LEASE DOLP 675 PROPERTIES II LLC as Landlord, to LEV PHARMACEUTICALS, INC., as Tenant Date: December 20, 2006 Premises: Room 2200-15 New York, New York 10017
DOLP
675
PROPERTIES II LLC
as
Landlord,
to
LEV
PHARMACEUTICALS, INC.,
as
Tenant
Date:
December 20, 2006
Premises:
000
Xxxxx
Xxxxxx
Xxxx
0000-00
Xxx
Xxxx,
Xxx Xxxx 00000
Neither
this draft lease, nor any other draft lease, nor any correspondence, writings,
communications or other documents delivered or exchanged between Landlord and
Tenant shall be deemed to be an offer or agreement to lease or to enter into
a
lease, on the terms set forth herein or otherwise and no lease, or agreement
to
lease, shall be binding on either party except and until as set forth in Section
32.11 of this draft.
TABLE
OF CONTENTS
|
Article
|
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Page
|
|
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ARTICLE
1
|
PREMISES;
TERM
|
1
|
|
|
ARTICLE
2
|
COMMENCEMENT
OF TERM
|
1
|
|
|
ARTICLE
3
|
RENT
|
3
|
|
|
ARTICLE
4
|
ADJUSTMENT
OF RENT, ESCALATION
|
4
|
|
|
ARTICLE
5
|
USE
|
7
|
|
|
ARTICLE
6
|
SERVICES
AND EQUIPMENT
|
9
|
|
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ARTICLE
7
|
ELECTRIC
|
12
|
|
|
ARTICLE
8
|
ASSIGNMENT,
SUBLETTING, MORTGAGING
|
14
|
|
|
ARTICLE
9
|
SUBORDINATION,
NON-DISTURBANCE, ESTOPPEL CERTIFICATE
|
20
|
|
|
ARTICLE
10
|
ENTRY;
RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING
|
22
|
|
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ARTICLE
11
|
LAWS,
ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES
|
23
|
|
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ARTICLE
12
|
REPAIRS
|
24
|
|
|
ARTICLE
13
|
ALTERATIONS;
FIXTURES
|
25
|
|
|
ARTICLE
14
|
LANDLORD’S
RIGHT TO PERFORM TENANT’S OBLIGATIONS
|
29
|
|
|
ARTICLE
15
|
NO
LIABILITY OF LANDLORD
|
29
|
|
|
ARTICLE
16
|
INSURANCE
|
31
|
|
|
ARTICLE
17
|
DAMAGE
BY FIRE OR OTHER CAUSE
|
33
|
|
|
ARTICLE
18
|
CONDEMNATION
|
35
|
|
|
ARTICLE
19
|
BANKRUPTCY
|
36
|
|
|
ARTICLE
20
|
DEFAULTS
AND REMEDIES; WAIVER OF REDEMPTION
|
38
|
|
|
ARTICLE
21
|
COVENANT
OF QUIET ENJOYMENT
|
40
|
|
|
ARTICLE
22
|
SURRENDER
OF PREMISES
|
40
|
|
|
ARTICLE
23
|
DEFINITION
OF LANDLORD
|
41
|
|
|
ARTICLE
24
|
NOTICES
|
41
|
|
|
ARTICLE
25
|
ARBITRATION
|
42
|
|
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ARTICLE
26
|
RULES
AND REGULATIONS
|
42
|
|
|
ARTICLE
27
|
BROKER
|
43
|
|
|
ARTICLE
28
|
ZONING
RIGHTS
|
43
|
|
|
ARTICLE
29
|
SECURITY
DEPOSIT
|
44
|
|
|
ARTICLE
30
|
WINDOW
CLEANING
|
48
|
|
|
ARTICLE
31
|
CONSENTS
|
48
|
|
|
ARTICLE
32
|
MISCELLANEOUS
|
48
|
|
|
ARTICLE
33
|
SUCCESSORS
AND ASSIGNS
|
52
|
|
|
ARTICLE
34
|
HAZARDOUS
MATERIALS
|
52
|
|
|
ARTICLE
35
|
PARTNERSHIP
TENANT
|
53
|
|
|
ARTICLE
36
|
SUBMISSION
TO JURISDICTION
|
54
|
|
EXHIBIT
A
|
FLOOR
PLAN
|
|
|
EXHIBIT
B
|
WORK
LETTER
|
|
|
EXHIBIT
C
|
CLEANING
SPECIFICATIONS
|
|
|
EXHIBIT
D
|
RULES
AND REGULATIONS
|
|
|
EXHIBIT
D-1
|
RULES
AND REGULATIONS FOR
TENANT
ALTERATIONS
|
|
|
|
||
|
EXHIBIT
E
|
LIST
OF APPROVED CONTRACTORS
|
|
|
EXHIBIT
E-1
|
BUILDING
STANDARDS
|
|
|
EXHIBIT
F
|
FORM
OF LETTER OF CREDIT
|
|
|
EXHIBIT
G
|
SAMPLE
INSURANCE CERTIFICATE
|
|
|
EXHIBIT
H
|
LIST
OF ADDITIONAL INSUREDS
|
|
|
EXHIBIT
I
|
FORM
AGREEMENT: RE LICENSING OF SPACE
|
INDENTURE
OF LEASE, dated as of this 20th day of December, 2006, between DOLP 675
PROPERTIES II LLC, a Delaware limited liability company, with offices at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as
“Landlord” or “Owner”) and LEV PHARMACEUTICALS, INC., a Delaware corporation
having offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as “Tenant”).
W
I T
N E S S E T H:
ARTICLE
1
PREMISES;
TERM
1.1 Landlord
hereby leases to Tenant and Tenant hereby hires from Landlord a portion of
the
22nd floor currently designated as Room 2200-15 (as shown by hatching on the
floor plans annexed hereto as Exhibit A and made a part hereof) in the building
known as 000 Xxxxx Xxxxxx, hereinafter called the “Building,” in the Borough of
Manhattan, City, County and State of New York, (herein called the “Premises” or
the “Demised Premises”).
1.2 The
Demised Premises are leased, together with the appurtenances, including without
limitation the right to use in common with others, the lobbies, elevators and
other public portions of the Building.
TO
HAVE
AND TO HOLD unto Tenant, its successors and permitted assigns, for the term
of
five (5) years and one (1) month to commence on a date (the “Commencement Date”)
which is the earlier to occur of:
(i) the
date
the Demised Premises are substantially complete as provided in Section 2.2,
or
(ii) the
date
Tenant or anyone claiming by, under or through Tenant shall first occupy any
part of the Demised Premises for any purpose including the preparation of the
same for Tenant’s initial occupancy;
and
to
end on the last day of the calendar month preceding the month in which the
fifth
(5th) anniversary of the Rent Commencement Date (as hereinafter defined) of
this
Lease occurs (“Expiration Date”) unless the term shall terminate sooner pursuant
to any of the terms of this Lease or pursuant to law, YIELDING AND PAYING the
rents and additional rents hereinafter set forth, all on the covenants,
conditions and agreements hereinbefore and hereinafter stated.
ARTICLE
2
COMMENCEMENT
OF TERM
2.1 The
term
of this Lease (and, except as otherwise provided in Section 3.5 below, the
payment of rent hereunder) shall commence on the Commencement Date.
2.2 A.The
Demised Premises shall be deemed substantially complete when Landlord has
substantially completed the work (the “Landlord’s Work”) required to be
performed by Landlord for Tenant as provided for in the Work Letter which is
attached hereto and made a part hereof as Exhibit B (the “Work Letter”). Tenant
may inspect the Demised Premises and may provide Landlord with a list of minor
or insubstantial details of construction, mechanical adjustment or decoration
that were included in Landlord’s Work as set forth herein and remain to be
completed (i.e., so called “punch list” items). For the purposes of this
Article, the work to be done by Landlord shall be deemed substantially complete
even though “punch list” items may not then have been completed. Landlord shall
use reasonable efforts to complete such “punch list” items as soon as
practicable thereafter. All building systems servicing the Demised Premises
shall be in good working order as of the Commencement Date.
B. If
there
is a delay in the substantial completion of Landlord’s Work for the Demised
Premises, or any portion thereof, due to (a) any act or omission of Tenant,
its
contractors, sub-contractors, architects, space designers, agents or employees,
as set forth in the Work Letter including, without limitation, delays due to
changes in Landlord’s Work requested by or on behalf of Tenant or delays by
Tenant in its submission of information, approving working drawings or estimates
or giving authorizations or approvals, (b) any additional time for completion
of
such work which may be required because of the inclusion in such work of any
additional work requested by or on behalf of Tenant which may hereinafter be
referred to in this Lease or the Work Letter as “Additional Work” or (c) the
noncompletion by Landlord of any work, whether in connection with the layout
or
finish of the Demised Premises or otherwise, which Landlord is not required
to
do by the terms hereof until after the Commencement Date; then the Demised
Premises, or such portion, shall be deemed substantially complete and available
for occupancy on the date when the Demised Premises or such portion would have
been available but for such delay described in (a), (b) and (c) above even
though work to be done by Landlord has not been commenced or completed. Any
additional cost to Landlord to complete the Demised Premises occasioned by
such
delay shall be paid as additional rent upon demand. For the purposes of the
preceding sentence “additional cost to Landlord” shall mean the total cost
incurred in excess of the aggregate cost which Landlord would have incurred
to
complete the Demised Premises if there had been no such delay.
C. The
taking of possession of the Demised Premises shall be deemed an acceptance
of
the same by Tenant and shall be deemed substantial completion by Landlord of
all
of Landlord’s Work for the purposes of determining the Commencement Date. For
the purposes of this Article, the work to be done by Landlord shall be deemed
substantially complete even though minor details or adjustments which shall
not
materially interfere with Tenant’s use and occupancy of the Demised Premises may
not then have been completed, but which work Landlord agrees, will thereafter
be
completed.
2.3 Promptly
after the Commencement Date, Landlord and Tenant will execute an agreement,
hereafter referred to as the “Commencement Date Agreement” stating among other
things the Commencement Date and the Expiration Date of the term of this Lease.
Tenant’s failure or refusal to sign the same shall in no event affect Landlord’s
designation of the Commencement Date.
2.4 INTENTIONALLY
OMITTED.
2.5 Tenant
expressly waives any right to rescind this Lease under Section 223-a of the
New
York Real Property Law or under any present or future statute of similar import
then in force and further expressly waives the right to recover any damages,
direct or indirect, which may result from Landlord’s failure to deliver
possession of the Demised Premises on the Commencement Date. The Commencement
Date shall not be postponed or delayed by reason of or arising out of delays
occasioned by Tenant as described herein and/or in the Work Letter. Tenant
agrees that the provisions of this Article and Article 3 are intended to
constitute “an express provision to the contrary” within the meaning of said
Section 223-a.
-2-
ARTICLE
3
RENT
3.1 During
the term of this Lease, Tenant covenants and agrees to pay to Landlord a fixed
minimum rent (the “Fixed Rent”) in lawful money of the United States, at an
annual rate of:
| (i) |
One
Hundred Eighty-Six Thousand Six Hundred Seventy Dollars and 00/100
($186,670.00) per annum ($15,555.83 per month) from the Commencement
Date
through the last day of the month preceding the month in which the
second
(2nd) anniversary of the Rent Commencement Date
occurs;
|
| (ii) |
One
Hundred Ninety-Three Thousand Four Hundred Fifty-Eight Dollars and
00/100
($193,458.00) per annum ($16,121.50 per month) from the first day
of the
month in which the second (2nd) anniversary of the Rent Commencement
Date
occurs through the Expiration Date.
|
Fixed
Rent shall be payable in equal monthly installments in advance on the first
day
of each month during the term of this Lease by wire transfer pursuant to
the
following wiring instructions: ________________________________ or
such
other wiring instructions as Landlord may designate, without any setoff or
deduction whatsoever, the first installment to be paid on the delivery of
this
Lease.
All
Fixed
Rent and additional rent payable under this Lease shall be paid by wire as
set
forth above. Failure to pay Fixed Rent and/or additional rent by
such wire
transfer shall be deemed a material default by Tenant under this
Lease.
3.2 All
rent
other than Fixed Rent, and all costs, charges, sums and expenses which Tenant
assumes, agrees or is obligated to pay to Landlord pursuant to this Lease shall
be deemed “additional rent” or “Additional Rent” which Tenant covenants to pay
when due. In the event of nonpayment, Landlord shall have all the rights and
remedies with respect thereto as is herein provided for in case of nonpayment
of
Fixed Rent. All rent shall be payable by Tenant to Landlord without offset,
reduction, counterclaim and/or deduction. The Fixed Rent and additional rent
are
sometimes referred to collectively herein as “rent”.
3.3 If
any of
the rent payable under the terms of this Lease shall be or become uncollectible,
reduced or required to be refunded because of any rent control, federal, state
or local law, regulation, proclamation or other legal requirement, Tenant shall
enter into such agreement(s) and take such other steps (without additional
expense to Tenant) as Landlord may request and as may be legally permissible
to
permit Landlord to collect the maximum rent which, from time to time, during
the
continuance of such legal rent restriction may be legally permissible (and
not
in excess of the amounts then reserved therefor under this Lease). Upon the
termination of such legal rent restriction, (a) the Fixed Rent and additional
rent shall become and shall thereafter be payable in accordance with the amounts
reserved herein for the periods following such termination and (b) Tenant shall
promptly pay in full to Landlord, unless expressly prohibited by law, an amount
equal to (i) rentals which would have been paid pursuant to this Lease but
for
such legal rent restriction less (ii) the rent actually paid by Tenant during
the period such legal rent restriction was in effect.
-3-
3.4 If
any
installment of Fixed Rent or additional rent is not paid when due, Tenant shall
also pay Landlord interest thereon from the due date until paid at two percent
(2%) per annum above the then Prime Rate as most recently published in The
Wall
Street Journal Eastern Edition (or, in the event that The Wall Street Journal
fails to publish such rate, such other publication as Landlord shall designate
in its sole discretion) (such published rate being herein called the “Prime
Rate”; and the Prime Rate plus two percent (2%) per annum being herein called
the “Interest Rate”). The term “rent” shall include all Fixed Rent, additional
rent or other charges payable under this Lease, for nonpayment of which Landlord
shall have the same remedies as for a default in the payment of Fixed Rent.
Notwithstanding anything in this Lease to the contrary, Landlord may use, apply
or retain the whole or any part of the Security Deposit to the extent required
for the payment of any amounts owed by Tenant pursuant to the first sentence
of
this Section 3.4 without being obligated to give Tenant any prior notice that
such amounts are due. If Tenant shall be more than ten (10) days late in making
any payment due under this Lease more than three (3) times in any twelve (12)
month period, Landlord shall in addition to the remedies provided for in this
Section 3.4, be entitled to demand from Tenant, and Tenant agrees promptly
to
deposit with Landlord, additional cash lease security in the amount of one
(1)
month’s then current annual Fixed Rent, to be held and applied in accordance
with the terms of Article 29 hereof.
3.5 Anything
to the contrary provided for hereinabove notwithstanding, so long as Tenant
shall not be in default of any of the terms and provisions of this Lease beyond
any applicable notice or cure periods, Tenant shall not be obligated to pay
the
Fixed Rent provided for above in the amount of Fifteen Thousand Five Hundred
Fifty-Five Dollars and 83/100 ($15,555.83) per month for a period of one (1)
month beginning on the Commencement Date. The date following the last day of
such one month period shall be referred to as the “Rent Commencement Date”.
Tenant shall, however, continue to be obligated during such period to pay the
electric charges and all additional rent (including, but not limited to,
additional rent payable under Article 4 and Article 7 hereof) and other charges
payable by Tenant hereunder in accordance with the terms of this Lease
commencing on the Commencement Date.
ARTICLE
4
ADJUSTMENT
OF RENT, ESCALATION
4.1 Tenant
shall pay additional rent as in this Article provided to reflect the decrease
or
increase in Landlord’s expenses incurred in operating the Building. Landlord
shall have all of the rights and remedies for Tenant’s failure to pay additional
rent under this Article as Landlord has for Tenant’s failure to pay Fixed
Rent.
-4-
A. For
the
purposes of this Article:
(1) “Base
Tax”
shall
mean the Taxes, as finally determined, for the Base Tax Year.
(2) “Base
Tax Year”
shall
mean the fiscal year July 1, 2006 to June 30, 2007, inclusive.
(3) “Tax
Year”
shall
mean each successive New York City real estate fiscal year commencing on July
1st and expiring on June 30th. If the present use of July 1 to June 30 real
estate tax year shall change, then such changed tax year shall be used with
appropriate adjustment for the transition.
(4) “Taxes”
shall
mean (a) the product of the total assessed valuation (all references in this
Article to “assessed valuation” shall be deemed to refer to the lesser of the
so-called transitional value assessed valuation and the actual assessed
valuation) of the land on which the Building is located (the “Land”) and the
Building of which the Demised Premises are a part (without taking into
consideration any abatement, exemption and/or deferral applicable to such Land
and Building, for any Tax Year multiplied by the applicable real estate tax
rate
for such Tax Year plus (b) any assessments, special and extraordinary
assessments, and government levies imposed upon or with respect to the Land
and
Building, including without limitation business improvement district charges
(exclusive of any abatements, exemptions and/or deferrals and (c) any franchise,
income, profit, value added, use, or other tax imposed in addition to, in whole
or partial substitution for, or in lieu of an increase (in whole or part) in
such real estate taxes, whether due to a change in the method of taxation or
otherwise - (exclusive of any abatements, exemptions and/or deferrals, it being
understood and agreed that the portion of the Taxes so computed hereunder may
be
a different amount than the real estate taxes actually payable by Landlord
in
any Tax Year because of any such abatements, exemptions and/or deferrals. Taxes
also shall include the reasonable expenses, including payments to attorneys,
experts and appraisers, incurred by Landlord in connection with any application,
proceeding or settlement wherein Landlord obtains or seeks to obtain a reduction
in the assessed valuation and/or a reduction in, or refund of, Taxes. The
benefit of any discount for any early payment or prepayment of Taxes shall
accrue solely to the benefit of Landlord and such discount shall not be
subtracted from Taxes.
(5) “Tenant’s
Tax Percentage”
shall
mean for purposes of this Lease and all calculations in connection therewith
One
and Sixty-Three Thousandths percent (1.063%).
B. (1)
Tenant
shall pay to Landlord as additional rent for each Tax Year during the term
of
this Lease an amount equal to Tenant’s Tax Percentage of the amount by which the
Taxes in each such Tax Year exceed the Base Tax (“Tenant’s Tax Payment”).
Landlord shall make reasonable estimates of Tenant’s Tax Payment with respect to
any current or forthcoming Tax Year and Tenant shall be required to pay such
estimated amounts in such installments and amounts as Landlord may require,
in
advance, on the first day of each month, based upon delivery of an “Estimated
Tax Statement”. If there shall be any increase in Taxes for any Tax Year, prior
to or during such Tax Year, Landlord may deliver to Tenant a revised Estimated
Tax Statement, and Tenant’s Tax Payment for such Tax Year shall be appropriately
adjusted. In the event of any increase in Taxes, Tenant shall, within thirty
(30) days of rendition of such revised Estimated Tax Statement, pay to Landlord
the amount of any underpayment of Tenant’s Tax Payment with respect to such Tax
Year. In the event of any decrease in Taxes for any Tax Year for which Tenant
has made a Tenant’s Tax Payment, Landlord shall either pay to Tenant, or at
Landlord’s election, credit against subsequent payments of Tenant’s Tax Payment,
the amount of any overpayment (less Tenant’s Tax Percentage of all reasonable
costs and expenses, including reasonable counsel fees, incurred by Landlord
in
connection with any application or proceeding to reduce such Taxes). At any
time
after, during or prior to the end of each Tax Year, Landlord shall cause the
actual amount of Tenant’s Tax Payment to be computed and a “Final Tax Statement”
to be given to Tenant. If such Final Tax Statement shall show a deficiency,
Tenant shall pay such amount to Landlord within thirty (30) days; if it shall
show that Tenant has made an overpayment, Landlord shall either pay to Tenant,
or at Landlord’s election, credit against subsequent payments of Tenant’s Tax
Payment, the amount of such overpayment. Notwithstanding the foregoing, if
Taxes
are required to be paid prior to the expiration of the appropriate calendar
half
or any other applicable fiscal period or the expiration of any Tax Year to
avoid
a penalty or late charge, then Landlord may immediately elect to xxxx Tenant
for
its above specified percentage of any increase in Taxes in excess of the Base
Tax with respect to such calendar half or any other applicable fiscal period
or
Tax Year, as the case may be, and Tenant shall pay same within twenty (20)
days
thereafter. Any decrease in rent under this Section 4B can be applied only
to
reduce prior increases under this Section 4B.
-5-
(2) The
Final
Tax Statements furnished to Tenant shall constitute a final determination as
between Landlord and Tenant of the Taxes for the periods represented thereby,
unless (a) the Taxes for any such period are subsequently reduced by tax
certiorari proceedings or otherwise (in which event the Final Tax Statement
for
such adjusted Taxes shall be conclusive and binding, subject to subsection
(b)
of this Section), or (b) Tenant, within fifteen (15) days after they are
furnished, shall give a notice to Landlord that it disputes the accuracy or
appropriateness of any of same, which notice shall specify the particular
respects in which the disputed Final Tax Statement is inaccurate or
inappropriate. Pending the resolution of such dispute, Tenant shall pay Tenant’s
Tax Percentage of the Taxes to Landlord in accordance with the Estimated Tax
Statements and/or Final Tax Statements furnished by Landlord. Tenant shall
have
the right to receive a copy of any tax xxxx or statement from the applicable
taxing authority upon which the disputed Final Tax Statement is based within
twenty (20) days after demand therefor. Tenant may not dispute Estimated Tax
Statements.
(3) If
the
Commencement Date is not the first day of a Tax Year or if the date of
expiration or termination of this Lease (except for termination for Tenant’s
default), whether or not same is the Expiration Date or another date prior
or
subsequent thereto, is not the last day of a Tax Year, then Tenant’s Tax Payment
shall be prorated based upon the number of days of the applicable Tax Year
within the term. With respect to the year in which the term of this Lease
expires or terminates, such pro rata portion shall become immediately due and
payable by Tenant to Landlord, if it has not theretofore already been paid,
and
Landlord, as soon as reasonably practicable, shall cause the annual statements
of the Taxes for that Tax Year to be prepared and furnished to Tenant. Landlord
and Tenant thereupon shall make appropriate adjustments of all amounts then
owing.
C. From
and
after the Commencement Date, Tenant shall pay to Landlord as Additional Rent,
in
lieu of an operating expense escalation, the amounts (“Tenant’s Operating
Payment”) set forth below. Tenant’s Operating Payment shall be due and payable,
together with the Fixed Rent due hereunder, in equal monthly installments in
advance on the first (1st) day of each month of the Term.
-6-
|
Period
|
Tenant’s
Operating
Payment
Per Annum
|
|||
|
Lease
Year 1
|
$
|
0.00
|
||
|
Lease
Year 2
|
$
|
3,733.40
|
||
|
Lease
Year 3
|
$
|
7,677.23
|
||
|
Lease
Year 4
|
$
|
11,699.93
|
||
|
Lease
Year 5
|
$
|
15,803.09
|
||
D. INTENTIONALLY
OMITTED.
E. Landlord’s
failure to render a statement with respect to any additional rent due pursuant
to this Article 4 shall not prejudice Landlord’s right to render such a
statement retroactively respecting such additional rent and/or with respect
to
any subsequent payment of additional rent. The obligations of Tenant under
the
provisions of this Article with respect to any additional rent due shall survive
the expiration or sooner termination of the term.
F. The
computations of additional rent under this Article 4 are intended to constitute
a formula for an agreed rental adjustment and may or may not constitute an
actual reimbursement to Landlord for costs and expenses paid by Landlord with
respect to the Building. In no event shall the Fixed Rent under this Lease
be
reduced by virtue of this Article 4.
ARTICLE
5
USE
5.1 Tenant
shall use and occupy the Demised Premises for executive and general offices
and
for no other purpose. Tenant will not at any time use or occupy the Demised
Premises, or permit same to be used or occupied in violation of the certificate
of occupancy for the Building.
5.2 The
use
of the Demised Premises for the purposes specified in Section 5.1 shall not
include:
(1) the
sale
to the public of any products kept in the Demised Premises, or any
demonstrations to the public, or the sale (whether by persons or by vending
machines) of alcoholic beverages, candy, cigarettes, cigars, tobacco, narcotics
or other controlled or prohibited substances, newspapers, magazines, beverages,
or similar items,
-7-
(2) the
rendition of medical, psychological, or therapeutic services;
(3) the
conduct of an auction;
(4) the
conduct of any gambling activities, or any political activities, or any
religious activities, or of an employment agency;
(5) offices
of a governmental agency, or government (including, without limitation, an
autonomous governmental corporation or any entity having governmental immunity),
or a diplomatic or trade mission;
(6) the
operation of any school or college; or
(7) any
use
prohibited by the Rules and Regulations attached hereto and made a part hereof
as Exhibit
D.
5.3 Tenant
shall not use, occupy, suffer or permit the Demised Premises (or any part
thereof) to be used in any manner, or suffer or permit anything to be brought
into or kept therein, which would, in Landlord’s reasonable judgment, (a) make
unobtainable at standard rates from any reputable insurance company authorized
to do business in New York State any fire insurance with extended coverage
or
liability, elevator, boiler, umbrella, terrorism, environmental, or other
insurance, (b) cause, or be likely to cause, injury or damage to the Building
or
to any Building equipment or to the Demised Premises, (c) constitute a public
or
private nuisance, (d) violate any certificate of occupancy in the Building,
(e)
emit objectionable noise, fumes, vibrations, heat, chilled air, vapors or odors
into or from the Building or the Building equipment, or (f) impair or interfere
with any of the Building services, including the furnishing of electrical
energy, or the proper and economical cleaning, heating, ventilating, air
conditioning or other servicing of the Building, Building equipment, or the
Demised Premises.
5.4 If
any
governmental license or permit shall be required for the proper and lawful
conduct of Tenant’s business in (or any subtenant’s business) or occupancy of
the Demised Premises, then Tenant, at its sole expense, shall procure and
thereafter maintain (or cause to be maintained) such license or permit and
submit the same to Landlord for inspection upon Landlord’s request. Tenant shall
comply with the terms and conditions of each such license and/or
permit.
5.5 Except
only as otherwise expressly provided in Section 8.8 hereof, no licensing of
desk
space shall be permitted.
5.6 Tenant
represents, warrants and covenants that neither Tenant nor any of its executive
officers, members of its board of directors or controlling shareholders (i)
is
listed on the Specially Designated Nationals and Blocked Persons List maintained
by the Office of Foreign Asset Control, Department of the Treasury (“OFAC”)
pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001)
(“Order”) and all applicable provisions of Title III of the USA PATRIOT ACT
(Public Law No. 107-56 (October 26, 2001)); (ii) is listed on the Denied Persons
List and Entity List maintained by the United States Department of Commerce;
(iii) is listed on the List of Terrorists and List of Disbarred Parties
maintained by the United States Department of State; (iv) is listed on any
list
or qualification of “Designated Nationals” as defined in the Cuban Assets
Control Regulations 31 C.F.R. Part 515; (v) is listed on any other publicly
available list of terrorists, terrorist organizations or narcotics traffickers
maintained by the United States Department of State, the United States
Department of Commerce or any other governmental authority or pursuant to the
Order, the rules and regulations of OFAC (including without limitation the
Trading with the Enemy Act, 50 U.S.C. App. 1-44; the International Emergency
Economic Powers Act, 50 U.S.C. §§ 1701-06; the unrepealed provision of the Iraqi
Sanctions Act, Publ. L. No. 101-513; the United Nations Participation Act,
22
U.S.C. § 2349 aa-9; The Cuban Democracy Act, 22 U.S.C. §§ 60-01-10; The Cuban
Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 233; and The
Foreign Narcotic Kingpin Designation Act, Publ. L. No. 106-201, all as may
be
amended from time to time); or any other applicable requirements contained
in
any enabling legislation or other Executive Orders in respect of the Order
(the
Order and such other rules, regulations, legislation or orders are collectively
called the “Orders”); (vi) is engaged in activities prohibited in the Orders; or
(vii) has been convicted, pleaded nolo contendere, indicted, arraigned or
custodially detained on charges involving money laundering or predicate crimes
to money laundering, drug trafficking, terrorist-related activities or other
money laundering predicate crimes or in connection with the Bank Secrecy Act
(31
U.S.C. §§ 5311 et. seq.).
