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Exhibit 10.41
PROGRESS PARTNERS
LANDLORD
and
XXXXX ASSOCIATES, INC.
TENANT
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AMENDED AND RESTATED LEASE
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DEMISED PREMISES:
Entire Rentable Area
of the 6th and 7th Floors
and a Portion of the Rentable Area of the 0xx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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TABLE OF CONTENTS
ARTICLE PAGE
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1 Demised Premises
2 Term, Preparation and Possession of Demised Premises
3 Use
4 Fixed Rent
5 Taxes
6 Operating Expenses
7 Electricity
8 Landlord's Property, Tenant's Property
9 Repairs, Alterations and Liens
10 Compliance with Laws
11 Assignment, Subletting, Mortgaging
12 Insurance; Property Loss; Reimbursement
13 Damage or Destruction
14 Limitation of Landlord's Liability, Indemnification
15 Moving of Heavy Equipment, Floor Load, Noise, Window
Cleaning
16 Condemnation
17 Conditions of Limitation
18 Re-Entry by Landlord, Waiver of Right of Redemption
19 Landlord's Remedies, Damages
20 Landlord's Right to Perform Tenant's Obligations
21 Services and Equipment
22 Access, Right to Change Public Portions of Building
23 Invalidity of Any Provision
24 Broker
25 Subordination
26 Excavation
27 Legal Proceedings; Waiver of Jury Trial
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28 Estoppel Certificate
29 Rules and Regulations
30 Surrender of Demised Premises
31 Deferred Collections
32 Notices
33 No Waiver; Entire Agreement
34 Letter of Credit
35 Captions
36 Name of Building
37 Inability to Perform
38 Covenant of Quiet Enjoyment
39 No Representation by Landlord
40 Definition of Landlord
41 Landlord's Work
42 Tenant's Work
43 Landlord's Contribution
44 Successors and Assigns
45 Tenant's Eighth Floor Expansion Rights
46 Miscellaneous
47 Execution and Delivery of Lease
Exhibit A Floor Plan
Exhibit B Existing Kroll Leases
Exhibit C Contractors
Exhibit D Cleaning Schedule
Exhibit E Form of Subordination of Mortgage
Exhibit F Rules and Regulations
Exhibit G Expansion Space Floor Plan
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LEASE made as of the _____ day of December, 1992, between PROGRESS
PARTNERS, a New York general partnership, CIO JMB Properties Company, having an
address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to
as the "Landlord") and KROLL ASSOCIATES, INC., a Delaware corporation, having an
address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein referred to as the
"Tenant").
WITNESSETH
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEMISED PREMISES
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Section 1.01. Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord, upon and subject to the terms, covenants and conditions of
this Lease, the premises described in Section 1.02 hereof in the building known
as and by the street address 000 Xxxxx Xxxxxx (the "Building") located in the
Borough of Manhattan, City, County and State of New York on the land ("Land")
upon which the Building is situated.
Section 1.02. The premises ("Demised Premises") hereby leased to
Tenant consist of the entire rentable area of the sixth (6th) and seventh (7th)
floors and a portion of the rentable area of the eighth (8th) floor of the
Building, being substantially as indicated by hatching on the floor plan annexed
hereto as Exhibit "A" and made a part hereof. Tenant shall have the right to
use, for purposes of access to and egress from the Demised Premises, in common
with others, the lobbies, elevators and other public portions of the Building.
ARTICLE 2
TERM. PREPARATION AND POSSESSION OF DEMISED PREMISES
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Section 2.01. The term of this Lease shall commence on January 1,
1993 (the "Commencement Date") and shall expire at noon on December 31, 2007
(the "Expiration Date") or on such earlier date, if any, on which the term of
this Lease shall be sooner terminated pursuant to any of the conditions or
provisions of this Lease or pursuant to law.
Section 2.02. The taking possession of the Demised Premises shall be
deemed an acceptance of the same by Tenant and shall be deemed substantial
compliance by Landlord with Landlord's obligations pursuant to this Lease to
prepare the Demised Premises for Tenant's occupancy, except with respect to
latent defects.
Section 2.03. Tenant shall take possession of the Demised Premises
"as is", and Landlord shall have no obligation to alter, improve, decorate or
otherwise prepare the Demised Premises for Tenant's occupancy, except that
Landlord shall
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perform Landlord's Work (as defined in Article 41). Tenant, at its sole cost and
expense (subject to Article 43 hereof) and in accordance with Article 9 and
Article 42, may make such Tenant's Changes (as hereinafter defined) in the
Demised Premises as Tenant may consider necessary or desirable to prepare the
same for Tenant's occupancy. Tenant acknowledges that Landlord shall have no
obligation to construct demising walls for eighth (8th) floor space of the
Demised Premises, and Tenant agrees to construct such demising walls and doors
as shown on Exhibit "A" attached hereto and made a part hereof ("Tenant's
Demising Work") as part of Tenant's Changes in accordance with this Lease on or
before April 1, 1993. Landlord agrees to reimburse Tenant for the cost of
constructing such demising wall and doors as shown on Exhibit "A" attached
hereto and made a part hereof up to an amount not to exceed $11,400.00 within
thirty (30) days following delivery to Landlord of reasonable evidence of such
cost and completion of such work.
Section 2.04. Tenant acknowledges that Tenant presently is, and shall
remain, in possession and occupancy of the Demised Premises pursuant to the
terms of the leases and agreements (the "Existing Kroll Leases") described on
Exhibit B attached hereto and made a part hereof up to the Commencement Date,
and Tenant agrees to accept possession of the Demised Premises subject to the
occupancy and right of possession of any existing subtenants or occupants.
Section 2.05. Landlord and Tenant agree that this Lease entirely
amends, restates and supersedes the Existing Kroll Leases and any other prior
agreements or understandings, oral or written, with respect to the terms and
conditions of Tenant's use and occupancy of the Demised Premises.
ARTICLE 3
Section 3.01. Tenant shall use and occupy the Demised Premises for
executive and general business office purposes and for no other purpose.
Landlord represents that the use of the Demised Premises permitted by this
Section 3.01 does not violate the present Certificate of Occupancy of the
Building.
Section 3.02. If any governmental license or permit, other than a
Certificate of Occupancy for the entire Building, shall be required for the
proper and lawful conduct of Tenant's business in the Demised Premises or any
part thereof which arises from Tenant's particular use of the Demised Premises
and not merely for the uses set forth under Section 3.01, Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
furnish a photostatic copy thereof to Landlord upon Landlord's request therefor.
Tenant shall at all times comply with the terms and conditions of each such
license or permit.
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Section 3.03. (a) Any provision hereof to the contrary
notwithstanding, Tenant shall not use the Demised Premises or any part thereof
or permit the Demised Premises or any part thereof to be used (i) for a banking,
trust company, depository, guarantee or safe deposit business, (ii) as a savings
bank, or as a savings and loan association or as loan company, (iii) for the
sale of travelers' checks, money orders, drafts, foreign exchange or letters of
credit or for the receipt of money for transmission, (iv) as a stock broker's or
dealer's office or for the underwriting of securities, other than as executive
offices for tenants conducting such types of businesses, (v) as a restaurant or
bar or for the sale of confectionery, soda, beverages, sandwiches, ice cream or
baked goods or for the preparation, dispensing or consumption of food or
beverages in any manner whatsoever, except for a pantry for the preparation of
coffee or tea, except that this section shall not preclude the use of a
dishwasher, refrigerator, sink, vending machines or microwave in Tenant's
designated "dining area", if any, for use by Tenant's employees only, (vi) as a
school, (vii) by any agency or department of the United States Government or the
City or State of New York or any foreign government or instrumentality, (viii)
for public stenography, (ix) for an employment or placement agency, except that
this shall not preclude the training of Tenant's employees, or (x) for the
business of photographic, multilith or multigraph reproductions or offset
printing.
(b) Tenant shall not suffer or permit the Demised Premises or
any part thereof to be used in any manner, or anything to be done therein, or
suffer or permit anything to be brought into or kept therein, which would in
Landlord's reasonable judgment (i) violate any of the provisions of any Superior
Lease (as hereinafter defined) or Superior Mortgage (as hereinafter defined),
the Certificate of Occupancy for the Demised Premises or the Building or the
requirements of public authorities, (ii) make void or voidable any fire or
liability insurance policy then in force with respect to the Building, (iii)
make unobtainable from reputable insurance companies authorized to do business
in New York State any fire insurance with extended coverage, or liability,
elevator, boiler or other insurance required to be furnished by Landlord under
the terms of any Superior Lease or Superior Mortgage at standard rates (iv)
cause or in Landlord's reasonable opinion be likely to cause physical damage to
the Building or any part thereof, (v) constitute a public or private nuisance,
(vi) impair, in the reasonable opinion of Landlord, the appearance, character or
reputation of the Building, (vii) discharge objectionable fumes, vapors or odors
into the Building air conditioning system or into the Building flues or vents
not designed to receive them or otherwise in such manner as may offend other
occupants, (viii) interfere with the normal operation of the heating,
air-conditioning, ventilating, plumbing or other mechanical or electrical
systems of the Building or the elevators installed
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therein, (ix) impair or interfere with the use of any of the other areas of the
Building by, or occasion discomfort, annoyance or inconvenience to, Landlord or
any of the other tenants or occupants of the Building, any such impairment or
interference to be in the reasonable judgment of Landlord, or, in Landlord's
reasonable judgment, increase the pedestrian traffic in and out of the Demised
Premises or the Building above an ordinary level. The foregoing shall not
preclude the use of a residential-type dishwasher (provided Tenant supplies its
own hot water to such dishwasher), hot plates, refrigerators, sinks, microwave
ovens and vending machines in Tenant's designated "dining area" (provided the
same do not allow cooking or require any venting or grease traps), use of data
processing, computer equipment, office automation equipment or communications
equipment, or the installation and use of an exercise room for Tenant's
personnel, provided that the location of Tenant's dining area and exercise room
are either as in existence on the date hereof or are shown on Tenant's Plans (as
defined in Article 42) and further provided that such dining area, data
processing, computer equipment, office automation equipment, communications
equipment and exercise room are installed and operated in accordance with this
Lease and in compliance with all applicable laws, codes and governmental
regulations.
Section 3.04. Landlord agrees that subject to Landlord's approval as
to location and method of installation, Tenant may from time to time at its sole
cost and expense, install and maintain one (1) staircase connecting the seventh
(7th) and eighth (8th) floors of the Demised Premises, and wires and conduits in
and about the Building for Tenant's computer equipment, office automation
equipment, telephone and other communications systems. Such installations shall
comply with all applicable legal requirements, and shall be installed and
maintained by Tenant in accordance with all applicable provisions of this Lease.
