EXHIBIT 10.45
AGREEMENT OF LEASE
BETWEEN
XXXXXX-SIXTH AVENUE COMPANY
AND
HAWAIIAN-SIXTH AVE CORP.,
LANDLORD,
AND
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
TENANT
PREMISES:
THE ENTIRE 47TH, 48, 49TH AND 50TH FLOORS
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XXX XXXX
TABLE OF CONTENTS
Article ....................................................................Page
PREFACE AND DEMISED PREMISES ....................................... 1
1 RENT ............................................................... 2
2 OCCUPANCY .......................................................... 4
3 PREPARATION OF THE DEMISED PREMISES ................................ 6
4 TAX ESCALATION ..................................................... 5
5 EXPENSE ESCALATION ................................................. 11
6 CLEANING COST ESCALATION ........................................... 18
7 ELECTRICITY ........................................................ 23
8 ALTERATIONS AND INSTALLATIONS ...................................... 28
9 REPAIRS ............................................................ 33
10 REQUIREMENTS OF LAW; FIRE INSURANCE ................................ 36
11 SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES .................... 38
12 LOSS, DAMAGE, REIMBURSEMENT, LIABILITY, ETC ........................ 40
13 DESTRUCTION-FIRE OR OTHER CASUALTY ................................. 43
14 EMINENT DOMAIN ..................................................... 46
15 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC ............................ 48
16 ACCESS TO DEMISED PREMISES; CHANGES ................................ 52
17 CERTIFICATE OF OCCUPANCY ........................................... 54
18 BANKRUPTCY ......................................................... 55
19 DEFAULT ............................................................ 57
20 REMEDIES OF LANDLORD; WAVER OF REDEMPTION .......................... 60
21 FEES AND EXPENSE; INTEREST ......................................... 62
22 NO REPRESENTATIONS BY LANDLORD ..................................... 63
23 END OF TERM ........................................................ 64
24 QUIET ENJOYMENT .................................................... 65
25 DEFINITIONS ........................................................ 66
26 ADJACENT EXCAVATION--SHORING ....................................... 67
27 RULES AND REGULATIONS .............................................. 68
28 NO WAIVER .......................................................... 69
29 WAIVER OF TRIAL BY JURY ............................................ 70
30 INABILITY TO PERFORM ............................................... 71
31 NOTICES ............................................................ 72
32 SERVICES ........................................................... 73
33 ARBITRATION ........................................................ 78
34 CONSENTS AND APPROVALS ............................................. 79
35 INDEMNITY .......................................................... 80
36 CERTIFICATE OF TENANT .............................................. 81
37 NAME OF BUILDING; SIGNAGE .......................................... 83
38 MEMORANDUM OF LEASE ................................................ 84
39 BROKERAGE .......................................................... 85
40 INVALIDITY OF ANY PROVISION ........................................ 86
41 MISCELLANEOUS ...................................................... 87
42 RESTRICTIONS UPON USE .............................................. 89
43 SUCCESSORS AND ASSIGNS ............................................. 90
44 LANDLORD MORE THAN ONE PERSON ...................................... 91
45 EFFECTIVE DATE ..................................................... 92
46 RETAIL SPACE LEASE ................................................. 93
EXHIBIT A - FLOOR PLANS .................................................... A-1
EXHIBIT B - INTENTIONALLY OMITTED .......................................... B-1
EXHIBIT C - RULES AND REGULATIONS .......................................... C-1
EXHIBIT D - CLEANING SPECIFICATIONS ........................................ D-1
AGREEMENT OF LEASE made as of the 31st day of December, 1994, between THE
XXXXXX-SIXTH AVENUE COMPANY, a New York partnership ("Xxxxxx") with its office
at c/o Fisher Brothers, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and HAWAIIAN
SIXTH AVENUE CORP., a New York corporation ("Hawaiian") with its office at 1345
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter Xxxxxx and
Hawaiian are collectively called .Landlord") and UNION BANK OF SWITZERLAND, NEW
YORK BRANCH, a Swiss banking corporation, having an office at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Tenant").
WITNESSETH:
The parties hereto (hereinafter sometimes called "the parties") for
themselves, their heirs, distributees, executors, administrators, legal
representatives, successors and assigns, hereby covenant and agree as follows:
A. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
the premises hereinafter described, in the building known as 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Building"), for the
term hereinafter stated, for the rents hereinafter reserved and upon and subject
to the conditions (including limitations, restrictions and reservations) and
covenants hereinafter provided. Each party hereto hereby expressly covenants and
agrees to observe and perform all of the conditions and covenants herein
contained on its part to be observed and performed.
B. The premises hereby leased to Tenant are the entire area on the 47th,
48th, 49th and 50th floors of the Building as shown on the floor plans attached
hereto as Exhibit A. Said premises are hereinafter called the "demised
premises".
C. (1) The term of this Lease, for which the demised premises are hereby
leased, shall commence on the date that Landlord's Work (as defined in Article
3) shall have been completed by Landlord (hereinafter called the "Commencement
Date") and shall end on the last day of the month in which the twenty-one year
and six month anniversary of the Commencement Date of this Lease occurs, which
ending date is hereinafter called the "Expiration Date", or shall end on such
earlier date upon which said term may expire or be canceled or terminated
pursuant to any of the conditions or covenants of this Lease or pursuant to law.
ARTICLE 1 RENT
1.1. Tenant shall pay to Landlord a fixed annual rent (hereinafter referred
to as,"fixed annual rent") as follows:
(a) FOUR MILLION EIGHT HUNDRED NINETY-TWO THOUSAND TWO HUNDRED SIXTY
Dollars ($4,892,260.00) per annum for the period commencing on the Rent
Commencement Date and ending on the day immediately preceding the fifth
(5th) anniversary of the Rent Commencement Date;
(b) FIVE MILLION THREE HUNDRED FOUR THOUSAND SEVEN HUNDRED SIXTY Dollars
($5,304,660.00) per annum for the period commencing on the fifth (5th)
anniversary of the Rent Commencement Date and ending on the day immediately
preceding the tenth (10th) anniversary of the Rent Commencement Date;
(c) FIVE MILLION SEVEN HUNDRED SEVENTEEN THOUSAND TWO HUNDRED SIXTY Dollars
($5,717,260.00) per annum for the period commencing on the tenth (10th)
anniversary of the Rent Commencement Date and ending on the day immediately
preceding the fifteenth (15th) anniversary of the Rent Commencement Date;
(d) SIX MILLION ON HUNDRED TWENTY-NINE THOUSAND SEVEN HUNDRED SIXTY Dollars
($6,129,760.00) per annum for the period commencing on the fifteenth (15th)
anniversary of the Rent Commencement Date and ending on the Expiration
Date;
1.2. Intentionally Omitted.
1.3. Tenant's obligations hereunder shall not be affected by any delay or
failure of Landlord in billing the fixed annual rent provided for hereunder, nor
shall any such delay constitute a waiver of, or in any way impair, the
obligations of Tenant.
1.4. Tenant agrees to pay the fixed annual rent in lawful money of the
United States of America, in equal monthly installments in advance on the first
day of each calendar month during said term, at the office of Landlord or such
other place in the United States of America as Landlord may designate, without
any setoff or deduction whatsoever, except such deduction as may be occasioned
by the occurrence of any event permitting or requiring a deduction from or
abatement of rent, as specifically set forth herein. Should the obligation to
pay fixed annual rent commence or change on any day other than on the first day
of a month, then the fixed annual rent for the unexpired portion of such month
shall be adjusted and prorated on a per diem basis.
1.5. Tenant shall pay the fixed annual rent and additional rent as above
and as hereinafter provided as follows:
(a) With respect to (i) fixed annual rent, and (ii) additional rent
that is owed to Landlord pursuant to the provisions of Articles 4, 5, 6 and 7,
and which monthly installments of additional rent were previously billed to
Tenant and which Tenant is obligated to continue to pay until notification of
further adjustment by Landlord, Tenant shall pay such fixed annual rent and
additional rent by directly depositing such amount in immediately available
funds in a special bank account maintained by Landlord for such purpose at a
bank to be designated by Landlord, and Tenant shall be advised of such special
account number and bank, which may be changed by Landlord from time to time; and
(b) With respect to any other amounts of additional rent owed by
Tenant pursuant to this Lease, Tenant shall pay such additional rent by good and
sufficient check (subject to collection) drawn on a New York City bank which is
a member of the New York Clearing House or a successor thereto.
All sums other than fixed annual rent payable by Tenant hereunder shall be
deemed additional rent payable on demand, unless other payment dates are
provided herein. Landlord shall have the same rights and remedies with respect
to failure by Tenant to pay additional rent as Landlord has with respect to
failure by Tenant to pay fixed annual rent.
1.6. Notwithstanding the provisions of Section 1.1 of this Lease, the fixed
annual rent and additional rent payable by Tenant under Articles 4 and 5 shall
be abated for the period (the "Abatement Period") commencing on the Commencement
Date and ending on the eight (8) month anniversary of the Commencement Date.
ARTICLE 2
OCCUPANCY
2.1. The demised premises shall be used solely as and for executive,
administrative, general and banking offices, and for all other purposes
incidental thereto and not prohibited by law (including, without limitation, the
certificate of occupancy for the Building) provided that: (a) such use shall be
in keeping with the character of the Building, and (b) no part of the demised
premises shall have an automated cash dispensing machine for use by the general
public during hours other than normal business hours provided the use of such
automated cash dispensing machine 1) does not violate the certificate of
occupancy for the Building and 2) is not inconsistent with or in contravention
of any provisions of the insurance policies for the Building.
2.2. Subject to applicable governmental regulations, Building rules and
regulations and such other rules and regulations as Landlord may, from time to
time establish and the availability of a proper mean of exhaustion, Tenant may
designate a portion of the demised premises to be used as a fully operable
kitchen and dining facility (the Kitchen'), within which Tenant shall be
permitted to use and maintain a fully operable kitchen for the purpose of
preparing foods for the personal use and consumption of Tenant, its employees or
visitors and not for the sale to the general public. Tenant covenants that if
its use of the Kitchen shall, in Landlord's sole but reasonable judgment, (i)
cause or threaten to cause harm of any kind or nature whatsoever to the Building
or any part thereof, or (ii) if food odors, vapors, fumes or exhaust emanate
from the demised premises to other portions of the Building in a manner which is
objectionable or
disruptive to Landlord or any other tenant of the Building, then Tenant shall
promptly cease the use of the Kitchen in such a manner which causes harm or
which is objectionable or disruptive and shall take all actions at Tenant's sole
cost and expense, to return the affected portions of the Building to the
condition existing prior to such harm or disruption. If Tenant fails to promptly
make any required repairs or restorations, the same may be made by Landlord at
the expense of Tenant and such cost and expense shall be collectible as cost and
additional rent under this Lease and shall be paid by Tenant upon demand.
Notwithstanding anything to the contrary contained herein, if Tenant cannot use
the Kitchen in a manner which does not cause harm to the Building or which is
not objectionable or disruptive to other tenants of the Building, then Tenant
shall' cease for the balance of the term of the Lease to use the Kitchen for the
purposes herein stated and Tenant shall not be entitled to an allowance for
diminution of rental value and there shall be no liability on the part of the
Landlord or its agents by reason of inconvenience, annoyance, interruption, or
injury to business arising from such inability of Tenant to continue to operate
the Kitchen for the purposes herein stated and no such change in the use of the
demised premises by Tenant shall constitute an actual or constructive eviction,
in whole or in part, or release Tenant from any of its obligations under this
Lease.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.1. (a) Except as specifically provided in this Section 3 Tenant agrees to
accept the demised premises in their condition and state of repair existing as
of the date hereof subject to normal wear and tear and to the removal therefrom
of the property, if any, of the existing tenant or occupant thereof and
understands and agrees that Landlord shall not be required to perform any work,
supply any materials or incur any expense to prepare the demised premises for
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Tenant's occupancy.
(b) Landlord agrees that (i) Landlord will demolish the existing
tenant improvements in the demised premises, supply Tenant with an ACP-5 form
and remove asbestos-containing materials ("ACM") therein, as required in order
for Tenant to perform work therein in accordance with Tenant's approved final
plans and specifications, in compliance with Local Laws #76/1985 and any other
applicable laws and legal requirements relating to asbestos (such demolition and
asbestos removal is hereinafter called "Landlord's Work") and (ii) Landlord will
also perform the following work in the demised premises (other than work
affected by Tenant's work or alterations) to comply with the Americans with
Disabilities Act: modifications of the core bathrooms and entrances,
installation of strobe panels, strobe lights in the core (including core
bathrooms), elevator buttons, core door hardware, warden station relocation and
alarm pull box (such compliance is hereinafter called "Landlord's ADA Work").
Tenant shall be responsible for all other work as may be necessary to comply
with the Americans with Disabilities Act not included in Landlord's ADA Work.
(c) Landlord agrees that it will commence performing Landlord's ADA
Work in the demised premises as soon as reasonably possible and such work shall
be coordinated and completed with Tenant's performance of alterations and
installations in the demised premises.
(d) Following the completion of Landlord's Work, Landlord and Tenant
shall perform a walk through of the demised premises and following such walk
through Landlord shall, where necessary, clean or repair damaged convector units
and convector covers, repair any damaged window caulking or millions and
Landlord shall, where necessary, replace damaged convector grills.
(e) Landlord has no knowledge of the existence of any hazardous waste,
toxic waste or pollutants in the Building.
ARTICLE 4
TAX ESCALATION
4.1. Tenant shall pay to Landlord, as additional rent, tax escalation in
accordance with this Article 4:
(a) Definitions: For the purpose of this Article 4, the following
definitions shall apply:
(i) The term "base taxes" as hereinafter set forth for the
determination of real estate tax escalation shall mean the average
of real estate taxes for the New York City real estate tax year commencing
July 1, 1994 and ending June 30, 1995 and the real estate tax year
commencing July 1, 1995 and ending June 30, 1996.
(ii) The term "The Percentage", for purposes of computing tax
escalation, shall mean 7.164 (7.164%) percent.
(iii) The term"the building project" shall mean the aggregate
parcels of land (hereinafter called the "Land.") forming a single tax lot,
on a portion of which are the improvements of which the demised premises
form a part, with all the improvements thereon.
(iv) The term "comparative year" shall mean the twelve (12) months
following the New York City real estate tax year commencing July 1, 1995
and ending June 30, 1996, and each subsequent period of twelve (12) months.
(v) The term "real estate taxes" shall mean the total of all taxes
and special or other assessments levied, assessed or imposed at any time by
any governmental authority upon or against the building project, 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 the building project to the extent that same shall be in lieu of all
or a portion of any of the aforesaid taxes or assessments, or additions or
increases thereof, upon or against the building project. If, due to a
future change in the method of taxation or in the taxing authority, or for
any other reason, a franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied against
Landlord in substitution in whole or in part for the real estate taxes, or
in lieu of additions to or increases of said real estate taxes, then-such
franchise, income, transit, profit or other tax or governmental imposition
shall be deemed to be included within the definition of "real estate taxes"
for the purposes hereof. As to special assessments which are payable over a
period of time extending beyond the term of this Lease, only a pro rata
portion thereof, covering the portion of the term of this Lease 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
by law 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 assessment so becoming payable during such comparative year,
together with interest payable during such comparative year. The real
estate taxes during the base tax year and each comparative year shall be
adjusted, if necessary, to reflect 100% occupancy in the Building.
(b) 1. In the event that the real estate taxes for any comparative
year shall exceed the base taxes, Tenant shall pay to Landlord, as
additional rent for such comparative year, an amount equal to The
Percentage of the excess. Before or after the start of each comparative
year, Landlord shall furnish to Tenant a statement of the real estate taxes
for such comparative year, which statement shall be accompanied by a copy
of the applicable New York City real estate tax xxxx for the Building. If
the real estate taxes for such comparative year exceed the base taxes,
additional rent for such comparative year, in an amount equal to The
Percentage of the excess, shall be due from Tenant to Landlord, and such
additional rent shall be payable by Tenant to Landlord as follows: after
Landlord has furnished Tenant with the aforesaid statement, Tenant shall
pay Landlord with the monthly installments of rent due on June 1, and
December 1 of each such comparative year an amount equal to one-half (1/2)
of the total sum of additional rent due from Tenant to Landlord pursuant to
such statement for such comparative year, until such time as a new
statement for a subsequent comparative year shall become effective. If,
during the term of this Lease, any such taxes are required to be paid, in
full or in quarterly or other installments, on any other date or dates than
as presently required, then Tenant's tax escalation payment(s) shall be
correspondingly accelerated so that said payments are due at least thirty
(30) days prior to the date the corresponding portion of the payments are
due to the taxing authority. If a statement is furnished to Tenant after
the commencement of the comparative year in respect of which such statement
is rendered, Tenant shall, within ten (10) days thereafter, pay to Landlord
an amount equal to those installments or the total tax escalation payable
as provided in the preceding sentence during the period prior to the first
day of the month next succeeding the month in which the applicable
statement has been furnished.
2. If, after Tenant shall have made a payment of additional rent under
this subdivision (b), Landlord shall receive a refund of any portion of the real
estate taxes payable during any comparative year on which such payment of
additional rent shall have been based, as a result of a reduction of such real
estate taxes by final determination of legal proceedings, settlement or
otherwise, Landlord shall within ten (10) days after receiving the refund pay to
Tenant The Percentage of the refund allocable to such payment.
3. (A) The statements of the real estate taxes to be furnished by
Landlord as provided above shall be certified by Landlord and shall constitute a
final determination as between Landlord and Tenant of the real estate taxes for
the periods represented thereby, unless Tenant within sixty (60) days after they
are furnished shall in writing challenge their accuracy or their appropriateness
or unless any reduction in real estate taxes shall be obtained. If Tenant shall
dispute said statements, then pending the resolution of such dispute Tenant
shall pay the additional rent to Landlord in accordance with the statements
furnished by Landlord.
3. (B) If the resolution of any such dispute shall include a
determination that Tenant shall have made an overpayment under subsection
4.1(b), such overpayment (together with interest thereon at the Prime Rate
calculated from the date of the overpayment to the date the overpayment is
credited or refunded to Tenant) shall be credited against the next installment
of fixed annual rent due under Article 1 and if the amount of the credit exceeds
the amount of the next installment of fixed annual rent due under Article 1,
Landlord shall, within ten (10) days following the resolution of such dispute,
refund the amount of any such overpayment (together with such interest) in
excess of the next installment of fixed annual rent to Tenant. Notwithstanding
anything contained in the immediately preceding sentence no interest shall be
paid to Tenant by Landlord for an overpayment made under subsection 4.1(b) (2).
