or of such ground or underlying lease, such owner,
tenant under a ground lease or mortgagee in possession shall thereupon be
released and discharged from all covenants, conditions and agreements of
Landlord thereafter accruing hereunder; but such covenants, conditions and
agreements shall be binding upon each new owner, tenant under a ground or
underlying lease, or mortgagee in possession for the time being of the Land and
the Building, until sold, assigned or transferred.
ARTICLE 23
INVALIDITY OF ANY PROVISION
Section 23.01. If any term, covenant, condition or provision of this
Lease or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease, or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
ARTICLE 24
BROKER
Section 24.01. The parties hereto agree that Xxxxxx Xxxxxx & Company,
Inc. and SageGroupAssociates Inc. (collectively, the "Brokers") were the only
brokers which negotiated and brought about this transaction, and Landlord agrees
to pay the Brokers a commission therefor as per separate agreements. Tenant
represents and warrants that it has not dealt with any broker other than the
Brokers, and Tenant agrees to indemnify and save Landlord harmless from any
claims made by other brokers claiming to have dealt with Tenant. Landlord
represents that it has not dealt with any broker other than the Brokers, and
Landlord agrees to indemnify and save Tenant harmless from any claims made by
other brokers claiming to have dealt with Landlord.
ARTICLE 25
SUBORDINATION
Section 25.01. This Lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the Building of which the Demised Premises forms a part, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This clause
- 44 -
shall be self-operative, and no further instrument of subordination shall be
required by any mortgagee. In confirmation of such subordination, Tenant shall
execute promptly any certificate that Landlord may request. Tenant hereby
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such certificate or certificates for and on behalf of Tenant.
Section 25.02. At the option of Landlord or any successor landlord or
the holder of any mortgage affecting the Demised Premises, Tenant agrees that
neither the cancellation nor termination of any ground or underlying lease to
which this Lease is now or may hereafter become subject or subordinate, nor any
foreclosure of a mortgage affecting said premises, nor the institution of any
suit, action, summary or other proceeding against Landlord herein or any
successor landlord, or any foreclosure proceeding brought by the holder of any
such mortgage to recover possession of such property, shall by operation of law
or otherwise result in cancellation or termination of this Lease or the
obligations of Tenant hereunder, and upon the request of any such landlord,
successor landlord, or the holder of such mortgage, Tenant covenants and agrees
to attorn to Landlord or to any successor to Landlord's interest in the Demised
Premises, or to such holder of such mortgage or to the purchaser of the
mortgaged premises in foreclosure.
Section 25.03. In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, pursuant to the terms of this Lease, if any, Tenant will not
exercise any such right until:
(i) it has given written notice of such act or omission to the
following (whose names and addresses shall previously have been furnished to
Tenant) by delivering such notice of such act or omission addressed to such
holders at the last address so furnished:
(a) the holder of any first mortgage, and
(b) the landlord under any ground or underlying lease to which
this Lease is subject and subordinate; and
(ii) a reasonable period for remedying such act or omission shall have
elapsed following such giving of notice during which such parties, or any of the
parties, with reasonable diligence, following the giving of such notice, has not
commenced and continued to remedy such act or omission or to cause the same to
be remedied.
Section 25.04. If, in connection with obtaining financing, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications in this Lease as a condition to
- 45 -
such financing, Tenant will not unreasonably withhold, delay or defer its
consent thereto, provided that such modifications do not, in Tenant's reasonable
opinion, increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's use and enjoyment of
the Demised Premises.
ARTICLE 26
ESTOPPEL CERTIFICATE
Section 26.01. Tenant agrees, at any time, and from time to time, upon
not less than ten (10) days prior notice from Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing addressed to Landlord certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the Fixed Rent,
additional rental and other charges have been paid, and stating whether or not
to the best knowledge of the signer of such certificate, there exists any
default in the performance of any covenant, agreement, term, provision or
condition contained in this Lease, and any claim or offset in favor of Tenant,
and, if any, specifying each such default, claim or offset in favor of Tenant,
and, if any, specifying each such default, claim or offset of which signer may
have knowledge, it being intended that any such statement delivered pursuant
hereto may be relied upon by Landlord and by any purchaser or prospective
purchaser of the Building and/or the Land and by any mortgagee or prospective
mortgagee of any mortgage affecting the Building and/or the Land, and by any
landlord under a ground or underlying lease affecting the Land or the Building.
ARTICLE 27
LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL
Section 27.01. Landlord and Tenant hereby waive, to the extent such
waiver is not prohibited by law, the right to a jury trial in any action,
summary proceeding or legal proceeding between or among the parties hereto or
their successors arising out of this Lease or Tenant's occupancy of the Demised
Premises or Tenant's right to occupy the Demised Premises.
Section 27.02. Tenant hereby waives the right to interpose a
counterclaim (other than a mandatory counterclaim) in any summary proceeding
instituted by Landlord against Tenant or in any action instituted by Landlord
for unpaid rent or additional rent under this Lease.
Section 27.03. Tenant hereby agrees that the existence of any legal
proceeding arising under this Lease, or any judgment
- 46 -
resulting therefrom, shall remain confidential and to that end shall not discuss
with, or make public disclosure of, the same to the press, other tenants of the
Building, or otherwise except if, and to the extent that, such disclosure is
required by a court of competent jurisdiction and Tenant may make such
disclosure to its attorneys and accountants. The parties hereto understand and
agree that the papers filed in the course of any such legal proceeding may be
available to the public but this Section 27.03 is understood by Tenant as a
prohibition against any public discussion or disclosure of the same, including
any response to any query from the press, other tenants of the Building or
otherwise.
Section 27.04. A. In the event Tenant claims or asserts that Landlord
has violated or failed to perform a covenant of Landlord not to unreasonably
withhold or delay Landlord's consent or approval, or in any case where
Landlord's reasonableness in exercising its judgment is in issue, Tenant's sole
remedy shall be an action for specific performance, declaratory judgment or
injunction, and in no event shall Tenant be entitled to any money damages for a
breach of such covenant, and in no event shall Tenant claim or assert any claims
in any money damages in any action or by way of set-off, defense or
counterclaim, and Tenant hereby specifically waives the right to any money
damages or other remedies.
