AGREEMENT OF LEASE between SLG Graybar Sublease LLC Landlord and FermaVir Research, Inc. Tenant Dated as of July 1, 2005 Room 445-47 420 Lexington Avenue New York, New York
Exhibit
10.7
Execution
Counterpart
AGREEMENT
OF LEASE
between
SLG
Graybar Sublease LLC
Landlord
and
FermaVir
Research, Inc.
Tenant
Dated
as of July 1, 2005
Room
445-47
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx
TABLE
OF CONTENTS
|
TABLE
OF CONTENTS
|
1
|
|
| ARTICLE 1 |
DEMISE;
PREMISES AND PURPOSE
|
1
|
| ARTICLE 2 |
TERM
|
2
|
| ARTICLE 3 |
RENT
AND ADDITIONAL RENT
|
2
|
| ARTICLE 4 |
ASSIGNMENT/SUBLETTING
|
3
|
| ARTICLE 5 |
DEFAULT
|
8
|
| ARTICLE 6 |
RELETTING,
ETC
|
9
|
| ARTICLE 7 |
LANDLORD
MAY CURE DEFAULTS
|
10
|
| ARTICLE 8 |
ALTERATIONS
|
10
|
| ARTICLE 9 |
LIENS
|
13
|
| ARTICLE 10 |
REPAIRS
|
13
|
| ARTICLE 11 |
FIRE
OR OTHER
CASUALTY
|
14
|
| ARTICLE 12 |
END
OF TERM
|
15
|
| ARTICLE 13 |
SUBORDINATION
AND ESTOPPEL, ETC.
|
16
|
| ARTICLE 14 |
CONDEMNATION
|
18
|
| ARTICLE 15 |
REQUIREMENTS
OF LAW
|
18
|
| ARTICLE 16 |
CERTIFICATE
OF OCCUPANCY
|
19
|
| ARTICLE I7 |
POSSESSION
|
19
|
| ARTICLE 18 |
QUIET
ENJOYMENT
|
19
|
| ARTICLE 19 |
RIGHT
OF ENTRY
|
20
|
| ARTICLE 20 |
INDEMNITY
|
20
|
| ARTICLE 21 |
LANDLORD'S
LIABILITY, ETC
|
20
|
| ARTICLE 22 |
CONDITION
OF PREMISES
|
21
|
| ARTICLE 23 |
CLEANING
|
22
|
| ARTICLE 24 |
JURY
WAIVER
|
23
|
| ARTICLE 25 |
NO
WAIVER, ETC.
|
23
|
| ARTICLE 26 |
OCCUPANCY
AND USE BY TENANT
|
24
|
i
| ARTICLE 27 |
NOTICES
|
25
|
| ARTICLE 28 |
WATER
|
25
|
| ARTICLE 29 |
SPRINKLER
SYSTEM
|
25
|
| ARTICLE 30 |
HEAT,
ELEVATOR, ETC.
|
26
|
| ARTICLE 31 |
SECURITY
DEPOSIT
|
26
|
| ARTICLE 32 |
TAX
ESCALATION
|
27
|
| ARTICLE 33 |
RENT
CONTROL
|
29
|
| ARTICLE 34 |
SUPPLI
ES
|
30
|
| ARTICLE 35 |
AIR
CONDITIONING
|
31
|
| ARTICLE 36 |
SHORING
|
32
|
| ARTICLE 37 |
EFFECT
OF CONVEYANCE, ETC.
|
32
|
| ARTICLE 38 |
RIGHTS
OF SUCCESSORS AND ASSIGNS
|
32
|
| ARTICLE 39 |
CAPTIONS
|
33
|
| ARTICLE 40 |
BROKERS
|
33
|
| ARTICLE 41 |
ELECTRICITY
|
33
|
| ARTICLE 42 |
LEASE
SUBMISSION
|
38
|
| ARTICLE 43 |
INSURANCE
|
38
|
| ARTICLE 44 |
SIGNAGE
|
41
|
| ARTICLE 45 |
RIGHT
TO RELOCATE
|
.41
|
| ARTICLE 46 |
FUTURE
CONDOMINIUM CONVERSION
|
42
|
| ARTICLE 47 |
MISCELLANEOUS
|
42
|
| ARTICLE 48 |
COMPLIANCE
WITH LAW
|
44
|
| ARTICLE 49 |
RULES
AND REGULATIONS
|
45
|
ii
INDEX
OF
DEFINED TERMS
|
TERM
|
PAGE
|
|
Additional
Rent
|
2
|
|
Alterations
|
11
|
|
Base
Tax Year
|
27
|
|
Brokers
|
33
|
|
Building
|
1
|
|
Building
Cleaning Contractor
|
22
|
|
Building
Project
|
27
|
|
Commencement
Date
|
2
|
|
Comparative
Year
|
27
|
|
Cooling
Season
|
31
|
|
Declaration
|
42
|
|
Delivery
Personnel
|
1
|
|
Designated
Agent
|
3
|
|
ERIF
|
34
|
|
Excess
electricity
|
35
|
|
Existing
HVAC Equipment
|
31
|
|
Expiration
Date
|
2
|
|
Fixed
Annual Rent
|
2 |
|
HVAC
System
|
31
|
|
Landlord
|
1
|
|
Landlord's
Electrical Consultant
|
35
|
|
Landlord's
Relocation Work
|
41
|
|
Landlord's
Restoration Work
|
14
|
|
Landlord's
Work
|
21
|
|
Lease
|
1
|
|
Leaseback
Area
|
4
|
|
Ordinary
Business Hours
|
34
|
|
Ordinary
Equipment
|
34
|
|
Premises
|
1
|
|
Real
Estate Taxes
|
27
|
|
Recapture
Date
|
4
|
|
Relocation
Effective Date
|
41
|
|
Relocation
Notice
|
41
|
|
Relocation
Space
|
41
|
|
Rent
|
2
|
|
Security
|
26
|
|
Supplemental
Systems
|
31
|
|
Tenant
|
1 |
|
Tenant
Cleaning Services
|
23 |
|
Tenant's
Recapture Offer
|
4 |
|
Tenant's
Share
|
27 |
|
Term
|
2 |
iii
LEASE
(this “Lease”) made as of the 1st day of July 2005 between SLG
Graybar Sublease
LLC having an office c/o XX Xxxxx Realty Corp., at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx
Xxxx,
00000, hereinafter referred to as “Landlord”, and FermaVir Research, Inc.,
a ____________
corporation
having an office at ____________ , hereinafter
referred to as
“Tenant”.
WITNESSETH
Landlord
and Tenant, in consideration of the mutual agreements herein contained and
other
good and
valuable
consideration, the receipt and sufficiency of which is
hereby
acknowledged, hereby
covenant and agree as
follows:
ARTICLE
1
DEMISE:
PREMISES
AND PURPOSE
1.01
Landlord hereby leases and demises to Tenant, and Tenant
hereby
hires
and
takes
from Landlord, those certain Premises located on and comprising a
rentable
portion of the fourth (4th)
floor
designated as
Room
445-47, approximately as indicated by
hatch
marks
on
the
plan
annexed hereto and made a
part
hereof
as
"Exhibit
A" (the "Premises") in
the
building
known
as
and
located at
000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building") subject to
the
provisions of this Lease.
1.02.
The Premises shall
be
used
and occupied for executive and general office use
consistent
with
that
found in
Class
"A"
high-rise office buildings located in
midtown Manhattan
only
and
for
no
other purpose.
1.03
Neither the
Premises,
nor the halls, corridors,
stairways,
elevators or
any
other
portion of
the
Building shall
be
used
by
the Tenant or the Tenant's servants, employees, licensees,
invitees
or visitors
in connection
with the aforesaid permitted use or otherwise so
as
to
cause
any
congestion of
the
public
portions of the Building or the
entranceways,
sidewalks or
roadways
adjoining
the
Building whether by tracking or by the congregating or
loitering
thereon
of the
Tenant
and/or
the
servants, employees, licensees, invitees or
visitors
of the Tenant.
1.04
Tenant shall
not
permit messengers, delivery personnel or other individuals providing
such
services
to Tenant
(“Delivery
Personnel”) to:
(i)
assemble, congregate or
to
form
a
line
outside
of
the
Premises or
the
Building or otherwise impede the flow
of
pedestrian traffic outside
of
the
Premises
or Building or (ii) park or
otherwise
leave bicycles, wagons or other delivery
carts
outside of the Premises or the Building except in
locations
outside of the Building designated
by
Landlord from
time-to-time. Tenant shall
require
all Delivery Personnel to comply with
rules
promulgated
by Landlord from time-to-time regarding the
use
of
outside
messenger services.
1
ARTICLE
2
TERM
2.01
The Premises are leased for a term of
seven
(7)
years (the "Term") which shall
commence on September 1, 2005
(the
"Commencement
Date")
and shall end
on
the
31st day of
August,
2012
(the
"Expiration
Date")
or
on
such earlier
date
upon
which
the
Term
shall expire,
be canceled or terminated pursuant
to any
of
the
conditions
or
covenants of this Lease
or
pursuant to law.
ARTICLE
3
RENT
AND ADDITIONAL RENT
3.01
Tenant shall pay fixed annual rent without electricity (the "Fixed Annual
Rent")
at the
rates
provided
for in the schedule annexed hereto and made a part hereof as " Exhibit
B"
in
equal monthly installments in advance on the
first
(1st) day of each calendar month
during
the
Term,
except that the first (1st) monthly
installment
of Fixed Annual Rent shall be paid
by
Tenant
upon
its
execution of this Lease.
All
sums
other than
Fixed
Animal Rent payable hereunder
shall
be
deemed
to be "Additional
Rent"
and shall be payable on demand,
unless
other payment
dates
are
hereinafter provided. Tenant shall pay
all
Fixed
Annual Rent and Additional Rent
due
hereunder
at
the
office of
Landlord
or such other
place
as
Landlord may designate, payable
in United States legal tender, by cash,
or
by
good
and
sufficient check drawn on a New York
City
bank which is a member of the New York Clearing House or a successor thereto,
and without
any set off or deduction whatsoever. The term "Rent" as used
in
this
Lease shall mean Fixed
Annual
Rent and Additional Rent.
Landlord
may apply payments made by Tenant towards the
payment of any item of
Fixed
Annual Rent
and/or
Additional Rent
payable
hereunder notwithstanding
any designation by Tenant as to the
items
against
which
any
such payment should be
credited.
3.02
Subject to
the
provisions hereof,
if
and
so
long
as Tenant is not in default under
this Lease, the
first
(1st)
monthly
installments of Fixed
Annual Rent
(without electricity) accruing
under the
Lease
shall be abated
by
the
sum of
$7,315.08.
Anything contained hereinabove
to
the
contrary notwithstanding, if Tenant at any
time
during
the
term
of the Lease, breaches any material covenant,
condition
or provision of the
Lease
and
fails
to
cure
such
breach within any applicable
grace
period, and
provided
that the Lease is terminated by Landlord because of
such
material default, then,
in
addition to all
other
damages and
remedies herein
provided and to
which
Landlord
may be
otherwise
entitled, Landlord shall also be
entitled
to the
repayment
in
full
of
all
Rent
which
has
theretofore
been abated under the provisions of
this
Lease, which repayment
Tenant shall make upon demand therefor.
2
ARTICLE
4
ASSIGNMENT/SUBLETTING
4.01
Neither Tenant nor Tenant's legal representatives or successors in interest
by
operation of law or otherwise, shall assign, mortgage or otherwise encumber
this
Lease, or sublet or
permit
all or part of the Premises to be used by others, without the prior written
consent of Landlord
in each instance. The transfer of a majority of the issued and outstanding
capital stock of any corporate tenant or sublessee of this Lease or a majority
of the total interest in any partnership tenant or sublessee or company, however
accomplished, and whether in a single transaction or in a series of related
or
unrelated transactions, the conversion of a tenant or sublessee entity to either
a limited
liability company or a limited liability partnership or the merger or
consolidation of a corporate
tenant or sublessee, shall be deemed an assignment of this Lease or of such
sublease. If this
Lease is assigned, or if the Premises or any part thereof is underlet or
occupied by anybody other
than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, undertenant
or occupant, and apply the net amount collected to the rent herein reserved,
but
no assignment,
underletting, occupancy or collection shall be deemed a waiver of the provisions
hereof,
the acceptance of the assignee, undertenant or occupant as tenant, or a release
of Tenant from
the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not
in
any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting.
In no event shall any permitted sublessee assign or encumber its sublease or
further sublet all or any portion of its sublet space, or otherwise suffer
or
permit the sublet space or any part
thereof to be used or occupied by others, without Landlord's prior written
consent in each instance.
A modification, amendment or extension of a sublease shall be deemed a sublease.
The listing of the name of a party or entity other than that of Tenant on the
Building or floor directory or
on or
adjacent to the entrance door to the Premises shall neither grant such party
or
entity any right
or
interest in this Lease or in the Premises nor constitute Landlord's consent
to
any assignment
or sublease to, or occupancy of the Premises by, such party or entity. If any
lien is filed
against the Premises or the Building of which the same form a part for brokerage
services claimed
to have been performed for Tenant in connection with any such assignment or
sublease, whether
or not actually performed, the same shall be discharged within ten (10) days
thereafter, at Tenant's
expense, by filing the bond required by law, or otherwise, and paying any other
necessary
sums, and Tenant agrees to indemnify Landlord and its agents and hold them
harmless from
and
against any and all claims, losses or liability resulting from such lien for
brokerage services
rendered. Tenant hereby grants Landlord's rental agent for the Building, or
such
other licensed
real estate broker as shall be designated by Landlord from time-to-time (the
"Designated
Agent"), the
sole
and exclusive right to effect any sublet, assignment, release and other
disposition of
all or
any part of the demised Premises and any other space Tenant has under lease
elsewhere in the
Building (provided, however, that Tenant acknowledges and agrees that such
Designated Agent from
time
to time may be obligated to endeavor to rent competitive space available in
the
Building on behalf
of
and pursuant to the instructions of Landlord or another tenant of the Building)
and Tenant
3
shall
pay
to such Designated Agent upon execution of each such sublease, assignment,
release or other
disposition a commission computed in accordance with such Designated
Agent's standard rates
and
rules then in effect for the locality in which the Building is
located.
4.02
If Tenant desires to assign this Lease or to sublet all or any portion of the
Premises, it shall first submit in writing to Landlord the documents described
in Section 4.06 hereof,
and shall offer in writing ("Tenant's
Recapture Offer"),
(i) with respect to a prospective assignment,
to assign this Lease to Landlord without any payment of moneys or other
consideration
therefor, or, (ii) with respect to a prospective subletting, to sublet to
Landlord the portion
of the Premises involved ("Leaseback Area" for the term specified by Tenant
in
its proposed
sublease or, at Landlord's option for the balance of the term of the Lease
less
one (1) day,
and
at the lower of (a) Tenant's proposed subrental or (b) the rate of Fixed Annual
Rent and Additional
Rent, and otherwise on the same terms, covenants and conditions (including
provisions relating
to escalation rents), as are contained herein and as are allocable and
applicable to the portion
of the Premises to be covered by such subletting. Tenant's Recapture Offer
shall
specify the date when the Leaseback Area will be made available to Landlord,
which date shall be in no event
earlier than ninety (90) days nor later than one hundred eighty (180) days
following the acceptance
of Tenant's Recapture Offer (the "Recapture Date"). If an offer of
sublease is made, and
if
the proposed sublease will result in all or substantially all of the Premises
being sublet, then Landlord
shall have the option to extend the term of its proposed sublease for the
balance of the term
of
this Lease less one (1) day. Landlord shall have a period of ninety (90) days
from the receipt
of such Tenant's Recapture Offer to either accept or reject Tenant' s Recapture
Offer or to terminate
this Lease.
4.03
If Landlord exercises its option to terminate this Lease, then (i) the term
of
this
Lease shall end at the election of Landlord either (x) on the date that such
assignment or sublet was
to
become effective or commence, as the case may be, or (y) on the Recapture Date
and (ii) Tenant
shall surrender to Landlord and vacate the Premises on or before such date
in
the same condition
as is otherwise required upon the expiration of this Lease by its terms, (iii)
the Rent and Additional Rent due hereunder shall be paid and apportioned to
such
date, and (iv) Landlord shall be free to lease the Premises (or any portion
thereof) to any individual or entity including, without limitation,
Tenant's proposed assignee or subtenant.