-8-
5.7 Subject
to the Rules and Regulations (including, without limitation, Building security
procedures), Tenant shall have access to and use of the Demised Premises
twenty-four (24) hours per day and three hundred sixty-five (365) days per
year.
ARTICLE
6
SERVICES
AND EQUIPMENT
6.1 So
long
as Tenant is not in default under any of the covenants of this Lease, Landlord
shall, at its cost and expense:
A. Provide
elevator service during business hours on business days. As used in this Lease,
the term “business days” means Monday through Friday exclusive of holidays, and
the term “business hours” means 8:00 A.M. to 6:00 P.M. At all times other than
during business hours on business days, only one elevator shall be on call
to
the Demised Premises and to other tenants of the Building.
B. Maintain
and keep in good order and repair the central heating, ventilating and
air-conditioning system installed by Landlord. The aforesaid system will be
operated by Landlord during business hours on business days.
C. Provide
Building standard cleaning services to the Demised Premises and public portions
of the Building on business days. The Cleaning Specifications are annexed hereto
and made a part hereof as Exhibit
C.
If any
space may, under the terms of this Lease, be used for the consumption of food,
such space will receive only Exhibit C office space cleaning specifications,
and
Tenant shall have such space periodically exterminated.
D. Furnish
water for ordinary lavatory, drinking and office cleaning purposes. If Tenant
requires, uses or consumes water for any other purposes (including without
limitation for a dishwasher), Tenant agrees that Landlord may install a meter
or
meters or other means to measure Tenant’s water consumption, and Tenant further
agrees to reimburse Landlord for the cost of the meter or meters and the
installation thereof, and to pay for the maintenance of said meter equipment
and/or to pay Landlord’s costs of other means of measuring such water
consumption by Tenant. Tenant shall reimburse Landlord for the cost of all
water
consumed as measured by said meter or meters or as otherwise measured, including
sewer rents.
-9-
6.2 Holidays
shall be deemed to mean all Federal holidays, State holidays and Building
Service Employees Union Contract holidays.
6.3 Landlord
reserves the right to interrupt, curtail or suspend the services required to
be
furnished by Landlord under this Article 6 or elsewhere under this Lease or
otherwise to interrupt, curtail or suspend any services provided to the Demised
Premises when the necessity therefor arises by reason of required maintenance,
repairs, alterations, improvements, accident, labor dispute, riot, war,
insurrection, terrorism, bioterrorism, emergency, casualty, shortages of labor
or materials, mechanical breakdown, Acts of God, or when required by any law,
order or regulation of any federal, state, county or municipal authority, or
by
reason of alterations or improvements deemed necessary or desirable by Landlord
for the benefit of the Building or any portion(s) thereof, or for any other
cause beyond the reasonable control of Landlord. Landlord shall exercise good
faith to complete all required repairs or other necessary work so that Tenant’s
inconvenience resulting therefrom may be for as short a period of time as
circumstances will permit. No diminution or abatement of rent or other
compensation shall or will be claimed by Tenant as a result thereof, nor shall
this Lease or any of the obligations of Tenant be affected or reduced by reason
of such interruption, curtailment or suspension, nor shall Tenant be entitled
to
terminate this Lease or to claim an actual or constructive eviction in whole
or
in part.
6.4 Tenant
shall reimburse Landlord for the cost to Landlord of removal from the Demised
Premises and the Building of any refuse and rubbish of Tenant except normal
office trash, and Tenant shall pay all bills therefor when
rendered.
6.5 Tenant
acknowledges that the Demised Premises contain one supplemental air conditioning
unit and associated equipment (collectively, the “Existing A/C Unit”). Landlord
makes no representations as to the condition of the Existing A/C Unit, if any,
and Tenant shall accept the same in “as is” condition. Notwithstanding anything
to the contrary in this Lease, Landlord shall have no responsibility whatsoever
to maintain and/or repair the Existing A/C Unit, which shall be Tenant’s sole
obligation and responsibility. Tenant shall also be responsible for permit
fees
for the Existing A/C Unit. Tenant’s installation of any new or additional air
conditioning or ventilation units shall be subject to Landlord’s prior written
approval as well as to all other applicable terms and conditions of this Lease,
including without limitation Section 6.7 of this Lease. All electricity used
in
connection with the operation of the Existing A/C Unit shall be provided in
accordance with, and subject to all of the terms, covenants and conditions
contained in, Article 7 hereof.
-10-
6.6 If
Tenant
shall require HVAC service at any time other than during business hours on
business days, Landlord shall furnish such service (herein called “after-hours
air-conditioning service”) upon advance written notice from Tenant as specified
below and Tenant shall pay Landlord’s then established charges therefor on
Landlord’s demand as additional rent. If Tenant shall not pay the same, Tenant
shall also pay interest thereon at the then Interest Rate. Requests for
after-hours air-conditioning service shall be submitted in writing to the
Building manager, by a person designated by Tenant as authorized to make such
requests, before 1:00 P.M. on a non-holiday weekday for such weekday and at
least thirty-six (36) hours prior to a holiday or weekend. Landlord’s currently
established charges for such after-hours air-conditioning service are as
follows: air conditioning -- $250.00 per hour and heat -- $250.00 per hour,
and
are subject to increase.
6.7 Notwithstanding
anything in this Lease to the contrary, Landlord agrees that in the event that
Tenant requires additional heating, ventilation and air-conditioning in the
Demised Premises, and Landlord, upon Tenant’s request therefor, consents to the
installation of a system in the Demised Premises to provide such additional
heating, ventilating and air-conditioning, then and in such event, Tenant may
install, and Landlord consents to the installation of, at Tenant’s own cost and
expense in accordance with, and subject to, the applicable provisions of this
Lease (including, without limitation, Article 13 hereof) an additional heating,
ventilating and air-conditioning system (hereinafter referred to as the
“Supplemental Air-Conditioning System”). The costs of installation (including,
without limitation, connection to any condenser water source), maintenance
and
operation of the Supplemental Air-Conditioning System shall be borne by Tenant,
and Tenant shall be responsible for the design and installation of its own
condenser water pumps, capable of delivering the required flow to Tenant’s
equipment. Tenant (or at Landlord’s option, Landlord) shall install, at Tenant’s
sole cost and expense, valved outlets into the condenser water riser, the cost
of which valves are to be paid for by Tenant. Whenever Tenant shall make a
connection to any condenser water source, Tenant shall also leave additional
valved outlets of a size, and in such locations, to be determined by Landlord.
All facilities, equipment, machinery and ducts installed by Tenant in connection
with the Supplemental Air-Conditioning System shall (a) be subject to Landlord’s
prior written approval, (b) comply with Landlord’s reasonable requirements as to
installation, maintenance and operation, and (c) comply with all other terms,
covenants and conditions of this Lease applicable thereto. Landlord shall have
no liability or responsibility whatsoever for any interruption in service of
the
Supplemental Air-Conditioning System (if any) for any cause whatsoever, nor
shall any such interruption be construed as an actual or constructive eviction
of Tenant, or entitle Tenant to any abatement of Fixed Rent or additional rent,
or relieve or release Tenant from any of its obligations under this Lease.
Tenant agrees to cooperate fully with Landlord and to abide by all reasonable
regulations and requirements which Landlord may prescribe for the proper
connection, functioning and protection of the Supplemental Air-Conditioning
System.
Landlord
shall furnish, if required and to the extent available, condenser water for
Tenant’s Supplemental Air-Conditioning System at a charge of Six Hundred Thirty
Dollars and 00/100 ($630.00) per ton per year. If after the date of this Lease,
the cost to Landlord of furnishing condenser water for such Supplemental
Air-Conditioning System shall be increased, then the aforesaid charge to Tenant
shall be increased to reflect the amount of the increased cost to
Landlord.
-11-
ARTICLE
7
ELECTRIC
7.1 A.
So
long
as Tenant shall not be in default beyond applicable notice and cure periods
under this Lease, Landlord shall furnish to the Demised Premises, through the
existing transmission facilities installed by Landlord in the Building,
alternating electric current in such reasonable quantity as may be now required
for Tenant’s ordinary use of the Demised Premises for the purposes herein
specified. Such electric current shall be measured by meter or meters provided
and installed by Landlord at such location or locations as Landlord shall select
and Tenant shall pay monthly to Landlord such amounts (which shall be computed
by using the Electric Rates, as hereinafter defined), paid by Landlord plus
(as
an administrative fee) an additional five percent (5%) of such computed amount
as may be billed by Landlord to Tenant therefor on the basis of Tenant’s
consumption of alternating current in the Demised Premises. If Tenant shall
fail
to pay any such amount within twenty (20) days after billing, Tenant shall
pay
Landlord interest thereon at the then Interest Rate until such xxxx shall be
fully paid plus any of Landlord’s reasonable attorneys’ fees, costs and expenses
paid or incurred in collecting on such xxxx(s). Landlord and its agents shall
be
permitted access to the electric closets and the meters. Tenant shall supply,
at
Tenant’s cost, adequate electric lighting and electric power to Landlord or
Landlord’s contractors to clean or make repairs in the Demised
Premises.
7.2 Tenant’s
use of electrical energy shall never exceed the capacity of the then existing
feeders to the Building or the then existing risers or wiring installation
serving the Demised Premises; in furtherance thereof, Tenant’s connected
electrical load in the Demised Premises shall at no time exceed 4.0 xxxxx per
usable square foot without Landlord’s prior written approval. Tenant understands
that if the connected load exceeds 4.0 xxxxx per usable square foot in any
area,
the HVAC system will not be able to perform within the limits specified therefor
in Exhibit
E-1
attached
hereto and made a part hereof, and Landlord shall have no responsibility or
liability on account thereof. Any additional risers or risers required by Tenant
to supply Tenant’s electrical requirements and all other equipment proper and
necessary in connection therewith, upon request of Tenant, will be installed
by
Landlord, at Tenant’s sole cost and expense, if in Landlord’s judgment, the same
are necessary and will not cause or create a hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with
or
disturb other tenants. Rigid conduit only will be allowed. In order that
personal safety and property of Landlord and the tenants and occupants of the
Demised Premises and the Building may not be imperiled by the over taxing of
the
capacity of the electrical distribution system of the Demised Premises or the
Building, and to avert possible adverse effect upon the Building’s electrical
system, Tenant shall not, without prior consent of Landlord, make or perform
or
permit any changes in or alterations to wiring installations or other electrical
facilities in or serving the Demised Premises (as such installations or
facilities shall be indicated by the final electrical plans submitted by Tenant
to Landlord in connection with the initial construction of the Demised Premises)
or any additions to the electric fixtures, business machines or office equipment
or appliances (other than personal desktop computers, desktop fax machines,
desktop copiers and similar low energy consuming office machines) in the Demised
Premises which utilize electrical energy. Any such alterations or changes
performed by Tenant shall be in compliance with all codes and legal
requirements. Should Landlord grant such consent, all additional risers, wiring
or other equipment required therefor shall be provided by Landlord and the
cost
thereof shall be paid by Tenant as additional rent within ten (10) days after
being billed therefor. Landlord’s approval of any electrical alterations or
changes shall not be deemed a representation that the same comply with
applicable codes or other legal requirements. Landlord, its agents and engineers
and consultants may survey the electrical fixtures, appliances and equipment
in
the Demised Premises and Tenant’s use of electrical energy therein from time to
time to determine whether Tenant is complying with its obligations under this
Article.
-12-
7.3 A.Landlord
shall have no liability to Tenant for any loss, damage or expense which Tenant
may sustain or incur by reason of any change, failure, inadequacy or defect
in
the supply or character of the electrical energy furnished to the Demised
Premises or if the quantity or character of the electrical energy is no longer
available or suitable for Tenant’s requirements, except for any actual damage
suffered by Tenant by reason of any such failure, inadequacy or defect caused
by
Landlord’s gross negligence or willful misconduct, and then only after prior
actual notice has been given to Landlord as provided in Article 24.
B. In
addition to the foregoing, Landlord shall have the right on fifteen (15) days’
prior notice to Tenant (whenever possible) to “shut down” electrical energy to
the Demised Premises when necessitated by the need for repairs, alterations,
connections or reconnections, with respect to the Building electrical system
(singularly or collectively, “Electrical Work”), regardless of whether the need
for such Electrical Work arises in respect of the Demised Premises, any other
tenant space, or any Building common areas. Landlord may not, however, shut
down
Tenant’s electrical energy for such Electrical Work during business hours unless
such Electrical Work shall be required because of an emergency or required
by
the electric energy provider servicing the Building. Landlord shall have no
liability to Tenant for any loss, damage, or expense which Tenant may sustain
due to such “shut down” or Electrical Work.
7.4 The
term
“Electric Rates” shall be deemed to mean the rates at which Landlord purchases
electrical energy from the utility company or other provider supplying
electrical service to the Building, including any surcharges or charges
incurred, or utility taxes or sale taxes or other taxes payable by or imposed
upon Landlord in connection therewith, or increase thereof by reason of fuel
adjustment or any substitutions for such Electric Rates or additions thereto.
Landlord and Tenant acknowledge that they understand that the electric rates,
charges, taxes and other costs may be changed by virtue of peak demand,
time-of-day rates, or other methods of billing, and that the foregoing reference
to changes in methods or rules of billing is intended to include any such
change.
7.5 Provided
that Landlord does not act in a discriminatory manner towards Tenant, Landlord
reserves the right to terminate the furnishing of electrical energy at any
time,
upon thirty (30) days’ notice to Tenant unless such notice is not feasible under
the circumstances, in which event Landlord will give Tenant such reasonable
notice as is possible. If Landlord shall so discontinue the furnishing of
electrical energy, (a) Tenant shall arrange to obtain electrical energy directly
from the utility company or other provider furnishing electrical energy to
the
Building, (b) Landlord shall permit the existing feeders, risers, wiring and
other electrical facilities serving the Demised Premises to be used by Tenant
for such purpose to the extent that they are available, suitable and safe,
(c)
from and after the effective date of such discontinuance Landlord shall not
be
obligated to furnish electric energy to Tenant, (d) such discontinuance shall
be
without liability of Landlord to Tenant, and (e) if Landlord shall discontinue
the furnishing of electrical energy as a result of any legal requirement or
insurance requirement, Landlord shall, at Tenant’s expense, install and maintain
at locations in the Building selected by Landlord any necessary electrical
meter
equipment, panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electrical energy directly from the
utility company or other provider supplying the same. Landlord, at its option,
before commencing any work to be paid for by Tenant hereunder or at any time
thereafter, may require Tenant to furnish to Landlord such security, whether
by
surety bond issued by a corporation satisfactory to Landlord, in form and amount
and licensed to do business in New York State or otherwise, as Landlord shall
deem necessary to assure the payment for such work by Tenant.
-13-
7.6 In
the
event that any tax shall be imposed upon Landlord’s receipts from the sale, use
or resale of electrical energy to Tenant, the pro rata share allocable to the
electrical energy service received by Tenant shall be passed onto, included
in
the xxxx of, and paid by Tenant if and to the extent not prohibited by
law.
7.7 Landlord
may, at Landlord’s option, furnish and install all replacement lighting, tubes,
lamps, starters, bulbs and ballasts required in the Demised Premises and Tenant
shall pay to Landlord (or its designated contractor) upon demand the then
established charges therefor as additional rent on demand.
ARTICLE
8
ASSIGNMENT,
SUBLETTING, MORTGAGING
8.1 A.
Tenant
or
its legal representatives will not by operation of law or otherwise, assign
(in
whole or in part), mortgage or encumber this Lease, or sublet or permit the
Demised Premises or any part thereof to be used or occupied by others, without
Landlord’s prior written consent in each instance. The consent by Landlord to
any assignment or subletting, whether by Tenant or any other tenant in the
Building, shall not be a waiver of or constitute a diminution of Landlord’s
right to withhold its consent to any other assignment or subletting and shall
not be construed to relieve Tenant from obtaining Landlord’s express written
consent to any other or further assignment or subletting. Such reasonable
attorneys’ fees as may be incurred by Landlord in connection with Tenant’s
request for consent to an assignment or subletting shall be paid by
Tenant.
B. If
Tenant
or its legal representatives desires to assign this Lease or sublet all or
any
portion of the Demised Premises, Tenant shall promptly notify Landlord in
writing of its desire to assign or sublet. Upon obtaining a proposed assignee
or
subtenant upon acceptable terms, Tenant shall submit to Landlord in
writing:
| (i) |
the
name and address of the proposed assignee or
sublessee;
|
| (ii) |
the
terms of the proposed assignment or
sublease;
|
| (iii) |
the
nature and character of the business which the proposed assignee
or
sublessee will conduct in the Demised
Premises;
|
-14-
| (iv) |
if
the proposed assignee or sublessee is a non-publicly corporation,
the
names and addresses of all directors and officers thereof and the
names
and addresses of each stockholder who or which has beneficial ownership
of
twenty percent (20%) or more of the proposed assignee or sublessee
entity,
setting forth for each such stockholder his, her or its percentage
of such
beneficial ownership; if a partnership, joint venture or other business
or
unincorporated association, the name and address of each general
partner
(and limited partner, if any), joint venturer or member thereof,
who or
which has beneficial ownership of twenty percent (20%) or more of
the
proposed assignee or sublessee entity, setting forth for each such
general
partner, limited partner, joint venturer and member his, her or its
percentage of such beneficial
ownership;
|
| (v) |
a
complete financial statement (not more than 12 months old), for the
proposed assignee or sublessee, certified by certified public accountants
regularly employed by the proposed assignee or sublessee, together
with a
more current interim financial statement for the proposed assignee
or
sublessee, if available;
|
| (vi) |
the
names and business experience of the management level personnel of
the
proposed assignee or sublessee who will be active in the actual day
to day
operation of the business to be continued in the Demised Premises
by the
proposed assignee or sublessee and their respective percentages of
beneficial ownership in the proposed assignee or
sublessee;
|
| (vii) |
an
executed copy of the proposed assignment or sublease (which is conditioned
upon Landlord’s rights and consent as provided in this Article 8);
and
|
| (viii) |
any
other information concerning the assignment or sublease which Landlord
may
reasonably request.
|
Landlord
shall have the option to be exercised within thirty (30) days from the
submission of the aforesaid information: (i) to cancel this Lease with respect
to the space to be sublet for the duration of the proposed sublease; or (ii)
to
require Tenant to execute and deliver an assignment or sublease to Landlord
(or
its designee) upon the same terms as submitted by Tenant to Landlord, except
that Landlord shall have the unrestricted right to assign or sublet and/or
alter
the space. In the event of a proposed assignment, or of a proposed sublease
which, in the aggregate with all other subleases, demises fifty percent (50%)
or
more of the Demised Premises, Landlord shall have the further option to be
exercised within the said thirty (30) day period, to cancel and terminate this
Lease effective on the date of Tenant’s proposed assignment or sublease, in
which event this Lease and the term hereof shall expire and terminate on that
date as if it were the date herein fixed for the termination and expiration
of
the term of this Lease. Tenant may not assign all or any part of this Lease,
nor
sublet all or any part of the Demised Premises, if Tenant is in monetary or
material non-monetary default beyond any applicable notice and grace periods
under this Lease. In addition, Tenant may not request Landlord to consider
and/or approve any proposed assignment or subletting if Tenant is in default
under this Lease. In the event that Tenant proposes to sublet a portion of
the
Demised Premises, such portion must be configured in such a way that it may
be
legally separated from the balance of the Demised Premises with direct access
to
the elevators, stairs and restrooms on the floor on which the space is located,
and if Landlord exercises either of its options set forth above in this
paragraph as to such space, then at Landlord’s option, either (a) Landlord, at
Tenant’s expense, shall perform such alterations as shall be required in order
to so separate such space from the balance of the Demised Premises and to
provide such access to such portions of the floor in question or (b) prior
to
the date on which Tenant’s proposed sublease would have commenced, Tenant, at
its expense, shall perform such alterations (it being understood that such
alterations shall be subject to all of the terms and conditions of this Lease,
including without limitation Article 13). Landlord shall have no obligation
to
restore any such alterations.
-15-
C. If
Tenant
has complied with the provisions of Section 8.1B and Landlord has not exercised
either of its foregoing options within the time set forth above, its consent
to
the proposed assignment or subletting shall not be unreasonably withheld;
provided, however, that it may withhold consent thereto if in the reasonable
exercise of its judgment it determines that:
(1) The
financial condition and general reputation for good character of the proposed
assignee or sublessee are insufficient or not consistent with the obligation
and
responsibility undertaken by the proposed assignment or sublease;
or
(2) The
proposed business to be conducted in the Demised Premises is not appropriate
for
the Building or in the keeping with the character of the existing tenancies
or
permitted by this Lease, or the use is not expressly permitted by this Lease;
or
(3) The
nature of the occupancy of the proposed assignee or sublessee will cause a
greater density of employees or traffic or make greater demands on the
Building’s services or facilities than that made by Tenant; or
(4) Tenant
has made assignments or sublettings which have changed the configuration of
the
Demised Premises; or
(5) Tenant
proposes to assign or sublet to one who at the time is a tenant (or subsidiary
or affiliate of a tenant) or to a person in possession of premises in the
Building, or another building owned by Landlord or the managing agent of the
Building or an entity affiliated with Landlord or the entity managing the
Building or to one with whom Landlord is negotiating for a lease or sublease
for
space in any building owned by Landlord or an entity affiliated with Landlord;
or
(6) The
assignee or sublessee shall have or enjoy diplomatic immunity; or
(7) Such
proposed subletting would result in the
Demised Premises being divided; or
(8) Any
combination of the foregoing conditions exist.
8.2 If
this
Lease shall be assigned or sublet in accordance with this Article, such assignee
or sublessee shall not be permitted to further assign or sublet in whole or
in
part.
-16-
8.3 If
this
Lease shall be assigned, or if the Demised Premises or any part thereof be
sublet or occupied by any person or persons other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, sublessee or occupant
and apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection of rent shall be deemed a waiver
of the covenants in this Article, nor shall it be deemed acceptance of the
assignee, sublessee or occupant as a tenant, or a release of Tenant from the
full performance by Tenant of all the terms, conditions and covenants of this
Lease.
8.4 Each
permitted assignee or transferee shall assume and be deemed to have assumed
this
Lease and shall be and remain liable jointly and severally with Tenant for
the
payment of the Fixed Rent and additional rent and for the due performance of
all
the terms, covenants, conditions and agreements herein contained on Tenant’s
part to be performed for the term of this Lease. No assignment shall be
effective unless Tenant shall promptly deliver to Landlord a duplicate original
of the instrument of assignment, in form reasonably satisfactory to Landlord,
containing a covenant of assumption by the assignee of all of the obligations
aforesaid and shall obtain from Landlord the aforesaid written consent, prior
thereto.
8.5 Notwithstanding
any provision of this Lease to the contrary, fifty percent (50%) of any rentals
and/or consideration paid or payable by the assignee or sublessee in excess
of
the rentals (pro-rated on a square foot basis if the sublease is for less than
all of the Demised Premises) reserved and/or payable under this Lease shall
be
paid by Tenant as and when received by Tenant to Landlord as additional rent,
deducting from such excess, the reasonable expenses proven to have been incurred
by Tenant in effecting the assignment or sublease, appropriately pro rated
(if a
sublease) over the term of the sublease. Said reasonable expenses shall include,
but not be limited to, brokerage fees, attorneys’ fees and disbursements,
advertising costs, reasonable concessions to the assignee or sublessee,
including, without limitation, free rent or work contributions to the assignee
or subtenant, and the costs incurred in connection with alterations, decorations
and installations made by Tenant pursuant to its subject assignment or sublease
to prepare the space for occupancy by the assignee or sublessee.
8.6 Anything
herein contained to the contrary notwithstanding:
(1) Tenant
shall not advertise (but may list with brokers) its space for assignment or
subletting at a rental rate lower than the greater of the then Building rental
rate for such space or the rental rate then being paid by Tenant to
Landlord.
(2) A
transfer of fifty percent (50%) or greater interest (whether stock, partnership
or otherwise) of Tenant, or any permitted sublessee or assignee of this Lease,
shall not be deemed to be an assignment of this Lease or such sublease under
this Article 8 unless such transfer has no valid business purpose and is only
being made to circumvent the provisions of this Article 8, in which event such
transfer shall be deemed to be assignment of this Lease or such
sublease.
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(3) Notwithstanding
anything to the contrary contained herein, Tenant may, without the consent
of
Landlord, (A) sublet the Demised Premises or any part thereof or assign this
Lease to any Subsidiary, Parent Company or Affiliate of Tenant (as such terms
are defined below) or (B) assign this Lease to any successor by merger or
consolidation or to a purchaser of all or substantially all of Tenant’s assets
or shares of interest in its general partner (such successor or purchaser being
herein called a “Successor”), but only if (x) in the case of an assignment to a
Successor, such Successor has a net worth (exclusive of intangibles, including,
but not limited to, good will) on the date immediately following the effective
date of such assignment computed in accordance with generally accepted
accounting principles equal to or greater than the average net worth of Tenant
(exclusive of intangibles, including, but not limited to, good will) during
the
twelve (12) month period immediately prior to the effective date of said
assignment computed in accordance with generally accepted accounting principles,
which in each case shall be evidenced by certified financial statements prepared
by the party’s respective independent certified public accountants and (y) in
the case of a merger, consolidation or transfer of assets, such merger,
consolidation or transfer of assets is not effected for the primary purpose
of
transferring this Lease. For purposes of this Section, a “Subsidiary”, “Parent
Company” and “Affiliate” of Tenant shall mean the following: (a) “Subsidiary”
shall mean any corporation or other business entity not less than 51% of whose
outstanding capital and voting stock or, in the case of non-corporate business
entity, its ownership interests, shall, at the time, be owned directly or
indirectly, by Tenant; (b) “Parent Company” shall mean any corporation which
shall own, directly or indirectly, at least 51% of the outstanding capital
and
voting stock of Tenant at the time; and (c) “Affiliate” shall mean any entity
which, directly or indirectly, controls or is controlled by or is under common
control with Tenant. For this purpose, “control” shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such corporation, whether through the ownership
of
voting securities or by contract or otherwise. No such assignment or sublease
shall be permitted or effective if Tenant is then in monetary or non-monetary
default under this Lease beyond applicable periods of notice and grace and
unless (i) Tenant gives Landlord at least ten (10) days’ prior written notice of
such assignment or sublease, and in the case of an assignment to a Successor,
such notice shall be accompanied by proof reasonably acceptable to Landlord
that
the net worth of Tenant and such assignee is in compliance with the terms of
this Subsection 8.6(3), (ii) in the case of an assignment or subletting to
a
Subsidiary, Parent Company or Affiliate, (a) proof reasonably acceptable to
Landlord that such assignee or sublessee (as the case may be) is then a
Subsidiary, Parent Company or Affiliate of Tenant and (b) such assignee or
sublessee (as the case may be) remains a Subsidiary, Parent Company or Affiliate
of Tenant throughout the term of this Lease or the sublease; it being agreed
that the rights granted to Tenant pursuant to this Subsection 8.6(3) shall
only
be for so long as such assignee or sublessee (as the case may be) shall remain
a
Subsidiary, Parent Company or Affiliate of Tenant and at such time as such
assignee or sublessee (as the case may be) shall no longer be a Subsidiary,
Parent Company or Affiliate of Tenant, the rights accorded to Tenant by this
Subsection 8.6(3) shall not apply and Tenant shall promptly comply with all
of
the terms and conditions of this Article with respect to such assignment or
subletting, (iii) such assignee assumes all of Tenant’s obligations hereunder,
and (iv) Tenant gives Landlord a signed copy of the final assignment or sublease
within ten (10) days after it is executed. No such assignment or sublease by
Tenant shall be deemed to release Tenant from any of its obligations and
liabilities hereunder, and such assignee shall execute an agreement, in form
and
substance satisfactory to Landlord, assuming all of Tenant’s obligations and
liabilities hereunder. The recapture rights of Landlord set forth in Subsection
8.1(B) hereof and the profit-share rights of Landlord set forth in Section
8.5
hereof shall not be applicable with respect to any assignment or sublease
effected pursuant to the terms of this Subsection 8.6(3).