ARTICLE 4
FIXED RENT
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Section 4.01. Throughout the term of this Lease, Tenant shall pay
fixed minimum rent ("Fixed Rent") in lawful money of the United States at an
annual rate of: (i) ONE MILLION THREE HUNDRED THOUSAND EIGHT HUNDRED TEN DOLLARS
AND 00/XX ($1,300,810.00) in equal monthly installments of $108,400.83 for the
period beginning on the Commencement Date through and including December 31,
1997 (the "First Period"); (ii) ONE MILLION FOUR HUNDRED FORTY NINE THOUSAND
FOUR HUNDRED SEVENTY- FOUR DOLLARS AND 00/XX ($1,449,474.00) payable in equal
monthly installments of $120,789.50 for the period beginning on January 1, 1998
through and including December 31, 2002 (the "Second Period"); and (iii) ONE
MILLION FIVE HUNDRED NINETY-EIGHT ThOUSAND ONE HUNDRED THIRTY-EIGHT DOLLARS AND
00/XX ($1,598,138.00) payable in equal monthly installments of
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$133,178.16 for the period beginning on January 1, 2003 through and including
the Expiration Date (the "Final Period"), in advance, on the first day of each
and every calendar month during the term of this Lease without any set off or
deduction, except as expressly provided for herein.
Section 4.02. All costs and expenses (other than Fixed Rent) which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall be
deemed and constitute additional rent hereunder, and in the event of nonpayment,
Landlord shall have all the rights and remedies with respect thereto as is
herein and at law provided for in case of nonpayment of Fixed Rent.
Section 4.03. All Fixed Rent, additional rent and adjustments of
Fixed Rent, as in this Lease provided, shall be paid promptly when due, without
notice or demand therefor, and without any abatement, deduction or set-off for
any reason whatsoever, except as may be expressly provided in this Lease, and
shall be paid in lawful money of the United States to Landlord at its office
address set forth on the first page of this Lease or such other place as
Landlord may designate by notice to Tenant, or (b) to Landlord's agent or
designee at such place as Landlord may designate by notice to Tenant. Any checks
tendered by Tenant in payment of Fixed Rent, additional rent and adjustments of
Fixed Rent, shall be either (i) a teller's or cashier's or official bank check
of a bank which is a member of the New York Clearing House Association and shall
be payable to the order of Landlord (or Landlord's designee) or (ii) Tenant's
good, unendorsed check drawn on such a bank and payable to the order of Landlord
(or Landlord's designee).
ARTICLE 5
TAXES
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Section 5.01. In addition to the Fixed Rent hereinbefore reserved,
Tenant covenants and agrees to pay to Landlord, as additional rent, sums
computed in accordance with the following sections hereof.
Section 5.02. For the purposes of this Article and other provisions
of this Lease:
(a) The term "Taxes" shall mean all real estate taxes,
assessments, special assessments, water and sewer rents, governmental levies,
county taxes or any other governmental charge, general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any and every kind or nature
whatsoever, which are or may be assessed or imposed upon the Land, the Building
and the sidewalks, plazas, streets and alleys in front of or adjacent thereto,
and any rights or interests appurtenant thereto under the laws of the United
States, the State of New York or any political subdivision thereof or by the
City of New York, or any political subdivision thereof. Except as permitted
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pursuant to the following sentence, the term "Taxes" shall not include any
franchise, income, transit, profit, capital stock or transfer tax imposed on
Landlord. If, due to a future change in the method of taxation or in the taxing
authority, a franchise, income, transit, profit or other tax or governmental
imposition, however designated (including without limitation any tax, excise or
fee, measured by or payable with respect to any rents, licenses or other charges
received by Landlord and levied against Landlord and/or the Land and/or
Building) shall be levied against Landlord and/or the Land and/or the Building
in substitution, in whole or in part, or as an addition to or in lieu of any
Taxes then such franchise, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of the term
"Taxes" for the purposes hereof, but only to the extent the same would be
imposed on Landlord if the Land and the Building were the sole property owned by
Landlord and the operation thereof were the sole business in which Landlord was
engaged.
(b) The term "Base Tax Year" shall mean the twelve (12) month
fiscal period commencing on July 1, 1993 and ending June 30, 1994.
(c) The term "Tax Year" shall mean each twelve (12) month fiscal
period commencing on July 1 and ending on June 30 following the Base Tax Year,
any portion of which fiscal period occurs during the term of this Lease. If the
real estate tax fiscal year of the City of New York shall be changed during the
term hereof, then for the purpose of making the computation pursuant to Section
5.03 hereof a proportionate part of the Taxes for any such real estate tax
fiscal year, any part of which shall occur during the particular Tax Year for
which the computation is being made pursuant to Section 5.03 hereof, shall be
included in the Taxes for such particular Tax Years apportioned on the basis of
the number of days in any such real estate tax fiscal year occurring during such
particular Tax Year.
(d) The term "Tenant's Proportionate Tax Share" shall mean
7.22%.
Section 5.03. Tenant shall pay to Landlord, as additional rent
hereunder, an amount (the "Tax Payment") equal to Tenant's Proportionate Tax
Share of the amount, if any, by which the Taxes for any Tax Year, any part of
which shall occur during the term of this Lease, shall exceed the Taxes payable
for the Base Tax Year, whether such increase results from a higher Tax rate or
an increase in the assessed valuation of the Land or the Building, or both, or
from any other cause or reason whatsoever. A copy of the tax xxxx of The City of
New York or other taxing authority imposing Taxes on the Land or the Building
shall be sufficient evidence of the amount of Taxes. Notwithstanding the fact
that the aforesaid additional rent is measured by Taxes, such amount is
additional rent and shall be paid by Tenant as
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provided herein regardless of the fact that Tenant may be exempt, in whole or in
part, from the payment of any Taxes by reason of Tenants's diplomatic status or
for any other reason whatsoever.
Section 5.04. With respect to each Tax Year occurring in whole or in
part during the term of this Lease, Tenant shall pay to Landlord the Tax
Payment, in installments in the same manner that Taxes for such Tax Year are due
and payable by Landlord to (a) the City of New York or other applicable
governmental authority or (b) the holder of any mortgage or ground lease
affecting the Land and/or the Building as part of a monthly escrow or otherwise.
Landlord agrees to pay Taxes in the maximum number of installments permitted by
law without incurring interest, penalty or late charges. Tenant shall pay each
such installment within fifteen (15) days after the rendering of a written
statement ("Landlord's Tax Statement") therefor by Landlord to Tenant,
accompanied by the relevant tax bills (or if a tax xxxx is not issued or is
otherwise not available, other reasonable evidence of the amount of Taxes which
are the subject matter of such statement), which Landlord's Tax Statement shall
only be rendered by Landlord so as to require Tenant's Tax Payment to be paid by
Tenant not more than thirty (30) days prior to the date such installment of
Taxes first becomes due. Landlord's Tax Statement shall set forth in reasonable
detail the computation of Tenant's Tax Payment of the particular installment(s)
being billed. If there shall be any increase or decrease in the Taxes for any
Tax Year, whether during or after such Tax Year, the Tax Payment for such Tax
Year shall be appropriately adjusted and paid or refunded, as the case may be.
Tenant shall pay the amount of any deficiency within fifteen (15) days after
demand therefor and Landlord shall credit the amount of any overpayment against
the next installments of Fixed Rent and Additional Charges that thereafter
become due. Any adjustment outstanding at or following the end of the term of
this Lease shall be paid to Tenant within thirty (30) days after the taxing
authority sets the tax rates for such Tax Year (or, if Landlord obtains a
reduction in Taxes as provided for in Section 5.05 below, within thirty (30)
days after receipt of payment or credit on account of such reduction).
Section 5.05. Only Landlord shall be eligible to institute tax
reduction or other proceedings to reduce the assessed valuation of the Land or
the Building. Should Landlord be successful in any such reduction proceedings
and obtain a rebate for any Tax Year for which Tenant has paid installments of
the Tax Payment, Landlord, after deducting the reasonable expenses incurred in
obtaining such rebate including, without limitation, attorneys' fees, court, or
other administrative costs and disbursements, shall credit Tenant's
Proportionate Tax Share of such rebate against the next monthly installments of
the Fixed Rent payable under this Lease.
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ARTICLE 6
OPERATING EXPENSES
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Section 6.01. In addition to the annual Fixed Rent, Tenant covenants
and agrees to pay, as additional rent, sums computed in accordance with the
following sections hereof.
Section 6.02. For the purposes of this Article 6 and other provisions
of this Lease:
(a) The term "Operating Expenses" shall mean all costs and
expenses paid or incurred by Landlord or on Landlord's behalf which are properly
allocable to the repair, maintenance and operation of the Building, the Land and
any plazas, sidewalks, curbs and appurtenances thereto, including, without
limitation, the following items (which items are illustrative of items to be
included in Operating Expenses):
(1) "Labor Costs" (as such term is hereinafter defined) for
the services of the following classes of persons performing services required in
connection with the operation, repair and maintenance of the Land or the
Building to the extent the costs incurred for such personnel are incurred for
work performed in connection with the Building:
(i) the building superintendent, concierge(s), assistant
concierge(s) and/or manager(s), his or their assistants
and the clerical staff attached to his or their offices;
(ii) elevator operators, floor directors and assistant floor
directors;
(iii) window cleaners and miscellaneous handymen;
(iv) porters, cleaners and janitors employed in and about the
Building for the performance of services and for which
services Landlord is not specifically reimbursed by any
tenant;
(v) all security personnel, including without limitation,
watchmen, caretakers and other persons engaged in
patrolling and protecting the Land, Building, its plazas
and sidewalks;
(vi) carpenters, engineers, firemen, mechanics, electricians
and plumbers engaged in the operation, repair and
maintenance of any part of the Building its plazas,
sidewalks, curbs and appurtenances, and the heating,
air-conditioning, ventilating, plumbing, electrical,
elevator and other systems of the Building;
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(vii) personnel engaged in supervision of any of the persons
mentioned above (other than officers or executives of
Landlord, unless they actually perform work with respect
to the Building ordinarily performed by a third person);
The term "Labor Costs" shall mean, with respect to each calendar
year, all expenses incurred by Landlord or on Landlord's behalf which shall be
related to employment of personnel, including without limitation amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and other similar taxes, Workers' Compensation
insurance, liability benefits, pensions, hospitalization, retirement plans and
insurance (including, without limitation, group life and disability), uniforms
and working clothes and the cleaning thereof, and expenses imposed on or on
behalf of Landlord pursuant to any collective bargaining agreement relating to
such employees, which salaries and other benefits shall be comparable to those
of similar employees servicing first-class office buildings in the Borough of
Manhattan comparable to the Building. With respect to employees who are not
employed on a full-time basis with respect to the Building, a prorata portion of
expenses allocable to the time any such employee is employed with respect to the
Building shall be included in Labor Costs.