B. In the event that Tenant shall request Landlord's consent
to an assignment of this Lease or a proposed subletting or occupancy of all or
any portion of the Demised Premises and Tenant believes that Landlord has
unreasonably withheld or delayed the same, such dispute, but no other matter
whatsoever (except for any other matter under this Lease for which arbitration
is provided as the method of dispute resolution, in which event such matter
shall be resolved in a separate arbitration proceeding), shall be resolved by
arbitration in Manhattan by an arbitrator selected from the panel of retired
judges maintained by Comprehensive Alternative Dispute Resolution Enterprises,
Inc. ("CADRE"). If CADRE shall no longer exist or shall be unwilling or unable
to act, such dispute shall be resolved by another reputable commercial
arbitration company which has expedited arbitration procedures which meet the
time frame set forth herein, as Landlord shall select (the "Company"), provided,
however, that Tenant may dispute Landlord's choice of the Company, in which
event the parties shall mutually agree upon the Company, and if the parties
shall be unable to agree upon the Company, the Company shall be appointed by any
judge of a court of competent jurisdiction in the City of New York. Upon
selection of the Company the parties agree that the balance of this Section
27.04B shall continue to apply with the substitution of the Company in lieu of
CADRE. If Tenant so desires to submit such dispute to CADRE, Tenant shall notify
Landlord of such desire, and within ten (10) Business Days thereafter, Tenant
shall make such submission and deliver all applicable
- 47 -
applications and documents to CADRE with a copy of the entire submission being
delivered simultaneously to Landlord. The arbitration shall be conducted
pursuant to the then existing rules, regulations, practices and procedures of
CADRE and provided such rules so permit, within five (5) Business Days after
Tenant's submission or application, the arbitration shall commence two (2)
Business Days thereafter and shall be conducted for at least seven (7) hours on
each Business Day thereafter until completion, each party having no more than a
total of fifteen (15) hours to present its case and to cross-examine or
interrogate persons supplying information or documentation on behalf of the
other party. If such rules do not permit such expedited procedure, then such
rules of CADRE shall govern, it being the intent of the parties to conduct the
arbitration in the most expeditious manner permitted by the rules. The
arbitrator shall make a determination within five (5) Business Days after
conclusion of the arbitration; such determination to be strictly limited to
whether or not Landlord's failure to consent to any proposed assignment of this
Lease or proposed sublease or occupancy of all or any portion of the Demised
Premises was reasonable, and, if such failure shall be found to be unreasonable,
whether the same was in bad faith. No monetary award shall be awarded as a
result of any proceeding pursuant to this Section, Landlord's sole
responsibility in the event of a negative determination being the requirement of
granting its consent to Tenant's proposed assignment, sublease or occupancy as
the case may be, except that (i) the prevailing party shall have the right to be
reimbursed for its reasonable fees and expenses within twenty (20) days after
submission of a xxxx therefor to the losing party, and (ii) in the event that
pursuant to this arbitration procedure Landlord shall be found to have acted in
bad faith in withholding its consent to Tenant's proposed assignment, sublease
or occupancy, but, due solely to the delay caused by such procedure, Tenant's
proposed assignee or sublessee or occupant shall not be obligated to assume this
Lease or sublease or occupy the proposed portion of the Demised Premises,
Landlord shall, at Tenant's option be required to step into the position of such
assignee or sublessee or occupant upon the terms and conditions contained in the
submission required to be made to Landlord (including, if the same would have
been the obligation of the subtenant or occupant, constructing, at Landlord's
own cost and expense any required demising walls). Any determination pursuant to
this Section shall be final and binding upon the parties and each party shall
pay its respective costs of any proceedings pursuant to this Section (except
that the prevailing party shall have the right to be reimbursed for its
reasonable fees and expenses within twenty (20) days after submission of a xxxx
therefor to the losing party). Any determination pursuant to this Section shall
be confidential and neither Landlord, Tenant, nor any entity acting on behalf of
either shall in any manner whatsoever make any public disclosure of any such
determination to representatives of the press, to other tenants of the Building,
or otherwise unless required by law or
- 48 -
regulation or order or directive of a court of competent jurisdiction.
ARTICLE 28
SURRENDER OF PREMISES/HOLDOVER
Section 28.01. Upon the expiration or other termination of the Term of
this Lease, Tenant shall quit and surrender the Demised Premises in good order
and condition, ordinary wear and tear and damage by fire or other casualty, the
elements and any cause beyond Tenant's reasonable control excepted, and shall
remove all its property therefrom, except as otherwise provided in this Lease.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease.
Section 28.02. If at any time during the last month of the Term of this
Lease, Tenant shall cease to occupy the Demised Premises and shall have removed
all or substantially all of Tenant's property from the Demised Premises,
Landlord may, and Tenant irrevocably grants to Landlord a license to,
immediately enter and alter, renovate and redecorate the Demised Premises,
without diminution or abatement of rent, or incurring liability to Tenant for
any compensation, and such acts shall have no effect on this Lease and Tenant
shall have no liability for any acts or omissions occurring in the Demised
Premises after Tenant shall have ceased occupancy thereof.
Section 28.03. Tenant agrees it shall indemnify and save Landlord
harmless against all costs, claims, loss or liability resulting from delay by
Tenant in surrendering the Demised Premises upon expiration or sooner
termination of the term of this Lease, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant timely to
surrender the Demised Premises will be substantial, will exceed the amount of
monthly rent theretofore payable hereunder, and will be impossible of accurate
measurement. Tenant therefore agrees that if possession of the Demised Premises
is not surrendered to Landlord within fifteen (15) days after the date of the
expiration or sooner termination of the Term of this Lease, then Tenant will pay
Landlord as liquidated damages for each month and for each portion of any month
during which Tenant holds over in the Demised Premises after expiration or
sooner termination of the Term of this Lease, a sum equal to two and one-half (2
1/2) times the average rent and additional rent which was payable per month
under this Lease during the six (6) month period preceding such expiration or
termination of the Term of this Lease. The aforesaid obligations shall survive
the expiration of sooner termination of the Term of this Lease.
- 49 -
ARTICLE 29
RULES AND REGULATIONS
Section 29.01. Tenant, its servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with the rules and
regulations set forth in Schedule C attached hereto and made a part hereof.
Landlord shall have the right from time to time during the Term of this Lease to
make reasonable changes in and additions to the rules thus set forth.
Section 29.02. Any failure by Landlord to enforce any rules and
regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of any such rules and
regulations.
ARTICLE 30
NOTICES
Section 30.01. Any notice, request or demand permitted or required to
be given by the terms and provisions of this Lease, or by any law or
governmental regulation, either by Landlord to Tenant or by Tenant to Landlord,
shall be in writing. Unless otherwise required by such law or regulation, such
notice, request or demand shall be given, and shall be deemed to have been
served and given by Landlord and received by Tenant, when Landlord (1) shall
have deposited such notice, request or demand by registered or certified mail
enclosed in a securely closed postpaid wrapper, in a United States Government
general or branch post office, addressed to Tenant at the Demised Premises, and
(2) until Tenant has moved its offices to the Demised Premises, shall have
deposited such notice, request or demand by registered or certified mail
enclosed in a securely closed postpaid wrapper in such a post office addressed
to Tenant at its address as stated on the first page of this Lease.
Additionally, a copy of all notices to Tenant shall be sent to Xxxx Xxxxxxxx
Esq., Finkelstein, Bruckman, Xxxx, Most & Xxxxxxx, 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Such notice, request or demand shall be given,
and shall be deemed to have been served and given by Tenant and received by
Landlord, when Tenant shall have deposited such notice, request or demand by
registered or certified mail enclosed in a securely closed postpaid wrapper in
such a post office addressed to Landlord at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Either party may, by notice as aforesaid, designate a different address
or addresses for notices, requests or demands to it.