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8.7 With
respect to each and every sublease or subletting authorized by Landlord under
the provisions of this Lease, it is further agreed as follows:
(a) no
subletting shall be for a term ending later than one day prior to the Expiration
Date of this Lease;
(b) no
sublease shall be valid, and no sublessee shall take possession of the Demised
Premises or any part thereof, until an executed counterpart of such sublease
has
been delivered to Landlord and approved by Landlord (where such approval is
required);
(c) each
sublease shall provide that it is subject and subordinate to this Lease and
to
the matters to which this Lease is or shall be subordinate, and that, in the
event of termination, re-entry or dispossess by Landlord under this Lease,
Landlord may, at its option, either terminate such sublease or take over all
of
the right, title and interest of Tenant, as sublessor, under such sublease,
and
such sublessee shall, at Landlord’s option, attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord shall not
(i)
be liable for any previous act or omission of Tenant under such sublease, (ii)
be subject to any offset, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, or (iii) be bound by
any
previous modification of such sublease or by any previous prepayment of more
than one month’s rent.
8.8 Notwithstanding
anything herein to the contrary, Tenant may, provided Tenant is not in default,
without Landlord’s consent but only upon prior written notice to Landlord, which
notice shall name the new occupant, describe the area so licensed and describe
in reasonable detail the business relationship between Tenant and such entity,
license space to attorneys, accountants, clients and professionals or other
business executives with whom Tenant conducts business on a continuing basis
and
whose services are supportive of Tenant’s business, (a “Proposed Licensee”),
provided that, (i) this Lease shall then be in full force and effect, Tenant
shall not then be in default under this Lease, and Lev Pharmaceuticals, Inc.
shall then be the Tenant under this Lease and shall occupy the Demised Premises
simultaneously with the Proposed Licensee; (ii) the Proposed Licensee shall
use
the Demised Premises in conformity with all applicable provisions of this Lease
and its use of the Demised Premises shall be subject and subordinate to the
terms and conditions of this Lease; (iii) in no event shall the use of any
portion of the Demised Premises by the Proposed Licensee create or be deemed
to
create any right, title or interest in or to the Demised Premises for the
Proposed Licensee; (iv) the portion of the Demised Premises occupied by the
Proposed Licensee and the portion of the Demised Premises occupied by Tenant
shall not be, and shall not be required by law to be, separated by demising
walls so as to create separate entrances from the elevator landing or public
corridors; (v) Proposed Licensees shall not be permitted to occupy more than
two
(2) desks in the Demised Premises in the aggregate; (vi) Tenant may not enter
into any written agreement with a Proposed Licensee that violates or is
inconsistent with the requirements and restrictions of this Section 8.8 and
(vii) at least ten (10) days prior to the Proposed Licensee taking occupancy
of
a portion of the Demised Premises, Landlord must receive from Tenant the license
agreement in the form attached hereto as Exhibit
I,
duly
completed and executed by Tenant and the Proposed Licensee, as well as any
other
written agreement between Tenant and the Proposed Licensee regarding the
Proposed Licensee’s occupancy of a portion of the Demised Premises. If Tenant
allows a Proposed Licensee to occupy the Demised Premises in violation of the
restrictions in this Section 8.8, such allowance shall constitute a default
under this Lease. No Proposed Licensee shall have any signage rights hereunder,
unless otherwise approved by Landlord. Any such approved signage shall be
Building Standard and at Tenant’s sole cost and expense. All Proposed Licensee’s
use of the Demised Premises shall be in conformance with standards of good
character consistent with the Building.
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ARTICLE
9
SUBORDINATION,
NON-DISTURBANCE, ESTOPPEL CERTIFICATE
9.1 INTENTIONALLY
OMITTED.
9.2 This
Lease is and shall be subject and subordinate in all respects to any ground
leases, overriding leases and underlying leases of the Land and/or the Building
now or hereafter existing and to all mortgages which may now or hereafter affect
the Land and/or the Building and/or such leases, to each and every advance
made
or hereafter to be made under such mortgages and to all renewals, modifications,
consolidations, replacements and extensions of such leases or mortgages. This
section shall be self-operative and no further instrument of subordination
shall
be required. In confirmation of such subordination, Tenant agrees to promptly
execute and deliver any instrument that Landlord, the lessor of any such lease
or the holder of any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination, and Tenant
hereby irrevocably appoints Landlord the attorney-in-fact of Tenant to execute
and deliver such instrument on behalf of Tenant, should Tenant refuse or fail
to
do so promptly after request. The leases to which this Lease is, at the time
referred to, subject and subordinate pursuant to this Article are hereinafter
sometimes called “superior leases”, and references to the lessors of superior
leases are intended to include the successors in interest of the lessors of
superior leases and their successors in interest as may be appropriate. The
mortgages to which this Lease is, at the time referred to, subject and
subordinate are hereinafter sometimes collectively called “superior mortgages”,
and references to the mortgagees of superior mortgages are intended to include
the successors in interest of the mortgagees of superior mortgages and their
successors in interest as may be appropriate.
Pursuant
to Section 4.1.9(a)(iii) of the Loan Agreement dated November 27, 2002 between
Landlord and UBS Warburg Real Estate Investments Inc. (“Lender”), this Lease
shall be subordinate to (i) the Mortgage, Assignment of Leases and Rents and
Security Agreement between Landlord and Lender, dated November 27, 2002 (the
“Mortgage”) and (ii) the Assignment of Leases and Rents between Landlord and
Lender dated November 27, 2002. In the event of such foreclosure of the
Mortgage, Tenant shall attorn to Lender or the purchaser of the
property.
9.3 In
the
event of any act or omission of Landlord which would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (i) until it has given written notice of such act or omission to the
holder of each superior mortgage and the lessor of each superior lease whose
name and address shall previously have been furnished to Tenant in writing,
and
(ii) unless such act or omission shall be one which is not capable of being
remedied by Landlord or such mortgage holder or lessor within a reasonable
period of time, until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such holder or lessor shall have become entitled under such superior
mortgage or superior lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord
would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy), provided such holder or lessor shall with due diligence give
Tenant written notice of intention to, and commence and continue to, remedy
such
act or omission.
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9.4 In
the
event of the enforcement by the holder of any mortgage of the remedies provided
for by law or by any security instrument, Tenant will, upon request of any
person succeeding to the interest of Landlord as a result of such enforcement,
automatically become Tenant of said successor in interest, without change in
the
terms or other provisions of this Lease; provided, however, that said successor
in interest shall not be bound by (i) any payment of Fixed Rent or additional
rent for more than one month in advance, except prepayments in the nature of
security for the performance by Tenant of its obligations under this Lease
to
the extent actually delivered to such successor, (ii) any amendment or
modification of this Lease (other than amendments or modifications specifically
provided for and allowed by this Lease) made without the consent of the holder
of such mortgage or such successor in interest is such mortgage existed when
the
amendment or modification was entered into and Tenant had been given notice
thereof, (iii) any obligation or liability of Landlord thereunder arising prior
to the date the holder of such mortgage shall succeed to the interest of
Landlord, (iv) any offset or defense which Tenant may have against any prior
landlord, or (v) any work or payment obligation of Landlord. Upon request by
said successor in interest, Tenant shall execute and deliver an instrument
or
instruments confirming such attornment. Anything to the contrary in the
foregoing notwithstanding, any cancellation, abridgment, surrender, modification
or amendment of this Lease, without the prior written consent of the holder
of
any superior mortgage, except as may be permitted by the provisions of any
such
superior mortgage or assignment of leases and rents granted in connection with
such superior mortgage shall be voidable as against the holder of the superior
mortgage, at its option.
9.5 If,
in
connection with obtaining financing (or condominiumizing) for the Land and/or
Building, or of any ground or underlying lease, a banking, insurance or other
recognized institutional lender shall request reasonable modifications in this
Lease as a condition to such financing (or condominiumizing), Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created or Tenant’s use and
enjoyment of the Demised Premises.
9.6 Tenant
agrees, at any time and from time to time, upon not less than ten (10) days’
prior notice by Landlord, to execute, acknowledge and deliver to Landlord,
a
statement in writing addressed to Landlord and any mortgagee certifying that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the Fixed Rent, additional rental
and other charges have been paid, stating whether or not to the best knowledge
of the signer of such certificate, there exists any default in the performance
of any covenant, agreement, term, provision or condition contained in the Lease,
and, if so, specifying each such default of which the signer may have knowledge,
and certifying as to such other matters as Landlord, any mortgagee or any ground
lessor may reasonably request, it being intended that any such statement
delivered pursuant hereto may be relied upon by Landlord and by any mortgagee,
prospective mortgagee of any mortgage affecting the Building or the Building
and
the Land, any mezzanine lender or prospective mezzanine lender and by any
landlord under a ground or underlying lease affecting the Land or Building,
or
both.
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9.7 Tenant
agrees to submit to Landlord on or before April 15 in each calendar year a
copy
of the latest annual financial statements of Tenant (and any guarantor of
Tenant’s obligations under this Lease), certified by Tenant’s independent
certified public accountant firm.
ARTICLE
10
ENTRY;
RIGHT TO CHANGE
PUBLIC
PORTIONS OF THE BUILDING
10.1 Tenant
shall permit Landlord to erect, use and maintain pipes and conduits in and
through the Demised Premises. Landlord or its agents or designees shall have
the
right to enter the Demised Premises in an emergency at any time, and, at other
reasonable times, upon reasonably prior notice, for the purpose of making such
repairs or alterations to the Demised Premises as Landlord may deem necessary
and reasonably desirable or that Landlord shall otherwise have the right to
make
pursuant to the provisions of this Lease or any other lease for premises in
the
Building. Landlord shall be allowed to take all material into and upon the
Demised Premises that may be required for the repairs or alterations above
mentioned without the same constituting an eviction of Tenant in whole or in
part and the rent reserved shall in no wise xxxxx, except as otherwise provided
in this Lease, while said repairs or alterations are being made. Landlord shall
use commercially reasonably efforts to complete any such work in a manner
minimizing disruption of Tenant’s use of the Demised Premises during business
hours, however, in no event shall Landlord be required to employ any “overtime”
labor or pay any “overtime” or other premium pay rate in connection with such
work.
Throughout
the term and, subject to the foregoing, Landlord also shall have the right
to
enter the Demised Premises for the purpose of inspecting them or exhibiting
them
to prospective purchasers or lessees of the Building or to prospective
mortgagees or to prospective assignees of any such mortgagees. During the twelve
(12) months prior to the expiration of the term of this Lease, Landlord may
exhibit the Demised Premises to prospective tenants. In addition, in the event
that at any time during the term of this Lease, Tenant shall be in default
beyond any applicable grace or notice period in the payment of Fixed Rent or
additional rent Tenant under this Lease or if Landlord shall obtain a judgment
against Tenant as a result of Tenant’s default under this Lease, Landlord shall
have the right to enter the Demised Premises at any time, whether or not Tenant
or its agent or representative is present, for the purpose of showing same
to
prospective tenants. If Tenant is not present to open and permit an entry into
the Demised Premises, Landlord or Landlord’s agents may enter the same whenever
such entry may be necessary or permissible by master key and, provided
reasonable care is exercised to safeguard Tenant’s property, such entry shall
not render Landlord or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant’s property
therefrom Landlord may immediately enter, alter, renovate or redecorate the
Demised Premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant’s obligations hereunder.
-22-
10.2 Landlord
shall have the right at any time without thereby creating an actual or
constructive eviction or incurring any liability to Tenant therefor, to change
the arrangement or location of entrances, passageways, doors and doorways,
corridors, stairs, toilets and other like public service portions of the
Building.
10.3 Landlord
shall have the right at any time to name the Building for any person(s) or
tenant(s) and to change any and all such names at any time
thereafter.
10.4 Tenant
acknowledges that Landlord may, at any time and from time to time during the
term of this Lease, perform substantial renovation work in and to the Building
and/or the mechanical systems serving the Building (which work may include,
but
need not be limited to, the repair and/or replacement of the Building’s exterior
facade, setbacks, exterior window glass, elevators, electrical systems, heating,
air conditioning and ventilating systems, plumbing system, common areas (such
as
hallways, restrooms, etc.) and/or lobby), any of which work may require access
to the same from within the Demised Premises. Landlord shall use reasonable
efforts (without being obligated to employ overtime labor or to incur any
extraordinary costs in connection therewith) to minimize any interference with
Tenant’s use of the Demised Premises for the purposes permitted under this Lease
that may be caused by such work. Tenant hereby accepts such conditions as
modifications and limitations on its right to use the Demised
Premises.
ARTICLE
11
LAWS,
ORDINANCES,
REQUIREMENTS
OF PUBLIC AUTHORITIES
11.1 Tenant
shall, at its expense, comply with all laws, orders, ordinances and regulations
of Federal, State, County and Municipal authorities including, but not limited
to, the Americans with Disabilities Act, Title III, 42 U.S.C.S. § 12181-12189
and with any direction made pursuant to law or any public officers which shall,
with respect to the occupancy, use or manner of use of the Demised Premises
or,
with respect to the Building if arising out of Tenant’s use or manner of use of
the Demised Premises or the Building (including the use permitted under this
Lease) or to any abatement of nuisance, impose any violation, order or duty
upon
Landlord or Tenant arising from Tenant’s occupancy, use or manner of use of the
Demised Premises or any installations made therein by or at Tenant’s request or
required by reason of a breach of any of Tenant’s covenants or agreements
hereunder.
11.2 If
Tenant
receives written notice of any violation of law, ordinance, rule, order or
regulation applicable to the Demised Premises, it shall give prompt notice
thereof to Landlord.
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11.3 Except
as
aforesaid, Landlord shall, at its expense comply with or cause to be complied
with, all laws, orders, ordinances and regulations of Federal, State, County
and
Municipal authorities and any direction, made pursuant to law, of any public
officer or officers which shall, with respect to the public portions of the
Building, or which affect Tenant’s use or enjoyment of, or access to, the
Demised Premises, impose any violation, order or duty upon Landlord or Tenant
and with respect to which Tenant is not obligated by Section 11.1 to comply.
Landlord may at its expense contest the validity of any such law, ordinance,
rule, order or regulation.
ARTICLE
12
REPAIRS
12.1 Tenant
shall take good care of the Demised Premises and the fixtures and appurtenances
therein and at its sole cost and expense make all repairs thereto as and when
needed to preserve them in good working order and condition. All damage or
injury to (a) the Demised Premises, whether structural or non-structural, and
to
its fixtures, glass, appurtenances and equipment or (b) to the Building, or
to
its fixtures, glass, appurtenances and equipment that is in either case of
(a)
or (b), (i) caused by Tenant moving property in or out of the Building or (ii)
by (x) installation or removal of furniture, fixtures or other property, or
(y)
resulting from fire, explosion, air-conditioning unit or system, short circuits,
flow or leakage of water, steam, illuminating gas, sewer gas, sewerage or odors
or by frost or by bursting or leaking of pipes or plumbing works or gas, or
from
any other cause of any other kind or nature whatsoever due to carelessness,
omission, neglect, improper conduct or other cause of Tenant, its servants,
employees, agents, visitors or licensees, shall be repaired, restored or
replaced promptly by Tenant at its sole cost and expense to the satisfaction
of
Landlord. All aforesaid repairs, restorations and replacements shall be in
quality and class equal to the original work or installations and shall be
done
in a good and workmanlike manner. If Tenant fails to make such repairs,
restorations or replacements, same may be made by Landlord at expense of Tenant
and all sums so spent and expenses incurred by Landlord shall be collectible
as
additional rent and shall be paid by Tenant within twenty (20) days after
rendition of a xxxx or statement therefor. Tenant shall promptly make, at
Tenant’s expense, all repairs in and to the Demised Premises for which Tenant is
responsible, using only the contractor for the trade or trades in question,
selected only from Landlord’s approved contractors, a current listing of which
is set forth on Exhibit
E
attached
hereto. Any other repairs in or to the Building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Landlord at
Tenant’s expense.
12.2 Landlord
shall, at its expense, make all repairs and replacements, structural and
otherwise, necessary or desirable in order to keep in good order and repair
the
exterior of the Building and the public portions of the Building the need for
which Landlord may have knowledge (including the public halls and stairways,
plumbing, wiring and other Building equipment for the general supply of water,
heat, air-conditioning, gas and electricity) except repairs hereinabove provided
to be made by Tenant. Tenant agrees to notify Landlord of the necessity of
repairs of which Tenant may have knowledge, for which Landlord may be
responsible under the provisions of the preceding sentence. There shall be
no
allowance to Tenant for diminution of rental value and no liability on the
part
of Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord or others making repairs, alterations, additions or improvements
in or to any portion of the Building or the Demised Premises or in and to the
fixtures, appurtenances or equipment thereof. It is specifically agreed that
Tenant shall not be entitled to any setoff or reduction of rent by reason of
any
failure of Landlord to comply with the covenants of this Article or any other
Article of this Lease. Tenant agrees that Tenant’s sole remedy at law in such
instance will be by way of an action for damages for breach of contract. The
provisions of this Article 12 shall not apply in the case of fire or other
casualty which are dealt with in Article 17 hereof.
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ARTICLE
13
ALTERATIONS;
FIXTURES
13.1 Except
as
otherwise expressly provided herein, Tenant shall make no alterations,
decorations, installations, additions or improvements in or to the Demised
Premises or the electrical, plumbing, mechanical or heating, ventilating and
air-conditioning systems serving the Demised Premises, including but not limited
to, a water cooler (other than a cooler for drinking), an air-conditioning
or
cooling system, mechanical or electrical equipment, or any unit or part thereof
or other apparatus of like or other nature, without Landlord’s prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned, and then only by contractors or mechanics approved by Landlord,
such approval not to be unreasonably withheld, delayed or conditioned; provided
however, that no such consent shall be required if such alterations are merely
decorative in nature (e.g., finishes, painting, carpeting, wall covering and
furniture systems that do not effect the Building’s electrical systems or
equipment) and do not effect any base building systems (e.g., HVAC, life safety,
electrical, etc.) and would not, in Landlord’s reasonable determination, cost
more than Twenty Five Thousand Dollars ($25,000). All such work, alterations,
decorations, installations, additions or improvements, whether or not the same
shall require Landlord’s consent, shall be done at Tenant’s sole expense and at
such times and in such manner as Landlord may from time to time reasonably
designate and in full compliance with (i) all governmental bodies having
jurisdiction thereover, (ii) all insurance requirements and (iii) Building
Rules
and Regulations and Building Rules and Regulations for Tenant Alterations
attached hereto as Exhibit
D
and
Exhibit
D-1
respectively. As a condition precedent to Landlord’s consent to the making by
Tenant of alterations, decorations, installations, additions or improvements
to
Demised Premises, Tenant agrees to obtain and deliver to Landlord a performance
bond and a labor and materials payment bond issued by a surety company
satisfactory to Landlord and licensed to do business in the State of New York,
each in an amount equal to one hundred fifty percent (150%) of the cost of
all
work, labor, and such services to be performed and materials to be furnished
in
connection with such work, signed by such surety and a receipt of payment in
full of the premium for such bond. Landlord and Landlord’s designees shall be
obligee(s) or insured(s) under such surety bond. Notwithstanding the foregoing,
if any mechanic’s lien is filed against the Demised Premises or the Building for
work claimed to have been done for or materials claimed to have been furnished
to Tenant, it shall be discharged by Tenant within ten (10) days thereafter,
at
Tenant’s expense, by filing the bond required by law or payment or otherwise. If
Tenant fails to discharge such lien, then Landlord (upon ten (10) days’ prior
notice to Tenant) shall have the right to discharge same (by filing the bond
required by law or by payment in full of the mechanic’s lien or otherwise) and
Landlord’s costs and expense in obtaining such discharge shall be repaid in full
by Tenant to Landlord as additional rent within ten (10) days after written
demand therefor. In addition, Tenant shall defend, save and hold Landlord
harmless from any such mechanic’s lien or claim, including, without limitation,
Landlord’s reasonable attorneys’ fees, costs and expenses. Landlord shall not be
liable for any failure of any Building facilities or services including, but
not
limited to, the heating, ventilating and air-conditioning installations if
any
such failure is caused by any work, alterations, installations, additions and/or
improvements performed by Tenant and Tenant shall correct any such faulty
installation. Upon Tenant’s failure to correct same, Landlord may make such
correction and charge Tenant for the cost thereof. Such sum due Landlord shall
be deemed additional rent and shall be paid by Tenant promptly upon being billed
therefor and unless so paid, Tenant shall also pay Landlord the then Interest
Rate on such additional rent.
-25-
13.2 Prior
to
commencing any work pursuant to the provisions of Section 13.1, Tenant shall
furnish to Landlord:
A. Copies
of
all governmental permits and authorizations which may be required in connection
with such work.
B. A
certificate evidencing that Tenant (or Tenant’s contractors) has (have) procured
the insurance required by the Rules and Regulations for Tenant Alterations
attached hereto as Exhibit
D-1.
13.3 All
alterations, decorations, installations, additions or improvements upon the
Demised Premises, made by either party, including all paneling, decoration,
partitions, railing, mezzanine floors, galleries and the like, affixed to the
realty so that they cannot be removed without material damage, or for which
Tenant has received a credit, shall, unless Landlord elects otherwise, become
the property of Landlord and shall remain upon, and be surrendered with, the
Demised Premises, as a part thereof, at the end of the term or renewal terms,
as
the case may be. In the event Landlord shall elect otherwise, then such
alterations, decorations, installations, additions or improvements made by
Tenant upon the Demised Premises as Landlord shall select (excluding any
Supplemental Air-Conditioning System), shall be removed by Tenant and Tenant
shall restore the Demised Premises to its original condition, reasonable wear
and tear excepted, at its own cost and expense, at or prior to the expiration
of
the term
provided, however,
that so
long as Tenant delivers a cover letter with its plans wherein it requests
Landlord in bold,
capital letters with a font size of not less than 14 point at the top
to
identify specific improvements that Landlord will require removal and
restoration by Tenant as set forth above, Landlord shall identify same during
its review of Tenant’s plans. If Tenant fails to do so, then (a) Landlord shall
remove such item(s) and repair any damage caused by such removal and restore
the
Demised Premises as set forth above, (b) Tenant shall reimburse Landlord within
thirty (30) days following written demand for Landlord’s reasonable costs of
such removal and/or restoration, (c) if Landlord is holding a Security Deposit
under Article 29 of this Lease, Landlord shall retain such portion of that
Security Deposit as Landlord deems reasonably necessary in order to secure
Tenant’s payment obligations under clause (b) above (but the same shall not
constitute a limit on Tenant’s obligation under such clause (b) above) and (d)
the provisions of this sentence shall survive the expiration or earlier
termination of this Lease. Where furnished by or at the expense of Tenant
(except where same is a replacement of an item theretofore furnished and paid
for by Landlord or against which Tenant has received a credit), all movable
property, furniture, furnishings and trade fixtures, not affixed to the realty
so that they can be removed without material damage shall remain the property
of
Tenant, shall be removed by Tenant on or before the expiration of the term
or
sooner termination thereof and, in case of damage by reason of their removal,
Tenant shall repair any damage and restore the Demised Premises to good order
and condition, reasonable wear and tear excepted. In case Tenant shall decide
not to remove any part of such property, it shall notify Landlord in writing
not
less than sixty (60) days prior to the expiration of the term of this Lease
specifying the items of property which it has decided not to remove. If within
thirty (30) days after the service of such notice Landlord shall request Tenant
to remove any of the said Tenant’s property, and/or if Landlord shall elect, not
less than thirty (30) days prior to the expiration of this Lease, to require
the
removal of any alterations, decorations, installations, additions or
improvements referred to above, Tenant shall at its expense, at or before the
expiration of the term of this Lease, remove said property, and in case of
damage by reason of such removal, restore the Demised Premises to good order
and
condition, reasonable wear and tear excepted. All property permitted or required
to be removed by Tenant at the end of the term remaining in the Demised Premises
after Tenant’s removal shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord’s property or may be removed from the
Demised Premises by Landlord, at Tenant’s expense.
-26-
13.4 A.
Before proceeding with any alteration and/or addition, Tenant shall submit
to
Landlord three copies of detailed plans and specifications therefor, for
Landlord’s review and approval. In no event by reason thereof shall Tenant’s
connected electrical load exceed the capacity of the distribution system in
and
to the Demised Premises.
B. Tenant
shall promptly reimburse Landlord for all reasonable expenses incurred by
Landlord in connection with (i) its decision and the decision of any superior
lessor and superior mortgagee as to whether to approve the proposed alterations
and/or additions and (ii) inspecting the alterations and/or additions to
determine whether the same are being or have been performed in accordance with
the approved plans and specifications therefor and with all legal requirements
and insurance requirements, including the fees and expenses of any attorney,
architect or engineer employed for such purpose. Landlord shall exercise its
good faith efforts to obtain consents from any superior lessor and superior
mortgagee. If such alterations and/or additions require consent by or notice
to
the superior lessor, or the superior mortgagee, Tenant, notwithstanding anything
to the contrary contained in this Article, shall not proceed with the same
until
such consent has been received, or such notice has been given, as the case
may
be, and all applicable conditions and provisions of the superior lease and/or
additions for which consent has been received shall be performed in accordance
with the approved plans and specifications therefor, and no changes thereto
shall be made without the prior consent of Landlord.
C. Tenant
shall not be permitted to install and make part of the Demised Premises any
materials, fixtures or articles which are subject to liens, chattel mortgages
or
security interests (as such term is defined in the Uniform Commercial Code
as
then in effect in New York) but Tenant shall be permitted to lease normal office
equipment, e.g. typewriter, photocopy machines and telex machines, which are
not
to be built into the Demised Premises.
D. No
alterations and/or additions shall be undertaken (i) except under the
supervision of a licensed architect or licensed professional engineer
satisfactory to Landlord and (ii) except after at least thirty (30) days’ prior
notice to Landlord.
13.5 All
alterations and/or additions shall at all times comply with all legal
requirements and insurance requirements and all rules and regulations including
any Landlord may adopt with respect to the making of any improvements and shall
be made at such times and in such manner as Landlord may from time to time
direct. Tenant, at its expense, shall (a) obtain all necessary municipal and
other governmental permits, authorizations, approvals and certificates for
the
commencement and prosecution of such alterations and/or improvements and for
final approval thereof upon completion, (b) deliver three copies to Landlord
and
(c) cause all alterations and/or improvements to be performed in a good and
first class workmanlike manner, using new materials and equipment at least
equal
in quality to the original installations of the Building or the then standards
for the Building established by Landlord. All alterations and/or additions
shall
be promptly commenced and completed and shall be performed in such manner so
as
not to interfere with the occupancy of any other tenant nor delay or impose
any
additional expense upon Landlord in the maintenance, cleaning, repair, safety,
management, or security of the Building (or the Building’s equipment) or in the
performance of any improvements. If any additional expense is incurred Landlord
may collect the same as additional rent from Tenant and Tenant’s failure to
promptly pay the same when billed shall entitle Landlord to treat the
non-payment thereof as a non-payment of rent under this Lease and until paid
to
Landlord such additional rent shall bear interest at the then Interest Rate.
Upon completion of Tenant’s improvements, Tenant shall deliver a complete set of
“As-Built” drawings and plans to Landlord. No improvements shall involve the
removal of any fixtures, equipment or other property in the Demised Premises
which are not Tenant’s sole and exclusive property without Landlord’s prior
written consent and unless they shall be promptly replaced, at Tenant’s expense,
with fixtures, equipment or other property, of like utility and at least equal
value (which thereupon shall become the property of Landlord).
-27-
A. Tenant,
at its sole expense, promptly shall procure the cancellation or discharge of
all
notices of violation arising from or otherwise connected with its alterations
and/or additions which shall be issued by any public authority having or
asserting jurisdiction.
B. Only
Landlord or persons first approved by Landlord shall be permitted to act as
contractor for any work to be performed in accordance with this Article.
Landlord reserves the right to exclude from the Building any person attempting
to act as construction contractor in violation of this Article. In the event
Tenant shall employ any contractor permitted in this Article, such contractor
or
any subcontractor may have use of the Building facilities subject to the
provisions of this Lease and the Rules and Regulations governing construction.
Tenant will advise Landlord of the names of any such contractor and
subcontractor Tenant proposes to use in the Demised Premises at least thirty
(30) days prior to the beginning of work by such contractor or
subcontractor.
