Exhibit 10.10
EXECUTION ORIGINAL
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AGREEMENT OF LEASE
Between
XX XXXXX OPERATING PARTNERSHIP, L.P.
Landlord,
AND
TOTAL NETWORK SOLUTIONS, INC.
Tenant.
Premises:
Part of the sixth (6th) Floor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
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AGREEMENT OF LEASE, made as of this 21 day of October, 1999 between XX XXXXX
OPERATING PARTNERSHIP, L.P., a New York limited partnership having an office c/o
XX Xxxxx Realty Corp., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Landlord") and TOTAL NETWORK SOLUTIONS, INC., a New York corporation, having
an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. BASIC LEASE TERMS.
A. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord a portion of the sixth (6th) floor, as more particularly shown
hatched on Exhibit 1 annexed hereto and made a part hereof (the "Premises") in
the building known as 0000 Xxxxxxxx, in the Borough of Manhattan, New York
County, City and State of New York (the "Building" and together with the plot of
land upon which such building stands, the "Real Property") for a term (the
"Term") to commence on the "Commencement Date" (hereinafter defined), and to end
on the "Expiration Date" (hereinafter defined), both dates inclusive, unless the
Term shall sooner end pursuant to any of the terms, covenants or conditions of
this Lease or pursuant to law at the "Rent" (hereinafter defined, which Rent
shall also include any additional rent payable hereunder), which Tenant agrees
to pay in lawful money of the United States which shall be legal tender in
payment of all debts and dues, public and private, at the time of payment, in
equal monthly installments, in advance, commencing on the Commencement Date and
on the first (1st) day of each calendar month thereafter during the Term (except
as hereinafter otherwise provided), at the office of Landlord or such other
place as Landlord may designate, without any set-off, offset, abatement or
deduction whatsoever, except that Tenant shall pay the first monthly installment
on the execution hereof. If the Commencement Date (as hereinafter defined) shall
occur on a date other than the first (1st) day of any calendar month, Tenant
shall pay to Landlord, on the first (1st) day of the month next succeeding the
month during which the Commencement Date shall occur, an amount equal to such
proportion of an equal monthly installment of Rent as the number of days from
and including the Commencement Date bears to the total number of days in said
calendar month. Such payment, together with the sum paid by Tenant upon the
execution of this Lease, shall constitute payment of the Rent for the period
from the Commencement Date to and including the last day of the next succeeding
calendar month. In the event that, on the Commencement Date, or thereafter,
Tenant shall be in default in the payment of Rent to Landlord or any affiliate
of Landlord pursuant to the terms of another lease of space with Landlord or any
affiliate of Landlord, or with any predecessor-in-interest of Landlord or
Landlord's affiliate, Landlord may, at Landlord's option and without notice to
Tenant, add the amount of such arrearages to any monthly installment of the Rent
and the same shall be payable to Landlord as additional rent hereunder.
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B. DEFINITIONS. The following definitions contained in this subsection B
of this Article 1 shall have the meanings hereinafter set forth used throughout
this Lease, Exhibits, Schedules and Riders (if any).
(i) "Commencement Date" shall mean October 21, 1999.
(ii) "Expiration Date" shall mean the last day of the month in which
the tenth (10th) anniversary of the Rent Commencement Date (as
hereinafter defined) shall occur.
(iii) "Rent" shall mean:
(a) for the period commencing on the Commencement Date through
and including the day immediately preceding the date on
which the second (2nd) anniversary of the Rent Commencement
Date shall occur, Five Hundred Seventy-Five Thousand Four
Hundred Fifty-Six and 00/100 ($575,456.00) Dollars per
annum, payable in equal monthly installments of Forty-Seven
Thousand Nine Hundred Fifty-Four and 67/100 ($47,954.67)
Dollars each;
(b) for the period commencing on the date on which the second
(2nd) anniversary of the Rent Commencement Date shall occur
through and including the day immediately preceding the
date on which fifth (5th) anniversary of the Rent
Commencement Date shall occur, Six Hundred Sixteen Thousand
Five Hundred Sixty and 00/100 ($616,560.00) Dollars per
annum, payable in equal monthly installments of Fifty-One
Thousand Three Hundred Eighty and 00/100 ($51,380.00)
Dollars each;
(c) for the period commencing on the date on which the fifth
(5th) anniversary of the Rent Commencement Date shall occur
through and including the day immediately preceding the
date on which the eighth (8th) anniversary of the Rent
Commencement Date shall occur, Six Hundred Fifty-Seven
Thousand Six Hundred Sixty-Four and 00/100 ($657,664.00)
Dollars per annum, payable in equal monthly installments of
Fifty-Four Thousand Eight Hundred Five and 33/100
($54,805.33) Dollars each; and
(d) for the period commencing on the date on which the eighth
(8th) anniversary of the Rent Commencement Date shall occur
through and including the Expiration Date, Six Hundred
Ninety-Eight Thousand Seven Hundred Sixty-Eight and 00/100
($698,768.00) Dollars per annum, payable in equal monthly
installments of Fifty-Eight Thousand Two Hundred Thirty and
67/100 ($58,230.67) Dollars each.
(iv) "Rent Commencement Date" shall mean February 21, 2000,
subject to the provisions of Article 23 hereof.
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(v) "Permitted Uses" shall mean executive and general offices
in connection with Tenant's business.
(vi) "Base Tax Year" shall mean the New York City real estate
tax year (as defined in Article 28 hereof) 1999/2000.
(vii) "Tenant's Proportionate Share" shall mean percent four and
five hundredths percent (4.05%), based upon the agreement
of the parties hereto that the Premises is deemed to
consist of 20,552 rentable square feet and the Building is
deemed to consist of 507,948 rentable square feet.
(viii) "Base Rate" shall mean the Rate (as hereinafter defined) in
effect during the calendar year 2000.
(ix) "Multiplication Factor" shall mean 20,552.
(x) "Security Deposit" shall mean the sum of $191,818.68.
(xi) "Broker" shall mean collectively, Xxxxxxx Xxxxxx and
Company, Inc. and XX Xxxxx Leasing, Inc.
(xii) "Hazardous Substances" shall mean, collectively, (a)
asbestos and polychlorinated biphenyls and (b) hazardous or
toxic materials, wastes and substances which are defined,
determined and identified as such pursuant to any law.
Notwithstanding anything to the contrary contained in this subsection B
of this Article 1, Articles 1 through 39 shall control the rights and
obligations of the parties hereto except that the provisions of any Exhibits and
Schedules shall supersede any inconsistent provisions in Articles 1 through 39,
as the case may be.
C. RENT CREDIT. Notwithstanding anything to the contrary herein above set
forth, provided this Lease is in full force and effect and Tenant is not in
default under this Lease, Tenant shall be entitled to a credit against the Rent
for the four (4) month period commencing on the Commencement Date and ending on
the day immediately preceding the Rent Commencement Date in the aggregate amount
of $191,818.68 which credit shall be applied against the Rent in equal monthly
installments of $47,954.67. The foregoing rent credit shall be null and void "ab
initio" if Landlord at any time terminates this Lease on account of any default
of Tenant under this Lease or re-enters or repossesses the Premises on account
of any default of Tenant under this Lease, and Landlord shall be entitled to
recover from Tenant, in addition to all other amounts Landlord is entitled to
recover, the aggregate amount of the rent credit herein provided for.
2. USE AND OCCUPANCY.
A. PERMITTED USES. Tenant shall use and occupy the Premises for the
Permitted Uses, and for no other purpose.
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B. USE PROHIBITIONS. Tenant hereby represents, warrants and agrees that
Tenant's business is not and shall not be photographic, multilith or multigraph
reproductions or offset printing. Anything contained herein to the contrary
notwithstanding, Tenant shall not use the Premises or any part thereof, or
permit the Premises or any part thereof to be used, (i) for the business of
photographic, multilith or multigraph reproductions or offset printing, (ii) for
a banking, trust company, depository, guarantee or safe deposit business, (iii)
as a savings bank, a savings and loan association or a loan company, (iv) for
the sale of travelers checks, money orders, drafts, foreign exchange or letters
of credit or for the receipt of money for transmission, (v) as a "retail" stock
broker's or dealer's office which shall be open to the general public (except
pursuant to prior appointment), (vi) as a restaurant or bar or for the sale of
confectionery, soda, beverages, sandwiches, ice cream or baked goods or for the
preparation, dispensing or consumption of food or beverages in any manner
whatsoever, (vii) as a news or cigar stand, (viii) as an employment agency,
labor union office, physician's or dentist's office or for the rendition of any
other diagnostic or therapeutic services, dance or music studio, school (except
for the training of employees of Tenant), (ix) as a xxxxxx shop, beauty salon or
manicure shop (x) for the direct sale, at retail, wholesale or otherwise, of any
goods or products, (xi) for a public stenographer or typist, (xii) for a
telephone or telegraph agency, telephone or secretarial service for the public
at large, (xiii) for a messenger service for the public at large, (xiv) gambling
or gaming activities, obscene or pornographic purposes or any sort of commercial
sex establishment (xv) for the possession, storage, manufacture or sale of
alcohol, drugs or narcotics, (xvi) for the conduct of a public auction, (xvii)
for the offices or business of any federal, state or municipal agency or any
agency of any foreign government or (xviii) for any use that would cause the
Premises to be deemed a place of public accommodation under the Americans with
Disabilities Act of 1990. Nothing in this subsection B shall preclude Tenant
from using any part of the Premises for photographic, multilith or multigraph
reproductions in connection with, either directly or indirectly, its own
business and/or activities.
3. ALTERATIONS.
A. ALTERATIONS WITHIN PREMISES. Tenant shall not make or perform or
permit the making or performance of, any alterations, installations,
improvements, additions or other physical changes in or about the Premises
("Alterations") without Landlord's prior consent. Landlord agrees not to
withhold or delay unreasonably its consent to any Alterations proposed to be
made by Tenant to adapt the Premises for those business purposes permitted by
subsection A of Article 2 hereof, which are nonstructural and which do not
affect the Building's mechanical, electrical, plumbing, Class E or other
Building systems or the structural integrity of the Building, provided that such
Alterations are performed only by contractors or mechanics approved by Landlord,
do not affect any part of the Building other than the Premises, do not affect
any service required to be furnished by Landlord to Tenant or to any other
tenant or occupant of the Building, do not reduce the value or utility of the
Building and are performed in compliance with all applicable laws. Tenant shall
not perform work which would (i) require changes to the structural components of
the Building or the exterior design of the Building, (ii) require any material
modification to the Building's mechanical, electrical, plumbing installations or
other Building installations outside the Premises, (iii) not be in compliance
with all applicable laws, rules, regulations and requirements of any
governmental department having jurisdiction over the Building and/or the
construction of the Premises, including, but not limited to, the Americans with
Disabilities Act of 1990, or (iv) be incompatible with the Certificate of
Occupancy for the Building. Any changes required by any governmental department
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affecting the construction of the Premises required in connection with Tenant's
particular manner of use of the Premises (other than use of be Premises for
executive and general offices) or the acts or omissions of Tenant or any person
or entity acting by or on behalf of Tenant including the performance of
Alterations shall be performed at Tenant's sole cost. All Alterations shall be
done at Tenant's expense and at such times and in such manner as Landlord may
from time to time reasonably designate pursuant to the conditions for
Alterations prescribed by Landlord for the Premises. A copy of the current
construction conditions and requirements for tenant alteration work and new
construction is annexed hereto as Schedule D and made a part hereof. All
furniture, furnishings and movable fixtures and removable partitions installed
by Tenant must be removed from the Premises by Tenant, at Tenant's expense,
prior to the Expiration Date. All Alterations in and to the Premises which may
be made by Landlord or Tenant prior to and during the Term, or any renewal
thereof, shall become the property of Landlord upon the Expiration Date or
earlier end of the Term or any renewal thereof, and shall not be removed from
the Premises by Tenant unless Landlord, at Landlord's option by notice to Tenant
prior to the Expiration Date, elects to have them removed from the Premises by
Tenant, in which event the same shall be removed from the Premises by Tenant, at
Tenant's expense, prior to the Expiration Date. Notwithstanding the foregoing,
Tenant may, at the time of its initial submission of plans and specifications
showing such Alterations to Landlord for Landlord's review and approval, request
in writing that Landlord waive its right to compel Tenant to remove the
Alterations identified on such plans and specifications. If Landlord waives its
right to compel Tenant to remove such Alterations, in whole or in part, Landlord
shall notify Tenant at the time of the approval of such plans and specifications
of those Alterations which Tenant may be required to remove in accordance with
the terms of this Article prior to the expiration of the Term or upon the
occurrence of a termination of this Lease and Tenant shall, upon the expiration
of the Term or upon such termination, unless instructed otherwise by Landlord,
be required to remove only such Alterations specified in Landlord's notice. In
the event Landlord elects to have Tenant remove such Alterations, Tenant shall
repair and restore in a good and workmanlike manner to Building standard
original condition (reasonable wear and tear excepted) any damage to the
Premises or the Building caused by such removal. Any of such fixtures or
installations not so removed by Tenant at or prior to the Expiration Date or
earlier termination of the Term shall become the property of Landlord, but
nothing herein shall be deemed to relieve Tenant of responsibility for the cost
of removal of any such fixtures or installations which Tenant is obligated to
remove hereunder.
B. CHLOROFLUOROCARBONS. Anything contained herein to the contrary
notwithstanding, in the event Landlord shall elect to have Tenant repair or
remove any mechanical or other equipment installed by or on behalf of Tenant
within the Premises containing chlorofluorocarbons ("CFC's"), the repair or
removal of such equipment, as the case may be, shall conform with all
requirements of law and industry practices. Additionally, any such repair or
removal shall be done by contractors approved by Landlord and subject to the
procedures to which Landlord's consent shall have previously been obtained.
Tenant shall indemnify and hold Landlord harmless from any liability or damages
resulting from any contamination within the Building, as a result of the repair
or removal of any of the aforesaid equipment containing CFC's by Tenant.
C. SUBMISSION OF PLANS. Prior to making any Alterations, Tenant (i) shall
submit to Landlord or to a consultant appointed by Landlord ("Landlord's
Consultant") detailed plans and specifications (including layout, architectural,
mechanical, electrical, plumbing, Class E sprinkler and structural drawings
stamped by a professional engineer or architect licensed in the State of
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New York) for each proposed Alteration and shall not commence any such
Alteration without first obtaining Landlord's approval of such plans and
specifications (which approval shall be granted or withheld in accordance with
the terms of this Article 3), (ii) shall pay to Landlord all costs and expenses
incurred by Landlord (including the cost of Landlord's Consultant) in connection
with Landlord's review of Tenant's plans and specifications (which, with respect
to Landlord's review of Tenant's plans and specifications for Tenant's Initial
Alteration, shall not exceed $2,000.00), (iii) shall, at its expense, obtain all
permits, approvals and certificates required by any governmental or
quasi-governmental bodies, and (iv)shall furnish to Landlord duplicate original
policies of worker's compensation insurance (covering all persons to be employed
by Tenant, and Tenant's contractors and subcontractors in connection with such
Alteration) and comprehensive public liability (including property damage
coverage) insurance in such form, with such companies, for such periods and in
such amounts as Landlord may reasonably require, naming Landlord and its agents
as additional insureds. Upon notice to Tenant, Landlord or Landlord's Consultant
may assume responsibility, at Tenant's expense, to file all plans and obtain the
necessary building permits, which filing and the obtaining of building permits,
if undertaken, shall be accomplished within fifteen (15) working days following
the date of notice to Tenant that Landlord or Landlord's Consultant is assuming
responsibility therefor, subject to any delays caused by the City of New York.
Upon completion of such Alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alteration, including the "as-built"
drawings showing such Alterations, required by any governmental or
quasi-governmental bodies and shall furnish Landlord with copies thereof. All
Alterations shall be made and performed in accordance with the Rules and
Regulations (hereinafter defined) and in accordance with the Americans with
Disabilities Act of 1990, including but not limited to the accessibility
provisions thereof; all materials and equipment to be incorporated in the
Premises as a result of all Alterations shall be new and first quality; no such
materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement. Landlord agrees not to
withhold or delay unreasonably its consent to any Alterations proposed to be
made by Tenant to adapt the Premises for those business purposes permitted by
subsection A of Article 2 hereof, which are nonstructural and which do not
affect the Building's mechanical, electrical, plumbing, Class E or other
Building systems or the structural integrity of the Building, provided that such
Alterations are performed only by contractors or mechanics reasonably approved
by Landlord, do not affect any part of the Building other than the Premises, do
not affect any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building, do not reduce the value or utility of
the Building and are performed in compliance with all applicable laws. Tenant
shall not perform work which would (i) require changes to the structural
components of the Building or the exterior design of the Building, (ii) require
any material modification to the Building's mechanical, electrical, plumbing
installations or other Building installations outside the Premises, (iii) not be
in compliance with all applicable laws, rules, regulations and requirements of
any governmental department having jurisdiction over the Building and/or the
construction of the Premises, including but not limited to, the Americans with
Disabilities Act of 1990, or (iv) be incompatible with the Certificate of
Occupancy for the Building. In the event any Alterations are performed by
contractors approved by Landlord or any entity which is an affiliate of Landlord
or any general partner or managing member of Landlord, the failure by Tenant to
pay the cost of such Alterations upon rendition of a xxxx therefore shall be
deemed a material default under this Lease. Landlord's approval of Tenant's
plans, specifications and working drawings for Alterations shall create no
responsibility or liability
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on the part of Landlord with respect to their completeness, design,
sufficiency or compliance with all applicable laws, rules or regulations of
governmental agencies or authorities.