4.04
If Landlord shall accept Tenant's Recapture Offer (i) Tenant shall then
execute
and deliver to Landlord, or to anyone designated or named by Landlord, an
assignment or sublease,
as the case may be, in either case in a form reasonably satisfactory to
Landlord's counsel;
and (ii) Tenant, on demand, shall pay to Landlord or its managing agent (as
Landlord shall
elect) an amount equal to the brokerage commissions which would have been
incurred by Tenant
but for Landlord's accepting Tenant's Recapture Offer.
If
a sublease is so made it shall expressly:
(i)
permit Landlord to make further subleases of all or any part of the Leaseback
Area and (at no cost or expense to Tenant) to make and authorize any and all
changes, alterations,
installations and improvements in such space as necessary;
4
(ii)
provide
that Tenant will at all times permit reasonably appropriate means of
ingress
to and egress from the Leaseback Area;
(iii)
negate
any intention that the estate created under such sublease be merged with
any
other estate held by either of the parties;
(iv)
provide
that Landlord shall accept the Leaseback Area "as
is"
except that Landlord,
at Tenant's expense, shall perform all such work and make all such alterations
as may be required
physically to separate the Leaseback Area from the remainder of the Premises
and
to permit
lawful occupancy, it being intended that Tenant shall have no other cost or
expense in connection
with the subletting of the Leaseback Area;
(v)
provide
that at the expiration of the term of such sublease Tenant will accept
the
Leaseback Area in its then existing condition, subject to the obligations of
Landlord to make such
repairs thereto as may be necessary to preserve the Leaseback Area in good
order
and condition,
ordinary wear and tear excepted.
4.05
Landlord shall indemnify and save Tenant harmless from all obligations
under
this Lease as to the Leaseback Area during the period of time it is so sublet,
except for Fixed
Annual Rent and Additional Rent, if any, due under the within Lease, which
are
in excess of the
rents
and additional sums due under such sublease. Subject to the foregoing,
performance by Landlord,
or its designee, under a sublease of the Leaseback Area shall be deemed
performance by Tenant of any similar obligation under this Lease and any default
under any such sublease shall not give
rise
to a default under a similar obligation contained in this Lease, nor shall
Tenant be liable for
any
default under this Lease or deemed to be in default hereunder if such default
is
occasioned by
or
arises from any act or omission of the tenant under such sublease or is
occasioned by or arises
from any act or omission of any occupant holding under or pursuant to any such
sublease.
4.06
If Tenant requests Landlord's consent to a specific assignment or subletting,
it
shall
submit in writing to Landlord (i) the name and address of the proposed assignee
or sublessee,
(ii) a duly executed counterpart of the proposed agreement of assignment or
sublease, (iii)
reasonably satisfactory information as to the nature and character of the
business of the proposed
assignee or sublessee and as to the nature of its proposed use of the space,
and
(iv) banking,
financial or other credit information relating to the proposed assignee or
sublessee reasonably
sufficient to enable Landlord to determine the financial responsibility and
character of the
proposed assignee or sublessee.
4,07.
If Landlord shall not have accepted Tenant' s Recapture Offer and Landlord
shall
not
have terminated this Lease, as provided for in Section 4.02 hereof, then
Landlord will not unreasonably
withhold or delay its consent to Tenant's request for consent to such specific
assignment
or subletting for the use permitted under this Lease, provided
that:
(i)
The
Premises shall not, without Landlord's prior consent, have been listed
or
otherwise publicly advertised for assignment or subletting at a rental rate
lower than the higher
5
of
(a)
the Fixed Annual Rent and all Additional Rent then payable, or (b) the then
prevailing rental rate for other space in the Building;
(ii)
The
proposed assignee or subtenant shall have a financial standing, be of
a
character,
be engaged in a business, and propose to use the Premises, in a manner
consistent with the
permitted use and in keeping with the standards of the Building;
(iii)
The
proposed assignee or subtenant shall not then be a tenant, subtenant,
assignee
or occupant of any space in the Building, nor shall the proposed assignee or
subtenant be a
person
or entity who has dealt with Landlord or Landlord's agent (directly or through
a
broker) with
respect to space in the Building during the six (6) months immediately preceding
Tenant's request
for Landlord's consent;
(iv)
The
character of the business to be conducted in
the
Premises by the proposed
assignee or subtenant shall not be likely to increase operating expenses or
the
burden on existing cleaning services, elevators or other services and/or systems
of the Building;
(v)
In
case
of a subletting, the subtenant shall be expressly subject to
all
of
the obligations
of
Tenant
under this Lease and the further condition and restriction that such sublease
shall not be assigned, encumbered or otherwise transferred or the Premises
further sublet by the
subtenant
in whole or in part, or any part thereof suffered or permitted by the subtenant
to be used or occupied by others, without the prior written consent of Landlord
in each instance;
(vi)
No
subletting shall end later than one (1) day before the Expiration Date nor
shall
any
subletting be for a term of less than two (2) years unless it commences less
than two (2) years
before the Expiration Date;
(vii)
At
no
time
shall there be more than two (2) occupants, including Tenant, in the
Premises;
(viii) Tenant
shall reimburse Landlord on demand for any reasonable costs, including
attorneys' fees and disbursements, that may be incurred by Landlord in
connection with said
assignment or sublease;
(ix)
The
character of the business to be conducted in
the
Premises by the proposed
assignee or subtenant shall not require any alterations, installations,
improvements, additions
or other physical changes to be performed, or made to, any portion of the
Building or the Real Property other than the Premises; and
(x)
The
proposed assignee or subtenant shall not be
any
entity which is entitled to
diplomatic
or sovereign immunity or which is not subject to service of process in the
State
of New
York
or to the jurisdiction of the courts of the
State
of
New York and the United States located
in
New
York
County.
6
4.08
Any consent of Landlord under this Article shall be subject to the terms of
this
Article and conditioned upon there being no default by Tenant, beyond any grace
period, under
any
of the terms, covenants and conditions of this Lease at the time that Landlord's
consent to
any
such subletting or assignment is requested and on the date of the commencement
of the term of
any
proposed sublease or the effective date of any proposed assignment. Tenant
acknowledges and
agrees that no assignment or subletting shall be effective unless and until
Tenant, upon
receiving
any necessary Landlord's written consent (and unless it
was
theretofore delivered to Landlord)
causes a duly executed copy of
the
sublease or assignment to be delivered to Landlord within
ten (10) days after execution thereof. Any such sublease shall provide that
the
sublessee shall
comply
with
all
applicable terms and conditions of
this
Lease to
be
performed by
the
Tenant
hereunder.
Any such assignment of this Lease shall contain an assumption by the assignee
of
all of
the
terms, covenants
and conditions of this Lease to be
performed
by the Tenant. In addition to
the
foregoing, as
a
condition to
such
consent, Landlord may require Tenant to deposit additional security in an amount
equal to fifty (50%) percent of the
security
then
on
deposit with
Landlord
hereunder
in order to secure performance of the obligations of Tenant accruing
from
and
after
the
commencement
date of any
proposed
sublease or the
effective
date of
any
proposed assignment.
4.09
A. Anything
hereinabove
contained to
the
contrary
notwithstanding,
Landlord's
consent shall
not
be
required and
Landlord's
right of recapture and/or termination,
as otherwise
provided
for in
this
Article
4, shall not
apply
in the event
of
an assignment
of this Lease,
or
sublease
of all or part
of
the Premises,
to the parent of
Tenant or
to
a
wholly-owned subsidiary or
affiliate
of
Tenant
or
of
said
parent of Tenant, provided that the net
worth
of
transferor or sublessor, after
such transaction, is not
less
than
its
net
worth
as
of
(a)
the
Commencement Date or
(b)
the
day
immediately
prior to such transaction, whichever is greater, and provided also
that
Landlord
receives
prior
written notice thereof
including reasonable
supporting
documentation
regarding all
of
the foregoing
and finally provided
that any
such
transaction complies
with
the
other
provisions
of
this
Article.
B. Anything
hereinabove
contained to
the
contrary
notwithstanding,
Landlord's
consent shall not be required and
Landlord's
right
of
recapture
and/or termination, as otherwise
provided
for in
this
Article 4, shall
not
apply in
the
event
of
an
assignment of
this
Lease, or
sublease of all
or
part
of
the
Premises,
to any
corporation (i)
to
which
substantially
all the
assets
of
Tenant
are transferred
or (ii)
into
which Tenant
may be merged or
consolidated,
provided that
the
net worth,
experience and
reputation
of such transferee or
of
the
resulting
or
surviving
corporation,
as
the
case
may be, is
equal
to or
greater than
the
net worth experience and reputation of Tenant and
of
any
guarantor of
this
Lease (if
applicable)
immediately prior to
such
transfer
and
provided, also, that any
such
transaction complies
with the other
provisions of this
Article.
4.10
If Landlord shall
not
have
accepted Tenant' s Recapture Offer hereunder and Landlord
has
not
elected to
terminate
this Lease, and Tenant effects any
assignment
or
subletting
(other
than
pursuant to Section 4.09 above), then Tenant thereafter shall
pay
to Landlord
a sum
equal
to
fifty
(50%)
percent
of (a)
any
rent
or other consideration payable to Tenant by
any
subtenant
(after
deducting
the cost of Tenant, if
any,
in effecting
the subletting or assignment, for reasonable alteration costs, advertising
expenses, brokerage commissions and legal fees)
which
is
in
excess
of the
rent
allocable
to the subleased space which is then
being
paid by
Tenant
to
7
Landlord
pursuant to the terms hereof, and (b) any other profit or gain realized by
Tenant (after deducting
the cost of Tenant, if any, in effecting the subletting or assignment, for
reasonable alteration
costs, advertising expenses, brokerage commissions and legal fees not previously
deducted
above) from any such subletting or assignment. The foregoing amounts shall
be
payable to
Landlord only if, as and when, the same are received by Tenant from said
assignee or sublessee.
4.11.
In no event shall Tenant be entitled to make, nor shall Tenant make, any
claim,
and Tenant hereby waives any claim. for money damages (nor shall Tenant claim
any money
damages by way of set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed its consent or approval to a
proposed assignment or subletting as provided for in sections 4.02 and 4.07
of
this Article. Tenant's
sole remedy shall be an action or proceeding to enforce any such provision,
or
for specific
performance, injunction or declaratory judgment.
4.12
Notwithstanding anything to the contrary herein contained, Tenant shall
be
permitted
to license
up
to
twenty five
(25%) percent of the Premises for
"desk
space for uses
permitted
under this Lease only,
provided
that
(i)
any
such
offices or
workstations
do not have separate entrances
to the
public corridor, (ii)
Landlord
is delivered advance
notice
of
each
such
licensing
including,
without limitation, the
name,
address and bank references of each such
licensee and
the
material
terms and conditions
of each such
license, and (iii)
each such license otherwise
complies
with the
provisions
of
this
Lease.
ARTICLE
5
DEFAULT
5.01
Landlord may
terminate
this Lease on five
(5)
days'
notice:
(a)
if
Fixed
Annual
Rent or
Additional
Rent is not paid within five (5) days after
written
notice from Landlord; or
(b)
if
Tenant
shall
have
failed to
cure a
default
in the performance of any covenant of this Lease (except
the payment of Rent), or
any
rule
or regulation hereinafter set forth,
within
fifteen (15) days
after written notice
thereof
from Landlord, or if default cannot be completely cured in such time,
if
Tenant shall not
promptly
proceed to
cure
such
default within said fifteen (15)
days, or shall
not
complete the
curing
of
such default with due diligence: or
(c)
when
and
to the extent
permitted
by law, if a petition
in
bankruptcy shall be filed by or
against
Tenant or
if
Tenant
shall
make
a
general
assignment for
the
benefit of creditors, or receive the benefit of any insolvency or
reorganization
act; or (d)
if
a
receiver or trustee is appointed for any
portion
of
Tenant's
property and
such
appointment
is not
vacated
within twenty-five (25) days; or
(e)
if
an
execution
or attachment
shall be issued under which the Premises shall be taken or occupied or attempted
to
be
taken
or
occupied
by
anyone
other than Tenant; or (f) if the Premises become and remain deserted
for
a
period of
fifteen
(15)
days;
or
(g) if Tenant shall default beyond any grace period under any other
lease
between Tenant and Landlord. At the expiration of the five (5) day notice
period, this
Lease
and
any
rights of renewal or extension thereof shall terminate as completely as if
that
were
the
date
originally
fixed for the
expiration
of the Term of this
Lease,
but Tenant shall remain liable
8
as
hereinafter provided.
5.02
In the event that Tenant is in arrears for Fixed Annual Rent or any item of
Additional
Rent, Tenant waives its right, if any, to designate the items against which
payments made
by
Tenant are to be credited and Landlord may apply any payments made by Tenant
to
any items
which Landlord in sole
discretion may elect irrespective of
any
designation by Tenant as
to
the
items against
which
any
such
payment
should
be
credited.
5.03
Tenant shall not seek to
remove
and/or consolidate any summary proceeding brought
by Landlord with any action commenced by
Tenant
in
connection
with
this
Lease or Tenant's
use and/or
occupancy of the
Premises.
5.04
In the event of a
default
by Landlord hereunder, no property or assets of
Landlord,
or
any
principals, shareholders, officers, directors, partners or
members
of
Landlord,
whether
disclosed
or undisclosed, other than the Building in which the
Premises
are
located
and
the
land
upon
which the
Building is
situated,
shall be
subject
to levy, execution or
other
enforcement
procedure for the satisfaction of Tenant's remedies under or
with
respect to
this
Lease,
the
relationship of Landlord and
Tenant
hereunder or
Tenant's
use
and
occupancy of
the
Premises.
ARTICLE
6
RELETT1NG,
ETC.
6.01
If Landlord shall re-enter the Premises on the default of
Tenant,
by summary
proceedings
or
otherwise:
(a)
Landlord
may re-let the Premises or any
part
thereof,
as
Tenant's agent,
in
the
name
of
Landlord, or otherwise,
for a term shorter
or longer than
the
balance of
the
term
of
this Lease, and
may
grant
concessions or free rent;
(b)
Tenant
shall
pay
Landlord any deficiency
between
the rent
hereby
reserved and the net amount of
any
rents
collected
by Landlord for
the
remaining
term of this
Lease,
through such re-letting. Such deficiency shall become due
and
payable
monthly, as
it is
determined.
Landlord shall have no
obligation
to re-let the Premises,
and
its
failure
or refusal
to do so, or failure
to
collect rent on
re-letting,
shall
not
affect Tenant's
liability
hereunder. In
computing the net amount of rents
collected
through such re-letting, Landlord
may deduct
all
expenses incurred
in obtaining possession or re-letting the Premises, including
legal expenses and
fees,
brokerage fees, the cost of restoring the
Premises
to good order, and
the
cost
of
all
alterations
and
decorations
deemed necessary by Landlord to
effect
reletting.
ln
no
event shall Tenant be entitled to a credit or repayment for rerental income
which exceeds the
sums
payable by Tenant hereunder or which covers a period after the original term
of
this
Lease;
(c)
Tenant
hereby expressly waives
any
right
of redemption granted by any present or future law.
"Re-enter" and
"re-entry" as
used
in this
Lease are
not
restricted to
their
technical legal meaning. In
the
event of a breach or threatened breach of any of
the
covenants
or provisions
hereof, Landlord
shall have the right
of
injunctive relief.
Mention
herein of any particular remedy
shall not
preclude Landlord from any other available remedy; (d)
Landlord
shall
recover as liquidated
damages,
in addition
to
accrued rent and other charges, if
Landlord's
re-entry
is the
result of
9
Tenant's
bankruptcy, insolvency, or reorganization, the full rental for the maximum
period allowed
by any act relating to bankruptcy, insolvency or reorganization.
6.02
lf Landlord re-enters the Premises for any cause, or if Tenant abandons the
Premises,
or after the expiration of the term of this Lease, any property left in the
Premises by Tenant
shall be deemed to have been abandoned by Tenant, and Landlord shall have the
right to retain
or
dispose of such property in any manner without any obligation to account
therefor to Tenant.
If Tenant shall at any time default hereunder, and if Landlord shall institute
an action or summary proceeding against Tenant based upon such default, then
Tenant will reimburse Landlord for the legal expenses and fees thereby incurred
by Landlord.