C. Tenant
agrees that it will not at any time prior to or during the term of this Lease,
either directly or indirectly employ or permit the employment of any contractor,
mechanic or laborer, or permit any materials in the Demised Premises, if the
use
of such contractor, mechanic or laborer or such materials would, in Landlord’s
sole and exclusive opinion, create any difficulty, work slowdown, sabotage,
wild-cat strike, strike or jurisdictional dispute with other contractors,
mechanics and/or laborers engaged by Tenant or Landlord or others, or would
in
any way disturb the peaceful and harmonious construction, maintenance, cleaning,
repair, management, security or operation of the Building or any part thereof
or
in any other building owned by Landlord (or an affiliate of Landlord or
co-venturer of Landlord). In the event of any interference or conflict, or
perceived interference or conflict, Tenant, upon demand of Landlord, shall
cause
all contractors, mechanics or laborers, or all materials causing, in Landlord’s
sole and exclusive opinion, such interference, difficulty or conflict, to leave
or be removed from the Building immediately and Tenant does hereby agree to
defend, save and hold Landlord harmless from any and all loss arising thereby,
including, without limitation, any attorney’s fees and any claims made by
contractors, mechanics and/or laborers so precluded from having access to the
Building.
D. No
approval of any plans or specifications by Landlord or consent by Landlord
allowing Tenant to make any improvements or any inspection of improvements
made
by or for Landlord shall in any way be deemed to be an agreement by Landlord
that the contemplated improvements comply with any legal requirements or
insurance requirements or the certificate of occupancy for the Building nor
shall it be deemed to be a waiver by Landlord of the compliance by Tenant of
any
provision of this Lease.
E. In
making
any alterations, installations, additions or improvements to the Demised
Premises, (a) Tenant must comply with the Building Rules & Regulations For
Tenant Alterations, a current listing of which is attached hereto as
Exhibit
D-1,
(b) all
work and materials shall be at least equal to the Building Standards, a current
listing of which is attached hereto as Exhibit
E-1,
and (c)
Tenant shall use only Landlord’s approved contractors, a current listing of
which is set forth on Exhibit
E
attached
hereto.
13.6 Notwithstanding
anything to the contrary contained in this Article 13, in the event that
Landlord conditions its consent to any Alterations upon Tenant’s removal of any
installations made in connection therewith on or before the Expiration Date,
then Tenant, at its sole cost and expense, shall remove all telephone, data
and
communications equipment, wiring and components thereof installed by or on
behalf of Tenant, which are located inside and/or outside of the Demised
Premises.
-28-
ARTICLE
14
LANDLORD’S
RIGHT TO PERFORM TENANT’S OBLIGATIONS
14.1 If
Tenant
shall default in the observance or performance of any term or covenant on its
part to be observed or performed under or by virtue of any of the terms or
provisions in any Article of this Lease and such default is not cured after
written notice and the applicable cure period, Landlord, without being under
any
obligation to do so and without thereby waiving such default, may remedy such
default for the account and at the expense of Tenant. If Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, including, but not limited to, reasonable attorney’s fees in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred with interest and costs shall be deemed to be additional
rent hereunder and shall be paid to it by Tenant on demand. If the term of
this
Lease shall have expired or otherwise terminated at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable
by
Landlord, as damages.
ARTICLE
15
NO
LIABILITY OF LANDLORD
15.1 Landlord
or Landlord’s agents have made no representations or promises with respect to
the Building, the Land or the Demised Premises except herein expressly set
forth
and no rights, easements or licenses are acquired by Tenant by implication
or
otherwise except as expressly set forth in the provision of this Lease. The
taking possession of the Demised Premises by Tenant shall be conclusive
evidence, as against Tenant, that Tenant accepts the Demised Premises and the
Building and that same were in good and satisfactory condition at the time
such
possession was so taken, subject to the completion of Landlord’s Work and latent
defects which Tenant notified Landlord in writing within one (1) year of the
Commencement Date.
15.2 This
Lease and the obligation of Tenant to pay rent hereunder and perform all of
the
other covenants and agreements hereunder on the part of Tenant to be performed
shall in no way be affected, impaired or excused because Landlord is unable
to
fulfill any of its obligations under this Lease or is unable to supply or is
to
make or is delayed in making any repairs, additions, alterations or decorations
or is unable to supply or is delayed in supplying any equipment or fixtures,
if
Landlord is prevented or delayed from so doing by reason of strike or labor
trouble or any other cause whatsoever including, but not limited to, acts of
war, emergency, terrorism, bioterrorism, governmental preemption in connection
with a National Emergency, or by reason of any rule, order or regulation of
any
department or subdivision thereof of any government agency or by reason of
the
conditions of supply and demand which have been or are affected by war or other
emergency. Landlord shall have no liability to Tenant, nor shall Tenant be
entitled to terminate this Lease, to claim an actual or constructive eviction
in
whole or in part, or be entitled to any abatement or diminution of rent payable
by Tenant under this Lease or to any relief from any of its obligations under
this Lease (except as expressly set forth in Article 17 below in the event
of
fire or other casualty only) if by reason of strike or labor trouble or any
other cause whatsoever beyond the reasonable control of Landlord, including,
but
not limited to, acts of war, emergency, casualty, terrorism, bioterrorism,
or
governmental preemption in connection with a National Emergency, there is (a)
a
lack of access to the Building or the Demised Premises (which shall include
without limitation the lack of access to the Building or the Demised Premises
when it or they are structurally sound but inaccessible due to evacuation of
the
surrounding area or damage to nearby structures or public areas); (b) reduced
air quality or other contaminants in the Building that would adversely affect
the Building or its occupants, including without limitation the presence of
biological or other airborne agents within the Building or the Demised Premises;
(c) disruption of mail and deliveries to the Building or the Demised Premises;
(d) disruption of telephone and/or other communications services to the Building
or the Demised Premises; (e) disruption of any other services to the Demised
Premises or any of the Building systems; or (f) Tenant is otherwise unable
to
use and/or occupy the Demised Premises for the conduct of its
business.
-29-
15.3 Tenant
agrees that any building employee to whom any property shall be entrusted by
or
on behalf of Tenant shall be acting as Tenant’s agent with respect to such
property, and Landlord
and its agents shall not be liable for any damage to property of Tenant or
of
others entrusted to employees of the Building, nor for the loss of or damage
to
any property of Tenant by theft or otherwise. Landlord and its agents shall
not
be liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow leaks
from any part of the Building or from the pipes, appliances or plumbing works
or
from the roof, street or sub-surface or from any other place or by dampness
or
by any other cause of whatsoever nature, unless caused by or due to the
negligence or willful misconduct of Landlord, its agents, servants or employees;
nor shall Landlord and its agents be liable for any bodily injury, personal
injury or property damage occasioned by the acts or omissions of any other
tenant or such tenant’s employees, agents, contractors, customers or invitees
within the Building or within any common areas related to the Building or other
persons in the Building or caused by operations in construction of any private,
public or quasi-public work; nor shall Landlord be liable for any patent defect
in the Demised Premises or in the Building. If at any time any windows of the
Demised Premises are temporarily or permanently closed, darkened or bricked
up
for any reason whatsoever including, but not limited to, Landlord’s own acts,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement of
rent
nor shall the same release Tenant from its obligations hereunder nor constitute
an eviction. Tenant shall reimburse and compensate Landlord as additional rent
within fifteen (15) days after rendition of a statement for all expenditures
made by or damages or fines sustained or incurred by Landlord due to
non-performance or non-compliance with or breach or failure to observe any
term,
covenant or condition of this Lease upon Tenant’s part to be kept, observed,
performed or complied with. If Tenant shall fail to make such payment within
said fifteen (15) days, Tenant shall also be liable for interest on such
additional rent at the then Interest Rate until Landlord shall be fully
reimbursed. Tenant shall give immediate notice to Landlord in case of fire
or
accidents in the Demised Premises or in the Building or of defects therein
or in
any fixtures or equipment.
15.4 No
recourse shall be had on any of Landlord’s obligations under this Lease or for
any claim based thereon or otherwise in respect thereof against any incorporator
of Landlord, subscriber to Landlord’s capital stock, shareholder, employee,
agent, officer or director, past, present or future, of any corporation, or
any
partner, member or joint venturer of any partnership, limited liability company
or joint venture which shall be Landlord hereunder or included in the term
“Landlord” or of any successor of any such corporation, or against any
principal, disclosed or undisclosed, or any such corporation, or against any
principal, disclosed or undisclosed, or any affiliate of any party which shall
be Landlord or included in the term “Landlord,” whether directly or through
Landlord or through any receiver, assignee, agent, trustee in bankruptcy or
through any other person, firm or corporation, whether by virtue of any
constitution, statute or rule of law or by enforcement of any assessment or
penalty or otherwise, all such liability being expressly waived and released
by
Tenant.
-30-
15.5 Tenant
shall look only and solely to Landlord’s estate and interest in and to the
Building and the rents and profits therefrom for the satisfaction of any right
of Tenant arising out of this Lease or for the collection of judgment or other
judicial process or arbitration award requiring the payment of money by Landlord
and no other property or assets of Landlord, Landlord’s agents, incorporators,
shareholders, employees, officers, directors, partners, agents, principals
(disclosed or undisclosed), members, joint venturers, or affiliates shall be
subject to levy, lien, execution, attachment, or other enforcement procedure
for
the satisfaction of Tenant’s rights and remedies under or with respect to this
Lease, the relationship of Landlord and Tenant hereunder or under law, or
Tenant’s use and occupancy of the Demised Premises or any other liability of
Landlord to Tenant.
ARTICLE
16
INSURANCE
16.1 Tenant
shall not do or permit to be done any act or thing in or upon the Demised
Premises which will invalidate or be in conflict with the Certificate of
Occupancy or the terms of the New York State standard form of fire, boiler,
sprinkler, water damage or other insurance policies covering the Building and
the fixtures and property therein; and Tenant shall, at its own expense, comply
with all rules, orders, regulations or requirements of the New York Board of
Fire Underwriters or any other similar body having jurisdiction, and shall
not
knowingly do or permit anything to be done in or upon the Demised Premises
or
bring or keep anything therein or use the Demised Premises in a manner which
increases the rate of fire insurance upon the Building or on any property or
equipment located therein over the rate in effect at the commencement of the
term of this Lease.
16.2 If,
by
reason of any failure of Tenant to comply with the provisions of this Lease,
the
rate of fire, boiler, sprinkler, water damage or other insurance (with extended
coverage) on the Building or on the property and equipment of Landlord or any
other tenant or subtenant in the Building shall be higher than it otherwise
would be, Tenant shall reimburse Landlord and the other tenants in the Building
for that part of the fire, boiler, sprinkler, water damage or other insurance
premiums thereafter paid by Landlord which shall have been charged because
of
such failure by Tenant and Tenant shall make the reimbursement on the first
day
of the month following such payment by Landlord. If Tenant shall fail to make
such reimbursement when billed for the same, Landlord may treat the same as
a
default in the payment of rental and shall also be entitled to interest on
the
unpaid sum at the then Interest Rate until such sum shall be fully paid to
Landlord. In any action or proceeding wherein Landlord and Tenant are parties,
a
schedule or “make up” of rates for the Building or Demised Premises issued by
the New York Fire Insurance Exchange or other body making fire insurance rates
for the Demised Premises, shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rate then
applicable to said Building or Demised Premises.
16.3 Tenant
shall obtain and keep in full force and effect during the term, at its own
cost
and expense, to protect Landlord, Landlord’s agents, any superior lessor,
superior mortgagee and Tenant as insureds, the following forms of
insurance:
-31-
(a) Comprehensive
General Liability insurance, including Products, Completed Operations, and
Contractual Liability coverage (covering the liability of Tenant to Landlord
by
virtue of any indemnification agreement in this Lease), covering bodily injury,
and property damage liability, personal injury and advertising liability, fire
legal liability, all in connection with the use and occupancy of or the
condition of the Demised Premises, the Building or the related common areas,
in
amounts not less than: (i) $5,000,000, general aggregate per
location;
(ii)
$5,000,000, per occurrence for bodily injury & property damage; (iii)
$5,000,000, personal and advertising injury; and (iv) $1,000,000, fire legal
liability. The foregoing limits can be provided by the combination of General
Liability coverage and Umbrella Liability coverage. Landlord reserves the right
to request, from time to time, that the above limits be increased by reasonable
amounts, depending upon circumstances and what is commercially reasonable under
those circumstances.
(b) “All
Risk” property insurance, including the perils of flood, terrorism and
environmental damage, covering the property of Tenant, including alterations,
improvements and betterments installed by or for Tenant, and/ or paid for or
purchased by Tenant, in an amount equivalent to the insurable value of said
property, defined as the “cost to replace or reconstruct new without deduction
for physical depreciation”.
(c) “All
Risk” business interruption or earnings insurance, including the perils of
flood, terrorism and environmental damage, to cover the loss of gross profits
and continuing expenses (including without limitation rent payable under this
Lease) during the period of partial or total shutdown of Tenant’s
business.
(d) Such
other insurance in such amounts as may reasonably be required by
Landlord.
With
respect to the insurance required in (a), (b), (c) and (d) above, Landlord
shall
receive, at least ten (10) days prior to Tenant, or anyone acting for or on
behalf of Tenant, entering the Demised Premises for any purpose whatsoever,
a
certificate indicating the aforesaid coverage and including Landlord and those
entities set forth on Exhibit
H
as
additional insureds and as otherwise may be designated by Landlord in writing
in
the future. Such certificate is to contain provisions that obligate the insurer
to notify Landlord, thirty (30) days in advance, in the event of cancellation,
non-renewal or material change of the coverage. Such insurance is to be written
by an insurance company or companies reasonably satisfactory to Landlord and
with a Best’s rating of at least A-, X. All such insurance shall be written in
form and substance reasonably satisfactory to Landlord by an insurance company
of recognized responsibility licensed and authorized to do business in New
York
State. Upon failure of Tenant to procure, maintain and pay all premiums
therefor, Landlord may, at its option upon five (5) days written notice to
Tenant, do so, and Tenant agrees to pay the cost thereof to Landlord upon demand
as additional rent, together with interest thereon at the then Interest Rate.
Attached hereto as Exhibit
G
is a
sample insurance certificate showing the lower right-hand “Cancellation” section
requirements which must be met to conform the certificate to the provisions
of
this Section, which sample insurance certificate is meant for illustrative
purposes only and is no way meant to supersede any obligations imposed upon
Tenant pursuant to this Article 16. On the Commencement Date, the original
insurance policies or appropriate endorsements thereto shall also be deposited
with Landlord.
-32-
16.4 To
the
fullest extent permitted by law, Tenant agrees to defend, indemnify and save
Landlord, its directors, officers, shareholders, members, agents,
representatives, employees, all superior lessors and superior mortgagees
(collectively, “Landlord Parties”) harmless from and against all claims
(including costs and expenses of defending such claims) arising from or in
connection with any act, omission or negligence of Tenant or Tenant’s agents,
employees, contractors, subcontractors, representatives and employees
(collectively “Tenant’s Representatives”), including but not limited to (i) any
accident, injury or damages whatsoever caused to any person or to the property
of any person and occurring in or about the Demised Premises and all other
portions of the Building used or occupied by Tenant, including as a result
of
any alterations, repairs or maintenance made by or on behalf of Tenant and
(ii)
any accident, injury or damage occurring outside of the Demised Premises or
other portions of the Building used or occupied by Tenant, but anywhere within
or about the Building, where such accident, injury or damage results or is
claimed to have resulted from an act, omission or negligence of Tenant or
Tenant’s Representatives.
16.5 Tenant
agrees to use and occupy the Demised Premises and other facilities of the
Building at it’s own risk and hereby releases Landlord, its agents and
employees, from all claims for any damage or injury to the full extent permitted
by law (not including claims which arise out of Landlord’s gross negligence or
willful misconduct).
16.6 Tenant
agrees that Landlord shall not be responsible or liable to Tenant, its
employees, agents, customers or invitees for bodily injury, personal injury
or
property damage occasioned by the acts or omissions of any other tenant or
such
tenant’s employees, agents, contractors, customers or invitees within the
Building or within any common areas related to the Building.
16.7 Tenant
agrees that any Building employee to whom any property shall be entrusted by
or
on behalf of Tenant shall be acting as Tenant’s agent with respect to such
property and neither Landlord, nor Landlord’s agents, employees or contractors,
shall be liable for any loss of or damage to any such property.
ARTICLE
17
DAMAGE
BY
FIRE OR OTHER CAUSE
17.1 If
the
Demised Premises shall be partially damaged by fire or other cause without
the
default or neglect of Tenant, Tenant’s servants, employees, agents, visitors or
licensees, the damages shall be repaired by and at the expense of Landlord
and
until such repairs shall be completed the Fixed Rent shall be apportioned
according to the part of the Demised Premises which is usable by Tenant. But
if
partial damage is due to the fault or gross negligence of Tenant, Tenant’s
servants, employees, agents, visitors or licensees, without prejudice to any
other rights and remedies of Landlord and without prejudice to the rights of
subrogation of Landlord’s insurer, the damages shall be repaired by Landlord but
there shall be no apportionment or abatement of rent. No penalty shall accrue
for reasonable delay which may arise by reason of adjustment of insurance on
the
part of the Landlord, or for reasonable delay on account of “labor troubles,” or
for Acts of God, or any other cause beyond Landlord’s control, or any
combination thereof. If the Demised Premises are totally or substantially
damaged or are rendered wholly or substantially untenantable by fire or other
cause, then the rent shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the Demised Premises
shall have been repaired and restored by Landlord, subject to Landlord’s right
to elect not to restore the same as hereinafter provided. If the Demised
Premises are rendered wholly unusable or (whether or not the Demised Premises
are damaged in whole or in part) if the Building shall be so damaged that
Landlord shall decide to demolish it or to rebuild it or to substantially
renovate it, then or in any of such events Landlord may, within ninety (90)
days
after such fire or other cause, give Tenant a notice in writing of such
decision, which notice shall be given as in Article 24 hereof provided, and
thereupon the term of this Lease shall expire by lapse of time upon the third
day after such notice is given, and Tenant shall vacate the Demised Premises
and
surrender the same to Landlord. Upon the termination of this Lease under the
conditions provided for in the sentence immediately preceding, Tenant’s
liability for rent shall cease as of the day following the casualty (except
for
any pre-existing rent obligations). Tenant hereby expressly waives the provision
of Section 227 of the Real Property Law and agrees that the foregoing provision
of this Article shall govern and control in lieu thereof, this Article being
an
express agreement. If the damage or destruction be due to the fault or neglect
of Tenant the debris shall be removed by, and at the expense of,
Tenant.
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17.2 No
damage, compensation or claims shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building. Landlord shall use its
reasonable efforts (which reasonable efforts shall in no event obligate Landlord
to pay overtime pay or other premium rates) to effect such repairs promptly
and
in such a manner as not unreasonably to interfere with Tenant’s
occupancy.
17.3 In
the
event that either Tenant or Landlord sustains a loss by fire or other casualty
and such loss is caused in whole, or in part, by acts or omissions of the other
party, the other party’s agents, employees, or servants, then the party
sustaining the loss agrees, to the extent that the party sustaining such loss
is
compensated for such loss by insurance, that it shall waive all rights of
recovery against the other party, or the agents, employees, or servants of
the
other party; and no third party shall have any right of recovery, by way of
subrogation or assignment or otherwise. The parties hereto shall each procure
and maintain in force and effect an appropriate clause in, or endorsement on,
any fire or extended coverage insurance covering the Demised Premises and the
Building and the personal property, fixtures and equipment located therein
or
thereon, pursuant to which, the insurance companies waive subrogation, provided
such waiver is procurable without additional premium, and having obtained such
clause or endorsement of waiver of subrogation, each party hereby agrees that
it
will not make any claims against or seek to recover from the other for any
loss
or damage to its property or the property of the other, covered by such fire
and
extended coverage insurance; provided, however, that the release, discharge,
exoneration and covenant not to xxx herein contained shall be limited by the
terms and provisions of the waiver of subrogation clause and/or endorsements
and
shall be co-extensive therewith. If such waiver of subrogation shall be
procurable only by payment of an additional premium therefor, notice of such
requirements shall be furnished to the other party, and if such other party
fails to pay such additional premium, or if such waiver of subrogation shall
no
longer be obtainable, then the provisions hereof shall not be applicable to
such
other party. Notwithstanding anything in this Lease to the contrary, Tenant
acknowledges that Landlord is not required to carry insurance on any alterations
or improvements installed in the Demised Premises by or for Tenant and/or paid
for or purchased by Tenant or on Tenant’s removable appurtenances, such as
furniture, equipment, furnishings and other Tenant appurtenances removable
by
Tenant, and Tenant agrees that Landlord will not be obligated to repair any
damage thereto or to replace the same. Tenant agrees to carry and maintain
insurance on all of its alterations, improvements and property equal to one
hundred percent (100%) of the full insurable value thereof.
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17.4 In
the
event the Demised Premises are damaged by fire or other casualty and Landlord
does not (or does not have the right to) cancel this Lease, then within ninety
(90) days thereafter, Landlord shall deliver to Tenant a statement (hereinafter
referred to as the “Damage Statement”) prepared by a reputable architect or
contractor reasonably selected by Landlord setting forth such architect’s or
contractor’s reasonable estimate as to the time required to repair such damage
(to the extent required under Section 17.1). If the estimated time period
exceeds twelve (12) months from the date of the Damage Statement estimate,
Tenant may elect to terminate this Lease by notice to Landlord sent not later
than fifteen (15) days following Tenant’s receipt of the Damage Statement. In
the event that the Demised Premises shall be damaged by fire or other casualty,
then in such event if Landlord’s work under Section 17.1 is not substantially
completed by Landlord within twelve (12) months after the date of the Damage
Statement, Tenant may elect, as its sole remedy, to terminate this Lease by
notice to Landlord not later than fifteen (15) days following the expiration
of
said period provided, however, that no right of Tenant to terminate this Lease
on fifteen (15) days’ notice, shall accrue for delay caused by reasons of force
majeure.
17.5 If
more
than fifteen percent (15%) of the Demised Premises or a substantial portion
of
the Building shall be damaged by fire or other casualty during the last two
(2)
years of the terms of this Lease, Landlord or Tenant may, upon ninety (90)
days
written notice to the other, cancel and terminate this Lease as of the date
set
forth in such notice, as if such date were the stated Expiration Date of this
Lease and Landlord shall have no duty to repair and/or restore the Demised
Premises.
ARTICLE
18
CONDEMNATION
18.1 In
the
event that the whole of the Demised Premises shall be condemned or taken in
any
manner for any public or quasi-public use, this Lease and the term and estate
hereby granted shall forthwith cease and terminate as of the date of vesting
of
title. In the event that only a part of the Demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the
rent
hereunder for such part shall be equitably abated and this Lease shall continue
as to such part not so taken. In the event that only a part of the Building
shall be so condemned or taken, then (a) if substantial structural alteration
or
reconstruction of the Building shall, in the reasonable opinion of Landlord,
be
necessary or appropriate as a result of such condemnation or taking (whether
or
not the Demised Premises be affected), Landlord may, at its option, terminate
this Lease and the term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing of such termination within sixty (60)
days following the date on which Landlord shall have received notice of vesting
of title, or (b) if Landlord does not elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the rent shall be abated to the extent, if any, hereinbefore
provided. In the event that only a part of the Demised Premises shall be so
condemned or taken and this Lease and the terms and estate hereby granted are
not terminated as hereinbefore provided, Landlord will, at its expense, restore
with reasonable diligence the remaining structural portions of the Demised
Premises as nearly as practicable to the same condition as it was in prior
to
such condemnation or taking.
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18.2 In
the
event of termination in any of the cases hereinabove provided, this Lease and
the term and estate hereby granted shall expire as of the date of such
termination with the same effect as if that were the date hereinbefore set
for
the expiration of the term of this Lease, and the rent hereunder shall be
apportioned as of such date.
18.3 In
the
event of any condemnation or taking hereinabove mentioned of all or a part
of
the Building, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord
any and all right, title and interest of Tenant now or hereafter arising in
or
to any such award or any part thereof, and Tenant shall be entitled to receive
no part of such award, other than a separate claim made by Tenant for Tenant’s
relocation expenses, loss of trade fixtures and business interruption provided
that such claim would not reduce Landlord’s award. Tenant shall have no claim
for the value of any unexpired term of this Lease.
18.4 If
more
than fifteen percent (15%) of the Demised Premises shall be taken in
condemnation during the last two (2) years of the term of this Lease, Landlord
or Tenant may give the other party a ninety (90) day notice terminating and
canceling this Lease as if the date set forth in the notice were the Expiration
Date hereof.
ARTICLE
19
BANKRUPTCY
19.1 If
at any
time prior to the date herein fixed as the Commencement Date there shall be
filed by or against Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy, or there shall be
commenced a case under the United States Bankruptcy Code, 11 U.S.C. §101 et.
seq., as amended (the “Bankruptcy Code”) by or against Tenant, or a petition
filed for insolvency or for reorganization or for the appointment of a receiver
or trustee of all or a portion of Tenant’s property, and within thirty (30) days
thereof Tenant fails to secure a discharge thereof, or if Tenant makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement with its creditors, (any or all of the foregoing being herein called
a “Bankruptcy Event”) this Lease shall be cancelled and terminated, in which
event neither Tenant nor any person claiming through or under Tenant or by
virtue of any statute or of an order of any court shall be entitled to
possession of the Demised Premises and Landlord, in addition to the other rights
and remedies given by Section 19.3 hereof and by virtue of any other provision
herein or elsewhere in this Lease contained or by virtue of any statute or
rule
of law, may retain as liquidated damages any rent, security, deposit or monies
received by it from Tenant or others on behalf of Tenant upon the execution
hereof.
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19.2 If
at the
date fixed as the Commencement Date or if at any time during the term hereby
demised there shall be filed by or against Tenant in any court pursuant to
any
statute either of the United States or of any State a petition in bankruptcy,
or
there shall be commenced a case by or against Tenant under the Bankruptcy Code,
or a petition filed in insolvency or for reorganization or for the appointment
of a receiver or trustee of all or a portion of Tenant’s property, and within
thirty (30) days thereafter Tenant fails to secure a discharge thereof, or
if
Tenant makes an assignment for the benefit of creditors or petitions for or
enters into an arrangement with its creditors, this Lease, at the option of
Landlord, exercised within a reasonable time after notice of the happening
of
any one or more of such events, may be cancelled and terminated, in which event
neither Tenant nor any person claiming through or under Tenant by virtue of
any
statute or of an order of any court shall be entitled to possession or to remain
in possession of the Demised Premises but shall forthwith quit and surrender
the
Demised Premises, and Landlord, in addition to the other rights and remedies
Landlord has by virtue of any other provision herein or elsewhere in this Lease
contained or by virtue of any statute or rule of law, may retain as liquidated
damages any rent, security, deposit or monies received by it from Tenant or
others on behalf of Tenant.
19.3 It
is
stipulated and agreed that in the event of the termination of this Lease
pursuant to Sections 19.1 or 19.2 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of
the
term demised and the then fair and reasonable rental value of the Demised
Premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the Demised Premises
for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If such premises
or any part thereof be re-let by the Landlord for the unexpired term of this
Lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed prima facie to be the fair and reasonable rental
value for the part or the whole of the premises so re-let during the term of
the
re-letting. Nothing herein contained shall limit or prejudice the right of
the
Landlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule
of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to or
less than the amount of the difference referred to above.
19.4 Without
limiting any of the foregoing provisions of this Article, if pursuant to the
Bankruptcy Code, Tenant is permitted to assign or otherwise transfer this Lease
(whether in whole or in part in disregard of the restrictions contained in
this
Article and/or Article 8), Tenant agrees that adequate assurance of future
performance by the assignee or transferee permitted under such Code shall mean
the deposit of cash security with Landlord in an amount equal to the sum of
one
year’s Fixed Rent then reserved hereunder plus an amount equal to all additional
rent payable under Articles 4, 6, 7 or other provisions of this Lease for the
calendar year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord, without interest, for the
balance of the term as a security for the full and faithful performance of
all
of the obligations under this Lease on the part of Tenant yet to be performed.
If Tenant receives or is to receive any valuable consideration for such an
assignment or transfer (in part or in whole) of this Lease, such consideration,
after deducting therefrom any portion of such consideration reasonably
designated by the assignee or transferee as paid for the purchase of Tenant’s
personal property in the Demised Premises, shall be and become the sole
exclusive property of Landlord and shall be paid over to Landlord directly
by
such assignee or transferee. Any such assignee or transferee may only use the
Demised Premises as executive offices for an assignee or transferee whose main
business is the same as Tenant’s and such occupancy may not increase the number
of individuals occupying the Demised Premises at the time a petition for
bankruptcy (or reorganization) is filed by or against Tenant. In addition,
adequate assurance shall mean that any such assignee or transferee of this
Lease
shall have a net worth (exclusive of good will) equal to at least fifteen (15)
times the aggregate of the annual Fixed Rent reserved hereunder plus all
additional rent for the preceding calendar year as aforesaid. Such assignee
or
transferee shall expressly assume this Lease by an agreement in recordable
form.