4. In no event shall the fixed annual rent under this Lease be reduced
by virtue of this Article 4.
5. If the Commencement Date is not the first day of a comparative
year, then the additional rent due hereunder for such comparative year shall be
a proportionate share of the said additional rent for the entire comparative
year, said proportionate share to be based upon the length of time that the
Lease term will be in existence during such comparative year. Upon the date of
any expiration or termination of this Lease (except termination because of
Tenant's default), whether the same be the date hereinbefore set forth for the
expiration of the term or any prior 'or subsequent date, a proportionate share
of said additional rent for the comparative year during which such expiration or
termination occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid. The said
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proportionate share shall be based upon the length of time that this Lease shall
have been in existence during such comparative year. Landlord shall promptly
cause statements of said additional rent for that comparative year to be
prepared and furnished to Tenant. Landlord and Tenant shall thereupon make
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appropriate adjustments of amounts then owing.
6. Landlord's and Tenant's obligation to make the adjustments referred to
in subdivisions 4.1(b) 1, 4.1(b)2 and 4.1 (b)5 above shall survive any
expiration or termination of this Lease.
7. Any delay or failure of Landlord in billing any tax escalation
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such tax escalation hereunder provided,
however, if Landlord should fail to render any statement for real estate tax
escalation within two (2) years of the expiration of the comparative year
relating thereto then, provided Tenant shall notify Landlord that Landlord has
failed during such two (2) year period to render such statement to Tenant,
Landlord shall be deemed to have waived its right to collect any real estate tax
escalation for such comparative year. Tenant agrees to promptly notify Landlord
at any time Tenant becomes aware that Landlord has failed to render any
statement for real estate tax escalation. If Tenant so notifies Landlord that
Tenant has not received any statement for real estate tax escalation within such
two (2) year period, Landlord shall be deemed to have waived its right to
collect any real estate tax escalation for such comparative year unless Landlord
shall render such statement before the earlier to occur of (i) the date which is
six (6) months after such notification, or (ii) the expiration of such two (2)
year period (provided, however, the time period for Landlord to render such
statement shall in no event be less than thirty (30) days) from receipt of
Tenant's notice.
ARTICLE 5
EXPENSE ESCALATION
5.1. Tenant shall pay to Landlord, as additional rent, expense escalation
in accordance with this Article 5:
(a) Definitions: For the purpose of this Article 5, the following
definitions shall apply:
(i) The term "Expense Base Factor" shall mean the amount of the
Expenses for the calendar year 1995.
(ii) The term "the building project" shall mean the aggregate parcels
of land forming a single tax lot, on a portion of which are the
improvements of which the demised premises form a part, with all the
improvements thereon.
(iii) The term "comparative year" shall mean the twelve consecutive
months which constitute the fiscal or calendar year (during which the term
of this Lease commences) utilized by Landlord for computing expense
escalation generally for other tenants of the Building and each subsequent
period of twelve (12) months during which occurs any portion of the terms
of this Lease.
(iv) The term "The Percentage", for purposes of computing expense
escalation, shall mean 7.454 (7.454%) percent.
(v) The term 'Expenses" shall mean the total of all the costs and
expenses incurred or borne by Landlord with respect to the operation and
maintenance of the building project and the services provided tenants
therein including, but not limited to, the costs and expenses incurred for
and with respect to: steam and any other fuel; water rates and sewer rents;
air-conditioning, ventilation and heating (subject to adjustment as
hereinafter described); Building electric current; metal, elevator cab,
lobby and plazas.
1. (Costs or expenses incurred in combination with other
properties (e.g., insurance, association fees, etc.) shall be reasonably
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allocated by Landlord among such other properties and the Building.)
2. i.e, the cost of Building electric current shall be deemed to
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mean the cost of all electricity purchased for use in the Building other
than that which is redistributed to tenants in the Building; the parties
agree that fifty percent (50%) of the Building's payment to the public
utility for the(continued...) maintenance and cleaning; elevators;
escalators; protection and security; lobby decoration and interior and
exterior landscape maintenance; repairs, replacements and improvements
which are appropriate for the continued operation of the Building as a
first-class building; maintenance; painting of non-tenant areas; fire,
extended coverage, boiler and machinery, sprinkler, apparatus, public
liability and property damage, rental and plate glass insurance and any
insurance required by a mortgagee; supplies; wages, salaries, disability
benefits, pensions, hospitalization, retirement plans and group insurance
respecting employees of Landlord up to and including the building manager;
uniforms and working clothes for such employees and the cleaning thereof;
expenses imposed on Landlord pursuant to law or to any collective
bargaining agreement with respect to such employees; worker's compensation
insurance, payroll, social security, unemployment and other similar taxes
with respect to such employees; the cost for a bookkeeper and for an
accountant; professional and consulting fees, including legal and
connection with any application or proceeding wherein Landlord obtains or
seeks to obtain reduction or refund of the real estate taxes payable or
paid upon or against the building project; an annual fee, for management of
the Building, equal to the annual management fee for the calendar year 1995
(hereinafter called the "Management Fee"). Said fee shall be increased for
each comparative year for which Tenant pays additional rent hereunder, to
an amount equal to the percentage of the Management Fee that
(1) the Expenses (exclusive of such management fees) for the comparative
year involved bear to (2) the Expense Base Factor reduced by the Management
Fee. purchase of electricity shall be deemed to be payment for Building
electric current and that, in the event (i) there should be a change in the
amount of tenanted areas to which electricity is supplied, or (ii) either
party believes that such 50% allocation or any subsequent allocation is not
a correct allocation, then either party may hire its own electrical
consultant to make an electrical survey to determine the allocation and
advise the other party of such electrical consultant's determination. If
the other party disputes such electrical consultant's determination, it
shall do so in accordance with the dispute procedure set forth in the
provisions of subsection 7.4(b) hereof and such dispute shall be resolved
in accordance with subsection 7.4(b). Provided, however, that the foregoing
costs and expenses shall exclude or have deducted from them, as the case
may be and as shall be appropriate:
(a) costs of cleaning and window washing (interior and exterior) of
tenant areas, by contract or otherwise;
(b) leasing commissions, consulting fees paid in lieu of leasing
commissions and other expenses directly related to the marketing or leasing
of space;
(c) salaries for executives above the grade of building manager;
(d) expenditures for capital improvements, which under generally
accepted accounting principles are capitalized (the parties acknowledge and
agree that under generally accepted accounting principles some expenditures
may be expensed rather than capitalized because of lack of materiality),
except for capital expenditures required by law, in which case the cost
thereof shall be included in Expenses for the comparative year in which the
costs are incurred and subsequent comparative years, on a straight line
basis, to the extent that such items are amortized over an appropriate
period, but not more than ten years, with an interest factor equal to the
Prime Rate (as defined in Section 25.7 hereof) at the time of Landlord's
having incurred said expenditure;
(e) amounts received by Landlord through proceeds of insurance to the
extent the proceeds are compensation for expenses which were previously
included in Expenses hereunder;
(f) cost of repairs or replacements incurred by reason of fire or
other casualty, to the extent to which Landlord is compensated therefor
through proceeds of insurance, or caused by the exercise of the right of
eminent domain;
(g) advertising and promotional expenditures;
(h) legal fees for disputes with or the negotiation of leases with
tenants and legal and auditing fees, other than legal and auditing fees
reasonably incurred in connection with the maintenance and operation of the
Building or in connection with the preparation of statements required
pursuant to additional rent or lease escalation provisions;
(i) costs incurred in performing work or furnishing services to or for
individual tenants (including this Tenant) at such tenant's expense, to the
extent that such work or service is in excess of any work or service
Landlord at its expense is obligated to furnish to or for this Tenant;
costs of performing work or furnishing services for tenants other than this
Tenant at Landlord's expense, to the extent that such work or service is in
excess of any work or service Landlord is obligated to furnish to or for
this Tenant at Landlord's expense if any work or service is performed or
furnished by Landlord to or for any tenant other than this Tenant, at such
tenant's expense, then, but only to the extent that Landlord is obligated
to perform such work or furnish such service to or for this Tenant at
Landlord's expense, such work or service shall be deemed to have been
performed or furnished to or for such other tenant at Landlord's expense
and shall therefore be included in Expenses. Tenant agrees that there shall
be no adjustment in calculating Expenses relating to supplying condenser
water to occupants of the Building; and
(j) any governmental fines, penalties or other costs incurred by
Landlord due to Landlord's negligence or misconduct.
If Landlord shall purchase any item of capital equipment or make any
capital expenditure designed to result in savings or reductions in Expenses, and
Landlord reasonably believes it will result in such savings or reductions, then
the costs for same shall be included in Expenses. The costs of capital equipment
or capital expenditures are so to be included in Expenses for the comparative
year in which the costs are incurred and subsequent comparative years, on a
straight line basis, to the extent that such items are amortized over such
period of time as reasonably can be estimated as the time in which such savings
or reductions in Expenses are expected to equal Landlord's costs for such
capital equipment or capital expenditure, with an interest factor equal to the
Prime Rate at the time of Landlord's having incurred said costs. If Landlord
shall lease any such item of capital equipment designed to result in savings or
reductions in Expenses, then the rentals and other costs paid pursuant to such
leasing shall be included in Expenses for the comparative year in which they
were incurred.
If during all or part of calendar year 1995 and any comparative year,
Landlord shall not furnish any particular item(s) of work or service (which
would constitute an expense hereunder) to portions of the Building, due to the
fact that such portions are not occupied or leased, or because such item of work
or service is not required or desired by the tenant of such portion, or such
tenant is itself obtaining and providing such item of work or service, or for
other reasons (except by reason of Landlord's failure to furnish such item of
work or service to Tenant which Landlord is obligated to furnish to Tenant under
this Lease [but only during the period of time that Landlord fails to furnish
such item of work or service]), then, for the purposes of computing the
additional rent payable hereunder, the amount of the expenses for such item for
such period shall be increased by an amount equal to the additional operating
and maintenance expenses which would reasonably have been incurred during such
period by Landlord if it had at its own expense furnished such item of
work or service to such portion of the Building. Landlord's statements hereunder
shall reflect any such adjustments due to the factors set forth in this
paragraph.
Landlord is in compliance with existing laws, however, to the extent any
compliance is required in the future due to existing laws, the modification of
existing laws or the enactment of new laws, the cost of such compliance shall be
included in Expenses, subject to Section 5.1(a) (v) (d).
(b) 1. If the Expenses for any comparative year shall be greater than the
Expense Base Factor, Tenant shall pay to Landlord, as additional rent for such
comparative year, in the manner hereinafter provided, an amount equal to The
Percentage of the excess of the Expenses for such comparative year over the
Expense Base Factor (such amount being hereinafter called the "Expense
Payment").
Following the expiration of each comparative year and after receipt thereof
from Landlord's certified public accountant, Landlord shall submit to Tenant a
statement, certified by Landlord, setting forth the Expenses for the preceding
comparative year and the Expense Payment, if any, due to Landlord from Tenant
for such comparative year. The rendition of such statement to Tenant shall
constitute prima facie proof of the accuracy thereof and, if such statement
shows an Expense Payment due from Tenant to Landlord with respect to the
preceding comparative year then, (i) Tenant shall make payment of any unpaid
portion thereof within fifteen (15) days after receipt of such statement; and
(ii) Tenant shall also pay to Landlord, as additional rent, within fifteen (15)
days after receipt of such statement, an amount equal to the product obtained by
multiplying the total Expense Payment for the preceding comparative year by a
fraction, the denominator of which shall be 12 and the numerator of which shall
be the number of months of the current comparative year which shall have elapsed
prior to the first day of the month immediately following the rendition of such
statement; and (iii) Tenant shall also pay to Landlord, as additional rent,
commencing as of the first day of the month immediately following the rendition
of such statement and on the first day of each month thereafter until a new
statement is rendered, 1/12th of the total Expense Payment for the preceding
comparative year. The aforesaid monthly payments based on the total Expense
Payment for the preceding comparative year may be adjusted to reflect, if
Landlord can reasonably so estimate, known increases in rates, for the current
comparative year, applicable to the categories involved in computing Expenses,
whenever such increases become known prior to or during such current comparative
year. The payments required to be made under (ii) and (iii) above shall be
credited toward the Expense Payment due from Tenant for the then current
comparative year, subject to adjustment as and when the statement for such
current comparative year is rendered by Landlord. If Landlord fails to render a
statement for any comparative year within two (2) years after the expiration of
such comparative year, then provided Tenant shall notify Landlord that Landlord
has failed during such two (2) year period to render such statement to Tenant,
Landlord shall be deemed to have waived its right to collect any Expenses for
such comparative year. Tenant agrees to promptly notify Landlord at any time
Tenant becomes aware that Landlord has failed to render any statement for
Expense escalation. If Tenant so notifies Landlord that Tenant has not received
any Expense escalation statement within such two (2) year period, Landlord shall
be deemed to have waived its right to collect any Expenses for such comparative
year unless Landlord shall render such statement before the earlier to occur of
(i) the date which is six (6) months of such notification, and (ii) the
expiration of such two (2) year period (provided, however, the time period for
Landlord to render such statement shall in no event be less than thirty (30)
days from receipt of Tenant's notice).
If any statement rendered to Tenant shall indicate that Tenant shall have
made an overpayment with respect to any Expense payment, such overpayment
(together with interest thereon at the Prime Rate calculated from the date of
the overpayment to the date the overpayment is credited or refunded to Tenant)
shall be credited against the next installment of fixed annual rent due under
Article 1 and if the amount of the credit exceeds the amount of the next
installment of fixed annual rent due under Article 1, Landlord shall within ten
(10) days following the rendition of such statement, refund the amount of such
overpayment (together with such interest) in excess of the next installment of
fixed annual rent to Tenant. The statements of the Expenses to be furnished by
Landlord as provided above shall be certified by Landlord, and shall be prepared
in reasonable detail for Landlord by an independent certified public accountant.
Wherever the calculation of Expenses requires any credit or adjustment with
respect to any cost or expense, the certified public accountant who prepares the
statement (who may be the certified public accountant now or then employed by
Landlord for the audit of its accounts) shall determine the additional costs or
expenses incurred by Landlord, or the amount saved if such is the case, with
respect to any item of work or service and, to the extent necessary, said
accountant may rely on allocations and estimates made by Landlord's management.
The statements thus furnished to Tenant shall constitute a final determination
as between Landlord and Tenant of the Expenses for the periods represented
thereby, unless Tenant within ninety (90) days after they are furnished shall
give a notice to Landlord that it disputes their accuracy or their
appropriateness, which notice shall specify the particular respects in which the
statement is inaccurate or inappropriate.
Pending the resolution of such dispute, Tenant shall pay the additional rent to
Landlord in accordance with the statements furnished by Landlord. After payment
of said additional rent, Tenant shall have the right, during reasonable business
hours and upon not less than five (5) business days' prior written notice to
Landlord, to examine Landlord's books and records with respect to the foregoing,
provided such examination is concluded within ninety-five (95) days from the
date Tenant sent such dispute notice to Landlord, but shall nevertheless have
reasonable access thereafter to said bills and records in order to verify its
examination.
Any such dispute as to said statement shall be resolved by arbitration in
accordance with the provisions of Article 33 hereof, which arbitration shall be
by three (3) arbitrators each of whom shall be experienced in the operation of
major office buildings in Manhattan, but none of whom shall be a person whose
primary business activity or affiliation is being a commercial landlord.
3. In no event shall the fixed annual rent under this Lease be reduced by
virtue of this Article 5.
4. If the Commencement Date is not the first day of a comparative year,
then the additional rent due hereunder for such comparative year shall be a
proportionate share of said additional rent for the entire comparative year,
said proportionate share to be based upon the length of time that the Lease term
will be in existence during such comparative year. Upon the date of any
expiration or termination of this Lease (except termination because of Tenant's
default) whether the same be the date hereinabove set forth for the expiration
of the term, or any prior or subsequent date, a proportionate share of said
additional rent for the comparative year during which such expiration or
termination occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid. The said
proportionate share shall be based upon the length of time that this Lease shall
have been in existence during such comparative year. Landlord shall, as soon as
reasonably practicable, cause statements of the Expenses for that comparative
year to be prepared and furnished to Tenant. Landlord and Tenant shall thereupon
make appropriate adjustments of amounts then owing.
5. Landlord's and Tenant's obligation to make the adjustments referred to
in subdivisions 5.1(b) (1), (2) and (4) hereof shall survive any expiration or
termination of this Lease.
6. Any delay or failure of Landlord in billing any expense escalation
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such expense escalation hereunder.
ARTICLE 6
CLEANING COST ESCALATION
6.1. Landlord and Tenant recognize and agree that all cleaning services in
the demised premises shall be provided to Tenant pursuant to a cleaning contract
(hereinafter called the "Cleaning Agreement") dated as of December 31, 1994,
between 1345 Cleaning Service Co. (hereinafter called "Cleaning Contractor") and
Tenant, a copy of which Cleaning Agreement has been furnished by Tenant Co
Landlord.
6.2. In the event the Cleaning Agreement is terminated for any reason
whatsoever, then (a) Landlord shall provide cleaning services Co the demised
premises as more particularly set forth in Section 32.8 hereof; and (b) the
provisions of Sections 6.2 and 6.3 hereof shall be substituted for the
provisions of Section 6.1 hereof and the fixed annual rent for the demised
premises shall be increased by the amount of the Fixed annual Cleaning Fee and
Cleaning Cost Escalation then payable under the Cleaning Agreement.
6.3. If at any time after the Cleaning Agreement is terminated Landlord
shall be providing cleaning services to the demised premises, Tenant shall pay
to Landlord, as additional rent, cleaning cost escalation in accordance with
this Section 6.3.
Tenant acknowledges and understands that cleaning in and for the Building,
including, but not limited to, interior and exterior and window washing, may be
done by a cleaning contractor which is an entity under common control with
Landlord, and that Landlord may, from time to time, designate a different
cleaning contractor to do such work.
(a) Definitions: For the purpose of this Article 6, the following
definitions shall apply:
(i) The term "base labor rate" as hereinafter used for the
determination of cleaning cost escalation, shall mean the labor rate as
that term is hereinafter defined for the calendar year in which the
Cleaning Agreement is terminated, as presently contained in the Agreement
between The Realty Advisory Board on Labor Relations, Inc. and Local 32B-
32J of the Building Service Employees International Union AFL-CIO.