(2) The cost of (including, without limitation, any rental
cost of) materials and supplies used in the operation, cleaning, safety,
security, repair and maintenance of the Building, its plazas, sidewalks, curbs
and appurtenances, including any sales and other taxes thereon, except if done
in other tenant space in the Building;
(3) The depreciation for, or the rental cost or value
(including applicable sales taxes) of, hand tools and other movable equipment
used in the operation, cleaning, safety, security, repair or maintenance of the
Building, its plazas, sidewalks, curbs and appurtenances;
(4) Reasonable legal, accounting and other professional fees
incurred in connection with the operation of the Land or the Building;
(5) Amounts charged to Landlord by independent contractors
for services, materials and supplies furnished in connection with the operation,
repair and maintenance of any part of the Building not occupied by tenants, its
plazas, sidewalks, curbs and appurtenances, including the heating,
air-conditioning, ventilating, plumbing, electrical, elevator, safety and other
systems of the Building;
(6) The cost of all charges for window cleaning and other
cleaning, janitorial, security and other services, in
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and about the common areas of the Building, its plazas, sidewalks, curbs and
appurtenances;
(7) Premiums paid by Landlord for rent, casualty, boiler,
sprinkler, plate-glass, liability and fidelity insurance with respect to the
Land or Building, its plazas, sidewalks, cu?bs and appurtenances, and any other
insurance Landlord maintains or is required to maintain with regard to the Land
or the Building or the maintenance or operation thereof to the extent such
insurance is generally carried by prudent owners of first-class office buildings
in the Borough of Manhattan comparable to the Building;
(8) Costs (including all applicable taxes) for electricity
(as measured by the Building's dedicated electric meters and evaluated under the
same rate classification and frequency that Landlord is charged by the public
utility furnishing electricity to the Building), steam, telephone, and other
utilities for the portions of the Land and the Building not leased and occupied
by tenants in the Building, and for utilities and electricity (so measured and
evaluated) consumed in connection with the operation of the heating, ventilating
and air conditioning equipment servicing the Building, including the tenant
portions thereof.
(9) Water charges and sewer rents or charges to the extent
not specifically reimbursable by tenants of the Building;
(10) The cost of painting and otherwise decorating any
non-tenant areas of the Building, its plazas and sidewalks;
(11) Holiday decorations for the lobby and other public
portions of the Building, its plazas and sidewalks;
(12) Dues, fees and contributions paid to civic
organizations and associations representing Landlord, or of which Landlord is a
member, in the City of New York;
(13) Franchise, license and similar fees and charges paid by
Landlord to any governmental agency for the privilege of owning, leasing,
operating, maintaining or servicing the Building or any of its equipment,
property or appurtenances (except as otherwise provided in Section 5.02 hereof
and which are otherwise imposed on or measured by the income or profits of
Landlord);
(14) The cost of exterior and interior landscaping of
non-tenant areas of the Land, the Building, its plazas and sidewalks;
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(15) The cost of uniforms, work clothes and dry cleaning for
personnel of the Building;
(16) The cost or value, or the cost or value of the rental,
together with the cost of installation of any Building security or other system
used in connection with life or property protection installed after the Base
Year (including the cost, or the cost or value of the rental, of all machinery,
electronic systems and other equipment comprising any part thereof), as well as
the cost of the operation and repair of any such system in operation during the
Base Year; provided, however, that to the extent such costs are capitalized
under generally accepted accounting principles, such costs shall be amortized on
a straight line basis, together with interest at an annual rate (the "Prime
Rate") equal to the prime interest rate announced from time to time by Citibank,
N.A. (or its successor), over the useful life of such installation and
equipment;
(17) Whether or not capitalized under generally accepted
accounting principles, costs for alterations and improvements to the Building
made after the Base Year by reason of the laws and requirements of any public
authorities or the requirements of insurance bodies or Landlord's insurer;
provided, however, that to the extent such costs are capitalized under generally
accepted accounting principles, such costs shall be amortized on a straight line
basis, together with interest at the Prime Rate, over the useful life of such
alteration and improvement;
(18) Management fees which are not in excess of the then
prevailing rates for management fees of other first class office buildings
comparable to the Building in the vicinity of the Building and incurred for the
performance of comparable functions, or, if no managing agent is employed by
Landlord, a sum in lieu thereof which is not in excess of the then prevailing
rates for management fees of other first class office buildings comparable to
the Building in the vicinity of the Building, and incurred for the performance
of comparable functions;
(19) Whether or not capitalized under generally accepted
accounting principles, the cost of improvements, equipment or machinery
installed after the Base Year for the purpose of reducing energy consumption or
reducing other Operating Expenses; provided, however that (a) to the extent such
costs are capitalized under generally accepted accounting principles, such costs
shall be amortized on a straight line basis, together with interest at the Prime
Rate, over the useful life of such improvements, equipment or machinery, and (b)
such amortized cost shall not exceed the amount of savings realized in such
Operating Expenses as reasonably estimated by Landlord for such Operating Years;
and
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(20) All other charges properly allocable to the repair,
operation or maintenance of the Building in accordance with real estate
accounting practices customarily used in New York City.
(b) The following items are to be excluded from Operating Expenses:
(1) Labor Costs in respect of officers and executives of
Landlord, unless for work actually performed in or about the Building ordinarily
done by a third person, and then only at compensation no higher than that which
would have been paid to such third person;
(2) Legal or other fees, leasing commissions, advertising
expenses, promotional expenses and other costs incurred in leasing or attempting
to lease any portion of the Building or in connection with tenant disputes;
(3) Any insurance premium to the extent that Landlord is
specifically entitled to be reimbursed therefor by Tenant pursuant to this Lease
(other than pursuant to this Article) or by any other tenant or other occupant
of the Building pursuant to its lease (other than pursuant to an operating
expenses escalation clause contained therein);
(4) The cost of any items for which Landlord is reimbursed
by insurance or otherwise compensated, including reimbursement by any tenant or
through eminent domain;
(5) The cost of any alterations, additions, changes,
replacements, improvements and repairs and other items which are made in order
to prepare space for occupancy by a new tenant or for services or work performed
by Landlord for any tenants for which those tenants are billed;
(6) The cost of electricity furnished to the Demised
Premises or any other space in the Building leased to tenants and for which
tenants are specifically billed in accordance with the terms of their leases;
(7) All Taxes;
(8) Refinancing costs;
(9) Accounting fees, other than for ordinary and customary
Building accounting services;
(10) Amounts billed to Tenant or other tenants for any
services furnished to Tenant or such other tenants by Landlord for which a
separate charge is made, including overtime a!r conditioning or heating, or
which is attributable to any retail space in the Building payable by the retail
tenants;
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(11) Depreciation of the Building;
(12) Mortgage debt service and costs of financing of any
kind;
(13) Rent or other charges under any Superior Lease;
(14) Non-arms-length payments to entities affiliated with
Landlord but only to the extent such payments exceed payments which would have
been reasonably made to entities not affiliated with Landlord;
(15) Legal fees and other transactional expenses incurred
with respect to any financing or transfer of Landlord's interest in the
Building;
(16) Except as expressly provided for in Sections
6.02(a)(3), (16), (17) and (19), expenses of any kind or nature whatsoever
relating to capital improvements to the Building or any part thereof which are
capitalized under generally accepted accounting principles;
(17) The cost of constructing additional floors to the
Building;
(18) The cost of any work or service performed for any
tenant of the building (other than Tenant) to a materially greater extent or in
a materially more favorable manner than that furnished generally to the tenants
and other occupants (including Tenant); and
(19) The cost of any repairs or replacements made to the
Building as a result of a casualty in excess of an amount equal to a
commercially reasonable casualty insurance deductible.
In no event for any period shall any item of Taxes or Operating
Expenses be included in more than one category in determining increases pursuant
to Articles 5 and 6.
(c) The cost of any item which was included in Operating Expenses for
the Base Year and which is no longer being incurred by Landlord by reason of the
installation of a labor saving device or other capital improvement shall be
deleted from Operating Expenses for the Base Year in connection with the
calculation of the Operating Payment for all Operating Years from and after the
Operating Year in which such installation occurs.
(d) If during all or part of any Operating Year, Landlord shall not
furnish any particular item(s) of work or service (which would otherwise
constitute an Operating Expense hereunder) to portions of the Building due to
the fact that (i) such portions are not occupied or leased, (ii) such item of
work
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or service is not required or desired by the tenant of such portion, (iii) such
tenant is itself obtaining and providing such item of work or service or (iv)
for any other reason, then, for the purposes of computing Operating Expenses,
the amount for such item and for such period shall be deemed to be increased by
an amount equal to the additional costs and expenses of furnishing such item of
work or services to such portion of the Building or to such tenant.
(e) The term "Operating Year" shall mean each calendar year following
the Base Operating Year.
(f) The term "Operating Statement" shall mean a written statement
prepared by Landlord or its agent, setting forth Landlord's computation of the
sum payable by Tenant under this Article for a specified Operating Year.
(g) The term "Base Operating Year" shall mean the 1993 calendar year.
(h) The term "Tenant's Proportionate Operating Share" shall Section
6.03. For each Operating Year, any part of which shall occur during the term of
this Lease, Tenant shall pay an amount (the "Operating Payment") equal to
Tenant's Proportionate Operating Share of the amount, if any, by which the
Operating Expenses for such Operating Year shall exceed the Operating Expenses
for the Base Operating Year, provided, however, that if the Commencement Date of
the term of this Lease shall occur other than on the first day of an Operating
Year or if the term of this Lease shall expire or be sooner terminated on other
than the last day of an Operating Year, then the Operating Payment in respect
thereof shall be prorated to correspond to that portion of such Operating Year
occurring within the term of this Lease.