D. MECHANICS' LIENS: LABOR CONFLICTS. Any mechanic's lien filed against
the Premises, or the Real Property, for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant shall be discharged by
Tenant within ten (10) days thereafter, at Tenant's expense, by payment or
filing the bond required by law. Tenant shall not, at any time prior to or
during the Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with any
Alteration or otherwise, if, in Landlord's sole discretion, such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others. In the event of any such interference or conflict,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.
4. REPAIRS - FLOOR LOAD. Landlord shall maintain and repair the public
portions of the Building, both exterior and interior. Tenant shall, throughout
the Term, take good care of the Premises and the fixtures and appurtenances
therein and at Tenant's sole cost and expense, make all nonstructural repairs
thereto as and when needed to preserve them in good working order and condition,
reasonable wear and tear and damage for which Tenant is not responsible under
the terms of this Lease excepted. Tenant shall pay Landlord for all replacements
to the lamps, tubes, ballasts and starters in the lighting fixtures installed in
the Premises. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Building, or to its fixtures, equipment and
appurtenances, whether requiring structural or nonstructural repairs, caused by
or resulting from carelessness, omission, neglect or improper conduct of or
Alterations made by Tenant or any of Tenant's servants, employees, invitees or
licensees, shall be repaired promptly by Tenant, at its sole cost and expense,
to the satisfaction of Landlord. Tenant also shall repair all damage to the
Building and the Premises caused by the moving of Tenant's fixtures, furniture
or equipment. All the aforesaid repairs shall be of quality and class equal to
the original work or construction and shall be made in accordance with the
provisions of Article 3 hereof. If Tenant fails after ten (10) days notice to
proceed with due diligence to make repairs required to be made by Tenant
hereunder, the same may be made by Landlord, at the expense of Tenant, and the
expenses thereof incurred by Landlord shall be collectible by Landlord as
additional rent promptly after rendition of a xxxx or statement therefor. Tenant
shall give Landlord prompt notice of any defective condition in any plumbing,
electrical, air-cooling or heating system located in, servicing or passing
through the Premises. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed bylaw. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and heavy
equipment and installations. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient in
Landlord's judgment to absorb and prevent vibration, noise and annoyance. Except
as expressly provided in Article 10 hereof, there shall be no allowance to
Tenant for a diminution of rental value and no liability on the part of Landlord
by reason of inconvenience, annoyance or injury to business arising from
Landlord, Tenant or others making, or failing to make, any repairs, alterations,
additions or improvements in or to any portion of the Building, or the Premises,
or in or to fixtures, appurtenances, or equipment thereof. If the Premises be or
become infested with vermin, Tenant, at Tenant's expense, shall cause the same
to be exterminated from time to time to the satisfaction of
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Landlord and shall employ such exterminators and such exterminating company or
companies as shall be approved by Landlord. The water and wash closets and other
plumbing fixtures shall not be used for any purposes other than those for which
they were designed or constructed, and no sweepings, rubbish, rags, acids or
other substances shall be deposited therein.
5. WINDOW CLEANING. Tenant shall not clean, nor require, permit, suffer or
allow any window in the Premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law, or any other applicable law, or of the rules of
the Board of Standards and Appeals, or of any other board or body having or
asserting jurisdiction.
6. REQUIREMENTS OF LAW. Tenant, at its sole expense, shall comply with all
laws, statutes, orders, directives and regulations of federal, state, county,
city and municipal authorities, departments, bureaus, boards, agencies,
commissions and other sub-divisions thereof, and of any official thereof and any
other governmental and quasi-public authority and all rules, orders, regulations
or requirements of the New York Board of Fire Underwriters, or any other similar
body which shall now or hereafter impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises as a result of the particular
manner of use or occupation thereof by Tenant (other than use of the Premises
for executive and general offices) or as a result of any act, omission or
Alteration thereof made by Tenant or any person or entity acting by or on behalf
of Tenant. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate or be in conflict with any insurance policies
covering the Building and fixtures and property therein; and shall not do, or
permit anything to be done in or upon the Premises, or bring or keep anything
therein, except as now or hereafter permitted by the Xxx Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx Board of Fire Underwriters, New York Fire Insurance Rating
Organization or other authority having jurisdiction and then only in such
quantity and manner of storage as not to increase the rate for fire insurance
applicable to the Building, or use the Premises in a manner which shall increase
the rate of fire insurance on the Building or on property located therein, over
that in similar type buildings or in effect prior to this Lease. Any work or
installations made or performed by or on behalf of Tenant or any person claiming
through or under Tenant pursuant to this Article shall be made in conformity
with, and subject to the provisions of, Article 3 hereof. If by reason of
Tenant's failure to comply with the provisions of this Article, the fire
insurance rate shall at the beginning of this Lease or at any time thereafter be
higher than it otherwise would be, then Tenant shall reimburse Landlord, as
additional rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure of use by Tenant, and shall make such reimbursement upon the first day
of the month following such outlay by Landlord. In any action or proceeding
wherein Landlord and Tenant are parties, a schedule or "make up" of rates for
the Building or the Premises issued by the New York Fire Insurance Rating
Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to the Premises.
7. SUBORDINATION.
A. SUBORDINATION. This Lease is subject and subordinate to each and every
ground or underlying lease of the Real Property or the Building heretofore or
hereafter made by Landlord (collectively, the "Superior Leases") and to each and
every trust indenture and mortgage (collectively, the "Mortgages") which may now
or hereafter affect the Real Property, the Building
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or any such Superior Lease and the leasehold interest created thereby, and to
all renewals, extensions, supplements, amendments, modifications,
consolidations, and replacements thereof or thereto, substitutions therefor and
advances made thereunder. This clause shall be self-operative and no further
instrument of subordination shall be required to make the interest of any lessor
under a Superior Lease, or trustee or mortgagee of a Mortgage superior to the
interest of Tenant hereunder. In confirmation of such subordination, however,
Tenant shall execute promptly any certificate that Landlord may request and
Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact to execute any such certificate or certificates for and on
behalf of Tenant. If the date of expiration of any Superior Lease shall be the
same day as the Expiration Date, the Term shall end and expire twelve (12) hours
prior to the expiration of the Superior Lease. Tenant covenants and agrees that,
except as expressly provided herein, Tenant shall not do anything that would
constitute a default under any Superior Lease or Mortgage, or omit to do
anything that Tenant is obligated to do under the terms of this Lease so as to
cause Landlord to be in default under any of the foregoing. If, in connection
with the financing of the Real Property, the Building or the interest of the
lessee under any Superior Lease, any lending institution shall request
reasonable modifications of this Lease that do not increase (other than to a de
minimis extent) the obligations or adversely affect (other than to a de minimis
extent) the rights of Tenant under this Lease, Tenant covenants to make such
modifications; it being understood that the amount of Rent and additional rent
shall not be modified. Upon Tenant's request, Landlord shall use reasonable
efforts to obtain from the present holder of any Mortgage and from any future
holder of a Mortgage encumbering the Building a subordination, non-disturbance
and attainment agreement in the form generally used by such present or future
holder, as the case may be; it being expressly understood that the failure to
obtain any such agreement shall in no way relieve Tenant of any of its
obligations hereunder or alter the subordination of this Lease as provided in
this Article and that the reasonable efforts of Landlord shall not require
Landlord to (i) expend any sums or incur any fees in connection with such
efforts unless Tenant pays the same to Landlord in advance, or (ii) rejecting
potential financing or seek alternate financing arrangements.
B. ATTORNMENT. If at any time prior to the expiration of the Term, any
Mortgage shall be foreclosed or any Superior Lease shall terminate or be
terminated for any reason, Tenant agrees, at the election and upon demand of any
owner of the Real Property or the Building, or the lessor under any such
Superior Lease, or of any mortgagee in possession of the Real Property or the
Building, to attorn, from time to time, to any such owner, lessor or mortgagee,
upon the then executory terms and conditions of this Lease, for the remainder of
the term originally demised in this Lease, provided that such owner, lessor or
mortgagee, as the case may be, or receiver caused to be appointed by any of the
foregoing, shall not then be entitled to possession of the Premises. The
provisions of this subsection B shall inure to the benefit of any such owner,
lessor or mortgagee, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of any such Superior Lease, and shall
be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Tenant, however, upon demand of any
such owner, lessor or mortgagee, agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this subsection B,
satisfactory to any such owner, lessor or mortgagee, acknowledging such
attornment and setting forth the terms and conditions of its tenancy. Nothing
contained in this subsection B shall be construed to impair any right otherwise
exercisable by any such owner, lessor or mortgagee.
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8. RULES AND REGULATIONS. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and made a part hereof as Schedule A and
such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt (collectively, the "Rules and
Regulations") on such notice to be given as Landlord may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Landlord or Landlord's agents, the parties hereto agree to submit
the question of the reasonableness of such Rule or Regulation for decision to
the Chairman of the Board of Directors of the Management Division of The Real
Estate Board of New York, Inc., or to such impartial person or persons as he may
designate, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
assessed by service of a notice in writing upon Landlord within thirty (30) days
after receipt by Tenant of written notice of the adoption of any such additional
Rule or Regulation. Nothing in this Lease contained shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations or
terms, covenants or conditions in any other lease, against any other tenant and
Landlord shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees.
9. INSURANCE.
A. TENANT'S INSURANCE. Tenant shall obtain at its own expense and keep in
full force and effect during the Term, a policy of commercial general liability
insurance (including, without limitation, insurance covering Tenant's
contractual liability under this Lease), under which Tenant is named as the
insured, and Landlord, Landlord's managing agent, the present and any future
mortgagee of the Real Property or the Building and/or such other designees
specified by Landlord from time to time, are named as additional insureds. Such
policy shall contain a provision that no act or omission of Tenant shall affect
or limit the obligation of the insurance company to pay the amount of any loss
sustained. Such policy shall also contain a provision which provides the
insurance company will not cancel or refuse to renew the policy, or change in
any material way the nature or extent of the coverage provided by such policy,
without first giving Landlord at least thirty (30) days written notice by
certified mail, return receipt requested, which notice shall contain the policy
number and the names of the insureds and policy holder. The minimum limits of
liability shall be a combined single limit with respect to each occurrence in an
amount of not less than $3,000,000 for injury (or death) and damage to property
or such greater amount as may be consistent with and comparable to limits
required to be carried by owners of buildings in midtown Manhattan comparable to
the Building. Tenant shall also maintain at its own expense during the Term a
policy of workers' compensation insurance providing statutory benefits for
Tenant's employees and employer's liability. Tenant shall provide to Landlord
upon execution of this Lease and at least thirty (30) days prior to the
termination of any existing policy, a certificate evidencing the effectiveness
of the insurance policies required to be maintained hereunder which shall
include the named insured, additional insured, carrier, policy number, limits of
liability, effective date, the name of the insurance agent and its telephone
number. Tenant shall provide Landlord with a complete copy of any such policy
upon written request of Landlord. Tenant shall have no right to obtain any of
the insurance required hereunder pursuant to a blanket policy covering other
properties unless the blanket policy contains an endorsement that names
Landlord, Landlord's managing agent and/or designees specified by Landlord from
time to time, as additional insureds, references the Premises, and guarantees a
minimum limit available for the Premises equal to the
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amount of insurance required to be maintained hereunder. Each policy required
hereunder shall contain a clause that the policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance. The limits of
the insurance required under this subsection shall not limit the liability of
Tenant under this Lease. All insurance required to be carried by Tenant pursuant
to the terms of this Lease shall be effected under valid and enforceable
policies issued by reputable and independent insurers permitted to do business
in the State of New York, and rated in Best's Insurance Guide, or any successor
thereto (or if there be none, an organization having a national reputation) as
having a general policyholder rating of "A" and a financial rating of at least
"13". In the event that Tenant fails to continuously maintain insurance as
required by this subsection, Landlord may, at its option and without relieving
Tenant of any obligation hereunder, order such insurance and pay for the same at
the expense of Tenant. In such event Tenant shall repay the amount expended by
Landlord, with interest thereon, immediately upon Landlord's written demand
therefor.
B. TENANT'S IMPROVEMENT INSURANCE. Tenant shall also maintain at its own
expense during the Term a policy against fire and other casualty on an "all
risk" form covering all Alterations, construction and other improvements
installed within the Premises, whether existing at the Premises on the date
hereof or hereinafter installed by or on behalf of Landlord or Tenant, and on
all furniture, fixtures, equipment, personal property and inventory of Tenant
located in the Premises and any property in the care, custody and control of
Tenant (fixed or otherwise) sufficient to provide 100% full replacement value of
such items, which policy shall otherwise comply with the provisions of
subsections A and C of this Article 9. On any such policy, Tenant shall name
Landlord as a loss payee, as its interest may appear. In addition, such policy
shall contain (i) a waiver of subrogation against Landlord or a consent to a
waiver of right of recovery against Landlord and (ii) and agreement by the
insurer that it will not make any claim against or seek to recover from Landlord
for any loss, damage or claim covered under such policy. If the payment of an
additional premium is required for the inclusion of such waiver of subrogation
provision, Tenant shall advise Landlord of the amount thereof and Landlord shall
pay the same or be deemed to have waived the benefit thereof.
C. WAIVER OF SUBROGATION. The parties hereto shall procure an appropriate
clause in, or endorsement on, any "all-risk" property insurance covering the
Premises and the Building, including its respective Alterations, construction
and other improvements as well as personal property, fixtures, furniture,
inventory and equipment located thereon or therein, pursuant to which the
insurance companies waive subrogation or consent to a waiver of right of
recovery, and each party hereby agrees that it will not make any claim against
or seek to recover from the other or the partners, directors, officers,
shareholders or employees of such party for any loss or damage to its property
or the property of others resulting from fire or other hazards covered by such
"all-risk" property insurance policies to the extent that such loss or damage is
actually recoverable under such policies exclusive of any deductibles. Such
waiver will not apply should any loss or damage result from one of the parties'
gross negligence or willful misconduct. If the payment of an additional premium
is required for the inclusion of such waiver of subrogation provision, each
party shall advise the other of the amount of any such additional premiums and
the other party shall pay the same. It is expressly understood and agreed that
Landlord will not carry insurance on the Alterations, construction and other
improvements presently existing or hereafter installed within
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the Premises or on Tenant's fixtures, furnishings, equipment, personal property
or inventory located in the Premises or insurance against interruption of
Tenant's business.
10. DESTRUCTION OF THE PREMISE; PROPERTY LOSS OR DAMAGE.
A. REPAIR OF DAMAGES. If the Premises shall be damaged by fire or other
casualty, then Landlord shall proceed to repair and restore (subject to receipt
of insurance proceeds) the Premises to its condition preceding the damage,
subject to the provisions of this Article 10. Landlord shall have no liability
to Tenant, and Tenant shall not be entitled to terminate this Lease, if such
repairs and restoration are not in fact completed within Landlord's estimated
time period, so long as Landlord shall have proceeded with reasonable due
diligence. The Rent until such repairs shall be made shall be reduced in the
proportion which the area of the part of the Premises which is not usable by
Tenant bears to the total area of the Premises; PROVIDED, HOWEVER, should Tenant
reoccupy a portion of the Premises for the conduct of its business prior to the
date such repairs are made, the Rent shall be reinstated with respect to such
reoccupied portion of the Premises and shall be payable by Tenant from the date
of such occupancy. Further, should Landlord, at its sole option, make available
to Tenant, during the period of such repair, other space in the Building which
is reasonably suitable for the temporary carrying on of Tenant's business, the
Rent shall be reinstated with respect to such temporarily occupied space and
shall be payable by Tenant from the date such space is occupied by Tenant.
Whenever in this Article 10 reference is made to restoration of the Premises,
(i) Tenant's obligation shall be as to all property within the Premises
including Tenant's furniture, fixtures, equipment and other personal property,
any and all Alterations, construction or other improvements made to the Premises
by or on behalf of Tenant and any other leasehold improvements existing in the
Premises on the date hereof, all of which shall be restored and replaced at
Tenant's sole cost and expense and (ii) Landlord's obligation, if any, shall be
as to the shell, which constitutes the structure of the Building and the
mechanical, electrical, plumbing, air-conditioning and other building systems up
to the point of connection into the Premises. Landlord's obligation to repair or
rebuild, and Tenant's right to rent abatement, as described in this Article 10,
are only effective provided the damage or destruction is not due to the
intentional or negligent acts or omissions of Tenant, its agents, employees,
licensees or invitees. During any period of Tenant's repair and restoration
following substantial completion of Landlord's repair and restoration work, Rent
and additional rent shall be payable as if said fire or other casualty had not
occurred.