(ii) The term "comparative year" shall mean the full calendar year
after the Cleaning Agreement is terminated and each subsequent calendar
year.
(iii) The term "Cleaning Cost Factor" shall mean the cost of
cleaning the Building for the calendar year in which the Cleaning Agreement
is terminated.
(iv) The term "The Percentage", for purposes of computing cleaning
cost escalation, shall mean 7.454 (7.454%) percent.
(v) The term "labor rate" shall mean the average hourly cost,
inclusive of allocations and apportionments of taxes (including sales and
use taxes) and fringe benefits incident, applicable, allocable or
reasonably related thereto, for an hour's work by a xxxxxx engaged to work
a 40 hour work week, based on the minimum regular hourly wage rate for such
employment, determined as follows:
(1) The minimum regular hourly wage rate shall be the rate
for employment of porters in Class A office buildings, from time
to time established by Agreement between the Realty Advisory Board
on Labor Relations, Inc. and Local 32B-32J of the Building Service
Employees International Union AFL-CI0 or by the successors to
either or both of them (this rate shall be used in computations
under this Article 6 whether or not porters' wages are actually
paid by or for the Landlord or by independent contractors who
furnish such services to the demised premises).
(2) As used herein, the term "porters" shall mean that
classification of employee engaged in the general maintenance and
operation of office buildings most nearly comparable to that
classification now applicable to porters in the 1995 agreement
with said Local 32B-32J (which classification is presently termed
"others" in said agreement).
(3) As used herein the term "fringe benefits" shall mean all
fringe benefits, including, but not limited to, amounts for,
allocable to or attributable to, pensions, welfare funds,
vacations, holidays, sick days, birthdays, jury duty, medical
checkup, lunch hours, relief time and other paid time off,
bonuses, social security, unemployment, disability benefits,
health, life, accident, workmen's compensation and other types of
insurance. Furthermore, included within fringe benefits shall be
an amount representing a reasonable cost for an average number of
days taken by employees during a calendar year for days which are
individual to an employee, such as jury days, death days, sick
days, etc.; and at the request of Tenant, Landlord shall furnish
to Tenant the information which is the basis of Landlord's
calculation of said amount.
If there is no such union agreement in effect at any time during the term
of this Lease, then all computations and payments shall, nevertheless, be made,
but shall be on the basis of the regular hourly wage rates, plus taxes
(including sales and use taxes) and fringe benefits incident, allocable, or
applicable thereto, actually being paid or accrued at such time by the Landlord,
or by the contractor performing the cleaning services for Landlord, for such
porters, and appropriate retroactive adjustment shall thereafter be made if and
when the minimum regular hourly wage rate pursuant to such agreement is finally
determined; and further provided, however, if any union agreement shall require
the regular employment of porters on days or during hours when overtime or other
premium pay rates are in effect, then the "regular hourly wage rate", as used
above, shall be deemed to mean the actual weekly wage rate, divided by the
actual hours in a calendar week during which such porters are required to be
employed (if, for example, as of October 1, 1988, an agreement between RAB and
Local 32B-32J shall require the regular employment of building porters for forty
(40) hours during a calendar week at a regular hourly wage rate of $9.00 for the
first thirty (30) hours, and premium or overtime hourly wage rate of $12.00 for
the remaining ten (10) hours, then the regular straight time hourly wage rate
under this Article 6, as of October 1, 1988, shall be deemed to be the total
weekly rate of $390.00 divided by the total number of required hours of
employment, forty (40), or $9.75).
(b) In the event that the labor rate in effect on the first day of
any comparative year shall exceed the base labor rate,
Tenant shall pay to Landlord, as additional rent for such comparative year,
an amount equal to the product obtained by multiplying (i) the Cleaning
Cost Factor by (ii) the percentage increase of the said labor rate in
effect on the first day of such comparative year over the base labor rate
and then multiplying the result by (iii) The Percentage. By or after the
start of the first comparative year and by or after the start of each
comparative year thereafter, Landlord shall furnish to Tenant a statement
of the labor rate in effect on the first day of such comparative year and a
statement of the base labor rate, showing the cleaning cost escalation, if
any, which shall be due hereunder from Tenant to Landlord and the
additional rent then payable by Tenant to Landlord shall be paid as
provided in subsection 6.3(c) below.
(c) The statements of the cleaning cost escalation to be furnished by
Landlord as provided in subsection 6.3(b) above shall be certified by
Landlord, and shall be prepared in reasonable detail; Each such annual
amount of cleaning cost escalation, due by reason of the foregoing, shall
commence to be payable, in equal monthly installments, as of the first day
of' the period for which such labor rate shall exceed the base labor rate;
and, after Landlord shall furnish Tenant with an escalation statement
relating to such excess in the labor rate, such monthly installments of
cleaning cost escalation, equal to one-twelfth (1/12) of the Annual amount
determined above, shall be paid by Tenant to Landlord until a new change
shall take place in the labor rate. In the event that the escalation
statement is furnished to the Tenant after the commencement or effective
date of any change in the labor rate, there shall be promptly paid by
Tenant to Landlord any additional amount theretofore accrued or allocable
to the period prior to the furnishing of the said escalation statement. In
the event that the labor rate shall be changed or shall change more
frequently than once a year, the adjustment hereunder shall similarly be
made by Landlord in an additional escalation statement furnished by
Landlord, so as to reflect such change in the monthly installments, as of
the effective date of each such change.
(d) The statements thus furnished to Tenant shall constitute a final
determination as between Landlord and Tenant of the labor rate and cleaning
cost escalation for the periods represented thereby, unless Tenant within
ninety (90) days after they are furnished shall give a notice to Landlord
that it disputes their accuracy, which notice shall specify the particular
respects in which the statement is inaccurate. Pending the resolution of
such dispute, Tenant shall pay the additional rent to Landlord in
accordance with the statements furnished by Landlord.
Any such dispute as to the accuracy of the calculations in said statements
shall be resolved by arbitration in accordance with the provisions of Article 33
hereof, which arbitration shall be by three (3) arbitrators each of whom shall
have at least ten (10) years' experience in the supervision of the operation and
management of major office buildings in Manhattan.
(e) If the date of termination of the Cleaning Agreement is not the
first day of the first comparative year, then the additional rent due
hereunder for such first comparative year shall be a proportionate share of
said additional rent for the entire comparative year, said proportionate
share to be based upon the length of time that the Lease term will be in
existence during such first comparative year. Upon the date of any
expiration or termination of this Lease (except termination because of
Tenant's default), whether the same be the date hereinabove set forth for
the expiration of the term or any prior or subsequent date, a proportionate
share of said additional rent for the comparative year during which such
expiration or termination occurs shall immediately become due and payable
by Tenant to Landlord. The said proportionate share shall be based upon the
length of time that this Lease shall have been in existence during such
comparative year. Prior to or promptly after said expiration or
termination, Landlord shall compute the additional rent, if any, due from
Tenant, as aforesaid, which computations shall either be based on that
comparative year's labor rate(s) or be a reasonable estimate based upon the
most recent statements theretofore prepared by Landlord and furnished to
Tenant. If an estimate is used, then Landlord shall cause statements to be
prepared on the basis of that comparative year's labor rate(s), and upon
Landlord's furnishing such statement to Tenant, Landlord and Tenant shall
make appropriate adjustments of amounts then owing.
(f) Landlord's and Tenant's obligation to make the adjustments
referred to in subsection 6.3(c) and (e) above shall survive any expiration
or termination of this Lease. Any delay or failure of Landlord in billing
for any cleaning cost escalation payable as hereinabove provided shall not
constitute a waiver of or in any way impair the continuing obligation of
Tenant to pay such cleaning cost escalation hereunder.
(g) In no event shall the fixed annual rent under this Lease be
reduced by virtue of this Article 6.
ARTICLE 7
ELECTRICITY
7.1. Landlord shall furnish to Tenant the electric energy which Tenant
requires in the demised premises through the presently installed electrical
facilities for Tenant's reasonable use in the demised premises, subject to the
provisions of Section 7.6(a), for lighting, customary office equipment,
computers, market data systems, supplemental HVAC and the usual small business
machines, including Xerox or other copying machines. Landlord shall not in any
way be liable or responsible 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.
7.2. Intentionally deleted.
7.3. (a) Landlord shall, prior to the date Tenant occupies the demised
premises for the conduct of its business, at Landlord's expense (which shall not
be included as an Expense in any year), install and make functional a sufficient
number of check meters and the equipment ancillary thereto on each floor of the
demised premises (hereinafter called the "Check Meters") to (i) measure and
record and provide printouts of the measurement of the demand and consumption in
the demised premises of electric current during each month of each calendar year
occurring during the term of this Lease and (ii) operate such meters to
ascertain Tenant's consumption of kilowatt hours, by time of day, if applicable
("KWH") and demand in kilowatts ("KW") for each month. The Check Meters shall be
connected so as to read the totalized demand of the demised premises. Landlord
shall maintain and keep the Check Meters in good repair (including replacement,
if necessary), working order and condition during the term of this Lease. All
costs and expenses of maintaining and repairing the Check Meters shall be borne
by Landlord. During any period that a Check Meter is non-operational or where
such Check Meter(s) have not yet been installed after the Commencement Date, the
Electricity Charge (as hereinafter defined) attributable to such Check Meter(s)
shall be an amount reasonably estimated by Landlord's electrical consultant
based upon the historical readings previously or thereafter received by Landlord
from such non-operational Check Meter(s).
(b) Tenant shall pay Landlord, for the furnishing of electricity to
the demised premises as set forth herein an amount ("Electricity Charge") equal
to Landlord's cost, as if billed by the electric utility supplying the Building,
to furnish electricity to the demised premises (herein called "Landlord's Cost")
for each calendar month. Landlord's Cost shall be determined by applying the KWH
and KW to the rates pursuant to which Landlord purchases electric current for
the Building during the particular calendar month, including therein any taxes,
fuel adjustment charges, surcharges, demand charges, energy charges, time-of-day
charges, rate adjustment charges or other impositions of any nature payable by
Landlord (other than interest or penalties on late payments) and adding thereto
a two percent (2%) ("Electricity Adjustment Fee") charge to compensate Landlord
for any transmission loss in transmitting the electric energy from its source in
the Building to the demised premises. If consumption or demand is billed at
different rates depending on different subdivisions or categories of the rate
schedule, then Tenant's KWH consumption and KW demand shall be billed at
Landlord's Cost per KW or KWH (as the case may be) for such subdivision or
category (e.g., KWH consumption is currently billed at different rates depending
on the time of day of consumption and accordingly Tenant's KWH's shall be
applied separately to the rates applicable to the period in which each KWH of
Tenant's consumption was consumed). If the rates pursuant to which Landlord
purchases electricity for the Building should change so that the application of
the monthly KWH and KW to such rates (together with any taxes, fuel adjustment
charges, surcharges, demand charges, energy charges, time-of-day charges, rate
adjustment charges or other impositions) shall not reflect Landlord's actual
cost of furnishing such KW and KWH then the calculation of Landlord's Cost shall
be appropriately revised so that Landlord's Cost shall reflect Landlord's actual
cost of furnishing electric current to the demised premises (e.g., if KWH
consumption shall be billed at different rates depending on the volume of KWH
consumed, then Tenant's KWH consumption shall be billed at Landlord's Cost per
KWH in order that the benefit of any volume discount for KWH consumption shall
be applied to Tenant's KWH consumption).
7.4. (a) Following the expiration of each calendar month, Landlord shall
submit to Tenant a statement setting forth in reasonable detail the Electricity
Charge for such month together with copies of the Check Meter printouts showing
the KW and KWH recorded during the applicable month and copies of the public
utility rate schedule pursuant to which Landlord is then purchasing electricity
for the Building. Tenant shall pay the amount of Electricity Charge shown on the
statement (which amount shall be equal to Landlord's Cost for such month) within
thirty (30) days after receipt of such statement.
(b) The determination of the Electricity Charge by Landlord shall be
binding and conclusive on Landlord and on Tenant
from and after the delivery of copies of such determination (and the back-up
documentation required by Section 7.4 (a) hereof) to Landlord and Tenant, unless
within sixty (60) days after the delivery of such copies, Tenant disputes such
determination. Upon Tenant' s request, Landlord shall furnish to Tenant copies
of all bills for the relevant period from the public utility company furnishing
electricity to the Building. If Tenant disputes the determination of Landlord,
it shall, at its own expense, obtain from a reputable, independent electrical
consultant its determination of the amount of the Electricity Charge in
accordance with the provisions of this Article 7. Tenant and Landlord then shall
seek to agree on the Electricity Charge. If they cannot agree, they shall choose
a reputable electrical consultant (who shall not be or have been employed by or
retained on an independent consulting basis, within the last two (2) years by
either Landlord or Tenant, or any affiliate of Landlord or Tenant) whose cost
shall be shared equally by Landlord and Tenant, to make a similar determination
of the Electricity Additional Rent, which determination shall be limited to
verification of the relevant Check Meter readings, the rates of the public
utility for the applicable period and the accuracy of the computation of the
Electricity Charge being contested, and if so limited, the determination of the
Electricity Charge change by such third electrical consultant shall be
controlling. If Landlord and Tenant cannot agree on such consultant, within ten
(10) days, then either party may apply to the Supreme Court in the County of New
York for the appointment of such consultant. However, pending such
determination, Tenant, without prejudice to Tenant's rights, shall pay to
Landlord the amount of Electricity Additional Rent as determined by Landlord. If
the resolution of any such dispute shall include a determination that Tenant
shall have overpaid any Electricity Charge, such overpayment (together with
interest thereon at the Prime Rate calculated from the date of the overpayment
to the date the overpayment is credited or refunded to Tenant) shall be credited
against the next installment of fixed annual rent due under Article 1 hereof and
if the amount of the credit exceeds the amount of the next installment of fixed
annual rent due under Article 1, Landlord shall refund the amount of any such
overpayment (together with such interest) in excess of the next installment of
fixed annual rent to Tenant. If the resolution of any such dispute shall include
a determination that Tenant has underpaid Electricity Charge, then Tenant shall
pay to Landlord the amount of any such underpayment together with interest
thereon at the Prime Rate calculated from the date such underpayment should have
been paid by Tenant to the date such amount is actually paid by Tenant to
Landlord.
7.5. Landlord reserves the right to discontinue furnishing electric energy
to Tenant at any time upon sixty (60) days' written notice to Tenant, and from
and after the effective date of such termination, Landlord shall no longer be
obligated to furnish Tenant with electric energy, provided, however, that such
termination date may be extended for a time reasonably necessary for Tenant to
make arrangements to obtain electric service directly from the public utility
company servicing the Building. If Landlord shall discontinue service on a
voluntary basis, then Landlord shall reimburse Tenant for all reasonable out-of-
pocket costs incurred by Tenant in connection with Tenant's arrangements to
obtain electric service directly from the public utility company servicing the
Building. If Landlord shall discontinue such service on an involuntary basis
(e.g., discontinuance required by law), then Landlord and Tenant shall share
such reasonable out-of-pocket costs incurred by Tenant in connection with
Tenant's arrangements to obtain electric service directly from the public
utility company servicing the Building on a declining basis with Tenant being
responsible for an amount equal to such reasonable out-of-pocket costs
multiplied by a fraction, the numerator of which is the number of months
remaining in the term of this Lease and the denominator of which is two hundred
fifty-eight (258). If Landlord exercises such right of termination, this Lease
shall remain unaffected thereby and shall continue in full force and effect; and
thereafter Tenant shall diligently arrange to obtain electric service directly
from the public utility company servicing the Building, and may utilize the then
existing electric feeders, risers and wiring serving the demised premises to the
extent available and safely capable of being used for such purpose and only to
the extent of Tenant's then authorized connected load. Landlord shall be
obligated to pay no part of any cost required for Tenant's direct electric
service. Landlord shall not voluntarily discontinue furnishing electric energy
to Tenant in an arbitrary and discriminatory manner.
7.6. (a) Landlord agrees that, at all times during the term of this Lease,
the risers, feeders, transformers, panels and wiring installed in the Building
by Landlord will be sufficient to permit a demand electrical load in the demised
premises of six (6) xxxxx (volt-amperes) per useable square foot of the demised
premises excluding the Building HVAC systems; it being agreed that Tenant may
distribute such six (6) xxxxx (volt-amperes) among the demised premises as
Tenant may reasonably require, subject to Landlord's approval, which approval
shall not be unreasonably withheld. Tenant covenants and agrees that in no event
shall its use of electric current in the demised premises exceed six (6) xxxxx
(volts-amperes) of demand electric load per useable square foot of the demised
premises or any increased demand load as may be available after the installation
of additional risers, feeders and other equipment, if permitted, pursuant to the
provisions of this Section 7.6, and any breach by Tenant of this covenant shall
be deemed a material breach of this Lease. Any additional risers, feeders or
other proper or necessary equipment to supply Tenant's electrical requirements
in excess of six (6) xxxxx (volt-amperes) of demand electric load per useable
square foot, upon written request of Tenant, will be installed by Landlord, at
the sole but reasonable cost and expense of Tenant if, in Landlord's sole but
reasonable judgment, the same are necessary and will not cause permanent
damage or injury to the Building or the demised premises, or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repair or expense or unreasonably interfere with or disturb other
tenants or occupants of the Building. Landlord shall install at Tenant's expense
any additional Check Meters which may be necessary to measure Tenant's demand
and consumption of electric current by reason of the installation of any such
additional risers, feeders or other electrical equipment required as a result of
Tenant's electrical usage exceeding the level of electricity Landlord is
obligated to provide hereunder.
(b) At Landlord's option, Tenant shall purchase from Landlord or
Landlord's agent all lighting tubes, lamps, bulbs and ballasts used in the
demised premises and Tenant shall pay Landlord's reasonable and competitive
charges for providing and installing same, on demand, as additional rent.
7.7. In no event shall the fixed annual rent under this Lease be reduced by
virtue of this Article 7, except by reason of any credit granted pursuant to the
provisions of Section 7.4(b) for an overpayment of any Electricity Charge.
7.8. It is the intention of Landlord that Tenant shall be required pursuant
to this Article 7 to pay only the actual cost and expense incurred by Landlord
in connection with furnishing electrical power to the demised premises plus the
"Electricity Administrative Fee" it being understood and agreed that the charges
to Tenant under this Article 7 are in no instance intended to include any profit
or premium payable to Landlord for providing such electrical service other than
such Electricity Administrative Fee.