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ARTICLE
20
DEFAULTS
AND REMEDIES; WAIVER OF REDEMPTION
20.1 A.
If
Tenant
defaults in fulfilling any of the covenants of this Lease, other than the
covenants for the payment of Fixed Rent or additional rent, or if the Demised
Premises become vacant or deserted, or if the Demised Premises are damaged
by
reason of negligence or carelessness of Tenant, its agents, employees or
invitees, then, in any one or more of such events, upon Landlord serving a
written ten (10) days’ notice upon Tenant specifying the nature of said default,
and upon the expiration of said ten (10) days, if Tenant shall have failed
to
comply with or remedy such default, or if the said default or omission
complained of shall be of such a nature that the same cannot be completely
cured
or remedied within said ten (10) day period, and if Tenant shall not have
diligently commenced curing such default within such ten (10) day period, and
shall not thereafter with reasonable diligence and in good faith proceed to
remedy or cure such default or, if Tenant shall default in the performance
of
any term or condition of this Lease (other than the payment of Fixed Rent or
additional rent) more than three (3) times in any period of nine (9) months,
or,
with respect to the payment of any item of Fixed Rent or additional rent, more
than two (2) times in any period of six (6) months, and notwithstanding that
such defaults shall have each been cured within the applicable period, as above
provided, if any further similar default shall occur, then Landlord may serve
a
written five (5) day notice of cancellation of this Lease upon Tenant, and
upon
the expiration of said five (5) days, this Lease and the term hereunder shall
end and expire as fully and completely as if the date of expiration of such
five
(5) day period were the day herein definitely fixed for the end and expiration
of this Lease and the term thereof and Tenant shall then quit and surrender
the
Demised Premises to Landlord but Tenant shall remain liable as hereinafter
provided.
B. If
the
notice provided for in paragraph A hereof shall have been given, and the
applicable time periods therein shall expire as aforesaid; or (1) if Tenant
shall make default in the payment of the Fixed Rent reserved herein or any
item
of additional rent herein mentioned or any part of either or in making any
other
payment herein provided beyond applicable notice and cure periods provided
herein; or (2) if any execution or attachment shall be issued against Tenant
or
any of Tenant’s property whereupon the Demised Premises shall be taken or
occupied or attempted to be taken or occupied by someone other than Tenant;
or
(3) if Tenant shall make default with respect to any other lease between
Landlord and Tenant; or (4) if Tenant shall fail to move into or take possession
of the Demised Premises within fifteen (15) days after commencement of the
term
of the Lease; then and in any of such events Landlord may without notice,
re-enter the Demised Premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of the Demised Premises and remove their effects and
hold the Demised Premises as if this Lease had not been made but Tenant shall
remain liable hereunder as hereinafter provided, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings
to
that end. If Tenant shall make default hereunder prior to the date fixed as
the
commencement of any renewal or extension of this Lease, Landlord may cancel
and
terminate such renewal or extension agreement by written notice, but Tenant
shall remain liable as hereinafter provided.
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20.2 In
the
case of any such default, re-entry, expiration and/or dispossession by summary
proceedings or otherwise, (a) the Fixed Rent and additional rent shall become
due thereupon and be paid to the time of such re-entry, dispossession and/or
expiration, together with such expenses as Landlord may incur for legal
expenses, reasonable attorneys’ fees, brokerage, and/or putting the Demised
Premises in good order, or for preparing the same for re-rental; (b) Landlord
may re-let the Demised Premises or any part or parts thereof, either in the
name
of Landlord or otherwise, for a term or terms, which may at Landlord’s option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this Lease and may grant concessions or free rent; and/or
(c) Tenant or the legal representative of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and perform said
Tenant’s covenants herein contained, any deficiency between the rent and
additional rents hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected or to be collected on account of the
lease or leases of the Demised Premises for each month of the period which
would
otherwise have constituted the balance of the term of this Lease. The failure
or
refusal of Landlord to re-let the Demised Premises or any part or parts thereof
shall not release or affect Tenant’s liability for damages. In computing such
damages there shall be added to the said deficiency such expenses as Landlord
may incur in connection with re-letting, such as legal expenses, reasonable
attorneys’ fees, brokerage and for keeping the Demised Premises in good order or
for preparing the same for re-letting. Any such damages shall be paid in monthly
installments by Tenant on the rent days specified in this Lease and any suit
brought to collect the amount of the deficiency for any month or months shall
not prejudice in any way the rights of Landlord to collect the deficiency for
any subsequent month or months by a similar proceeding. In lieu thereof,
Landlord may immediately accelerate such deficiency for the entire balance
of
the term, discounted in the same manner as specified in Section 19.3. Landlord
at Landlord’s option may make such alterations, repairs, replacements and/or
decorations in the Demised Premises as Landlord in Landlord’s sole judgment
considers advisable and necessary for the purpose of re-letting the Demised
Premises; and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to re-let
the Demised Premises, or in the event that the Demised Premises are re-let,
for
failure to collect the rent thereof under such re-letting. Any such action
may
be an action for the full amount of all rents and damages suffered or to be
suffered by Landlord. In the event of a breach or threatened breach by Tenant
of
any of the covenants or provisions hereof, Landlord shall have the right to
seek
an injunction and the right to invoke any remedy allowed at law or in equity
as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this Lease of any particular remedy, shall not preclude Landlord
from any other remedy, in law or in equity. The foregoing remedies and rights
of
Landlord are cumulative. Tenant hereby expressly waives any and all rights
of
redemption granted by or under any present or future laws in the event of
Tenant’s being evicted or dispossessed for any cause, or in the event of
Landlord’s obtaining possession of the Demised Premises by reason of the
violation by Tenant of the covenants and conditions of this Lease, or
otherwise.
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ARTICLE
21
COVENANT
OF QUIET ENJOYMENT
21.1 Landlord
covenants and agrees with Tenant that upon Tenant’s paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions on Tenant’s part to be observed and performed within applicable
notice and cure and periods, Tenant may peaceably and quietly enjoy the Demised
Premises, subject, nevertheless, to the terms and conditions of this Lease
(including, but not limited to, Article 23 hereof) and the ground leases,
underlying leases and mortgages hereinbefore and hereinafter
mentioned.
ARTICLE
22
SURRENDER
OF PREMISES
22.1 Upon
the
expiration or other termination of the term of this Lease, Tenant shall quit
and
surrender the Demised Premises in good order and condition, ordinary wear and
tear and damage by fire or other casualty, the elements and any cause beyond
Tenant’s control excepted, and shall remove all its property therefrom, except
as otherwise provided in this Lease. Tenant’s obligation to observe or perform
this covenant shall survive the expiration or other termination of the term
of
this Lease.
22.2 Tenant
acknowledges that possession of the Demised Premises must be surrendered to
Landlord at the expiration or sooner termination of the term hereof. The parties
recognize and agree that the damage to Landlord resulting from any failure
by
Tenant timely to surrender possession of the Demised Premises as aforesaid
will
be substantial, will exceed the amount of annual Fixed Rent and additional
rent
theretofore payable hereunder, and will be impossible accurately to measure.
Tenant therefore agrees that if possession of the entire Demised Premises is
not
surrendered to Landlord upon the expiration or sooner termination of the term
of
this Lease, then notwithstanding anything to the contrary contained in this
Lease, Tenant shall pay to Landlord for each month and for each portion of
any
month during which Tenant holds over in all or any portion of the Demised
Premises after the expiration or sooner termination of the term hereof, for
use
and occupancy, one hundred fifty percent (150%) for the first sixty (60) days
of
such holdover and two hundred percent (200%) thereafter, of the amount of Fixed
Rent and additional rent payable by Tenant under this Lease with respect to
the
entire Demised Premises during the last month of the term hereof, which
aggregate sum Tenant agrees to pay to Landlord within ten (10) days after demand
therefor, in full without setoff, and no extension or renewal of this Lease
shall be deemed to have occurred by such holding over, nor shall Landlord be
precluded by accepting such aggregate sum for use and occupancy from exercising
all rights and remedies available to it to obtain possession of the Demised
Premises. Further, Tenant shall be liable to Landlord for all losses and damages
which Landlord may reasonably incur or sustain by reason of such holding over,
including, but not limited to, damages incurred or sustained by reason of
Landlord’s inability to timely place a new tenant in possession of the Demised
Premises.
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ARTICLE
23
DEFINITION
OF LANDLORD
23.1 The
term
“Landlord” wherever used in this Lease shall be limited to mean and include only
the owner or owners at the time in question of the Building or the tenant under
any ground lease affecting the Land and the Building or the Building, to whom
this Lease may be assigned, or a mortgagee in possession, so that in the event
of any sale, assignment or transfer of the Building, or of Landlord’s interest
as a lessee under any ground or underlying lease, such owner, tenant under
the
ground lease or mortgagee in possession shall thereupon be released and
discharged from all covenants, conditions and agreements of Landlord hereunder;
but such covenants, conditions and agreements shall be binding upon each new
owner, tenant under the ground or underlying lease, or mortgagee in possession
for the time being of the Building, until sold, assigned or
transferred.
ARTICLE
24
NOTICES
24.1 Any
notice, request, demand, consent, approval, authorization, advice, submission or
other communication (a “notice”) permitted or required to be given by the terms
and provisions of this Lease, or by any law or governmental regulation, either
by Landlord to Tenant or by Tenant to Landlord, shall be in writing. Unless
otherwise required by such law or regulation such notice, request or demand
shall be given by Landlord by (a) certified or registered mail, return receipt
requested, (b) reputable overnight courier or (c) hand delivery (against
confirmation of delivery), addressed to Tenant at the Demised Premises, and
until Tenant has moved its offices to the Demised Premises, addressed to Tenant
at its address as stated on the first page of this Lease. Such notice shall
be
deemed to have been served and given by Landlord and received by Tenant (A)
the
third business day after being deposited in the United States mail, (B) the
business day following delivery to an overnight courier or (C) when delivered
by
hand. Unless otherwise required by such law or regulation such notice shall
be
given by Tenant by (a) certified or registered mail, return receipt requested,
(b) reputable overnight courier or (c) hand delivery (against confirmation
of
delivery), addressed to Landlord at 1155 Avenue of the Americas, New York,
N.Y.
10036, Attn.: Xxxxxxx Xxxxx, with a copy to Xxxxxxxxx & Xxxxx, P.C., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxx, Esq., or
to
such other or further address or addresses as Landlord may designate for such
purpose by like notice. Such notice, request or demand shall be deemed to have
been served and given by Tenant and received by Landlord (A) the third business
day after being deposited in the United States mail, (B) the business day
following delivery to an overnight courier or (C) when delivered by hand. Either
party may, by notice as aforesaid designate a different address or addresses
for
notices, requests or demands to it. A notice given by counsel for Landlord
or
Tenant shall be deemed a valid notice if addressed and sent in accordance with
the provisions of this Article. Notwithstanding the foregoing: (x) notices
requesting any after hours HVAC may be given in writing by personal and actual
delivery to the Building manager or any other person in the Building duly
designated by Landlord to receive such notices, and (y) notices given by
Landlord with respect to changes in Taxes and all other rent bills, as well
as
other routine, nonmaterial communications and correspondence, may be delivered
by hand or ordinary United States mail to Tenant at the Demised
Premises.
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ARTICLE
25
ARBITRATION
25.1 Whenever
in this Lease, it is provided that a dispute shall be determined by arbitration,
the arbitration shall be conducted as provided in this Article. The party
desiring such arbitration shall give written notice to that effect to the other,
specifying the dispute to be arbitrated and the name and address of the person
designated to act as the arbitrator in its behalf. Within ten (10) days after
said notice is given, the other party shall give written notice to the first
party, specifying the name and address of the person designated to act as
arbitrator on its behalf. If the second party fails to notify the first party
of
the appointment of its arbitrator as aforesaid by the time above specified,
then
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator. The arbitrators
so chosen shall meet within ten (10) days after the second arbitrator is
appointed and within thirty (30) days thereafter shall decide the dispute.
If
within said period they cannot agree upon their decision, they shall appoint
a
third arbitrator and if they cannot agree upon said appointment, then the third
arbitrator shall be appointed upon their application or upon the application
of
either party, by the American Arbitration Association in the City of New York.
The three arbitrators shall meet and decide the dispute. A decision in which
two
of the three arbitrators concur shall be binding and conclusive upon the
parties. In designating arbitrators and in deciding the dispute, the arbitrators
shall act in accordance with the rules then in force of the American Arbitration
Association, subject, however, to such limitations as may be placed upon them
by
the provisions of this Lease. Judgment may be had on the decision and award
of
the arbitrators so rendered in any court.
25.2 The
obligation of Landlord and Tenant to submit a dispute to arbitration is limited
to disputes arising under those Articles of this Lease which specifically
provide for arbitration.
ARTICLE
26
RULES
AND REGULATIONS
26.1 Tenant,
its servants, employees, agents, visitors and licensees shall observe faithfully
and comply strictly with the Rules and Regulations attached hereto and
incorporated herein as Exhibits D and D-1. Landlord shall have the right from
time to time during the term of this Lease to make reasonable changes in and
additions to the said Rules and Regulations with the same force and effect
as if
they were originally attached hereto and incorporated herein.
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26.2 Any
failure by Landlord to enforce any Rules and Regulations now or hereafter in
effect, either against Tenant or any other tenant in the Building, shall not
constitute a waiver of the enforceability of any such Rules and
Regulations.
26.3 Tenant
and its employees, contractors, agents and invitees shall comply with the Rules
and Regulations in effect, from time to time, with regard to the Building’s
security system. The current Rules and Regulations with regard thereto are
the
following:
During
normal business hours on normal business days only persons displaying Kastle
Systems “key tag” identification (“Keytag”) to the lobby attendant shall be
granted access to the Building. During normal business hours on normal business
days, anyone not displaying the Keytag to the lobby attendant shall obtain
access to the Building only (i) if that person’s arrival was pre-arranged with
the lobby attendant with a list of anticipated visitors, or (ii) if not on
a
pre-arranged list, the person’s arrival to the Building can be announced via
telephone and then approved by Tenant. After normal business hours on normal
business days, access to the Building shall only be obtained by Keytag holders,
swiping their Keytag on the Keytag reader outside the Building’s front doors or
by utilizing the telephone link to Kastle Systems personnel, who will in turn
call Tenant’s premises to attempt to gain Tenant’s approval for access of
persons not holding a Keytag.
ARTICLE
27
BROKER
27.1 Each
of
Landlord and Tenant warrants and represents that the sole broker in this
transaction is Handler Real Estate Services (the “Broker”). Each of Landlord and
Tenant agrees to defend, save and hold the other harmless from any claims for
fees and commissions and against any liability (including reasonable attorneys’
fees and disbursements) arising out of any conversations or negotiations had
by
the indemnifying party with any broker or party acting as such other than the
Broker. Landlord shall be responsible for payment of any commission or other
fee
earned by the Broker pursuant to separate agreement between them only if, as
and
when this Lease is fully and unconditionally executed and delivered by Landlord
and Tenant and all conditions to its effectiveness and validity have been
satisfied or waived. The provisions of this Article 27 shall survive the
expiration or sooner termination of this Lease.
ARTICLE
28
ZONING
RIGHTS
28.1 During
the term of this Lease, Landlord shall have the right, and Tenant shall not
have
the right, (i) to cause all or any part of the Demised Premises and/or the
zoning lot upon which the Building is located in whole or in part (hereinafter
referred to solely for purposes of this Article as the “Land”) and/or the
Building, to be combined with any other land or premises so as to constitute
the
combined premises into a single zoning “lot” or “development” or “enlargement”
as those terms are now, or may hereafter be, defined in the Zoning Resolution
of
The City of New York (the “Zoning Resolution”), (ii) to cause any lot,
development or enlargement at any time constituting or including all or any
part
of the Demised Premises, the Land or the Building to be subdivided into two
or
more lots, developments or enlargements, (iii) to cause development rights
(whether from the Land or other premises) to be transferred to any such lot,
development or enlargement, (iv) to cause other combinations, subdivisions
and
transfers to be effected, whether similar or dissimilar to those now permitted
by law or (v) to exploit, sell, convey, lease or otherwise transfer any so
called “air rights”, “air space”, “zoning rights” or “development rights” above
or appurtenant to the Land or the Building. Tenant hereby acknowledges that
it
is not a “party in interest” as defined in the Zoning Resolution, and shall not
and cannot become a “party in interest” under any circumstances by virtue of its
leasehold interest hereunder. Tenant further acknowledges that neither Tenant
nor the estate or interest of Tenant hereunder would be “adversely affected”
(within the meaning of the Zoning Resolution) by any development of the Land
or
the Building or any such combined premises nor by the filing of any declaration
combining all or a part of the Land or the Building with any other premises
and
that Tenant’s estate and interest hereunder are not and would not be superior to
any such declaration.
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28.2 Notwithstanding
the provisions of Section 28.1, above, in the event that Tenant is deemed to
have any of the rights disclaimed in Section 28.1, above, or is deemed to be
a
party in interest, Tenant hereby transfers such rights and any rights as a
party
in interest to Landlord. In furtherance thereof, Tenant will within three (3)
days after written request by Landlord execute and deliver to Landlord a waiver
of its right to join in a Declaration of Restrictions pursuant to Section 12-10
of the Zoning Resolution (a “Waiver”). Upon each assignment of this Lease by
Tenant (no consent thereto being implied hereby) the assignee shall execute,
acknowledge and deliver to Landlord, and at any time or times, within three
(3)
days after written request of Landlord, Tenant and each assignee shall execute,
acknowledge and deliver to Landlord, (i) any further Waiver, and (ii) if
requested by Landlord, any Declaration of Restrictions pursuant to said Section
12-10 (or any successor provision thereto), and (iii) any other instrument
in
form and substance satisfactory to the parties intended to evidence the fact
that Tenant (or such assignee) has no right and asserts no claim, and/or has
transferred to Landlord any such right or claim, to participate in any way
in
the matters reserved to Landlord pursuant to Section 28.1, above. If Tenant
(or
such assignee) fails to so execute any such instrument within ten (10) days
after Landlord’s written request therefor, Tenant (or such assignee) hereby
irrevocably appoints Landlord its agent and attorney-in-fact, coupled with
an
interest, to execute and deliver the same in its name.
ARTICLE
29
SECURITY
DEPOSIT
29.1 Tenant
has deposited with Landlord that sum of money equal to Ninety-Three Thousand
Three Hundred Thirty-Five Dollars and 00/100 ($93,335.00) the equivalent of
six
(6) months of Fixed Rent (the “Security Deposit”) as security for the full,
faithful and punctual performance by Tenant of all of the terms of this Lease.
In the event Tenant defaults in the performance of any of the terms of this
Lease, including the payment of rent, or in the event of a Bankruptcy Event,
Landlord may use, apply or retain the whole or any part of the Security Deposit
to the extent required for the payment of any rent or for any sum which Landlord
may expend or may be required to expend by reason of Tenant’s default in respect
of any of the terms of this Lease, including any damages or deficiency in the
re-letting of the Demised Premises, whether accruing before or after summary
proceedings or other re-entry by Landlord. In the case of every such use,
application or retention, Tenant shall, on demand, pay to Landlord the sum
so
used, applied or retained which shall be added to the Security Deposit so that
the same shall be replenished to its former amount. If Tenant shall fully and
punctually comply with all of the terms of this Lease, the Security Deposit,
without interest, shall be returned to Tenant after the termination of this
Lease and delivery of exclusive possession of the Demised Premises to Landlord.
In the event of a sale or lease of the Building, Landlord shall have the right
to transfer the Security Deposit to the vendee or lessee and Landlord shall
immediately be released by Tenant from all liability for the return of the
Security Deposit; and Tenant agrees to look solely to the new owner or landlord
for the return of the Security Deposit; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the Security Deposit
to a new owner or landlord. Tenant shall not assign or encumber or attempt
to
assign or encumber the monies deposited herein as security and neither Landlord
nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or encumbrance. Notwithstanding anything
in
this Lease to the contrary, Landlord may use, apply or retain the whole or
any
part of the Security Deposit to the extent required for the payment of any
late
charges or fees or interest on late payments payable to Landlord pursuant to
Section 3.4 above or otherwise without being obligated to give Tenant any prior
notice that such amounts are due.
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29.2 Notwithstanding
the foregoing, in lieu of a cash Security Deposit as described in Section 29.1,
Tenant shall deliver to Landlord a clean, irrevocable and unconditional Letter
of Credit (the “Letter of Credit”) issued by and drawn upon any commercial bank
which is a member of The Clearing House (hereinafter referred to as the “Issuing
Bank”) with offices for banking purposes in the City of New York and having a
net worth of not less than One Billion and 00/100 ($1,000,000,000.00) Dollars,
which Letter of Credit may be drawn upon in New York City, shall have a term
of
not less than one year, be in the form attached hereto as Exhibit F, be for
the
account of Landlord and be in the amount of the Security Deposit. Tenant
acknowledges that it is a material inducement to Landlord to enter into this
Lease that the security be maintained in the form of a Letter of Credit and
that
Tenant’s failure to provide and maintain such Letter of Credit throughout the
Lease term shall constitute a material default under this Lease, and Tenant
further acknowledges that notwithstanding anything in this Lease, Tenant shall
not be permitted to provide cash security. The Letter of Credit shall provide
that:
(i) The
Issuing Bank shall pay to Landlord or its duly authorized representative an
amount up to the face amount of the Letter of Credit upon presentation of the
Letter of Credit and a sight draft in the amount to be drawn;
(ii) The
Letter of Credit shall be deemed to be automatically renewed, without amendment,
for consecutive periods of one year each during the term of this Lease (and
shall remain in effect for not less than ninety (90) days following the
Expiration Date), unless the Issuing Bank sends written notice (hereinafter
referred to as the “Non-Renewal Notice”) to Landlord by certified or registered
mail, return receipt requested, not less than sixty (60) days next preceding
the
then expiration date of the Letter of Credit, that it elects not to have such
Letter of Credit renewed;
(iii) If
Landlord receives a Non-Renewal Notice and Tenant fails to provide a replacement
Letter of Credit which meets the requirements of this Lease not fewer than
forty-five (45) days prior to the expiration of the Letter of Credit, such
failure shall constitute a material default under this Lease and Landlord shall
have the right, exercisable by a sight draft, to receive the monies represented
by the Letter of Credit (which monies shall be held by Landlord as a cash
deposit pursuant to the terms of this Article 29 pending the replacement of
such
Letter of Credit or Tenant’s default after notice and the expiration of any
applicable cure period hereunder); however, Landlord’s holding of such cash
security shall not be deemed a waiver of Tenant’s default of its obligation to
maintain the security in the form of a Letter of Credit);
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(iv) Upon
Landlord’s sale of Landlord’s interest in the land and the Building, the Letter
of Credit shall be transferable, without charge, by Landlord, as provided in
Section 29.3 hereof;
(v) If
a
Bankruptcy Event occurs, Landlord shall have the right, exercisable by a sight
draft, to receive monies represented by the Letter of Credit;
(vi) If
a
voluntary termination of this Lease occurs, Landlord shall have the right,
exercisable by sight draft, to receive monies represented by the Letter of
Credit in order to satisfy any fees and payments owed by Tenant in connection
with such termination, including without limitation, accrued but unpaid rents
and/or other charges payable pursuant to the Lease and any termination fees
and
all other amounts owed by Tenant to Landlord pursuant to any written agreement
entered into between them with respect to such termination; and
(vii) If
Tenant
shall owe any late charges or fees or interest on late payments to Landlord
pursuant to Section 3.4 above or otherwise, Landlord shall have the right,
exercisable by sight draft, to receive monies represented by the Letter of
Credit in order to satisfy such amounts owed by Tenant.
29.3 In
the
event of a sale of Landlord’s interest in the land and the Building, Landlord
shall have the right to transfer (at no expense to Landlord) the cash security
or Letter of Credit, as the case may be, deposited hereunder to the vendee
or
lessee, and Landlord shall be released by Tenant from all liability for the
return of such cash security or Letter of Credit. In such event, Tenant agrees
to look solely to the new landlord for the return of said cash security or
Letter of Credit. It is agreed that the provisions hereof shall apply to every
transfer or assignment made of said cash security or Letter of Credit to a
new
landlord.
29.4 Tenant
covenants that it will not assign or encumber, or attempt to assign or encumber,
the monies or Letter of Credit deposited hereunder as security, and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance.
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29.5 Landlord
agrees that it will not draw down the proceeds of the Letter of Credit except
in
the event of a default by Tenant hereunder or a Bankruptcy Event or the
non-renewal of such Letter of Credit by the Issuing Bank or a voluntary
termination of this Lease or the incurrence by Tenant of late charges or fees
or
interest on late payments to Landlord pursuant to Section 3.4 above or
otherwise.
29.6 In
the
event that at any time during the term of this lease, Landlord, in Landlord’s
reasonable opinion, believes (a) that the net worth of the Issuing Bank shall
be
less than the minimum amount specified in Section 29.2 hereof, or (b) that
circumstances have occurred indicating that the Issuing Bank may be incapable
of, unable to, or prohibited from honoring the then existing Letter of Credit
(hereinafter referred to as the “Existing L/C”) in accordance with the terms
thereof, then, upon the happening of either of the foregoing, Landlord may
send
written notice to Tenant (hereinafter referred to as the “Replacement Notice”)
requiring Tenant within ten (10) days to replace the Existing L/C with a new
letter of credit (hereinafter referred to as the “Replacement L/C”) from an
Issuing Bank meeting the qualifications described in Section 29.2 hereof. Upon
receipt of a Replacement L/C meeting the qualifications of Section 29.2 hereof,
Landlord shall forthwith return the Existing L/C to Tenant. In the event that
(i) a Replacement L/C meeting the qualifications of Section 29.2 hereof is
not
received by Landlord within the time specified, or (ii) Landlord reasonably
believes an emergency exists, then in either event, the Existing L/C may be
presented for payment by Landlord and the proceeds thereof shall be held by
Landlord in accordance with Section 29.1 hereof, subject, however, to Tenant’s
obligation to replace such cash security with a new letter of credit meeting
the
qualifications of Section 29.2 hereof.
29.7 Tenant
shall pay Landlord’s reasonable attorneys’ fees in connection with the
replacement, substitution or amendment of the letter of credit described herein
or the drawing thereon by Landlord.
29.8 If
Tenant: (i) shall fully and punctually comply with all of the terms of this
Lease and Tenant shall not have been in default under any of the provisions
of
this Lease at any time up to and including the first (1st) anniversary of the
Rent Commencement Date, then the Security Deposit shall be reduced to the sum
of
Seventy-Seven Thousand Seven Hundred Seven Nine Dollars and 15/100 ($77,779.15),
the equivalent of five (5) months of Fixed Rent; (ii) shall fully and punctually
comply with all of the terms of this Lease and Tenant shall not have been in
default under any of the provisions of this Lease at any time up to and
including the second (2nd) anniversary of the Rent Commencement Date, then
the
Security Deposit shall be reduced to the sum of Sixty-Two Thousand Two Hundred
Twenty-Three Dollars and 32/100 ($62,223.32), the equivalent of four (4) months
of Fixed Rent and (iii) shall fully and punctually comply with all of the terms
of this Lease and Tenant shall not have been in default under any of the
provisions of this Lease at any time up to and including the third (3rd)
anniversary of the Rent Commencement Date, then the Security Deposit shall
be
reduced to the sum of Forty-Six Thousand Six Hundred Sixty-Seven Dollars and
49/100 ($46,667.49), the equivalent of three (3) months of Fixed Rent. Tenant
shall be permitted to deliver a new Letter of Credit or an amendment to the
existing Letter of Credit to Landlord in the reduced amount, as applicable.
If a
new Letter of Credit in the form required hereunder is so delivered, Landlord
shall promptly after such delivery return the prior Letter of Credit to Tenant.
Landlord’s rights with respect to the reduced security or each Letter of Credit
to be provided in accordance with this Section 29.8 shall be the same as if
such
reduced security or each Letter of Credit had in each instance been provided
for
as the original security deposit or Letter of Credit hereunder.