B. LANDLORD'S TERMINATION OPTION. Anything in subsection A of this
Article 10 to the contrary notwithstanding, if the Premises are totally damaged
or are rendered wholly untenantable, and if Landlord shall decide not to restore
the Premises, or if the Building shall be so damaged by fire or other casualty
that, in Landlord's opinion, either substantial alteration, demolition or
reconstruction of the Building shall be required (whether or not the Premises
shall have been damaged or rendered untenantable) or the Building, after its
proposed repair, alteration or restoration shall not be economically viable as
an office building, then in any of such events, Landlord, at Landlord's option,
may, not later than ninety (90) days following the damage, give Tenant a notice
in writing terminating this Lease. In addition, (i) if substantial damage shall
occur to the Premises or the Building, in Landlord's sole but reasonable
judgement, during the last two (2) years of the Term, Landlord shall have the
option to terminate this Lease by thirty (30) days prior written notice to
Tenant and (ii) Landlord shall not be obligated to repair or restore the
Premises or the Building a holder of a mortgage or underlying leasehold applies
proceeds of insurance to the
13
loan or lease payment balance, and the remaining proceeds, if any, available to
Landlord are insufficient to pay for such repair or restoration. If Landlord
elects to terminate this Lease, the Term shall expire upon the tenth (10th) day
after such notice is given, and Tenant shall vacate the Premises and surrender
the same to Landlord. If Tenant shall not be in default under this Lease, then
upon the termination of this Lease under the conditions provided for in the next
preceding sentence, Tenant's liability for Rent thereafter accruing shall cease
as of the day following such damage.
C. REPAIR DELAYS. Landlord shall not be liable for reasonable delays
which may arise by reason of the claim adjustment with any insurance company on
the part of Landlord and/or Tenant, and for reasonable delays on account of
"labor troubles" or any other cause beyond Landlord's control.
D. PROVISION CONTROLLING. The parties agree that this Article 10
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and that Section 227 of
the Real Property Law of the State of New York, which provides for such
contingency in the absence of an express agreement, and any other law of like
import now or hereafter in force shall have no application in any such case.
E. PROPERTY LOSS OR DAMAGE. Any Building employee to whom any property
shall be entrusted by or on behalf of Tenant shall be deemed to be acting as
Tenant's agent with respect to such property and neither Landlord nor its agents
shall 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. Neither Landlord nor its agents shall be liable
for any injury or damage to persons or property or interruption of Tenant's
business resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature; nor shall Landlord or its agents be liable for any such damage caused by
other tenants or persons as Building or caused by construction of any private,
public or quasi-public work; nor shall Landlord be liable for any latent defect
in the Premises or in the Building. Anything in this Article 10 to the contrary
notwithstanding, nothing in this Lease shall be construed to relieve Landlord
from responsibility directly to Tenant for any loss or damage caused directly to
Tenant wholly or in part by the gross negligence or willful misconduct of
Landlord. Nothing in the foregoing sentence shall affect any right of Landlord
to indemnity from Tenant to which Landlord may be entitled under Article 37
hereof in order to recoup for payments made to compensate for losses of third
parties. If at any time any windows of the Premises are temporarily closed,
darkened or bricked-up for any reason whatsoever including, but not limited to,
Landlord's own acts, or any of such windows are permanently closed, darkened or
bricked-up if required bylaw or related to any construction upon property
adjacent to the Real Property by Landlord or others, 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. Tenant
shall reimburse and compensate Landlord as additional rent within thirty (30)
days after rendition of a statement for all expenditures made by, or damages or
fines sustained or incurred by, Landlord due to nonperformance or noncompliance
with or breach or failure to observe any term, covenant or condition of this
Lease upon Tenant's part to be kept, observed, performed or complied with Tenant
shall give immediate notice to Landlord in case of
14
fire or accident in the Premises or in the Building. Tenant shall not move any
safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into
or out of the Building without Landlord's prior consent and payment to Landlord
of Landlord's costs in connection therewith. If such safe, machinery, equipment,
freight, bulky matter or fixtures requires special handling, Tenant agrees to
employ only persons holding a Master Rigger's License to do said work, and that
all work in connection therewith shall comply with the Administrative Code of
the City of New York and all other laws and regulations applicable thereto, and
shall be done during such hours as Landlord may designate and, notwithstanding
said consent of Landlord, Tenant shall indemnify Landlord for, and hold Landlord
harmless and free from, damages sustained by persons or property and for any
damages or monies paid out by Landlord in settlement of any claims or judgments,
as well as for all expenses and attorneys' fees incurred in connection therewith
and all costs incurred in repairing any damage to the Building or appurtenances.
11. CONDEMNATION.
A. CONDEMNATION. If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property shall be so acquired or condemned then, (i) except as
hereinafter provided in this subsection A, this Lease and the Term shall
continue in force and effect but, if a part of the Premises is included in the
part of the Real Property so acquired or condemned, from and after the date of
the vesting of title, the Rent shall be reduced in the proportion which the area
of the part of the Premises so acquired or condemned bears to the total area of
the Premises immediately prior to such acquisition or condemnation; (ii) whether
or not the Premises shall be affected thereby, Landlord, at Landlord's option,
may give to Tenant, within sixty (60) days next following the date upon which
Landlord shall have received notice of vesting of title, a five (5) days notice
of termination of this Lease; and (iii) if the part of the Real Property so
acquired or condemned shall contain more than thirty percent (30%) of the total
area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant, at Tenant's option, may give
to Landlord, within sixty (60) days next following the date upon which Tenant
shall have received notice of vesting of title, a five (5) days notice of
termination of this Lease. If any such five (5) days notice of termination is
given by Landlord or Tenant this Lease and the Term shall come to an end and
expire upon the expiration of said five (5) days with the same effect as if the
date of expiration of said five (5) days were the Expiration Date. If a part of
the Premises shall be so acquired or condemned and this Lease and the Term shall
not be terminated pursuant to the foregoing provisions of this subsection A,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned to a self-contained rental unit. In the event of any
termination of this Lease and the Term pursuant to the provisions of this
subsection A, the Rent shall be apportioned as of the date of sooner termination
and any prepaid portion of Rent for any period after such date shall be refunded
by Landlord to Tenant.
B. AWARD. In the event of any such acquisition or condemnation of all or
any part of the Real Property, Landlord shall be entitled to receive the entire
award for any such acquisition or condemnation, Tenant shall have no claim
against Landlord or the condemning authority for the value of any unexpired
portion of the Term and Tenant hereby expressly assigns to Landlord all of its
right and to any such award. Nothing contained in this subsection B shall be
deemed to prevent
15
Tenant from making a claim in any condemnation proceedings for the then value of
any furniture, furnishings and fixtures installed by and at the sole expense of
Tenant and included in such taking, provided that such award shall not reduce
the amount of the award otherwise payable to Landlord.
12. ASSIGNMENT AND SUBLETTING.
A. PROHIBITION WITHOUT CONSENT. Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage, pledge,
encumber or otherwise transfer this Lease, nor underlet, nor suffer, nor permit
the Premises or any part thereof to be used or occupied by others (whether for
desk space, mailing privileges or otherwise), without the prior written consent
of Landlord in each instance. If this Lease be assigned, or if the Premises or
any part thereof be underlet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, under tenant or
occupant, and apply the net amount collected to the Rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the assignee, under tenant or occupant
as tenant, or are lease of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an
assignment or underletting shall not in any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting. In no event shall any permitted subtenant assign or
encumber its sublease or further sublet all or any portion of its sublet space,
or otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others, without Landlord's prior written consent in each instance.
Any assignment, sublease, mortgage, pledge, encumbrance or transfer in
contravention of the provisions of this Article 12 shall be void.
B. NOTICE OF PROPOSED TRANSFER. If Tenant shall at any time or times
during the Term desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (i) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than
thirty (30) nor more than ninety (90) days after the giving of such notice, (ii)
a statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (iii) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report, (iv) an agreement by Tenant to indemnify Landlord against liability
resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any brokers or other persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease
and (v) the case of a sublease, such additional information related to the
proposed subtenant as Landlord shall reasonably request, if any.
C. LANDLORD'S OPTIONS. The notice containing all of the information set
forth in Subsection B of this Article 12 above shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option,
(a) sublease such space (hereinafter called the "Leaseback Space") from Tenant
upon the terms and conditions hereinafter set forth (if the proposed transaction
is a sublease of all or part of the Premises), or (b) terminate this Lease (if
the proposed transaction is an assignment or a sublease of all or substantially
all of the Premises). Said options may be exercised by Landlord by notice to
Tenant at any time within thirty (30) days after
16
the aforesaid notice has been given by Tenant to Landlord; and during such
thirty (30) day period Tenant shall not assign this Lease nor sublet such space
to any person or entity.
D. TERMINATION BY LANDLORD. If Landlord exercises its option to terminate
this Lease in the case where Tenant desires either to assign this Lease or
sublet all or substantially all of the Premises, then this Lease shall end and
expire on the date that such assignment or sublet was to be effective or
commence, as the case may be, and the Rent and additional rent due hereunder
shall be paid and apportioned to such date. Furthermore, if Landlord exercises
its option to terminate this Lease pursuant to subsection C of this Article 12,
Landlord shall be free to and shall have no liability to Tenant if Landlord
should lease the Premises (or any part thereof) to Tenant's prospective assignee
or subtenant.
E. TAKEBACK BY LANDLORD. If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of Rent and
additional rent then payable pursuant to this Lease, or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease:
(i) shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease
except such as are irrelevant or inapplicable, and except
as otherwise expressly set forth to the contrary in this
Article 12;
(ii) shall be upon the same terms and conditions as those
contained in the proposed sublease, except such as are
irrelevant or inapplicable and except as otherwise
expressly set forth to the contrary in this Article 12;
(iii) shall give the subtenant the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease
or any interest then and/or to sublet the space covered by
such sublease or any part or pats of such space and to make
any and all changes, alterations and improvements in the
space covered by such sublease, and if the proposed
sublease will result in all or substantially all of the
Premises being sublet, grant Landlord or its designee the
option to extend the term of such sublease for the balance
of the term of this Lease less one (1) day;
(iv) shall provide that any assignee or further subtenant of
Landlord or its designee, may, at the election of Landlord,
be permitted to make alterations, decorations and
installations in such space or any part thereof and shall
also provide in substance at any such alterations,
decorations and installations in such space therein made by
any assignee or subtenant of Landlord or its designee may
be removed, in whole or in part, by such assignee or
subtenant, at its option, prior to or upon the expiration
or other termination of such sublease provided that such
assignee or subtenant, at its expense, shall repair any
damage and injury to such space so sublet caused by such
removal; and
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(v) shall also provide that (a) the parties to such sublease
expressly negate any intention that any estate created
under such sublease be merged with any other estate held by
either of said parties, (b) any assignment or subletting by
Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's
uncontrolled discretion, shall deem suitable or
appropriate, (c) Tenant, at Tenant's expense, shall and
will at all times provide and permit reasonably appropriate
means of ingress to and egress from such space so sublet by
Tenant to Landlord or its designee, (d) Landlord, at
Tenant's expense, may make such alterations as may be
required or deemed necessary by Landlord to physically
separate the subleased space from the balance of the
Premises and to comply with any legal or insurance
requirements relating to such separation, and (e) that at
the expiration of the term of such sublease, Tenant will
accept the space covered by such sublease in its then
existing condition, subject to the obligations of the
subtenant to make such repairs thereto as may be necessary
to preserve the premises demised by such sublease in good
order and condition.
F. EFFECT OF TAKEBACK OR TERMINATION. If Landlord exercises its option to
sublet the Leaseback Space, (i) Landlord shall indemnify and save Tenant
harmless from all obligations under this Lease as to the Leaseback Space during
the period of time it is so sublet to Landlord; (ii) performance by Landlord, or
its designee, under a sublease of the Leaseback Space shall be deemed
performance by Tenant of any similar obligation under this Lease and any default
under any such sublease shall not give rise to a default under a similar
obligation contained in this Lease nor shall Tenant be liable for any default
under this Lease or deemed to be in default hereunder if such default is
occasioned by or arises from any act or omission of the tenant under such
sublease or is occasioned by or arises from any act or omission of any occupant
holding under or pursuant to any such sublease; and (iii) Tenant shall have no
obligation, at the expiration or earlier termination of the Term, to remove any
alteration, installation or improvement made in the Leaseback Space by Landlord
(or its designee); In addition, if required by applicable law in connection with
any termination of this Lease, or subletting of all or any portion of the
Leaseback Space to Landlord or its designee, Tenant shall complete, swear to and
file any questionnaires, tax returns, affidavits or other documentation which
may be required to be filed with the appropriate governmental agency in
connection with any other tax which may now or hereafter be in effect. Tenant
further agrees to pay any amounts which may be assessed in connection with any
of such taxes and to indemnify Landlord against and to hold Landlord harmless
from any claims for payment of such taxes as a result of such transactions.
G. CONDITIONS FOR LANDLORD'S APPROVAL. In the event Landlord does not
exercise either of the options provided to it pursuant to subsection C of this
Article 12 and provided that Tenant is not in default of any of Tenant's
obligations under this Lease (after notice and the expiration of any applicable
grace period) as of the time of Landlord's consent, and as of the effective date
of the proposed assignment or commencement date of the proposed sublease,
Landlord's consent (which must be in writing and form reasonably satisfactory to
Landlord) to the proposed assignment or sublease shall not be unreasonably
withheld or delayed, provided and upon condition that:
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(i) Tenant shall have complied with the provisions of
subsection B of this Article 12 and Landlord shall not have
exercised any of its options under subsection C of this
Article 12 within the time permitted therefor;
(ii) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business or activity, and the
Premises, or the relevant part thereof, will be used in a
manner, which (a) is in keeping with the then standards of
the Building, (b) is limited to the use of the Premises as
general and executive offices, and (c) will not violate any
negative covenant as to use contained in any other tease of
office space in the Building;
(iii) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth
considering the responsibility involved, and Landlord has
been furnished with reasonable proof thereof;
(iv) Neither (a) the proposed assignee or subtenant nor (b) any
person which, directly or indirectly, controls, is
controlled by or is under common control with, the proposed
assignee or subtenant, is then an occupant of any part of
the Building;
(v) The proposed assignee or subtenant is not a person with
whom Landlord is or has been, within the preceding three
(3) month period, negotiating to lease space in the
Building;
(vi) The form of the proposed sublease or instrument of
assignment (a) shall be in form reasonably satisfactory to
Landlord, and (b) shall comply with the applicable
provisions of this Article 12;
(vii) There shall not be more than two (2) subtenants (including
Landlord or its designee) of the Premises;
(viii) The amount of the aggregate rent to be paid by the proposed
subtenant is not less than eighty percent (80%) of the then
current sublease market rent per rentable square foot for
the Premises as though the Premises were vacant (taking
into consideration the fact that it is a sublease), the
length of the remaining Term and the incentives given to
the subtenant (I.E., improvements made to prepare the
premises demised under the sublease for such subtenant's
occupancy and free rent), and the rental and other terms
and conditions of the sublease are the same as those
contained in the proposed sublease furnished to Landlord
pursuant to subsection B of this Article 12;
(ix) Within five (5) days after receipt of a xxxx therefor,
Tenant shall reimburse Landlord for the reasonable costs
that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, the
costs of making investigations as to the acceptability of
the proposed assignee or subtenant, and reasonable legal
costs incurred by Landlord in connection with the granting
of any requested consent, which legal costs shall not
exceed $2,000,000 in any one instance;
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(x) Tenant shall not have advertised or publicized in any form
of media the availability of the Premises without prior
notice to and approval by Landlord, nor shall any media
advertisement state the name (as distinguished from the
address) of the Building or the proposed rental;
(xi) The proposed occupancy shall not, in Landlord's sole but
reasonable opinion, materially increase the office cleaning
requirements or the Building's operating or other expenses
or materially increase Landlord's financial obligations or
liability with respect to services to be supplied by
Landlord to Tenant,
(xii) The proposed assignee or subtenant or its business shall
not be subject to compliance with additional requirements
of law (including related regulations) beyond those
requirements which are applicable to the named Tenant
herein if such requirement would increase Landlord's
financial obligations or liability; and
(xiii) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the
jurisdiction of the courts of New York State.
Except for any subletting by Tenant to Landlord or its designee pursuant
to the provisions of this Article 12, each subletting pursuant to this
subsection G of this Article 12 shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease.
Notwithstanding any such subletting to Landlord or any such subletting to any
other subtenant and/or acceptance of Rent or additional rent by Landlord from
any subtenant, Tenant shall and will remain fully liable for the payment of the
Rent and additional rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on the part of Tenant to be performed and all acts and omissions of
any licensee or subtenant or anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of this Lease shall be
deemed to be a violation by Tenant. Tenant further agrees that notwithstanding
any such subletting, no other and further subletting of the Premises by Tenant
or any person claiming through or under Tenant shall or will be made except upon
compliance with and subject to the provisions of this Article 12. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise either of its options under subsection C of this Article
12, Tenant shall indemnify, defend and hold harmless Landlord against and from
any and all loss, liability, damages, costs, and expenses (including reasonable
counsel fees) resulting from any claims that may be made against Landlord by the
proposed assignee or subtenant or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
H. FUTURE REQUESTS. In the event that (i) Landlord fails to exercise
either of its options under subsection C of this Article 12 and consents to a
proposed assignment or sublease, and (ii) Tenant fails to execute and deliver
the assignment or sublease to which Landlord consented within ninety (90) days
after the giving of such consent, then, Tenant shall again comply with all of
the provisions and conditions of subsection B of this Article 12 before
assigning this Lease or subletting all or part of the Premises.