ARTICLE 8
ALTERATIONS AND INSTALLATIONS
8.1. Except as hereinafter provided, Tenant shall make no alterations,
installations, additions or improvements in or to the demised premises without
Landlord's prior written consent. All such work shall be done only by
contractors or mechanics first approved by Landlord, such approval not to be
unreasonably withheld. Ail such work, alterations, installations, additions and
improvements shall be done at Tenant's sole expense and at such times and in
such manner as Landlord may from time to time reasonably designate.
Landlord shall within five (5) business days of receipt from Tenant,
approve or disapprove Tenant's requests for nonstructural alterations, additions
and improvements (such consent not to be unreasonably withheld or delayed
provided they will not affect the outside of the Building or adversely affect
its structure, electrical, HVAC, plumbing or mechanical systems) except when the
nature or complexity of such alterations, additions or improvements shall
require additional time on the part of Landlord to review Tenant's request, in
which case such five (5) business day period shall be extended for such time as
is reasonably necessary for Landlord to review such request. Subject to the
provisions of the preceding sentence, Landlord's consent shall not be required
for such nonstructural alterations, additions and improvements costing less than
the sum of (i) $100,000, plus (ii) the product of $100,000 and the percentage
increase, if any, in the "Index" (as defined below) from the Index in effect on
the Commencement Date to the Index in effect on the first day of the month in
which Tenant would request consent to such alterations, additions or
improvements, except to the extent any such alterations, additions or
improvements require any governmental filing, in which case such alterations,
additions or improvements shall be subject to Landlord's consent, which consent
shall not be unreasonably withheld or delayed.
"Index" shall mean one-half ( 1/2) the sum of the following indexes first
published, without adjustments by virtue of later revisions, for the month
involved:
(i) Consumer Price Index for Ail Urban Consumers and
(ii) Consumer Price Index for Urban Wage Earners and Clerical Workers,
New York, N.Y. - Northeastern N.J., base year [1982-1984 = 100] specified
for "All Items", as issued by the Bureau of Labor Statistics of the United
States Department of Labor, whether or not the composition of the items upon
which such indexes are based, their relative effects thereon or the region
considered may be changed from time to time. If either the Consumer Price Index
for all Urban Consumers or the Consumer Price Index for Urban Wage Earners and
Clerical Workers shall cease to be published, then the
Index shall mean the sum of whichever of the aforesaid indexes is published and
if both of such indexes cease to be published and there is no successor thereto,
the Index shall be such other index as Landlord and Tenant shall agree upon in
writing. If Landlord and Tenant are unable to agree as to such substituted
Index, such matter shall be submitted to arbitration in accordance with the
provisions of Article 33 hereof.
Tenant shall promptly reimburse Landlord upon demand for any out-of-pocket
costs and expenses incurred by Landlord, including out-of-pocket costs of any
consultants hired by Landlord, in connection with Landlord's review of Tenant's
plans and specifications for any such alterations, installations, additions or
improvements.
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 8:
1. All work shall be done in a good and workmanlike manner.
2. In the event Tenant shall employ any contractor to do in the demised
premises any work permitted by this Lease, such contractor and any
subcontractor shall agree to employ only such labor as will not result in
jurisdictional disputes or strikes. Landlord agrees that such contractor or
subcontractor shall have reasonable use of the Building facilities. Tenant
will inform Landlord in writing of the names of any contractor or
subcontractor Tenant proposes to use in the demised premises at least ten
(10) days prior to the beginning of work by such contractor or
subcontractor.
3. All such alterations shall be effected in compliance with all applicable
laws, ordinances, rules and regulations of governmental bodies having or
asserting jurisdiction in the demised premises.
4. Tenant shall keep the Building and the demised premises free and clear
of all liens for any work or material claimed to have been furnished to
Tenant or to the demised premises on Tenant's behalf, and all work to be
performed by Tenant shall be done in a manner which will not unreasonably
interfere with or disturb other tenants or occupants of the Building.
5. During the progress of the work to be done by Tenant, said work shall be
subject to inspection by representatives of Landlord which shall be
permitted access and the opportunity to inspect, at all reasonable times.
6. With respect to alteration or improvement work costing more than
$20,000, Tenant agrees to pay to Landlord, if Tenant uses one of Landlord's
pre-approved contractors, as additional rent, upon being billed therefor, a
sum equal to two (2%) percent of the cost of such work or alteration for
Landlord's indirect costs, field supervision and coordination in connection
with such work, and if such work is done by a contractor other than a pre-
approved contractor, then such two percent amount shall be increased to
five (5%) percent. The provisions of the preceding sentence shall not apply
with respect to (i) the first alterations costing more than $20,000 made by
Tenant in the demised premises and (ii) any work at the demised premises
that is performed for Tenant by Landlord or a contractor controlled by
Landlord or any one or more of the general partners of Landlord.
7. Prior to commencement of any work, Tenant shall furnish to Landlord
certificates evidencing the existence of:
(i) worker's compensation insurance covering all persons employed
for such work; and
(ii) reasonable comprehensive general liability and property damage
insurance naming Landlord, its designees and Tenant as insureds, with
coverage of at least $1,000,000 single limit.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
8.2. Any mechanic's lien, filed against the demised premises or the
Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
ninety (90) days after such filing, by payment, filing of the bond required by
law or otherwise.
8.3. All alterations, installations, additions and improvements made and
installed by Landlord, shall be the property of Landlord and shall remain upon
and be surrendered with the demised premises as a part thereof at the end of the
term of this Lease.
8.4. All alterations, installations, additions and improvements made and
installed by Tenant, or at Tenant's expense, upon or in the demised premises
which are of a permanent nature and which cannot be removed without damage to
the demised premises or Building shall become and be the property of Landlord,
and shall remain upon and be surrendered with the demised premises as a part
thereof at the end of the term of this Lease.
8.5. Where furnished by or at the expense of Tenant all furniture,
furnishings and trade fixtures, including without limitation, murals, business
machines and equipment, counters, screens, grille work, special panelled doors,
cages, partitions, metal railings, closets, panelling, lighting fixtures and
equipment, drinking fountains, refrigeration and air handling equipment, and any
other movable property shall remain the property of Tenant which may at its
option remove all or any part thereof at any time prior to the expiration of the
term of this Lease. In case Tenant shall decide not to remove any part of such
property, Tenant shall notify Landlord in writing not less than three (3) months
prior to the expiration of the term of this Lease, specifying the items of
property which it has decided not to remove. If, within thirty (30) days after
the service of such notice, Landlord shall request Tenant to remove any of the
said property, Tenant shall at its expense remove the same in accordance with
such request. As to such property which Landlord does not request Tenant to
remove, the same shall be, if left by Tenant, deemed abandoned by Tenant and
thereupon the same shall become the property of Landlord.
8.6. If any alterations, installations, additions, improvements or other
property which Tenant shall have the right to remove or be requested by Landlord
to remove as provided in Sections 8.4 and 8.5 hereof (herein in this Section 8.6
called the "property") are not removed on or prior to the expiration of the term
of this Lease, Landlord shall have the right to remove the property and to
dispose of the same without accountability to Tenant and at the sole cost and
expense of Tenant. In case of any damage to the demised premises or the Building
resulting from the removal of the property Tenant shall repair such damage or,
in default thereof, shall reimburse Landlord for Landlord's cost in repairing
such damage. This obligation shall survive any termination of this Lease.
8.7. Tenant shall keep records of Tenant's alterations, installations,
additions and improvements costing in excess of $50,000, and of the cost
thereof. Tenant shall, within 45 days after demand by Landlord, furnish to
Landlord copies of such records and cost if Landlord shall require same in
connection with any proceeding to reduce the assessed valuation of the Building,
or in connection with any proceeding instituted pursuant to Article 14 hereof.
8.8. Tenant, subject to Landlord's consent, which consent will not be
unreasonably withheld or delayed, and any applicable governmental regulations,
shall have the right to install interior staircases in the demised premises at
Tenant's sole cost and expense. Upon the expiration or earlier termination of
this Lease Tenant shall have no obligation to remove any interior staircases
installed under this Section 8.8.
8.9. Tenant, subject to Landlord's consent which consent shall not be
unreasonably withheld or delayed, and any applicable governmental regulations
and the availability of proper exhaust, shall have the right to install a
cooking flue in the demised premises at Tenant's sole cost and expense. Upon the
expiration or earlier termination of this Lease Landlord shall have the right to
request Tenant to remove any such installed cooking flue.
ARTICLE 9
REPAIRS
9.1. Tenant shall, at its sole cost and expense, make such repairs to the
demised premises and the fixtures and
appurtenances therein as are necessitated by the act, omission, occupancy or
negligence of Tenant (except for fire or other casualty caused by Tenant's
negligence, if the fire or other casualty insurance policies insuring Landlord
are not invalidated by this provision) or by the use of the demised premises in
a manner contrary to the purposes for which same are leased to Tenant, as and
when needed to preserve them in good working order and condition. All damage or
injury to the demised premises and to its fixtures, appurtenances and equipment
or to the Building or to its fixtures, appurtenances and equipment caused by
Tenant moving property in or out of the Building or by installation or removal
of furniture, fixtures or other property, and for which Landlord has not been or
will not be reimbursed by insurance, shall be repaired, restored or replaced
promptly by Tenant at its sole cost and expense, which repairs, restorations and
replacements shall be in quality and class equal to the original work or
installations. If Tenant fails to make such repairs, restoration or
replacements, same may be made by Landlord at the expense of Tenant and such
expense shall be collectible as additional rent and shall be paid by Tenant
within 15 days after rendition of a xxxx therefor.
The exterior walls of the Building, the portions of any window xxxxx
outside the windows and the windows are not part of the premises demised by this
Lease and Landlord reserves all rights to such parts of the Building.
9.2. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which such floor was designed to
carry and which is allowed by law. Landlord certifies that the floor of the
demised premises will carry fifty (50) pounds live load per square foot of floor
space and twenty (20) pounds for partitions per square foot of floor space. If
Tenant shall desire a floor load in excess of that set forth above, Landlord
agrees (provided Landlord's architects, in their reasonable discretion, find
that the work necessary to increase such floor load does not adversely affect
the structure of the Building, and further provided that such work will not
interfere with the amount or availability of any space adjoining alongside,
above or below the demised premises, or interfere with the occupancy of other
tenants in the Building), to strengthen and reinforce the same so as to give the
live load desired, provided Tenant shall submit to Landlord the plans showing
the locations of and the desired floor live load for the areas in question and
provided further that Tenant shall agree to pay for or reimburse Landlord on
demand for the cost of such strengthening and reinforcement as well as any other
costs to and expenses of Landlord occasioned by or resulting from such
strengthening or reinforcement.
9.3. Business machines and mechanical equipment used by Tenant which cause
vibration, noise, cold or heat that may be transmitted to the Building structure
or to any leased space to such a degree as to be objectionable to Landlord or to
any other tenant in the Building shall be placed and maintained by Tenant at its
expense in settings of cork, rubber or spring type vibration eliminators
sufficient to absorb and prevent such vibration or noise, or prevent
transmission of such cold or heat. The parties hereto recognize that the
operation of elevators and air-conditioning and heating equipment will cause
some vibration, noise, heat or cold which may be transmitted to other parts of
the Building and demised premises. Landlord shall be under no obligation to
endeavor to reduce such vibration, noise, heat or cold beyond what is customary
in current good building practice for first class office buildings on Park
Avenue between 46th and 57th Streets in the Borough of Manhattan or required by
law.
9.4. Except as otherwise provided in this Lease, 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 the making of any repairs, alterations, additions or improvements
in or to any portion of the Building or the demised premises or in or to
fixtures, appurtenances or equipment thereof. Landlord shall exercise reasonable
diligence so as to minimize any interference with Tenant's business operations.
9.5. Landlord shall (i) keep the steps, entrance walks, sidewalks and curbs
adjoining the Building reasonably free of ice, snow, refuse, rubbish and
unlawful obstruction, (ii) keep and maintain the Building and its fixtures,
appurtenances, systems and the facilities, serving and/or in the demised
premises, in good working order, condition and repair, (iii) promptly make all
repairs and replacements, structural or otherwise, necessary or desirable to
keep in good order and repair the interior and exterior of the Building, and
(iv) if any of Tenant's property shall be damaged in any way as a result of the
negligence of (including the improper installation of any of Tenant's property
by) Landlord, its employees or agents, repair the property so damaged to good
condition; except, as to clauses (ii) and (iii), those repairs which Tenant is
expressly obligated to make pursuant to other provisions of this Lease.
9.6. Whenever Landlord shall make any repairs, alterations, additions or
improvements, it agrees to use reasonable efforts to the extent practicable to
do such work in such a manner as not materially to interfere with Tenant's use
and enjoyment of the demised premises. Landlord shall use its best efforts to
complete such repairs in a timely manner and if such repairs materially
interfere with Tenant's business operations in the demised premises Landlord
shall use overtime labor to make such repairs provided the repairs are not
necessitated or hindered by the acts or omissions of Tenant. Tenant shall
cooperate with Landlord by transferring, wherever practicable, activities from
the area where repairs are to be made to other portions of the demised premises
so as to permit the repairs to be made as expeditiously as practicable. Tenant
recognizes that emergency repairs may be required and in such instances Tenant
will permit Landlord all reasonable and necessary access to the demised premises
to make such repairs.
ARTICLE 10
REQUIREMENTS OF LAW; FIRE INSURANCE
10.1. Tenant shall comply with all laws, orders and regulations of Federal,
State, County and Municipal authorities and with any direction of any public
officer or officers, pursuant to law, which shall impose any violation, order or
duty upon Landlord or Tenant with respect to the demised premises, or the use or
occupation thereof. Landlord represents and warrants that at the time of the
Commencement Date the demised premises will comply with all applicable laws,
rules, regulations, orders and directions to which the demised premises are
subject at such time, the non-compliance with which would adversely affect
Tenant's occupancy of the demised premises (except those laws, rules,
regulations, orders and directions with respect to which (i) Tenant would not be
obligated to incur any cost to correct such non-compliance or (ii) Tenant would
not be deemed to be in default under this Lease), other than those with which
Tenant is required hereunder to comply, provided however, Landlord shall not be
required to comply with, and the foregoing representation and warranty shall not
apply with respect to, such laws, rules, regulations, orders and directions,
where compliance with same would be obviated by complete reconstruction of the
demised premises. Notwithstanding anything to the contrary contained in this
Section 10.1, Tenant shall not be responsible to cure any violation of any laws,
orders or regulations set forth above which violation existed as of the
Commencement Date with respect to Local Law #5 and Local Law #10. Tenant shall,
only with respect to the demised premises, be obligated to comply with Local Law
#5 as a result of any alteration made to the demised premises.
10.2. Tenant shall not do or permit to be done any act or thing upon the
demised premises, which will invalidate or be in conflict with New York Standard
Fire Insurance policies covering the Building, and fixtures and property
therein, or which would increase the rate of fire insurance applicable to the
Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the demised premises; but nothing in this
Section 10.2 shall prevent Tenant's use of the demised premises for the purposes
stated in Article 2 hereof.
10.3. If, as a result of any act or omission by Tenant or violation of this
Lease, the rate of fire insurance applicable to the Building shall be increased
to an amount higher than it otherwise would be, Tenant shall reimburse Landlord
for all increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable upon the first day of the month
following any outlay by Landlord for such increased fire insurance premiums. In
any action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make up" of rates for the Building or demised premises issued by the body
making fire insurance rates for the demised premises, shall be presumptive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rate then applicable to the demised premises.
ARTICLE 11
SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES
11.1. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages, except that with respect to all such mortgages
and leases entered into hereafter, this Lease shall be subject and subordinate
thereto only if the holder thereof (in the case of a mortgage) or the lessor
thereunder (in the case of a lease) enters into an agreement with Tenant
providing in substance that so long as no default exists as would entitle
Landlord to terminate this Lease, Tenant's leasehold estate hereunder shall not
be terminated or disturbed nor shall Tenant's rights hereunder be affected. This
Section 11.1 shall be self-operative and no further instrument
of subordination shall be required. In confirmation of such subordination,
Tenant shall promptly execute and deliver any instrument that Landlord, the
lessor of any such lease or the holder of any such mortgage or any of their
respective successors in interest may reasonably request to evidence such
subordination. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior leases" and the mortgages to which this Lease is, at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages" and the lessor of a superior lease or its successor in interest at
the time referred to is sometimes hereinafter called a "lessor," and the holder
of a superior mortgage or its successor in interest at the time referred to is
sometimes hereinafter called a "holder."
11.2. In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission to the holder of each superior mortgage and the lessor of each superior
lease whose name and address shall previously have been furnished to Tenant in
writing, and (ii) unless such act or omission shall be one which is not capable
of being remedied by Landlord or such holder or lessor within a reasonable
period of time, until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such holder or lessor shall have become entitled under such superior
mortgage or superior lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord
would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy), provided such holder or lessor shall with due diligence give
Tenant written notice of its intention to, and commence and continue to remedy
such act or omission.
11.3. If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights (herein
sometimes called "successor landlord") and upon such successor landlord's
written agreement to accept Tenant's attornment, Tenant shall attorn to and
recognize such successor landlord as Tenant's landlord under this Lease, and
shall promptly execute and deliver any instrument that such successor landlord
may reasonably request to evidence such attornment. Upon such attornment, this
Lease shall continue in full force and effect as, or as if it were, a direct
lease between the successor landlord and Tenant upon all of the terms,
covenants, conditions, agreements and provisions, as are set forth in this Lease
except that the successor landlord shall not:
(a) be liable for any previous act or omission of Landlord under this
Lease,
(b) be subject to any offset, not expressly provided for in this
Lease, which shall have theretofore accrued to Tenant against Landlord, and
(c) be bound by any previous modification of this Lease, not expressly
provided for in this Lease, or by any previous prepayment of more than one
month's fixed annual rent, unless such modification or prepayment shall
have been expressly approved in writing by the lessor of the superior lease
or the holder of any superior mortgage.
11.4. If, in connection with the financing of the Building, the holder of
any mortgage shall request reasonable modifications in this Lease as a condition
of approval thereof, Tenant will not unreasonably withhold, delay or defer
making such modifications, provided that they do not increase the obligations of
Tenant hereunder or materially and adversely affect the leasehold interest
created by this Lease.