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ARTICLE
30
WINDOW
CLEANING
30.1 Tenant
will not clean any window in the Demised Premises from the outside (within
the
meaning of Section 202 of the New York Labor Law or any successor statute
thereto). In addition, unless the equipment and safety devices required by
all
legal requirements including Section 202 of the New York Labor Law or any
successor statute thereto are provided and used, Tenant will not require,
permit, suffer or allow the cleaning of any window in the Demised Premises
from
the outside (within the meaning of said Section). Tenant hereby indemnifies
Landlord against liability as a result of any violation of the
foregoing.
ARTICLE
31
CONSENTS
31.1 Tenant
hereby waives any claim against Landlord which it may have based upon any
assertion that Landlord has unreasonably withheld or unreasonably delayed any
such consent or approval, and Tenant agrees that its sole remedy shall be an
action or proceeding to enforce any such provision or for specific performance,
injunction or declaratory judgment. In the event of a determination favorable
to
Tenant, the requested consent or approval shall be deemed to have been granted;
however, Landlord shall have no personal or other liability to Tenant for its
refusal to give such consent or approval. The sole remedy for Landlord’s
unreasonably withholding or delaying of consent or approval shall be as set
forth in this Section. Notwithstanding the foregoing, in the event that Tenant
claims Landlord unreasonably withheld its consent or approval of any subletting
under Article 8, then, at Tenant’s option, Tenant may submit such dispute to
expedited arbitration. In the event that Tenant elects to determine whether
Landlord unreasonably withheld, delayed or conditioned its consent or approval
to any subletting through expedited arbitration, such issue shall be determined
under the Expedited Procedures provisions of the Arbitration Rules for the
Real
Estate Industry of the American Arbitration Association, as amended and
effective September 1, 2000 and as may from time to time be amended; provided,
however, that with respect to any such arbitration (i) the list of arbitrators
shall be returned within five (5) business days from the date of mailing; (ii)
the parties shall notify the American Arbitration Association, by telephone,
within three (3) days of any objections to the arbitrator appointed, and will
have no right to object if the arbitrator so appointed was on the list submitted
by the American Arbitration Association and was not objected to in accordance
with Rule 57(b); (iii) the notice of hearing referred to in Rule 56 shall be
four (4) days in advance of the hearing; (iv) the hearing shall be held within
seven (7) days after the appointment of the arbitrator; and (v) the arbitrator
shall have no right to award damages. The cost of such arbitration shall be
shared equally by the parties.
31.2 Notwithstanding
anything to the contrary provided in this Lease, in any instance where the
consent or approval of the over lessor and/or the superior mortgagee is
required, Landlord shall not be required to give its consent or approval until
and unless such over lessor and/or such superior mortgagee has given its consent
or approval.
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ARTICLE
32
MISCELLANEOUS
32.1 Tenant
shall not move any safe, heavy equipment or bulky matter in or out of the
Building without Landlord’s written consent, which consent Landlord agrees not
unreasonably to withhold or delay. If the movement of such items requires
special handling, Tenant agrees to employ only persons holding a Master’s
Rigger’s License to do said work and all such work shall be done in full
compliance with the Administrative Code of the City of New York and other
municipal requirements. All such movements shall be made during hours which
will
least interfere with the normal operations of the Building, and all damage
caused by such movement shall be promptly repaired by Tenant at Tenant’s
expense. Tenant shall not place a load upon any floor of the Demised Premises
which exceeds the load per square foot which such floor was designated to carry
and which is allowed by law.
32.2 Business
machines and mechanical equipment belonging to Tenant which may cause noise,
vibration or any other nuisance that may be transmitted to the structure or
other portions of the Building or to the Demised Premises to such a degree
as to
be objectionable to Landlord or which may interfere with the use or enjoyment
by
other tenants of their premises or the public portions of the Building, shall
be
placed and maintained by Tenant at Tenant’s cost and expense, in settings of
cork, rubber or spring type vibration eliminators sufficient to eliminate noise
or vibration.
32.3 In
the
event that an excavation or any construction should be made for building or
other purposes upon land adjacent to the Building, or should be authorized
to be
made, Tenant shall, if necessary, afford to the person or persons causing or
authorized to cause such excavation or construction or other purpose, license
to
enter upon the Demised Premises for the purpose of doing such work as shall
reasonably be necessary to protect or preserve the wall or walls of the
Building, or the Building, from injury or damage and to support them by proper
foundations, pinning and/or underpinning, or otherwise.
32.4 Tenant
waives the right to trial by jury in any summary proceeding that may hereafter
be instituted against it or in any action that may be brought hereunder,
provided such waiver is not prohibited by law. Tenant shall not interpose any
counterclaim in any summary proceeding, unless by not imposing such counterclaim
Tenant would be barred from asserting such counterclaim in a separate action
or
proceeding.
32.5 The
failure of Landlord or Tenant to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this Lease, or
any
of the Rules and Regulations attached hereto or hereafter adopted by Landlord,
shall not prevent a subsequent act, which would have originally constituted
a
violation, from having all the force and effect of an original violation. No
employee of Landlord or of Landlord’s agents shall have any power to accept the
keys of the Demised Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord’s agent shall not
operate as a termination of this Lease or a surrender of the Demised Premises.
In the event of Tenant at any time desiring to have Landlord sublet the Demised
Premises, Landlord or Landlord’s agents are authorized to receive said keys for
such purpose without releasing Tenant from any of the obligations under this
Lease. The receipt or acceptance by Landlord of rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant, unless such waiver be in writing signed by Landlord or
Tenant as the case may be. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent required to be paid shall be deemed to
be
other than on account of the earliest such rent, nor shall any endorsement
or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord’s right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
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32.6 This
Lease with its schedules and annexes contain the entire agreement between
Landlord and Tenant and any executory agreement hereafter made between Landlord
and Tenant shall be ineffective to change, modify, waive, release, discharge,
terminate or effect an abandonment of this Lease, in whole or in part, unless
such executory agreement is signed by the party to be charged. This Lease may
not be orally waived, terminated, changed or modified.
32.7 The
captions of Articles in this Lease and its Table of Contents and Index are
inserted only as a convenience and for reference and they in no way define,
limit or describe the scope of this Lease or the intent of any provision
thereof. References to Articles and Sections are to those in this Lease unless
otherwise noted.
32.8 If
any
term, covenant, condition or provision of this Lease or the application thereof
to any circumstance or to any person, firm or corporation shall be invalid
or
unenforceable to any extent, the remaining terms, covenants, conditions and
provisions of this Lease or the application thereof to any circumstances or
to
any person, firm or corporation other than those as to which any term, covenant,
condition or provision is held invalid or unenforceable, shall not be affected
thereby and each remaining term, covenant, condition and provision of this
Lease
shall be valid and shall be enforceable to the fullest extent permitted by
law.
32.9 If
any
term, covenant, condition or provision of this Lease is found invalid or
unenforceable to any extent, by a final judgment or award which shall not be
subject to change by any appeal, then, either party to this Lease may initiate
an arbitration in accordance with the provisions of Article 25, which
arbitration shall be by three (3) arbitrators each of which shall have at least
ten (10) years’ experience in the supervision of the operation and management of
major office buildings in Manhattan. Said arbitrators shall devise a valid
and
enforceable substitute term, covenant, condition or provision for this Lease
which shall as nearly as possible carry out the intention of the parties with
respect to the terms, covenant, condition or provisions theretofore found
invalid or unenforceable. Such substitute term, covenant, condition or
provision, as determined by the arbitrators, shall thereupon be deemed a part
of
this Lease.
32.10 Landlord
shall have the right from time to time, to substitute for the basement space,
if
any, then occupied by Tenant, comparable space in the basement, provided
Landlord shall give at least thirty (30) days’ prior written notice to Tenant of
its intention so to do. No vault or basement space not within the property
line
of the Building is leased hereunder, anything to the contrary indicated
elsewhere in this Lease notwithstanding. Any vault or basement space not within
the property line of the Building, which Tenant may be permitted to use or
occupy, shall be used or occupied under revocable license and if the amount
of
such space be diminished or required by any governmental authority having
jurisdiction, Landlord shall not be subject to any liability nor shall Tenant
be
entitled to abatement of rent, nor shall such diminution or abatement be deemed
a constructive or actual eviction. Any fee or license charge or tax of municipal
authorities for such vault or basement space shall be paid by Tenant to Landlord
as additional rent within five (5) days after written demand therefor. In such
fee, tax or charge shall be for vault or basement space greater in area than
that occupied by Tenant, the charge to Tenant shall be pro-rated.
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32.11 Notwithstanding
anything herein to the contrary, it is to be strictly understood and agreed
that
(X) the submission by Landlord to Tenant of any drafts of this Lease or any
correspondence with respect thereto shall (i) be deemed submission solely for
Tenant’s consideration and not for acceptance and execution, (ii) have no
binding force or effect, (iii) not constitute an option for the leasing of
the
Demised Premises or a lease or conveyance of the Demised Premises by Landlord
to
Tenant and (iv) not confer upon Tenant or any other party any title or estate
in
the Demised Premises, (Y) the terms and conditions of this Lease shall not
be
binding upon Landlord in any way unless and until it is unconditionally executed
and delivered by both parties in their respective sole and absolute discretion
and all conditions precedent to the effectiveness thereof shall have been
fulfilled or waived, and (Z) if this Lease is not so executed and delivered
for
any reason whatsoever (including, without limitation, either party’s willful or
other refusal to do so or bad faith), neither party shall be liable to the
other
with respect to this Lease on account of any written or parol representations,
negotiations, any legal or equitable theory (including, without limitation,
part
performance, promissory estoppel, or undue enrichment) or otherwise. In
consideration of Landlord’s administrative expense in considering this Lease and
the terms of Tenant’s proposed tenancy hereunder and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tenant’s submission to Landlord of this Lease, duly executed by Tenant, shall
constitute Tenant’s irrevocable offer for the leasing of the Demised Premises,
to continue for thirty (30) days from and after receipt by Landlord or until
Landlord shall deliver to Tenant written notice of rejection of Tenant’s offer,
whichever shall first occur.
32.12 Tenant
acknowledges that Landlord is entering into this Lease on the express condition
that Tenant treat the terms and conditions of the subject matter of this Lease
confidentially as provided in this Section 32.12. As a condition to the
effectiveness of this Lease, Tenant hereby represents and agrees as follows:
(i)
Tenant shall, at all times, keep the terms and conditions of the subject matter
of this Lease strictly confidential (it being agreed that such terms and
conditions may be disclosed to Tenant’s directors and officers, as well as
Tenant’s legal counsel and accountants who need to know such information for the
purpose of complying with the terms and conditions hereof); (ii) such directors,
officers and legal counsel and accountants shall be informed by Tenant of the
confidential nature of such information and shall be directed by Tenant to
treat
such information with strict confidence; and (iii) Tenant shall not disclose
the
terms and conditions of this Lease to any person other than as permitted
hereinabove. As used in this Section, the term “person” shall include, without
limitation, a corporation, limited liability company, limited liability
partnership, general or limited partnership, trust, pension fund, association
or
individual. Nothing herein shall be construed to prevent Tenant from (x)
disclosing the terms of this Lease in connection with any litigation between
Landlord and Tenant regarding the subject matter hereof, (y) making any
disclosure as required by all applicable legal requirements and (z) reporting
terms of the Lease in Tenant’s financial statements as shall be required by
generally accepted accounting principles. The terms of this Section shall
survive the expiration or sooner termination of this Lease. Notwithstanding
the
foregoing, Landlord acknowledges that Tenant is required (i) to disclose the
terms of this Lease in Tenant’s periodic reports and/or registration statements
filed with the U.S Securities and Exchange Commission (“SEC”) and to (ii) to
file a copy of the Lease to one or more reports or registration statements
filed
by Tenant with the SEC in compliance with Tenant’s disclosure obligations under
the Securities Act of 1933, as amended and the Securities Exchange Act of 1934,
as amended.
-51-
32.13 Subject
to the Building’s Rules and Regulations, Landlord shall provide Tenant with the
use of the Building’s freight elevators and for up to eight (8) hours for
Tenant’s initial move-in without charge to Tenant.
32.14 Landlord,
at its sole cost and expense, shall install one (1) Building Standard sign
identifying the Tenant on the exterior door(s) of the Demised
Premises.
ARTICLE
33
SUCCESSORS
AND ASSIGNS
33.1 The
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and, except as otherwise provided herein, their
assigns.
ARTICLE
34
HAZARDOUS
MATERIALS
34.1 Tenant
shall not cause or permit “Hazardous Materials” (as defined below) to be used,
transported, stored, released, handled, produced or installed in, on or from,
the Demised Premises or the Building. The term “Hazardous Materials” shall, for
the purposes hereof, mean any flammable, explosive or radioactive materials;
hazardous wastes; hazardous and toxic substances or related materials; asbestos
or any material containing asbestos; or any other such substance or material;
as
defined by any federal, state or local law, ordinance, rule or regulation,
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, the Resource Conservation and Recovery Act,
as
amended, and in the regulations adopted and publications promulgated pursuant
to
each of the foregoing. In the event of a breach of the provisions of this
Article 34, Landlord shall, in addition to all of its rights and remedies under
this Lease and pursuant to law, require Tenant to remove any such Hazardous
Materials from the Demised Premises or the Building in the manner prescribed
for
such removal by all requirements of law. The provisions of this Article 34
shall
survive the expiration or sooner termination of this Lease.
-52-
ARTICLE
35
PARTNERSHIP
TENANT
35.1 A.
If
Tenant
is a partnership or a professional corporation (or is comprised of two (2)
or
more persons, individually or as co-partners of a partnership or shareholders
of
a professional corporation) or if Tenant’s interest in this Lease shall be
assigned to a partnership or a professional corporation (or to two (2) or more
persons, individually or as co-partners of a partnership or shareholders of
a
professional corporation) pursuant to Article 8 hereof (any such partnership,
professional corporation and such persons are referred to in this Article 35
as
“Partnership Tenant”), the following provisions shall apply to such Partnership
Tenant: (a) the liability of each of the parties comprising Partnership Tenant
for the observance and performance of all the terms, covenants and conditions
of
this Lease shall be joint and several; (b) each of the parties comprising
Partnership Tenant hereby consents in advance to, and agrees to be bound by
(x)
any written instrument which may hereafter be executed by Partnership Tenant
or
any successor entity, changing, modifying, extending or discharging this Lease,
in whole or in part, or surrendering all or any part of the Demised Premises
to
Landlord, and (y) any notices, demands, requests or other communications which
may hereafter be given by Partnership Tenant or by any of the parties comprising
Partnership Tenant; (c) any bills, statements, notices, demands, requests or
other communications given or rendered to Partnership Tenant or to any of such
parties shall be binding upon Partnership Tenant and all such parties; (d)
if
Partnership Tenant shall admit new partners or shareholders, as the case may
be,
all of such new partners or shareholders, as the case may be, shall, by their
admission to Partnership Tenant, be deemed to have assumed joint and several
liability for the performance of all of the terms, covenants and conditions
of
this Lease on Tenant’s part to be observed and performed; and (e) Partnership
Tenant shall give prompt notice to Landlord of the admission of any such new
partners or shareholders, as the case by be, and upon demand of Landlord, shall
cause each such new partner or shareholder, as the case may be, to execute
and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein
each
such new partner or shareholder, as the case may be, shall assume joint and
several liability for the observance and performance of all the terms, covenants
and conditions of this Lease on Tenant’s part to be observed and performed (but
neither Landlord’s failure to request any such agreement nor the failure of any
such new partner or shareholder, as the case may be, to execute or deliver
any
such agreement to Landlord shall vitiate the provisions of clause (d) of this
Article 35).
B. Anything
herein to the contrary notwithstanding, if Tenant is a limited or general
partnership (or is comprised of two (2) or more persons, individually or as
co-partners), the change or conversion of Tenant to (i) a limited liability
company, (ii) a limited liability partnership, or (iii) any other entity which
possesses the characteristics of limited liability (any such limited liability
company, limited liability partnership, or entity is collectively referred
to as
a “Successor Entity”) shall be prohibited unless the prior written consent of
Landlord is obtained, which consent may be withheld in Landlord’s sole
discretion.
C. Notwithstanding
the foregoing in Section 35.1 B, Landlord agrees not to unreasonably withhold
or
delay its consent provided that:
-53-
(1) The
Successor Entity succeeds to all or substantially all of Tenant’s business and
assets;
(2) The
Successor Entity shall have a net worth (“Net Worth”), determined in accordance
with generally accepted accounting principles, consistently applied, of not
less
than the greater of the Net Worth of Tenant on (i) the date of execution of
the
Lease, or (ii) the day immediately preceding the proposed effective date of
such
conversion;
(3) Tenant
is
not in default of any of the terms, covenants or conditions of this Lease on
the
proposed effective date of such conversion;
(4) Tenant
shall cause each partner of Tenant to execute and deliver to Landlord an
agreement, in form and substance satisfactory to Landlord, wherein each such
partner agrees to remain personally liable for all of the terms, covenants
and
conditions of the Lease that are to be observed and performed by the Successor
Entity; and
(5) Tenant
shall reimburse Landlord within ten (10) days following demand by Landlord
for
any and all reasonable costs and expenses that may be incurred by Landlord
in
connection with said conversion of Tenant to a Successor Entity, including,
without limitation, any attorney’s fees and disbursements.
ARTICLE
36
SUBMISSION
TO JURISDICTION
36.1 Tenant
hereby (a) irrevocably consents and submits to the jurisdiction of any Federal,
state, county or municipal court sitting in the State of New York in respect
to
any action or proceeding brought therein by Landlord against Tenant concerning
any matters arising out of or in any way relating to this Lease; (b) irrevocably
waives personal service of any summons and complaint and consents to the service
upon it of process in any such action or proceeding by mailing of such process
to Tenant at the address set forth herein and hereby irrevocably designates
Xxxxxxxxx & GiGioia, LLP, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
a law firm having offices in Manhattan, to accept service of any process on
Tenant’s behalf and hereby agrees that such service shall be deemed sufficient;
(c) irrevocably waives all objections as to venue and any and all rights it
may
have to seek a change of venue with respect to any such action or proceedings;
(d) agrees that the laws of the State of New York shall govern in any such
action or proceeding and waives any defense to any action or proceeding granted
by the laws of any other country or jurisdiction unless such defense is also
allowed by the laws of the State of New York; and (e) agrees that any final
judgment rendered against it in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law. Tenant further agrees that any action
or
proceeding by Tenant against Landlord in respect to any matters arising out
of
or in any way relating to this Lease shall be brought only in the State of
New
York, county of New York. In furtherance of the foregoing, Tenant hereby agrees
that its address for notices by Landlord and service of process under this
Lease
shall be the Demised Premises. Notwithstanding the foregoing provisions of
this
Article 36, Tenant may, by written notice to Landlord, change the designated
agent for acceptance of service of process to any other law firm located in
the
City, county and State of New York.
-54-
ARTICLE
37
SUBSTITUTION
OF SPACE
37.1 A.Tenant
covenants and agrees that Landlord shall, at any time during the term of this
Lease, have the absolute and unqualified one-time right, upon ninety (90) days’
notice to Tenant, to designate as the Demised Premises other premises in the
Building in accordance with this Article 37. Such notice shall (i) specify
and
designate the space so substituted for the Demised Premises and (ii) specify
the
date for termination of the Lease which date shall be no sooner than ninety
(90)
days from the date of Landlord’s Notice (as hereinafter defined)(“Cancellation
Date”) if Tenant elects to terminate the Lease in accordance with Section 37.2
below (“Landlord’s Notice”). Notwithstanding such substitution of space, this
Lease and all the terms, provisions, covenants and conditions contained in
this
Lease shall remain and continue in full force and effect, except that the
Demised Premises shall be deemed to be such substituted space (hereinafter
called “Substituted Space”), with the same force and effect as if the
Substituted Space were originally specified in this Lease as the Demised
Premises, subject however, to Tenant right to terminate this Lease as set forth
in Section 37.2. Said Substituted Space shall be substantially similar in size
to that of the Demised Premises and shall be on the 15th floor of the Building
or above.
| B. | In the event of the substitution of space as provided in subparagraph A above: |
| (i) |
Landlord
shall, at Landlord’s expense, prepare the Substituted Space so that it is
in substantially the same condition, including layout and the number
of
offices and desk space as the Demised
Premises;
|
| (ii) |
As
soon as Landlord has completed preparing the Substituted Space as
set
forth in subsection (i), Tenant, upon seven (7) days prior written
notice,
shall move to the Substituted Space, and upon failure of Tenant to
so move
to the Substituted Space, Landlord may, as Tenant’s agent, remove Tenant
from the Demised Premises to the Substituted Space. Failure to Tenant
to
move to the Substituted Space pursuant to this Article 37 be deemed
a
material breach of this Lease on the part of Tenant. Notwithstanding
the
foregoing, Landlord shall either, at its option, reimburse Tenant
for all
moving expenses or move Tenant to the Substituted Space at Landlord’s sole
cost and expense; Tenant’s moving expenses shall also include reasonable
out-of-pocket expenses for reinstallation of Tenant’s equipment,
telephones and computers in Substituted Space; reinstallation or
replacement of improvements made by Tenant in Demised Premises; door
lettering (comparable to door lettering at Demised Premises); and
other
reasonable out-of-pocket expenses reasonably incurred (to the reasonable
satisfaction of Landlord) solely as a result of any substitution
of space
pursuant to this Article 37; and
|
| (iii) |
Following
any substitution of space pursuant to this Article 37, Landlord and
Tenant
shall, at the request of either party, promptly execute and deliver
an
agreement setting forth such substitution of space and the changes
(if
any) in the fixed rent and rentable square footage in the applicable
places in this Lease.
|
-55-
37.2 In
the
event Landlord exercises its rights hereunder, Tenant shall have the right
to
terminate this Lease (without payment of any termination fees to Landlord),
provided, however, that Tenant provides Landlord written notice of such election
to terminate within fifteen (15) days of receipt of Landlord’s Notice. In the
event Tenant exercises such right to terminate in accordance with this Article
37, then this Lease shall end and expire as of the Cancellation Date indicated
on Landlord’s Notice, and Tenant shall vacate the Demised Premises and surrender
the same to Landlord on or before the Cancellation Date in accordance with
the
provisions of this Lease, and Tenant shall have no further obligations to
Landlord relating to the Demised Premises, except for actual or contingent
liabilities of Tenant to Landlord, including, but not limited to, the payment
of
all Rent and other charges payable to Landlord, accrued through and including
the later of the Cancellation Date or the date of Tenant’s surrender of the
Demised Premises to Landlord in the condition required by this Lease, which
liabilities shall survive the expiration of the Lease.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK]
-56-
IN
WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed this
Lease as of the date first above written.
|
DOLP
675 PROPERTIES II LLC, a Delaware limited liability
company
|
|
|
By:
DOLP
675 Properties LLC, a New York limited liability company, its Sole
Member
|
|
|
By: The
Xxxxx Organization L.P., a Delaware limited partnership, its Sole
Member
|
|
|
By: The
Xxxxx Group LLC, a New York limited liability company, its General
Partner
|
|
|
By: The
Xxxxx Organization Inc., a New York corporation, its
Manager
|
|
|
By:________________________
Xxxxxxx Xxxxx, President
|
|
|
By: The
Xxxxx Properties Trust Inc.,
a Maryland corporation, its General Partner
|
|
|
By:__________________________
Xxxxxxx Xxxxx, President
|
|
|
LEV
PHARMACEUTICALS, INC.
|
|
|
By: __________________________
|
|
|
Name:
|
|
|
Title:
|
-00-
XXXXXX
XXXXXXXXXXXXXX
|
Xxxxx
xx Xxx Xxxx
|
) | |||
|
)
|
ss.:
|
|||
|
County
of New York
|
) |
On
the
____ day of __________________ in the year 2006 before me, the undersigned,
a
Notary Public in and for said state, personally appeared _____________________,
personally known to me or proved to me on the basis of satisfactory evidence
to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
Notary
Public
-58-
EXHIBIT
A
FLOOR
PLAN
EXHIBIT
B
WORK
LETTER
Tenant
acknowledges that it has inspected the Demised Premises, is fully familiar
with
the condition thereof, and agrees to take possession of the Demised Premises
in
its present "as is" condition and shall not call upon Landlord to perform any
alterations or decorations or furnish any materials to or in the Demised
Premises to suit them for Tenant's occupancy, except that Landlord, at its
sole
cost and expense, shall perform the following work as outlined in clauses (a)
through (k) below in accordance with Royal Realty Sketch A-1 Revised dated
11/28/06 (“Sketch”) and attached hereto:
(a) Demolish
approximately thirty (30’-0”) lineal feet of drywall and remove all debris as
indicated in the Sketch;
(b) Furnish
and install approximately twenty (20’-0”) lineal feet of new Building Standard
drywall partitions as indicated in the Sketch;
(c) Furnish
and install one (1) new 6’ x 8’ hollow metal door frame, one (1) pair of 3’ x 8’
stain grade cherry veneer doors and new hardware to match existing as indicated
in the Sketch;
(d)
Furnish
and install new 2’x 2’ suspended acoustical ceiling to match existing in areas
affected by new construction;
(e) Remove
existing carpet and furnish and install new Building Standard carpet
manufactured by “Karastan” or vinyl composite tile throughout the Demised
Premises. Office carpet will be “Plateau Series” and general area carpet will be
“FiFi Series” in colors selected by Tenant from samples provided by Landlord.
Furnish and install new 4” vinyl wall base on all partitions and columns;
(f) Remove
and re-install eight (8) existing
2’ x 4’ light fixtures, re-circuit lighting and install one (1) new light
switch;
(g) Furnish
and install five (5) 20 amp receptacles and five (5) tele/data stubs as
indicated in the Sketch;
(h) Relocate
existing sprinkler heads or furnish and install new sprinkler heads to meet
NYC
code requirements;
(i)
Relocate
existing HVAC ceiling air diffusers in areas affected by new
construction;
(j) Paint
all
surfaces usually painted in the Demised Premises, not more than one color per
room, standard of the building, in colors selected by Tenant; and
(k) Remove
existing and install new wall covering on east the Conference Room wall.
Tenant
agrees that all telephone, data and communication cabling and associated
equipment is to be installed by Tenant at Tenant's sole cost and
expense.
In
no
event however, shall Landlord be required to employ any "overtime" labor or
pay
any "overtime" or other premium pay rate in connection with any of the foregoing
work set forth in this Work Letter.
EXHIBIT
C
CLEANING SPECIFICATIONS
OFFICE
CLEANING ON BUSINESS DAYS
Desk
and
table tops are dusted nightly.
All
horizontal and vertical surfaces are dusted nightly.
All
glass
top desks and tables are damp wiped nightly.
All
composition tile flooring is thoroughly dust mopped nightly with treated cloth.
All corners are cleaned.
Carpeted
areas thoroughly vacuumed weekly; additionally, high traffic areas of floor
vacuumed nightly.
Low
dusting of furniture is done nightly.
All
waste
baskets are emptied nightly.
Desk
trays are dusted nightly.
Hi-dusting
- quarterly.
Window
cleaning - approximately three times annually.
CORE
LAVATORIES - NIGHTLY - Monday through Friday, inclusive (excluding holidays
as
described in Lease).
Sweep
and
wash and scrub all lavatory flooring, using germicide in the water.
Wash
and
polish all mirrors, powder shelves, brightwork, etc., including flushometers,
piping, toilet seat, hinges.
Wash
both
sides of all toilet seats.
Wash
and
disinfect all basins, bowls and urinals.
Dust
all
partitions, tile walls, dispensers and receptacles.
Empty
and
clean paper towel and sanitary disposal receptacles.
Remove
wastepaper to designated area in the loading dock.
Fill
toilet tissue holders.
CORE
LAVATORIES - PERIOD CLEANING
Machine
scrub flooring monthly.
Wash
all
partitions, tile walls and enamel surfaces once a month, using proper
disinfectant monthly.
Wash
all
metal ceilings once per annum.
Dust
all
lighting fixtures once a month.
Do
all
high dusting once a month.