ARTICLE
7
LANDLORD
MAY CURE DEFAULTS
7.01
If Tenant shall default in performing any covenant or condition of this
Lease,
after notice and beyond any applicable cure period, Landlord may perform the
same for the account of Tenant, and if Landlord, in connection therewith, or
in
connection with any default by Tenant, makes any expenditures or incurs any
obligations for the payment of money, including but not
limited to reasonable attorney's fees, such sums so paid or obligations incurred
shall be deemed
to
be Additional Rent hereunder, and shall be paid by Tenant to Landlord
within fifteen (15)
days
of rendition of any xxxx or statement therefor, and if Tenant's lease term
shall
have expired
at the time of the making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Landlord as damages.
ARTICLE
8
ALTERATIONS
8.01
Tenant shall make no decoration, alteration, addition or improvement in the
Premises, without the prior written consent of Landlord which consent shall
not
be unreasonably withheld,
conditioned or delayed, and then only by contractors or mechanics and in such
manner and time, and with such materials, as reasonably approved by Landlord.
All alterations, additions or
improvements to the Premises, including air-conditioning equipment and duct
work, except movable office furniture and trade equipment installed at the
expense of Tenant, shall, unless Landlord
elects otherwise in writing, become the property of Landlord, and shall be
surrendered with
the
Premises, at the expiration or sooner termination of the term of this Lease.
Any
such alterations,
additions and improvements which Landlord shall designate shall be removed
by
Tenant
and any damage repaired, at Tenant's expense, prior to the expiration of
this Lease. Notwithstanding anything contained herein to the contrary, Tenant
shall not be required to obtain Landlord's prior written consent or approval
for
any nonstructural, purely decorative, interior improvements to the Premises
(including painting, carpeting or the installation of wall
coverings)
10
provided,
however that said improvements do not consist of changes or modifications to
any
Building
plumbing, electrical, air conditioning or other Building wide
systems.
8.02
Anything hereinabove to the contrary notwithstanding, Landlord will not
unreasonably
withhold or delay approval of written requests of Tenant to make nonstructural
interior
alterations, decorations, additions and improvements (herein referred to as
"Alterations")
in
the
Premises, provided that such Alterations do not affect utility services or
plumbing and electrical lines or other systems of the Building and do not affect
and are not visible from any portion
of the Building outside of the Premises. All Alterations shall be performed
in
accordance with
the
following conditions:
(i)
Prior
to
the commencement of any Alterations costing more than $15,000.00,
Tenant shall first submit to Landlord for its approval detailed dimensioned
coordinated
plans and specifications, including layout, architectural, mechanical,
electrical, plumbing and structural drawings for each proposed Alteration.
Landlord shall be given, in writing,
a good description of all other Alterations.
(ii)
All
Alterations in and to the Premises shall be performed in a good and workmanlike
manner and in accordance with the Building's rules and regulations governing
Tenant
Alterations. Prior to the commencement of any such Alterations, Tenant shall,
at
its sole cost
and
expense, obtain and exhibit to Landlord any governmental permit required in
connection with such Alterations. In order to compensate Landlord for its
general conditions and the costs incurred
by Landlord in connection with Tenant's performance of Alterations in and/or
to
the Premises
(including, without limitation, the costs incurred by Landlord in connection
with the coordination of Alterations which may affect systems or services of
the
Building or portions of the Building outside of the Premises), Tenant shall
pay
to Landlord a fee equal to five (5%) percent of the
cost
of such Alterations. Such fee shall be paid by Tenant as Additional Rent
hereunder within ten
(10)
days following receipt of an invoice therefor.
(iii)
All
Alterations shall be done in compliance with all other applicable provisions
of this Lease and with all applicable laws, ordinances, directions, rules and
regulations of
governmental authorities having jurisdiction, including, without limitation,
the
Americans with Disabilities
Act of 1990 and New York City Local Law No. 57/87 and similar present or future
laws,
and
regulations issued pursuant thereto, and also New York City Local Law No. 76
and
similar
present or future laws, and regulations issued pursuant thereto, on abatement,
storage, transportation
and disposal of asbestos and other hazardous materials, which work, if required,
shall
be
effected at Tenant's sole cost and expense, by contractors and consultants
approved by Landlord
and in strict compliance with the aforesaid rules and regulations and with
Landlord's rules
and
regulations thereon.
(iv)
All
work
shall be performed by duly licensed and insured professionals whose
presence at the Premises or the Building will not result in any labor unrest,
dispute, slowdown,
strike or disharmony whatsoever by labor rendering or scheduled to render
services at or
within, or delivering goods or materials to the Building, in which event Tenant
shall immediately
and permanently cease its use of the professional(s) whose presence at the
Premises or
11
the
Building was the basis for such unrest, slowdown or strike. Notwithstanding
anything contained
herein to the contrary, if the use by Tenant of any contractor, subcontractor,
vendor, supplier
or any other party causes or threatens to cause or create any work stoppage,
picketing, labor
disruption, dispute or disharmony of any nature whatsoever, Tenant shall
immediately discontinue
the use of such party and take such other remedial measures as may be necessary
in order
to
restore labor harmony.
(v)
Tenant
shall keep the Building and the Premises free and clear of all liens
for
any
work or material claimed to have been furnished to Tenant or to the
Premises.
(vi)
Prior
to
the commencement of any work by or for Tenant, Tenant shall furnish
to Landlord certificates evidencing the existence of the following
insurance:
(a)
Workmen's compensation insurance covering all persons employed for
such
work and with respect to
whom
death or bodily injury claims could be asserted against Landlord,
Tenant or the Premises.
(b)
Broad
form general liability insurance written on an occurrence basis naming
Tenant as
an
insured
and naming Landlord and its designees as additional insureds, with limits
of
not
less than $3,000,000 combined single limit for personal injury in
any
one
occurrence, and
with
limits of not less than $500,000 for property damage (the foregoing limits
may
be revised from
time
to
time
by Landlord to
such
higher limits as Landlord from time to time reasonably requires).
Tenant, at its sole cost and expense, shall cause all such insurance to be
maintained at
all
time
when the work to be performed for or by Tenant is in progress. All such
insurance shall be
obtained from a company authorized to do business in
New
York
and shall provide that
it
cannot
be
canceled
without thirty (30) days prior written notice to Landlord. All polices, or
certificates
therefor, issued
by
the
insurer
and bearing notations evidencing the payment of
premiums,
shall be delivered to Landlord. Blanket coverage shall be acceptable, provided
that coverage
meeting the requirements of this paragraph is assigned to Tenant's location
at
the
Premises.
(vii) In
granting its consent to any Alterations, Landlord may impose such conditions
as
to
guarantee of completion (including, without limitation, requiring Tenant
to
temporarily
post
additional
security or a bond to insure the completion of such Alterations, payment,
restoration or otherwise), as Landlord may reasonably require.
(viii)
All
work
to
be
performed by Tenant shall be done in a manner which will not
interfere with or
disturb
other tenants and occupants of the Building.
(ix)
The
review and/or approval by Landlord, its agents, consultants and/or
contractors,
of
any
Alteration
or of plans and specifications therefor and the coordination of such
Alteration
work with the Building, as described in
part
above, are solely for the benefit of
Landlord,
and neither Landlord nor any of its agents, consultants or contractors shall
have any duty
toward Tenant; nor shall Landlord or any of its agents, consultants
and/or
contractors be deemed
to
have made any representation or warranty to Tenant, or
have
any
liability
with respect
12
to
the
safety, adequacy, correctness, efficiency or compliance with laws of any plans
and specifications,
Alterations or any other matter relating thereto.
(x)
Promptly following the substantial completion of any Alterations, Tenant
shall
submit to Landlord: (a) one (1) sepia and one (1) copy on floppy disk (using
a
current version of
Autocad or such other similar software as is then commonly in use) of final,
"as-built" plans for
the
Premises showing all such Alterations and demonstrating that such Alterations
were performed
substantially in
accordance with
plans and specifications first approved by Landlord and (b)
an
itemization
of Tenant's
total construction
costs,
detailed
by contractor, subcontractors, vendors
and materialmen; bills, receipts,
lien
waivers and releases
from
all
contractors, subcontractors,
vendors and materialmen; architects' and Tenant's certification of
completion,
payment
and
acceptance, and all governmental approvals
and
confirmations of completion for such
Alterations.
ARTICLE
9
LIENS
9.01
Prior to
commencement of
its
work
in
the
Premises,
Tenant shall
obtain
and
deliver
to Landlord a
written
letter of authorization, in form satisfactory to
Landlord's
counsel, signed
by
all
architects, engineers and designers to become involved in such
work,
which shall confirm
that any of their drawings
or
plans
are to be removed from any tiling with
governmental
authorities
on
request of Landlord, in
the
event
that said architect,
engineer
or designer thereafter
no
longer
is
providing
services
with
respect to the Premises. With respect to
contractors, subcontractors,
materialmen
and
laborers,
and
architects, engineers and
designers,
for all
work
or
materials
to
be
furnished
to Tenant
at
the
Premises, Tenant agrees to
obtain
and
deliver
to
Landlord
written and
unconditional
waiver of
mechanics
liens upon the Premises or
the
Building
after
payments to the contractors, etc.,
subject to
any
then applicable provisions of
the
Lien
Law.
Notwithstanding
the foregoing, Tenant at
its
expense shall
cause any
lien
filed
against the Premises or
the
Building, for work or
materials
claimed to have
been
furnished to Tenant, to be
discharged
of
record
within
ten
(10)
days
after notice thereof.
ARTICLE
10
REPAIRS
10.01
Tenant
shall take
good
care of the Premises
and the fixtures and appurtenances
therein, and shall
make all non-structural
repairs necessary to keep them in
good
working order
and
condition, and
all
structural
repairs when those
are
necessitated
by
the
act,
omission
or negligence
of Tenant or its
agents,
employees, invitees or contractors,
subject
to the provisions
of Article 11 hereof. During the term of this Lease, Tenant may have the
use
of
any
air-conditioning
equipment servicing the
Premises,
subject
to
the
provisions of Article 35 of this Lease,
and shall reimburse Landlord, in accordance with
Article 41 of this Lease,
for
electricity
13
consumed
by the equipment. The
exterior walls and
roofs
of
the Building, the
mechanical
rooms, service
closets,
shafts, areas above any hung ceiling and the
windows
and
the
portions
of
all
window
xxxxx outside
same are not
part
of the Premises demised
by
this
Lease, and
Landlord hereby
reserves all rights to such parts
of
the
Building. Tenant
shall
not
paint, alter, drill into
or
otherwise
change the
appearance of
the
windows including,
without
limitation,
the
xxxxx,
jambs, frames,
sashes,
and meeting rails.
10.02
Landlord
shall maintain
and repair the structural
portions of
the
Building and all
Building
systems and equipment
up to the point
of
entry
to
the
Premises, at its
cost
and expense,
except where the
need
for
such
maintenance or repairs
is caused
by
the
negligence or willful
misconduct of
Tenant, its
members,
partners,
directors,
officers, employees,
representatives,
servants,
invitees,
permitted
subtenant or
permitted licensees, in
which
event such maintenance
and repair
shall be performed
at Tenant's
cost
and
expense,
payable as additional
rent
hereunder.
ARTICLE
11
FIRE
OR
OTHER CASUALTY
11.01
Damage
by
fire
or
other
casualty to
the
Building and
to
the
core and shell of the
Premises (excluding
the tenant improvements and
betterments and Tenant's
personal property) shall
be
repaired with
due
diligence at
the
expense of
Landlord
(“Landlord's
Restoration
Work”),
but without
prejudice to
the
rights of subrogation,
if any,
of
Landlord's insurer to the extent
not waived
herein.
Landlord
shall not be
required to
repair
or
restore any of Tenant's property
or any
alteration,
installation or leasehold improvement made
in
and/or
to the
Premises. If,
as a
result of such
damage
to
the
Building or
to
the
core
and
shell
of
the Premises, the Premises are
rendered untenantable, the rent shall
xxxxx
in
proportion to the
portion
of the Premises not usable
by
Tenant from the
date
of such fire or
other
casualty until Landlord' s Restoration Work is substantially
completed. Landlord shall not
be
liable
to Tenant for any delay in performing
Landlord's
Restoration Work, Tenant's
sole remedy being
the
right
to
an
abatement of
Rent,
as
provided
above.
Tenant shall cooperate
with Landlord
in
connection with the
performance
by Landlord
of Landlord's
Restoration Work. If
the
Premises are
rendered
wholly
untenantable by fire or other
casualty and
if
Landlord
shall decide not to restore the Premises, or if the Building
shall
be
so damaged that
Landlord shall
decide
to
demolish
it
or
not
to
rebuild
it (whether or
not
the
Premises have
been
damaged), Landlord may within
ninety
(90)
days
after such fire
or
other cause
give
written notice to Tenant
of
its election that
the
term
of
this
Lease
shall automatically expire
no
less than ten
(10)
days
after such
notice
is
given. Notwithstanding the
foregoing,
each party
shall look first to any insurance in its favor before
making any
claim
against
the
other
party for
recovery for loss or damage
resulting
from fire
or
other casualty,
and
to
the
extent that such insurance
is in force and
collectible and to the
extent permitted
by
law,
Landlord and
Tenant
each hereby
releases and waives all right of recovery against
the
other
or
any
one
claiming through or
under
each
of
them
by
way
of
subrogation or otherwise. The foregoing release and waiver
shall be
in
force
only
if
both releasers'
insurance
policies
contain a clause
providing that such
a
release
or
waiver
shall not invalidate the insurance and
also,
provided that such a
policy
can be obtained without
additional premiums. Tenant
hereby expressly
waives the
provisions of
Section
227 of
the
14
Real
Property Law and agrees that the foregoing provisions of this Article shall
govern and control in
lieu
thereof.
11.02
In the event that the Premises has been damaged or destroyed and this Lease
has
not
been terminated in accordance with the provisions of this Article, Tenant shall
(i) cooperate
with Landlord in the restoration of the Premises and shall remove from the
Premises as promptly
as reasonably possible all of Tenant's salvageable inventory, movable equipment,
furniture
and other property and (ii) repair the damage to the tenant improvements and
betterments and
Tenant's personal property and restore the Premises within one hundred eighty
(180) days following the date upon which the core and shell of the Premises
shall have been substantially repaired
by Landlord.
11.03
In the event that the Premises and/or access thereto are rendered substantially
untenantable or unusable, as the case may be, due to fire or other casualty
during the last
year
of the Term of this Lease and/or Landlord has not restored or repaired the
Premises or access
thereto, as the case may be, within one hundred and eighty (180) days after
such
fire or casualty
then, and in such event, Tenant may elect to cancel this Lease upon written
notice to Landlord
within thirty (30) days after the end of such one hundred and eighty (180)
day
period and the
term
of this Lease shall expire on the date set forth therein which shall be not
less
than ten (10) days
after the date such notice is given (the "Cancellation Date") provided that
Tenant surrenders to
Landlord possession of the Premises on or before the Cancellation
Date.
ARTICLE
12
END
OF TERM
12.01
Tenant shall surrender the Premises to Landlord at the expiration or sooner
termination
of this Lease in good order and condition, except for reasonable wear and tear
and damage by fire or other casualty, and Tenant shall remove all of its
property. Tenant agrees it shall
indemnify and save Landlord harmless against all costs, claims, loss or
liability resulting from
delay by Tenant in so surrendering the Premises, including, without limitation,
any claims made
by
any succeeding tenant founded on such delay. The parties recognize and agree
that the damage
to
Landlord resulting from any failure by Tenant timely to surrender the Premises
will be substantial,
will exceed the amount of monthly Rent theretofore payable hereunder, and will
be impossible
of accurate measurement. Tenant therefore agrees that if possession of the
Premises is not
surrendered to Landlord within one (1) day after the date of the expiration
or
sooner termination
of the Term of this Lease, then Tenant will pay Landlord as liquidated damages
for each month and for each portion of any month during which Tenant holds
over
in the Premises after
expiration or termination of the Term of this Lease, a sum equal to two (2)
times the average Rent
and
Additional Rent which was payable per month under this Lease during the last
six
months
of
the Term thereof. The aforesaid obligations shall survive the expiration or
sooner termination
of the Term of this Lease. At any time during the Term of this Lease, Landlord
may exhibit
the Premises to prospective purchasers or mortgagees of Landlord's interest
therein. During
the last year of the term of this Lease, Landlord may exhibit the Premises
to
prospective tenants.