11.5. Landlord agrees to obtain and deliver to Tenant a subordination, non-
disturbance and attornment agreement from Bankers Trust Company, as trustee, the
holder of the existing mortgage on the Building in the form annexed hereto as
Exhibit B.
ARTICLE 12
LOSS, DAMAGE, REIMBURSEMENT, LIABILITY, ETC.
12.1. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain, 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, unless any of the
foregoing shall be caused by or due to the negligence, willful act or willful
omission of Landlord, its agents, servants or employees.
12.2. Landlord or its agents shall not be liable for any damage which
Tenant may Sustain, if at any time any window of the demised premises is broken,
or temporarily or permanently (restricted to windows on a lot line, if
permanently) closed, darkened or bricked up for any reason whatsoever, except
only the Landlord's arbitrary acts if the result is permanent, and Tenant shall
not be entitled to any compensation therefor or abatement of rent or to any
release from any of Tenant's obligations under this Lease, nor shall the same
constitute an eviction.
12.3. Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord, and for which Landlord has not been or will
not be reimbursed by insurance, by reason of any breach, violation or
nonperformance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant except
as provided in Section 8.5 of this Lease, or by reason of or arising out of the
carelessness, negligence or improper conduct of Tenant, or its agents, servants
or employees, in the use or occupancy of the demised premises. Subject to the
provisions of Section 19.4 hereof, where applicable, Tenant shall have the
right, at Tenant's own cost and expense, to participate in the defense of any
action or proceeding brought against Landlord, and in negotiations for
settlement thereof if, pursuant to this Section 12.3, Tenant would be obligated
to reimburse Landlord for expenses, damages or fines incurred or suffered by
Landlord.
12.4. Tenant shall give Landlord notice in case of fire or accidents in the
demised premises promptly after Tenant is aware of such event.
12.5. Tenant agrees to look solely to Landlord's estate and interest in the
Land and Building, or the lease of the Building, or of the Land and Building,
and the demised premises, for the satisfaction of any right or remedy of Tenant
for the collection of a Judgment (or other Judicial process) requiring the
payment of money by Landlord, in the event of any liability by Landlord, and no
other property or assets of Landlord (or the partners or members thereof if
Landlord is other than individual or corporation) shall be subject to levy,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the demised
premises, or any other liability of Landlord to Tenant.
12.6. (a) Landlord agrees that, if obtainable at no additional cost, it
will include in its fire insurance policies appropriate clauses pursuant to
which the insurance companies (i) waive all right of subrogation against Tenant
with respect to losses payable under such policies and/or (ii) agree that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policies. But should any additional premiums be exacted for any such clause or
clauses, Landlord shall be released from the obligation hereby imposed unless
Tenant shall agree to pay such additional premium.
(b) Tenant agrees to include, if obtainable at no additional cost, in
its fire insurance policy or policies on its furniture, furnishings, fixtures
and other property removable by Tenant under the provisions of its lease of
space in the Building appropriate clauses pursuant to which the insurance
company or companies (i) waive the right to subrogation against Landlord and/or
any tenant of space in the Building with respect to losses payable under such
policy or policies and/or (ii) agree that such policy or policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policy or policies. But
should any additional premium be exacted for any such clause or clauses, Tenant
shall be released from the obligation hereby imposed unless Landlord or the
other tenants shall agree to pay such additional premium.
(c) Provided that Landlord's right of full recovery under its policy
or policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Building and the fixtures, appurtenances and equipment therein, to the
extent the same is covered by Landlord's insurance, notwithstanding that such
loss or damage may result from the negligence or fault of Tenant, its servants,
agents or employees. Provided that Tenant's right of full recovery under its
aforesaid policy or policies is not adversely affected or prejudiced thereby,
Tenant hereby waives any and all right of recovery which it might otherwise have
against Landlord, its servants,
and employees, and against every other tenant in the Building who shall have
executed a similar waiver as set forth in this Section 12.6(c) for loss or
damage to, Tenant's furniture, furnishings, fixtures and other property
removable by Tenant under the provisions hereof to the extent that same is
covered by Tenant's insurance, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if
the clauses to be included in their respective insurance policies pursuant to
subdivisions 12.6(a) and (b) hereof cannot be obtained. Landlord and Tenant
hereby also agree to notify the other promptly of any cancellation or change of
the terms of any such policy which would affect such clauses.
ARTICLE 13
DESTRUCTION--FIRE OR OTHER CASUALTY
13.1. (a) If the Building shall be partially damaged or destroyed or if the
demised premises shall be partially or totally damaged or destroyed by fire,
casualty or other such cause, then, whether or not the damage or destruction
shall have resulted from the fault or neglect of Tenant, or its servants,
employees, agents, visitors or licensees (and if this Lease shall not have been
cancelled as in this Article hereinafter provided), Landlord will repair the
damage, and restore, replace, and rebuild the Building and the demised premises
at its expense, with reasonable dispatch and continuity after notice to it of
the damage or destruction; provided, however, that Landlord shall not be
required to repair or replace any property installed by Tenant or the prior
tenant. Landlord shall give Tenant an allowance of twelve dollars ($12) per
rentable square foot allocable to such damaged area toward the restoration of
such damaged area. The aforesaid allowance of $12 per rentable square foot shall
be increased to an amount equal to the product obtained by multiplying $12 by a
fraction the numerator of which is the Consumer Price Index (as hereinafter
defined) for the month in which the fire or other casualty occurs and the
denominator of which is the Consumer Price Index for the month of December 1981,
but in no event shall allowance be greater than the cost of repairing such
damaged area. As used in the preceding sentence, the term "Consumer Price Index"
shall mean the Consumer Price Index for All Urban Consumers and New York, N.Y.,
Northeastern, N.J., base year 1967=100, specified for "All Items", as issued or
published by the Bureau of Labor Statistics of the United States Department of
Labor, whether or not the composition of the items upon which such index is
based, their relative effects thereon or the region considered may be changed
from time to time. If the foregoing index shall be converted to a standard
reference base other than "base year 1967=100", the determination of the
percentage increase shall be made by applying a conversion factor, formula or
table for converting such converted or revised index, as may be issued or
published by the Bureau of Labor Statistics of the U.S. Department of Labor or,
if not so issued or published, by application of such other reasonably
comparable index or statistical information as may be issued or published by a
reliable, recognized and non-partisan organization. If the foregoing index shall
no longer be issued or published such issued or published index or statistical
data as would reasonably reflect the consequences that would have resulted if
said index had not been discontinued shall be used.
(b) If the demised premises shall be partially damaged or partially
destroyed, the fixed annual rent and additional rent payable hereunder shall be
abated to the extent that the demised premises shall have been rendered
untenantable or unfit for Tenant's use and Tenant does not occupy such damaged
or destroyed part of the demised premises on other than an emergency basis or
the period from the date of such damage or destruction to the date that the
damage shall be repaired or restored. If the demised premises or a major part
thereof shall be totally, or substantially totally, damaged or destroyed or
rendered completely, or substantially completely, untenantable on account of
fire, casualty or other such cause, the fixed annual rent and additional rent
shall completely xxxxx as of the date of the damage or destruction and until
Landlord shall repair, restore, replace and rebuild the demised premises subject
to the limitations of Section 13.1(a); provided, however, that should Tenant
reoccupy a portion of the demised premises for the purpose of conducting
business during the period the restoration work is taking place and prior to the
date that the same is made completely tenantable, fixed annual rent and
additional rent shall be apportioned and payable by Tenant in proportion to the
part of the demised premises occupied by it. Nevertheless, in case of any
substantial damage or destruction to the demised premises, Tenant, in addition
to and without waiver of any other rights or remedies available to it, may
cancel this Lease by written notice to Landlord, if (i) within one hundred
twenty (120) days from the date of the damage or destruction, Landlord does not
file a proof of loss with its insurer; (ii) within one hundred eighty (180) days
of the date of damage or destruction, Landlord does not let a contract or
contracts which shall provide for the complete restoration of the demised
premises within a period of thirty (30) months from the date of the damage or
destruction; (iii) work under such contract or contracts has not commenced
within one hundred twenty (120) days of the date of said damage or destruction;
or (iv) said work is not prosecuted with reasonable diligence to its completion
within said thirty (30) months provided that Tenant shall not be entitled to
cancel
this Lease pursuant to this sentence more than thirty (30) days after Landlord
shall have given written notice to Tenant that the state of facts specified in
clause (i), (ii) or (iii) of this sentence, as the case may be, has occurred.
13.2. If the Building shall be so damaged that Landlord shall decide to
demolish or not to rebuild it, then in either of such events Landlord shall,
within one hundred twenty (120) days after such fire or other casualty, give
Tenant a notice in writing of such decision, and thereupon the term of this
Lease shall expire by lapse of time upon the thirtieth day after such notice is
given, and Tenant shall vacate the demised premises and surrender the same to
Landlord.
13.3. In the event of the termination of this Lease pursuant to the
provisions of this Article 13, this Lease shall expire as fully and completely
on the date fixed in such notice of termination as if that were the date
definitely fixed for the expiration of this Lease, but the fixed annual rent and
additional rent shall be apportioned and shall be paid up to and including the
date of such damage or destruction, and any excess prepaid rent or excess
prepaid additional rent shall be refunded to Tenant.
13.4. No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building. Landlord
shall use its best efforts to effect such repair or restoration promptly and in
such manner as not unreasonably to interfere with Tenant's occupancy.
13.5. The provisions of this Article 13 shall be considered an express
agreement governing any case of damage or destruction of the Building or the
demised premises by fire or other casualty and Section 22V of the Real Property
Law of the State of New York, and any other law of like import now or hereafter
in force providing for such contingency shall have no application.
13.6. If the demised premises are not completely restored by Landlord
within the aforesaid thirty (30) month period (as provided in and subject to the
limitations of subsection 13.1(b) hereof), Tenant shall have the right to
terminate this Lease within ten (10) days from the date that such aforesaid
thirty (30) month period expires by giving Landlord ten (10) days prior written
notice of its intention to so terminate this Lease, and if the demised premises
are not completely restored within such 10 day period, this Lease shall
terminate upon the expiration of such ten (10) day period as if such date were
the Expiration Date.
ARTICLE 14
EMINENT DOMAIN
14.1. In the event that the whole of the demised premises shall be lawfully
condemned or taken in any manner for any public or quasi-public use or purpose,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title (hereinafter referred to as the
"date of taking"), and Tenant shall have no claim against Landlord for, or make
any claim for the value of any unexpired term of this Lease, and the fixed
annual rent and additional rent shall be apportioned as of such date.
14.2. In the event that any part of the demised premises shall be so
condemned or taken, then this Lease shall be and remain unaffected by such
condemnation or taking, except that the fixed annual rent and additional rent
allocable to the part so taken shall be apportioned as of the date of taking,
provided, however, that Tenant may elect to cancel this Lease in the event that
more than twenty-five (25%) percent of the demised premises should be so
condemned or taken, provided such notice of election is given by Tenant to
Landlord not later than thirty (30) days after the date when title shall vest in
the condemning authority. Upon the giving of such notice, this Lease shall
terminate on the thirtieth day following the date of such notice and the fixed
annual rent and additional rent shall be apportioned as of such termination
date. Upon such partial taking and this Lease continuing in force as to any part
of the demised premises, the fixed annual rent and additional rent shall be
diminished by an amount representing the part of the fixed annual rent and
additional rent properly applicable to the portion or portions of the demised
premises which may be so condemned or taken. If as a result of the partial
taking (and this Lease continuing in force as to the part of the demised
premises not so taken), any part of the demised premises not taken is damaged,
Landlord agrees with reasonable promptness to commence the work necessary to
restore the damaged portion to the condition existing immediately prior to the
taking, and prosecute the same with reasonable diligence to its completion. In
the event Landlord and Tenant are unable to agree as to the amount by which the
fixed annual rent and additional rent shall be diminished, the matter shall be
determined by arbitration in accordance with the provisions of Article 33 of
this Lease. Pending such determination, Tenant shall pay to Landlord the fixed
annual rent and additional rent as fixed by Landlord, subject to adjustment in
accordance with the arbitration.
14.3. Nothing herein provided shall preclude Tenant from appearing,
claiming, proving and receiving in the
condemnation proceeding, Tenant's moving expenses, and the value of Tenant's
fixtures, or Tenant's alterations, installments and improvements which do not
become part of the Building, or property of Landlord.
14.4. In the event that more than twenty-five (25%) percent of the demised
premises shall be so taken and Tenant shall not have elected to cancel this
Lease as above provided, the entire award for a partial taking shall be paid to
Landlord, and Landlord, at Landlord's own expense, shall to the extent of the
net proceeds (after deducting reasonable expenses including attorneys' and
appraisers' fees) of the award restore the unaffected part of the demised
premises to substantially the same condition and tenantability as existed prior
to the taking.
Until said unaffected portion is restored, Tenant shall be entitled to a
proportionate abatement of fixed annual rent and additional rent for that
portion of the demised premises which is being restored and is not usable until
the completion of the restoration or until the said portion of the demised
premises is used by Tenant, whichever occurs sooner. Said unaffected portion
shall be restored within a reasonable time but not more than eighteen (18)
months after the taking, provided, however, if Landlord is delayed by strike,
lockout, the elements, or other causes beyond Landlord's control, the time for
completion shall be extended for a period equivalent to the delay. Should
Landlord fail to complete the restoration within the said eighteen (18) months
or the time as extended, Tenant may elect to cancel this Lease and the term
hereby granted in the manner and with the same results as set forth in the next
sentence of this Section 14.4. If Tenant shall so elect to end this Lease and
the term hereby granted, Landlord need not restore any part of the demised
premises and the entire award for partial condemnation shall be paid to
Landlord, and Tenant shall have no claim to any part thereof, except as to the
items set forth in Section 14.3 hereof where same are applicable.
14.5. If the temporary use or occupancy of all or any part of the demised
premises shall be so taken, (a) the demised term shall not be reduced or
affected in any way except as provided in (d) below, (b) Tenant shall continue
to be responsible for all of its obligations hereunder and shall continue to pay
all fixed annual rent and additional rent when due, (c) Tenant shall be entitled
to receive that portion of the award which represents reimbursement for the cost
of restoration of the demised premises, compensation for the use and occupancy
of the demised premises and for any taking of Tenant's property, except that, if
the temporary period of taking shall extend beyond the expiration of the term of
this Lease, the portion of the award representing compensation for the use and
occupancy of the demised premises shall be apportioned between Landlord and
Tenant as of said expiration date of said term and Landlord shall receive that
portion of the award which represents reimbursement for the cost of restoration
of the demised premises.
ARTICLE 15
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
15.1. Tenant shall not (a) assign or otherwise transfer this Lease or the
term and estate hereby granted, (b) sublet the demised premises or any part
thereof or allow the same to be used or occupied by others or in violation of
Article 2, (c) mortgage, pledge or encumber this Lease or the demised premises
or any part thereof in any manner by reason of any act or omission on the part
of Tenant, or (d) advertise, or authorize a broker to advertise, for a subtenant
or an assignee, without, in each instance, obtaining the prior consent of
Landlord, except as otherwise expressly provided in this Article 15.
15.2. The provisions of Section 15.1 hereof shall not apply to transactions
with a corporation into or with which Tenant is merged or consolidated or with
an entity to which substantially all of Tenant's assets are transferred or, if
Tenant is a partnership, with a successor partnership, nor shall the provisions
of clauses (a) and (b) of Section 15.1 apply to transactions with an entity
which controls or is controlled by Tenant or is under common control with
Tenant.
15.3. Any assignment or transfer, whether made with Landlord's consent as
required by Section 15.1 or without Landlord's consent pursuant to Section 15.2,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord a recordable agreement, in form and
substance reasonably satisfactory to Landlord, whereby the assignee shall assume
the obligations and performance of this Lease and agree to be personally bound
by and upon all of the covenants, agreements, terms, provisions and conditions
hereof on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions of Section 15.1 hereof shall,
notwithstanding such an assignment or transfer, continue to be binding upon it
in the future. Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding
the acceptance of fixed annual rent by Landlord from an assignee or transferee
or any other party, Tenant shall remain fully liable for the payment of the
fixed annual rent due and to become due under this Lease and for the performance
of all of the covenants, agreements, terms, provisions and conditions of this
Lease on the part of Tenant to be performed or observed.
15.4. The liability of Tenant, and the due performance of this Lease on
Tenant's part, shall not be discharged, released or impaired in any respect by
an agreement or stipulation made by Landlord or any grantee or assignee, by way
of mortgage, or otherwise, of Landlord, extending the time of, 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, which shall remain in full force
and effect and Tenant shall continue liable hereunder. If any such agreement or
modification operates to increase the obligations of a tenant under this Lease,
the liability under this Section 15.4 of the tenant named in the Lease or any of
its successors in interest (unless such party shall have expressly consented in
writing to such agreement or modification), shall continue to be no greater than
if such agreement or modification had not been made. To charge Tenant named in
this Lease and its successors in interest, no demand or notice of any default
shall be required, Tenant and each of its successors in interest hereby
expressly waives any such demand or notice.