Section 6.04. At any time during each Operating Year, Landlord may
furnish to Tenant a written statement (an "Estimate Statement") setting forth
Landlord's estimate of the Operating Payment for such Operating Year (the
"Estimated Payment"). Tenant shall pay to Landlord on the first day of each
month during each Operating Year an amount equal to one twelfth (1/12th) of the
Estimated Payment. The Estimated Payment, for each Operating Year following the
first Operating Year, shall not exceed one hundred ten (110%) percent of the
Operating Payment for the previous Operating Year provided, however, that such
limitation shall not apply to the extent Landlord can identify increases in
Operating Expenses in excess of such 10% limitation. If Landlord furnishes an
Estimate Statement for an Operating Year subsequent to the commencement thereof,
then (i) until the first day of the month following the month in which the
Estimate Statement is furnished to Tenant, Tenant shall continue to pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord with respect to the next previous Operating Year,
(ii) promptly after the Estimate
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Statement is furnished to Tenant, Landlord shall give notice to Tenant stating
whether the amount previously paid by Tenant to Landlord for the current
Operating Year was greater or less than the installment of the Estimated Payment
to be paid for the current Operating Year, and (a) if there shall be a
deficiency, Tenant shall pay the amount thereof within fifteen (15) days after
demand therefor, or (b) if there shall have been an overpayment, Landlord shall
credit the amount thereof against the next monthly installments of the Fixed
Rent payable under this Lease; and (iii) on the first day of the month following
the month in which the Estimate Statement is furnished to Tenant, and monthly
thereafter throughout the remainder of the Operating Year, Tenant shall pay to
Landlord an amount equal to one-twelfth (1/12th) of the Estimated Payment shown
on the Estimate Statement. Landlord may, not more than twice during each
Operating Year, furnish to Tenant a revised Estimate Statement; if a revised
Estimate Statement is furnished to Tenant, the Estimated Payment for such
Operating Year shall be adjusted in the same manner as provided in the preceding
sentence.
Section 6.05. At any time during or within the four month period
following each Operating Year, Landlord shall furnish to Tenant an annual
statement (the "Annual Statement"), certified as accurate by Landlord or
Landlord's managing agent, for such Operating Year, provided, however, that the
failure to provide the Annual Statement shall in no way be construed as a waiver
of Landlord's rights pursuant to this Article. If the Annual Statement shows
that the Estimated Payment (or other payments) for such Operating Year exceed
the Operating Payment which should have been paid for Operating Year, Landlord
shall credit the amount of such excess against the next monthly installment of
Fixed Rent payable under this Lease; provided, however, if the amount of such
overpayment shall equal or exceed ten percent (10%) of the amount of the
Operating Payment actually due for such previous Operating Year, then Tenant
shall also be entitled to interest at the Prime Rate in effect on the date such
overpayment is determined on the amount of such overpayment calculated from the
date Tenant's Estimated Payments first exceeded the Operating Payment actually
due for such previous Operating Year until the date that the entire overpayment
plus interest is actually credited against Fixed Rent and Additional Charges. If
the Annual Statement for such Operating Year shows that the Estimated Payment
for such Operating Year was less than the Operating Payment (or other payments)
which should have been paid for such Operating Year, Tenant shall pay the amount
of such deficiency within twenty (20) days after receipt of the Annual
Statement.
Section 6.06. Each Annual Statement shall be conclusive and binding
upon Tenant unless, within ninety (90) days after receipt thereof, Tenant shall
notify Landlord that it disputes the correctness of the Annual Statement,
specifying the particular respects in which the Annual Statement is claimed to
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be incorrect. If such notice is sent, provided Tenant shall pay to Landlord the
amount shown to be due to Landlord on the disputed 'Annual Statement, the
parties agree that, due to the confidential nature of Landlord's books and
records, Tenant shall have the right during Business Hours on Business Days on
not less than ten (10) days prior notice to Landlord to examine Landlord's books
and records with respect to the Annual Statement at Landlord's offices, one time
per year, provided, however, that such inspection must be conducted by Tenant's
employees or certified public accounting firm, and if no resolution thereof is
reached within ninety (90) days, either party may refer the decision of the
issues raised to a reputable independent firm of certified public accountants
selected by Landlord (and reasonably acceptable to Tenant), and the decision of
such accountants shall be conclusive and binding upon the parties. The fees and
expenses involved in such decision shall be borne by the unsuccessful party (and
if both parties are partially unsuccessful, the accountants shall apportion the
fees and expenses between the parties based on the degree of success of each
party).
ARTICLE 7
ELECTRICITY
-----------
Section 7.01. Electricity shall be supplied to the Demised Premises
on the Commencement Date in accordance with the provisions of this Article 7.
Section 7.02. Tenant shall arrange to obtain electric service
directly from the public utility company servicing the Building, and may utilize
the feeders, risers and wiring serving the Demised Premises to the extent
available, suitable and safely capable of being used for such purpose and only
to the extent of Tenant's then authorized connected load, as approved by
Landlord. Tenant shall not be entitled to use any existing electric meter and
panel located on the eighth (8th) floor of the Building in connection with such
electrical service, but shall install an electric meter and panel boards,
feeders, users, wiring and other conductors and equipment which may be required
to obtain electric energy directly from such public utility company, at Tenant's
sole cost and expense, and thereafter maintained by Tenant.
Section 7.03. Tenant agrees not to make any electrical installations,
alterations, additions or changes to the electrical equipment or appliances in
the Demised Premises other than lamps, typewriters, word processors, personal
computers, office computers, communication equipment, office automation
equipment and other small office machines which consume comparable amounts of
electricity, without the prior written consent of Landlord in each such instance
which shall not be unreasonably withheld or delayed. Tenant shall at all times
comply with the rules and regulations applicable to the service, equipment,
wiring and requirements of Landlord and of the utility company supplying
electricity to the Building. Subject to
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Section 7.04, Tenant covenants and agrees that at all times its use of
electricity will not exceed the capacity of existing feeders to the Building or
the risers or wiring installations therein and Tenant shall not use any
electrical equipment which will overload such installations or interfere with
the use thereof by other tenants in the Building. In the event that, in
Landlord's sole judgment, Tenant's electrical requirements necessitate
installation of an additional riser or risers, or other proper and necessary
equipment or services, including additional ventilating or air conditioning,
Landlord shall notify Tenant in writing and, unless Tenant shall reduce its
electrical requirements within ten (10) days, the same shall be provided or
installed by Landlord at Tenant's sole expense, which shall be chargeable and
collectible as additional rent and paid within five (5) days after the rendition
to Tenant of a xxxx therefor. Rigid conduits only will be allowed. Landlord
shall not be liable in any way to Tenant for any failure or defect in the supply
or character of electric service furnished to the Demised Premises by reason of
any requirement, act or omission of the utility company servicing the Building
or for any other reason not attributable to the gross negligence of Landlord.
Section 7.04. Landlord represents that the electrical risers provide
electricity service at the electric closets located within and serving the
eighth (8th) floor portion of the Demised Premises and shall throughout the term
of this Lease have capacity to provide not less than five (5) xxxxx demand load
of electricity per rentable square foot per floor of the Demised Premises,
excluding electricity for heating, ventilating and air-conditioning systems of
the Building. Notwithstanding the foregoing, Landlord agrees that Tenant may
continue to use the demand load of electricity currently serving the sixth (6th)
and seventh (7th) floors of the Demised Premises. Tenant covenants and agrees
that at no time will the demand load in the Demised Premises exceed five (5)
xxxxx per rentable square foot of the eighth (8th) floor portion the Demised
Premises, excluding electricity for heating, ventilating and air-conditioning
systems of the Building.
Section 7.05. If any tax is imposed upon Landlord with respect to
electrical energy furnished as a service to Tenant by any Federal, State or
Municipal Authority, Tenant covenants and agrees that, where permitted by law or
applicable regulations, Tenant's prorata share of such taxes shall be reimbursed
by Tenant to Landlord as additional rent.
Section 7.06. Landlord's failure during the term of this Lease to
prepare and deliver any statements or bills under this Article 7, or Landlord's
failure to make a demand under this Article 7, or any other provisions of this
Lease shall not in any way be deemed to be a waiver of, or cause Landlord to
forfeit or surrender its rights to collect any electricity charge, and any other
amounts of additional rent which may have become due
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pursuant to this Lease. Tenant's liability for any amounts due under this
Article 7 shall survive the expiration or sooner termination of this Lease for
eighteen (18) months unless Landlord's request arises as a result in changes in
law.
Section 7.07. If either the quantity or character of the electrical
service is changed by the utility company supplying electrical service to the
Building or is no longer available or suitable for Tenant's requirements, no
such change, unavailability or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of Fixed Rent or additional rent, or relieve Tenant from any of
its obligations under this Lease or impose any liability upon Landlord, or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise, unless caused by Landlord's
gross negligence or willful misconduct.
Section 7.08. Notwithstanding any other provision herein, the parties
understand and acknowledge that the consideration for Tenant's payment of the
electricity charges and any additional amount payable pursuant to the terms of
this Article and Landlord's agreement, subject to all the terms of this Lease,
to make available and furnish and redistribute electrical energy to or for
Tenant's use in all or any portion of the Demised Premises, and Tenant's failure
or refusal for any reason whatsoever to utilize such electrical energy as
Landlord stands ready to provide, shall not entitle Tenant to any abatement or
diminution in the Fixed Rent or additional rent payable hereunder.
Section 7.09. Landlord agrees that Tenant may, in its sole
discretion, provide electricity to subtenants on a rent inclusion, submetering,
or other basis, subject, however, to the terms of this Article 7 and Article 11.
ARTICLE 8
LANDLORD'S PROPERTY. TENANT'S PROPERTY
--------------------------------------
Section 8.01. Except to the extent provided in Section 8.02 hereof,
all alterations, decorations, installations, additions, fixtures, equipment,
improvements and appurtenances attached to or built into the Demised Premises at
the commencement of or during the term of this Lease, including, without
limitation, any and all paneling, partitions, railings, mezzanine floors,
galleries and the like, and whether or not by or at the expense of Tenant
(herein collectively called "Landlord's Property") shall be and remain a part of
the Demised Premises, shall be deemed the property of Landlord and shall not be
removed by Tenant. Any carpeting or other personal property in the Demised
Premises on the Commencement Date, unless installed and paid for by Tenant,
shall also fall within the definition of and constitute part of Landlord's
Property and
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shall not be removed by Tenant unless Tenant shall simultaneously therewith or
promptly thereafter install like replacements of equivalent or better quality,
in which event any such replacement(s) shall be deemed Landlord's Property.
Section 8.02. All moveable partitions, business and trade fixtures,
machinery and equipment, including communications equipment and office
equipment, whether or not attached to or built into the Demised Premises, which
are installed in the Demised Premises by or for the account of Tenant and can be
removed without structural damage to the Building (except all other articles of
moveable property which constitute Landlord's Property) and all furniture,
furnishings and other articles of moveable property owned by Tenant and located
in the Demised Premises (herein collectively called "Tenant's Property") shall
be and shall remain the property of Tenant and may be removed by Tenant at any
time during the term of this Lease; provided, however, that if any of Tenant's
Property is removed, except as otherwise provided in this Lease, Tenant, at
Landlord's option, shall repair or pay to Landlord, Landlord's reasonable and
necessary costs (including, in either case, a fifteen percent (15%) supervisory
fee) of repairing any damage to the Demised Premises or to the Building
resulting from the removal thereof or caused by the original installation
thereof. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord and shall not be
considered Tenant's Property but shall instead be deemed Landlord's Property.