ARTICLE 31
NO WAIVER: ENTIRE AGREEMENT
Section 31.01. The failure of Landlord to seek redress for violation
of, or to insist upon the strict performance of, any
- 50 -
covenant or condition of this Lease, or any of the Rules and Regulations set
forth or hereafter adopted by Landlord shall not prevent a subsequent act which
would have originally constituted a violation from having all the force and
effect of an original violation. The receipt by Landlord of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the Rules and Regulations set
forth, or hereafter adopted, against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and Regulations. No
provision of this Lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
Section 31.02. This Lease with the Schedules annexed hereto, if any,
contains the entire agreement between Landlord and Tenant, and any executory
agreement hereafter made between Landlord and Tenant shall be ineffective to
change, modify, waive, release, discharge, terminate, or effect an abandonment
of this Lease, in whole or in part, unless such executory agreement is in
writing and signed by the party against which enforcement of the change,
modification, waiver, release, discharge, termination or the effecting of the
abandonment is sought.
ARTICLE 32
CAPTIONS
Section 32.01. The captions of Articles in this Lease are inserted only
as a matter of convenience and for reference, and they in no way define, limit
or describe the scope of this Lease or the intent of any provision thereof.
ARTICLE 33
INABILITY TO PERFORM
Section 33.01. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on the
part of Tenant to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease or
to supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or
- 51 -
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles or any outside cause whatsoever including but not limited to,
governmental preemption in connection with a National Emergency or by reason of
any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
ARTICLE 34
NO REPRESENTATION BY LANDLORD
Section 34.01. Landlord or Landlord's agents have made no
representations or promises with respect to the Building, the Land or the
Demised Premises except as herein expressly set forth, and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease. The taking of possession of
the Demised Premises by Tenant shall be conclusive evidence, as against Tenant,
that Tenant accepts said premises and that the Demised Premises and the Building
of which the same form a part were in good and satisfactory condition at the
time such possession was so taken.
ARTICLE 35
NAME OF BUILDING
Section 35.01. The Building may be known as or by such name as
Landlord, in its sole discretion, may elect, and Landlord shall have the right
from time to time to change such designation or name without Tenant's consent.
ARTICLE 36
SUCCESSORS AND ASSIGNS
Section 36.01. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and, except as otherwise
provided herein, their assigns.
ARTICLE 37
DEFERRED COLLECTIONS
Section 37.01. If all or any part of the Fixed Rent or additional
rents, as above defined, shall at any time become uncollectible, reduced or
required to be refunded by virtue of any rules, regulations, orders, laws and
ordinances (including, without limitation, rent control or stabilization laws),
or
- 52 -
governmental or quasi-governmental authorities having jurisdiction ("Laws and
Ordinances"), then for the period prescribed by said Laws and Ordinances, Tenant
shall pay to Landlord the maximum amounts permitted pursuant to said Laws and
Ordinances. Upon the expiration of the applicable period of time during which
such amounts shall be uncollectible, reduced or refunded, Tenant shall pay to
Landlord as additional rent, within fifteen (15) days after demand, all such
uncollected, reduced or refunded amounts that would have been payable for the
period absent such Laws and Ordinances; provided, however, that the retroactive
collection thereof shall then be lawful.
ARTICLE 38
FEES/INTEREST/LATE CHARGES
Section 38.01. Whenever any default by Tenant causes Landlord to incur
attorneys' fees and/or any other costs or expenses, Tenant agrees that it shall
pay and/or reimburse Landlord for such reasonable attorneys' fees and such costs
or expenses promptly upon being billed therefor.
Section 38.02. If any monies owing by Tenant under this Lease are paid
more than ten (10) days after the date such monies are payable pursuant to the
provisions of this Lease, Tenant shall pay Landlord interest thereon, at the
Interest Rate, for the period from the date such monies were originally payable
to the date such monies are paid. In the event that twice in any calendar year
Tenant shall have defaulted beyond any applicable notice and cure period in the
payment of Fixed Rent or additional rent, or any part of either, then any
further default by Tenant within such twelve (12) month period shall permit
Landlord to collect from Tenant, upon demand, in addition to any interest
payable pursuant to this Article 38, or elsewhere in this Lease, a late charge
equal to five percent (5%) of the amount of Fixed Rent and additional rent so
due as compensation to Landlord for the costs incurred by it as a result of such
defaults, Landlord and Tenant acknowledging that the actual amount of such costs
would be impossible to ascertain.
ARTICLE 39
ABATEMENT OF RENT
Section 39.01. Anything herein to the contrary notwithstanding,
provided this Lease shall be in full force and effect and Tenant shall not be in
default hereunder beyond any applicable notice and grace periods, the Fixed Rent
shall xxxxx as follows (i) at the rate of $2,724.77 per month for the first
(1st) through the twelfth (12th) months of the Term, and, (ii) at the rate of
$1,816.51 per month for the thirteenth (13th) through the thirty-sixth (36th)
months of the Term.
- 53 -
ARTICLE 40
TENANT'S EXPANSION OPTION
Section 40.01. In the event that Tenant has notified Landlord in
writing that it desires to lease additional space on the 24th floor of the
Building (the "Expansion Space") and provided same becomes available for direct
leasing on or before the date which is not later than the fifth (5th)
anniversary of the Commencement Date (i.e., a lease of such space expires or is
terminated and such space is not leased again by the same tenant or occupant, or
the successors or assigns or subtenants of such tenant or occupant, by renewal
or a new lease or modification of a previous lease and such space is not subject
to any other lease or an option contained in another lease or the space is not
subject to a lease as of the date hereof or the space is not one with respect to
which Landlord has commenced negotiations with any other proposed tenant), then,
Landlord shall send Tenant a notice setting forth the date on which Landlord has
obtained, or anticipates obtaining, vacant possession of the Expansion Space.
Upon Landlord giving such a notice, provided this Lease shall be in full force
and effect and provided that Tenant shall not be in default hereunder beyond any
applicable notice and grace period either as of the date of Tenant's exercise of
the expansion option herein described or as of the day which would otherwise be
the first day of Tenant's leasing of the Expansion Space (which conditions
regarding default may be waived by Landlord in its sole discretion), and further
provided that there shall be not less than five (5) years remaining in the Term
as of the Expansion Space Commencement Date (as hereinafter defined), then
Tenant shall have the option, exercisable by notice to Landlord given within
five (5) days after Landlord's notice to Tenant, time being of the essence with
respect to Tenant's notice, to lease the Expansion Space from Landlord upon the
terms and conditions hereinafter set forth. In the event Tenant fails to
exercise its option to accept the Expansion Space within five (5) days from the
date of the applicable notice from Landlord, Landlord shall have the right to
lease the Expansion Space to any other proposed tenant for any term whatsoever
and Tenant shall be deemed to have waived its rights to the Expansion Space.