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I. SUBLEASE PROVISIONS. With respect to each and every sublease or
subletting authorized by Landlord under the provisions of this Lease, it is
further agreed that:
(i) No subletting shall be for a term ending later than one (1)
day prior to the Expiration Date of this Lease;
(ii) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an
executed counterpart of such sublease has been delivered to
Landlord;
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this
Lease is or shall be subordinate, and that in the event of
termination, re-entry or dispossession by Landlord under
this Lease Landlord may, at its option, take over all of
the right, title and interest of Tenant, as sublessor,
under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord
shall not (a) be liable for any previous act or omission of
Tenant under such sublease, (b) be subject to any
counterclaim, offset or defense, not expressly provided in
such sublease, which theretofore accrued to such subtenant
against Tenant, or (c) be bound by any previous
modification of such sublease or by any previous prepayment
of more than one (1) month's Rent. The provisions of this
Article 12 shall be self-operative and no further
instrument shall be required to give effect to this
provision.
(iv) If any laws, orders, rules or regulations of any applicable
governmental authority require that any Hazardous
Substances, including, without limitation, asbestos,
contained in or about the Premises to be sublet (the
"Sublet Space") be dealt with in any particular manner in
connection with any alteration of the Sublet Space or
otherwise, then it shall be the subtenant's obligation, at
the subtenant's expense, to deal with such Hazardous
Substances in accordance with all such laws, orders, rules
and regulations. In the event the subtenant is required to
deal with Hazardous Substances in accordance with the
foregoing provisions of this paragraph (iv) of subsection I
of Article 12, then, notwithstanding anything herein to the
contrary, Landlord, at Landlord's election, shall have the
option to deal with such Hazardous Substances itself and,
in such event, the subtenant shall reimburse Landlord for
all of Landlord's costs and expenses in connection
therewith within ten (10) days next following the rendition
of a statement by Landlord to the subtenant requesting such
reimbursement. If the subtenant shall fail to so reimburse
Landlord for the aforesaid costs and expenses within the
ten (10) day period referred to above, ten notwithstanding
anything contained in the Lease to the contrary, such costs
and expenses shall, at Landlord's option, be paid by Tenant
to Landlord, within ten (10) days next following of
Landlord's demand therefor.
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J. PROFITS FROM ASSIGNMENT OR SUBLETTING. If Landlord shall give its
consent to any assignment of this Lease or to any sublease or if Tenant shall
enter into any other assignment or sublease permitted hereunder, Tenant shall in
consideration therefor, pay to Landlord, as additional rent:
(i) In the case of an assignment, fifty percent (50%) of an
amount equal to all sums and other considerations paid to
Tenant by the assignee for or by reason of such assignment
(including, but not limited to, sums paid for the sale of
Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property, less, in
the case of a sale thereof, the then fair market value
thereof) less all expenses reasonably and actually incurred
by Tenant on account of brokerage commissions and
advertising costs in connection with such assignment,
provided that Tenant shall submit to Landlord a receipt
evidencing the payment of such expenses (or other proof of
payment as Landlord shall require); and
(ii) In the case of a sublease, fifty percent (50%) of any
rents, additional charges or other consideration payable
under the sublease on a per square foot basis to Tenant by
the subtenant which is in excess of the Rent and additional
rent accruing during the term of the sublease in respect of
the subleased space (at the rate per square foot payable by
Tenant hereunder) pursuant to the terms hereof (including,
but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of
the sale thereof, the then fair market value thereof), less
all expenses reasonably and actually incurred by Tenant on
account of brokerage commissions, advertising costs and the
cost of demising the premises so sublet in connection with
such sublease, provided that Tenant shall submit to
Landlord a receipt evidencing the payment of such expenses
(or other proof of payment as Landlord shall require). The
sums payable under this subsection J (ii) of this Article
12 shall be paid to Landlord as and when payable by the
subtenant to Tenant.
K. OTHER TRANSFERS. (i) If Tenant is a corporation other than a
corporation whose stock is listed and traded on a nationally recognized stock
exchange (hereinafter referred to as a "public corporation"), the provisions of
subsection A of this Article 12 shall apply to a transfer (by one or more
transfers) of a majority of the stock of Tenant as if such transfer of a
majority of the stock of Tenant were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred, provided that in any of such events (a) the successor to
Tenant has a net worth computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth of Tenant
immediately prior to such merger, consolidation or transfer, or (2) the net
worth of Tenant herein named on the date of this Lease and (b) proof
satisfactory to Landlord of such net worth shall have been delivered to Landlord
at least ten (10) days prior to the effective date of any such transaction.
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(ii) If Tenant is a partnership, the provisions of subsection A
of this Article 12 shall apply to a transfer (by one or
more transfers) of a majority interest in the partnership,
as if such transfer were an assignment of this Lease.
(iii) If Tenant is a subdivision, authority, body, agency,
instrumentality or other entity created and/or controlled
pursuant to the laws of the State of New York or any city,
town or village of such state or of federal government
("Governmental Entity"), the provisions of subsection A of
this Article 12 shall apply to a transfer (by one or more
transfers) of any of Tenant's rights to use and occupy the
Premises, to any other Governmental Entity, as if such
transfer of the right of use and occupancy were an
assignment of this Lease; but said provisions shall not
apply to a transfer of any of Tenant's rights in and to the
Premises to any Governmental Entity which shall replace or
succeed to substantially similar public functions,
responsibilities and areas of authority as Tenant, provided
that in any of such events the successor Governmental
Entity (a) shall utilize the Premises in a manner
substantially similar to Tenant, and (b) shall not utilize
the Premises in any manner which, in Landlord's judgment,
would impair the reputation of the Building as a
first-class office building.
L. RELATED CORPORATION. Tenant may, with Landlord's consent which shall
not be unreasonably withheld or delayed, permit any corporations or other
business entities (but not including Governmental Entities) which control, are
controlled by, or are under common control with Tenant (herein referred to as
"related corporation") to sublet all or part of the Premises for any of the
purposes permitted to Tenant, subject however to compliance with Tenant's
obligations under this Lease. Such subletting shall not be deemed to vest in any
such related corporation any right or interest in this Lease or the premises nor
shall it relieve, release, impair or discharge any of Tenant's obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean ownership
of not less than fifty percent (50%) of all of the voting stock of such
corporation or not less than fifty percent (50%) of all of the legal and
equitable interest in any other business entities.
M. ASSUMPTION BY ASSIGNEE. Any assignment or transfer, whether made with
Landlord's consent pursuant to subsection A of this Article 12 or without
Landlord's consent pursuant to subsection K of this Article 12, shall be made
only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in subsection A of this Article 12
shall, notwithstanding such assignment or transfer, continue to be binding upon
it in respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rent and/or additional rent by Landlord from an assignee, transferee or any
other party, the original named Tenant shall remain fully liable for the payment
of the Rent and additional rent and for the other obligations of this Lease on
the part of Tenant to be performed or observed.
N. LIABILITY OF TENANT. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on
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Tenant's part to be performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by Landlord
extending the time, or modifying any of the obligations, of this Lease, or by
any waiver or failure of Landlord to enforce any of the obligations of this
Lease.
O. LISTINGS. The listing of any name other than that of Tenant, whether
on the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of the Premises or to the use or occupancy
thereof by others. Any such listing shall constitute a privilege extended by
Landlord, revocable at Landlord's will by notice to Tenant.
P. EXCLUSIVE BROKER. In the event Tenant desires to sublet the Premises
or assign this Lease, at Landlord's option, Tenant shall designate Landlord, the
then managing agent of the Building or other agent designated by Landlord, as
Tenant's exclusive agent for a period of not less than ninety (90) days to
effect such sublease or assignment and shall pay Landlord, the managing agent or
such other agent, as the case may be, a reasonable brokerage commission for any
sublease or assignment effectuated during such period (or thereafter in
connection with the efforts of Landlord, the managing agent or such other agent,
as the case may be), computed in accordance with the usual rates charged by
Landlord, the managing agent or such other agent.
Q. RE-ENTRY BY LANDLORD. If Landlord shall recover or come into
possession of the Premises before the date herein fixed for the termination of
this Lease, Landlord shall have the right, at its option, to take over any and
all subleases or sublettings of the Premises or any part thereof made by Tenant
and to succeed to all the rights of said subleases and sublettings or such of
them as it may elect to take over. Tenant hereby expressly assigns and transfers
to Landlord such of the subleases and sublettings as Landlord may elect to take
over at the time of such recovery of possession, such assignment and transfer
not to be effective until the termination of this Lease or re-entry by Landlord
hereunder or if Landlord shall otherwise succeed to Tenant's estate in the
Premises, at which time Tenant shall upon request of Landlord, execute,
acknowledge and deliver to Landlord such further instruments of assignment and
transfer as may be necessary to vest in Landlord the then existing subleases and
sublettings. Every subletting hereunder is subject to the condition and by its
acceptance of and entry into a sublease, each subtenant thereunder shall be
deemed conclusively to have thereby agreed from and after the termination of
this Lease or re-entry by Landlord hereunder of or if Landlord shall otherwise
succeed to Tenant's estate in the Premises, the such subtenant shall waive any
right to surrender possession or to terminate the sublease and, at Landlord's
election; such subtenant shall be bound to Landlord for the balance of the term
of such sublease 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 (i) be liable for any previous act, omission or negligence of Tenant
under such sublease, (ii) be subject to any counterclaim, defense or offset not
expressly provided for in such sublease, which theretofore accrued to such
subtenant against Tenant, (iii) be bound by any previous modification or
amendment of such sublease or by any previous prepayment of more than one (1)
month's rent and additional rent which shall be payable as provided in the
sublease, (iv) be obligated to repair the subleased space or the Building or any
part thereof, in the event of total or substantial total damage beyond such
repair as can reasonably be accomplished from the net proceeds of insurance
actually made available to Landlord, (v) be obligated to repair the subleased
space or the Building or any part thereof, in the event of partial
24
condemnation beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Landlord as consequential
damages allocable to the part of the subleased space or the Building not taken
or (vi) be obligated to perform any work in the subleased space of the Building
or to prepare them for occupancy beyond Landlord's obligations under this Lease,
and the subtenant shall execute and deliver to Landlord any instruments Landlord
may reasonably request to evidence and confirm such attornment. Each subtenant
or licensee of Tenant shall be deemed automatically upon and as a condition of
occupying or using the Premises or any part thereof, to have given a waiver of
the type described in and to the extent and upon the conditions set forth in
this Article 12.
13. CONDITION OF THE PREMISES.
A. ACCEPTANCE BY TENANT. Tenant agrees to accept possession of the
Premises in the condition which shall exist on the Commencement Date "as is"
vacant and broom clean, except, for those items of furniture, fixtures and
equipment identified on Exhibit 3 attached hereto and made a part hereof, which
items Tenant has purchased from the previous tenant of the Premises pursuant to
a separate agreement between Tenant and such previous tenant, and further agrees
that Landlord shall have no obligation to perform any work or make any
installations in order to prepare the Premises for Tenant's occupancy except
that Landlord shall cause the air cooling system serving the Premises to be in
good working order on the Commencement Date and Landlord shall make available,
upon Tenant's request, up to an additional 800 amperes of electricity to the
point of connection to the Premises; it being agreed that all actual
out-of-pocket costs and expenses incurred by Landlord in connection with making
available such additional 800 amperes of electricity to the point of connection
to the Premises shall be reimbursed by Tenant to Landlord within thirty (30)
days of Landlord's rendition of bills therefor. The taking of possession of the
Premises by Tenant shall be conclusive evidence as against Tenant that, at the
time such possession was so taken, the Premises, the Building and the
air-cooling system serving the Premises were in good and satisfactory condition.
If (i) any asbestos containing materials other than Excluded Materials (as
herein after defined) in the Premises are required to be encapsulated, removed
or otherwise managed as of the Commencement Date to comply with applicable laws,
or (ii) if as a result of Tenant's Initial Alteration any asbestos-containing
materials other than the Excluded Materials are discovered and are required to
be encapsulated, removed or otherwise managed to comply with applicable laws,
Landlord shall encapsulate, remove or otherwise manage, at its election, same in
accordance with applicable laws within a commercially reasonable time, at
Landlord's expense. As used herein, the term "Excluded Materials" shall mean
collectively (i) vinyl asbestos tile (VAT) and similar floor coverings, (ii)
asbestos-containing materials within columns or similar enclosures (but not
walls or ceilings) and (iii) any asbestos-containing materials either installed
in the Premises, or disturbed, by or on behalf of Tenant. At Tenant's request,
Landlord shall provide to Tenant an ACP-5 Form with respect to Tenant's Initial
Alterations promptly following Landlord's approval of Tenant's Final Plans (as
defined in Schedule B hereto).
B. TENANT'S INITIAL ALTERATION. Tenant agrees to perform, or to cause
contractors approved by Landlord to perform, Tenant's Initial Alteration
described in Schedule B annexed hereto in accordance with the terms, conditions
and provisions thereof, and in accordance with all other terms, conditions and
provisions contained in this Lease, including, without limitation, Schedules C
and D annexed hereto. All of the terms, covenants and conditions of Schedules C
and D are incorporated in this Lease as if fully set forth at length herein.
25
14. ACCESS TO PREMISES. Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Building to erect, use and maintain, concealed
ducts, pipes and conduits in and through the Premises. Landlord or Landlord's
agents shall have the right to enter the Premises at all reasonable times after
reasonable prior notice (which may be oral or telephonic, except in the event of
an emergency in which case no such notice shall be required) to (i) examine the
same, (ii) to show them to prospective purchasers, mortgagees or lessees of the
Building or space therein, (iii) to make such decorations, repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable to the
Premises or to any other portion of the Building or which Landlord may elect to
perform following Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this Lease, or (iv) for the purpose of
complying with laws, regulations or other requirements of government
authorities; Landlord shall be Allowed to take all necessary material and
equipment into and upon the Premises and to store them within the Premises
without the same constituting an eviction or constructive eviction of Tenant in
whole or in part and the Rent shall in nowise xxxxx while any decorations,
repairs, alterations, improvements or additions are being made, by reason of
loss or interruption of business of Tenant, or otherwise. During the one (1)
year prior to the Expiration Date or the expiration of any renewal or extended
term, Landlord may exhibit the Premises to prospective tenants thereof upon
reasonable prior notice to Tenant (which may be oral or telephonic). If, during
the last four (4) months of the Term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Landlord may immediately enter
and alter, renovate and redecorate the Premises, without elimination or
abatement of Rent, or incurring liability to Tenant for any compensation, and
such acts shall not be deemed an actual or constructive eviction and shall have
no effect upon this Lease. If Tenant shall not be personally present to open and
permit an entry into the Premises, at any time, when for any reason an entry
therein shall, be necessary or permissible, Landlord or Landlord's agents may
enter the same by a master key, or may forcibly enter the same, without
rendering Landlord or such agents liable therefor (if during such entry Landlord
or Landlord's agents shall accord reasonable care to Tenant's property), and
without in any manner affecting the obligations and covenants of this Lease.
Nothing herein contained, however, shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever, or the care,
supervision or repair of the Building or any part thereof, other than as herein
provided. Landlord also shall have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known. In addition, Tenant
understands and agrees that Landlord may perform substantial renovation work in
and to the public parts of the Building and the mechanical and other systems
serving the Building (which work may include the replacement of the building
exterior facade and window glass, requiring access to the same from within the
Premises), and that Landlord shall incur no liability to Tenant, nor shall
Tenant be entitled to any abatement of Rent on account of any noise, vibration
or other disturbance to Tenant's business at the Premises (PROVIDED that Tenant
is not denied access to said Premises) which shall arise out of the performance
by Landlord of the aforesaid renovations of the Building. Tenant understands and
agrees that all parts (except surfaces facing the interior of the Premises) of
all walls, windows and doors bounding the Premises (including exterior Building
walls, core corridor walls, doors and entrances), all balconies, terraces and
roofs adjacent to the Premises, all space in or adjacent to the Premises used
for shafts, stacks, stairways, chutes, pipes, conduits, ducts, fan rooms,
heating, air cooling, plumbing and other mechanical facilities, service
26
closets and other Building facilities are not part of the Premises, and Landlord
shall have the use thereof, as well as access thereto through the Premises for
the purposes of operation, maintenance, alteration and repair. Notwithstanding
anything to the contrary contained in this Lease, in the exercise of its rights
under this Article 14, Landlord agrees to use reasonable efforts to minimize
material interference with the conduct of Tenant's business (PROVIDED, HOWEVER,
that nothing contained herein shall require Landlord to employ labor on an
overtime or premium-pay basis).