Section 8.03. At or before the Expiration Date of the term of this
Lease or the date of any earlier termination of this Lease, Tenant, at its
expense, shall remove from the Demised Premises all of Tenant's Property.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to remove Tenant's Work, performed pursuant to Article 42, except as
described in the following sentence, and Tenant shall not be required to remove
the fixtures in existence as of the date hereof on the sixth (6th) and seventh
(7th) floors of the Demised Premises. At the time of giving of Landlord's
consent to any extraordinary work performed in the Demised Premises (such as the
installation of staircases, HVAC units or raised floors), Landlord shall also
inform Tenant whether same shall be required to be removed at the end of the
term.
In case Tenant shall desire not to remove any part of Tenant's
Property, Tenant shall give notice to Landlord thereof not less than sixty (60)
days prior to the Expiration Date and not less than ten (10) days prior to any
sooner termination of the term of this Lease specifying the items of Tenant's
Property which Tenant 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 specified items of Tenant's Property,
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Tenant, at its expense, at or before the expiration or sooner termination of the
term of this Lease, shall remove said items of Tenant's Property. Upon any
removal of Tenant's Property, Tenant, at Tenant's sole cost and expense, shall
promptly restore the portion(s) of the Demised Premises affected by such removal
to good order and condition, reasonable wear and tear and damage by the elements
excepted, and shall repair any damage to the Demised Premises or the Building
resulting from any such removal and/or the original installation of Tenant's
Property.
Section 8.04. Any items of Tenant's Property which shall remain in
the Demised Premises following Tenant's moving therefrom and after the
Expiration Date of the term of this Lease, or after any earlier termination
date, may, at the option of Landlord, be deemed to have been abandoned, and in
any such case such items may be retained by Landlord as its property or disposed
of by Landlord, without accountability, in such manner as Landlord shall
determine at Tenant's expense and Tenant shall pay to Landlord promptly upon
being billed therefor, all of Landlord's reasonable and necessary costs incurred
in connection with any such removal and disposition as well as in connection
with any restoration of the Demised Premises required by such removal. The
obligations of Tenant pursuant to this Article 8 shall survive the Expiration
Date or earlier termination of this Lease.
ARTICLE 9
REPAIRS. ALTERATIONS AND LIENS
------------------------------
Section 9.01. Tenant, at its expense, throughout the term of this
Lease, shall take good care of the Demised Premises, the fixtures and
appurtenances therein, Tenant's Property and Landlord's Property and shall make
all non-structural repairs thereto as and when needed to preserve them in good
working order and condition, ordinary wear and tear and damage from fire or
other insurable casualty covered under a standard form fire and multi-perils
policy usually carried by landlords of first class office buildings in the
vicinity of the Building, excepted. In addition, Tenant shall be responsible, at
its sole cost and expense, for making all repairs, interior and exterior,
structural and non-structural, ordinary and extraordinary, in and to the Demised
Premises and the Building and the facilities and systems thereof, the need for
which is caused by or arises out of
(a) the performance or existence of any Tenant's work or
alterations,
(b) the installation, use or operation of any Tenant's Property
or Landlord's Property in the Demised Premises,
(c) the moving of any Tenant's Property or any Landlord's
Property in or out of the Building, and
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(d) any air-conditioning unit or system short circuits, flow or
leakage of water, steam, illuminating gas, sewer gas, sewerage or odors, or
frost or by bursting or leaking of pipes or plumbing works or gas, or any other
cause of any other kind or nature whatsoever due, in all of the instances
contemplated in this Section 9.01 (d), to the carelessness, omission, neglect,
improper conduct or other cause of Tenant or any of its sublessees, or its or
their employees, agents, contractors, visitors, licensees or invitees, unless
the loss is otherwise covered by insurance proceeds received by Landlord.
Tenant shall, at its expense, promptly replace all scratched, damaged
or broken doors and glass in and to the Demised Premises excluding elevator cabs
and exterior glass or windows that are a part of the structure of the Building
(unless the damage thereto was caused by Tenant or Tenant's sublessees, or its
or their employees, agents, contractors, visitors, licensees or invitees, in
which event, at Landlord's option, either (i) Landlord shall perform the
necessary replacements or repairs at Tenant's sole cost and expense, or (ii)
Tenant shall perform the necessary replacements or repairs at its sole cost and
expense) and shall be responsible for all repairs, maintenance and replacements
of wall and floor coverings in the Demised Premises and for the repair and
maintenance of all sanitary, plumbing, and electrical fixtures and equipment
therein unless such repair, maintenance or replacement is necessitated by the
carelessness, omission, neglect, improper conduct or other cause of Landlord or
Landlord's employees, agents, contractors, visitors, licensees or invitees.
Tenant shall, at its expense, promptly make all repairs in or to the Demised
Premises for which Tenant is responsible; any repairs required to be made by
Tenant to the mechanical, electrical, sanitary, plumbing, heating, ventilating,
air-conditioning or other systems of the Building, shall be performed only by
contractor(s) reasonably designated by Landlord. If Tenant fails to make any
repairs, restorations or replacements for which Tenant is responsible hereunder,
Landlord, after not less than 10 days written notice to Tenant and reasonable
opportunity to do so, except in an emergency when no notice shall be required,
may (but shall not be obligated to) make same and Landlord's costs of doing so,
plus a fifteen percent (15%) supervisory fee to Landlord, shall be collectible
as additional rent hereunder and shall be paid by Tenant to Landlord within
fifteen (15) days after rendition of Landlord's xxxx or statement therefor. Any
other repairs in or to the Building and the facilities and systems thereof for
which Tenant is responsible, shall be performed by Landlord at Tenant's sole
cost and expense (but only after Tenant failed to perform such repairs using
only those contractors on Landlord's list of approved contractors within a
reasonable amount of time), which shall not exceed all of Landlord's actual and
reasonable costs, including, without limitation, any and all actual and
reasonable architectural and engineering fees, filing fees and supervisory fees,
plus a fifteen percent (15%) supervisory fee to Landlord.
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Section 9.02. Except for those matters which are Tenant's
responsibility, as provided in Section 9.01 hereof, Landlord, at its expense,
shall maintain and keep the exterior and structural elements of the Building and
the public portions of the Building and its systems and facilities servicing the
Demised Premises in good working order, condition and repair, including, without
limitation, public halls, stairways, toilets, exterior windows, walls,
radiators, fans, plumbing, wiring and mechanical systems for the supply of
water, heat, air conditioning, elevator service, gas and electricity; Landlord
shall also make all repairs and replacements for damage caused by the
carelessness, neglect, omission, improper conduct or other cause of Landlord,
its servants, agents, employees, and licensees. If requested by Tenant and if
reasonably practicable, Landlord shall perform any repairs, with respect to the
Demised Premises that it is obligated to perform under this Lease on after-hours
basis provided that Tenant shall promptly pay to Landlord the extra costs
related to the overtime work incurred by Landlord. Tenant shall give Landlord
prompt notice of any defective condition of which it has knowledge in any
Building plumbing, heating or cooling system or electrical line located in,
servicing or passing through the Demised Premises. Landlord shall use reasonable
efforts not to unreasonably interfere with Tenant's use and occupancy while
making any repairs in the Building or the Demised Premises.
Section 9.03. Except as otherwise may be expressly provided in this
Lease, Landlord shall have no liability to Tenant, nor shall Tenant's covenants
and obligations under this Lease be reduced or abated in any manner whatsoever
by reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building or of the Demised Premises, or in or to the fixtures, equipment,
systems or appurtenances of the Building or the Demised Premises.
Section 9.04. Tenant shall make no alterations, decorations,
installations, additions or improvements in or to the Demised Premises, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed, and then only by contractors or mechanics selected from
Landlord's then approved list, which list shall include not less than three (3)
contractors, or selected by Tenant and approved by Landlord, which approval
shall not be unreasonably withheld or delayed, prior to any bidding for any such
work. Landlord's consent shall not be required for painting, decoration or
non-structural wall covering in the Demised Premises, provided that (i) Tenant
gives Landlord ten (10) days prior written notice of Tenant's intention to
perform such work, and which notice shall contain a description of the work to
be performed and the name of the contractor who will perform the work; (ii) the
performance of such work does not cause a disruption in the Building; and (iii)
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Tenant performs such work in compliance with the terms and conditions of this
Lease. All such work, alterations, decorations, installations, additions or
improvements shall be done at Tenant's sole cost and expense at such times and
in such manner as Landlord may from time to time reasonably designate and in
full compliance with all laws, rules and regulations of all governmental bodies
having jurisdiction thereover. In connection with any Tenant alterations,
decorations, installations, additions or improvements to the Demised Premises,
Tenant agrees to obtain during the progress of such work, and deliver to
Landlord, written and unconditional waivers of mechanics' liens, to the extent
permitted by law, upon the real property in which the Demised Premises are
located, for all work, labor, and services performed and materials furnished by
them in connection with such work, signed by all contractors, subcontractors,
materialmen and laborers involved in such work. No lien waivers shall be
required to be obtained prior to the commencement of any work in the Demised
Premises or prior to the commencement of Tenant's Work. Tenant agrees to
reimburse the Landlord for all out-of-pocket costs ("Actual Costs") which the
Landlord incurs by payment to third parties in connection with the review of
Tenant's proposed work and the granting or denial of the requested consent.
Actual Costs shall include, without limitation, all reasonable out-of-pocket
expenses, engineers', architects' or contractors' fees. Landlord shall not be
liable for any failure of the air-conditioning, and heating and ventilating
equipment in the Demised Premises installed by Landlord, which is caused by
alterations, installations, and/or additions by Tenant, and Tenant shall correct
any condition causing such failure. Upon Tenant's failure to correct same,
Landlord may make such correction and charge Tenant for the cost thereof, plus a
supervisory fee of fifteen (15%) percent. Such gums due Landlord shall be deemed
additional rent and shall be paid by Tenant within fifteen (15) days upon being
billed therefor.
Section 9.05. Prior to commencing any work pursuant to the provisions
of this Article, Tenant shall furnish Landlord with:
(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 Workers Compensation insurance covering all
persons employed in connection with the work who might assert claims for death
or bodily injury against Landlord, any Superior Lessor, Superior Mortgagee,
Tenant or the Building.
(c) Such additional personal injury and property damage
insurance (over and above the insurance required to be
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carried by Tenant pursuant to the provisions of Article 12 hereof) as Landlord
or Landlord's managing agent may reasonably require based on the work to be done
by Tenant.
(d) Plans and specifications (including architectural,
engineering, mechanical, electrical and plumbing drawings, if applicable) for
the work to be done and copies of all contracts with contractors and
subcontractors selected by Tenant and approved by Landlord.