15
ARTICLE
13
SUBORDINATION
AND ESTOPPEL, ETC.
13.01
This Lease is and shall be subject and subordinate to all present and future
ground
leases, underlying leases and to all subleases of the entire premises demised
by
that certain ground
lease (hereinafter referred to as the "Mesne Lease") dated December 30, 1957
and
recorded
in the office of the Register of the City of New York in the County of New
York
on December
31, 1957, in Liber 5024 of Conveyances, Page 430 of which the premises hereby
demised
form a part (the Mesne Lease and any or all present and future ground leases,
underlying leases
arid subleases of the entire premises demised by the Mesne Lease are hereunder
referred to as
the
"ground leases" and the lessors and lessees thereunder are hereinafter referred
to respectively
as the "ground lessors" and "ground lessees" ) and to all renewals,
modifications, replacements
and extensions of the ground leases, and to all present and future mortgages
affecting such
ground leases (such mortgages are hereinafter referred to as the "mortgages"
and
the mortgagees
thereunder are hereinafter referred to as the "the mortgagees") including,
without limitation,
that certain Amended and Restated indenture of Leasehold Mortgage, Security
Agreement,
Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security
Deposits, dated as of May 21, 1999 by and between SLG Graybar Mesne Lease LLC
and SLG Graybar
Sublease LLC, as mortgagor, and Midland Loan Services, Inc., as mortgagee,
and
to all renewals, modifications, replacements and extensions of the
mortgages.
13.02
Notwithstanding the subordination of this Lease to all ground leases and
mortgages, this Lease shall not terminate or be terminable by Tenant by reason
of the expiration or earlier
termination or cancellation of any ground lease in accordance with its terms
or
by reason of the foreclosures of any mortgage, except that this lease may be
terminated if Tenant is named as a party
and
served with process in a summary or other proceeding brought by the lessor
under
the Mesne
Lease (hereinafter referred to as the "Mesne Lessor") for the possession of
the
premises demised
by the Mesne Lease or the space occupied by Tenant, or in such proceeding
brought with the
written consent of the Mesne Lessor delivered to Tenant, and a final order
or
judgment is entered,
and a warrant for possession of such space issued and executed against the
defendants or respondents in such proceedings.
13.03
Tenant agrees that if this Lease terminates, expires or is canceled for any
reason
or
by any means whatsoever (other than by a summary or other proceeding brought
by
the Mesne Lessor
or
with the Mesne Lessor's written consent delivered to Tenant, in which summary
or
other
proceeding Tenant is made a party and in which a final order or judgment is
entered and warrant for possession is issued and executed against Tenant) and
Mesne Lessor or a ground lessor so
elects
by written notice to Tenant, this lease shall automatically be reinstated for
the balance of the
term
which would have remained but for such termination, expiration or cancellation,
at the same
rental, and upon the same agreements. covenants, conditions, restrictions and
provisions herein contained, with the same rental, and upon the same agreements,
covenants, conditions, restrictions
and provisions herein contained, with the same force and effect as if no such
termination,
expiration or cancellation had taken place. Tenant covenants to execute and
deliver
16
any
instrument required to confirm the validity of the foregoing. Anything herein
contained to the contrary
notwithstanding,
this
lease
shall
not
be
deemed
to
be
automatically
reinstated
as aforesaid,
nor
shall
Tenant be obligated to
execute and
deliver
any
instrument
confirming
such reinstatement,
if
Tenant
has
delivered to
the
Mesne Lessor and
any
ground lessor
so
electing a
notice
that
in
Tenant's opinion this lease has so terminated,
expired or
been
canceled, and
neither
the
Mesne
Lessor
nor
such
other
ground lessor
has,
within thirty (30)
days
after receipt of
such
notice
from
Tenant,
delivered notice
to
Tenant
of
its election automatically
to
reinstate this
lease.
13.04
Tenant hereby consents to any and
all
assignment
of
Landlord's interest in this Lease to any ground lessor or mortgagee as
collateral
security
for the payment
of the
ground rent or
monies
due
under
any
mortgage.
Tenant agrees
to
attorn
to
and
pay
rent to any such ground
lessor
or
mortgagee
in accordance
with
the
provisions of
any
such
assignment.
13.05
Tenant
agrees that no act, or
failure to act, on the
part
of
Landlord, which would
entitle Tenant under
the
terms
of this Lease, or
by
law
to be
relieved of
Tenant's
obligations
hereunder
or to terminate
this lease,
shall result
in
a
release
or
termination of such obligations or termination
of this
lease unless (i)
Tenant shall have first
given written notice
of
Landlord's act or failure
to
act to
the
ground
lessors under all then existing
ground leases, to
all
then
existing
mortgagees
who
have
requested such
notice
from Tenant, and to Midland
Loan Services,
Inc.,
as
mortgagee,
at (i) 10851 Xxxxxx,
Overland
Park,
Kansas 662.10,
Attn.:
Xxxxxx
Xxxxx, Vice President/Portfolio
Management,
specifying the act
or
failure to act on the
part
of
Landlord
which could or would give basis to Tenant's
rights
and
(ii)
the
ground
lessors and such
mortgagees, after
receipt of such
notice,
have failed or refused
to correct
or
cure
the
condition complained of within
a
reasonable
time
thereafter but nothing
herein contained shall
be
deemed
to
impose
any obligation
on
any
ground
lessor
or
such
mortgagee
to
correct or cure any
such
condition.
13.06
This Lease may
not
be
modified
or
amended
so
as to
reduce
the
rent, shorten
the
term,
or otherwise
materially affect the rights
of
Landlord
hereunder,
or be
canceled
or
surrendered
except as provided in Section 13,05 this Article without
the prior written
consent in each
instance of
the
ground
lessors and
of
any
mortgagees
whose
mortgages
shall require such consent.
Any
such
modification,
agreement,
cancellation
or surrender made without such prior written
consent shall be
null
and void.
13.07
From time
to
time,
Tenant,
on at least ten (10)
days' prior written request by Landlord, shall deliver to Landlord a
statement in writing certifying
that this Lease
is
unmodified and in
full
force
and
effect (or if
there
shall have been modifications, that the same is
in
full force and
effect
as
modified
and stating the modifications) and
the
dates to which
the
Rent
and
other charges have
been
paid and stating whether or not
Landlord
is in default in
performance of any covenant,
agreement
or
condition
contained
in this Lease
and,
if
so,
specifying each
such
default. In
the
event
that
Tenant shall fail to execute
and
deliver
any
such
instrument
within
ten (10) days after
written request
is
made
therefor, Landlord
shall deliver an
additional
copy
(marked "Second Notice") thereof to
Tenant.
In
the
event that Tenant, after the second notice,
shall thereafter fail to either
(i) execute
and deliver
any such instrument
within ten
(10)
days after
written request is
made
therefor or (ii)
furnish
within
ten
(10)
days
after
written
request
is
made
therefor.
a
bonafide
written dispute
of
the
contents of
such
instrument, containing proposed remediation language
17
thereafter
failure to execute any revised subordination within ten (10) days of receipt
of
written request
is made therefor, then hereby irrevocably constitutes and appoints Landlord
as
Tenant's attorney-in-fact to execute, acknowledge and deliver any such
statements or certificates for and on behalf of Tenant.
ARTICIE
14
CONDEMNATION
14.01
If the whole or any substantial part of the Premises shall be condemned by
eminent
domain or acquired by private purchase in lieu thereof, for any public or
quasi-public purpose,
this Lease shall terminate on the date of the vesting of title through such
proceeding or purchase,
and Tenant shall have no claim against Landlord for the value of any unexpired
portion of
the
Term of this Lease, nor shall Tenant be entitled to any part of the condemnation
award or private
purchase price. If less than a substantial part of the Premises is condemned,
this Lease shall
not
terminate, but Rent shall xxxxx in proportion to the portion of the Premises
condemned.
ARTICLE
15
REQUIREMENTS
OF
LAW
15.01
Tenant at its expense shall comply with all laws, orders and regulations of
any
governmental authority having or asserting jurisdiction over the Premises,
which
shall impose any violation, order or duty,
upon
Landlord or Tenant as a result of Tenant's particular manner of use
or
occupancy of the Premises, including, without limitation, compliance in the
Premises with all
City,
State and Federal laws, rules and regulations on the disabled or handicapped,
on
fire safety
and on hazardous materials. The foregoing shall not require Tenant to do
structural work to the
Building. Notwithstanding the foregoing, Landlord shall be responsible for
the
cost of curing any
violation of law in the Premises, existing as a matter of public record as
of
the commencement of
the
Term of this Lease or for which Landlord has had actual knowledge of as of
the
commencement
of the term of this Lease.
15.02
Tenant shall require every person engaged by him to clean any window in
the
Premises from the outside, to use the equipment and safety devices required
by
Section 202 of the Labor Law and the rules of any governmental authority having
or asserting jurisdiction.
15.03 Tenant
at its expense shall comply with all requirements of the New York Board
of
Fire Underwriters, or any other similar body affecting the Premises, and shall
not use the Premises
in a manner which shall increase the rate of fire insurance of Landlord or
of
any other tenant,
over that in effect prior to this Lease. If Tenant's use of the Premises
increases the fire insurance
rate, Tenant shall reimburse Landlord for all such increased costs. That the
Premises
18
are
being
used for the purpose set forth in Article 1 hereof shall not relieve Tenant
from
the foregoing
duties, obligations and expenses.
ARTICLE
16
CERTIFICATE
OF OCCUPANCY
16.01
Tenant will at no time use or occupy the Premises in violation of the
certificate
of occupancy issued for the Building. The statement in this Lease of the nature
of the business to be conducted by Tenant shall not be deemed to constitute
a
representation or guaranty by
Landlord that such use is lawful or permissible in the Premises under the
certificate of occupancy
for the Building.
ARTICLE
17
POSSESSION
17.01
lf Landlord shall be unable to give possession of the Premises on the
Commencement Date because of the retention of possession of any occupant
thereof, alteration or construction work, or for any other reason, Landlord
shall not be subject to any liability for such failure. In such event, this
Lease shall stay in full force and effect, without extension of its Term.
However,
the Rent hereunder shall not commence until the Premises are available for
occupancy by Tenant in the condition required by this Lease, as provided in
Article 22 of the Lease. If delay in
possession is due to work, changes or decorations being made by or For Tenant,
or is otherwise caused
by
Tenant, there shall be no rent abatement and the Rent shall commence on the
date
specified
in this Lease. If permission is given to Tenant to occupy the Premises or other
Premises prior
to
the date specified as the commencement of the Term, such occupancy shall be
deemed to be
pursuant to the terms of this Lease, except that the parties shall separately
agree as to the obligation
of Tenant to pay Rent for such occupancy. The provisions of this Article are
intended to
constitute an "express provision to the contrary" within the meaning of Section
223(a), New York
Real
Property Law.
ARTICLE
18
QUIET
ENJOYMENT
18.01
Landlord covenants that if Tenant pays the Rent and performs all of Tenant's
other
obligations under this Lease, Tenant may peaceably and quietly enjoy the
Premises, subject to the terms, covenants and conditions of this Lease and
to
the ground leases, underlying leases and
mortgages hereinbefore mentioned.
19
ARTICLE
19
RIGHT
OF ENTRY
19.01
Tenant shall permit Landlord to erect, construct and maintain pipes, conduits
and
shafts in and through the Premises provided that they are concealed, erected
along perimeter walls
wherever possible
and are
installed
in a
manner
which does not interfere with Tenant's use of the
Premises.
Landlord or
its
agents
shall have
the
right
to enter or
pass
through
the Premises
upon
reasonable oral notice to
Tenant
at
reasonable times and by reasonable force in
the
event of an
Emergency
Situation without
notice to
Tenant, by
master
key and,
in
the
event of
an
emergency,
by
reasonable
force
or
otherwise, to examine
the
same,
and to
make
such
repairs,
alterations
or
additions
as
it may
deem necessary
or desirable to the Premises or
the
Building, and
to
take
all
material into
and
upon
the
Premises that may be
required
therefor.
Landlord shall
use
reasonable
efforts to minimize
interference with Tenant's
normal
business activities
within the premises
provided, however, that Tenant
acknowledges
and
agrees that
all
work
shall be performed
on
normal
business days during
normal
business hours.
Notwithstanding the
foregoing,
in
the
event
that
Tenant requests that Landlord make
such
repairs, alterations or additions during times
other
than ordinary business hours, and
such
labor
is
then available,
Tenant
shall
be
responsible
for
the
cost
of
such
overtime
or
premium
labor
charges as
the
case may be.
Such
entry
and
work
shall not
constitute
an
eviction of Tenant in whole or
in
part, shall
not
be
grounds for
any
abatement
of
Rent,
and
shall impose
no
liability on
Landlord
by
reason
of
inconvenience or
injury
to Tenant's
business. Landlord shall
have the right
at
any time,
without the same
constituting
an actual
or
constructive eviction, and
without incurring
any
liability to Tenant, to
change
the
arrangement
and/or location of
entrances or
passageways, windows,
corridors, elevators,
stairs,
toilets,
or other
public
parts of
the
Building, and
to
change
the designation of rooms
and
suites and
the
name or
number
by
which
the
Building is known.
ARTICLE
20
INDEMNITY
20.01
Tenant shall indemnify,
defend and save
Landlord
harmless from
and
against any
liability or
expense arising from
the
use
or
occupation
of
the
Premises
by
Tenant, or anyone on
the
Premises
with Tenant's
permission,
or
from
any breach of this
Lease.
ARTICLE
21
LANDLORD'S
LABILITY ETC.
21.01
This
Lease and
the
obligations
of Tenant hereunder shall
not
in
any
way
be
affected
because Landlord is
unable
to
fulfill any of its
obligations
or
to
supply
any
service, by
reason
of
strike
or
other
cause not within
Landlord's control. Landlord
shall
have the right,
without
incurring any
liability
to
Tenant,
to stop any
service because of accident or emergency, or
20
for
repairs, alterations or improvements, necessary or desirable in the judgment
of
Landlord, until such
repairs, alterations or improvements shall have been completed. Landlord shall
not be liable to
Tenant
or anyone else, for any loss or damage to person, property or business; nor
shall Landlord
be liable for any latent defect in the Premises or the Building. Neither the
partners, entities
or individuals comprising the Landlord, nor the agents, directors, or officers
or employees of any
of
the foregoing shall be liable for the performance of the Landlord's obligations
hereunder. Tenant
agrees to look solely to Landlord's estate and interest in the land and
Building, or the lease of
the
Building or of the land and Building, and the Premises, for the satisfaction
of
any right or remedy
of
Tenant for the collection of a judgement (or other judicial process) requiring
the payment
of money by Landlord, and in the event of any liability by Landlord, no other
property or assets
of
Landlord or of any of the aforementioned parties shall be subject to levy,
execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease,
the relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy
of the Premises
or any other liability of Landlord to Tenant.
ARTICLE
22
CONDITION
OF PREMISES
22.01
The parties acknowledge that Tenant has inspected the Premises and the
Building
and is fully familiar with the physical condition thereof and Tenant agrees
to
accept the Premises
at the commencement of the Term in its then "as is" condition. Tenant
acknowledges and
agrees that Landlord shall have no obligation to do any work in or to the
Premises in order to make
it
suitable and ready for occupancy and use by Tenant, except to the extent
expressly provided
for in this Article 22.
22.02
Prior to the commencement of the Term of this Lease, Landlord shall, at
Landlord's
cost and expense, perform the work set forth on the schedule annexed hereto
as
Exhibit
C
in a building standard manner using building standard materials ("Landlord's
Work"). Landlord,
or Landlord's designated, wholly
owned
affiliate Emerald City Construction Corp., shall
perform Landlord's Work with reasonable dispatch, subject to delay by causes
beyond its control
or by the action or inaction of Tenant. Tenant acknowledges and agrees that
the
performance
of Landlord's Work is expressly conditioned upon compliance by Tenant with
all
the terms
and
conditions of this Lease, including payment of Rent.
22.03
Any changes in or additions to Landlord's Work which shall be consented
to
by
Landlord. and further changes in or additions to the Premises requested by
Tenant after said Work
has
been completed which shall be so consented to shall be made by Landlord, or
its
agents, but
shall
be paid for by Tenant promptly when billed at cost plus 1 1/4% for insurance,
5%
for overhead
and 5% for general conditions, and in the event of the failure of Tenant so
to
pay for said changes or additions. Landlord at its option may consider the
cost
thereof, plus the above percentages,
as Additional Rent payable by Tenant and collectible as such hereunder, as
part
of the rent
for
the next ensuing months.