15. CERTIFICATE OF OCCUPANCY. Tenant shall not at anytime use or occupy the
Premises in violation of the certificate of occupancy issued for the Premises or
for the Building and in the event that any department of the City or State of
New York shall hereafter at any time contend and/or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of such certificate of occupancy whether or
not such use shall be a Permitted Use, Tenant shall, upon five (5) days' written
notice from Landlord, immediately discontinue such use of the Premises. Failure
by Tenant to discontinue such use after such notice shall be considered a
default in the fulfillment of a covenant of this Lease and Landlord shall have
the right to terminate this Lease immediately, and in addition thereto shall
have the right to exercise any and all rights and privileges and remedies given
to Landlord by and pursuant to the provisions of Articles 17 and 18 hereof.
Landlord represents that, to the best of its knowledge, without due inquiry, as
of the Commencement Date there are no violations filed by the Department of
Buildings of the City of New York affecting the Premises, Tenant shall not be
responsible for the removal of any violations filed by the Department of
Buildings of the City of New York prior to the Commencement Date affecting the
Premises.
16. LANDLORD'S LIABILITY. The obligations of Landlord under this Lease shall
not be binding upon Landlord named herein after the sale, conveyance, assignment
or transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, grantee, assignee or other transferee that such purchaser,
grantee, assignee or other transferee has assumed and agreed to carry out any
and all covenants and obligations of Landlord hereunder. Neither the
shareholders, directors or officers of Landlord, if Landlord is a corporation,
nor the partners comprising Landlord (nor any of the shareholders, directors or
officers of such partners), if Landlord is a partnership (collectively, the
"Parties"), shall be liable for the performance of Landlord's obligations under
this Lease. Tenant shall look solely to Landlord to enforce Landlord's
obligations hereunder and shall not seek any damages against any of the Parties.
The liability of Landlord for Landlord's obligations under this Lease shall not
exceed and shall be limited to Landlord's interest in the Building and the Real
Property and Tenant shall not look to or attach any other property or assets of
Landlord or the property or assets of any of the Parties in seeking either to
enforce Landlord's obligations under this Lease or to satisfy a judgment for
Landlord's failure to perform such obligations. In no event shall Landlord (or
any of the officers, trustees, directors, partners, beneficiaries, joint
ventures, members, stockholders or other principals or representatives and the
like, disclosed or undisclosed, thereof) ever be liable for incidental or
consequential damages.
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17. DEFAULT.
A. EVENTS OF DEFAULT; CONDITIONS OF LIMITATION. This Lease and the term
and estate hereby granted are subject to the limitations that upon the
occurrence, at any time prior to or during the Term, of any one or more of the
following events (referred to as "Events of Default"):
(i) If Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any
additional rent, and such default shall continue for a
period of five (5) days after notice by Landlord to Tenant
of such default; or
(ii) If Tenant shall default in the observance or performance of
any term, covenant or condition of this Lease on Tenant's
part to be observed or performed (other than the covenants
for the payment of Rent and additional rent) and Tenant
shall fail to remedy such default within fifteen (15) days
after notice by Landlord to Tenant of such default, or if
such default is of such a nature that it cannot be
completely remedied within said period of fifteen (15) days
and Tenant shall not commence within said period of fifteen
(15) days, or shall not thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(iii) If the Premises shall become deserted or abandoned; or
(iv) If Tenant's interest in this Lease shall devolve upon or
pass to any person, whether by operation of law or
otherwise, except as may be expressly permitted under
Article 12 hereof; or
(v) If Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or
insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other
present or future applicable federal, state or other
statute or law, or shall make an assignment for the benefit
of creditors or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's property; or
(vi) If, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a
petition or otherwise, seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any
future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law,
such proceeding shall not have been dismissed, or if,
within sixty (60) days after the appointment of any
trustee, receiver or liquidator of Tenant, or of all or any
part of Tenant's property, without the consent or
acquiescence of Tenant, such appointment shall not have
been vacated or otherwise discharged, or if any execution
or attachment shall be
28
issued against Tenant or any of Tenant's property pursuant
to which the Premises shall be taken or occupied or
attempted to be taken or occupied;
then, in any of said cases, at any time prior to or during the Term, of any one
or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) days notice of termination of
this Lease and, in the event such notice is given, this Lease and the Term shall
come to an end and expire (whether or not the Term shall have commenced) upon
the expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the Expiration Date, but Tenant shall
remain liable for damages as provided in Article 18 hereof.
B. EFFECT OF BANKRUPTCY. If, at any time, (i) Tenant shall be comprised
of two (2) or more persons, or (ii) Tenant's obligations under this Lease shall
have been guaranteed by any person other than Tenant, or (iii) Tenant's interest
in this Lease shall have been assigned, the word "Tenant", as used in clauses
(vi) and (vii) of subsection A of this Article 17, shall be deemed to mean any
one or more of the persons primarily or secondarily liable for Tenant's
obligations under this Lease. Any monies received by Landlord from or on behalf
of Tenant during the pendency of any proceeding of the types referred to in said
clauses (vi) and (vii) shall be deemed paid as compensation for the use and
occupation of the Premises and the acceptance of any such compensation by
Landlord shall not be deemed an acceptance of rent or a waiver on the part of
Landlord of any rights under said subsection A.
C. CONDITIONAL LIMITATION. If Tenant shall default in the payment of Rent
or additional rent hereunder more than three (3 times in any twelve (12) month
period during the Term hereof, nothing contained in this Article 17 shall be
deemed to require Landlord to give the notices herein provided for prior to the
commencement of a summary proceeding for non-payment of rent or a plenary action
for recovery of rent on account of any default in the payment of the same, it
being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such termination, Tenant
shall do so as a holdover tenant. As used in this Subsection C, "default in the
payment of rent" shall mean Tenant has paid the Rent or additional rent in
question later than the third (3rd) day after such Rent or additional rent was
due and payable hereunder (i.e., after the expiration of the notice and cure
period provided in subsection a(i) of Article 17 hereof).
18. REMEDIES AND DAMAGES.
A. LANDLORD'S REMEDIES. (i) If Tenant shall default in the payment when
due of any installment of Rent or in the payment when due of any additional
rent, or if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall be taken or occupied or attempted
to betaken or occupied by someone other than Tenant, or if Tenant shall fail to
move into or take possession of the Premises within fifteen (15) days after the
Commencement Date, or if this Lease and the Term shall expire and come to an end
as provided in Article 17:
(a) Landlord and its agents and servants may
immediately, or at any time after such default or
after the date upon which this Lease and the Term
shall expire and come to an end, re-enter the
Premises or any
29
part thereof, either by summary proceedings, or by
any other applicable action or proceeding (without
being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and
dispossess Tenant and any other persons from the
Premises and remove any and all of their property
and effects from the Premises; and
(b) Landlord, at Landlord's option, may relet the whole
or any part or parts of the Premises from time to
time, either in the name of Landlord or otherwise,
to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at
such rental or rentals and upon such other
conditions, which may include concessions and free
rent periods, as Landlord, in its sole discretion,
may determine. Landlord shall have no obligation to
relet the Premises or any part thereof and shall in
no event be liable for refusal or failure to relet
the Premises or any part thereof, or, in the event
of any such reletting, for refusal or failure to
collect any time due upon any such reletting, and no
such refusal or failure shall operate to relieve
Tenant of any liability under this Lease or
otherwise to affect any such liability; Landlord, at
Landlord's option, may make such repairs,
replacements, alterations, additions, improvements,
decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion,
considers advisable or necessary in connection with
any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease
or otherwise affecting any such liability.
(ii) Tenant hereby waives the service of any notice of intention
to re-enter or to institute legal proceedings to that end
which may otherwise be required to be given under any
present or future law. Tenant, on its own behalf and on
behalf of all persons claiming through or under Tenant,
including all creditors, does further hereby waive any and
all rights which Tenant and all such persons might
otherwise have under any present or future law to redeem
the Premises, or to re-enter or repossess the Premises, or
to restore the operation of this Lease, after (a) Tenant
shall have been dispossessed by a judgment or by warrant of
any court or judge, or (b) any re-entry by Landlord, or (c)
any expiration or termination of this Lease and the Term,
whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the
provisions of this Lease. The words "re-enter", "re-entry"
and "re-entered" as used in this Lease shall not be deemed
to be restricted to their technical legal meanings. In the
event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term,
covenant or condition of this Lease on Tenant's part to be
observed or performed, Landlord shall have the right to
enjoin such breach and the right to invoke any other remedy
allowed bylaw or in equity as if re-entry, summary
proceedings and other special remedies were not provided in
this Lease for such breach. The right to invoke the
remedies
30
herein before set forth are cumulative and shall not
preclude Landlord from invoking any other remedy allowed at
law or in equity.
B. DAMAGES. (i) If this Lease and the Term shall expire and come to an
end as provided in Article 17, or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Premises as
provided in subsection A of this Article 18, or by or under any summary
proceeding or any other action or proceeding, then, in any of said events:
(a) Tenant shall pay to Landlord all Rent,
additional rent and other charges payable
under this Lease by Tenant to Landlord to the
date upon which this Lease and the Term shall
have expired and come to an end or to the
date of re-entry upon the Premises by
Landlord, as the case may be;
(b) Tenant also shall be liable for and shall pay
to Landlord, as damages, any deficiency
(referred to as "Deficiency") between the
Rent reserved in this Lease for the period
which otherwise would have constituted the
unexpired portion of the Term and the net
amount, if any, of rents collected under any
reletting effected pursuant to the provisions
of subsection A(i) of this Article 18 for any
part of such period (first deducting from the
rents collected under any such reletting all
of Landlord's expenses in connection with the
termination of this Lease, or Landlord's
reentry upon the Premises and with such
reletting including, but not limited to, all
repossession costs, brokerage commissions,
legal expenses, attorneys' fees and
disbursements, alteration costs and other
expenses of preparing the Premises for such
reletting); any such Deficiency shall be paid
in monthly installments by Tenant on the days
specified in this Lease for payment of
installments of Rent, Landlord shall be
entitled to recover from Tenant each monthly
Deficiency as the same shall arise, and no
suit to collect the amount of the Deficiency
for any month shall prejudice Landlord's
right to collect the Deficiency for any
subsequent month by a similar proceeding; and
(c) Whether or not Landlord shall have collected
any monthly Deficiencies as aforesaid,
Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on
demand, in lieu of any further Deficiencies
as and for liquidated and agreed final
damages, a sum equal to the amount by which
the Rent reserved in this Lease for the
period which otherwise would have constituted
the unexpired portion of the Term exceeds the
then fair and reasonable rental value of the
Premises for the same period, less the
aggregate amount of Deficiencies theretofore
collected by Landlord pursuant to the
provisions of subsection B(1)(b) of this
Article 18 for the same period; if, before
presentation of proof of such liquidated
damages to any court, commission or tribunal,
the Premises, or any part thereof, shall have
been relet by Landlord for the period which
otherwise
31
would have constituted the unexpired portion
of the Term, or any part thereof, the amount
of rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and
reasonable rental value for the part or the
whole of the Premises so relet during the
term of the reletting.
(ii) If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents
collected or reserved under any such reletting and
the expenses of any such reletting shall be
equitably apportioned for the purposes of this
subsection B. Tenant shall in no event be entitled
to any rents collected or payable under any
reletting, whether or not such rents shall exceed
the Rent reserved in this Lease. Solely for the
purposes of this Article, the term "Rent" as used in
subsection B(i) of this Article 18 shall mean the
Rent in effect immediately prior to the date upon
which this Lease and the Term shall have expired and
come to an end, or the date of re-entry upon the
Premises by Landlord, as the case may be, adjusted
to reflect any increase or decrease pursuant to the
provisions of Article 28 hereof for the Comparison
Year (as defined in said Article 28) immediately
preceding such event. Nothing contained in Article
17 or this Article 18 shall be deemed to limit or
preclude the recovery by Landlord from Tenant of the
maximum amount allowed to be obtained as damages by
any statute or rule of law, or of any sums or
damages to which Landlord may be entitled in
addition to the damages set forth in subsection B(i)
of this Article 18.
C. LEGAL FEES. (i) Tenant hereby agrees to pay, as additional rent, all
reasonable attorneys' fees and disbursements (and all other court costs or
expenses of legal proceedings) which Landlord may incur or pay out by reason of,
or in connection with:
(a) Any action or proceeding by Landlord to
terminate this Lease in which Landlord
prevails;
(b) Any other action or proceeding by Landlord
against Tenant (including, but not limited
to, any arbitration proceeding) in which
Landlord prevails;
(c) Any default by Tenant in the observance or
performance of any obligation under this
Lease (including, but not limited to, matters
involving payment of rent and additional
rent, computation of escalations, alterations
or other Tenant's work and subletting or
assignment), whether or not Landlord
commences any action or proceeding against
Tenant;
(d) Any action or proceeding brought by Tenant
against Landlord (or any officer, partner or
employee of Landlord) in which Tenant does
not prevail and with respect to which no
appeal is sought; and
32
(e) Any other appearance by Landlord (or any
officer, partner or employee of Landlord) as
a witness or otherwise in any action or
proceeding whatsoever involving or affecting
Landlord. Tenant or this Lease in which
Landlord prevails.
(ii) Tenant's obligations under this subsection C of
Article 18 shall survive the expiration of the Term
hereof or any earlier termination of this Lease.
This provision is intended to supplement (and not to
limit) other provisions of this Lease pertaining to
indemnities and/or attorneys' fees.
19. FEES AND EXPENSES.
A. CURING TENANT'S DEFAULTS. If Tenant shall default in the observance or
performance of any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
Lease, Landlord may immediately or at any time thereafter on five (5) business
days notice perform the same for the account of Tenant, and if Landlord makes
any expenditures or incurs any obligations for the payment of money in
connection therewith including, but not limited to, reasonable attorneys' fees
and disbursements in instituting, prosecuting or defending any action or
proceeding, such sums paid or obligations incurred with interest and costs shall
be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord within fifteen (15) business days of rendition of any xxxx or statement
to Tenant therefor.
B. LATE CHARGES. If Tenant shall fail to make payment of any installment
of rent or any additional rent within ten (10) business days after the date when
such payment is due, Tenant shall pay to Landlord, in addition to such
installment of Rent or such additional rent, as the case may be, as a late
charge and as additional rent, a sum based on rate equal to the lesser of (i)
five percent (5%) per annum above the then current prime rate charged by
Citibank, N.A. or its successor and (ii) the maximum rate permitted by
applicable law, of the amount unpaid computed from the date such payment was due
to and including the date of payment, but in no event shall interest be computed
and payable for less than a full calendar month. Tenant acknowledges and agrees
that, except as otherwise expressly provided herein, if Tenant fails to dispute
any item of additional rent within thirty (30) days of receipt of a xxxx or
notice therefor, Tenant shall be deemed to have waived its right to dispute the
same.
20. NO REPRESENTATIONS BY LANDLORD. Landlord or Landlord's agents have made
no representations or promises with respect to the Building, the Real Property,
the Premises or Taxes (as defined in Article 28 hereof) 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 herein. All references
in this Lease to the consent or approval of Landlord shall be deemed to mean the
written consent of Landlord or the written approval of Landlord and no consent
or approval of Landlord shall be effective for any purpose unless such consent
or approval is set forth in a written instrument executed by Landlord.
33
21. END OF TERM.
A. SURRENDER OF PREMISES. Upon the expiration or other termination of the
Term, Tenant shall quit and surrender to Landlord the Premises, broom clean, in
good order and condition, ordinary wear and tear and damage for which Tenant is
not responsible under the terms of this Lease excepted, and Tenant shall remove
all of its property pursuant to Article 3 hereof. Tenant's obligation to observe
or perform this covenant shall survive the expiration or sooner termination of
the Term. If the last day of the Term or any renewal thereof falls on Saturday
or Sunday this Lease shall expire on the business day immediately preceding. In
addition, the parties recognize and agree that the damage to Landlord resulting
from any failure by Tenant to timely surrender possession of the Premises as
aforesaid will be substantial, will exceed the amount of the monthly
installments of the Rent theretofore payable hereunder, and will be impossible
to accurately measure. Tenant therefore agrees that if possession of the
Premises is not surrendered to Landlord within twenty-four (24) hours after the
Expiration Date or sooner termination of the Term, in addition to any other
rights or remedy Landlord may have hereunder or at law, Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the Expiration Date or sooner termination of
this Lease, a sum equal to two (2) times he aggregate of that portion of the
Rent and the additional rent which was payable under this Lease during the last
month of the Term. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner
termination of this Lease and no acceptance by Landlord of payments from Tenant
after the Expiration Date or sooner termination of the Term shall be deemed to
be other than on account of the amount to be paid by Tenant in accordance with
the provisions of this Article 21, which provisions shall survive the Expiration
Date or sooner termination of this Lease.
B. HOLDOVER BY TENANT. If Tenant shall hold-over or remain in possession
of any portion of the Premises beyond the Expiration Date of this Lease,
notwithstanding the acceptance of any Rent and additional rent paid by Tenant
pursuant to subsection A above, Tenant shall be subject not only to summary
proceeding and all damages related thereto, but also to any damages arising out
of lost opportunities (and/or new leases) by Landlord to re-let the Premises (or
any part thereof). All damages to Landlord by reason of such holding over by
Tenant may be the subject of a separate action and need not be asserted by
Landlord in any summary proceedings against Tenant.
22. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon
Tenant paying the Rent and additional rent and observing and performing all the
terms, covenants and conditions, on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Premises subject, nevertheless, to
the terms and conditions of this Lease including, but not limited to, Article 16
hereof and to all Superior Leases and Mortgages.