Section 9.06. With respect to any of Tenant's alterations,
improvements or repairs which shall cost in excess of $25,000.00, Tenant shall
pay to Landlord or at Landlord's direction, Landlord's managing agent, within
ten (10) days after being billed therefor, a supervisory and coordination fee,
in an amount equal to ten percent (10%) of the cost of any such alterations,
improvements or repairs for indirect costs, field supervision and coordination
in connection therewith, but only to the extent such cost exceeds $25,000.00.
Tenant shall keep accurate and complete cost records of Tenant's alterations,
improvements and repairs costing in excess of $25,000.00 and shall furnish
photostatic copies thereof and of all contracts entered into and work orders
issued by Tenant in connection therewith to Landlord's managing agent, certified
as correct by Tenant, within 45 days of Landlord's managing agent's request
therefor. For the purposes of this Article all alterations, improvements or
repairs performed by Tenant within the Demised Premises as part of a single work
project shall be considered together as a single cost. Notwithstanding anything
contained in this Section 9.06 to the contrary, in the event Tenant uses a
contractor named on Landlord's list of approved contractors for the Building to
perform work in the Demised Premises, including, without limitation, Tenant's
Work performed pursuant to Article 42, Tenant shall not be obligated to pay any
supervisory fee in connection with such work. Except in connection with Tenant
Changes in connection with Tenant's initial occupancy of the eighth (8th) floor
portion of the Demised Premises, Landlord agrees that in no event shall Tenant
be obligated to pay a supervisory fee in the event Tenant's Work consists solely
of decorative work such carpeting, painting and wallcoverings Landlord agrees
that its list of approved contractors for the Building, which may change from
time to time, shall always contain at least three (3) reputable, independent
contractors, and the fees charged by such contractors shall be comparable to
those of other contractors in the Borough of Manhattan, and Tenant acknowledges
receipt of Landlord's current list of approved contractors attached hereto as
Exhibit "C".
Section 9.07. Tenant will not do any act or suffer any act which
will, in any way, encumber the title of Landlord (or Tenant) in and to the
Demised Premises nor will the interest or estate of Landlord or Tenant in the
Demised Premises be in any way subject to any claim by way of lien or
encumbrance, whether
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by operation of law or by virtue of any express or implied contract by Tenant,
except that Tenant may execute and file Uniform Commercial Code financing
statements in connection with financings of Tenant's personalty and fixtures.
Section 9.08. Tenant will not suffer or permit any liens to be filed
against the Demised Premises, the Building or any part thereof, by reason of any
work, labor, services or materials done for, or supplied, or claimed to have
been done for, or supplied to Tenant, or anyone holding the Demised Premises, or
any part thereof, through or under Tenant. If any such lien is at any time filed
against the Demised Premises or the Building, Tenant will cause the same to be
discharged of record within forty-five (45) days after Tenant either receives
notice of or becomes aware of the filing of the same, by either payment, deposit
or bonding and if Tenant shall fail to do so, then, in addition to any other
right or remedy of Landlord, Landlord may, but shall not be obligated to,
procure the discharge of the same either by paying the amount claimed to be due
by deposit in court or bonding, and/or Landlord will be entitled, if Landlord so
elects, to compel the prosecution of an action for the foreclosure of such lien
by the lienor and to pay the amount of the judgment, if any, in favor of the
lienor with interest, costs and allowances. Any amount paid or deposited by
Landlord for any of the aforesaid purposes, and all legal and other expenses of
Landlord, including reasonable attorneys' fees, in defending such action or in
procuring the discharge of such lien, with all necessary disbursements in
connection therewith, will become due and payable as additional rent within ten
(10) days of Landlord's notice to Tenant.
Section 9.09. Nothing in this Lease shall be deemed to be, or
construed in any way as constituting, the consent or request of Landlord,
express or implied by inference or otherwise, to any person, firm or being
condemned or vacated, by reason of non-compliance or otherwise by reason of such
contest;
(b) before the commencement of such contest, Tenant shall
furnish to Landlord either (i) the bond of a surety company satisfactory to
Landlord, which bond shall be, as to its provisions and form, reasonably
satisfactory to Landlord, and shall be in an amount at least equal to one
hundred and twenty five (125%) percent of the cost of such compliance (as
reasonably estimated by a reputable contractor designated by Landlord) and shall
indemnify Landlord against the cost thereof and against all liability for
damages, interest, penalties, expenses (including reasonable attorneys' fees and
expenses) resulting from or incurred in connection with such contest or
non-compliance, or (ii) other security in place of such bond reasonably
satisfactory to Landlord;
(c) such non-compliance or contest shall not constitute or
result in any violation of any Superior Lease or
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Superior Mortgage, or if any such Superior Lease and/or Superior Mortgage shall
permit such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of the Tenant; and
(d) Tenant shall keep Landlord advised as to the status of such
proceedings.
Without limiting the application of the foregoing, Landlord
shall be deemed subject to prosecution for a crime if Landlord, or its managing
agent, or officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
whatever, whether by service of a Summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent, as the case
may be, is required to plead or answer thereto.
Section 10.04. To the extent that compliance is not Tenant's
obligation pursuant to Section 10.02 hereof, Landlord, at Landlord's expense,
shall comply with or cause to be complied with, all laws, orders, ordinances
regulations and requirements of any public authority or lawful direction of any
public official or officer which, with respect to the Systems, public, and/or
structural portions of the Building, shall affect Tenant's access to the Demised
Premises or which shall affect the Building systems servicing the Demised
Premises. Landlord, however, may defer such compliance so long as Landlord shall
be contesting the validity or applicability thereof. Tenant agrees to comply
with all laws in effect as of the date Tenant completes Tenant's Work necessary
for its initial occupancy of the 8th floor portion of the Demised Premises
concerning handicapped access that affects the public bathrooms on the eighth
(8th) floor of the Building, including, without limitation, Local Law 58 and the
Americans with Disabilities Act, and such obligation shall not be affected by
the existence of any bathroom located within the Demised Premises on the 8th
floor of the Building (the intention of the parties being that obligation shall
be determined as if there are no bathrooms within the Demised Premises located
on the 8th floor of the Building).
ARTICLE 11
ASSIGNMENT. SUBLETTING. MORTGAGING
----------------------------------
Section 11.01. Except as otherwise expressly provided in this Lease,
Tenant shall not, whether voluntarily, involuntarily or by operation of law or
otherwise assign or otherwise transfer this Lease or the estate and term hereby
granted, sublet or suffer or permit the Demised Premises or any part thereof to
be used, occupied or utilized by anyone other than Tenant, or mortgage, pledge,
encumber or otherwise
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hypothecate (any of which shall be referred to as a "mortgaging") this Lease or
the Demised Premises or any part thereof in any manner whatsoever without, in
each instance, obtaining the prior written consent of Landlord. The consent by
Landlord to any assignment or subletting or mortgaging shall not in any manner
be construed to relieve Tenant (or any assignee or sublessee) from obtaining
Landlord's express written consent to any other or further assignment or
subletting or mortgaging. In no event shall any permitted sublessee assign or
encumber its sublease or further sublet all or a portion of its sublet space, or
otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others without Landlord's prior written consent in each instance.
Section 11.02. (a) If Tenant is a corporation or partnership, the
provisions of Section 11.01 shall apply to a transfer (by one or more transfers)
of a majority of the stock or partnership interests of Tenant (as the case may
be) as if such transfer of a majority of the stock or partnership interests of
Tenant were an assignment of this Lease; but said provisions, and the provisions
of Section 11.09, shall not apply and Landlord's consent shall not be required
and recapture provisions shall not apply to transactions with a corporation or
partnership into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets or stock are transferred, provided that in
any of such events
(i) the successor to Tenant has a net worth computed
in accordance with generally accepted accounting
principles at least equal to the net worth of
Tenant immediately prior to such merger,
consolidation or transfer, and
(ii) proof reasonably satisfactory to Landlord of
such net worth shall have been delivered to
Landlord at least ten (10) days prior to the
effective date of any such transaction.
(b) Landlord agrees that the Tenant named herein (and not its
successors and assigns) shall have the right, without the prior consent of
Landlord and without being subject to Landlord's rights pursuant to Section
11.03(b) or Section 11.09, to assign the Lease to, sublet to, or permit the use
or occupancy of all or any part of the Demised Premises by, any parent,
subsidiary or affiliate of Tenant, for the uses herein permitted and for such
period as such assignee or sublessee shall remain a parent, subsidiary or
affiliate of Tenant. A "subsidiary" of Tenant shall mean a corporation,
partnership or other entity more than fifty percent (50%) of whose outstanding
voting stock and all other classes of outstanding stock at the time of such
assignment or sublease shall be owned by Tenant. An "affiliate" of Tenant shall
mean any corporation, partnership or
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other entity more than fifty percent (50%) of whose outstanding voting stock and
all other classes of outstanding stock at the time of such assignment or
sublease shall be owned by the same persons and/or entities owning more than
fifty percent (50%) of the outstanding voting stock and all other classes of
outstanding stock of Tenant. A "parent" of Tenant shall mean a corporation,
partnership or other entity owning more than fifty percent (50%) of the
outstanding voting stock and all other classes of outstanding stock of Tenant at
the time of such assignment or sublease. No assignment or sublease under this
Section shall be valid unless Tenant shall give Tenant's Notice (as hereinafter
defined) to Landlord of the proposed assignee or sublessee within ten (10) days
after the execution thereof and Tenant shall deliver to Landlord an assignment
or a sublease, duly executed by Tenant and such assignee or sublessee, as the
case may be, which agreement complies with the requirements of this Article 11.
(c) Notwithstanding any other provision of this Lease, the
transfer of stock of Tenant by Xxxxx Xxxxx to the estate of Xxxxx Xxxxx, or from
the estate of Xxxxx Xxxxx to the spouse and/or children of Xxxxx Xxxxx and/or to
senior officers of Tenant then responsible for major management decisions shall
not be deemed an assignment of this Lease.
Section 11.03. (a) If Tenant desires to assign its interest in
this Lease or sublease all or any portion of the Demised Premises, Tenant shall
deliver to Landlord Tenant's Notice (as hereinafter defined) prior to entering
into each and every assignment or subletting. "Tenant's Notice" shall be a
written notice from Tenant setting forth (i) Tenant's desire to enter into an
assignment of this Lease or a sublease, (ii) the proposed terms and conditions
of the proposed assignment or subletting, including, without limitation, copies
of all term sheets, offers and requests for proposal sent to, or received from,
any prospective assignees or sublessees, if any, and (iii) in the event of
desired subletting of less than all of the Demised Premises, a description and
floor plan of the proposed subleased premises.