21
22.04
If Landlord's Work is not substantially completed by the Commencement
Date
and
is delayed by acts, omissions or changes made or requested by Tenant, its
agents, designers,
architects or any other party acting or apparently acting on Tenant's behalf,
then Tenant
shall pay as hereinbefore provided rent and additional rent on a per diem basis
for each day of
delay
of Landlord's substantial completion caused by Tenant or any of the
aforementioned parties.
22.05
Landlord's Work shall be deemed to be substantially completed notwithstanding
that (i) minor or non-material details of construction, mechanical adjustment
or
decoration remain to be performed, provided that said "Punch List Items" shall
be completed by Landlord
within a reasonable time thereafter or (ii) a portion of Landlord's Work is
incomplete because
construction scheduling requires that such work be done after incomplete
finishing or after other
work to be done by or on behalf of Tenant is completed. Notwithstanding anything
contained
herein to the contrary, Landlord and Tenant acknowledge and agree that Landlord
shall complete
any Punch List items during normal business on normal business days, in
connection with
which Landlord acknowledges that Tenant may be conducting business in the
Premises for the uses
permitted under this Lease during such time(s). Accordingly, Landlord agrees
that Landlord shall
use
commercially reasonable efforts to minimize interference with Tenant's permitted
use of the
Premises and to compartmentalize the portion of the Premises in which Landlord
performs work
on
Punch List items in order to minimize the escape of debris therefrom and Tenant
shall reasonably
cooperate with Landlord by covering and/or temporarily relocating Tenant's
personnel,
furniture and/or office equipment within the Premises. Furthermore, in the
event
that Tenant requests that Landlord complete such Punch List Items during times
other than ordinary business hours, and such labor is then available, Tenant
shall be responsible for the cost of such overtime or premium labor charges
as
the case may be. Such entry and work shall not constitute an eviction
of Tenant in whole or in part, shall not be grounds for any abatement of rent,
and shall impose
no
liability on Landlord by reason of inconvenience or injury to Tenant's
business.
ARTICLE
23
CLEANING
23.01
Landlord shall cause the Premises to be kept clean in accordance with
Landlord's
customary standards for the Building, provided they are kept in order by Tenant.
Landlord,
its cleaning contractor and their employees shall have after-hours access to
the
Premises and
the
use of Tenant's light, power and water in the Premises as may be reasonably
required for the
purpose of cleaning the Premises. Landlord may remove Tenant's extraordinary
refuse from the
Building and Tenant shall pay the cost thereof.
23.02
Tenant acknowledges that Landlord has designated a cleaning contractor for
the
Building. Tenant agrees to employ said cleaning contractor or such other
contractor as Landlord
shall from time to time designate (the "Building Cleaning Contractor") to
perform all cleaning services required under the Lease to be performed by Tenant
within the Premises and for any other waxing, polishing, and other cleaning
and
maintenance work of the Premises and
22
Tenant's
furniture, fixtures and equipment (collectively, "Tenant
Cleaning Services") provided
that
the
prices charged by said contractor are comparable to the prices customarily
charged by other
reputable cleaning contractors employing union labor in midtown Manhattan for
the same level
and
quality of service. Tenant acknowledges that it has been advised that the
cleaning contractor
for the Building may be a division or affiliate of Landlord. Tenant agrees
that
it shall not
employ any other cleaning and maintenance contractor, nor any individual, firm
or organization
for such purpose, without Landlord's prior written consent. In the event that
Landlord
and Tenant cannot agree on whether the prices then being charged by the Building
Cleaning
Contractor for such cleaning services are comparable to those charged by other
reputable contractors
as herein provided, then Landlord and Tenant shall each obtain two (2) bona
fide
bids for
such
services from reputable cleaning contractors performing such services in
comparable buildings in midtown Manhattan employing union labor, and the average
of the four bids thus obtained
shall be the standard of comparison. In the event that the Building Cleaning
Contractor does
not
agree to perform such cleaning services for Tenant at such average price,
Landlord shall not
unreasonably withhold its consent to the performance of Tenant Cleaning Services
by a
reputable
cleaning contractor designated by Tenant employing union labor with the proper
jurisdictional
qualifications; provided, however, that, without limitation, Landlord's
experience with
such
contractor or any criminal proceedings pending or previously filed against
such
contractor
may form a basis upon which Landlord may withhold or withdraw its
consent.
ARTICLE
24
JURY
WAIVER
24.01
Landlord and Tenant hereby waive trial by jury in
any
action, proceeding or counterclaim
involving any matter whatsoever arising out of or in any way connected with
this
Lease,
the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises or involving
the right to an statutory relief or remedy. Tenant will not interpose any
counterclaim of
any
nature
in
any
summary proceeding except for mandatory or compulsory
counterclaims.
ARTICLE
25
NO
WAIVER ETC:
25.01
No act or omission of Landlord or its
agents
shall constitute an
actual
or
constructive
eviction, unless Landlord shall have first received written notice of Tenant's
claim and
shall
have had a reasonable opportunity to meet such claim. In the event that any
payment herein
provided for by Tenant to Landlord shall become overdue for a period in excess
of ten (10) days,
then at Landlord's option a "late charge" shall become due and payable to
Landlord, as
Additional
Rent, from the date it
was
due
until payment is made, at the following rates: for individual
and partnership lessees, said late charge shall be computed at the maximum
legal
rate of interest:
for corporate or governmental entity lessees the late charge shall be computed
at two
percent
per month unless there is an applicable maximum legal rate of interest which
then shall be
23
used.
No
act or omission of Landlord or its agents shall constitute an acceptance of
a
surrender of the
Premises, except a writing signed by Landlord. The delivery or acceptance of
keys to Landlord
or its agents shall not constitute a termination of this Lease or a surrender
of
the Premises.
Acceptance by Landlord of less than the Rent herein provided shall at Landlord's
option
be
deemed on account of earliest Rent remaining unpaid. No endorsement on any
check, or letter
accompanying Rent, shall be deemed an accord and satisfaction, and such check
may be cashed
without prejudice to Landlord. No waiver of any provision of this Lease shall
be
effective, unless
such waiver be in writing signed by the party to be charged. In no event shall
Tenant be entitled
to make, nor shall Tenant make any claim, and Tenant hereby waives any claim
for
money damages
(nor shall Tenant claim any money damages by way of set-off, counterclaim or
defense) based
upon any claim or assertion by Tenant that Landlord had unreasonably withheld,
delayed or conditioned its consent or approval to any request by Tenant made
under a provision of this Lease. Tenant's
sole remedy shall be an action or proceeding to enforce any such provision,
or
for specific
performance or declaratory judgment. Tenant shall comply with the rules and
regulations contained
in this Lease, and any reasonable modifications thereof or additions thereto.
Landlord shall
not
be liable to Tenant for the violation of such rules and regulations by any
other
tenant. Failure
of Landlord to enforce any provision of this Lease, or any rule or regulation,
shall not be construed
as the waiver of any subsequent violation of a provision of this Lease, or
any
rule or regulation.
This Lease shall not be affected by nor shall Landlord in any way be liable
for
the closing, darkening or bricking up of windows in the Premises, for any
reason, including as the result
of
construction on any property of which the Premises are not a part or by Landlord
's own acts.
ARTICLE
26
OCCUPANCY
AND USE BY TENANT
26.01
If this Lease is terminated because of Tenant's default hereunder, then, in
addition to Landlord's rights of re-entry, restoration, preparation for and
rerental, and anything elsewhere
in this Lease to the contrary notwithstanding, all Rent and Additional Rent
reserved in this
Lease from the date of such breach to the expiration date of this Lease shall
become immediately
due and payable to Landlord and Landlord shall retain its right to judgment
on
and collection
of Tenant's aforesaid obligation to make a single payment to Landlord of a
sum
equal to (i)
the
amount by which (x) the Fixed Annual Rent and Additional Rent payable hereunder
for the period
to
the Expiration Date from the date of such breach, exceeds (y) the then fair
and
reasonable
rental value of the Premises for the same period, both discounted at the prime
rate of interest charged by Chase Manhattan Bank. New York, (or the successor
thereto) on the date of such
breach to present worth, and (ii) all reasonable out-of-pocket expenses of
Landlord in obtaining
possession of, and in effecting the reletting
of the
Premises including, without limitation, alteration
costs, commissions, concessions and legal fees. In no event shall Tenant be
entitled to a credit
or
repayment for rerental income which exceeds the sums payable by Tenant hereunder
or which
covers a period after the original Term of this Lease.
24
ARTICLE
27
NOTICES
27.01
Any xxxx, notice or demand from Landlord to Tenant, may be delivered
personally
at the Premises or sent by registered or certified mail or by any nationally
recognized overnight
delivery service and addressed to Tenant at the Premises or if prior to the
commencement
of the turn of this Lease to the address first set forth herein. Such xxxx,
notice or demand
shall be deemed to have been given at the time of delivery, mailing or receipt
by such delivery
service. Any notice, request or demand from Tenant to Landlord must be sent
by
registered
or certified mail or by any nationally recognized overnight courier service
to
the last address
designated in writing by Landlord.
ARTICLE
28
WATER
28.01
Tenant shall pay the amount of Landlord's cost for all excessive water used
by
Tenant
for any purpose other than ordinary cleaning, pantry or lavatory uses, and
any
sewer rent
or
tax based thereon. In the event Landlord has reason to believe that Tenant's
use
of water in
the
Premises is excessive, Landlord may install a water meter to measure Tenant's
water consumption
for all purposes and Tenant agrees to pay for the installation and maintenance
thereof and
for
water consumed as shown on said meter at Landlord's cost therefor plus fifteen
(15 %) percent.
If water is made available to Tenant in the Building or the Premises through
a
meter which
also supplies other Premises, or without a meter, then Tenant shall pay to
Landlord a reasonable
charge per month for water. Landlord reserves the right to discontinue water
service to the Premises if either the quantity or character of such service
is
changed or is no longer available or
suitable for Tenant's requirements or for any other reason without releasing
Tenant from any liability
under this Lease and without Landlord or Landlord's agent incurring any
liability for any damage
or
loss sustained by Tenant by such discontinuance of service.
ARTICLE
29
SPRINKLER
SYSTEM
29.01
If there shall be a "sprinkler system" in the Premises for any period during
this
Lease, Tenant shall pay a reasonable charge per month, for sprinkler supervisory
service. In no
event
shall Tenant's Share exceed the sum of twenty five ($.25) cents per rentable
square foot of space
per
calendar year during the term of this Lease. If such sprinkler system is damaged
by any act
or
omission of Tenant or its agents, employees, licensees or visitors, Tenant
shall
restore the system
to
good working condition at its own expense. If the New York Board of Fire
Underwriters,
the New York Fire Insurance Exchange, the Insurance Services Office, or any
governmental
authority requires the installation of, or any alteration to a sprinkler system
by
25
reason
of
Tenant's particular manner of occupancy or use of the Premises, including any
alteration necessary
to obtain the full allowance for a sprinkler system in the fire insurance rate
of Landlord, or
for
any other reason, Tenant shall make such installation or alteration promptly,
and at its own expense.
ARTICLE
30
HEAT,
ELEVATOR, ETC.
30.01
Landlord shall provide a minimum of one passenger elevator servicing the
floor
upon which the premises are located twenty-four (24) hours a day, seven days
a
week. Landlord
shall furnish heat to the Premises during days in the cold season in each year
during usual
business hours including Saturdays until 1 P.M., except on Sundays, State
holidays, Federal holidays,
or Building Service Employees Union Contract holidays. If the elevators in
the
Building are
manually operated, Landlord may convert to automatic elevators at any time,
without in any way
affecting Tenant's obligations hereunder.
30.02
Tenant shall not be charged for Tenant's use of one (1) car for freight
elevator
service solely in connection with its initial, single phase move into the
Premises, provided that
(i)
same does not exceed eight (8) hours in the aggregate; and (ii) Tenant
acknowledges and agrees
that such use shall be on a non-exclusive, first-come, first-served
basis.
ARTICLE
31
SECURITY
DEPOSIT
31.01
Tenant has deposited with Landlord the sum of $43.890.48 as security (the
"Security”
) for the performance by Tenant of the terms of this Lease after notice and
the
expiration
of any applicable cure period. Landlord may use any part of the Security to
satisfy any default
of Tenant and any expenses arising from such default, including but not limited
to legal fees
and
any damages or rent deficiency before or after re-entry by Landlord. Tenant
shall, upon demand, deposit with Landlord the Rill amount so used, and/or any
amount not so deposited by Tenant,
in order that Landlord shall have the full Security deposit on hand at all
times
during the term
of
this Lease. If Tenant shall comply fully with the terms of this Lease, the
Security shall be returned
to Tenant after the date fixed as the end of the Lease. In the event of a sale
or lease of the
Building containing the Premises, Landlord may transfer the Security to the
purchaser or tenant,
and Landlord shall thereupon be released from all liability for the return
of
the Security, This
provision shall apply to every transfer or assignment of the Security to a
new
Landlord, Tenant
shall have no legal power to assign or encumber the Security herein
described.
31.02
Effective as of the third (3rd)
anniversary of the Commencement Date (the "Security Reduction Date"), the
security required to be maintained by Tenant under the provisions of this
Article 31 shall be reduced by the sum of $21,945.24 (the "Partial Security
Refund") to the
26
sum
of
$21,945.24 provided that Tenant has not been in default of this Lease at any
time prior thereto.
In the event that Tenant is entitled to a reduction of security in accordance
with the provisions
of this Section 31.02. Landlord shall, within thirty (30) following receipt
from
Tenant of
a
demand therefor, at Landlord's election, refund to Tenant the Partial Security
Refund by either
issuing a check or credit against the next installments of Fixed Annual Rent
and
Additional Rent
accruing hereunder from and after the Security Reduction Date.
ARTICLE
32
TAX
ESCALATION
32.01 Tenant shall pay to Landlord, as Additional Rent, tax escalation in
accordance
with this Article:
(a) For
purposes of this Lease, Landlord and Tenant acknowledge and agree that
the
rentable square foot area of the Premises shall be deemed to be 2,141 square
feet.
(b) For
the
purpose of this Article, the following definitions shall apply:
(i) The
term
"Tenant's
Share",
for
purposes of computing tax escalation, shall mean
0.192 percent (0.192%). Tenant's Share has been computed on the basis of a
fraction, the numerator
of which is the rentable square foot area of the Premises and the denominator
of
which is
the
total rentable square foot area of the office and commercial space in the
Building Project. The
parties acknowledge and agree that the total rentable square foot area of the
office and commercial
space in the Building Project shall be deemed to be 1,112,424 sq.
ft.
(ii) The
term
the "Building
Project"
shall
mean the aggregate combined parcel of land
on a
portion of which are the improvements of which the Premises form a part, with
all the improvements thereon, said improvements being a part of the block and
lot for tax purposes which are applicable to the aforesaid land.
(iii) The
"Base
Tax Year"
shall
mean the New York City fiscal tax year commencing
on July 1, 2005 through June 30, 2006.
(iv) The
term
"Comparative
Year”
shall
mean the twelve (12) month period following
the Base Tax Year, and each subsequent period of twelve (12) months
thereafter.
(v) The
term
"Real
Estate Taxes"
shall
mean the total of all real estate taxes and special
or other assessments levied, assessed or imposed at any time by any governmental
authority
upon or against the Building Project including, without limitation, any tax
or
assessment levied,
assessed or imposed at any lime by any governmental authority in connection
with
the receipt
of income or rents from said Building Project to the extent that same shall
be
in lieu of all or
a
portion of any of the aforesaid taxes or assessments, or additions or increases
thereof, upon or against said Building Project. The Lease shall exclude from
Real Estate Taxes any interest or
27
penalties
incurred by Landlord by reason of late payment of Taxes. If, due to a future
change in the
method of taxation or in the taxing authority, or for any other reason, a
franchise, income, transit,
profit or other tax or governmental imposition, however designated, shall be
levied against Landlord in substitution in whole or in part for the Real Estate
Taxes, or in lieu of additions to or increases of said Real Estate Taxes, then
such franchise, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of "Real Estate
Taxes"
for the purposes hereof.