23. FAILURE TO GIVE POSSESSION. Tenant waives any right to rescind this Lease
under Section 223-a of the New York Real Property Law or any successor statute
of similar import then in force and further waives the right to recover any
damages which may result from Landlord's failure to deliver possession of the
Premises on the date set forth in Article 1 hereof for the commencement of the
Term. If Landlord shall be unable to give possession of the Premises on such
date, and provided Tenant is not responsible for such inability to give
possession, the Rent reserved and covenanted to be paid herein shall not
commence until the possession of the Premises
34
is given or the Premises are available for occupancy by Tenant, and no such
failure to give possession on such date shall in any way affect the validity of
this Lease or the obligations of Tenant hereunder or give rise to any claim for
damages by Tenant or claim for rescission of this Lease. Notwithstanding
anything to the contrary herein above set forth, if Landlord shall fail to
deliver possession of the Premises to Tenant (other than as a result of an act
or omission of Tenant or any person or entity acting by or on behalf of Tenant
(collectively, a "Tenant Act"), by the Commencement Date, then in no event and
under no circumstances shall Landlord be liable for any of Tenant's costs or
expenses; it be agreed that unless such failure is a result of a Tenant Act, the
Rent Commencement Date and the Expiration Date shall be postponed one (1) day
for every day occurring between the Commencement Date and the date on which the
Premises are available for occupancy, and such postponement of the Rent
Commencement Date and the Expiration Date shall be Tenant's sole remedy for such
failure. If permission is given to Tenant to enter into the possession of the
Premises or to occupy premises other than the Premises prior to the Commencement
Date, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease,
including the covenant to pay Rent. Tenant acknowledges that the Premises are
currently occupied by a tenant pursuant to an existing lease. Tenant further
acknowledges that the expiration of the lease covering the Premises expires by
its terms on April 30, 2000, and that Landlord and the existing on tenant have
executed a surrender agreement with respect to the Premises simultaneously with
the execution and delivery of this Lease, which surrender agreement is effective
as of October 20, 1999.
24. NO WAIVER. If there be any agreement between Landlord and Tenant
providing for the cancellation of this Lease upon certain provisions or
contingencies and/or an agreement for the renewal hereof at the expiration of
the Term, the right to such renewal or the execution of a renewal agreement
between Landlord and Tenant prior to the expiration of the Term shall not be
considered an extension thereof or a vested right in Tenant to such further
term, so as to prevent Landlord from canceling this Lease and any such extension
thereof during the remainder of the original Term; such privilege, if and when
so exercised by Landlord, shall cancel and terminate this Lease and any such
renewal or extension previously entered into between Landlord and Tenant or the
right of Tenant to any such renewal or extension; any right herein contained on
the part of Landlord to cancel this Lease shall continue during any extension or
renewal hereof; any option on the part of Tenant herein contained for an
extension or renewal hereof shall not be deemed to give Tenant any option for a
further extension beyond the first renewal or extended term. No act or thing
done by Landlord or Landlord's agents during the Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys of the
Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as a termination
of this Lease or a surrender of the Premises. In the event Tenant at anytime
desires to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such subletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
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 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
35
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, or as Landlord may elect to apply same, 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. This
Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged in this Lease. Any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
25. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matters whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant
Tenant's use or occupancy of the Premises, and/or any claim of personal injury
or property damage, or for the enforcement of any remedy under any statute,
emergency or otherwise. It is further mutually agreed that in the event Landlord
commences any summary proceeding (whether for nonpayment of rent or because
Tenant continues in possession of the Premises after the expiration or
termination of the Term), Tenant will not interpose any counterclaim (except for
mandatory or compulsory counterclaims) of whatever nature or description in any
such proceeding.
26. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay Rent
and additional rent hereunder and perform all of the other covenants and
agreements hereunder on the part of Tenant to be performed shall in nowise be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease expressly or impliedly to be performed by Landlord
or because Landlord is unable to make, or is delayed in making any repairs,
additions, alterations, improvements or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of strikes or labor troubles or by accident or
by any cause whatsoever reasonably beyond Landlord's control, including, but not
limited to, laws, governmental preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any federal, state,
county or municipal authority or any department or subdivision thereof or any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
27. BILLS AND NOTICES. Except as otherwise expressly provided in this Lease,
any bills, statements, notices, demands, requests or other communications given
or required to be given under this Lease shall be deemed sufficiently given or
rendered if in writing and sent by registered or certified mail (return receipt
requested) or by recognized overnight courier (E.G., Federal Express) addressed
(i) to Tenant (a) at Tenant's address set forth in this Lease if mailed prior to
Tenant's taking possession of the Premises, or (b) at the Building if mailed
subsequent to Tenant's taking possession of the Premises, or (c) at any place
where Tenant or any agent or employee of
36
Tenant may be found if mailed subsequent to Tenant's vacating, deserting,
abandoning or surrendering the Premises, with a courtesy copy to Tenant's
attorneys, Xxxxxxx 8 Associates, P.C., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: Xxxxx X. Xxxxxxx, Esq. or (ii) to Landlord at
Landlord's address set forth in this Lease with a courtesy copy to Landlord's
attorneys, Xxxxxxxx & Schecter LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or (iii) to such other address as either Landlord or Tenant may designate
as its new address for such purpose by notice given to the others in accordance
with the provisions of this Article 27. Tenant hereby acknowledges and agrees
that any such xxxx, statement, demand, notice, request or other communication
may be given by Landlord's agent on behalf of Landlord. Any such xxxx,
statement, demand, notice, requestor other communication shall be deemed to have
been rendered or given on the date when it shall have been mailed or on the date
receipt is refused if sent by overnight courier, each as provided in this
Article 27. Notwithstanding anything contained in this Article 27 to the
contrary, bills and statements issued by Landlord may be sent by the method(s)
set forth herein above, without copies to any other party. This notice provision
has been specifically negotiated between the parties hereto.
28. ESCALATION.
A. RENT ESCALATION. COST INCREASE. (i) (a) For purposes of the formula
and other provisions set forth in this Article 28A and elsewhere in this Lease:
(i) "Rate" shall mean the minimum regular hourly wage rate,
including adjustments of every kind and nature, other than
fringe employee benefits (including, without limitation,
adjustments provided for in subsection (i)(a)(iii) of this
Article 28A prescribed for Porters (as hereinafter defined)
for Class A office buildings (or any successor category),
pursuant to the present and any successor agreement between
the Realty Advisory Board on Labor Relations, Incorporated
(or any successor thereto) and Local 32B of the Building
Service Employees International Union, AFL-CIO (or any
successor thereto), covering the wage rates for Porters in
such buildings ("Agreement"); PROVIDED, HOWEVER, that, (a)
if, at any time during the Term, regular employment of
Porters occurs on days or during hours when the overtime or
other premium pay rates are in effect pursuant to the
Agreement, "Rate" shall mean the average hourly wage rate,
including adjustments of every kind and nature, other than
fringe employee benefits (including, without limitation,
adjustment provided for in subsection (i)(a)(iii) of this
Article 28A for the hours in a calendar week during which
Porters are regularly employed (E.G., if pursuant to
the Agreement, the regular weekly employment of Porters is
for forty hours, at a regular hourly wage rate of $12.00
for the first thirty hours and an overtime hourly wage rate
of $15.00 for the remaining ten hours, the average hourly
wage rate for the applicable period shall, before
adjustment pursuant to the provisions of subsection
(i)(a)(iii) of this Article 28A, be the weekly wage rate of
$510.00 divided by the number of regular hours of
employment, to wit, forty, or $12.75), and that, (b) if, at
anytime during the Term, no Agreement exists, "Rate" shall
mean the average minimum regular hourly wage rate,
including adjustments of every kind and nature, other than
fringe employee benefits (including,
37
without limitation, adjustments provided for in subsection
(i)(a)(iii) of this Article 28A actually payable to Porters
at the rate for Porters employed at Class A office
buildings as such buildings are presently described in the
Agreement, except that at no time shall the amount payable
be less than the amount being paid by the Tenant pursuant
to this subsection (i)(a)(i) of this Article 28A at the
time the rate ceases to exist.
(ii) "Porters" shall mean those employees who have been employed
for ten (10) years or more and who are engaged in the
general maintenance and operation of office buildings,
classified as "Others" in the current Agreement or, failing
such classification in any subsequent Agreement, the most
nearly comparable classification in such Agreement:
(iii) In determining the Rate and the Base Rate on each
applicable occasion pursuant to this Lease, the Base Rate
and the Rate, as specified in the Agreement, shall be
adjusted on the basis of the number of hours Porters
actually are to work, pursuant to the Agreement, during the
applicable calendar year (E.G., if the Agreement is
predicated on a 2,080 hour work year (40 hours x 52 weeks)
and Porters are paid for the following time which they
actually are not to work (Vacation-120 hours, Holidays-88
hours, Birthday-8 hours, Medical Checkup-16 hours, Sick
Days-80 hours, Disaster Day-8 hours and Relief Time-147
hours), totaling 467 hours, then the Base Rate and the Rate
shall be calculated on the basis of Porters actually
working 1,613 hours (2,080 hours less 467 hours).
(i) (b) If, in any year during the Term, the Rate exceeds the Base Rate.
Tenant shall pay Landlord an amount ("Expense Escalation") equal to the product
of the Multiplication Factor multiplied by 100% of the amount by which the Rate
exceeds the Base Rate, appropriately adjusted for any such period which is only
partially within the Term. The Expense Escalation shall be payable in equal
monthly installments, commencing with the first installment of Rent due on or
after the effective date of any increase in the Rate and continuing thereafter
until the effective date of any subsequent increase, whereupon such installments
shall be appropriately adjusted. Landlord shall furnish Tenant with a statement
itemizing Tenant's liability pursuant to this subsection (i)(b) of this Article
28A whenever such liability arises or changes. Except as limited by Articles 10
and 11 of this Lease, Tenant's obligation to make such payments shall survive
the Expiration Date or any sooner termination of this Lease. Notwithstanding the
foregoing, if, by reason of any law or any rule, order, regulation or
requirement of any governmental or quasi-governmental authority having or
asserting jurisdiction (collectively, "Law"), an increase in the Rate is reduced
or does not take effect, or increases in the Rate are limited or prohibited,
then, for the period covered by the Law ("Law Period"), the applicable increase
("Increase") in the Rate for purposes of this Article 28A shall be the increase
in the Rate ("Prior Increase") which most immediately preceded the effective
date of the Law. The Increase shall take effect on the date following the
expiration of the period for the Prior Increase and an equivalent Increase shall
take effect on each anniversary of such effective date during the Law Period.
(i) (c) Each notice given by Landlord pursuant to subsection (i)(b) of
this Article 28A shall be binding upon Tenant unless, within thirty (30) days
after is receipt of such notice,
38
Tenant notifies Landlord of its disagreement therewith, specifying the portion
thereof with which Tenant disagrees. Pending resolution of such dispute, Tenant
shall, without prejudice to its rights, pay all amounts determined by Landlord
to be due, subject to prompt refund by Landlord (without interest) upon any
contrary determination.
(i) (d) Landlord's failure to timely xxxx all or any portion of the
Expense Escalation (or any increase therein) for any period or periods during
the Term (whether because of failure to timely consummate an Agreement or
because of error or oversight of Landlord or its managing agent or for any other
reason) shall not constitute a waiver of Landlord's right to ultimately collect
such amount, nor a waiver of Landlord's right to xxxx Tenant at any subsequent
time retroactively for the entire amount so unbilled, which unbilled amount
shall be payable within thirty (30) days after being so billed.
B. REAL ESTATE TAX ESCALATION. (i) Tenant shall pay to Landlord, as
additional rent, tax escalation in accordance with this Article 28B.
(i) (a) As used in this Article 28B, the following definitions shall
apply:
(i) The term "Comparative Year" shall mean the respective
twelve (12) months following the Base Tax Year, and each
subsequent period of twelve (12) months.
(ii) The term "Real Estate Taxes" shall mean the total of all
real property taxes and special or other assessments and/or
vault charges levied, assessed or imposed at any time by
any governmental authority or against the Real Property,
and also any tax or assessment levied, assessed or imposed
at any time by any governmental authority in connection
with the receipt of income or rents from said Real Property
to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or
additions or increases thereof, upon or against said Real
Property and any Business Improvement District Charges. If,
due to a future change in the method of taxation or in the
taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against
Landlord in substitution in whole or in part for the Real
Estate Taxes, or in lieu of additions to or increases of
said Real Estate Taxes, then such franchise, income,
transit, profit or other tax or governmental imposition
shall be deemed to be included within the definition of
"Real Estate Taxes" for the purposes hereof. As to special
assessments which are payable over a period of time
extending beyond the Term, only a pro rata portion thereof,
covering the portion of the Term unexpired at the time of
the imposition of such assessment, shall be included in
"Real Estate Taxes". If, by law, any assessment may be paid
in installments, then, for the purposes hereof (a) such
assessment shall be deemed to have been payable in the
maximum number of installments permitted bylaw and (b)
there shall be included in Real Estate Taxes, for each
Comparative Year in which such installments may be paid,
the installments of such assessments so becoming payable
during the
39
Comparative Year, together with interest payable during
such Comparative Year.
(iii) The phrase "Real Estate Taxes payable during the Base Tax
Year" shall mean that amount obtained by multiplying the
valuations actually used by the City of New York, of the
land and building of the Real Property(whether same be
actual or a transitional assessment), for purposes of
billing Real Estate Taxes during he Base Tax Year by the
Base Tax Year rate for each $100,000 for such valuation.
(ii)(b) In the event that the Real Estate Taxes payable for any
Comparative Year shall exceed the amount of such Real Estate Taxes payable
during the Base Tax Year, Tenant shall pay to Landlord, as additional rent for
such Comparative Year, an amount equal to Tenant's Proportionate Share of the
excess. By or after the start of the Comparative Year following the Base Tax
Year, and by or after the start of each Comparative Year thereafter, Landlord
shall furnish to Tenant a statement of the Real Estate Taxes payable during the
Base Tax Year and each Comparative Year, which statement shall reflect the
amount to be paid by the Tenant pursuant to this subsection (ii)(b) of this
Article 28B. Tenant's obligation to pay the amount herein provided for shall
survive the expiration or earlier termination of this Lease.
(ii)(c) The amount due pursuant to the calculation provided for in
subsection (ii)(b) of this Article 28B above shall be due and payable within ten
(10) days after Landlord shall have delivered to Tenant a statement setting
forth the amount equal to Tenant's Proportionate Share of the excess and the
basis therefor. Bills for such Taxes shall be sufficient evidence of amount, for
the purpose of calculating Tenant's Proportionate Share. In the event Tenant
fails to pay Tenant's Proportionate Share when due, Landlord shall be entitled,
with respect thereto, to any and all remedies to which Landlord may be entitled
under this Lease for default in the payment of Rent. The failure of Landlord to
xxxx Tenant for the additional rent due in any fiscal year shall not prejudice
the right of Landlord to subsequently xxxx Tenant for such fiscal year or any
subsequent fiscal year.
(ii)(d) Should the Real Estate Taxes payable during the Base Tax Year be
reduced by final determination of legal proceedings, settlement or otherwise,
then, the Real Estate Taxes payable during the Base Tax Year shall be
correspondingly revised, the additional rent theretofore paid or payable
hereunder for all Comparative Years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord as additional rent, within ten (10)
days after being billed therefor, any deficiency between the amount of such
additional rent as theretofore computed and the amount thereof due as the result
of such recomputations. Should the Real Estate Taxes payable during the Base Tax
Year be increased by such final determination of legal proceedings, settlement
or otherwise, then appropriate recomputation and adjustment also shall be made
and the amount due by Landlord to Tenant shall be paid within ten (10) days
after there computation. Should the Real Estate Taxes paid during any
Comparative Year be increased or decreased by a final determination of legal
proceedings, settlement or otherwise, then an appropriate recomputation and
adjustment shall be made between Landlord and Tenant and any amount owed by
Tenant shall be paid within ten (10) days after Tenant is billed therefor and be
deemed additional rent, and any amount owed by Landlord to Tenant shall be paid
within ten (10) days of the recomputation.
40
(ii)(e) Tenant shall separately reimburse Landlord, as additional rent
within ten (10) days after having been billed by Landlord therefor, Tenant's
Proportionate Share of all expenses incurred by Landlord in reviewing or
contesting the validity or amount of any Real Estate Taxes for any Comparative
Year and for the valuations used by the City of New York for the land and the
Building of the Real Property for purposes of billing such Real Estate Taxes,
including, without limitation, the fees and disbursements of attorneys, third
party consultants, experts and others.
(ii)(f) Upon the date of any expiration or termination of this Lease
(except termination because of Tenant's default), whether the same be the date
hereinabove set forth for the expiration of the Term or any prior or subsequent
date, a proportionate share of said additional rent for the Comparative Year
during which such expiration or termination occurs shall immediately become due
and payable by Tenant to Landlord, if not theretofore already billed and paid.