(b) Within forty-five (45) days (or twenty (20) business days in
the event that Tenant's Notice is not the first Tenant's Notice delivered in and
twenty-four (24) month period during the term of the Lease) following receipt of
Tenant's Notice containing the above required information, Landlord may elect
any of the options hereinafter set forth in this subsection 11.03(b), subject,
however, to Section 11.03(c):
(1) In the event of a proposed assignment or in the event of a
proposed subletting of all or substantially all of the Demised Premises,
Landlord, at its option, exercisable by notice given to Tenant within the
aforesaid forty-five (45) day period (or 20-business day period, if applicable),
may (i) terminate this Lease, or (ii) in the event of a proposed
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assignment, require Tenant to assign this Lease to Landlord or its designee, in
either case effective as of a date which shall be one hundred eighty (180) days
after the giving of Landlord's termination notice. If Landlord shall exercise
such termination option, then the term of this Lease shall cease and expire on
the date specified in Landlord's termination notice with the same force and
effect as if such date were originally provided herein as the Expiration Date of
the term hereof.
(2) In the event of a proposed sublease for less than all or
substantially all of the Demised Premises but for all or substantially all of
the balance of the term hereof, Landlord, at its option, exercisable by notice
given to Tenant within said forty-five (45) day period (or 20-business day
period, if applicable), may terminate this Lease only as to the portion of the
Demised Premises which the proposed sublease would cover effective as of a date,
which date shall be either (x) 90 days after the giving of Landlord's
termination notice in the event that the proposed sublease is less than two (2)
full floors of the Building, or (y) one hundred eighty (180) days after the
giving of Landlord's termination notice in the event that the proposed sublease
is for two (2) full floors or more of the Building. In the event Landlord shall
exercise such termination option (A) the term of this Lease with respect only to
such portion of the Demised Premises shall cease and expire on the date
specified in Landlord's termination notice, (B) the Fixed Rent and additional
rent payable hereunder shall be respectively reduced, effective as of 11:59 p.m.
on said date, by the amounts thereof allocable to such portion of the Demised
Premises, and (C) the parties shall then (or prior thereto or promptly
thereafter as Landlord may request) enter into a modification agreement of this
Lease reflecting the deletion of such portion from the Demised Premises
effective as of said date and the reduction of Fixed Rent, additional rent and
Tenant's Proportionate Share required thereby. In the event Landlord shall
exercise its foregoing option, Tenant shall be responsible for the cost of
constructing any necessary demising walls required by the deletion or subletting
of such portion of the Demised Premises and complying with any laws and
requirements of public authority pertaining thereto.
(3) In the event of a proposed sublease for less than all or
substantially all of the Demised Premises and for less than all or substantially
all of the balance of the term hereof, Landlord, at its option, exercisable by
notice given to Tenant within said forty-five (45) day period (or 20-business
day period), may require Tenant to enter into a sublease of such portion of the
Demised Premises to Landlord or its designee as sublessee upon the terms set
forth in Section 11.04 hereof, which sublease shall be effective as of a date,
which date shall be either (x) 90 days after the giving of Landlord's
termination notice in the event that the proposed sublease is less than two (2)
full floors of the Building, or (y) one hundred eighty (180)
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days after the giving of Landlord's notice. In the event Landlord shall exercise
the foregoing option Tenant shall be responsible for the cost of constructing
any necessary demising walls and complying with any laws and requirements of any
public authority pertaining thereto.
For purposes of this subsection 11.03(b), as used herein the term
"substantially all" shall mean in excess of eighty (80%) percent of the Demised
Premises, or the remaining term of the Lease, as the case may be.
(c) Landlord shall not be entitled to exercise any of the
foregoing options contained in Section 11.03(b) with respect to a proposed
sublease by Tenant provided: (i) the proposed sublease has a term commencing
prior to the fifth anniversary of the Commencement Date; and (ii) the term of
the proposed sublease expires prior to the ninth anniversary of the Commencement
Date (the "Initial Subleases"). The foregoing is not intended to waive any
requirement under this Article 11 with respect to Tenant's obligation to obtain
Landlord's consent to subleases.
Section 11.04. If Landlord exercises its option to sublet the
premises proposed to be subleased, such sublease to Landlord (or its designee)
as sublessee, shall be at the portions of the Fixed Rent and additional rents
then payable hereunder allocable to the sublease premises, and shall be for the
same term as that of the proposed subletting, and:
(a) Such sublease shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease except
such as are irrelevant or inapplicable, and except as otherwise expressly set
forth to the contrary in this Section;
(b) Such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Section:
(c) Such sublease shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the space covered by such sublease or any part
or parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease;
(d) Such sublease shall provide that any assignee or further
assignee or further sublessee(s) of the sublessee's interest thereunder, may, at
the election of Landlord, be permitted to make alterations, decorations, and
installations in such space or any part thereof and shall also provide in
substance that any such alterations, decorations and
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installations in such space therein made by any assignee or sublessee may be
removed, in whole or in part, by such assignee or sublessee, at its option,
prior to or upon the expiration or other termination of such sublease provided
that such assignee or sublessee, at its expense, shall repair any damage and
injury to such space so sublet caused by such removal; and
(e) Such sublease shall also provide that (i) the parties to
such sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties, (ii)
any assignment or subletting by Landlord or its designee (as the sublessee) may
be for any purpose or purposes that Landlord, in Landlord's sole discretion,
shall deem suitable or appropriate, (iii) Tenant, at Tenant's expense, shall and
will at all times provide and permit reasonably appropriate means of ingress to
and egress from such space to be sublet by Tenant to the Landlord or designee,
and (iv) that at the expiration of the term of such sublease, Landlord will
deliver the space to Tenant at the expiration of the sublease in substantial
similar design, configuration and condition as same was in as of the
commencement date of such sublease, reasonable wear and tear excepted.
Section 11.05. In the event Tenant shall have duly complied with the
provisions of Section 11.03 and Landlord shall not have exercised any of its
options pursuant to Section 11.03 and on condition that Tenant is 'Lot then in
default in the payment of any Fixed Rent or additional rent due hereunder and is
not otherwise in material default with respect to any of Tenant's other
obligations under this Lease, Landlord's consent (which shall be in writing and
in form satisfactory to Landlord) to a proposed assignment or sublease shall not
be unreasonably withheld and shall be granted or denied within thirty (30) days
of Tenant's request for consent, provided, however, that Landlord may withhold
consent thereto if, in the exercise of its reasonable judgment, it determines
that:
(a) The financial condition (as shall be reasonably evidenced to
Landlord by Tenant) and general reputation of the proposed assignee or sublessee
are not commensurate with the financial obligations imposed by the proposed
assignment or sublease, or the character and dignity of the Building and the
existing tenancies thereof; provided, however, that if Tenant's net worth (as
shall be reasonably evidenced to Landlord by Tenant) as of the effective date of
the sublease or assignment shall be the same or greater than Tenant's net worth
as of the Commencement Date hereof, then Landlord shall not be entitled to
withhold its consent to a proposed assignment -or sublease on the basis of the
proposed assignee's or subtenant's financial condition.
(b) The proposed use of the Demised Premises or the relevant
part thereof (i) is not appropriate for the Building
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or consistent with the character of the existing tenancies thereof or (ii) will
violate the permitted use(s) set forth in Section 3.01 hereof or will violate
any negative covenant as to use contained in any other lease of space in the
Building;
(c) The nature of the occupancy of the proposed assignee or
sublessee will cause a materially greater density of employees or traffic or
make materially greater demands on the Building's services, or facilities or in
any other way will lessen the character or dignity of the Building;
(d) The proposed assignee or sublessee (or any parent,
subsidiary or affiliate thereof, as such terms are defined in Section 11.02(b)
herein) is then an occupant of any part of the Building;
(e) The proposed assignee or sublessee is a person or entity
with whom Landlord was actively and in good faith negotiating to lease space in
the Building at any time during the previous six (6) month period;
(f) The form of the proposed sublease or assignment is not in
form and content reasonably satisfactory to Landlord or does not comply with the
applicable provisions of this Article;
(g) There would be, as a result of the proposed assignment or
subletting, more than five occupants (including Tenant or its designee) of any
floor of the Demised Premises;
(h) The amount of the aggregate rent payable under the proposed
sublease is less than ninety percent (90%) of the aggregate rent that Landlord
is leasing other comparable space in the Building; and
(i) With respect to any proposed assignment or sublease the term
of which commences on or prior to the day which shall be the fifth anniversary
of the Commencement Date, Tenant would, as a result of the proposed assignment
or sublease, occupy less than 3500 square feet.
Notwithstanding anything contained herein to the contrary, with
respect to the Initial Subleases only, (i) SubSection 11.05(f) shall not apply,
(ii) Sub-Sections 11.05(d) and (e) shall only apply provided that Landlord has
space in the Building comparable to the space Tenant has offered to the proposed
assignee or sublessee, and which comparable space is made available by Landlord
for leasing by such proposed assignee or sublessee, and (iii) with respect to
Sub-Section 11.05(a), it is understood that if Tenant submits to Landlord all
the financial information it possesses on a proposed sublessee or assignee, such
financial information shall be deemed sufficient
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to permit Landlord to make its determination pursuant to such
Sub-Section 11.05(a).
As a condition of Landlord's consent to any assignment or subletting,
Tenant shall reimburse Landlord on demand for any reasonable costs that may be
incurred by Landlord in connection with said assignment or sublease, including,
without limitation, the cost of making investigations as to the acceptability of
the proposed assignee or sublessee, and reasonable administrative and attorneys'
fees incurred in connection with the reviewing of the assignment or sublease and
preparing any consent thereto.
Section 11.06. Except for any subletting by Tenant to Landlord or its
designee pursuant to the provisions of this Article, each subletting pursuant to
this Article shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Lease. Notwithstanding any such
subletting to Landlord or any such subletting to any other sublessee and/or
acceptance of rent or additional rent by Landlord from any sublessee, Tenant
shall and will remain fully liable for the payment of the Fixed Rent and
additional rent due and to become due hereunder and for the performance of all
the covenants, agreements, terms, provisions and conditions contained in this
Lease on the part of Tenant to be performed and all acts and omissions of any
licensee or sublessee or anyone claiming under or through any sublessee which
shall be in violation of any of the obligations of this Lease, and any such
violation shall be deemed to be a violation by Tenant. Tenant further agrees
that notwithstanding any such subletting, no other and further subletting of the
Demised Premises by Tenant or any person claiming through or under Tenant, shall
or will be made except upon compliance with and subject to the provisions of
this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
Section 11.03, Tenant shall indemnify, defend and hold harmless Landlord against
and from any and all loss, liability, damages, cost and expense, including
reasonable attorneys' fees, resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
Section 11.07. In the event that (a) Landlord fails to exercise any
of its options under Section 11.03, and (b) Tenant fails to deliver the fully
executed assignment or sublease within six (6) months after the expiration of
Landlord's options period pursuant to said Section then Tenant shall again
comply with all of the provisions and conditions of Section 11.03 before
assigning this Lease or subletting the Demised Premises or the relevant part
thereof; provided, however that Tenant shall be entitled to a one-time 30-day
extension, of such six (6) month period if Tenant delivers to Landlord notice
requesting such
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extension together with a draft of sublease currently being negotiated, prior to
the expiration of such six (6) month period.