Section 40.02. If Tenant exercises its option to lease the Expansion
Space in a timely manner, then on the date (the "Expansion Space Commencement
Date"), Landlord delivers possession of the Expansion Space to Tenant, the
Expansion Space shall be added to the Demised Premises. Tenant acknowledges that
it will take the Expansion Space "as-is", and Landlord shall not be obligated to
perform any work, furnish any materials, or give Tenant any rent credit or work
allowance or any sum of money with respect thereto, and the Expansion Space
shall become part of the Demised Premises upon and subject to all of the terms
and conditions of this Lease, except that the Fixed Rent payable by Tenant for
the Expansion Space shall be equal to the greater of (i) the Fixed Rent then in
effect from time to time for the
- 54 -
Demised Premises (on a per square foot basis) including all escalations and
additional rent payable as herein provided or (ii) the fair market rental value
of the Expansion Space (the "Expansion FMRV"). The Expansion FMRV shall be
determined in accordance with the following procedure:
(i) Immediately after the exercise by Tenant of its option
contained herein, Landlord and Tenant shall use their best efforts to
agree upon the Expansion FMRV. In the event Landlord and Tenant cannot
reach agreement within fifteen (15) Business Days after the date of
Tenant's notice of exercise of its option contained herein, Landlord
and Tenant shall each select a reputable, licensed real estate broker
having an office in New York County and familiar with the rentals then
being charged in the Building and in comparable buildings
(respectively, "Landlord's Broker" and "Tenant's Broker") who shall
confer promptly after their selection by Landlord and Tenant and shall
use their best efforts to agree upon the Expansion FMRV, taking into
consideration all relevant factors, including, as a primary factor, the
rental which Landlord is then commanding or requiring for leases of
comparable space in the Building (or, if there is then no comparable
space in the Building, taking into consideration the quality of
non-comparable space in the Building relative to the Expansion Space)
and also considering all other terms and conditions of this Lease which
are applicable to the Expansion Space. If Landlord's Broker and
Tenant's Broker cannot reach agreement within forty-five (45) days
after the date of Tenant's notice of exercise of its option contained
herein, then within ten (10) days thereafter, they shall designate a
third reputable, licensed real estate broker having an office in New
York County (the "Independent Broker"). Upon the failure of Landlord's
Broker and Tenant's Broker to agree upon the designation of the
Independent Broker, then the Independent Broker shall be appointed by a
Justice of the Supreme Court of the State of New York upon ten (10)
days notice, or by any other court in New York County having
jurisdiction and exercising functions similar to those exercised by the
Supreme Court of the State of New York. Concurrently with such
appointment, Landlord's Broker and Tenant's Broker shall each submit a
letter to the Independent Broker, with a copy to Landlord and Tenant,
setting forth such broker's estimate of the Expansion FMRV, taking into
consideration the factors described above and all other terms and
conditions of this Lease which are applicable to the Expansion Space
(respectively, "Landlord's Broker's Letter" and "Tenant's Broker's
Letter").
- 55 -
(ii) In the event the Expansion FMRV set forth in Landlord's
Broker's Letter and Tenant's Broker's Letter shall differ by less than
$2.50 per square foot for any year during the remainder of the Term,
then the Expansion FMRV shall not be determined by the Independent
Broker, and the Expansion FMRV shall be the average of the Expansion
FMRV set forth in Landlord's Broker's Letter and Tenant's Broker's
Letter. In the event the Expansion FMRV set forth in Landlord's
Broker's Letter and Tenant's Broker's Letter shall differ by more than
$2.49 per square foot per annum for any year during the remainder of
the Term, the Independent Broker shall conduct such investigations and
hearings as he may deem appropriate and shall, within sixty (60) days
after the date of his designation, choose either the rental set forth
in Landlord's Broker's Letter or Tenant's Broker's Letter to be the
Expansion FMRV during the Term and such choice shall be binding upon
Landlord and Tenant. Landlord and Tenant shall each pay the fees and
expenses of its respective broker. The fees and expenses of the
Independent Broker shall be shared equally by Landlord and Tenant.
Section 40.03. In the event the Fixed Rent for the Expansion Space
shall not have been determined prior to the Expansion Space Commencement Date,
then the Fixed Rent for the Expansion Space to be paid by Tenant to Landlord
until such determination has been made shall be the Fixed Rent for the Demised
Premises (on a per square foot basis) immediately preceding the Expansion Space
Commencement Date, including all escalations or additional rent payable pursuant
to Article 3 hereof or as otherwise provided herein. After such determination of
the Fixed Rent for the Expansion Space has been made, any excess rental for the
Expansion Space theretofore paid by Tenant to Landlord shall be credited by
Landlord against the next ensuing monthly installments of Fixed Rent payable by
Tenant to Landlord and any deficiency in Fixed Rent due from Tenant to Landlord
attributable to the Expansion Space shall be immediately paid.
Section 40.04. Promptly after Tenant exercises its option to lease the
Expansion Space and the Fixed Rent for the Expansion Space shall have been
determined, Landlord and Tenant shall execute and deliver an agreement (i)
incorporating the Expansion Space into the definition of the Demised Premises,
(ii) setting forth the Fixed Rent for the Expansion Space, (iii) amending
Section 3.04 to reflect the increase in the Percentage attributable to the
Expansion Space and the increase in the Wage Rate Factor attributable to the
Expansion Space (iv) amending Section 4.01 to reflect the increase in the dollar
amount as set forth therein attributable to the Expansion Space; provided the
- 56 -
failure of the parties to enter into such an agreement shall not affect their
respective rights and obligations hereunder.
Section 40.05. Under no circumstances shall Landlord have any liability
for the failure of any occupant of all or a portion of the Expansion Space to
vacate same at the end of the term of such occupant's lease. Landlord agrees to
take such actions as are reasonable, in its sole judgment, to obtain vacant
possession of any such space at the end of such term provided Landlord's failure
to deliver such possession to Tenant shall in no event affect the enforceability
of this Lease.
ARTICLE 41
TENANT'S TERMINATION OPTION
Section 41.01. Tenant shall have the option to cancel and terminate
this Lease, effective as of the fifth (5th) anniversary of the Commencement Date
(such date is herein referred to as the "Early Termination Date") by written
notice ("Tenant's Termination Notice") delivered to Landlord no later than nine
(9) months prior to such Early Termination Date. Tenant's Termination Notice
shall be accompanied by Tenant's check in the amount of $209,111.22, which sum
represents the unamortized costs of (i) the cost of Landlord's Work, (ii) the
brokerage commission paid in connection with this Lease, (iii) the abatement of
rent contained in Article 39 hereof, and (iv) the difference between the average
Fixed Rent which would have been paid over the entire Term and the Fixed Rent
actually paid by Tenant up to and including the Early Termination Date, together
with interest thereon at the Interest Rate, time being of the essence with
respect to the delivery of Tenant's Termination Notice and check. Upon timely
delivery of Tenant's Termination Notice and the aforementioned check (subject to
collection), this Lease will expire on the Early Termination Date as if such
date were the Expiration Date set forth herein and Tenant shall vacate the
Demised Premises on or before the Early Termination Date leaving the same in the
condition otherwise required upon the expiration or sooner termination of this
Lease.