The said proportionate share shall be based upon the length of time that this
Lease shall have been in existence during such Comparative Year. Landlord shall,
as soon as reasonably practicable, compute the additional rent due from Tenant,
as aforesaid, which computations shall either be based on that Comparative
Year's actual figures or be an estimate based upon the most recent statements
prepared by Landlord and furnished to Tenant. If an estimate is used, then
Landlord shall 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, which shall survive any expiration or termination of
this Lease.
(ii)(g) Any delay or failure of Landlord in billing for any additional
rent shall not constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such additional rent.
(ii)(h) Notwithstanding any contrary or inconsistent provisions of this
Article 28B, Tenant shall pay to Landlord on the first day of each calendar
month during the Term an amount (the "Estimated Monthly Tax Payment") equal to
1/12th of Landlord's estimate (in Landlord's sole discretion) of the payment
which will be due to Landlord from Tenant pursuant to subsection (ii)(b) of this
Article 28B for the next Comparative Year. Landlord shall provide such estimate
to Tenant together with the monthly billing of Estimated Monthly Tax Payment
during each calendar year. For example: if Landlord estimates that the amount
payable by Tenant pursuant to subsection (ii)(b) of this Article 28B for the
Comparative Year July 1,1998 through June 30,1999 will be $144 then Landlord
shall provide Tenant such estimate together with a billing for Estimated Monthly
Tax Payment for each month of the term during the calendar year 1998 for the sum
of $12; and the Estimated Monthly Tax Payments for each calendar month of 1998
shall each be $12 until such estimate is revised. Notwithstanding the foregoing,
after the sum actually payable for the Comparative Year in question is
determined, the Estimated Monthly Tax Payments made or to be made for all
calendar months included within such Comparative Year shall be equitably
adjusted, and any balance due Landlord or Tenant, as the case may be, shall be
paid forthwith.
C. CAPITAL IMPROVEMENTS. If any capital improvement is made to the Real
Property during any calendar year during the Term in compliance with any
Federal, state or local law or regulation, whether or not valid or mandatory,
then Tenant shall pay to Landlord, immediately upon demand therefor, Tenant's
Proportionate Share of the reasonable annual amortization, with interest, of the
cost of such improvement in each calendar year during the Term during which such
41
amortization occurs. Notwithstanding the foregoing, in no event shall Tenant's
obligation to pay additional rent pursuant to this subsection C exceed $7,500.00
in respect of any twelve (12) month period.
29. SERVICES.
A. ELEVATOR. Landlord shall provide passenger elevator facilities on
business days from 8:00 A.M. to 6:00 P.M. and shall have one passenger elevator
in the bank of elevators servicing the Premises available at all other times.
Landlord shall provide freight elevator services on an "as available" basis for
incidental use by Tenant from 8:00 A.M. through 12:00 Noon and from 1:00 P.M.
through 5:00 P.M. on business days only. Any extended use may be arranged with
Landlord's prior consent and Tenant shall pay as additional rent all building
standard charges therefor. Notwithstanding the foregoing, Tenant shall not be
charged for use of freight elevator service during Tenant's initial move into he
Premises, but not in excess of eight (8) consecutive hours, which move-in shall
be scheduled on one day and during such consecutive hours as Landlord shall
reasonably designate(which may be after business hours or on a weekend).
B. HEATING. Landlord shall furnish heat to the Premises when and as
required by law, on business days from 8:00 P.M. to 6:00 P.M. Landlord shall not
be responsible for the adequacy, design or capacity of the heating distribution
system if the normal operation of the heat distribution system serving the
Building shall fail to provide heat at reasonable temperatures or any reasonable
volumes or velocities in any parts of the Premises by reason of any
rearrangement of partitioning or other Alterations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant.
C. COOLING. Tenant shall have the privilege of using the air-cooling
system presently serving the Premises which air-cooling system shall be
maintained by Landlord, provided that Tenant shall within ten (10) days after
the date of receipt of an invoice therefor, pay the costs of the service
contract obtained by Landlord for such air-cooling system as determined by
Landlord, including, without limitation, but subject to the provisions of the
next succeeding sentence, the costs of repair and replacement of any component
parts thereof to the extent same is necessary for the proper maintenance of the
air-cooling system. Tenant shall not alter, modify or replace such air-cooling
system, or any part thereof, without Landlord's consent, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, Landlord shall be
responsible for the cost of any repair to or replacement of major components of
the air-cooling system (and not for regular repair, maintenance or replacement
of the air-cooling system which shall be the responsibility of Tenant as
provided above) made during the period commencing on the Commencement Date
through and including the first anniversary of the Commencement Date. Anything
in this Lease to the contrary notwithstanding, Landlord shall not be responsible
if the normal operation of the air-cooling system shall fail to provide cooled
air at reasonable temperatures, pressures or degrees of humidity or any
reasonable volumes or velocities in any parts of the Premises by reason of (i)
human occupancy factors and any machinery or equipment installed by or on behalf
of Tenant or any person claiming through or under Tenant, having an electrical
load in excess of the average electrical load for the air-cooling system as
designed or (ii) any rearrangement of partitioning or other Alterations made or
performed by or on behalf of Tenant or any person claiming through or under
Tenant. Tenant agrees to keep and cause to be kept closed all of the windows in
the Premises whenever the air-cooling system is in operation and agrees to lower
and close the blinds
42
when necessary because of the sun's position whenever the air-cooling system is
in operation. Tenant at all times agrees to cooperate fully with Landlord and to
abide by the regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the air-cooling system. Landlord,
throughout the Term, shall have free access to any and all mechanical
installations of Landlord, including, but not limited to, air-cooling, fan,
ventilating, machine rooms and electrical closets. Tenant shall pay for the
costs of electrical energy consumed by the air-cooling system in accordance with
the provisions of Article 29, subsection H, hereof.
D. AFTER HOURS AND ADDITIONAL SERVICES. The Rent does not include any
charge to Tenant for the furnishing of any additional passenger elevator
facilities, any freight elevator facilities (other than as contemplated in
Article 29 subsection A) or for the service of heat to the Premises during
periods other than the hours and days set forth in sections A and B of this
Article 29 for the furnishing and distributing of such facilities or services
(referred to as "Overtime Periods"). Accordingly, if Landlord shall furnish any
(i) passenger elevator facilities to Tenant during Overtime Periods or freight
elevator facilities, except as provided in subsection A of this Article 29, or
(ii) heat to the Premises during Overtime Periods, then Tenant shall pay
Landlord additional rent for such facilities or services at the standard rates
then fixed by the Landlord for the Building or, if no such rates are then fixed,
at reasonable rates. Neither the facilities nor the services referred to in this
Article 29D shall be furnished to Tenant or the Premises if Landlord has not
received advance notice from Tenant specifying the particular facilities or
services requested by Tenant at least twenty-four (24) hours prior to the date
on which the facilities or services are to be furnished; or if Tenant is in
default under or in breach of any of the terms, covenants or conditions of this
Lease; or if Landlord shall determine, in its sole and exclusive discretion,
that such facilities or services are requested in connection with, or the use
thereof shall create or aid in a default under or a breach of any term, covenant
or condition of this Lease. All of the facilities and services referred to in
this Article 29D are conveniences and are not and shall not be deemed to be
appurtenances to the Premises, and the failure of Landlord to furnish any or all
of such facilities or services shall not constitute or give rise to any claim of
an actual or constructive eviction, in whole or in part, or entitle Tenant to
any abatement or diminution of Rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise. Landlord may limit the
furnishing during Overtime Periods of any of the facilities or services referred
to in this Article 29D to a total of twenty (20) hours in any one week. In the
event Tenant installs a supplemental air cooling system in the Premises, and if
condenser water for such system shall be supplied by Landlord, (x) Tenant shall
pay to Landlord, annually upon demand, a sum equal to $1000.00 per ton of air
conditioning capacity, adjusted annually, to compensate Landlord for the cost of
supplying condenser water for such supplemental system and (y) Tenant shall pay
to Landlord upon demand, Tenant's share of the cost of maintaining, repairing
and/or replacing the cooling tower providing such condenser water, such share to
be based upon Tenant's total demand of condenser water relative to the total
demand of all other tenants and occupants in the Building who are similarly
supplied condenser water by Landlord. In addition, any such supplemental
air-cooling system shall be installed with balancing valves and circuit setters
manufactured by a company satisfactory to Landlord for balancing by Landlord, at
Tenant's sole cost and expense.
E. CLEANING. Tenant at Tenant's expense, shall cause the Premises to be
kept clean in a manner satisfactory to Landlord and no one other than person or
entities approved by Landlord
43
shall be permitted to enter the Premises or the Building for such purpose;
PROVIDED, HOWEVER, Landlord shall only designate entities which provide cleaning
services at rates which are not in excess of those rates customarily charged by
reputable cleaning contractors for comparable services in Midtown Manhattan.
F. SPRINKLER SYSTEM. If there now is or shall be installed in the
Building a "sprinkler system", and such system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants, employees, licensees or visitors,
Tenant shall forthwith restore the same to good working condition at its own
expense; and if the New York Board of Fire Underwriters or the New York Fire
Insurance Rating Organization or any bureau, department or official of the state
or city government, shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business, or the location of the partitions, trade
fixtures, or other contents of the Premises, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment.
G. WATER. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary drinking, cleaning or lavatory purposes, Landlord may
install a water meter and thereby measure Tenant's water consumption for all
purposes. In such event (i) Tenant shall pay Landlord for the cost of the meter
and the cost of the installation thereof and through the duration of Tenant's
occupancy Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense in default of which
Landlord may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant; (ii) Tenant agrees to pay for water
consumed, as shown on said meter as and when bills are rendered, and on default
in making such payment Landlord may pay such charges and collect the same from
Tenant; and (iii) Tenant covenants and agrees to pay the sewer rent, charge or
any other tax, rent, levy or charge which now or hereafter is assessed, imposed
or shall become a lien upon the Premises or the realty of which they are part
pursuant to law, order or regulation made or issued in connection with any such
metered use, consumption, maintenance or supply of water, water system, or
sewage or sewage connection or system. The xxxx rendered by Landlord for the
above shall be based upon Tenant's consumption and shall be payable by Tenant as
additional rent within five (5) days of rendition. Any such costs or expenses
incurred or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such. Independently of and in addition to any of the
remedies reserved to Landlord hereinabove or elsewhere in this Lease, Landlord
may xxx for and collect any monies to be paid by Tenant or paid by Landlord for
any of the reasons or purposes herein above set forth.
H. ELECTRICITY SERVICE. (i) Tenant agrees that Landlord may furnish, or
make available for Tenant to redistribute in and to the Premises, electricity on
a "submetering" basis. Electricity and electric service, as used herein, shall
mean any element affecting the generation, transmission and/or distribution or
redistribution of electricity, including, but not limited to, services which
facilitate the distribution of service.
(ii) Tenant covenants and agrees to purchase submetered
electricity from Landlord or Landlord's designated agent at
charges, terms and rates computed in the manner hereinafter
described, to wit, a sum equal to Landlord's cost for such
electricity ("Landlord's Cost") plus ten (10%)
44
percent thereof. Landlord's Cost for such electricity shall
be equal to (a) by Tenant's electricity consumption ("KWH")
and demand ("KW") for the relevant billing period recorded
on Tenant's submeter at the service classification rates
under which Landlord purchases electric current that is
appropriate for Tenant's level of consumption (but never
less than Landlord's actual cost for the electricity so
redistributed), (b) Landlord's costs for measuring,
calculating and reporting Tenant's electricity charges,
including the fees of an electrical consultant ("Consultant
Costs") and (c) and all taxes paid by Landlord. Where more
than one meter measures the service of Tenant in the
Building, the service rendered through each meter may be
computed and billed separately in accordance with the rates
herein specified. Bills therefor shall be rendered at such
times as Landlord may elect and the amount, as computed
from a meter, shall be deemed to be, and be paid as,
additional rent. In the event that such bills are not paid
within thirty (30) days after the same are rendered,
Landlord may, without further notice, discontinue the
service of electric current to the Premises without
releasing Tenant from any liability under this Lease and
without Landlord or Landlord's agent incurring any
liability for any damage or loss sustained by Tenant by
such discontinuance of service. If any tax is imposed upon
Landlord's receipt from the sale, resale or redistribution
of electricity or gas or telephone service to Tenant by any
Federal, State or Municipal authority, Tenant covenants and
agrees that where permitted by law, Tenant's pro-rata share
of such taxes shall be passed onto and included in the xxxx
of, and paid by, Tenant to Landlord.
(iii) If all or part of the submetering, additional rent payable
in accordance with this Article becomes uncollectible or
reduced or refunded by virtue of any law, order or
regulation, the parties agree that, at Landlord's option,
in lieu of submetering additional rent, and in
consideration of Tenant's use of the Building's electrical
distribution system and receipt of electricity and payment
by Landlord of consultant's fees and other costs, the Rent
to be paid under this Lease shall be increased by an
"alternative charge" which shall be a sum equal to
$61,656.00 per annum payable in equal monthly installments
of $5,138.00 each, changed in the same percentage as any
increase in the cost to Landlord for electricity for the
entire Building subsequent to May 1, 1996, because of
electric rate, service classification or market price
changes, such percentage change to be computed as provided
in subparagraph (i) hereof.
(iv) Landlord shall not be liable to Tenant for any loss or
damage or expense which Tenant may sustain or incur if
either the quantity or character of electric service is
changed or is no longer available or suitable for Tenant's
requirements. Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity
of existing feeders to the Building or wiring installation.
Tenant agrees not to connect any additional electrical
equipment to the Building electric distribution system,
other than lamps, typewriters and other small office
machines which consume comparable
45
amounts of electricity, without Landlord's prior written
consent. Any riser or risers to supply Tenant's electrical
requirements, upon written request of Tenant, will be
installed by Landlord, at the sole cost and expense of
Tenant, if, in Landlord's sole judgment, the same are
necessary and will not cause permanent damage or injury to
the Building or the Premises or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or
disturb other tenants or occupants. In addition to the
installation of such riser or risers, Landlord will also at
the sole cost and expense of Tenant, install all other
equipment proper and necessary in connection therewith
subject to the aforesaid terms and conditions. The parties
acknowledge that they understand that it is anticipated
that electric rates, charges, etc., may be changed by
virtue of time-of day rates or changes in other methods of
billing, and/or electricity purchases and the
redistribution thereof, and fluctuation in the market price
of electricity, and that the references in the foregoing
paragraphs to changes in methods of or rules on billing are
intended to include any such changes. Anything hereinabove
to the contrary notwithstanding, in no event is the
submetering additional rent or any "alternative charge" to
be less than an amount equal to the total of Landlord's
payments to public utilities and/or other providers for the
electricity consumed by Tenant (and any taxes thereon or on
redistribution of same) plus 5% thereof for transmission
line loss, plus 15% thereof for transmission line loss and
other costs. If Landlord exercises such option, Tenant
shall pay to Landlord, as additional rent, on demand, from
time to time, but no more frequently than monthly, for its
consumption and demand of electrical energy at the then
on-peak rate, or prevailing rate, as applicable, then
prescribed by the utility serving the Building for
sub-metered electrical energy, plus a surcharge in the
amount of fifteen percent (15%) of the total electric xxxx,
for, among other Landlord expenses, administrative charges
and line and transformer losses.
(v) Landlord reserves the right to terminate the furnishing of
electricity on a submetering, or any other basis at any
time, upon thirty (30) days' notice to Tenant, in which
event Tenant may make application directly to the public
utility and/or other providers for Tenant's entire separate
supply of electric current and Landlord shall permit its
wires and conduits, to the extent available and safety
capable, to be used for such purpose, but only to the
extent of Tenant's then authorized load. Any meters, risers
or other equipment or connections necessary to enable
Tenant to obtain electric current directly from such
utility and/or other providers shall be installed at
Tenant's sole cost and expense. Only rigid conduit or
electricity metal tubing (EMT) will be allowed. Landlord,
upon the expiration of the aforesaid thirty (30) days'
notice to Tenant, may discontinue furnishing the electric
current but this Lease shall otherwise remain in full force
and effect.
(vi) Landlord shall not be liable to Tenant in any way for any
interruption, curtailment or failure, or defect in the
supply or character of electricity
46
furnished to the Premises by reason of any requirement, act
or omission of Landlord or of any utility or other company
servicing the Building with electricity or for any other
reason except Landlord's gross negligence or willful
misconduct. If either the quantity or character of
electrical service is changed by the utility or other
company supplying electrical service to the Building or is
no longer available or suitable for Tenant's requirements,
no such change, unavailability or unsuitability shall
constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord, or
its agents, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business,
or otherwise.