(vi) Where
more than one assessment is imposed by the City of New York for any tax
year,
whether denominated an “actual assessment” or a "transitional assessment” or
otherwise, then
the
phrases herein "assessed value" and "assessments” shall mean whichever of the
actual, transitional
or other assessment is designated by the City of New York as the taxable
assessment for
that
tax year.
32.02
In the event that the Real Estate Taxes payable for any Comparative Year
shall
exceed the amount of the Real Estate Taxes payable during the Base Tax Year,
Tenant shall pay
to
Landlord, as Additional Rent for such Comparative Year, an amount equal to
Tenant's Share
of
the excess. Before or after the start of each Comparative Year, Landlord shall
furnish to Tenant
a
statement of the Real Estate Taxes payable during the Comparative Year. if
the
Real Estate
Taxes payable for such Comparative Year exceed the Real Estate Taxes payable
during the Base
Tax
Year, Additional Rent for such Comparative Year, in an amount equal to Tenant's
Share
of
the excess, shall be due from Tenant to Landlord, and such Additional Rent
shall
be payable
by Tenant to Landlord within thirty (30) days after receipt of the aforesaid
statement. The benefit
of any discount for any early payment or prepayment of Real Estate Taxes shall
accrue solely
to
the benefit of Landlord, and such discount shall not be subtracted from the
Real
Estate Taxes
payable for any Comparative Year, In addition to the foregoing, Tenant shall
pay
to Landlord,
on demand, as Additional Rent, a sum equal to Tenant's Share of any business
improvement
district assessment payable by the Building Project.
32.03
Should the Real Estate Taxes payable during the Base Tax Year be reduced
by
final
determination of legal proceedings, settlement or otherwise, then, the Real
Estate Taxes payable
during the Base Tax Year shall be correspondingly revised, the Additional Rent
theretofore
paid or payable hereunder for all Comparative Years shall be recomputed on
the
basis of
such
reduction, and Tenant shall pay to Landlord as Additional Rent, within ten
(10)
days after being billed therefor, any deficiency between the amount of such
Additional Rent as theretofore computed and the amount thereof due as the result
of such recomputations.
32.04
If, after Tenant shall have made a payment of Additional Rent under Section
32.02, Landlord shall receive a refund of any portion of the Real Estate Taxes
payable for any Comparative
Year after the Base Tax Year on which such payment of Additional Rent shall
have
been
based, as a result of a reduction of such Real Estate Taxes by final
determination of legal proceedings,
settlement or otherwise, Landlord shall within ten (10) days after receiving
the
refund
pay to Tenant Tenant's Share of the refund less Tenant's Share of expenses
(including attorneys'
and appraisers' fees) incurred by Landlord in connection with any such
application or proceeding. In addition to the foregoing, Tenant shall pay to
Landlord, as Additional Rent, within
28
ten
(10)
days after Landlord shall have delivered to Tenant a statement therefor,
Tenant's Share of
all
expenses incurred by Landlord in reviewing or contesting the validity or amount
of any Real Estate Taxes or for the purpose of obtaining reductions in the
assessed valuation of the Building Project
prior to the billing of Real Estate Taxes, including without limitation, the
fees and disbursements
of attorneys, third party consultants, experts and others.
32.05
The statements of the Real Estate Taxes to be furnished by Landlord as
provided
above shall be certified by Landlord and shall constitute a final determination
as between Landlord and Tenant of the Real Estate Taxes for the periods
represented thereby, unless Tenant within
thirty (30) days after they are furnished shall give a written notice to
Landlord that it disputes
their accuracy or their appropriateness, which notice shall specify the
particular respects in
which
the statement is inaccurate or inappropriate. If Tenant shall so dispute said
statement then,
pending the resolution of such dispute, Tenant shall pay the Additional Rent
to
Landlord in accordance with the statement furnished by Landlord.
32.06
In no event shall the Fixed Annual Rent under this Lease be reduced by
virtue
of
this Article.
32.07
If the Commencement Date of the Term of this Lease is not the first day of
the
first
Comparative Year, then the Additional Rent due hereunder for such first
Comparative Year
shall be a proportionate share of said Additional Rent for the entire
Comparative Year, said proportionate
share to be based upon the length of time that the lease Term will be in
existence during
such first Comparative Year. Upon the date of any expiration or termination
of
this Lease (except
termination because of Tenant's default) whether the same be the date
hereinabove set forth
for
the expiration of the Term or any prior or subsequent date, a proportionate
share of said Additional
Rent for the Comparative Year during which such expiration or termination occurs
shall
immediately become due and payable by Tenant to Landlord, if it was not
theretofore already billed and paid. The said proportionate share shall be
based
upon the length of time that this Lease shall
have been in existence during such Comparative Year. Landlord shall promptly
cause statements
of said Additional Rent for that Comparative Year to be prepared and furnished
to Tenant. Landlord and Tenant shall thereupon make appropriate adjustments
of
amounts then owing.
32.08
Landlord's and Tenant's obligations to make the adjustments referred to in
Section
32.07 above shall survive any expiration or termination of this Lease. Any
delay
or failure
of Landlord in billing any tax escalation hereinabove provided shall not
constitute a waiver of
or in
any way impair the continuing obligation of Tenant to pay such tax escalation
hereunder.
ARTICLE
33
RENT
CONTROL
33.01 In
the event the Fixed Annual Rent or Additional Rent or any part thereof provided
to be paid by Tenant under the provisions of this Lease during the Term shall
become
29
uncollectible
or shall be reduced or required to be reduced or refunded by virtue of any
Federal. State,
County or City law, order or regulation, or by any direction of a public officer
or body pursuant to law, or the orders, rules, code or regulations of any
organization or entity formed pursuant
to law, whether such organization or entity be public or private, then Landlord,
at its option,
may at any time thereafter terminate this Lease, by not less than thirty (30)
days' written notice to Tenant, on a date set forth in said notice, in which
event this Lease and the term hereof shall
terminate and come to an end on the date fixed in said notice as if the said
date were the date originally
fixed herein for the termination of the demised term. Landlord shall not have
the right to
so
terminate this Lease if Tenant within such period of thirty (30) days shall
in
writing lawfully agree
that the rentals herein reserved are a reasonable rental and agree to continue
to pay said rentals,
and if such agreement by Tenant shall then be legally enforceable by
Landlord.
ARTICLE
34
SUPPLIES
34.01
Only Landlord or any one or more persons, firms, or corporations authorized
in writing by Landlord, which authorization shall not be unreasonably withheld,
conditioned
or delayed, shall be permitted to furnish laundry, linens, towels, drinking
water, water coolers,
ice and other similar supplies and services to tenants and licensees in the
Building. Landlord
may fix, in its own absolute discretion, from time to time, the hours during
which and the
regulations under which such supplies and services are to be furnished. Landlord
expressly reserves
the right to act as or to designate, from time to time, an exclusive supplier
of
all or any one
or
more of the said supplies and services; and Landlord furthermore expressly
reserves the right to exclude from the Building any person, firm or corporation
attempting to furnish any of said
supplies or services but not so designated by Landlord.
34.02
Only Landlord or any one or more persons, firms or corporations authorized
in
writing by Landlord shall be permitted to sell, deliver or furnish any food
or
beverages whatsoever
for consumption within the Premises or elsewhere in the Building. Landlord
expressly reserves the right to act as or to designate from time to time an
exclusive supplier or suppliers of such
food
and beverages. Landlord further expressly reserves the right to exclude from
the
Building
any person, Firm or corporation attempting to deliver or purvey any such food
or
beverages,
but not so designated by Landlord. It is understood, however, that Tenant or
its
regular
office employees may personally bring food or beverages into the Building for
consumption
within the Premises by the said employees, but not for resale or for consumption
by any
other
tenant. Landlord may fix in its absolute discretion 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.
30
ARTICLE
35
AIR
CONDITIONING
35.01
Tenant shall be permitted to use the equipment presently supplying
air-conditioning
service to the Premises (the "Existing HVAC Equipment") Monday to Friday from
8:00 to
6:00
p.m. during the Building's "Cooling Season" (which is currently May 15 through
October
15) subject to and in accordance with the provisions of this Article. Landlord
shall perform such
work
as is necessary, if any, in order to place the Existing HVAC Equipment in good
working order
("Landlord's Initial HVAC Work") subject, however, to Tenant's obligation to
thereafter maintain
and repair the Existing HVAC Equipment in accordance with the provisions of
this
Article. Landlord
shall perform Landlord's Initial HVAC Work as promptly as is reasonably
practical following
the commencement of the Term hereof, Tenant acknowledges and agrees that
air-conditioning,
service
to the Premises shall be supplied through equipment operated, maintained and
repaired by Tenant and that Landlord has no obligation to operate, maintain
or
to repair the said equipment
or to supply air-conditioning service to the Premises. The Existing HVAC
Equipment and
all
other air conditioning systems, equipment and facilities hereafter located
in or
servicing the Premises {the "Supplemental Systems") including, without
limitation, the ducts, dampers, registers, grilles and appurtenances utilized
in
connection with both the Existing HVAC Equipment and the Supplemental
Systems (collectively hereinafter referred to as the "HVAC System"), shall
be
maintained,
repaired and operated by Tenant in compliance with all present and future laws
and regulations relating thereto at Tenant's sole cost and expense. Tenant
shall
pay for all electricity consumed in the operation of the HVAC System, and
Tenant's proportionate share of the electric current (and or water, gas and
steam) for the production of chilled and/or condenser water and its supply
to
the Premises, if applicable, which shall become the obligation of Tenant subject
to the terms
of
Article 41 of this Lease Tenant shall pay for all parts and supplies necessary
for the proper operation of the HVAC System (and any restoration or replacement
by Tenant of all or any part thereof shall be in quality and class at least
equal to the original work or installations); provided, however,
that Tenant shall not alter, modify, remove or replace the HVAC System, or
any
part thereof,
without Landlord's prior written consent.
35.02
Without limiting the generality of the foregoing, Tenant shall, at its own
cost
and
expense, (a) cause to be performed all maintenance of the HVAC System, including
all repairs and
replacements thereto, and (b) commencing as of the date upon which Tenant shall
first occupy the
Premises for the conduct of its business, and thereafter throughout the Term
of
the Lease, maintain
in force and provide a copy of same to Landlord an air conditioning service
repair and full
service maintenance contract covering the HVAC System in form satisfactory
to
Landlord with an
air
conditioning contractor or servicing organization approved by Landlord. All
such
contracts shall
provide for the thorough overhauling of the HVAC System at least once each
year
during the Term of this Lease and shall expressly state that (i) it shall be
an
automatically renewing contract terminable upon not less than thirty (30) days
prior written notice to the Landlord (sent by certified mail,
return receipt requested) and (ii) the contractor providing such service shall
maintain a log at the
Premises detailing the service provided during each visit pursuant to such
contract. Tenant shall
keep such log at the Premises and permit Landlord to review same promptly after
Landlord's request. The HVAC System is and shall at all times remain the
property of Landlord, and at the
31
expiration
or sooner termination of the Lease. Tenant shall surrender to Landlord the
HVAC
System
in
good working order and condition, subject to normal wear and tear and shall
deliver to Landlord
a copy of the service log. In the event that Tenant fails to obtain the contract
required herein or perform any of the maintenance or repairs required hereunder.
Landlord shall have the right,
but not the obligation, to procure such contract and/or perform any such work
and charge the
Tenant as Additional Rent hereunder the cost of same plus an administrative
fee
equal to Fifteen percent
(15%) of such cost which shall be paid for by Tenant on demand.
ARTICLE
36
SHORING
36.01
Tenant shall permit any person authorized to make an excavation on land adjacent
to the Building containing the Premises to do any work within the Premises
necessary to preserve the wall of the Building from injury or damage, and Tenant
shall have no claim against Landlord for damages or abatement of rent by reason
thereof.
ARTICLE
37
EFFECT
OF CONVEYANCE ETC.
37.01
If the Building containing the Premises shall be sold, transferred or leased,
or
the
lease thereof transferred or sold, Landlord shall be relieved of all future
obligations and liabilities
hereunder and the purchaser, transferee or tenant of the Building shall be
deemed to have assumed
and agreed to perform all such obligations and liabilities of Landlord
hereunder. In the event
of
such sale, transfer or lease, Landlord shall also be relieved of all existing
obligations and liabilities hereunder, provided that the purchaser, transferee
or tenant of the Building assumes in writing such obligations and
liabilities.
ARTICLE
38
RIGHTS
OF SUCCESSORS AND ASSIGNS
38.01
This Lease shall bind and inure to the benefit of the heirs, executors,
administrators,
successors, and, except as otherwise provided herein, the assigns of the parties
hereto.
If any provision of any Article of this Lease or the application thereof to
any
person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of that
Article, or the
application of such provision to persons or circumstances other than those
as to
which it is held invalid
or unenforceable, shall not be affected thereby, and each provision of said
Article and of this
Lease shall be valid and be enforced to the fullest extent permitted by
law.
32
ARTICLE
39
CAPTIONS
39.01
The captions herein are inserted only for convenience, and are in no way to
be
construed as a part of this Lease or as a limitation of the scope of any
provision of this Lease.
ARTICLE
40
BROKERS
40.01
Tenant covenants, represents and warrants that Tenant has had no dealings
or
negotiations with any broker or agent in connection with the consummation of
this Lease other than
XX
Xxxxx Leasing LLB: (the "Broker”) and Tenant covenants and agrees to defend,
hold harmless
and indemnify Landlord from and against any and all cost, expense (including
reasonable attorneys'
fees) or liability for any compensation, commissions or charges claimed by
any
broker or agent with respect to this Lease or the negotiation thereof. Landlord
represents that Landlord, at its sole cost and expense, shall pay all
commissions due to the Brokers pursuant to a separate written
agreement.
40.02
Landlord represents and warrants to Tenant that it did not consult or
negotiate
with any broker, finder, or consultant with regard to the Premises other than
the Brokers,
and that no other broker, finder or consultant participated in procuring this
Lease. Landlord
hereby indemnifies and agrees to defend and hold Tenant, its agents, servants
and employees harmless from any suit, action, proceeding, controversy, claim
or
demand whatsoever at law or in equity that may be instituted against Tenant
by
those who dealt with Landlord for recovery
of compensation or damages for procuring this Lease or by reason of a breach
or
purported
breach of the representations and warranties contained herein.
ARTICLE
41
ELECTRICITY
41.01
Tenant acknowledges and agrees that electric service shall be supplied to the
Premises
on a “rent inclusion basis" in accordance with the provisions of this Article 41
(subject to Landlord's right, in its sole discretion. to furnish such
electricity on a "submetering" basis as provided for herein).
41.02
Electricity and electric service, as used herein, shall mean any element
affecting
the generation, transmission, and/or distribution or redistribution of
electricity, including but
not
limited to services which facilitate the distribution of service.
33
41.03
If and so long as Landlord provides electricity to the Premises on a rent
inclusion
basis, Tenant agrees that the Fixed Annual Rent shall be increased by the amount
of the Electricity
Rent Inclusion Factor (“ERIF”as hereinafter defined, Tenant acknowledges and
agrees (i) that the Fixed Annual Rent hereinabove set forth in this Lease does
not yet, but is to include
an ERIF of $3.00 per rentable square foot to compensate Landlord for electrical
wiring and
other
installations necessary for, and for its obtaining and making available to
Tenant the redistribution
of electric current as an additional service, and Tenant shall pay for Tenant's
Share of
Building electric current (i.e., all electricity used in lighting the public
and
service areas, and in operating
all the service facilities, of the Building and the parties acknowledge and
agree that twenty
percent (20%) of the Building's payment to the public utility or other service
providers for the
purchase of electricity shall be deemed to he payment for Building electric
current) which shall be
paid
for by Tenant in accordance with provisions hereof; and (ii) that said ERIF,
which shall be subject
to periodic adjustments as hereinafter provided, has been partially based upon
an estimate of
the
Tenant's connected electrical load. in whatever manner delivered to Tenant,
which shall be deemed to be the demand (KW), and hours of use thereof, which
shall be deemed to be the energy (KWH),
for ordinary lighting and light office equipment and the operation of the usual
small business
machines, including Xerox or other copying machines (such lighting and equipment
are hereinafter
called “Ordinary
Equipment"
during
ordinary business hours ("Ordinary
Business Hours")
shall
be deemed to mean 50 hours per week). with Landlord providing an average
connected
load of 4 1/2
xxxxx
of electricity for all purposes per rentable square foot. Any installation
and use of equipment other than Ordinary Equipment and/or any connected load
and/or energy
usage by Tenant in excess of the foregoing and the charge for Tenant's Share
of
Building electric
current shall result in adjustment of the ERIF as hereinafter provided. For
purposes of this
Article, the rentable square foot area of the Premises shall be deemed to be
2,141 square feet.