15.5. Within fifteen (15) business days of receipt from Tenant of a request
to assign or sublet, Landlord shall either consent to or disapprove of such
request to permit an assignment of this Lease or a subletting of the whole or a
part of the demised premises (such consent not to be unreasonably withheld),
provided:
(a) Tenant shall furnish Landlord with the name and business address
of the proposed subtenant or assignee, information with respect to the
nature and character of the proposed subtenant's or assignee's business, or
activities, such references as are reasonably available to Tenant, and an
executed counterpart of the sublease or assignment agreement;
(b) The proposed subtenant or assignee is a reputable party;
(c) The nature and character of the proposed subtenant or assignee,
its business or activities and intended use of the demised premises is in
keeping with the standards of the Building and the floor or floors on which
the demised premises are located;
(d) The proposed subtenant or assignee is not then an occupant of any
part of the Building (other than an existing subtenant of Tenant in the
Building) unless, based on Landlord's good faith Judgment, Landlord does
not or will not have in the six (6) months following such request,
comparable space available in the Building for leasing and if Landlord does
have such comparable space available, Tenant shall not deal with any such
occupant until Landlord shall have had the opportunity to market such
comparable space for at least six (6) months following the request;
(e) Any such subletting or assignment shall not impose any costs on
Landlord except that this condition shall not apply if Tenant shall
reimburse Landlord for all of such costs. All costs incurred with respect
to providing reasonably appropriate means of ingress and egress from the
sublet space shall, subject to the provisions of Article 8 with respect to
alterations, installations, additions or improvements, be borne by Tenant;
(f) Each sublease shall specifically state that (i) it is subject to
all of the terms, covenants, agreements, provisions, and conditions of this
Lease, (ii) the subtenant or assignee, as the case may be, will not have
the right to a further assignment thereof or sublease or assignment
thereunder, or to allow the demised premises to be used by others, without
the consent of Landlord in each instance, which consent shall not be
unreasonably withheld or delayed, (iii) a consent by Landlord thereto shall
not be deemed or construed to modify, amend or affect the terms and
provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the premises involved, and the occupants thereof, as
if the sublease or assignment had not been made, (iv) if Tenant defaults in
the payment of any rent, Landlord is authorized to collect any rents due or
accruing from any assignee, subtenant or other occupant of the demised
premises and to apply the net amounts collected to the fixed annual rent
and additional rent reserved herein, (v) the receipt by Landlord of any
amounts from an assignee or subtenant, or other occupant of any part of the
demised premises shall not be deemed or construed as releasing Tenant from
Tenant's obligations hereunder or the acceptance of that party as a direct
tenant;
(g) If a subletting is involved, it shall not have the effect (or give
the utility company serving the Building with electricity cause
to claim) that Landlord may not provide the demised premises, or any part
thereof, or any part thereof, or any other rentable portion of the
Building, with electricity on a "rent inclusion basis", provided, however,
that this clause (g) shall not be applicable in the event Tenant is
obtaining electric current directly from the public utility company
servicing the Building;
(h) Tenant shall together with requesting Landlord's consent hereunder
with respect to any under leases (entered into by Tenant's subtenants) of
all or part of the demised premises (but not with respect to any sublease
between Tenant and its subtenant), have paid Landlord's reasonable out-of-
pocket costs and expenses to review the requested consent; and
(i) The proposed subtenant or assignee is not an (i) employment or
recruitment agency; (ii) school, college, university or educational
institution whether or not for profit; (iii) a government or any
subdivision or agency thereof.
15.6. If Tenant shall assign its interest in this Lease or sublet all or
any portion of the demised premises, in accordance with this Lease, other than
an assignment or sublease contemplated by Section 15.2 hereof, then (i) if an
assignment is involved, Tenant shall pay Landlord, as and when received, fifty
(50%) percent of any consideration received by Tenant in connection with such
assignment, after deducting reasonable brokerage commissions, reasonable
advertising fees, reasonable legal fees, rent concessions and rent abatements
(at Tenant's then rental costs), Tenant's rental costs under the Lease allocable
to any portion of the demised premises during the period when such space is
vacant while Tenant is intending to sublet same, the unamortized cost of any
improvements allocable to the space involved amortized over the remaining term
of this Lease, and the costs of any improvements incurred by Tenant to prepare
the demised premises for such assignee's occupancy and (ii) if a subletting is
involved, and the rents received by Tenant under a sublease shall exceed the
rents reserved hereunder that are allocable to the premises sublet, the excess
shall be applied by Tenant to reasonable brokerage commissions, reasonable
advertising fees, reasonable legal fees, rent concessions and rent abatements
(at Tenant's then rental costs), the unamortized cost of any improvements
allocable to the space involved amortized on a fifteen year straight line basis,
and the costs of any improvements incurred by Tenant in connection with and
allocable to the subletting, and fifty (50%) percent of the balance of such
excess shall be paid by Tenant to Landlord as and when received.
ARTICLE 16
ACCESS TO DEMISED PREMISES; CHANGES
16.1. Tenant shall permit Landlord to erect, use and maintain pipes, ducts
and conduits in and through the demised premises, provided the same are
installed adjacent to or concealed behind walls and ceilings of the demised
premises and are installed by such methods and at such locations as will not
materially interfere with or impair Tenant's layout or use of the demised
premises. Landlord or its agents or designees shall have the right, but only
upon 12 hours' prior request, except in the case of an emergency, made to Tenant
or any authorized employee of Tenant at the demised premises to enter the
demised premises, other than vaults or other enclosures where money, securities
or other valuables or confidential documents are kept, at reasonable times
during business hours, for the making of such repairs or alterations as Landlord
may deem necessary for the Building or which Landlord shall be required to or
shall have the right to make by the provisions of this Lease or any other lease
in the Building and, subject to the foregoing, shall also have the right to
enter the demised premises for the purpose of inspecting them or exhibiting them
to prospective purchasers or lessees of the entire Building or to prospective
mortgagees of the fee or of Landlord's interest in the property of which the
demised premises are a part or to prospective assignees of any such mortgages or
to the holder of any mortgage on Landlord's interest in the property, its agents
or designees. Landlord shall be allowed to take all material into and upon the
demised premises that may be required for the repairs or alterations above
mentioned as the same is required for such purpose without the same constituting
an eviction of Tenant in whole or in part, and the rent reserved shall in no
wise xxxxx, except as otherwise provided in this Lease, while said repairs or
alterations are being made, by reason of loss or interruption of the business of
Tenant because of the prosecution of any such work, provided Landlord diligently
proceeds therewith. Landlord shall exercise reasonable diligence so as to
minimize the disturbance.
16.2. Landlord reserves the right, without the same constituting an
eviction and without incurring liability to Tenant therefor, to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairways, toilets and other public parts of the Building;
provided, however, that access to the Building shall not be cut off and that
there shall be no unreasonable obstruction of access to the demised premises or
unreasonable interference with the use or enjoyment thereof.
16.3. If Tenant shall not be personally present to open and permit an entry
into the demised premises at any time when for any reason an entry therein shall
be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (if during such entry Landlord's 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.
16.4. Tenant reserves the right to require, except in an emergency, that
Landlord or any representative, agent or employee of Landlord shall be
accompanied by a representative, agent or employee of Tenant while examining the
demised premises.
ARTICLE 17
CERTIFICATE OF OCCUPANCY
17.1. Tenant will not at any time use or occupy the demised premises in
violation of the Certificate of Occupancy issued for the Building. Landlord will
make no changes in the Certificate of Occupancy of the Building that will
prevent Tenant from using the demised premises for general and executive
offices.
ARTICLE 18
BANKRUPTCY
18.1. Subject to the provisions of Section 18.3 hereof, if at any time
prior to the Commencement Date there shall be filed by or against Tenant in any
court pursuant to any statute either of the United States or of any State a
petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or a trustee of all or a portion of Tenant's property,
or if Tenant makes an assignment for the benefit of creditors, or petitions for
or enters into an arrangement with creditors, this Lease shall ipso facto be
cancelled and terminated, in which event neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or of an order of any court
shall be entitled to possession of the demised premises and Landlord, in
addition to the other rights and remedies given by Section 18.4 hereof and by
virtue of any other provision herein or elsewhere in this Lease contained or by
virtue of any statute or rule of law, may retain as liquidated damages any rent,
security deposit or monies received by it from Tenant or others in behalf of
Tenant.
18.2. Subject to the provisions of Section 18.3 hereof, if at the
Commencement Date or if at any time during the term hereby demised there shall
be filed by or against Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or if Tenant makes an assignment for the benefit
of creditors, or petitions for or enters into an arrangement with creditors,
Landlord may at Landlord's option, serve upon Tenant or any such trustee,
receiver, or assignee, a notice in writing stating that this Lease and the term
hereby granted shall cease and expire on the date specified in said notice,
which date shall be not less than ten (10) days after the serving of said
notice, and this Lease and the term hereof shall then expire on the date so
specified as if that date had originally been fixed in this Lease as the
expiration date of the term herein granted. Thereupon, neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or of an order
of any court shall be entitled to possession or to remain in possession of the
demised premises but shall forthwith quit and surrender the demised premises,
and Landlord, in addition to the other rights and remedies given by Section 18.4
hereof and by virtue of any other provision herein or elsewhere in this Lease
contained or by virtue of any statute or rule of law, may retain as liquidated
damages any fixed annual rent, additional rent, security deposit or monies
received by it from Tenant or others in behalf of Tenant.
18.3. In the event that during the periods set forth in Sections 18.1 and
18.2 hereof there shall be instituted against Tenant an involuntary proceeding
for bankruptcy, insolvency, reorganization or any other relief described in
Section 18.1 and/or 18.2 hereof, Tenant shall have ninety (90) days in which to
vacate or stay the same before this Lease shall terminate or before Landlord
shall have any right to terminate this Lease, provided the fixed annual rent and
additional rent then in arrears, if any, are paid within fifteen (15) days after
the institution of such proceeding, and further provided that the fixed annual
rent and additional rent which shall thereafter become due and payable are paid
when due, and Tenant shall not otherwise be in default in the performance of the
terms and covenants of this Lease.
18.4. In the event of the termination of this Lease pursuant to Section
18.1, 18.2 or 18.3 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the then fair and reasonable rental value of the demised
premises for the same period, if lower than the rent reserved at the time of
termination. If such demised premises or any part thereof be re-let by Landlord
for the unexpired term of said Lease, or any part thereof, before presentation
of proof of such liquidated damages to any court, compression or tribunal, the
amount of rent reserved upon such re-letting shall be prima facie the fair and
reasonable rental value for the part or the whole of the demised premises so re-
let during the term of the re-letting. Nothing herein contained shall limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
ARTICLE 19
DEFAULT
(i) Tenant shall default in the payment of the fixed annual rent reserved
herein or any item of additional rent herein provided or any other payment
herein provided, or if Tenant shall be in default with respect to any other
lease between Landlord or any affiliate of Landlord and Tenant, then upon
Landlord serving a written fifteen (15) days' notice upon Tenant specifying the
nature of said default and upon expiration said fifteen (15) day period, if
Tenant shall have failed to remedy such default, or
(ii) Tenant defaults in fulfilling any of the covenants of this Lease,
other than the payment of fixed annual rent or additional rent (for default of
which clause (i) of this Section 19.1 is applicable), or if the demised premises
are abandoned, then, in any one or more of such events, upon Landlord serving a
written thirty (30) days' notice upon Tenant specifying the nature of said
default and upon the expiration of said thirty (30) days, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of such a nature that the same cannot be completely cured
or remedied within said thirty (30) day period and if Tenant shall not have
diligently commenced to take action towards curing such default within such
thirty (30) day period and shall not thereafter with reasonable diligence and in
good faith proceed to remedy or cure such default (the aforesaid thirty (30)
days' notice and time to cure shall be ten (10) days rather than thirty (30),
with respect to default by Tenant under Article 17 hereof, Certificate of
Occupancy, or Article 36 hereof, Certificate of Tenant), or
(iii) any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the demised premises shall be occupied by someone
other than Tenant and such occupancy shall continue for a period of thirty (30)
days after written notice from Landlord, or
(iv) any default shall occur under that certain lease between Landlord and
Tenant entered into as of December 31, 1994 for the retail space in the Building
(the "Retail Space Lease"), then Landlord may serve a written five (5) days'
notice of cancellation of this Lease upon Tenant, and, upon the expiration of
said five (5) days, this Lease and the term hereunder shall end and expire as
fully and completely as if the date of expiration of such five (5) day period
were the day herein definitely fixed for the end and expiration of this Lease
and the term hereof and Tenant shall then quit and surrender the demised
premises to Landlord but Tenant shall remain liable as hereinafter provided.
19.2. If the notices provided for in Section 19.1 hereof shall have been
given, and the term shall expire as aforesaid, Landlord may, without notice, re-
enter the demised premises either by force or otherwise, and dispossess Tenant,
the legal representatives of Tenant or other occupant of the demised premises,
by summary proceedings or otherwise, and remove their effects and hold the
demised premises as if this Lease had not been made, and Tenant hereby waives
the service of notice of intention to re-enter or to institute legal proceedings
to that end.
19.3. Notwithstanding any expiration or termination prior to the Lease
expiration date as set forth in this Article 19, Tenant's obligation to pay any
and all fixed annual rent and additional rent under this Lease shall continue to
and cover all periods up to
the date provided in this Lease for the expiration of the term hereof.
19.4. Notwithstanding the provisions of Section 9.1 hereof, Tenant, at its
own cost and expense, in its name and/or (wherever necessary) Landlord's name,
may contest, in any manner permitted by law (including appeals to a court, or
governmental department or authority having jurisdiction in the matter), the
validity or the enforcement of any governmental act, regulation or directive
with which Tenant is required to comply pursuant to this Lease, and may defer
compliance therewith, provided that:
(a) such non-compliance shall not subject Landlord to criminal
prosecution or subject the land and/or Building of the building project to
lien or sale;
(b) if such deferral of compliance could result in loss or injury to
Landlord, such non-compliance shall not be in violation of any fee
mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) if such deferral of compliance could result in loss or injury to
Landlord, Tenant shall first deliver to Landlord a surety bond issued by a
surety company of recognized responsibility, or other security satisfactory
to Landlord, indemnifying and protecting Landlord against any loss or
injury by reason of such non-compliance; and
(d) Tenant shall promptly and diligently prosecute such contest.
Landlord, without expense or liability to it, shall cooperate with Tenant
and execute any documents or pleadings required for such purpose, provided that
Landlord shall reasonably be satisfied that the facts set forth in any such
documents or pleadings are accurate.
19.5. If Tenant shall not pay fixed annual rent or additional rent owed
under Articles 4, 5, 6 and 7 hereof within three (3) days after the same shall
be due hereunder, or the fourth day after same shall be due hereunder if a
holiday occurs during such three day periods (such third day hereinafter called
"Third Day Notice Date"), Tenant shall pay to Landlord a late charge in an
amount equal to the Prime Rate (as that term is defined in Section 25.7 hereof)
for the period from the date on which the fixed annual rent or additional rent
payment was due until the date of payment thereof, provided however, that
Landlord shall have given to Tenant either oral or written notice of such
failure to pay such fixed annual rent or additional rent on the Third Day Notice
Date after such amounts are due hereunder. In the event that Landlord fails to
give such oral or written notice to Tenant, then there shall be credited against
the aforesaid late charge an amount equal to the number of days occurring
between the Third Day Notice Date and the day such notice is actually given.
19.6. In the event that Tenant disputes the amount of additional rent owed
to Landlord under Articles 4, 5, 6 or 7 hereof, and it is determined that Tenant
has in fact overpaid such additional rent under such aforesaid provisions of the
Lease, the amount of such overpayment shall be repaid to Tenant with interest at
the Prime Rate for the period from the date of such overpayment to the date of
its repayment.
ARTICLE 20
REMEDIES OF LANDLORD; WAVER OF REDEMPTION
20.1. In case of any such re-entry, expiration and/or dispossess by summary
proceedings or otherwise as set forth in Article 19 hereof (a) the rent shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, together with such expenses, as Landlord may incur for legal
expenses, reasonable attorneys' fees, brokerage, and/or putting the demised
premises in good order, or for preparing the same for re-rental; (b) Landlord
may re-let the demised premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this Lease and may grant concessions or free rent; and
(c) Tenant shall also pay Landlord as liquidated damages for the failure of
Tenant to observe and perform said Tenant's covenants herein contained, the
amounts provided for in either item (1) or, at the election of Landlord, item
(2) and, in addition thereto, the amounts provided for in item (3). Said items
are as follows:
(1) A sum which, at the time of such expiration or re-entry, as the
case may be, represents the then value (using a
discount rate of ten (10%) percent per annum) of the excess of the
aggregate of the fixed annual rent and any regularly payable additional
rent hereunder which would have been payable by Tenant for the period
commencing with such expiration or re-entry, as the case may be, and ending
on the originally fixed expiration date of the term of this Lease, over the
aggregate rental value of the demised premises for the same period (which
sum is sometimes hereinafter called "the lump sum payment").
(2) Sums equal to any deficiency between the rent hereby reserved
and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for
each month of the period which would otherwise have constituted the balance
of the term of this Lease. The failure or refusal of Landlord to re-let the
demised premises or any parts thereof shall not release or affect Tenant's
liability for damages. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent days specified in this Lease and any
suit or proceeding brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month by a similar suit or proceeding.
(3) In computing such liquidated damages there shall be added to the
said deficiency, or lump sum payment, as the case may be, such expenses as
Landlord may incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage, and for keeping the demised premises
in good order or for preparing the same for re-letting.
If Landlord elects to physically occupy and use all or any part of the
demised premises for Landlord's own business use for a period in excess of
fifteen (15) days, there shall be allowed as a credit against Tenant's
obligation to pay rent or damages hereunder the reasonable value of such use for
the period of time of any such occupancy.
In no event shall Tenant be entitled to receive the excess, if any, of any
rentals from re-letting over the sums payable by Tenant to Landlord hereunder,
nor shall Tenant be entitled in any suit for the collection of damages pursuant
to this Article 20 to a credit in respect of rentals from re-letting except to
the extent that such rentals are actually received by Landlord. No such re-
letting shall constitute or be deemed to constitute a surrender or the
acceptance of a surrender.
Landlord, at Landlord's option, may make such alterations, repairs,
replacements and/or decorations in the demised premises as Landlord, in
Landlord's sole judgment, considers advisable and necessary for the purpose of
re-letting the demised premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure or refusal to re-let the demised premises or any parts
thereof, or, in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof,
Landlord shall have the right of injunction and the right to invoke any remedy
allowed at law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in this Lease of any particular
remedy, shall not preclude Landlord from any other remedy, in law or in equity.
20.2. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the demised premises, by reason of the violation by Tenant of any
of the covenants and conditions of this Lease or otherwise.
ARTICLE 21
FEES AND EXPENSE; INTEREST
21.1. 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, (a) Landlord may
remedy such default for the account of Tenant, immediately and without notice in
case of emergency, or in any other case only provided that Tenant shall fail to
remedy such default with all reasonable dispatch after Landlord shall have
notified Tenant in writing of such default and the applicable grace period for
curing such default shall have expired; and (b) if Landlord makes any reasonable
expenditures or incurs any reasonable obligations for the payment of money in
connection with such default including, but not limited to, reasonable
attorneys' fees in instituting, prosecuting or defending any action or
proceeding, such sums paid or obligations incurred, with interest at the Prime
Rate, shall be deemed to be additional rent hereunder and shall be paid by
Tenant to Landlord upon rendition of a xxxx to Tenant therefor.