I. INTERRUPTION OF SERVICES. Landlord reserves the right to stop service
of the heating system and all other Building systems during any period of a
violation or breach by Tenant of the provisions of this Lease and to stop the
service of the heating system or the elevator, electrical, plumbing or other
mechanical systems or facilities in the Building when necessary, by reason of
accident or emergency, or for repairs, additions, alterations, replacements,
decorations or improvements in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed. Landlord shall have no responsibility or liability for
interruption, curtailment or failure to supply cooled or outside air, heat,
elevator, plumbing or electricity when prevented by exercising its right to stop
service or by strikes, labor troubles or accidents or by any cause whatsoever
reasonably beyond Landlord's control, or by failure of independent contractors
to perform or by laws, orders, rules or regulations of any federal, state,
county or municipal authority, or failure of suitable fuel supply, or inability
by exercise of reasonable diligence to obtain suitable fuel or by reason of
governmental preemption in connection with a National Emergency or by reason of
the conditions of supply and demand which have been or are affected by war or
other emergency. Tenant acknowledges that the air-cooling system serving the
Premises may contain freon or other chlorofluorocarbons (CFC's) and that future
federal, state or city regulations may require the removal of CFC's as well as
the alteration or replacement of equipment utilizing CFC's. In connection
therewith (i) Landlord reserves the right to stop service of the air-cooling
system or any other mechanical systems containing CFC's for such duration as may
be necessary to convert any such systems to eliminate the use of CFC's and (ii)
to enter upon the Premises, as necessary to install replacement equipment within
the Premises required by any such change. The exercise of such right or such
failure by Landlord shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any compensation or to any abatement or
diminution of Rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
30. PARTNERSHIP TENANT.
A. PARTNERSHIP TENANTS. If Tenant's interest in this Lease shall be
assigned to a partnership pursuant to Article 12 (any such partnership is
referred to in this Article 30 as a "Partnership Tenant"), the following
provisions of this Article 30 shall apply to such Partnership Tenant (i) the
liability of each of the parties comprising a Partnership Tenant shall be joint
and
47
several, and (ii) each of the parties comprising a Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any written instrument which
may hereafter be executed, changing, modifying or discharging this Lease, in
whole or in part, or surrendering all or any part of the Premises to Landlord,
and by any notices, demands, requests or other communications which may
hereafter be given by a Partnership Tenant or by any of the parties comprising a
Partnership Tenant, and (iii) any bills, statements, notices, demands, requests
or other communications given or rendered to a Partnership Tenant and to all
such parties shall be binding upon a Partnership Tenant and all such parties,
and (iv) if a Partnership Tenant shall admit new partners, all of such new
partners shall, by their admission to a Partnership Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed, and (v) a Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (iv) of subsection A of this Article 30).
B. LIMITED LIABILITY ENTITY. Notwithstanding anything to the contrary
contained herein, if Tenant is a limited or general partnership (or is comprised
of two (2) or more persons, individually or as co-partners), the change or
conversion of Tenant to (i) a limited liability company, (ii) a limited
liability partnership, or (iii) any other entity which possesses the
characteristics of limited liability (any such limited liability company,
limited liability partnership or entity is collectively referred to as a
"Limited Liability Successor Entity"), shall be prohibited unless the prior
written consent of Landlord is obtained, which consent may be withheld in
Landlord's sole discretion. Notwithstanding the foregoing, Landlord agrees not
to unreasonably withhold or delay such consent provided that:
(a) The Limited Liability Successor Entity succeeds to
all or substantially all of Tenant's business and
assets;
(b) The Limited Liability Successor Entity shall have a
net worth, determined in accordance with generally
accepted accounting principles, consistently
applied, of not less than the greater of the net
worth of Tenant on (1) the date of execution of this
Lease, or (2) the day immediately preceding the
proposed effective date of such conversion;
(c) Tenant is not in default of any of the terms,
covenants or conditions of this Lease on the
proposed effective date of such conversion;
(d) Tenant shall cause each partner of Tenant to execute
and deliver to Landlord an agreement, in form and
substance satisfactory to Landlord, wherein each
such partner agrees to remain personally liable for
all of the terms, covenants and conditions of this
Lease that are to be observed and performed by the
Limited Liability Successor Entity; and
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(e) Tenant shall reimburse Landlord within ten (10)
business days following demand by Landlord for any
and all reasonable costs and expenses that may be
incurred by Landlord in connection with said
conversion of Tenant to a Limited Liability
Successor Entity, including, without limitation, any
attorney's fees and disbursements.
31. VAULT SPACE. Any vaults, vault space or other space outside the
boundaries of the Real Property, notwithstanding anything contained in this
Lease or indicated on any sketch, blueprint or plan are not included in the
Premises. Landlord makes no representation as to the location of be boundaries
of the Real Property. All vaults and vault space and all other space outside the
boundaries of the Real Property which Tenant may be permitted to use or occupy
is to be used or occupied under a revocable license, and if any such license
shall be revoked, or if the amount of such space shall be diminished or required
by any Federal, State or Municipal authority or by any public utility company,
such revocation, diminution or requisition shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord. Any fee, tax or charge imposed by
any governmental authority for any such vaults, vault space or other space used
by Tenant with Landlord's consent shall be paid by Tenant.
32. SECURITY DEPOSIT.
A. GENERAL PROVISIONS. Tenant shall deposit with Landlord on the signing
of this Lease the Security Deposit (as defined in Article 1 of this Lease) as
security for the faithful performance and observance by Tenant of the terms,
conditions and provisions of this Lease, including, without limitation, the
surrender of possession of the Premises to Landlord herein provided. Landlord
agrees to deposit the Security Deposit in an interest bearing bank account
located in New York State. To the extent not prohibited by law, Landlord shall
be entitled to receive and retain as an administrative expense that portion of
the interest received on such account equal to one percent (1%) per annum of the
Security Deposit, which fee Landlord shall have the right to withdraw from time
to time, at Landlord's discretion. The balance of the interest shall be added to
and held as part of the Security Deposit subject to and in accordance with the
provisions of this Lease. Landlord shall not be required to credit Tenant with
any interest for any period during which Landlord does not receive interest on
the Security Deposit, nor shall Landlord have any liability or obligation for
loss of all or any portion of the Security Deposit by reason of the insolvency
or failure of the bank in which the Security Deposit is deposited. It is agreed
that in the event Tenant defaults in respect of any of the terms, provisions and
conditions of this Lease, including, but not limited to, the payment of Rent and
additional rent, Landlord may apply or retain the whole or any part of the
Security Deposit so deposited to the extent required for the payment of any Rent
and additional rent or any other sum as to which Tenant is in default or for any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency accrue or accrues before or after
summary proceedings or other reentry by Landlord. If Landlord applies or retains
any part of the Security Deposit so deposited, Tenant, within three (3) days'
after notice from Landlord, shall deposit with Landlord the amount so applied or
retained so that Landlord shall have the full Security Deposit on hand at all
times during the Term. The failure by Tenant to deposit such additional amount
within the foregoing time period shall be deemed a material default
49
pursuant to Article 17 of this Lease. If Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
Lease, the security shall be returned to Tenant after the Expiration Date and
after delivery of the entire possession of the Premises to Landlord. In the
event of a sale of the Real Property or the Building or leasing of the Building,
Landlord shall have the right to transfer the Security Deposit to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return of the Security Deposit; and Tenant agrees to look solely to the new
Landlord for the return of the Security Deposit; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new Landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the Security Deposit and
that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
B. LETTER OF CREDIT. In lieu of a cash deposit by Tenant for the Security
Deposit, Tenant may deposit with Landlord a clean, irrevocable and unconditional
letter of credit ("Letter of Credit") issued by and drawn upon any commercial
bank reasonably acceptable to Landlord with offices for banking purposes in the
City of New York and having a net worth of not less than One Billion
($1,000,000,000) Dollars, which letter of credit shall be in the amount of the
Security Deposit in the form annexed hereto as Exhibit 2. At any time that
Tenant is in default under this Lease beyond any applicable notice and grace
period, Landlord shall have the right to draw down the entire credit and apply
the proceeds or any part thereof in accordance with the provisions of this
Article 32. Landlord shall also have the right to draw down the entire amount of
the credit in the event that Landlord fails to receive a replacement Letter of
Credit on or prior to the thirtieth (30th) day preceding the expiration date
thereof. If Landlord shall have drawn down the Letter of Credit and applied all
or a portion thereof in accordance with the terms of this Article 32, then
Tenant shall deposit with Landlord, within three (3) days' after notice from
Landlord, a sufficient amount of cash to bring the balance of the cash held by
Landlord under this Article 32 to the amount of the Security Deposit. The
failure by Tenant to deposit such additional amount within the foregoing time
period shall be deemed a material default pursuant to Article 17 of this Lease.
C. INCREASED SECURITY DEPOSIT. If at any time during the Term hereof the
then current assets of Tenant less the then current liabilities of Tenant, as
shown on the then most recent audited financial statements of Tenant, shall
equal an amount less than $5,000,000 then Tenant shall within five (5) business
days after notice from Landlord, deposit with Landlord a sum equal to two (2)
months of the then escalated monthly rent (the "Additional Security") to be held
by Landlord as an additional Security Deposit in accordance with the provisions
of the Article 32. In the event Tenant shall have theretofore deposited with
Landlord a Letter of Credit, Landlord shall accept a substitute Letter of Credit
increased by the amount of the Additional Security (to be given to Landlord
within five (5) business days after notice from Landlord) and shall thereupon
return to Tenant the original Letter of Credit then being held by Landlord.
33. CAPTIONS. The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this Lease
nor the intent of any provision thereof.
50
34. ADDITIONAL DEFINITIONS.
A. The term "office" or "offices", wherever used in this Lease, shall not
be construed to mean premises used as a store or stores, for the sale or
display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing.
B. The words "reenter" and "reentry" as used in this Lease are not
restricted to their technical legal meaning.
C. The term "rent" as used in this Lease shall mean and be deemed to
include Rent, any increases in Rent, all additional rent and any other sums
payable hereunder.
D. The term "business days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and union holidays for those unions that materially affect the
delivery of services in the Building.
35. PARTIES BOUND. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees executors, administrators, successors, and,
except as otherwise provided in this Lease, their assigns.
36. BROKER. Tenant represents and warrants that Tenant has dealt directly
with (and only with), the Broker (as defined in Article 1 herein) as broker in
connection with this Lease, and that insofar as Tenant knows no other broker
negotiated this Lease or is entitled to any commission in connection therewith,
and the execution and delivery of this Lease by Landlord shall be conclusive
evidence that Landlord has relied upon the foregoing representation and
warranty. Landlord shall pay the Broker any commission due and payable in
connection herewith pursuant to a separate agreement between Landlord and the
Broker.
37. INDEMNITY. Tenant shall not do or permit any act or thing to be done upon
the Premises which may subject Landlord to any liability or responsibility for
injury, damages to persons or property or to any liability by reason of any
violation of law or of any legal requirement of public authority, but shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant agrees to indemnify and save harmless Landlord from and
against (i) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
employees, invitees or visitors, including any claims arising from any act,
omission or negligence of Landlord or Landlord and Tenant, (ii) all claims
against Landlord arising from any accident, injury or damage whatsoever caused
to any person or to the property of any person and occurring during the Term in
or about the Premises, (iii) all claims against Landlord arising from any
accident, injury or damage to any person, entity or property, occurring outside
of the Premises but anywhere within or about the Real Property, where such
accident, injury or damage results or is claimed to have resulted from an act or
omission of Tenant or Tenant's agents, employees, invitees or visitors,
including any claims arising from any act, omission or negligence of Landlord or
Landlord and Tenant, and (iv) any breach, violation or nonperformance of any
covenant, condition or agreement in this Lease set forth and contained on the
part of Tenant to be fulfilled, kept, observed and performed and (v) any claim,
loss or liability arising or claimed to arise from Tenant, or any of Tenant's
contractors, licensees,
51
agents, servants, employees, invitees or visitors causing or permitting any
Hazardous Substance to be brought upon, kept or used in or about the Premises or
the Real Property or any seepage, escape or release of such Hazardous
Substances. As used herein and in all other provisions in this Lease containing
indemnities made for the benefit of Landlord, the term "Landlord" shall mean XX
Xxxxx Operating Partnership, L.P., XX Xxxxx Realty Corp. and XX Xxxxx Management
LLC and their respective parent companies and/or corporations, the irrespective
controlled, associated, affiliated and subsidiary companies and/or corporations
and their respective members, officers, partners, agents, consultants, servants,
employees, successors and assigns. This indemnity and hold harmless agreement
shall include indemnity from and against any and all liability, fines, suits,
demands, costs and expenses of any kind or nature incurred in or in connection
with any such claim or proceeding brought thereon, and the defense thereof.
38. ADJACENT EXCAVATION SHORING. If an excavation shall be made upon land
adjacent to the Premises, or shall be authorized to be made, Tenant shall afford
to the person causing or authorized to cause such excavation, license to enter
upon the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rent.
39. MISCELLANEOUS.
A. NO OFFER. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
B. SIGNATORIES. If more than one person executes this Lease as Tenant,
each of them understands and hereby agrees that the obligations of each of them
under this Lease are and shall be joint and several, that the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally and
that the act of or notice from, or notice or refund to, or the signature of, any
one or more of them, with respect to the tenancy and/or this Lease, including,
or not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or so signed.
C. CERTIFICATES. From time to time, within seven (7) days next following
request by Landlord or the mortgagee of a Mortgage, Tenant shall deliver to
Landlord or such mortgagee, as the case may be, a written statement executed and
acknowledged by Tenant, in form satisfactory to Landlord or such mortgagee, (i)
stating that this Lease is then in full force and effect and has not been
modified (or if modified, setting forth all modifications), (ii) setting forth
the date to which the Rent, additional rent and other charges hereunder have
been paid, together with the amount of fixed base monthly Rent then payable,
(iii) stating whether or not, to the best knowledge of Tenant, Landlord is in
default under this Lease, and, if Landlord is in default, setting forth the
specific nature of all such defaults, (iv) stating the amount of the security
deposit under this Lease, (v) stating whether there are any subleases affecting
the Premises, (vi) stating the address of Tenant to which all notices and
communications under the Lease shall be sent, the Commencement Date and the
Expiration Date, and (vii) as to any other matters requested by Landlord or such
mortgagee. Tenant acknowledges that any statement delivered pursuant to this
subsection C may be relied upon
52
by any purchaser or owner of the Real Property or the Building, or Landlord's
interest in the Real Property or the Building or any Superior Lease, or by any
mortgagee of a Mortgage, or by any assignee of any mortgagee of a Mortgage, or
by any lessor under any Superior Lease.
D. DIRECTORY LISTING. Landlord agrees to provide Tenant, at Landlord's
sole cost and expense, with up to three (3) listings of Tenant's name on the
directory in the lobby of the Building. Upon written request by Tenant, Landlord
agrees to provide Tenant with additional listings on such directory, at Tenant's
sole cost and expense, provided Tenant shall be limited to a number of listings
determined by multiplying Tenant's Proportionate Share by the total number of
spaces for listings on such directory.
E. AUTHORITY. If Tenant is a corporation or partnership, each individual
executing this Lease on behalf of Tenant hereby represents and warrants that
Tenant is a duly formed and validly existing entity qualified to do business in
the State of New York and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so.
F. SIGNAGE. Tenant shall not exhibit, inscribe, paint or affix any sign,
advertisement, notice or other lettering on any portion of the Building or the
outside of the Premises without the prior written consent of Landlord in each
instance. A plan of all signage or other lettering proposed to be exhibited,
inscribed, painted or affixed shall be prepared by Tenant in conformity with
building standard signage requirements and submitted to Landlord for Landlord's
consent. If the proposed signage is acceptable to Landlord, Landlord shall
approve such signage or other lettering by written notice to Tenant. All signage
or other lettering which has been approved by Landlord shall thereafter be
installed by Landlord at Tenant's sole cost and expense. Payment of all charges
therefor shall be deemed additional rent hereunder. In the event Landlord
requires payment in advance for the installation of any such signage or other
lettering, no installation shall be commenced by Landlord until Landlord has
received payment in full.
Upon installation of any such signage or other lettering, such signage or
lettering shall not be removed, changed or otherwise modified in any way without
Landlord's prior written approval. The removal, change or modification of any
signage or other lettering theretofore installed shall be performed solely by
Landlord at Tenant's sole cost and expense. Tenant shall not exhibit, inscribe,
paint or affix on any part of the Premises or the Building visible to the
general public any signage or lettering including the words "temporary" or
"personnel".
Any signage, advertisement, notice or other lettering which shall be
exhibited, inscribed, painted or affixed by or on behalf of Tenant in violation
of the provisions of this section may be removed by Landlord and the cost of any
such removal shall be paid by Tenant as additional rent.
G. CONSENTS AND APPROVALS. Wherever in this Lease Landlord's consent or
approval is required, if Landlord shall delay or refuse such consent or
approval, Tenant in no event shall be entitled to make, nor shall Tenant make,
any claim, and Tenant hereby waives any claim for money damages (nor shall
Tenant claim any money damages by way of set-off, counterclaim or defense) based
upon any claim or assertion by Tenant that Landlord unreasonably withheld or
unreasonably
53
delayed its consent or approval. Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, for specific performance, injunction
or declaratory judgment.
H. FINANCIAL STATEMENTS. Tenant shall furnish to Landlord within ten (10)
business days after request therefor the then most current audited financial
statement of Tenant and on March 1 of each year during the Term a current
audited financial statement of Tenant with respect to the prior calendar year.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
XX XXXXX OPERATING PARTNERSHIP. L.P.
By: XX Xxxxx Realty Corp., General Partner
By:
------------------------------------
Name:
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Title:
---------------------------------
TOTAL NETWORK SOLUTIONS, INC., Tenant
By:
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Name:
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Title:
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---------------------------------
Tenant's Tax I.D. Number
55