41.04
If the cost to Landlord of electricity shall have been, or shall be, increased
subsequent to September 1, 2005 (whether such change occurs prior to or during
the term of this Lease),
by change in Landlord's electric rates or service classifications, or
electricity charges, including
changes in market prices, or by an increase, subsequent to the last such
electric rate or service
classification change or market price change, in fuel adjustments or charges
of
any kind, or by
taxes,
imposed on Landlord's electricity purchases or on Landlord's electricity
redistribution. or
for
any other such reason, then the aforesaid ERIF portion of the fixed annual
rent
shall be changed
in the same percentage as any such change in cost due to changes in electric
rates, service classifications
or market prices, and, also Tenant's payment obligation, for electricity
redistribution,
shall change from time to time so as to reflect any such increase in fuel
adjustments or
charges, and such taxes. Any such percentage change in Landlord's cost due
to
change in Landlord's
electric rate or service classifications or market prices, shall be computed
on
the basis of the average consumption of electricity for the Building for the
twelve full months immediately prior
to
the rate change or other such changes in cost, energy and demand, and any
changed methods
of or rules on billing for same, applied on a consistent basis to the new
electric rate or service
classification or market price and to the immediately prior existing electric
rate or service classification
or market price, if the average consumption (energy and demand) for the entire
Building
for said prior twelve (12.) months cannot reasonably be applied and used with
respect to changed
methods of or rules on billing, then the percentage increase shall be computed
by the use of
the
average consumption (energy and demand) for the entire building for the first
three (3)
34
months
after such change, projected to a full twelve (12) months, so as to reflect
the
different seasons;
and that same consumption, so projected, shall be applied to the rate and/or
service classification
or market price which existed immediately prior to the change. The parties
agree
that
a
reputable, independent electrical consultant firm, selected by Landlord
("Landlord's
Electrical
Consultant"),
shall
determine the percentage change for the changes in ERIF due to Landlord's
changed costs and the charge to Tenant for Tenant's Share of Building electric
current,
and that Landlord's Electrical Consultant may from time to time make surveys
in
the Premises
of the electrical equipment and fixtures and use of current. (i) If such survey
shall reflect a
connected electrical load in excess of 4 1/2watts of electricity for all
purposes per rentable square foot
and/or energy usage in excess of Ordinary Business Hours (each such excess
hereinafter called
"excess
electricity')
then
the connected electrical load and/or the hours of use portion(s) of the
then
existing ERIE shall be increased by an amount which is equal to a fraction
of
the then existing
ERIF, the numerator of which is the excess electricity (i.e., excess connected
load and/or excess usage) and the denominator of which is the connected load
and/or the energy usage which was the basis of the then existing ERIF, Such
fractions shall be determined by Landlord's Electrical
Consultant. The Fixed Annual Rent shall then be appropriately adjusted,
effective as of the
date
of any such change in connected load and/or usage, as disclosed by said survey.
(ii) If such
survey shall disclose installation and use of other than Ordinary Equipment,
then effective as of
the
date of said survey, there shall be added to the ERIF portion of Fixed Annual
Rent (computed
and fixed as hereinbefore described) an additional amount equal to what would
be
paid under
the
SC-4 Rate 1 Service Classification in effect on September 1, 2005 (and not
the
time-of--day rate schedule) or the comparable rate schedule (and not the
time-of-day rate schedule) of any utility
other than Con Ed then providing electrical service to the building as same
shall be in effect on
the
date of such survey for such load and usage of electricity, with the connected
electrical load deemed to be the demand (KW) and the hours of use thereof deemed
to be the energy (KWH), as hereinbefore
provided, (which addition to the ERIF shall be increased by all electricity
cost
changes
of Landlord, as hereinabove provided, from September 1, 2005 through the date
of
billing).
41.05
In no event, whether because of surveys, rates or cost changes, or for any
reason,
is the originally specified $3.00 per rentable square foot ERIE portion of
the
fixed annual rent
(plus any net increase thereof by virtue of all electricity rate, service
classification or market price
changes of Landlord subsequent to September 1, 2005) to be reduced.
41.06
The determinations by Landlord's Electrical Consultant shall be binding.
and
conclusive on Landlord and Tenant from and after the delivery of copies of
such
determinations
to Landlord and Tenant, unless, within fifteen (15) days after delivery thereof,
Tenant
disputes such determination. If Tenant so disputes the determination, it shall,
at its own expense,
obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then
shall seek to agree. If they cannot agree within thirty (30) days they shall
choose a third reputable
electrical consultant, whose cost shall be shared equally by the parties, to
make similar determinations
which shall be controlling. (If they cannot agree on such third consultant
within ten
(10)
days, then either party may apply to the Supreme Court in the County of New
York
for such
appointment.) However, pending such controlling determinations Tenant shall
pay
to
35
Landlord
the amount of Additional Rent or ERIF in accordance with the determinations
of
Landlord's Electrical Consultant. If the controlling determinations differ
from
Landlord's Electrical
Consultant, then the parties shall promptly make adjustments for any deficiency
owed by Tenant or overage paid by Tenant,
41.07
If and so long as Landlord provides electricity to the Premises on a
submetering
basis, Tenant covenants and agrees to purchase the same from Landlord or
Landlord's
designated agent at charges, terms and rates set, from time to time, during
the
term of this
Lease by Landlord but not more than those specified in the service
classification in effect on January 1, 1970 pursuant to which Landlord then
purchased electric current from the public utility corporation
serving the part of the city where the Building is located; provided however,
said charges shall be increased in the same percentage as any percentage
increase in the billing to Landlord
for electricity for the entire Building, by reason of increase in Landlord's
electric rates or
service classifications, subsequent to January 1, 1970, and so as to reflect
any
increase in Landlord's
electric charges, including changes in market prices for electricity from
utilities and/or other providers, in fuel adjustments or by taxes or charges
of
any kind imposed on Landlord's
electricity purchases or redistribution, or for any other such reason,
subsequent to said date.
Any
such percentage increase in Landlord's billing for electricity due to changes
in
rates, service
classifications, or market prices, shall be computed by the application of
the
average consumption
(energy and demand) of electricity for the entire Building for the twelve (12)
full months
immediately prior to the rate and/or service classification change, or any
changed methods of
or
rules on billing for same, applied on a consistent basis to the new rate and/or
service classification
or market price, and to the classification and rate in effect on January 1,
1970. If the average consumption of electricity for the entire Building for
said
prior twelve (12.) months cannot reasonably be applied and used with respect
to
changed methods of or rules on billing. then the percentage shall be computed
by
the use of the average consumption (energy and demand) for the entire
Building for the first three (3) months after such change, projected to a full
twelve (12) months,
so as to reflect the different seasons; and that same consumption, so projected,
shall be applied
to the service classification and rate in effect on January 1, 1970. Where
more
than one meter
measures the service of Tenant in the Building, the service rendered through
each meter may be
computed and billed separately in accordance with the rates herein specified.
Bills therefore shall
be
rendered at such times as Landlord may elect and the amount, as computed from
a
meter, shall
be
deemed to be, and be paid as, Additional Rent. In the event that such bills
are
not paid within
five (5) days after the same are rendered, Landlord may, without further notice,
discontinue the
service of electric current to the Premises without releasing Tenant from any
liability under this
Lease and without Landlord or Landlord's agent incurring any liability for
any
damage or loss
sustained by Tenant by such discontinuance of service. If any tax is imposed
upon Landlord's
receipt from the sale, resale or redistribution of electricity or gas or
telephone service to
Tenant
by any Federal, State, or Municipal authority, Tenant covenants and agrees
that
where permitted
by law, Tenant's pro-rata share of such taxes shall be passed on to and included
in the xxxx
of,
and paid by, Tenant to Landlord.
41.08
If all or part of the submetering Additional Rent or the ERIE payable in
accordance
with Section 41.03 or 41.04 of this Article becomes uncollectible or reduced
or
refunded
by virtue of any law, order or regulations, the parties agree that, at
Landlord's option,
36
in
lieu
of submetering Additional Rent or ERIF, and in consideration of Tenant's use
of
the Building's
electrical distribution system and receipt of redistributed electricity and
payment by Landlord
of consultant's fees and other redistribution costs, the Fixed Annual Rental
rate(s) to be paid
under this Agreement shall be increased by an "alternative charge" which shall
be a sum equal
to
$3.00 per year per rentable square foot of the Premises, changed in the same
percentage as
any
increase in the cost to Landlord for electricity for the entire Building
subsequent to September
1, 2005, because of electric rate, service classification or market price
changes, such percentage change to be computed as in Section 41.04
provided.
41.09
Landlord shall not be liable to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quantity or character of electric
service is changed or is no longer available or suitable for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the Building
or
wiring installation. Any riser or risers to supply Tenant's electrical
requirements, upon
written request of Tenant, will be installed by Landlord, at the sole cost
and
expense of Tenant, if, in Landlord's sole judgment, the same are necessary
and
will not cause permanent damage or injury to the Building or the Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants. In addition to the installation of such riser or risers,
Landlord will also at the sole cost and expense of Tenant, install all other
equipment proper and necessary in connection therewith subject to the aforesaid
terms and conditions. The parties acknowledge that they understand that it
is
anticipated that electric rates, charges, etc., may be changed by virtue of
time-of-day rates or changes in other methods of billing, and/or
electricity,
purchases and the redistribution thereof, and fluctuation in the market price
of
electricity, and that the references in the foregoing paragraphs to changes
in
methods of or rules on billing arc intended to include any such changes.
Anything hereinabove to the contrary notwithstanding, in no event is the
submetering Additional Rent or ERIF, or any "alternative charge", to be less
than an amount equal to the total of Landlord's payments to public utilities
and/or other providers for the electricity consumed by Tenant (and any taxes
thereon or on redistribution of same) plus 5% thereof for transmission line
loss, plus 15% thereof for other redistribution costs. The Landlord reserves
the
right, at any time upon thirty (30) days' written notice, to change its
furnishing of electricity
to Tenant from a rent inclusion basis to a submetering basis, or vice versa,
or
to change to
the
distribution of less than all the components of the existing service to Tenant.
The Landlord reserves the right to terminate the furnishing of electricity
on a
rent inclusion, submetering, or any other
basis at any time, upon thirty (30) days' written notice to the Tenant, in
which
event the Tenant
may make application directly to the public utility and/or other providers
for
the Tenant's entire separate supply of electric current and Landlord shall
permit its wires and conduits, to the extent available and safely capable,
to be
used for such purpose, but only to the extent of Tenant' s then authorized
load.
Any meters, risers, or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain electric
current directly from such utility
and/or other providers shall be installed at Tenant's sole cost and expense.
Only rigid conduit
or electricity metal tubing (EMT) will be allowed. The Landlord, upon the
expiration of the
aforesaid thirty (30) days' written notice to the Tenant may discontinue
furnishing the electric current
but this Lease shall otherwise remain in full force and effect. If Tenant was
provided electricity
on a rent inclusion basis when it was so discontinued, then commencing when
Tenant
37
receives
such direct service and as long as Tenant shall continue to receive such
service, the Fixed Annual
Rent payable under this Lease shall be reduced by the amount of the ERIF which
was payable
immediately prior to such discontinuance of electricity on a rent inclusion
basis.
ARTICLE
42
LEASE
SUBMISSION
42.01
Landlord and Tenant agree that this Lease is submitted to Tenant on the
understanding
that it shall not be considered an offer and shall not bind Landlord in any
way
unless
and until (i) Tenant has duly executed and delivered duplicate originals thereof
to Landlord and
(ii)
Landlord has executed and delivered one of said original to Tenant.
ARTICLE
43
INSURANCE
43.01.
Tenant shall not violate, or permit the violation of, any condition imposed
by
the
standard fire insurance policy then issued for office buildings in the Borough
of Manhattan, City
of
New York, and shall not do, or permit anything to be done, or keep or permit
anything to be
kept
in the Premises which would subject Landlord to any liability or responsibility
for personal injury
or
death or property damage, or which would increase the fire or other casualty
insurance rate
on
the Building or the property therein over the rate which would otherwise then
be
in effect (unless
Tenant pays the resulting premium as hereinafter provided for) or which would
result in insurance companies of good standing refusing to insure the building
or any of such property in amounts
reasonably satisfactory to Landlord.
43.02
Tenant covenants to provide on or before the earlier to occur of (i) the
Commencement
Date, and (ii) ten (10) days from the date of this Lease, and to keep in force
during
the term hereof the following insurance coverage which coverage shall be
effective on the Commencement Date:
(a)
A comprehensive policy of liability insurance naming Landlord and its
designees as additional insureds protecting Landlord, its designees and Tenant
against any liability
whatsoever occasioned by accident on or about the Premises or any appurtenances
thereto. Such
policy shall have limits of liability of not less than Three Million
($3,000,000) Dollars combined
single limit coverage on a per occurrence basis, including property damage.
Such
insurance
may be carried under a blanket policy covering the Premises and other locations
of Tenant,
if any, provided such a policy contains an endorsement (i) naming Landlord
and
its designees
as additional insureds, (ii) specifically referencing the Premises; and (iii)
guaranteeing a minimum
limit available for the Premises equal to the limits of liability required
under
this Lease:
(b)
Fire
and
extended coverage in an amount adequate to cover the cost
38
of
replacement of all personal property, fixtures, furnishings, equipment,
improvements and installations
located in the Premises.
43.03
All such policies shall be issued by companies of recognized responsibility
licensed
to do business in New York State and rated by Best's Insurance Reports or any
successor publication
of comparable standing and carrying a rating of A+ VIII or better or the then
equivalent
of such rating, and al1 such policies shall contain a provision whereby the
same
cannot be
canceled or modified unless Landlord and any additional insured are given at
least thirty (30) days
prior written notice of such cancellation or modification.
43.04
Prior co the time such insurance is first required to be carried by Tenant
and
thereafter,
at least fifteen (15) days prior to the expiration of any such policies, Tenant
shall deliver
to Landlord either duplicate originals of the aforesaid policies or certificates
evidencing such
insurance, together
with evidence of payment for the policy. If Tenant delivers certificates as
aforesaid
Tenant, upon reasonable prior notice from Landlord, shall make available to
Landlord, at
the
Premises, duplicate originals of such policies from which Landlord may make
copies thereof,
at Landlord's cost. Tenant's failure to provide and keep in force the
aforementioned insurance
shall be regarded as a material default hereunder, entitling Landlord to
exercise any or all
of
the remedies as provided in this Lease in the event of Tenant's default, In
addition, in the event
Tenant fails to provide and keep in force the insurance required by this Lease,
at the times and
for
the durations specified in this Lease. Landlord shall have the right, but not
the obligation, at
any
time and from time to time, and without notice, to procure such insurance and/or
pay the premiums for such insurance in which event Tenant shall repay Landlord
within five (5) days after demand by Landlord, as Additional Rent, all sums
so
paid by Landlord and any costs or expenses incurred by Landlord in connection
therewith without prejudice to any other rights and remedies of Landlord under
this Lease
43.05
Landlord and Tenant shall each endeavor to secure an appropriate clause in,
or
an
endorsement upon, each fire or extended coverage policy obtained by it and
covering the Building, the Premises or the personal property, fixtures and
equipment located therein or thereon, pursuant
to which the respective insurance companies waive subrogation or permit the
insured, prior
to
any loss, to agree with a third party to waive any claim it might have against
said third party.
The waiver of subrogation or permission for waiver of any claim hereinbefore
referred to shall
extend to the agents of each party and its employees and, in the case of Tenant,
shall also extend to all other persons and entities occupying or using the
Premises in accordance with the terms
of
this Lease. If and to the extent that such waiver or permission can be obtained
only upon payment
of an additional charge then, except as provided in the following two
paragraphs, the party
benefiting from the waiver or permission shall pay such charge upon demand,
or
shall be deemed
to
have agreed that the party obtaining the insurance coverage in question shall
be
free of any
further obligations under the provisions hereof relating to such waiver or
permission.