ARTICLE 22
NO REPRESENTATIONS BY LANDLORD
22.1. Landlord or Landlord's agents have made no representations or
promises with respect to the said Building or demised premises except as herein
expressly set forth. ARTICLE 23
23.1. Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the demised premises, broom clean,
in good order and condition, ordinary wear and tear and damage by fire, the
elements or other casualty excepted, and Tenant shall remove all of its property
as herein provided. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease. If
said termination date shall not fall on a business day, Tenant's obligation
under the first sentence of this Section shall be performed on the next
succeeding business day.
ARTICLE 24
QUIET ENJOYMENT
24.1. 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 hereby demised, subject, nevertheless,
to the terms and conditions of this Lease, and to the ground leases, underlying
leases and mortgages referred to in this Lease .ARTICLE 25
DEFINITIONS
25.1. The term "Landlord" as used in this Lease means only the owner, or
the mortgagee in possession, for the time being of the land and Building (or the
owner of a lease of the Building or of the land and Building), so that in the
event of any transfer of title to said land and Building or said lease; or in
the event of a lease of the Building, or of the land and Building, upon
notification to Tenant of such transfer or lease the said transferor landlord
shall be and hereby is entirely freed and relieved of all existing or future
covenants, obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest, or between the
parties and the transferee of title to said land and Building or said lease, or
the said lessee of the Building, or of the land and Building, that the
transferee or the lessee has assumed and agreed to carry out any and all such
covenants, obligations and liabilities of Landlord hereunder.
25.2. The words "re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
25.3. The term "business days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the Federal, State or local
governments as legal holidays as well as all other days recognized as holidays
under applicable union contracts.
25.4. Except as otherwise specifically provided in this Lease, whenever
payment of interest is required by the terms hereof, it shall be computed as
provided in Section 25.7.
25.5. Intentionally Omitted.
25.6. The term 'Business Hours" shall mean the hours from 8 A.M. to 6 P.M.
on business days, as that term is hereinabove defined.
25.7. The term "Prime Rate' shall mean the prime commercial loan rate of
Chemical Bank, to large business borrowers for short-term borrowings as in
effect from time to time, which Prime Rate shall change as and when said prime
commercial loan rate shall change.
ARTICLE 26
ADJACENT EXCAVATION- - SHORING
26.1. If an excavation or other substructure work shall be made upon land
adjacent to the demised 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 demised premises for the purpose of doing such work as
shall be necessary to preserve the wall of or the Building of which the demised
premises form a part 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.
ARTICLE 27
RULES AND REGULATIONS
27.1. Tenant and Tenant's servants, employees and agents shall observe
faithfully and comply strictly with the Rules and Regulations set forth in
Exhibit C attached hereto and made a part hereof entitled "Rules and
Regulations" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant.
Nothing in this Lease contained shall be construed to impose upon Landlord
any duty or obligation to enforce the Rules and Regulations or the terms,
covenants or conditions in any other lease, against any other tenant of the
Building, and Landlord shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
Landlord will enforce the Rules and Regulations so that they will not be applied
in a discriminatory manner against Tenant.
Landlord shall not unreasonably withhold from Tenant any approval provided
for in the Rules and Regulations and shall exercise its judgment in good faith.
ARTICLE 28
NO WAIVER
28.1. No agreement to accept a surrender of this Lease 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 demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
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. Except as
provided in Section 27.1 hereof, 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 herein, or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the Rules and Regulations set
forth herein, 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 the account of the earliest stipulated rent, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment of 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.
28.2. This Lease contains the entire agreement between the parties, and 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.
ARTICLE 29
WAIVER OF TRIAL BY JURY
29.1. Landlord and Tenant do hereby 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
demised premises, and/or any other claims (except claims for personal injury or
property damage), and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of rent, Tenant will not interpose and does hereby
waive the right to interpose any counterclaim of whatever nature or description
in any such proceeding.
ARTICLE 30
INABILITY TO PERFORM
30.1. If, by reason of (1) strike, (2) labor troubles, (3) governmental
pre-emption in connection with a national emergency, (4) any rule, order or
regulation of any governmental agency, (5) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, or (6) any
cause beyond Landlord's reasonable control, Landlord shall be unable to fulfill
its obligations under this Lease or shall be unable to supply any service which
Landlord is obligated to supply, this Lease and Tenant's obligation to pay rent
hereunder shall in no wise be affected, impaired or excused; provided that upon
the learning of the happening of any of the foregoing conditions, Landlord shall
notify Tenant within a reasonable period of time of such event and, if
ascertainable, its estimated duration.
ARTICLE 31
NOTICES
31.1. Any notice or demand, consent, approval or disapproval, or statement
required to be given by the terms and provisions of this Lease, or by any law or
governmental regulation, either by Landlord to Tenant or by Tenant to Landlord,
shall be in writing. Unless otherwise required by Such law or regulation, such
notice or demand shall be deemed to have been served and given by Landlord and
received by Tenant when Landlord shall have deposited such notice or demand by
registered or certified mail enclosed in a securely closed post-paid wrapper, in
a United States Government general or branch post office, or official depository
with the exclusive care and custody thereof, addressed to Tenant, at the address
set forth after Tenant's name on page I of this Lease. After Tenant shall occupy
the demised premises, the address of Tenant for notices, demands, consents,
approvals or disapprovals shall be the Building. Such notice, demand, consent,
approval or disapproval shall be deemed to have been served and given by Tenant
and received by Landlord when Tenant shall have deposited such notice or demand
by registered or certified mail enclosed in a securely closed post-paid wrapper,
in a United States Government general or branch post office or, official
depository with the exclusive care and custody thereof, addressed to Landlord,
c/o Fisher Brothers at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx with a copy to Xxxxxx
Brothers, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Counsel. Either party
may, by notice as aforesaid, designate a different address or addresses for
notices, demands, consents, approvals or disapprovals.
31.2. In addition to the foregoing, either Landlord or Tenant may, from
time to time, request in writing that the other party serve a copy of any notice
or demand, consent, approval or disapproval, or statement, on one other person
or entity designated in such request, such service to be effected as provided in
Section 31.1 hereof.
ARTICLE 32
SERVICES
32.1. Landlord shall provide necessary elevator facilities including access
to the demised premises by passenger elevators and reasonable freight elevator
service, on business days from 8:00 A.M. to 6:00 P.M. and shall have sufficient
passenger elevators available at all other times. At Landlord's option, the
elevators shall be operated by automatic control or by manual control, or by a
combination of both of such methods. Landlord will provide Tenant with after-
hours freight elevator service at Landlord's then established rates in the
Building for same (which Landlord covenants shall be reasonable) and pursuant to
Landlord's Rules and Regulations.
32.2. (a) Landlord shall, through the air-conditioning system of the
Building, furnish such air-conditioning, ventilation and heating to the demised
premises, on an all-year-round basis, as Tenant shall require (subject to the
design limitations of the systems) for the comfortable occupancy of the demised
premises, and which air-conditioning, heating and ventilating standard shall be
no less than the standard presently being maintained in the Building during such
hours on business days as Landlord shall from time to time determine, by notice
to Tenant, to be the regular hours of operation of such systems. Such regular
hours of operation shall be the hours from 8:00 A.M. to 6:00 P.M. and shall
exclude the hours between 9:00 P.M. and 8:00 A.M.
(b) Landlord will maintain the air-conditioning system in a manner
befitting a first class building and will use all reasonable care to keep
the same in proper and efficient operating condition.
(c) Tenant agrees to keep and cause to be kept closed all the windows
in the demised premises at all times, and Tenant agrees to cooperate
reasonably with Landlord and to abide by all the regulations and
requirements which Landlord may reasonably prescribe for the proper
functioning and protection of said air-conditioning systems.
(d) Tenant acknowledges it has been advised that the Building has
sealed windows and that therefore, the air in the demised premises can
become stale and even unbreathable when the ventilating, air-conditioning,
and heating system is not operating. Tenant agrees that Landlord shall not
be obligated to operate such ventilating, air-conditioning, and heating
system after or before Landlord's regular hours of operation as provided in
subsection 32.2 (a) hereof, except after prior written notice from and
payment by Tenant as hereinafter specified. Tenant agrees that Landlord's
failure to operate such system in the absence of such notice and payment
shall not be deemed a partial or other eviction, or disturbance of Tenant's
use, enjoyment, or possession of the demised premises, and shall not render
Landlord liable for damages, by abatement of rent or otherwise, and Tenant
shall not be relieved from any obligation under this Lease.
Landlord will upon reasonable advance notice provide Tenant with
ventilation, air-conditioning, or heating at times other than Landlord's regular
hours of operation of said systems as provided in subsection 32.2 at the
following current rate: $700 per hour per air conditioning zone in the Building
for air conditioning, and $312 per hour per air conditioning zone in the
Building for heating (which charges shall be increased annually based upon the
percentage increase in Expenses over and above the Expenses for the 1994
calendar year), payable by Tenant as additional rent when billed.
32.3. Subject to its obligations under Section 30.1 hereof, Landlord
reserves the right to stop services on the air-conditioning, elevator, plumbing,
electric and other systems when necessary by reason of accident or emergency or
for repairs, alterations, replacements or improvements, provided that except in
case of emergency, Landlord will notify Tenant in advance, if possible, of any
such stoppage and, if ascertainable, its estimated duration, and will proceed
diligently with the work necessary to resume such service as promptly as
possible and in a manner so as to minimize interference with the Tenant's use
and enjoyment of the demised premises.
32.4. Landlord will supply Tenant at Landlord's expense with an adequate
quantity of hot and cold water for ordinary lavatory, drinking, cleaning and
pantry purposes. Should Tenant require or consume water for any additional
purpose, Tenant shall pay Landlord a reasonable charge therefor and for any
required pumping or heating thereof, as well as any taxes, sewer rents or other
charges which may be imposed by any governmental authority based on the quantity
of water so used by Tenant. Landlord may elect to install a water meter, at
Tenant's expense and thereby measure Tenant's water consumption for all such
additional purposes, said meter to be maintained at Tenant's expense.
32.5. It is expressly agreed that only Landlord or any one or more persons,
firms or corporations authorized in writing by landlord will be permitted to
furnish: laundry, linen, towels, drinking water and ice to tenants and licensees
in the Building.
Landlord may fix, in its own absolute discretion, at any time and from time
to time, the hours during which and regulations under which such supplies and
services are to be furnished. Landlord expressly reserves the right to act as or
to designate, at any time and from time to time, an exclusive supplier of all or
any one or more of the said supplies and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers; and Landlord furthermore expressly reserves the right to exclude from
the Building any person, firm or corporation attempting to furnish any of said
supplies or services not so designated by Landlord.
32.6. It is agreed that Landlord and Tenant shall cooperate and consult
with each other with respect to the designation of one or more persons, firms or
corporations as exclusive suppliers or otherwise, to sell, deliver or furnish
any food or beverages for consumption within the demised premises and to exclude
from the demised premises any person, firm or corporation attempting to deliver
or purvey any such food or beverages not so designated by Landlord. It is
understood, however, that Tenant or regular office employees of Tenant who are
not employed by any supplier of such food or beverages or by any person, firm or
corporation engaged in the business of purveying such food or beverages, may
personally bring food or beverages into the Building for consumption within the
demised premises by Tenant or employees of Tenant, but not for resale to or for
consumption by any other tenant, or the employees or guests of any other tenant.
Landlord and Tenant will cooperate to fix from time to time, the hours during
which, and the regulations under which food and beverages may be brought into
the Building by Tenant or its regular employees, taking into consideration the
needs of the Building and the desires of the other tenants at the Building. The
provisions of this section 32.6 shall not apply to food and beverages for
Tenant's kitchen, pantries or cafeterias.
32.7. Tenant acknowledges and understands that the cleaning contractor for
the Building is an entity under common control with Landlord and Tenant agrees
to employ said contractor or such other contractor as Landlord may from time to
time designate for all waxing, polishing, shampooing, overhead lamp replacement,
xxxxxx and matron service and other special cleaning or maintenance work of the
demised premises and of Tenant's furniture, fixtures and equipment. Landlord
represents that the quality thereof and the charges therefor shall be generally
comparable to that of other contractors doing comparable work in comparable
buildings in the area of the Building using personnel of the same union, if any,
as the cleaning contractor uses for the Building with equivalent supervision and
security. Tenant shall not employ any other such contractor or individual
without Landlord's prior written consent, but nothing herein contained shall
prohibit Tenant from performing such work for itself by use of its own regular
employees if the cleaning contractor cannot accommodate Tenant by performing
such work.
32.8. Landlord will not be required to furnish any other services, except
as provided in this Article 32, and except that Landlord agrees to provide on
business days the cleaning set forth in Exhibit D hereof. Landlord shall have no
obligation to perform cleaning services in those portions of the demised
premises which are below grade, bank space, or which are used for the
preparation, dispensing or consumption of food or beverages, for storage,
filing, shipping or mailing purposes, for the operation of computer, data and
word processing, reproduction or similar equipment or as private lavatories or
toilets, all of which portions Tenant shall cause to be kept clean at Tenant's
cost and expense. Tenant shall pay to Landlord, on demand, a reasonable charge
for the removal from the demised premises of any (i) refuse and rubbish of
Tenant as shall not be contained in waste receptacles of customary office size,
(ii) for the removal of refuse and rubbish of Tenant's vending machines and of
eating facilities requiring special handling (known as wet garbage) and (iii)
wet refuse or waste (including bottles and cans) required by law to be placed in
special receptacles for recycling. Landlord, its cleaning contractor and their
employees shall have after-hours access to the demised premises and the use of
Tenant's light, power and water in the demised premises as may be reasonably
required for the purpose of cleaning the demised premises.
If Tenant is permitted hereunder to and does have a separate area for the
preparation or consumption of food in the demised premises, Tenant shall pay to
Landlord the cost of employing on a regular basis, an exterminator to keep the
demised premises free from vermin; and Tenant shall provide a refrigerated
garbage storage room (the plans and specifications thereof to be approved by
Landlord such approval not to be unreasonably withheld) or other means of
disposing of garbage reasonably satisfactory to Landlord.
Notwithstanding anything to the contrary contained in the Section 32.8,
Landlord shall not be obligated and shall not
provide any cleaning services to the demised premises during the term of this
Lease unless the Cleaning Agreement is terminated and Landlord is obligated to
clean the demised premises and Tenant pays for such cleaning, all as more
particularly set forth in Section 6.2 and Section 6.3 hereof and the provisions
of this Section 32.8 as the same relate to cleaning and rubbish removal shall
not apply to Tenant as long as Tenant is receiving cleaning services pursuant to
the Cleaning Agreement.
32.9. Landlord shall manage and maintain the Building as a first class
office building. Tenant and its employees shall occupy and use the demised
premises in a manner befitting such building.
32.10. Landlord agrees to supply Tenant with condenser water for the
operation of air-conditioning equipment installed by Tenant to the extent such
condenser water is available considering the fulfillment of commitments to other
tenants of the Building. Tenant shall pay charges for such condenser water as
mutually agreed between Landlord and Tenant.
ARTICLE 33
ARBITRATION
33.1. In each case specified in this Lease in which resort to arbitration
shall be required, such arbitration (unless otherwise specifically provided in
other Sections of this Lease) shall be in New York City in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and the
provisions of this Lease, and Judgment upon the award rendered by the
arbitrators may be entered in any court having Jurisdiction thereof.
ARTICLE 34
CONSENTS AND APPROVALS
34.1. Except as may otherwise herein be provided, in any case where the
provisions of this Lease, including any Exhibit hereto and the Rules and
Regulations hereunder, require the consent or approval of either Landlord or
Tenant and provide that such consent or approval shall not be unreasonably
withheld, refused and/or delayed, and in any case where Tenant or Landlord is
required to do anything to the satisfaction of the other with such expression of
satisfaction not to be unreasonably withheld, refused or delayed, then with
respect to any dispute which shall arise as to the reasonableness of either
party not withholding, refusing or delaying such consent, approval or expression
of satisfaction, such dispute shall be determined by arbitration as provided in
Article 33 of this Lease.
The determination by the arbitrators (i) if they find a party unreasonably
withheld, refused or delayed such consent or approval, shall be deemed to be the
consent or approval of that party, and (ii) shall be applicable only with
respect to the particular action or matter to which the consent, approval or
expression of satisfaction of the other to any other action or matter.
34.2. Wherever in this Lease Landlord's consent or approval is required
(whether or not Landlord has agreed to be reasonable), 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 delayed its consent or approval.
The provisions of this Section shall not prohibit an action or proceeding to
enforce any such provision, by specific performance, injunction or declaratory
judgment.
ARTICLE 35
INDEMNITY
35.1. Tenant shall indemnify, defend and save Landlord harmless from and
against any liability or expense which is not the result of Landlord's
negligence, willful act or willful omission and which arises from the use or
occupation of the demised premises by Tenant or anyone in the demised premises
with Tenant's permission, or from any breach of this Lease by Tenant.
ARTICLE 36
CERTIFICATE OF TENANT
36.1. Tenant shall, without charge, at any time and from time to time,
within ten (10) days after request by Landlord, deliver a written instrument to
Landlord or any other person, firm or corporation specified by Landlord, duly
executed and acknowledged, certifying:
(a) that this Lease is unmodified and in full force and effect or, if
there has been any modification, that the same is in full force and effect
as modified and stating any such modification;
(b) whether the term of this Lease has commenced and rent become
payable thereunder; and whether Tenant has accepted possession of the
demised premises;
(c) whether or not, to the best of Tenant's knowledge, there are then
existing any defenses or offsets which are not claims under paragraph (e)
of this Section 36.1 against the enforcement of any of the agreements,
terms, covenants, or conditions of this Lease and any modification thereof
upon the part of Tenant to be performed or complied with, and, if so,
specifying the same; except that with respect to the certification to be
given to the mortgagee under the original first institutional permanent
mortgage on the fee or leasehold of the Building, Tenant shall affirm that
any dispute with the Landlord is a claim under this Lease and subordinate
to the rights of the holder of the said mortgage and that any such claim is
not an offset or defense to the enforcement of this Lease, and Tenant shall
assert no offset to or defense against the enforcement of the Lease or its
validity with respect to matters in existence at the time Tenant took
possession of the demised premises and which were known to or which were
then readily ascertainable by Tenant, any such matter to be the basis of a
claim only, which claim shall be enforced solely by money judgment and/or
specific performance against the Landlord named herein;
(d) the dates to which the fixed annual rent, and additional rent, and
other charges hereunder, have been paid; and
(e) whether or not Tenant has made any claim against Landlord under
this Lease and, if so, the nature thereof and the dollar amount, if any, of
such claim.