EXHIBIT
D
RULES
AND REGULATIONS
The
rights of tenants in the entrances, corridors, elevators and escalators of
the
Building are limited to ingress to and egress from the tenants’ premises for the
tenants and their employees, licensees and invitees, and no tenant shall use,
or
permit the use of, the entrances, corridors, escalators or elevators for any
other purpose. No tenant shall invite to the tenant’s premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere
with
the use and enjoyment of any of the plazas, entrances, corridors, escalators,
elevators and other facilities of the Building by other tenants. Fire exits
and
stairways are for emergency use only, and they shall not be used for any other
purposes by the tenants, their employees, licensees or invitees. No tenant
shall
encumber or obstruct, or permit the encumbrance or obstruction of or store
or
place any materials on any of the sidewalks, plazas, entrances, corridors,
escalators, fire exits or stairways of the Building. The Landlord reserves
the
right to control and operate the public portions of the Building and the public
facilities, as well as facilities, furnished for the common use of the tenants,
in such manner as it deems best for the benefit of the tenants
generally.
The
cost
of repairing any damage to the public portions of the Building or the public
facilities or to any facilities used in common with other tenants, caused by
a
tenant or the employees, licensees or invitees of the tenant, shall be paid
by
such tenant.
The
landlord may refuse admission to the Building outside of ordinary business
hours
to any person not known to the watchman in charge or not having a pass issued
by
the Landlord or not properly identified, and may require all persons admitted
to
or leaving the Building outside of ordinary business hours to register, Tenant’s
employees, agents and visitors shall be permitted to enter and leave the
Building whenever appropriate arrangements have been previously made between
the
Landlord and the tenant with respect thereto. Each tenant shall be responsible
for all persons for whom he requests such permission and shall be liable to
the
Landlord for all acts of such persons. Any person whose presence in the Building
at any time shall, in the judgment of the Landlord, be prejudicial to the
safety, character, reputation and interests of the Building or its tenants
may
be denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion the Building may prevent
all access to the Building during the continuance of the same, by closing the
doors or otherwise, for the safety of the tenants and protection of property
in
the Building. The Landlord may require any person leaving the Building with
any
package or other object to exhibit a pass from the tenant from whose premises
the package or object is being removed, but the establishment and enforcement
of
such requirement shall not impose any responsibility on the Landlord for the
protection of any tenant against the removal of property from the premises
of
the tenant. The Landlord shall, in no way, be liable to any tenant for damages
or loss arising from the admission, exclusion or ejection or any person to
or
from the tenant’s premises or the Building under the provisions of this
rule.
No
tenant
shall obtain or accept for use in its premises, ice, drinking water, food
beverage, towel, barbering, boot blacking, floor polishing, lighting
maintenance, cleaning or other similar services from any persons not authorized
by the Landlord in writing to furnish such services, provided always that the
charges for such services by persons authorized by the Landlord are not
excessive. Such prohibition shall not include food and beverage deliveries
to
the Demised Premises. Such services shall be furnished only at such hours,
in
such places within the tenant’s premises and under such regulations as may be
fixed by the Landlord.
EXHIBIT
D
Page
2
No
awnings or other projections over or around the windows shall be installed
by
any tenant, and only such window blinds as are supplied or permitted by the
Landlord shall be used in a tenant’s premises.
There
shall not be used in any space, or in the public halls of the Building, either
by the Tenant or by jobbers or others, in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and side
guards.
All
entrance doors in each tenant’s premises shall be kept locked when the tenant’s
premises are not in use. Entrance doors shall not be left open at any time.
All
windows in each tenant’s premises shall be kept closed at all times. All blinds
in any tenant’s premises above the ground floor shall be lowered when and as
reasonably required, because of the position of the sun, during the operation
of
the Building air conditioning system to cool or ventilate the tenant’s
premises.
No
noise,
including the playing of any musical instruments, radio or television, which,
in
the judgment of the Landlord, might disturb other tenants in the Building shall
be made or permitted by any tenant, and no cooking shall be done in the Tenant’s
premises, except as expressly approved by the Landlord. Nothing shall be done
or
permitted in any tenant’s premises, and nothing shall be brought into or kept in
any tenant’s premises, which would impair or interfere with any of the Building
services or the proper and economic heating, cleaning or other servicing of
the
Building or premises, or the use or enjoyment by any other tenant of any other
premises, nor shall there be installed by any tenant any ventilating, air
conditioning, electrical or other equipment of any kind which, in the judgment
of the Landlord, might cause any such impairment or interference. No dangerous,
inflammable, combustible or explosive object or material shall be brought into
the Building by any tenant or with the permission of any tenant.
Tenant
shall not permit any cooking or food odors emanating within the Demised Premises
to seep into other portions of the Building.
No
acids,
vapors or other materials shall be discharged or permitted to be discharged
into
the waste lines, vents or flues of the Building which may damage them. The
water
and wash closets and other plumbing fixtures in or serving any tenant’s premises
shall not be used for purpose other than the purpose for which they were
designed or constructed, and no sweepings, rubbish, rags, acids or other foreign
substances shall be deposited therein. All damages resulting from any misuse
of
the fixtures shall be borne by the tenant who, or whose servants, employees,
agents, visitors, or licensees, shall have caused the same.
No
signs,
advertisements, notice or other lettering shall be exhibited, inscribed, painted
or affixed by any tenant on any part of the outside or inside the premises
or
the Building without the prior written consent of Landlord. In the event of
the
violation of the foregoing by any tenant, Landlord may remove the same without
any liability, and may charge the expense incurred by such removal to the tenant
or tenants violating this rule. Interior signs and lettering on doors and
elevators shall be inscribed, painted, or affixed for each tenant by Landlord
at
the expense of such tenant, and shall be of a size, color and style acceptable
to Landlord. Landlord shall have the right to prohibit any advertising by any
tenant which impairs the reputation of the building or its desirability as
a
building for offices, and upon written notice from Landlord, Tenant shall
refrain from or discontinue such advertising.
EXHIBIT
D
Page
3
No
additional locks or bolts of any kind shall be placed upon any of the doors
or
windows in any tenant’s premises and no lock on any door therein shall be
changed or altered in any respect. Duplicate keys for a tenant’s premises and
toilet rooms shall be procured only from the Landlord, which may make a
reasonable charge therefore. Upon the termination of a tenant’s lease, all keys
of the tenant’s premises and toilet rooms shall be delivered to the
Landlord.
No
tenant
shall xxxx, paint, drill into, or in any way deface any part of the Building
or
the premises demised to such tenant. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and
as
Landlord may direct. No tenant shall install any resilient tile or similar
floor
covering in the premises demised to such tenant except in a manner approved
by
Landlord.
No
tenant
shall lease desk space or permit the licensing of desk space in the premises
demised to such tenant.
No
premises shall be used, or permitted to be used, at any time, as a store for
the
sale or display of goods, wares or merchandise of any kind, or as a restaurant,
shop, booth, bootblack or other stand, or for the conduct of any business or
occupation which predominantly involves direct patronage of the general public
in the premises demised to such tenant, or for manufacturing or for other
similar purposes.
The
requirements of tenants will be attended to only upon application at the office
of the building. Employees of Landlord shall not perform any work or do anything
outside of the regular duties, unless under special instructions from the office
of the landlord.
Each
tenant shall, at its expense, provide artificial light in the premises demised
to such tenant for Landlord’s agents, contractors and employees while performing
janitorial or other cleaning services and making repairs or alterations in
said
premises.
The
tenant’s employees shall not loiter around the hallways, stairways, elevators,
front roof or any other part of the Building used in common by the occupants
thereof.
If
the
premises demised to any tenant become infested with vermin, such tenant, at
its
sole cost and expense, shall cause its premises to be exterminated, from time
to
time, to the satisfaction of Landlord and shall employ such exterminators
therefor as shall be approved by Landlord.
Any
cuspidors or similar containers or receptacles used in any tenant’s premises
shall be cared for and cleaned by and at the expense of the Tenant.
EXHIBIT
D
Page
4
All
movers used by any tenant or occupant of the Building shall be appropriately
licensed and shall maintain adequate insurance coverage (proof of such coverage
shall be delivered to Landlord prior to movers providing service in and
throughout the Building). No Tenant shall move, or permit to be moved, into
or
out of the building or the premises demised to such Tenant, or move any heavy
or
bulky matter without specific approval of the Landlord, and if such matter
requires special handling, only a person holding a master rigger’s license shall
be employed to perform such special services. Tenant shall protect the Demised
Premises, including all finishing work from damage or soiling by Tenant’s movers
and contractors and shall pay for extra cleaning or replacement or repairs
by
reason of Tenant’s failure to do so.
If
the
Demised Premises shall be situated on the ground floor of the Building, Tenant
shall cause all exterior windows facing on any street or avenue to be thoroughly
cleaned inside and out at least once per week. In addition, if the Demised
Premises shall be on the ground floor, Tenant shall likewise cause the exterior
of any storefront or sign to be kept clean, properly maintained and in good
order and repair throughout the term of this Lease.
No
bicycles, vehicles, or animals of any kind shall be brought into or kept in
or
about the Demised Premises.
The
Demised Premises shall not be used for lodging or sleeping or for any immoral
or
illegal purposes.
Canvassing,
soliciting, and peddling in the Building are prohibited and each tenant shall
cooperate to prevent the same.
No
space
in the Building shall be used for manufacturing, distribution, or for the
storage of merchandise or for the sale of merchandise, goods or property of
any
kind at auction.
No
tenant
shall occupy or permit any portion of the Demised Premises leased to it to
be
occupied as an office for a public stenographer or typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco
in
any form, or as a xxxxxx or manicure shop or as an employment bureau or agency,
or for a public finance (personal loan) business. No tenant or occupant shall
engage or pay any employees on the Demised Premises, except those actually
working for such occupant on the Demised Premises, nor advertise for laborers
giving an address at the Demised Premises.
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, a processing fee in a sum equal to the reasonable fee of any
architect, engineer or attorney employed by landlord to review said plan,
agreement or document.
Freight,
furniture, business equipment, merchandise and bulky matter of any description
shall be delivered to and removed from the Demised Premises only on the freight
elevators and through the service entrances and corridors, and only during
hours
and in a manner approved by Landlord. Landlord reserves the right to inspect
all
freight to be brought into the building and to exclude for the building all
freight which violates any of these Rules and Regulations or the lease of which
these Rules and Regulations are a part.
EXHIBIT
D
Page
5
Tenants,
in order to obtain maximum effectiveness of the cooling system shall lower
and/or close venetian or vertical blinds or drapes when the sun’s rays fall
directly on windows of Demised Premises.
In
order
that the Building can and will maintain a uniform appearance to those outside
of
same, each Tenant in building perimeter areas shall (a) use only building
standard lighting in areas where lighting is visible from the outside of the
Building and (b) use only building standard venetian or vertical blinds in
window areas which are visible from the outside of the Building.
All
paneling, carpets, upholstery, drapery, furniture, and decorating materials
shall be composed of fire and smoke retardant materials recommended by the
New
York City Fire Department. Before installation of any such materials,
certification of the materials’ fire retardant characteristics shall be
submitted to Landlord, or its agents, in a manner satisfactory to the
Landlord.
Except
as
provided for in the Work Letter, when alterations to or above hung ceilings
are
performed, sprinkler systems will be installed at Tenant’s cost and
expense.
Because
of requirements of Local Law 5 regarding certain fire safety regulations, it
is
necessary that Landlord know at all times the approximate number of persons
within the demised premises after normal business hours (i.e. after 6:00 P.M.
on
weekdays and on weekends and holidays). Accordingly, within thirty (30) days
after the date hereof, Tenant shall submit to Landlord its best estimate of
the
number of Tenant’s employees, agents, visitors and other persons which Tenant
expects to occupy the demised premises at any time after normal business hours.
Prior to 5:00 P.M. of each weekday or prior to 5:00 P.M. on the day preceding
a
weekend or holiday, Tenant shall inform the building manager’s office whenever
Tenant knows, or has reason to believe, that the number of its employees,
agents, visitors and other persons occupying the demised premises after normal
working or business hours that evening or the next day(s), as the case may
be,
will exceed this estimate. Tenant also shall keep reasonable records which
indicate the number of persons entering and leaving the demised premises after
normal business hours, and shall provide copies of such records to Landlord
at
Landlord’s request.
The
use
of air hammers or saw-all, drilling or cutting through or shooting fasteners
into the slab, between the hours of 8:00 a.m. and 7:00 p.m., Monday through
Friday (except holidays), which disturbs other tenants in the Building, whether
for Tenant’s initial work installation or for subsequent permitted alterations,
shall be prohibited.
The
following work may only be done by Tenant, its contractors, agents, employees
and representatives after business hours and otherwise in accordance with the
provisions of this Lease and these Rules and Regulations: (a) demolition; (b)
cutting, trenching, chopping, coring and drilling of floor slabs; (c) shooting
fasteners into slab, floor or overhead; (d) spraying of paint or other coatings;
(e) disconnects or shutdowns affecting other tenants or other portions of the
Building; and (f) burning or welding of steel which causes fumes to be
transmitted to other parts of the Building.
EXHIBIT
D
Page
6
At
the
expiration of Tenant’s lease term, if Landlord shall not require Tenant to
remove any supplemental air-conditioning system which Tenant has installed
or
utilized in its demised premises, Landlord reserves the right to require Tenant,
at Tenant’s own sole cost and expense, to (a) remove the refrigerant from said
supplemental air-conditioning system, in full compliance with all applicable
provisions of this Lease and with any and all applicable laws, ordinances,
orders, rules, and regulations relating to such removal and (b) promptly repair
any and all damage caused by, or resulting from, such removal.
Tenant
shall not give any tips, gratuities, compensation or any other payments or
gifts
to Landlord’s employees or agents without Landlord’s prior written
consent.
There
shall not be used in any tenant’s premises any portable or desk-top
space-heating device or fan device, whether electrically powered or
otherwise.
EXHIBIT
D-1
BUILDING
RULES AND REGULATIONS FOR TENANT ALTERATIONS
The
following Rules and Regulations apply to new Tenant construction as well as
Tenant remodeling work. They have been formulated for the following
purposes:
| 1. |
To
assist Tenants in understanding the proper methods and procedures
for the
performance of construction activities within the
Building.
|
| 2. |
To
maintain integrity of the architectural, structural, electric, mechanical
and fire-safety systems of the
Building.
|
| 3. |
To
ensure all work is performed in accordance with all governing laws,
safety
requirements and in a xxxxxxx like
manner.
|
| 4. |
To
protect the rights of other
Tenants.
|
The
Landlord reserves the right to modify these rules and regulations from time
to
time as may, in their sole judgment, be required to preserve the integrity
of
the Buildings structure and systems, and the safety and quiet enjoyment of
the
occupants of the Building.
| I. |
GENERAL
RULES & REGULATIONS
|
A. Tenant
shall ensure that all proposed alterations, decorations, installations, repairs,
improvements and/or replacements (which shall hereafter be called
“Alteration(s)”, and which are sometimes referred to as “Tenant’s Work” in the
Lease) comply with the Administrative Code of the City of New York and all
other
laws, codes, ordinances, rules and regulations promulgated by all governmental
agencies having jurisdiction over such Alterations, including, without
limitation, the Americans with Disabilities Act.
B. Tenant
shall ensure that all Alterations are performed in accordance with all
applicable provisions of the Lease. Only where the Lease is specifically more
restrictive does the Lease supercede these Rules & Regulations.
C. Tenant
shall ensure that all proposed Alterations comply at minimum with the Building
Standards.
D. Tenant
shall ensure that all proposed Alterations are properly designed to serve
Tenant’s needs, while remaining in full conformity with, and not adversely
affecting, any Building systems.
E. All
proposed Alterations are to be performed by a general contractor and
sub-contractors that have been previously approved by Landlord to perform work
in the Building. Refer to the Building’s “List of Approved Contractors” for a
complete listing.
EXHIBIT
D-1
Page
2
F. Prior
to
the start of the Alteration, Tenant shall submit to Landlord a complete list
of
Tenant’s general contractor, all sub-contractors, vendors business name,
business address, contact, phone number, fax number and 24 hour emergency number
including the required insurance certificates, signed Indemnification and Hold
Harmless Agreements, N.Y.C. Dept. of Buildings Work Permits.
G. Landlord
reserves the right to withhold its consent of any Alteration due to Tenant’s
non-compliance of any rule, regulation, requirement or guideline contained
in
this Exhibit or in the Lease.
H. Landlord’s
approval or disapproval of any proposed Alteration shall in no event change
or
modify any provision of the Lease.
I. Tenant
shall only use materials and employ labor that will not result in any labor
difficulty or interruption of Landlord’s operation of the Building.
J. If
any
part of Tenant’s Alteration is improperly or inadequately performed or
incomplete in any manner, Landlord shall have the right to perform all necessary
corrective work at Tenant’s cost and expense.
K. Landlord
reserves the right to stop the progress of any Alteration that is not being
performed in strict compliance with the terms and conditions outlined
herein.
| II. |
SUBMISSION
OF DRAWINGS
|
A. Tenant
shall submit for Landlord's review and written approval, complete architectural
and engineering drawings, including but not limited to mechanical, electrical,
plumbing, sprinkler and structural drawings which fully detail all aspects
of
the proposed Alterations as follows:
|
-
|
Four
(4) complete sets of full-sized 1/8” scale
drawings.
|
|
-
|
Complete
set of Architectural and Engineering drawings submitted electronically
utilizing AutoCAD format.
|
|
-
|
All
revisions and final “As-Built” drawings are to be provided in AutoCAD
format.
|
|
-
|
Electronic
drawings should be sent to
xxxxxxxx@xxxxx.xxx.
|
B. All
drawings submitted for Landlord's review must be prepared, signed and sealed
by
Tenant's registered architect and professional engineer, licensed to conduct
business in the State of New York.
C. Tenant’s
drawings must include details of connections to all Base Buildings systems
and
must be accompanied by a statement outlining the total electrical and mechanical
loads.
EXHIBIT
D-1
Page
3
D. Landlord
reserves the right to refer Tenant’s drawings to Landlord’s consulting engineers
for review. All costs incurred by Landlord for any such review, approval and/or
inspection of Tenant’s Alteration shall be reimbursed by Tenant.
E. Tenant
shall provide Landlord, for Landlord’s review and written approval, all revised,
modified and/or additional drawings issued in the course of the Alteration,
in
the quantities and format outlined in (A.) above.
F. Landlord’s
review and approval of Tenant’s drawings is for consent purposes only and is not
a review for compliance with any law, ordinance, code or insurance requirement,
nor a review of the adequacy of Tenant’s design. No such approval or comments
shall constitute a waiver of the obligation that the Alteration complies with
all governmental laws, codes, rules, regulations, or the terms and conditions
outlined in this Exhibit.
G. Landlord’s
approval or disapproval of the Alteration, or required revisions to and
re-submission of Tenant’s drawings which incorporate Landlord’s comments shall
in no way be construed or considered a delay caused by Landlord.
H. Upon
the
completion of the Alteration, Tenant shall provide Landlord a complete set
of
final architectural and engineering “As-Built” drawings in the quantities and
format outlined in (A.) above.
| III. |
FILING
REQUIREMENTS
|
A. Prior
to
the commencement of the Alteration, Tenant's architect or other representative
designated by Tenant, shall file all drawings relative to Tenant's Alterations
with the N.Y.C. Department of Buildings and all other governmental agencies
having jurisdiction thereof.
B. Tenant
shall pay the cost of all filing and permit fees necessary to secure all
required approvals and permits from the N.Y.C. Department of Buildings and
all
other governmental agencies having jurisdiction thereof.
C. No
Alteration shall commence without a permit issued by the N.Y.C. Department
of
Buildings. Copies of all N.Y.C. Department of Buildings approved applications,
permits and drawings are to be submitted to Landlord prior to the start of
the
Alteration.
D. All
work
shall comply with all rules, regulations, codes, laws and ordinances of the
city, state and federal governmental agencies having jurisdiction, including
without limitation, those relative to the Americans With Disabilities
Act.
E. Upon
the
completion of the Alteration, Tenant shall submit to Landlord, copies of all
final sign-offs and controlled inspection reports from the N.Y.C. Department
of
Buildings and all other governmental agencies having jurisdiction
thereof.
EXHIBIT
D-1
Page
4
| IV. |
INSURANCE
REQUIREMENTS
|
A. Indemnification
and Hold Harmless
| 1. |
To
the fullest extent permitted by law, Tenant shall compel its General
Contractor / Construction Manager and every tier of Sub-Contractor
collectively, (“Contractor”) to execute an Indemnification and Hold
Harmless Agreement in the form of Schedule A annexed hereto, pursuant
to
which “Contractor” shall indemnify and hold harmless The Xxxxx Buildings
Corporation, Royal Realty Corp., and all affiliated and subsidiary
limited
partnerships, limited liability companies, and other entities thereof
as
may now or may hereafter exist, including nominees or trusts, and
the
shareholders, partners, directors, officers, employees, and agents
of any
such corporation, person or entity (collectively, “The Xxxxx Buildings
Corporation, et al.”) from and against any and all loss or damage, claim,
demand, suit or action (collectively, a “Claim”) or judgment for damages
on account of or by reason of bodily injury, including death, damage
to
property, and from all costs and expenses incurred on account of
any such
Claim, including, without limitation, attorney’s fees and disbursements,
caused by or directly or indirectly arising out of or claimed to
have been
caused by or to have directly or indirectly arisen out of, (i) any
purchase order (as same may be modified), or (ii) any work done or
performed by “Contractor” or (iii) “Contractor’s” failure to do or perform
any work required to be done, or (iv) the negligence of “Contractor”, or
any of its subcontractors, or any of “Contractor’s” or such
subcontractor’s respective agents, servants or employees, or (v)
“Contractor’s” failure to comply with any applicable law, rule, regulation
or permit, and “Contractor” shall, at it’s own cost and expense, defend
any such Claim which may be asserted or commenced against The Xxxxx
Buildings Corporation, et al., by reason thereof or in connection
therewith, and “Contractor” shall pay and satisfy any and all judgments
which may be recovered in any such Claim and defray or reimburse
any and
all expenses, including costs and reasonable attorney’s fees, which may be
incurred in or by reason of such Claim, and shall keep the property
of The
Xxxxx Buildings Corporation, et al., free and unencumbered of any
charge
or lien of any kind.
|
B. Insurance
| 1. |
Prior
to the start of any Alteration, Tenant’s “Contractor” shall secure, and
keep in full force and effect, throughout the term of the project
at the
Building, the following Insurance coverage at the sole cost and expense
of
Contractor. Such Insurance shall be primary, notwithstanding any
other
insurance that might be in effect for the indemnified
parties:
|
| a. |
Commercial
General Liability Insurance, including Contractual Liability (to
specifically include coverage for the indemnification and hold harmless
clause of this Agreement), Products & Completed Operations Liability
(including XCU coverage where appropriate), Broad Form Property Damage,
Personal Injury Liability and Advertising Injury Liability, written
on an
occurrence form, with combined bodily injury and property damage
limits of
liability of no less that $5,000,000 per occurrence, $5,000,000 Personal
& Advertising Injury and $5,000,000 Products and Completed Operations
liability with $5,000,000 aggregate limit per project. Contractor
agrees
to maintain completed operations coverage, including the indemnified
parties as additional insureds for two years following completion
of the
work. The limits of liability can be provided in a combination of
a
Commercial General Liability policy and an Umbrella Liability policy,
which is written on a no less than follow-form basis of the General
Liability policy. Such policies shall contain no exclusions, other
than
those in the basic policy form, that will in any way negatively affect
coverage provided to the indemnified parties. Notwithstanding above,
the
General Contractor/ Construction Manager shall maintain limits of
$25,000,000.
|
| b. |
Worker’s
Compensation Insurance providing statutory benefits for Contractor
employees and Employer’s Liability coverage in an amount that is no less
that $500,000;
|
EXHIBIT
D-1
Page
6
| c. |
automobile
Liability Insurance, including owned, non-owned, and hired car liability
insurance for combined limits of liability of $5,000,000 per occurrence.
The limits of liability can be provided in a combination of an Automobile
Liability policy and an Umbrella Liability policy, which is written
on a
no less than follow-form basis of the automobile
policy;
|
| d. |
At
Tenant’s own cost and at the Landlord’s option, “Builders Risk” coverage
on the Alterations shall be required in an amount satisfactory to
the
Landlord. Said improvements are to be included in or added to the
Tenant’s
insurance policy and the Landlord shall be added as additional named
insured a/i/m/a.
|
| 2. |
All
required insurance policies and bonds shall be maintained with insurance
companies licensed within the State of New York and holding an AM
Best
rating of no less than A-, VIII. Said policies shall contain a provision
that coverage will not be canceled, non-renewed or materially changed,
until at least thirty (30) days’ prior written notice has been provided to
Landlord or its agent.
|
| 3. |
Contractor
agrees to waive its rights of subrogation against the “Xxxxx Building
Corporation, et al. and shall have included in each of the above
policies,
and shall cause it’s Contractors to have included in each of the above
policies, except Workers Compensation, a waiver of the insurer’s right of
subrogation against “Landlord”.
|
| 4. |
Certificates
in the customary form, i.e. Xxxxx 25, evidencing all terms of this
Section
of the Lease, shall be delivered to the Landlord or its agent, prior
to
commencement of any Alterations. Similar certificates shall be delivered
evidencing the renewal or replacement of such insurance, at least
30 days
prior to the effective date of such renewal or change of
insurer.
|
EXHIBIT
D-1
Page
6
C. Tenant
Obligations
| 1. |
Tenant
shall not permit or allow its Contractor, sub-contractors, vendors
or any
other entity involved in the Alteration to commence or proceed with
any
work until all required insurance has been obtained and acceptable
certificates of such insurance and indemnification have been delivered
to
Landlord. If insurance, as required in this agreement, is canceled,
non-renewed or materially changed within 30 days of the required
notification as noted in IV B.3., all work shall cease and desist
until
the required insurance is in place and revised certificates of insurance,
if applicable, are provided to
Landlord.
|
| 2. |
If
work by Tenant must be performed in premises other than Tenant’s own
Demised Premises or Landlord’s common areas, then Tenant will be required
to provide Certificates of Insurance for the same limits and hold
harmless
indemnification to the entity in whose space such work takes place,
naming
said entity as the certificate holder and an additional insured and
shall
name the Landlord as additional insured for such
work.
|
V. LDING
SERVICES AND FREIGHT ELEVATOR
A. Prior
to
the start of work, Tenant shall provide the Building Office with written
authorization allowing Tenant’s general contractor to schedule all necessary
Building services and freight elevator services at Tenant’s cost and
expense.
B. Any
shutdown of the Building’s mechanical, electric, plumbing, sprinkler or Class
“E” systems required in connection with the Alteration shall be requested
through the Building Office in writing, at least 48 hours prior to the requested
shutdown date. Building system shutdowns shall be scheduled on non-business
days
or on business days between 7:00PM and 6:00AM with all work being completed
during this time. Shutdowns shall be performed by Landlord's personnel and/or
designated contractors at Tenant's cost and expense. Any shutdown that affects
other tenants or Building operations is to be requested at least two (2) weeks
prior to the requested shutdown date and is to be scheduled subject to final
approval and coordination by the Building Manager.
C. Tenant
shall be responsible for the reimbursement of all reasonable costs (including
but not limited to preventative measures, repairs, testing, standby personnel,
etc.) incurred by other tenants resulting from any shutdown necessitated by
the
Alteration.
D. The
use
of the freight elevators for hoisting materials, equipment and the removal
of
rubbish shall only be permitted during non-business hours or on non-business
days and shall be arranged and scheduled through the Building Office. Tenant
shall be required to pay the Building’s standard hourly charge for overtime
freight elevator use. A four (4) hour minimum charge will apply for all weekends
and holidays.
EXHIBIT
D-1
Page
7
E. Landlord
will not assume any responsibility for any disturbance to Tenant or deficiency
created in any mechanical system or electrical service to the Demised Premises
by reason of the Alteration.
F. All
necessary cleaning and repair of the Building Common and core areas, equipment,
or systems affected by or resulting from the Alteration, will be performed
by
Landlord’s personnel, or other Landlord approved service vendor at Tenant’s cost
and expense.
G. Tenant
shall be responsible for Landlord’s standard charges for porters, security,
engineers, elevator mechanic and other costs incurred by Landlord in connection
with the Alteration as specified herein.
H. All
construction personnel, and the delivery of all tools, equipment and material
shall be required to use the freight elevator at all times. The use of the
passenger elevators for any purpose is strictly prohibited.