Section 41.02 The effectiveness of the foregoing option is expressly
conditioned upon there not being any uncured default by Tenant hereunder, beyond
notice and the expiration of any applicable cure period, at the time of the
exercise of said option and at the time of termination (unless Landlord, in its
sole discretion, elects to waive such condition). The Termination Payment shall
be paid by Tenant and received by Landlord as consideration for the privilege of
termination when, as, and if Tenant exercises the said option to terminate this
Lease, as aforesaid.
- 57 -
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
SAGE REALTY CORPORATION, AGENT
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Landlord
CORPORATE TV GROUP, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Tenant
ACKNOWLEDGEMENTS
State of New York )
) ss.:
County of New York )
On the 5th day of August 1996, before me personally came Xxxxxx Xxxxxxx
to me known, who being by me duly sworn, did depose and say that he resides at
00 Xxxxxx Xx., Xxxxx Xxxx, XX that he is the Executive President of SAGE REALTY
CORPORATION, the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto by authority of the Board of
Directors of said corporation.
/s/ Xxxxxxx X. English
-------------------------
Notary Public
No. OIEN5040806
CORPORATE TENANT
State of New York )
) ss.:
County of New York )
On the 1st day of August, 1996, before me personally came
Xxxxxxx Xxxxxx to me known, who, being by me duly sworn did depose and
say that (s)he resides at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000;
that (s)he is the President of Corporate TV Group, Inc., the corporation
described in and which executed the above instrument; and that (s)he signed
(her) his name by order of the Board of Directors of such corporation.
/s/ Xxxx Xxxxxxxx
-------------------------
Notary Public
No. 00-0000000
SCHEDULE "A"
FLOOR PLAN
SEE ATTACHED
SCHEDULE "B"
LANDLORD'S WORK
I. PLANS AND WORK
Within thirty (30) days after the date of this Lease, but in no event
later than August 31, 1996, Tenant shall submit to Landlord for review and
approval complete and detailed final architectural, mechanical and engineering
plans and specifications prepared by Xxxxxxx Xxxxxxxx Design Group, Inc. (which
plans and specifications shall include, without limitation, Tenant's selection
of paint color, carpet color, finish types and millwork) showing the alterations
required by Tenant to the Demised Premises in order to prepare the Demised
Premises for Tenant's occupancy. Tenant's plans and specifications shall be
prepared in accordance with, and Landlord's responsibility shall be limited to,
the specifications set forth in Section IV of this Schedule B, provided,
however, in addition to the specifications set forth in Section IV hereof,
Landlord shall also furnish and install (i) a pantry at a location to be
designated in the Final Plans and approved by Landlord and (ii) in lieu of the
lighting fixtures referred to in paragraph 8 of Section IV hereof, forty-three
2' x 4' parabolic lighting fixtures and five 2' x 2' parabolic lighting fixtures
and three incandescent down lighting fixtures at locations to be designated in
the Final Plans and approved by Landlord. The plans and specifications, as
approved by Landlord, are hereinafter referred to as the "Final Plans" and all
work required by the Final Plans to be performed by Landlord is hereinafter
referred to as "Landlord's Work." The Final Plans shall be prepared by Tenant at
Tenant's own cost and expense provided that Landlord shall reimburse Tenant or
pay Tenant's architect directly up to a maximum of $10,843.00 for the costs
incurred by Tenant in preparation of the Final Plans. In addition to submission
of the aforesaid plans and specifications, Tenant shall also furnish any and all
documents and information which Landlord may reasonably require for submission
to its insurance company(s), mortgagee(s), contractors and other interested
parties.
Tenant shall be responsible for showing that the Final Plans comply
with all applicable laws, rules, ordinances, requirements and regulations of all
governmental and quasi-governmental authorities having jurisdiction over
Landlord's Work and Tenant shall be liable for and shall indemnify Landlord
against any and all claims and expenses arising from or relating to the failure
of the Final Plans to meet such requirements including, without limitation, any
and all costs incurred for revising the Final Plans and correcting faulty work
resulting from errors or omissions in the Final Plans. Landlord's approval of
the Final Plans, Landlord's description of the kind and extent of work to be set
forth in the Final Plans and Landlord's performance of the work in conformity
with the Final Plans shall not make Landlord liable for any expense or claim
which may arise from or relate to the failure of Landlord's Work to meet
applicable laws, rules,
B-2
ordinances, requirements and or regulations of any governmental or
quasi-governmental authority having jurisdiction thereover, nor shall Landlord's
approval of the Final Plans, performance of Landlord's Work or any statement
made herein or in the body of the Lease constitute an express or implied
representation of Landlord that any or all work performed and installation
supplied pursuant to the Final Plans is suitable for the particular requirements
of Tenant or any specific or general use and purpose of Tenant.
Landlord shall cause the Final Plans and/or appropriate building
notices and forms relating thereto to be filed with and approved by any
governmental and quasi-governmental authorities having jurisdiction over
Landlord's Work. All costs, fees and expenses incurred in connection with
obtaining the approvals of and filings with such governmental and
quasi-governmental authorities as well as all engineering and architectural
costs associated therewith, if any, shall be paid for by Tenant and if initially
paid for by Landlord, shall be reimbursed to Landlord upon demand. Any
additional approvals or filings necessitated by changes made by Tenant to the
Final Plans shall be at the sole cost and expense of Tenant.
The submission of the Final Plans to Landlord shall be deemed
authorization by Tenant for Landlord to proceed with the work shown on the Final
Plans, subject to the provisions hereof. Any approvals required to be given by
either party shall be deemed given, unless within five (5) days after any
submission the party receiving the same notifies the submitting party of an
objection thereto. Any architect or designer now or hereafter acting for or on
behalf of Tenant shall be deemed an agent of Tenant and authorized to bind
Tenant in all respects.
The air conditioning system to serve the Demised Premises will be
designed at Landlord's expense. For engineering services required for any other
purposes, Tenant shall reimburse Landlord for the cost of the same. Any changes
to the Final Plans and any changes to the original air-conditioning design
necessitated by any changes made by Tenant to the Final Plans shall be at
Tenant's expense.
Prior to the Commencement Date, entry by Tenant, its agents,
contractors or subcontractors, in or on the Demised Premises for performance of
work in the Demised Premises not included within Landlord's Work, or for any
other purpose whatsoever, shall be at Tenant's sole risk and responsibility.
Upon the request of Landlord, Tenant shall deliver to Landlord policies and
certificates of insurance reasonably satisfactory to Landlord. In the event
Tenant or Tenant's contractor shall enter upon or perform work in the Demised
Premises or any other part of the Building, Tenant agrees to indemnify and save
Landlord free and harmless, from and against any and all claims whatsoever
arising out of said entry or such work.