36.2. Tenant agrees that, except for the first month's rent paid pursuant
to Section 1.1 hereof, it will pay no rent under this Lease more than thirty
(30) days in advance of its due date, if so restricted by any existing or future
ground lease or mortgage to which this Lease is subordinated or by an assignment
of this Lease to the ground lessor or the holder of such mortgage, and, in the
event of any act or omission by Landlord, Tenant will not exercise any right to
terminate this Lease or to remedy the default and deduct the cost thereof from
rent due hereunder until Tenant shall have given written notice of such act or
omission to the ground lessor and to the holder of any mortgage on the fee or
the ground lease who shall have furnished such lessor's or holder's last address
to Tenant, and until a reasonable time for remedying such act or omission shall
have elapsed following the giving of such notices, during which time such lessor
or holder shall have the right, but shall not be obligated, to remedy or cause
to be remedied such act or omission.
ARTICLE 37
NAME OF BUILDING; SIGNAGE
37.1. Landlord shall have the right to change the name of the Building or
change the designated address of the Building, subject, however, to the rights
of existing tenants of the Building.
37.2. (a) Upon Tenant's occupation of the demised premises, Tenant shall
have the right to (i) affix brass identification plaques on two (2) of the
exterior columns of the Building in a size, content and location reasonably
acceptable to Alliance Capital Management L.P. ("Alliance") and Landlord or (ii)
place other means of identification as is reasonably acceptable to Alliance and
Landlord.
(b) At such time as Tenant occupies the Retail Space in the Building
under the Retail Space Lease or if Tenant does not occupy the Retail Space
in the Building within two (2) years after it becomes available for
occupancy by Tenant, Tenant shall remove any signage installed in
accordance with this Section 37.2 and restore the location where such
signage was placed to its original condition.
ARTICLE 38
MEMORANDUM OF LEASE
38.1. Tenant and Landlord shall each, at the request of the other, execute
and deliver a statutory form of memorandum of this Lease for the purpose of
recording, but said memorandum of this Lease shall not in any circumstances be
deemed to modify or to change any of the provisions of this Lease. Said
memorandum shall not specify the rent but shall contain such other provisions as
either party shall reasonably request. Tenant shall not record this Lease
without the consent of Landlord.
ARTICLE 39
BROKERAGE
39.1. Tenant represents and warrants that it neither consulted nor
negotiated with any broker or finder with regard to the demised premises other
than Xxxxxx Brothers -Management Company and Xxxxxxx & Xxxxxxxxx, Inc. Tenant
agrees to indemnify, defend and save Landlord harmless from and against any
claims for fees or commissions by anyone other than Xxxxxx Brothers -Management
Company and Xxxxxxx & Xxxxxxxxx, Inc. with whom Tenant has dealt in connection
with the demised premises or this Lease and which are the result of the acts of
Tenant.
ARTICLE 40
INVALIDITY OF ANY PROVISION
40.1. If any term, covenant, condition or provision of this Lease or the
application thereof to any circumstance or to any person, firm or corporation
shall be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Lease or the application thereof to any
circumstances or to any person, firm or corporation other than those as to which
any term, covenant, condition or provision is held invalid or unenforceable,
shall not be affected thereby and each remaining term, covenant, condition and
provision of this Lease shall be valid and shall be enforceable to the fullest
extent permitted by law.
40.2. If any term, covenant, condition or provision of this Lease is found
invalid or unenforceable to any extent, by a final judgment or award which shall
not be subject to change by any appeal, then either party to this Lease may
initiate an arbitration in accordance with the provisions of Article 33 hereof,
which arbitration shall be by three (3) arbitrators each of whom shall be
knowledgeable in the operation and management of major office buildings in
Manhattan. Said arbitrators shall devise a valid and enforceable substitute
term, covenant, condition or provision for this Lease which shall as nearly as
possible carry out the intention of the parties with respect to the term,
covenant, condition or provision theretofore found invalid or unenforceable.
Such substitute term, covenant, condition or provision, as determined by the
arbitrators, shall thereupon be deemed a part of this Lease.
ARTICLE 41
MISCELLANEOUS
41.1. 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.
41.2. It is understood and agreed that this Lease is submitted to Tenant on
the understanding that it shall not be considered an offer and shall not bind
Landlord in any way whatsoever until (i) Tenant has duly executed and delivered
duplicate originals to Landlord, and (ii) Landlord has executed and delivered
one of said fully executed originals to Tenant.
41.3. If the demised premises shall not be available and ready for
occupancy by Tenant on the specific date hereinbefore designated for the
commencement of the term of this Lease for any reason whatsoever, then this
Lease shall not be affected thereby but, in such case, said specific date shall
be deemed to be postponed until the date when the demised premises shall be
available for occupancy by Tenant, and Tenant shall not be entitled to
possession of the demised premises until the same are available and ready for
occupancy by Tenant, provided, however, that Tenant shall have no claim against
Landlord, and Landlord shall have no liability to Tenant by reason of any such
postponement of said specific date, and the parties hereto further agree that
any failure to have the demised premises available and ready for occupancy by
Tenant on said specific date or on the Commencement Date shall in no wise affect
the obligations of Tenant hereunder nor shall the sale be construed in any wise
to extend the term of this Lease and furthermore, this Section 41.3 shall be
deemed to be an express provision to the contrary of Section 223-a of the Real
Property Law of the State of New York and any other law of like import now or
hereafter in force.
41.4. Landlord shall make arrangements with the operator of the garage in
the Building to make available to Tenant, at no cost to Tenant, pursuant to such
garage operators standard terms, parking for up to two (2) automobiles by Tenant
and Tenant's employees and at a discount of twenty-five (25%) percent off such
garage operator's regular posted rates and pursuant to its standard terms,
parking for up to eight (8) automobiles by Tenant and Tenant's employees.
41.5. Notwithstanding anything to the contrary contained in this Lease, if,
by reason of Landlord's failure to make any repairs Landlord is obligated to
make pursuant to Article 9, or Landlord's failure to supply any services
provided for in Article 32, or Landlord's failure to supply electricity as
provided for in Article 7, other than a public utility failure, or if by reason
of any act or omission of Landlord, or its agents, employees, contractors or
invitees any portion of the demised premises, other than a de minimis portion,
----------
shall become Untenantable (as hereinafter defined) and such Untenantability
shall exist for a period of fifteen (15) consecutive days after Tenant has given
Landlord written notice of such Untenantability (it being expressly understood
and agreed that no portion of the demised premises shall be considered
Untenantable unless and until Tenant shall have delivered the aforesaid notice
to Landlord indicating such Untenantability) and if such Untenantability
continues after the end of said fifteen (15) day period, then, provided Tenant
shall not have continued to use such portion of the demised premises for the
substantially normal conduct of its business during said period, the fixed
annual rent and additional rent payable hereunder shall be abated for the period
commencing on the sixteenth (16th) day of such period of Untenantability in the
proportion which the Untenantable portion of the rentable area of the demised
premises bears to the total rentable area of the demised premises and shall
continue only until the earlier of the date on which the affected portion of the
demised premises shall no longer be Untenantable or Tenant shall occupy such
portion for the substantially normal conduct of its business, regardless of any
delay by Tenant in resuming the operation of its business. As used in this
Section 41.5, the term "Untenantable" or "Untenantability" shall mean the extent
to which Tenant is actually unable to, and actually does not, use any or all of
the demised premises (other than a de minimis portion thereof) for the
substantially normal conduct of its business.
ARTICLE 42
RESTRICTIONS UPON USE
42.1. It is expressly understood that no portion of the demised premises
shall be used as, by or for a public stenographer or typist, xxxxxx shop, beauty
shop, beauty-parlor or shop, telephone or telegraph agency, telephone or
secretarial service, messenger service, travel or tourist agency, employment
agency, public restaurant or bar, commercial document reproduction or offset
printing service, public vending machines, retail, wholesale or discount shop
for sale of merchandise, retail service shop, labor union, school or classroom,
governmental or quasi-governmental bureau, department or agency, including an
autonomous governmental corporation, an advertising agency, a firm whose
principal business is real estate brokerage, or a company engaged in the
business of renting office or desk space.
ARTICLE 43
SUCCESSORS AND ASSIGNS
43.1. 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.
ARTICLE 44
LANDLORD MORE THAN ONE PERSON
44.1. Notwithstanding that Landlord is comprised of Xxxxxx and Hawaiian (i)
all payments of fixed annual rent, additional rent and other charges hereunder,
and all notices, demands, consents and other written communications required or
permitted to be given by Tenant to Landlord hereunder, shall (unless otherwise
directed in writing by both Xxxxxx and Hawaiian) be given to Xxxxxx or any agent
designated in writing by both Xxxxxx and Hawaiian, and (ii) all notices,
demands, consents and other written communications required or permitted to be
given by Landlord to Tenant hereunder (including without limitation notices of
default pursuant to Article 19) shall be given by Xxxxxx or any agent designated
in writing by both Xxxxxx and Hawaiian. Tenant shall be entitled to rely upon
and act upon any consent, notice, waiver, amendment, modification, discharge or
other action permitted or required of Landlord under this Lease, if and to the
extent the same shall be done or performed by Xxxxxx or any agent designated in
writing by both Xxxxxx and Hawaiian. Tenant, however, shall serve Xxxxxx and
Hawaiian in order to effect service of process in any action or proceeding
(including arbitration). All such payments, notices, demands, consents, and
other written communications and other actions shall be conclusively binding
upon all of the persons constituting Landlord and upon their respective heirs,
executors, administrators, legal representatives, successors and assigns if sent
to Xxxxxx or any agent designated in writing by both Xxxxxx and Hawaiian.
ARTICLE 45
EFFECTIVE DATE
45.1. Notwithstanding anything contained herein to the contrary, this
Agreement and all of the terms, provisions and conditions hereof shall be
effective as of the date (the "Effective Date") this Agreement is consented to
and approved of by the Bankers Trust Company, as trustee. If the Effective Date
shall not have occurred by February 15, 1995 Landlord or Tenant may terminate
this Agreement thereafter upon written notice to the other party, provided the
Effective Date shall not have occurred prior to the sending of the notice.
ARTICLE 46
RETAIL SPACE LEASE
46.1. Landlord and Tenant have simultaneously entered into the Retail Space
Lease covering the retail space (the "Retail Space") occupied by "Labels for
Less" on the south side of the Building. Landlord understands that Tenant would
like to occupy the Retail Space on or about January 1, 1996. Accordingly,
Landlord agrees to use its best efforts to secure the Retail Space by January 1,
1996 and agrees to offer the occupant of such space up to One Million
($1,000,000) Dollars to vacate such space by January 1, 1996. If Landlord is
unable to obtain the Retail Space for Tenant's occupancy by January 1, 1996,
then Tenant shall be entitled to a credit against the fixed annual rent payable
by Tenant hereunder in an amount equal to $2 per square foot per annum
multiplied by the rentable square feet contained in the demised premises for
calendar year 1996, $4 per square foot per annum multiplied by the rentable
square feet contained in the demised premises for calendar year 1997, $6 per
square foot per annum multiplied by the rentable square feet contained in the
demised premises for calendar year 1998 and an amount equal to $50,000 per month
for the first seven months of calendar year 1999. The foregoing credit shall be
given to Tenant, monthly, commencing January 1, 1996.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
THE XXXXXX-SIXTH AVENUE COMPANY,
Landlord
By:
HAWAIIAN SIXTH AVENUE CORP.,
Landlord
By:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, Tenant
FIRST SUPPLEMENTAL AGREEMENT
----------------------------
FIRST SUPPLEMENTAL AGREEMENT dated as of the 30th day of April, 1995,
between THE XXXXXX-SIXTH AVENUE COMPANY, a New York partnership ("Xxxxxx") with
its office c/o Fisher Brothers at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
HAWAIIAN SIXTH AVE. CORP., a New York corporation ("Hawaiian") with its office
at 1345 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter Xxxxxx and
Hawaiian are collectively called "Landlord"), and UNION BANK OF SWITZERLAND, NEW
YORK BRANCH, a Swiss banking corporation having an office at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H :
--------------------
WHEREAS:
A. Landlord and Tenant have entered into a certain lease with respect
to the entire rentable areas on the 47th through 50th floors (the "47-50 Lease")
in the building known as 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called the "Building") dated as of December 31, 1994 and a certain
lease with respect to a portion of the ground floor of the Building (the "Retail
Lease") dated as of December 31, 1994 (the 47-50 Lease and the Retail Lease, as
the same have been or may hereafter be amended, are hereinafter sometimes
collectively referred to as the "Leases") each for a term commencing and ending
as met forth in the respective lease.
B. The parties hereto desire to further modify the Leases and to
provide for (i) the inclusion in the 47-50 Lease of additional space to be
demised to Tenant consisting of the 46th floor of the Building and (ii) certain
other modifications, all as are more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. DEFINED TERMS. Except as otherwise defined herein, all terms used
-------------
in this Agreement shall have the same meanings provided in the 47-50 Lease or
the Retail Lease, as the case may be.
2. DEMISE OF ADDED SPACE. (a) Effective May 1, 1995 (the "Adjustment
---------------------
Date") and for the entire remaining term of the 47-50 Lease there shall be added
to and included in the demised premises the following additional space in the
Building, to wit:
All of the rentable space on the 46th floor of the Building (herein
called the "Added Space") as shown on the floor plan annexed hereto as Exhibit
A.
(b) Landlord does hereby lease to Tenant and Tenant does hereby lease
from Landlord the Added Space, subject and subordinate to all superior leases
and superior mortgages as provided in the 47-50 Lease and upon and subject to
all covenants, agreements, terms and conditions of the 47-50 Lease, as
supplemented by this Agreement.
3. FIXED ANNUAL RENT AND ADDITIONAL RENT.
-------------------------------------
(a) (i) In addition to the fixed annual rent payable under Section
1.l and the other provisions of the 47-50 Lease with respect to the 47th through
50th floors (the "Original Space"), Tenant shall pay fixed annual rent with
respect to the Added Space in the amount of ONE MILLION FOUR HUNDRED NINETY-TWO
THOUSAND TWO HUNDRED SIXTY DOLLARS ($1,492,260.75) per annum during the period
commencing on the Adjustment Date and ending on December 31, 2000; ONE MILLION
SIX HUNDRED EIGHTEEN THOUSAND EIGHTY SIX DOLLARS ($ 1,618,086.75) per annum
commencing January 1, 2001 and ending on December 31, 2005;ONE MILLION SEVEN
HUNDRED FORTY THREE THOUSAND NINE HUNDRED NINE DOLLARS ($1,743,909.75) per annum
commencing January 1, 2006 and ending December 31, 2010 and ONE MILLION EIGHT
HUNDRED SIXTY NINE THOUSAND SEVEN HUNDRED THIRTY TWO DOLLARS ($1,869,732.75) per
annum commencing January 1, 2011 and ending on the Expiration Date.
(b) The percentage :"7.164 percent (7.164%)" appearing in subsection
4.1(a)(ii) of the 47-50 Lease shall be changed to read "9.305 percent (9.305%)."
(c) The percentage "7.454 percent (7.454%)" appearing in subsection
5.1(a) (iv) of the 47-50 Lease shall be changed to read "9.675 percent
(9.675%)."
(d) The percentage "7.454 percent (7.454%)" appearing in subsection
6.3(a)(iv) of the 47-50 Lease shall be changed to read "9.675 percent (9.675%)."
(e) Notwithstanding anything to the contrary in this Section 3, the
fixed annual rent and additional rent payable by Tenant hereundcr shall be
abated for the period commencing on the Adjustment Date and ending on December
31, 1995. In addition, provided Tenant is not in default under the Leases,
beyond any applicable grace or cure periods, fixed annual rent shall be further
abated for the month of January in the years 1997, 1998 and 1999.
(a) Article 46 of the 47-50 Lease is hereby deemed deleted from the
47-50 Lease in its entirety.
(b) Section 1.2 of the Retail Lease is hereby deemed deleted in its
entirety.
5. BROKERAGE. Tenant represents and warrants that it neither consulted
---------
nor negotiated with any broker or finder with regard to this Agreement, other
than Xxxxxx Brothers Management Company and Xxxxxxx & Wakefield, Inc. Tenant
agrees to indemnify, defend and save Landlord harmless from and against any
claims for fees or commissions from anyone other than Xxxxxx Brothers Management
Company and Xxxxxxx & Wakefield, Inc. with whom Tenant has dealt in connection
with this Agreement and which are the result of the acts of Tenant.
6. EFFECTIVE DATE OF-AGREEMENT. This Agreement and all of the terms,
---------------------------
provisions and conditions hereof, shall be effective as of the date (the
"Effective Date") on which (a) a fully executed eleventh supplement ("Alliance
Amendment") of that certain lease between landlord and Alliance Capital
Management, L.P. ("Alliance") covering certain space in the Building is
unconditionally delivered by both Landlord and Alliance, and (b) the Bankers
Trust Company, as Trustee (the "Trustee") has consented to and approved of this
Agreement and the Alliance Amendment. If the Effective Date has not occurred by
May 1, 1995, Tenant may terminate this Agreement by written notice to Landlord
by May 15, 1995, in which event this Agreement shall automatically terminate
unless the Effective Date occurs by May 15, 1995, in which event any such notice
to terminate shall be deemed voided.
7. MISCELLANEOUS.
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(a) Except as modified, amended and supplemented by this Agreement,
the Lease and all covenants, agreements, terms and conditions thereof shall
continue in full force and effect and are hereby in all respects ratified and
confirmed.
(b) This Agreement shall not be binding upon Landlord and Tenant
unless and until it is signed by both parties hereto and a signed copy thereof
is delivered by Landlord to Tenant.
(c) This Agreement constitutes the entire agreement among the parties
hereto with respect to the matters stated herein and may not be amended or
modified unless such amendment or modification shall be in writing and signed by
the party against whom enforcement is sought.
(d) The terms, covenants and conditions contained in this Agreement
shall bind and inure to the benefit of the parties hereto and except as
otherwise provided in the Lease as hereby supplemented, their respective
successors and assigns.
(e) This Agreement shall be governed in all respects by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
By: THE XXXXXX-SIXTH AVENUE COMPANY
By: HAWAIIAN SIXTH AVENUE CORP.
By: UNION BANK OF SWITZERLAND, NEW YORK BRANCH