I. All
work
that produces a flame, heat or sparks such as, but not limited to: welding,
abrasive cutting, soldering, grinding and torch work is known as “Hot Work”. All
Hot Work must be performed in accordance with the Buildings Hot Work loss
prevention plan. Contact Building Management for a copy of the
plan.
| VI. |
DEMOLITION
AND CONSTRUCTION
|
A. All
demolition, construction and other such work which creates disturbance or
annoyance to other tenants in the Building or interferes with the Building
operations (including, but not limited to chopping, coring, cutting, fumes,
odors, drilling, anchoring, welding, sawing, etc.) must be scheduled with the
Building Office and must be performed before or after business hours (8:00
am -
6:00 pm) or on non-business days or as otherwise directed by Building
Management. Building Management reserves the right to stop work at any time,
which in Landlord’s sole judgment, fails to comply with this
requirement.
B. Tenant’s
general contractor shall provide an approved, licensed electrician as standby
during all demolition work.
C. All
demolition work shall be supervised by Landlord’s representative at Tenant’s
cost and expense.
D. Tenant’s
general contractor shall:
| 1. |
Have
a superintendent or xxxxxxx at the premises at all times when work
is in
progress.
|
| 2. |
Monitor
the actions and activities of all workers involved with the Alteration
to
ensure strict compliance with this
Exhibit.
|
EXHIBIT
D-1
Page
8
| 3. |
Keep
the demised premises and all Building common and core areas clean,
orderly, and properly protected from damage during the course of
the
Alteration. All debris is to be placed in appropriate containers
and
removed from the Building daily.
|
| 4. |
Protect
and seal off the elevator lobby doors to prevent dust and dirt from
entering the elevator shafts and
equipment.
|
| 5. |
Protect
the perimeter HVAC or heating units and enclosures from dirt, dust
and
damage.
|
| 6. |
Protect
and seal off all supply and return grilles, diffusers and ducts to
prevent
dust from entering the Building’s air conditioning and ventilating
systems.
|
| 7. |
Protect
all Class “E” fire alarm devices (speakers, strobes, smoke detectors,
etc.) and wiring.
|
| 8. |
Ensure
that all work is performed in accordance with O.S.H.A. rules and
regulations.
|
| 9. |
Ensure
that all operable windows remain closed during the
Alteration.
|
| 10. |
Clean
and vacuum the inside of all perimeter enclosures upon completion
of the
Alteration.
|
| 11. |
Ensure
that all contractor personnel involved with the Alteration are issued
identification badges that are clearly worn at all times. Only such
personnel will be permitted access to and from the demised premises.
Any
contractor and/or sub-contractor not complying with this regulation,
or
found outside the demised premises without authorization from Building
Management will be banned from working in the
Building.
|
| 12. |
Ensure
any proposed alterations affecting the elevator doors, fixtures,
or call
buttons are performed by the building’s elevator
vendor.
|
E. All
electro-static spray painting must be performed after normal business hours
and
is to be scheduled with the Building Office.
F. The
storage of tools, equipment, material, debris, or other construction related
items in the Building common or core areas, stairways, roof, sidewalks, etc.
is
strictly prohibited.
G. Only
UL,
BSA, and MEA approved material and equipment are to be used in any
Alteration.
H. If
at any
time during the Alteration that the Building Class “E” fire alarm and sprinkler
systems are to be temporarily disabled, Tenant’s contractors, at Tenant’s cost
and expense, shall maintain the necessary N.Y.C.F.D. certified fire watch
personnel for the demised premises required by governmental authorities having
jurisdiction. In addition, Landlord will provide additional fire watch, at
Tenant’s cost and expense, for all areas outside of the demised premises that
may be affected by such temporary shutdown. If at any time during the
Alteration, Tenant’s work activates the Building’s Class “E” system; Tenant
shall be responsible for all resulting costs, penalties, and
repairs.
EXHIBIT
D-1
Page
9
I. ll
perimeter HVAC enclosures and grilles that are damaged or missing as a result
of
the Alteration are to be replaced with new to match existing.
J. Drywall
partitions or installation abutting perimeter window mullions must allow for
the
operation of operable and pivoting windows where applicable. The fastening
of
metal studs to the perimeter window mullions and perimeter HVAC enclosure is
not
permitted.
K. All
perimeter HVAC enclosures and grilles are to be removed prior to painting and
re-installed when dry. Do not paint in place.
L. The
chasing or chopping of the structural slab, masonry core walls and/or perimeter
walls is strictly prohibited.
M. The
attachment of drywall metal studs or track to mechanical, electrical, plumbing,
sprinkler or any Building system is not permitted.
N. Access
doors must be provided in ceilings and walls as required for access to all
Building equipment and Tenant equipment.
O. All
locking devices must be keyed to the Building Master keying system and
coordinated with the Building Manager.
P. Tenant’s
general contractor shall be responsible to properly patch, seal and firestop
all
penetrations in the slab, core walls, core closets, demising walls and perimeter
walls. All structural fireproofing must be replaced if damaged or
missing.
Q. Tenant
shall not install any outside louver or modify the exterior of the Building
in
any way without Landlord’s prior written approval.
R. All
unused piping, ductwork, conduit, wiring, cabling, equipment, materials and
previously installed work that is no longer being utilized is to be removed
in
its entirety.
S. All
fire
exits shall be kept clear and accessible at all times. Tenant’s general
contractor is to provide fire extinguishers in sufficient quantities and type
required by the size and scope of the Alteration.
T. Tenant
shall not install any equipment in the Building Electric Closets, Telephone
Closets, Mechanical Equipment Rooms, or any Building common or core areas
without prior written approval from Landlord.
U. No
exposed piping of any kind will be permitted.
EXHIBIT
D-1
Page
10
V. All
wood
used in the Alteration is to be “fire-rated”.
W. All
risers, valves, piping equipment, etc. are to be clearly tagged and
labeled.
X. All
work,
which creates fumes or smoke, shall be mechanically exhausted to the outside
of
the Building, and is to be coordinated with Building Management.
Y. Tenant’s
design shall incorporate all necessary sound proofing measures to prevent all
noise or sound from emanating from the demised premises, which in Landlord’s
sole judgment, creates a disturbance or annoyance to other tenants in the
Building.
Z. All
furniture and equipment must be located a minimum of 1’-0” from the face of any
perimeter heating and/or air conditioning enclosure.
| VII. |
MECHANICAL/
ELECTRICAL/ PLUMBING/ FIRE PROTECTION
STANDARDS
|
A. MECHANICAL
STANDARDS
| 1. |
All
mechanical piping, valves, equipment, dampers etc. are to be properly
tagged and labeled.
|
| 2. |
Tenant
shall provide Landlord with two (2) copies of final air-balancing
reports
approved by Tenant’s engineer upon completion of the Alteration. Tenant’s
general contractor shall only use the services of the Building approved
air-balancing contractor to perform such
balancing.
|
| 3. |
Tenant’s
HVAC design shall include return air openings in all full height
drywall
partitions, in sufficient size, location and quantity as required
for
proper return air flow.
|
| 4. |
All
new and existing supply air ductwork is to be properly sealed, insulated,
and pressure tested for leaks.
|
| 5. |
In
Building’s requiring V.A.V. systems, Tenant’s HVAC design shall
incorporate only Building approved variable air volume (V.A.V.) boxes
and
controllers which are compatible with the Building’s B.M.S. system. No
substitutions are permitted. Contact Building Manager for additional
information and equipment
specifications.
|
| 6. |
All
existing V.A.V. boxes that are to be re-used must be re-fitted, to
the
extent not previously installed, with new controllers that are compatible
with the Building’s B.M.S. system.
|
| 7. |
All
V.A.V. boxes that are removed during demolition are not to be reused.
New
building standard V.A.V. boxes, controls and thermostats are
required.
|
EXHIBIT
D-1
Page
11
| 8. |
Tenant
shall be required, at Tenant’s cost and expense, to utilize the services
of Landlord’s contracted B.M.S. vendor or other contractor designated by
Landlord to adjust, test, alter, relocate, add to, or remove any
equipment
connected to the B.M.S. system required by or resulting from the
Alteration.
|
| 9. |
Tenant
shall be responsible for all costs resulting from the maintenance
and
service of all V.A.V. boxes and controllers within the demised premises
for one (1) year after
installation.
|
| 10. |
All
new and existing ductwork that passes through a fire-rated partition
or
wall shall be provided with U.L. or B.S.A. fire/smoke dampers and
access
doors.
|
| 11. |
Flexible
ductwork and connectors are not
permitted.
|
B. ELECTRICAL
/ CLASS “E” STANDARDS
| 1. |
All
electrical risers, panels, boxes and equipment are to be properly
tagged
and labeled.
|
| 2. |
All
electric panels are to be provided with complete, accurate and typed
panel
directories.
|
| 3. |
All
penetrations in or through the slab, core walls or rated partitions
are to
be properly sealed and firestopped.
|
| 4. |
All
masonry core walls, perimeter walls and columns are to be furred-out
to
receive new electrical devices or
equipment.
|
| 5. |
All
low voltage wiring and cable in partitions is to be run in conduit.
Provide conduit stub-up from an approved box to suspended ceiling
above.
|
| 6. |
All
wiring and cable that is run below the slab is to be in conduit.
All
conduit is to be properly supported and run as tight as possible
to the
underside of the slab.
|
| 7. |
All
wiring and cable that is run in Building Common or core areas or
other
tenant’s premises is to be run in
conduit.
|
| 8. |
Tenant
shall coordinate all modifications to the existing security system
serving
the demised premises with the Building Manager and the Building’s security
system vendor.
|
| 9. |
Tenant,
at Tenant’s cost and expense, shall only use the services of Landlord
contracted fire alarm service vendor or other contractor designated
by
Landlord to adjust, test, alter, relocate, service, maintain, add
to, or
remove all equipment or devices connected to the Building’s Class “E”
system.
|
EXHIBIT
D-1
Page
12
| 10. |
The
use of portable, desktop, or other type of space heating devices
or fan
devices, whether electrically operated or otherwise, is strictly
prohibited.
|
| 11. |
All
Tenant Class “E” sub-systems shall be interfaced with the Building’s Class
“E” system at Tenant’s cost and expense. The filing of all Tenant
sub-systems is to be filed by Tenant at Tenant’s cost and
expense.
|
| 12. |
Surface
mounted wire-mold or wire raceways are not
permitted.
|
| 13. |
The
use of extension cords, other than surge suppressor outlets, is not
permitted.
|
C. PLUMBING/FIRE
PROTECTION STANDARDS
| 1. |
All
toilet rooms, pantries with dishwashers, supplemental mechanical
equipment
rooms, kitchens and all other such rooms requiring the use of water
shall
be provided with floor drains. In addition all kitchens and mechanical
equipment rooms are to be provided with membrane waterproofing and
all
supplemental mechanical equipment rooms are to be provided with a
4”
concrete curb around the entire perimeter of the
room.
|
| 2. |
All
electric hot water heaters are to be provided with a drip pan and
relief
valve that is to be piped to a drain approved by
Landlord.
|
| 3. |
All
new and existing hot and cold-water piping is to be properly
insulated.
|
| 4. |
When
connecting new hot and cold water lines to existing risers, Tenant’s
plumbing design shall provide an additional valved outlet of equal
size
and type for future tie-in
capability.
|
| 5. |
All
new plumbing valves and equipment are to be properly tagged and
identified.
|
| 6. |
An
active sprinkler main loop is to be provided around the Building
core, or
between fire stairs, at all times during the
Alteration.
|
| 7. |
All
sprinkler systems are to be hydrostatically tested for a two (2)
hour
minimum at 200 lbs. pressure and are to be witnessed by authorized
Building personnel. Coordinate all testing with Building
Manager.
|
| 8. |
Tenant,
at Tenant’s cost and expense, shall provide and install all auxiliary fire
hose cabinets and/or fire extinguishers throughout the demised premises
in
accordance with the rules and requirements of governmental agencies
having
jurisdiction thereof.
|
EXHIBIT
D-1
Page
13
| VIII. |
TENANT
SUPPLEMENTAL HVAC UNITS
|
A. All
tenant supplemental HVAC units are to be water cooled and tied into the Building
condenser water riser system. Air-cooled supplemental HVAC units or portable
type “spot cooler” units are not permitted. Refer to Diagram 1 (copy attached)
for the Building’s standard installation requirements.
B. Tenant,
at Tenant’s cost and expense shall be responsible for the design, installation,
operation, and maintenance of all supplemental HVAC units, pumps and all related
equipment.
C. All
Tenant supplemental HVAC units are to be provided with condenser water pumps
that are capable of operating independently of the Building’s condenser water
pumps.
D. All
Tenant supplemental HVAC units are to be provided with three (3) way regulating
valves that will allow for the continuous flow of condenser water when Tenant’s
HVAC unit is not operating.
E. All
supplemental HVAC units and pumps are to be properly supported and installed
with vibration isolation springs.
F. All
condenser water piping is to be Type “K” copper tubing and all joints are to be
brazed. Brazing is to be performed after normal business hours.
G. Dielectric
fittings are required when two dissimilar metals are connected. In no event
shall iron fittings, plugs, etc. be used with copper piping.
H. All
condenser water piping is to be pressure tested at 1½ times maximum operating
pressure for a period of two (2) hours. All testing is to be witnessed and
accepted by authorized Building personnel.
I. All
Tenant supplemental HVAC units, pumps and related equipment are to be located
within Tenant’s demised premises only. No equipment will be permitted in any
Building core or common area.
J. Tenant’s
supplemental HVAC system design shall provide one (1) set of 2” additional
condenser water supply and return valves for future tie-in
capability.
K. All
condensate piping is to be insulated.
L. Tenant
shall be responsible for the cost of condenser water make up, and chemical
treatment of condenser water system if a drain down of the Buildings condenser
water system is required by the Alteration.
M. Tenant’s
supplemental HVAC design shall include drip pans with leak detection devices
tied to an audible alarm and monitored 24 hours a day, 7 days a week by the
Tenant and the Tenant’s HVAC service contractor.
EXHIBIT
X-0
Xxxx
00
X. Xxxxxx’s
contractor shall perform a chemical cleaning of the supplemental HVAC condenser
water piping in accordance with the following standard procedures of the
Building:
| 1. |
Contractor
is to use its own circulating pump for each floor or loop that is
to be
cleaned.
|
| 2. |
Fill
system with “fresh city water”, and begin a flush on the system for 1
hour. Note: A drain valve in the loop, preferably at a low point
in the
system, will need to be opened to allow the water to flush to the
drain.
|
| 3. |
After
this initial flush, close drain valve and add Nalco Product CL-658
- this
should be added at a dosage rate of approximately 2 gallons for every
1,000 gallons of system volume. Turn on the circulating pump, and
circulate the cleaning solution for 8 hours. Nalco can be reached
at:
(000) 000-0000.
|
| 4. |
At
the end of this period, shut off the circulating pump, and open the
drain
valve. Also, tie in the line for fresh water make-up and begin to
flush
the system, using city water to bleed system to the drain. Note:
The
initial water out of the drain line will be dirty and soapy. The
flush-out
must continue until 2 conditions are
met:
|
a. The
pH of
the system drops to 8.5 or lower.
b. The
water
is clear, rust-free and contains no suspended material.
| 5. |
Once
the water quality is approved by personnel, valves can be opened
to the
main plant.
|
Coordinate
all work with the Building Manager and the Building’s chemical cleaning
representatives.
O. Buildings
000 X 00xx Xx., 000 0xx Xxx. and 4 Times Square, require Tenant’s HVAC system to
be designed to operate with low temperature condenser water (free cooling).
All
condenser water piping is to be insulated.
EXHIBIT
D-1
Page
15
EXHIBIT
D-1
Page
16
Schedule
A
Indemnification
and Hold Harmless Agreement
To
the
fullest extent permitted by law, _________________________ General Contractor
/
Construction Manager and every tier of Sub-Contractor collectively,
(“Contractor”) shall indemnify and hold harmless The Xxxxx Buildings
Corporation, Royal Realty Corp., and all affiliated and subsidiary limited
partnerships, limited liability companies, and other entities thereof as may
now
or may hereafter exist, including nominees or trusts, and the shareholders,
partners, directors, officers, employees, and agents of any such corporation,
person or entity (collectively, “The Xxxxx Buildings Corporation, et al.”) from
and against any and all loss or damage, claim, demand, suit or action
(collectively, a “Claim”) or judgment for damages on account of or by reason of
bodily injury, including death, damage to property, and from all costs and
expenses incurred on account of any such Claim, including, without limitation,
attorney’s fees and disbursements, caused by or directly or indirectly arising
out of or claimed to have been caused by or to have directly or indirectly
arisen out of, (i) any purchase order (as same may be modified), or (ii) any
work done or performed by “Contractor” or (iii) “Contractor’s” failure to do or
perform any work required to be done, or (iv) the negligence of “Contractor”, or
any of its subcontractors, or any of “Contractor’s” or such subcontractor’s
respective agents, servants or employees, or (v) “Contractor’s” failure to
comply with any applicable law, rule, regulation or permit, and “Contractor”
shall, at it’s own cost and expense, defend any such Claim which may be asserted
or commenced against The Xxxxx Buildings Corporation, et al., by reason thereof
or in connection therewith, and “Contractor” shall pay and satisfy any and all
judgments which may be recovered in any such Claim and defray or reimburse
any
and all expenses, including costs and reasonable attorney’s fees, which may be
incurred in or by reason of such Claim, and shall keep the property of The
Xxxxx
Buildings Corporation, et al., free and unencumbered of any charge or lien
of
any kind.
| SIGN | TITLE | |
| NAME | DATE |
EXHIBIT
E
LIST
OF
APPROVED CONTRACTORS
EXHIBIT
E-1
BUILDING
STANDARDS
Partitions
Partitions
are to be constructed of 2 ½" metal studs extending from floor slab to underside
of slab above with one (1) layer of 5/8" gypsum board on each side. Each layer
of gypsum board is to extend to at least 6” above the hung ceiling. Partitions
are to be provided with sound attenuation blanket.
Doors
& Bucks
Interior
bucks are to be welded 16 gauge steel with flat trim. Doors are to be 7’-10” x
3'-0", flush, fire rated, solid core, stain grade cherry veneer. Perimeter
offices to be furnished with manufactured metal and glass partition and door
system (ACME 150 series or equal).
Hardware
Doors
are
to be hung with 2 pair of ball bearing hinges and are to be fitted with door
bumpers and Schlage D Series hardware with “Athens” design lever handles, dull
chrome finish, latch or lock sets. All locksets are to be keyed to the Building
Master keying system.
Acoustic
Ceilings
24”
x
24”
x ¾” Xxxxxxxxx Ultima #1912 with silhouette 9/16” bolt-slot ¼” reveal system
throughout.
Floor
Covering
Carpeting,
manufactured by Karastan. Offices are to be “Plateau Series”, color to be
selected by Tenant and general area “FiFi Series” color to be selected by
Tenant. Vinyl Composition Tile (VCT) shall be provided in pantries and equipment
rooms. A 4” vinyl base will be provided throughout the premises except as
provided herein for the reception area.
Electric
Lighting:
2' x 4', indirect recessed fixtures, with 2 T-8 32 watt fluorescent lamps with
microperforated mesh lamp shield electronic ballasts, manufactured by Lightolier
or equal. Motion sensor type wall light switches, not less than one per
room.
Power:
110-volt duplex electrical receptacles located in partitions or columns or
in
prefabricated knockouts in perimeter enclosure with not more than 8 outlets
on
each circuit.
EXHIBIT
E-1
Page 2
Page 2
Telephone
Telephone
and signal wiring (provided by Tenant) must be plenum rated and installed above
the accessible ceilings. Provide conduit stub-ups from approved boxes in
partitions to the ceiling. All wiring shall be neatly bundled and secured to
building structure. No wiring shall be secured to ductwork.
Air
Conditioning
The
air
conditioning system is a constant air volume system, which is designed
to:
Maintain
indoor drybulb temperature of 72°F,
plus
or minus 3°F,
when
the outdoor temperature is between 15°F
and
65°F,
during
the heating season.
Maintain
indoor drybulb temperature of 75°F,
plus
or minus 3°F,
and
approximately 50% relative humidity when outside conditions are not more than
89°F
drybulb
and 75°F
wetbulb, during the cooling season.
The
above
noted performance standards are based upon the following conditions of internal
heat and moisture gain:
| a) |
one
person per 100 usable square feet
|
|
b)
|
a
maximum of 3.5 xxxxx per usable square foot for lighting and power
combined.
|
| c) |
the
use of internal shading devices (venetian
blinds)
|
Landlord
shall not be required to meet the above standards if directed otherwise at
anytime by any governmental authority having jurisdiction.
Venetian
Blinds
All
windows shall have 1” wide tapeless venetian blinds, Levolor “Riviera” style in
the Building Standard color. Blinds shall be installed in the existing window
blind pockets.
Painting
All
surfaces normally painted shall be painted in colors selected by Tenant. No
more
than one color per room.
Sprinklers
Sprinkler
heads shall be the concealed type installed in accordance with the codes, rules
and regulations established by the governmental authorities having jurisdiction.
All sprinkler piping shall be concealed above the acoustic ceiling.
EXHIBIT
E-1
Page 3
Page 3
Wall
Covering
Xxxx
Xxxxxx Legacy Type II vinyl wall covering or equal (installed in reception
area
only).
Wood
Base
Prefinished
4” xxxxxx xxxx base (installed in reception area only).
EXHIBIT
F
LETTER
OF CREDIT
| BENEFICIARY: |
DOLP
675 PROPERTIES II LLC
|
| 0000 XXXXXX XX XXX XXXXXXXX |
| XXX XXXX, XXX XXXX 00000 |
IRREVOCABLE
STANDBY LETTER OF CREDIT _________, 200_
Gentlemen:
We
hereby
establish our Irrevocable Standby Letter of Credit Number ________ in favor
of
DOLP 675 PROPERTIES II LLC,
its
successors and assigns (“Landlord”), as Landlord by order and for account of
__________________________ (“Tenant”) for a sum or sums not exceeding in all
________________ 00/100 U.S. Dollars (USD __________) available by your sight
draft(s) drawn on us accompanied by:
Your
statement, purportedly signed by an authorized representative of Landlord,
stating that the Tenant is in default of the terms of the Lease dated _______
__, 20__, between Landlord and Tenant, as the same may be amended or assigned
(the “Lease”);
or,
in
the alternative,
Your
statement, purportedly signed by an authorized representative of Landlord,
stating that a Bankruptcy Event has occurred under the Lease;
or,
in
the alternative,
Your
statement, purportedly signed by an authorized representative of Landlord,
stating that the Tenant under the Lease has not renewed or replaced this Letter
of Credit at least forty five (45) days prior to its stated expiration
date;
or,
in
the alternative,
Your
statement, purportedly signed by an authorized representative of Landlord,
stating that Landlord and Tenant have agreed to voluntarily terminate the
Lease;
or,
in
the alternative,
Your
statement, purportedly signed by an authorized representative of Landlord,
stating that Tenant owes late charges or fees or interest on late payments
to
Landlord pursuant to the Lease.
Partial
Drawing(s) permitted.
This
Letter of Credit is transferrable.
The
term
“Beneficiary” includes any successor by operation of law of the named
beneficiary, including without limitation, any liquidator, rehabilitator,
receiver, or conservator.
Drafts
drawn hereunder must be marked “DRAWN UNDER [__________________ BANK] CREDIT NO.
______________ DATED __________, 20__.”
EXHIBIT
F
Page 2
Page 2
The
Letter of Credit shall be deemed to be automatically renewed, without amendment,
for consecutive periods of one year each unless we send written notice to you
by
certified or registered mail, return receipt requested, not less than sixty
(60)
days next preceding the then expiration date of this Letter of Credit, that
we
elect not to have this Letter of Credit renewed.
In
any
event, this Letter of Credit will not be extended beyond its final Expiry date
of [90 days after the Expiration Date of Lease].
This
Letter of Credit sets forth in full the terms of our undertaking and such
undertaking shall not in any way be modified, amended or amplified by reference
to any document or instrument referred to herein or in which this Letter of
Credit is referred to or to which this Letter of Credit relates, and any such
reference shall not be deemed to incorporate herein by reference any documents
or instrument.
We
engage
with you that your draft(s) drawn hereunder and in compliance with the terms
of
this credit will be duly honored by us on delivery of documents as specified,
if
presented at _____________________________ New York, New York _____, on or
before ______________________.
Except
as
otherwise expressly stated herein, this credit is subject to the uniform customs
and practice for documentary credits, 1993 revision, ICC Publication No.
500.
Very
truly yours,
Authorized
Signature
EXHIBIT
G
SAMPLE
INSURANCE CERTIFICATE
(Immediately
Following)
EXHIBIT
H
CERTIFICATE
HOLDER for 000 Xxxxx Xxxxxx
(a/k/a
000 Xxxx 00xx Xx.)
Royal
Realty Corp., Agent
c/o
The
Xxxxx Organization Inc.
Attn:
Xxxxxx X. Xxxxxxx, Esq.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000-0000
ADDITIONAL
INSUREDS for 000 Xxxxx Xxxxxx
(a/k/a
000 Xxxx 00xx Xx.)
DOLP
675
Properties ɲ
LLC,
Owner, and
Royal
Realty Corp., Agent
c/o
The
Xxxxx Organization Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000-0000
and
Wachovia
Bank, National Association,
as
Master
Servicer on behalf of,
LaSalle
Bank National Association, as Trustee for the
benefit
of the Certificate Holders of,
Commercial
Mortgage Pass-Through Certificates
X.X.
Xxx
000000
Xxxxxxxxx,
XX 00000-0000
EXHIBIT
I
FORM
AGREEMENT RE: LICENSING OF SPACE
DOLP
675
PROPERTIES II LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
______________,
20__
BY
HAND DELIVERY
Lev
Pharmaceuticals, Inc.
____________________
____________________
Re: Lease
dated ________ ___, 200_, (the “Lease”),
between DOLP 675 Properties II LLC, as Landlord, and Lev Pharmaceuticals, Inc.,
as Tenant
Demised
Premises: Room 2200-15
Building:
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Gentlemen:
Reference
is hereby made to the Lease and your letter dated _________, 20__.
In
connection therewith, please be advised that the temporary occupancy of a
portion of the Demised Premises (the “Floor Space”) as described in your letter,
and the use of desk space therein, by _______________________
(“______________”), subject to and expressly conditioned upon the following
terms:
1. Tenant
represents and warrants that ______________’s temporary occupancy of, and use of
desk space in, the Floor Space is subject to all of the terms, covenants,
conditions and provisions of the Lease, including but not limited to the
conditions listed in Sections 8.1(C)(2), 8.1(C)(3), 8.1(C)(6) and/or
8.8;
2. Landlord
shall not be responsible for, nor shall Landlord bear, any liability, cost
or
expense incurred by or on behalf of Tenant or _________________ in connection
with, arising out of or resulting from _________________’s move into, occupancy
of, and/or move out of the Floor Space, or the preparation thereof for
_____________’s occupancy and use, and Tenant hereby agrees to indemnify and
hold Landlord harmless from and against any liability, cost or expense of any
nature whatsoever relating to such moves and/or occupancy;
3. Tenant
further agrees to bear responsibility for the cost of any miscellaneous “charges
to Tenant” for Building service calls which may be incurred by or on behalf of
________________ in the Floor Space; and
4. No
such
occupancy shall constitute or be deemed to create a landlord/tenant relationship
between Landlord and ______________________.
Would
you
kindly evidence _________________’s agreement to the foregoing terms and
conditions by signing one copy of this letter where indicated below and
returning the same to the undersigned..
Very
truly yours,
|
DOLP
675 PROPERTIES II LLC, a Delaware limited liability
company
|
| By: |
DOLP
675 Properties LLC, a New York limited liability company, its Sole
Member
|
| By: |
The
Xxxxx Organization L.P., a Delaware limited partnership, its Sole
Member
|
| By: |
The
Xxxxx Group LLC, a New York limited liability company, its General
Partner
|
| By: |
The
Xxxxx Organization Inc., a New York corporation, its
Manager
|
|
By:________________________
Xxxxxxx Xxxxx,
President
|
| By: |
The
Xxxxx Properties Trust Inc.,
a Maryland corporation, its General
Partner
|
|
By:____________________________
Xxxxxxx Xxxxx,
President
|
|
THE
FOREGOING TERMS AND CONDITIONS
ARE
AGREED AND CONSENTED TO:
|
|
|
LEV
PHARMACEUTICALS, INC.
|
|
|
By:____________________________
|
|
|
_______________________________
|
|
|
By:_____________________________
|
|