B-3
Tenant agrees that should Tenant, its agents, contractors or
subcontractors, enter upon the Demised Premises for the purpose of performing
any work not included within Landlord's Work, or for any other purpose
whatsoever, the labor employed by Tenant or anyone performing such work, for or
on behalf of Tenant, shall always be harmonious and compatible with the labor
employed by Landlord or any agents, contractors or subcontractors of Landlord.
Should such labor be unharmonious or incompatible, Landlord may require Tenant,
its agents and/or contractors to withdraw from the Demised Premises. Tenant's
agents, contractors and subcontractors and their respective employees shall
comply with the special rules, regulations and requirements of Building
management for the performance and coordination of said agents, contractors,
subcontractors and their employees so as to avoid the intrusion into the
operation of the Building and to avoid disturbing the quiet enjoyment of other
tenants.
Landlord's Work shall be deemed to be substantially completed
("Substantial Completion" or "Substantially Completed") on the date (the
"Substantial Completion Date") when Landlord's Work shall have been completed in
accordance with the Final Plans with the exception of punchlist items (i.e.,
insubstantial details of construction, mechanical adjustment or decoration which
remain to be performed in connection with Landlord's Work which shall be
completed with reasonable promptness after the Commencement Date).
As a condition to Landlord's permission to Tenant to make any of
Tenant's installations in the Demised Premises, Landlord may require that Tenant
agree with Landlord the fixing of the Commencement Date of this Lease.
II. LIABILITY FOR ABOVE BUILDING STANDARD WORK
All items set forth in Section IV below shall be of manufacture,
material, design, capacity and finish selected by Landlord as the standards of
the Building (the "Building Standard"). Tenant shall be liable to Landlord or
Landlord's designated agent for costs incurred by Landlord in the completion of
Landlord's Work to the extent that (i) such costs are incurred as a result of a
change by Tenant in the work as shown on the Final Plans, or (ii) if the Final
Plans require the performance of work or the installation of items not described
in Section IV below. Landlord or Landlord's agent shall inform Tenant by notice
of the cost of such extra work which shall be payable by Tenant together with a
handling and supervision fee of twenty-one percent (21%) (such costs together
with such fee being collectively, "Tenant's Contribution") as additional rent
within ten (10) days of delivery to Tenant of an invoice for same. Landlord
shall perform such extra work only if Tenant approves the cost thereof in
writing within three (3) days from Landlord's notice thereof.
B-4
III. DELAYS
The term "Tenant Delay" shall mean any delay that Landlord may
encounter in the completion of Landlord's Work by reason of any act, neglect,
failure or omission of Tenant, its agents, servants, contractors, architect or
employees, in the performance of Tenant's obligations under this Schedule B,
including:
1. Any delay in submission of Tenant's complete and detailed final
architectural, mechanical and engineering plans and specifications as and when
described in the first paragraph of this Schedule B;
2. Any delay due to changes made by or on behalf of Tenant in the Final
Plans;
3. Any delay due to Tenant's request for items to be installed within
the Demised Premises not set forth, or in greater quantities than those set
forth, in Section IV, or that have a delivery date which does not provide
sufficient time for installation prior to the otherwise anticipated date of
Substantial Completion (so-called "long lead items"). Landlord agrees to notify
Tenant of any such delay caused by the inclusion in the Final Plans of any long
lead items within five (5) Business Days of becoming aware thereof;
4. Any delay caused by work by or on behalf of Tenant, other than
Landlord's Work as described in the Final Plans; and
5. Non-payment of any installment of Tenant's Contribution, or any
other payment required of Tenant under this Schedule B or elsewhere in the
Lease, when due.
If the Substantial Completion Date shall be delayed by reason of a
Tenant Delay, the Demised Premises shall be deemed to be Substantially Completed
for purposes of the Commencement Date (as defined in the Lease) as of the date
that the Demised Premises would have been Substantially Completed but for any
such Tenant Delay, as determined by Landlord in its reasonable discretion,
whether or not any such Tenant Delay could have been avoided by the commitment
by Landlord of additional personnel to the performance of Landlord's Work. In
addition, Tenant shall, promptly upon demand, reimburse Landlord for all damages
resulting from such Tenant Delay.
IV. SPECIFICATIONS
Except as may be otherwise specifically provided, the following work
and materials shall be provided by Landlord at its sole cost and expense, in
accordance with the Building Standard:
B-5
Certain elements of the following work will or may adjoin, abut or
connect to, previously existing installations. Reasonable effort will be made to
make these conjunctions in a good and workmanlike manner, but Tenant recognizes
and agrees that not all elements will necessarily be newly installed.
1. Partitioning
Gypsum board (5/8") - one side 2-1/2" steel stud and other side two (2)
layers of 5/8" gypsum board, of which one layer shall extend to underside of
floor above; sound transmission class 38; amount as required. Sound baffles will
be installed in peripheral enclosures where partitions abut said enclosure.
2. Doors and Bucks
Integral pressed steel 16 gauge, floor to ceiling bucks; flush
fireproof "3/4 hr." doors, hollow metal, full height; as required. Buck design
affords option of butt or reveal joint. Reveal will be installed unless
otherwise specified. Doors will be undercut to accept carpet.
3. Closets
Each closet shall be 5'0" (nominal in length) ceiling high, with flush
bi-fold doors (as manufactured by Paniflex or equal) and shall have two (2) wood
hat shelves (paint grade) and one (1) metal chrome coat rod; one (1) per tenant
or per 1,500 square feet. Doors will be installed trimless.
4. Hardware
Building standard latch sets (as manufactured by Russwin Mohad, or
equal), 1-1/2" pair Olive Knuckle Hinges; wall door stops for each door. One
lockset on main entrance door with dead bolt (Russwin or equal) master keyed to
Building system; surface mounted model L.C.N. narrow line closer (Xxxxxxx or
equal).
5. Painting
Painting is to be based upon a two coat application for all new
surfaces which shall consist of one coat prime and one coat finish. All existing
surfaces are to be painted one of nine Building Standard colors from Building
Standard color card. It shall be the responsibility of the painting contractor
to guarantee adequate paint coverage, proper surface preparation and knowledge
of all existing conditions. Strict adherence to all Building Standard paint
specifications on file in the Building office is required.
B-6
6. Flooring
Vinyl composition tile floor covering (12" X 12" 1/8"), as manufactured
by Kentile or equal throughout, or Building Standard carpeting, as per Building
Standard selection board, with underlayment; 4" straight black rubber base on
all walls. Flash patching throughout as required. All floors (except where
Tenant chooses to have carpet installed) will be cleaned and/or waxed prior to
occupancy. No "glued down" carpet will be permitted except as set forth below.
Only the following methods of carpet installation shall be permitted:
Carpet Tile: carpet tile may be installed only with releasable
adhesive approved by Landlord allowing for easy removal of such carpet tiles
from sub-floor without damage to said sub-floor.
Broadloom: broadloom may be installed either with releasable adhesive
approved by Landlord allowing for easy removal of such broadloom from sub-floor
without damage to said sub-floor, or with "tack strips" along perimeter of the
carpeted room with commercial grade padding installed underneath broadloom.