43.06
In the event that Landlord shall be unable at any time to obtain one of the
provisions
referred to above in any of its insurance policies, at Tenant's option, Landlord
shall cause
Tenant to be named in such policy or policies as one of the insureds, but if
any
additional premium shall be imposed for the inclusion of Tenant as such an
insured, Tenant shall pay such
39
additional
premium upon demand. In the event that Tenant shall have been named as one
of
the insureds
in any of Landlord's policies in accordance with the foregoing, Tenant shall
endorse promptly
to the order of Landlord. without recourse, any check, draft or order for the
payment of money
representing the proceeds of any such policy or any other payment growing out
of
or connected
with said policy and Tenant hereby irrevocably waives any and all rights in
and
to such proceeds and payments.
43.07
In the event that Tenant shall be unable at any time to obtain one of the
provisions
referred to above in any of its insurance policies, Tenant shall cause Landlord
to be named in such policy or policies as one of the insureds. but if any
additional premium shall be imposed for the inclusion of Landlord as such an
insured, Landlord shall pay such additional premium
upon demand or Tenant shall be excused from its obligations under this paragraph
with respect to the insurance policy or policies for which such additional
premiums would be imposed.
43.08
Subject to the foregoing provisions of this Article, and insofar as may be
permitted
by the terms of the insurance policies carried by it, each party hereby releases
the other with
respect to any claim (including a claim for negligence) which it might otherwise
have against the
other
party for loss, damages or destruction with respect to its property by fire
or
other casualty
(including rental value or business interruption, as the case may be) occurring
during the Term
of
this Lease.
43.09
If, by reason of a failure of Tenant to comply with the provisions of this
Lease,
the rate of fire insurance with extended coverage on the building or equipment
or other property
of Landlord shall be higher than it otherwise would be, Tenant shall reimburse
Landlord, on
demand, for that part of the premiums fur fire insurance and extended coverage
paid by Landlord
because of such failure on the part of Tenant.
43.10
Landlord may, from time to time, require that the amount of the insurance to
be
provided and maintained by Tenant hereunder be increased so that the amount
thereof adequately
protects Landlord's interest, but in no event in excess of the amount that
would
be required
of other tenants in other similar office buildings in the borough of
Manhattan.
43.11
A schedule or make up of rates for the building or the Premises, as the case
may
be, issued by the New York Fire Insurance Rating Organization or other similar
body making rates for fire insurance and extended coverage for the premises
concerned, shall be conclusive evidence of the facts therein stated and of
the
several items and charges in the fire insurance rate with extended coverage
then
applicable to such premises.
43.12
Each policy evidencing the insurance to be carried by Tenant under this
Lease
shall contain a clause that such policy and the coverage evidenced thereby
shall
be primary with respect to any policies carried by Landlord, and that any
coverage carried by Landlord shall be excess
insurance.
40
ARTICLE
44
SIGNAGE
44.01
Tenant shall be permitted to affix either sign or plaque on or adjacent to
the
entrance door to the Premises, subject to the prior written approval of Landlord
which shall not be unreasonably
withheld subject to the other provisions of this Article, with respect to
location, design,
size, materials, quality, coloring, lettering and shape thereof, and subject,
also, to compliance
by Tenant, at its expense, with all applicable legal requirements or
regulations. All such
signage shall be consistent and compatible with the design, aesthetics, signage
and graphics program for the Building as established by Landlord. Landlord
may
remove any sign installed in violation
of this provision, and Tenant shall pay the cost of such removal and any
restoration costs.
ARTICLE
45
RIGHT
TO RELOCATE
45.01
Notwithstanding anything contained in this Lease to the contrary, Landlord
shall
have the right to substitute in lieu of the Premises alternative space in the
Building designated by
Landlord (the "Relocation Space") effective as of the date (the "Relocation
Effective Date") set
forth
in a notice given to Tenant (the "Relocation Notice"). The Relocation Space
shall be reasonably
comparable to the Premises with respect to internal configuration, quality
of
finish and rentable
square foot area (ix., plus or minus ten (10%) percent). The Relocation
Effective Date shall
not
be less than sixty (60) days following the date upon which the Relocation Notice
is given to
Tenant. In the event that Landlord exercises its rights hereunder, (i) Tenant
shall deliver to Landlord
possession of the Premises on or before the Relocation Effective Date vacant
and
broom clean,
free of all occupancies and encumbrances and otherwise in accordance with the
terms, covenants
and conditions of the Lease as if the Relocation Effective Date were the
expiration date of
the
Term of this Lease, (ii) effective as of the Relocation Effective Date, the
term
and estate hereby
granted with respect to the Premises originally demised hereunder shall
terminate, the Relocation
Space shall be deemed to be the Premises and the Fixed Annual Rent and
Additional Rent
payable under this Lease shall be adjusted, if necessary, so as to reflect
any
difference between
the deemed rentable square foot area of the original Premises and said
Relocation Space.
45.02
Provided that Tenant is not in default under this Lease, Landlord shall (i)
at
Landlord's cost and expense, remove and reinstall Tenants' personal property,
trade fixtures and equipment
in the Relocation Space (“Landlord's
Relocation Work")
and
(ii) compensate Tenant for
Tenant's actual, reasonable, out-of-pocket moving and related expenses upon
Tenant's submission
of paid invoices therefor. Landlord shall complete Landlord's Relocation Work
on
or before the Relocation Effective Date provided that Tenant cooperates with
Landlord and gives Landlord full access to the Premises to facilitate the
performance thereof.
45.03
Following any relocation undertaken pursuant to this Article, Tenant
shall
41
promptly
execute and deliver an agreement confirming such relocation and fixing any
corresponding
adjustments in Fixed Annual Rent and Additional Rent payable under this Lease,
but any failure to execute such an agreement by Tenant shall not affect such
relocation and adjustments as determined by Landlord.
45.04
Notwithstanding anything contained herein to the contrary, Landlord and Tenant
agree that in no event shall the fixed annual rent payable hereunder be
increased in the event the Relocation Space is larger than the
Premises.
ARTICLE
46
FUTURE
CONDOMINIUM CONVERSION
46.01
Tenant acknowledges that the Building and the land of which the Premises form
a
part may be subjected to the condominium form of ownership prior to the end
of
the Term of this Lease. Tenant agrees that if, at any time during the Term,
the
Building and the land shall be subjected to the condominium form of ownership,
then, this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate in all respects to any condominium
declaration and
any
other documents (collectively, the "Declaration”)
which
shall be recorded in order to convert the Building and the land of which the
Premises form a part to a condominium form of ownership in accordance with
the
provisions of Article 9-B of the Real Property Law of the State of New York
or
any successor thereto. If any such Declaration is to be recorded, Tenant, upon
request of Landlord, shall enter into an amendment of this Lease in such
respects as shall be necessary to conform to such condominiumization, including,
without limitation, appropriate adjustments
to Real Estate Taxes payable during the Base Tax Year and Tenant's Share, as
such terms
are
defined in Article 32 hereof provided that it does not materially increase
Tenant's obligations
under the Lease or materially
decrease the marketable square footage of the Premises.
ARTICLE
47
MISCELLANEOUS
47.01
This Lease represents the entire understanding between the parties with
regard
to
the matters addressed herein and may only be modified by written agreement
executed by all
parties hereto. All prior understandings or representations between the parties
hereto, oral or written,
with regard to the matters addressed herein are hereby merged herein. Tenant
acknowledges
that neither Landlord nor any representative or agent of
Landlord
has made any representation
or warranty, express or implied, as to the physical condition, state of repair,
layout, footage
or use of the Premises or any matter or thing affecting or relating to Premises
except as specifically set forth in this Lease. Tenant has not been induced
by
and has not relied upon any statement, representation or agreement, whether
express or implied, not specifically set forth in this Lease. Landlord shall
not
be liable or bound in any manner by any oral or written statement, broker's
"set-up", representation, agreement or information pertaining to the Premises,
the Building
or this Agreement furnished by any real estate broker, agent, servant, employee
or other
42
person,
unless specifically set forth herein, and no rights are or shall be acquired
by
Tenant by implication
or otherwise unless expressly set forth herein. This Lease shall be construed
without regard
to
any presumption or other rule requiring construction against the party causing
this agreement
to be drafted.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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ARTICLE
48
COMPLIANCE
WITH LAW
48.01
If, at any time during the Term hereof, Landlord expends any sums for
alterations
or improvements to the Building which are required to be made pursuant to any
law, ordinance or governmental regulation, Tenant shall pay to Landlord, as
Additional Rent, Tenant's Share
of
such cost within ten (10) days after demand therefor; provided, however, that
if
the cost of
such
alteration or improvement is one which is required to be amortized over a period
of time pursuant to applicable governmental regulations, Tenant shall pay to
Landlord, as Additional Rent, during
each year in which occurs any part of the Term, Tenant's Share of the cost
thereof amortized
on a straight line basis over an appropriate period, but not more than seven
(7)
years. In no event shall Tenant's Share exceed the sum of one (S1.00) dollar
per
rentable square foot of space
per
calendar year during the term of this Lease. Notwithstanding anything to the
contrary contained herein, in the event that the requirement for the performance
of any such alteration of improvement is attributable to the actions,
installations, use or manner of use of the Premises by Tenant, then in such
event Tenant shall be responsible to pay the entire cost imposed by Landlord
with respect to such alteration of improvement.
IN
WITNESS WHEREOF, the said Landlord, and the Tenant have duly executed
this
Lease as of the day and war first above written.
| Witness: | SLG GRAYBAR SUBLEASE LLC, as Landlord | ||
| /s/ | By: | ||
|
|
|
||
| Name:
Xxxx
Xxxxxxx Title: Adm Asst. |
Name:
Xxxxxx X.
Xxxxxx Title: COO |
| FERMAVIR RESEARCH, INC., as Tenant | |||
| By: | |||
|
|
|||
| Name:
Xxxxxxxx
Xxxxxx Title: CEO |
44
ARTICLE
49
RULES
AND REGULATIONS
MADE
A PART OF THIS LEASE
1.
No
animals, birds, bicycles or vehicles
shall be brought into or kept in the Premises.
The Premises shall not be used for manufacturing or commercial repairing or
for
sale or
display of merchandise or as a lodging place, or for any immoral or illegal
purpose, nor shall the
Premises be used for a public stenographer or typist; xxxxxx or beauty shop;
telephone, secretarial
or messenger service; employment, travel or tourist agency; school or classroom:
commercial
document reproduction; or for any business other than specifically provided
for
in the Tenant's lease. Tenant shall not cause or permit in the Premises any
disturbing noises which may interfere
with occupants of this or neighboring Buildings, any cooking or objectionable
odors, Or any
nuisance of any kind, or any inflammable or explosive fluid, chemical or
substance, Canvassing,
soliciting and peddling in the Building are prohibited, and each tenant shall
cooperate so
as to
prevent the same.
2.
The
toilet rooms and other water apparatus shall not be used for any purposes other
than those for which they were constructed, and no sweepings, rags, ink,
chemicals or other unsuitable
substances shall be thrown therein. Tenant shall not place anything out of
doors, windows
or skylights, or into hallways, stairways or elevators, nor place food or
objects on outside
window xxxxx, Tenant shall not obstruct or cover the halls, stairways and
elevators, or use them
for
any purpose other than ingress and egress to or from Tenant's Premises, nor
shall skylights.
windows, doors and transoms that reflect or admit light into the Building be
covered or obstructed
in any way, All drapes and blinds installed by Tenant on any exterior window
of
the Premises
shall conform in style and color to the Building standard.
3.
Tenant
shall not place a load upon any floor of the Premises in excess of load
per
square foot which such floor was designed to carry and which is allowed by
law.
Landlord
reserves the right to prescribe [he weight and position of all safes, file
cabinets and filing equipment in the Premises. Business machines and mechanical
equipment shall be placed and maintained
by Tenant, at Tenant's expense, only with Landlord's consent and in settings
approved
by Landlord to control weight, vibration, noise and annoyance. Smoking or
carrying lighted
cigars, pipes or cigarettes in the elevators of the Building is
prohibited.
4.
Tenant
shall not move any heavy or bulky materials into or out of the Building
or
make
or receive large deliveries of goods, furnishings, equipment or other items
without Landlord's
prior written consent, and then only during such hours and in such manner as
Landlord
shall approve and in accordance with Landlord's rules and regulations pertaining
thereto.
If any material or equipment requires special handling, Tenant shall employ
only
persons holding a Master Rigger's License to do such work, and all such work
shall comply with all legal requirements.
Landlord reserves the right to inspect all freight to be brought into the
Building, and
to
exclude any freight which violates any rule, regulation or other provision
of
this Lease.
45
5.
No
sign, advertisement, notice or thing
shall be inscribed, painted or affixed on any
part
of the Building, without the prior written consent of Landlord. Landlord may
remove anything
installed in violation of this provision, and Tenant shall pay the cost of
such
removal and any
restoration costs. Interior signs on doors and directories shall be inscribed
or
affixed by Landlord
at Tenant's expense. Landlord shall control the color, size, style and location
of all signs,
advertisements and notices. No advertising of any kind by Tenant shall refer
to
the Building,
unless first approved in writing by Landlord.
6.
No
article shall be fastened to, or holes drilled or nails or screws driven into,
the ceilings.
walls, doors or other portions of the Premises, nor shall any part of the
Premises be painted,
papered or otherwise covered, or in any way marked or broken, without the prior
written consent of Landlord.
7.
No
existing locks shall be changed, nor shall any additional locks or bolts of
any
kind
be
placed upon any door or window by Tenant, without the prior written consent
of
Landlord.
Two (2) sets of keys to all exterior and interior locks shall be furnished
to
Landlord. At
the
termination of this Lease, Tenant shall deliver to Landlord all keys for any
portion of the Premises
or Building. Before leaving the Premises at any time, Tenant shall close all
windows and close
and
lock all doors.
8.
No
Tenant
shall purchase or obtain for use in the Premises any spring water, ice,
towels, food, bootblacking, barbering or other such service furnished by any
company or person
not approved by Landlord. Any necessary exterminating work in the Premises
shall
be done
at
Tenant's expense, at such times, in such manner and by such company as Landlord
shall require.
Landlord reserves the right to exclude from the Building, from 6:00 p.m. to
8:00
a.m., and
at
all hours on Sunday and legal holidays, all persons who do not present a pass
to
the Building
signed by Landlord. Landlord will furnish passes to all persons reasonably
designated by Tenant.
Tenant shall be responsible for the acts of all persons to whom passes are
issued at Tenant's
request.
9.
Whenever
Tenant shall submit to Landlord any plan, agreement or other document
for Landlord's consent or approval, Tenant agrees to pay Landlord as Additional
Rent, on
demand, an administrative fee equal to the sum of the reasonable fees of any
architect, engineer or
attorney employed by Landlord to review said plan, agreement or document and
Landlord's administrative costs for same.
10.
The
use in the Premises of auxiliary
heating devices, such as portable electric heaters, heat lamps or other devices
whose principal function at the time of operation is to produce space heating,
is prohibited.
11.
Tenant
shall keep all doors from the
hallway to the Premises closed at all times except
for use during ingress to and egress from the Premises. Tenant acknowledges
that
a violation
of the terms of this paragraph may also constitute a violation of codes, rules
or regulations
of governmental authorities having or asserting jurisdiction over the Premises,
and
46
Tenant
agrees to indemnify Landlord from any fines, penalties, claims, action or
increase in fire insurance rates which might result from Tenant's violation
of
the terms of this paragraph.
12.
Tenant
shall be permitted to maintain an "in-house" messenger or delivery service
within the Premises, provided that Tenant shall require that any messengers
in
its employ affix
identification to the breast pocket of their outer garment, which shall bear
the
following information: name of Tenant, name of employee and photograph of the
employee. Messengers in Tenant's employ shall display such identification at
all
time. In the event that Tenant or any agent, servant or employee of Tenant,
violates the terms of this paragraph, Landlord shall be entitled to terminate
Tenant's permission to maintain within the Premises in-house messenger or
delivery service
upon written notice to Tenant.
13.
Tenant
will be entitled to three (3) listings on the Building lobby directory
board,
without charge. Any additional directory listing (if space is available), or
any
change in a prior
listing, with the exception of a deletion, will be subject to a fourteen
($14.00) dollar service charge, payable as Additional Rent.
14.
In
case
of any conflict or inconsistency between any provisions of this Lease and any
of
the rules and regulations as originally or as hereafter adopted, the provisions
of this Lease
shall control.
47