7. Hung Ceilings
Manufactured by United States Gypsum ("Glacier" or equal). No
"dutchmans" allowed.
8. Lighting
Four (4) tube fluorescent light fixtures, Building Standard (without
lamps), 2' x 4' (as manufactured by National Lighting or equal); one (1) fixture
per 125 square feet of net rentable area, but in no event in excess of
governmental regulations in effect as of the date of installation. Fixtures may
be new or refurbished from Building stock. All lenses to be new. Tenant to
supply new Building Standard lamps and bulbs which Landlord will install at no
cost.
9. Venetian Blinds
White colored venetian blinds in blind pockets on all windows; no
substitutions will be permitted. Blinds may be new or refurbished from Building
stock.
10. Heating, Ventilating and Air Conditioning
Year-round air conditioning system, combining the use of periphery
units and interior duct air distribution system. The periphery air conditioning
system shall service that portion of
B-7
the Demised Premises being approximately 15' distant from the glass line of the
Building. The air conditioning system shall be designed to maintain interior
conditions of 80(degree) dry bulb and 50% relative humidity when outside
conditions are 95 degrees dry bulb and 75 degrees wet bulb, 70(degree) when
0(degree) outside; and will provide fresh air in a quantity not less than 0.3
cubic feet per minute per square foot of floor area, provided that in any given
room or area of the Demised Premises the occupancy does not exceed one (1)
person for each 100 square feet and the total connected electric load does not
exceed four (4) xxxxx per square foot total, and further provided such
conditions are in conformance with the New York State Energy Conservation Code
effective January 1, 1979.
Interior duct distribution, including Building Standard ducts, grilles,
etc., to accommodate Tenant's layout. Said duct distribution to be designed by
Landlord's engineer only.
For each periphery room Landlord will furnish one or more automatic
thermostatically controlled incremental self contained peripheral units (as
manufactured by Singer/Remington) sized by Landlord's engineer to be of
sufficient capacity to provide heating, ventilating and air conditioning in
accordance with the standards set forth in Section (A) above. The automatic
system will operate from 8:00 a.m. to 6:00 p.m. each Business Day. Heating or
cooling at occupant's selection shall be available at any time in periphery
only. In order to reactivate the system after its automatic shut-off, Tenant
need only press a button within the Demised Premises. Once reactivated, the
system will thereafter automatically shut off at intermittent intervals. It can
again be reactivated upon the pressing of the aforesaid button.
Integrated with the air conditioning unit enclosure will be installed a
system of storage cabinets to provide a complete module of comfort and
convenience. The storage cabinets will be of the open bookcase type with an
adjustable metal shelf and fixed bottom shelf. The cabinets will be 12" deep and
located on both sides of the air conditioning enclosure to provide one
continuous assembly.
11. Electrical Outlets
Duplex receptacles in Building Standard partitions, in base and/or
peripheral enclosures, at prefabricated knockouts, and/or underfloor duct
system, one (1) per 150 square feet of area.
12. Switches
Ceiling fixtures will be serviced by switches as required by the New
York City Building Code, not less than one (1) switch per room.
B-8
13. Telephone
Landlord will supply up to one point of telephone distribution for each
200 square feet of area, through partition (in base) or peripheral knockouts
only and/or conduit up to 3/4" to top of partitions. All wiring shall be done by
Tenant's contractor and Landlord shall have no responsibility for said work.
Work must meet Building Standard criteria, and damage incurred to ceiling or
walls by Tenant's contractor shall be the sole responsibility of Tenant to
repair. Any additional conduit shall be installed by Landlord's contractors and
charged to Tenant.
SCHEDULE "C"
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors,
escalators or elevators for any other purpose. No bicycles, dogs or other
animals may be brought into the Building by Tenant, or its employees, licensees
or invitees. No tenant shall invite to the tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridors, escalators,
elevators and other facilities of the Building by other tenants. Tenant shall
not use or permit its employees to use the elevators before 10:00 A.M. in a
"Down" direction for purposes of taking a coffee break or similar activities.
Fire exits and stairways are for emergency use only, and they shall not be used
for any other purposes by the tenants, their employees, licensees or invitees.
No tenant shall encumber or obstruct, or permit the encumbrance or obstruction
of, any of the sidewalks, plazas, entrances, corridors, escalators, elevators,
fire exits or stairways of the Building. Landlord reserves the right to control
and operate the public portions of the Building and the public facilities, as
well as facilities furnished for the common use of the tenants, in such manner
as it deems best for the benefit of the tenants generally.
2. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
3. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not having a
pass issued by Landlord or not properly identified, and may require all persons
admitted to or leaving the Building outside of ordinary business hours to
register. Tenant's employees, agents and visitors shall be permitted to enter
and leave the Building whenever appropriate arrangements have been previously
made between Landlord and Tenant with respect thereto. Each tenant shall be
responsible for all persons for whom he requests such permission and shall be
liable to Landlord for all acts of such persons. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character, reputation and interests of the Building or its tenants
may be denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion, Landlord may prevent all
access to the Building during the continuance of the same, by closing the doors
or otherwise, for the safety of the tenants and protection of property in the
Building. Landlord may require
C-2
any person leaving the Building with any package or other object to exhibit a
pass from the tenant from whose premises the package or object is being removed,
but the establishment and enforcement, or failure to enforce, of such
requirements shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of the tenant.
Landlord shall, in no way, be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the tenant's
premises or the Building under the provisions of this rule.
4. No tenant shall obtain or accept or use in its premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by Landlord in writing to furnish such services, provided
always that the charges for such services by persons authorized by Landlord are
not excessive. Such services shall be furnished only at such hours, in such
places within the tenant's premises and under such regulations as may be fixed
by Landlord.
5. No awnings or other projections over or around the windows shall be
installed by any tenant and only such window blinds as are supplied, or
permitted by Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise or mail, any hand trucks, except those equipped with rubber tires
and side guards.
7. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left open
at any time. All windows in each tenant's premises shall be kept closed at all
times, and all blinds or drapes therein above the ground floor shall be lowered
or closed when and as reasonably required because of the position of the sun,
during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
8. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other tenants in
the Building shall be made or permitted by any tenant and no cooking shall be
done in Tenant's premises except as expressly approved by Landlord. Nothing
shall be done or permitted in any tenant's premises and nothing shall be brought
into or kept in any tenant's premises which would impair or interfere with any
of the Building services or the proper and economic heating, cleaning or other
servicing of the Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any tenant any
ventilating, air conditioning, electrical or
C-3
other equipment of any kind which, in the judgment of Landlord, might cause any
such impairment or interference. No dangerous, inflammable, combustible or
explosive object or material shall be brought into the Building by any tenant or
with the permission of any tenant.
9. Tenant shall not permit any cooking or food odors emanating from the
Demised Premises to seep into other portions of the Building.
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purpose for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
11. No signs, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside the premises or the Building without the prior written consent
of Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule. Interior
signs and lettering on doors and elevators shall be inscribed, painted, or
affixed for each tenant by Landlord at the expense of such tenant, and shall be
of a size, color and style acceptable to Landlord.
Landlord shall have the right to prohibit any advertising by any tenant
which impairs the reputation of the Building or its desirability as a building
for offices, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any tenant's premises, and no lock on any door
therein shall be changed or altered in any respect. Duplicate keys for a
tenant's premises and toilet rooms shall be procured only from Landlord, which
may make a reasonable charge therefor. Upon the termination of a tenant's lease,
all keys to the tenant's premises and toilet rooms shall be delivered to
Landlord.
13. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Building or the premises demised to such tenant. Not boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Landlord,
C-4
and as Landlord may direct. Not tenant shall install any resilient tile or
similar floor covering in the premises demised to such tenant except in a manner
approved by Landlord.
14. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a xxxxxx or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building or advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any time, as
a store for the sale or display of goods or merchandise or any king, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which involves direct patronage of the general public on
the premises demised to such tenant, or for manufacturing or for other similar
purposes.
16. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside for the regular duties, unless under
special instructions from the office of the Landlord.
17. Each tenant shall, at its expense, provide artificial light in the
premised demised to such tenant for Landlord's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
18. Employees of Tenant shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
19. Any cuspidors or similar containers or receptacles used in the
Demised Premises shall be cared for and cleaned by and at the expense of Tenant.
20. Any and all wet and/or food garbage, including coffee grinds, is to
be deposited in a plastic liner bag in a waste basket or other receptacle.
21. Tenant shall separate all refuse and rubbish of Tenant in
accordance with the methods and procedures set forth, from time to time, by
Landlord.
SCHEDULE "D"
I. GENERAL CLEANING AND JANITORIAL SPECIFICATIONS
A. DAILY SERVICES
1. Empty and clean interiors and exteriors of receptacles
and places for disposal.
2. Empty and clean all ash trays and receptacles.
3. Clean cigarette urns and replace sand and/or water as
necessary.
4. Hand dust all office furniture, fixtures and window
xxxxx. If textolite or similar desk tops are used,
they are to be wiped with a damp cloth.
5. Dust all moldings, door louvers, ventilating louvers within
reach, ledges, radiators, chair rails, baseboards and trim,
damp dusting where necessary.
6. Dust under all desk equipment and damp dust all telephone
equipment, excluding all electronic desk machines (e.g.,
Computer terminals and screens, copiers and faxes).
7. Wash clean all water coolers and fountains.
8. Wipe clean all chrome, aluminum and other metal work
and enamel and mail chutes.
9. Unwaxed flooring, excluding wood, marble, terazzo or carpet,
used as corridors adjacent to the core shall be cleaned and
mopped. This excludes full floor tenants who must maintain
their corridor.
10. Damp wash blackboards unless marked "save".
11. Keep supply closets and slop sinks clean and orderly.
12. Store cleaning equipment in designated areas.
13. Sweep all floors.
14. All tenant kitchen areas are excluded from all cleaning
services.
D-2
B. WEEKLY SERVICES
Wipe clean all brass and other bright work. Refinishing and
polishing special metal surfaces are the responsibility of the
tenant.
C. QUARTERLY SERVICES "HIGH DUSTING"
1. Dust, while in place, all pictures, frames, charts,
graphs and similar wall hangings not reached in nightly
cleaning, as necessary.
2. Dust and clean all vertical surfaces, such as walls,
partitions, doors, door bucks, venetian blinds and other
surfaces not reached in nightly cleaning, as necessary. This
excludes interior glass partitions located in tenant areas.
3. Dust all books while in place in libraries, as
necessary.
4. Dust all door louvers and other ventilating louvers,
grills, etc., as necessary.
5. Clean all pipes and other horizontal surfaces not
reached in nightly cleaning, as necessary. This
excludes interior glass partitions located in tenant
areas.
6. Dust all lighting fixtures, globes, files and open
shelves.
7. Dust all closet shelving and damp mop closet tile
floors.
D. ANNUAL SERVICES
1. Clean all stairwell walls.
2. Dust ceiling surfaces, other than acoustical ceiling
materials, and vacuum clean only acoustical material and other
similar surfaces. Wash ceiling areas around air-diffuser, if
requested.
II. RESTROOMS
With respect to the Building core restrooms only, which
excludes private or executive bathrooms, Contractors shall:
D-3
A. NIGHTLY SERVICES
1. Mop, rinse and dry floors; polish mirrors and glass
shelves, clean enameled surfaces.
2. Wash basins, urinals and bowls using non-abrasive cleaner of
the bacterial disinfectant type in cold water, remove stains
and making certain to clean under sides of rim of urinals and
bowls.
3. Wash both sides of all toilet seats with bacterial
disinfectant type cleaner in cold water.
4. Damp wipe walls and wash the tile wall near urinals
with a disinfectant.
5. Polish flushometers, piping, toilet seat hinges and
other metal if not clean and bright.
6. Fill and maintain mechanical operation of all toilet
tissue, soap and sanitary napkin dispensers. The
Landlord shall be responsible for the cost of
mechanical repairs. The cost of hand towels and soap
are the responsibility of the tenant. The Landlord
pays for toilet paper.
7. All waste paper cans and sanitary disposal receptacles
are to be emptied and thoroughly cleaned and washed, as
necessary.
8. Scrub floors as necessary.
9. Private and executive restrooms are excluded from all
nightly service.
10. All supplies are excluded from private and executive
restrooms.
B. MONTHLY SERVICES
Wash down wall in washrooms and stalls as needed from trim to
floor. This excludes private and executive restrooms.
III. FLOORS
With respect to the Building, Contractor shall:
D-4
A. NIGHTLY CLEANING
1. Sweep all floors.
2. Sweep, wet mop with a detergent and rise all VCT
floors.
3. Landlord will maintain surfaces in all public corridors
of split tenant floors. Full floors are the
responsibility of the tenant.
4. Vacuum carpets in passenger elevators. Clean and
vacuum all elevator saddles and tracks in all floors.
5. Remove gum and foreign matter from all floors as
necessary.
B. WEEKLY CLEANING
1. Sweep stairs in fire stairways and dust handrails.
2. Dust all brass and other bright work. Refinishing or
polishing metal or chrome are excluded.
3. Vacuuming of carpet floors:
(a) Vacuum clean all carpets once weekly in tenant
areas.
(b) Use a heavy-duty machine with an adjustable
height "beater bar" or "beater brush".
(c) Carpet sweep as necessary.
(d) Brush or dust by hand carpet edges inaccessible
to high pressure vacuum attachments as required.
(e) Clean under furniture that can be moved.
(f) DRAPERIES REQUIRE A HAND-TYPE VACUUM ATTACHMENT
TO REMOVE ACCUMULATED DUST.
IV. GLASS
1. The cleaning of interior glass partitions is the
responsibility of the tenant.
2. Window cleaning, other than interior glass partitions, shall
be in accordance with the existing or future schedule
established at the building. The Landlord is responsible for
the cost of this service.