Section 11.08. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease (except for a
subletting by Landlord pursuant to Section 11.04 hereof), it is further agreed
that:
(a) no subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) no subletting shall be for less than 2,000 contiguous
rentable square feet;
(c) 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;
(d) Tenant, whether through a broker, agent, representative, or
otherwise shall not have (i) advertised or publicized in any way the
availability of the Demised Premises or the relevant part thereof without prior
notice to and written approval thereof by Landlord, which approval shall not be
unreasonably withheld or delayed, nor shall any advertisement state the name (as
distinguished from the address) of the Building or the proposed rents, or (ii)
listed the Demised Premises or relevant part thereof for subletting, at a rental
rate less than the aggregate rent that Landlord is then asking for other
comparable space in the Building.
(e) 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, 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 with respect to the
executory provisions of such sublease except that Landlord shall not (i) be
liable for any previous act or omission of the sublessor under such sublease,
(ii) be subject to any offset, not expressly provided in such sublease, which
theretofore accrued to such sublessee against Tenant, or (iii) be bound by any
previous modification of such sublease to which Landlord shall not have
consented in writing or by any previous prepayment of more than one month's rent
or additional rent thereunder.
Section 11.09. If the Landlord shall give its consent to any
assignment of this Lease or to any sublease Tenant shall in consideration
therefor, pay to Landlord, as additional rent hereunder, the following sums,
(each of which shall hereinafter be referred to as "Profit");
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(a) in the case of an assignment, fifty percent (50%) of the
excess, if any, of (i) all sums and other consideration received by Tenant
and/or its designee for or by reason of such assignment (including, but not
limited to, sums paid for the sale or rental of Tenants fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property less,
in the case of a sale, the then net unamortized or undepreciated cost of any
such fixture, leasehold improvements, equipment, furniture or other personal
property determined on the basis of Subtenant's federal income tax returns)
less, (ii) customary and reasonable brokerage fees, advertising and attorneys
fees incurred in connection with such assignment and any reasonable and
customary sums actually paid to such assignee as a tenant allowance for the
construction of improvements for initial occupancy or the cost of any work
performed by Tenant in connection with initial occupancy;
(b) in the case of a sublease, fifty percent (50%) of the
excess, if any, of (i) the sum of (A) all rents, additional rents and other
consideration received by Tenant in connection with the sublease and (B) all
other sums and consideration received by Tenant or its designee for or by reason
of such subletting (including, but not limited to, sums paid for the sale or
rental of Tenant's fixtures, leasehold improvements, equipment, furniture or
other personal property less, in the case of a sale, the then net unamortized or
undepreciated cost of any such fixture, leasehold improvements, equipment,
furniture or other personal property determined on the basis of Subtenant's
federal income tax returns) less, (ii) the sum of (X) that part of the Fixed
Rent and additional rent hereunder allocable to the subleased space and accruing
for the corresponding period during the term of the sublease, and (Y) customary
and reasonable brokerage, advertising and attorneys fees incurred in connection
with such sublease and any reasonable and customary sums actually paid to such
sublessee as a tenant allowance for the construction of improvements for initial
occupancy or the cost of any work performed by Tenant in connection with initial
occupancy.
Any amount(s) payable under this Section 11.09 shall be paid to
Landlord as and when sums on account thereof are paid by or on behalf of any
assignee(s) and/or any sublessee(s) to, Tenant or its designee, and Tenant
agrees to promptly advise Landlord thereof and furnish such information with
regard thereto as Landlord may reasonably request from time to time.
Tenant shall furnish to Landlord in the January calendar month
immediately following each calendar year during any part of which any such
sublease shall be in effect, a reasonably detailed financial statement certified
as being correct by an executive financial officer or, if Tenant is not a
corporation, a principal of Tenant, setting forth all sums accruing during the
prior calendar year and realized by Tenant from such sublease and a computation
of the Profit realized by
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Tenant during such prior calendar year. Tenant shall remit to Landlord together
with such statement any Profit or portion thereof on account of such calendar
year not previously remitted to Landlord.
Section 11.10. 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 Fixed
Rent and additional 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.
Section 11.11. Each assignee or transferee shall assume and be deemed
to have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the Fixed Rent, additional rent and adjustments
of rent, and for the due performance of all of the terms, covenants, conditions
and agreements herein contained on Tenant's part to be performed for the term of
this Lease. No assignment shall be binding on Landlord unless such assignee or
Tenant shall deliver to Landlord a duplicate original of the instrument of
assignment which contains a covenant of assumption by the assignee of all of the
obligations aforesaid and shall obtain from Landlord its aforesaid written
consent thereto. The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time for performance of, or modifying
any of the obligations of, this Lease, or by any waiver or failure of Landlord
to enforce any of the obligations of Tenant pursuant to this Lease.
Section 11.12. The listing of any name other than that of Tenant,
whether on the doors of the Demised Premises, on the Building directory or
otherwise shall not operate to vest any right or interest in this Lease or the
Demised Premises nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Demised Premises
or to the use or occupancy thereof by third parties. It is expressly understood
that any such listing is a privilege extended by Landlord that is revocable at
will by written notice to Tenant.
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ARTICLE 12
INSURANCE: PROPERTY LOSS: REIMBURSEMENT
---------------------------------------
Section 12.01. Landlord shall maintain during the term of this Lease
a policy or policies of insurance insuring the Building against loss or damage
due to fire and other casualties covered within the classification of fire and
extended coverage, vandalism coverage and malicious mischief, sprinkler leakage,
water damage and special extended coverage on the Building. Such coverage shall
be in such amountS as Landlord may from time to time determine but not less than
the full replacement cost value. Additionally, at the option of Landlord, such
insurance coverage may include the risks of earthquakes and/or flood damage and
additional hazards, a rental loss endorsement and one or more loss payee
endorsements in favor of the holders of any mortgages or deeds of trust
encumbering the interest of Landlord in the Land or Building or the ground or
underlying lessors of the Land or Building, or any portion thereof. Tenant shall
neither use the Demised Premises nor permit the Demised Premises to be used or
acts to be done therein which will (a) increase the premium of any insurance
described in this Article; (b) cause a cancellation of or be in conflict with
any such insurance policies; (c) result in a refusal by insurance companies of
good standing to insure the Building or the Land in amounts reasonably
satisfactory to Landlord; or (d) subject Landlord to any liability or
responsibility for injury to any person or property by reason of any operation
being conducted in the Demised Premises. Tenant shall, at Tenant's expense,
comply as to the Demised Premises with all insurance company requirements
pertaining to the use of the Demised Premises. If Tenant's conduct or use of the
Demised Premises causes any increase in the premium for such insurance policies,
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
Section 12.02. Tenant shall maintain during the term of this Lease
the following coverages:
(a) Comprehensive General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
arising out of Tenant's operations, assumed liabilities or use of the Demised
Premises, including a Broad Form Comprehensive General Liability endorsement
covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in this Article, for limits of liability not
less than:
Bodily Injury and $3,000,000 each occurrence
Property Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
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0% Insured's participation
(b) Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenant's
property on the Demised Premises installed by, for, or at the expense of Tenant,
(ii) the Tenant's improvements, and (iii) all other improvements, alterations
and additions to the Demised Premises. Such insurance shall be written on an
"all risks" of physical loss or damage basis, for the full replacement cost
value new without deduction for depreciation of the covered items and in amounts
that meet any co-insurance clauses of the policies of insurance and shall
include a vandalism and malicious mischief endorsement, sprinkler leakage
coverage.
(c) The minimum limits of policies of insurance required of
Tenant under this Lease shall in no event limit the liability of Tenant under
this Lease. Such insurance shall (i) name Landlord, and any other party it so
specifies, as an additional insured; (ii) specifically cover the liability
assumed by Tenant under this Lease, including, but not limited to, Tenant's
obligations under this Article; (iii) be issued by an insurance company having a
rating of not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State of New York;
(iv) be primary insurance as to all claims thereunder and provide that any
insurance carried by Landlord is excess and non-contributing with any insurance
requirement of Tenant; (v) provide that said insurance shall not be cancelled or
coverage changed unless thirty (30) days' prior written notice shall have been
given to Landlord and any mortgagee of Landlord; and (vi) contain a
cross-liability endorsement or severability of interest clause acceptable to
Landlord. Tenant shall deliver duplicate copies of said policy or policies or
original certificates thereof to Landlord on or before the Lease Commencement
Date and at least thirty (30) days before the expiration dates thereof. In the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificate, Landlord may, at its option, procure such policies for the
account of Tenant, and the cost thereof shall be paid to Landlord as additional
rent within five (5) days after delivery to Tenant of bills therefor.
(d) Tenant shall carry and maintain during the entire term of
this Lease, at Tenant's sole cost and expense, increased amounts of the
insurance required to be carried by Tenant pursuant to this Article, and such
other reasonable types of insurance coverage and in such reasonable amounts
covering the Demises Premises and Tenant's operations therein, as may be
reasonably requested by Landlord; provided that such types and/or amounts of
insurance are comparable to those being required by other landlords of first
class office buildings located in the Borough of Manhattan.
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Section 12.03. Landlord and Tenant agree to have their respective
insurance companies issuing property damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant. As long as
such waivers of subrogation are contained in their respective insurance
policies, Landlord and Tenant hereby waive any right that either may have
against the other on account of any loss or damage to their respective property
to the extent such loss or damage is insurable under policies of insurance for
fire and all risk coverage, theft, public liability, or other similar insurance.
ARTICLE 13
DAMAGE OR DESTRUCTION
---------------------
Section 13.01. If the Building or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause, then whether
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents or visitors (and if this Lease shall not
have been terminated as in this Article 13 hereinafter provided) then Landlord,
to the extent permitted by available insurance proceeds, shall repair the damage
and restore and rebuild the Building and/or the Demised Premises with reasonable
dispatch after notice to Landlord of the damage or destruction; provided,
however, that Landlord shall not be required to repair or replace any of
Tenant's Property or the property that is deemed Landlord's Property pursuant to
Section 8.01 hereof, unless caused by the gross negligence or willful misconduct
of Landlord, its employees, agents, contractors or licensees.
Section 13.02. In the event all or a portion of the Demised Premises
shall be so damaged by fire or other casualty as to be rendered completely or
partially untenantable or in the event the Building shall be so damaged
(irrespective of whether or not the Demised Premises are damaged) so that all or
a portion of the Demised Premises shall be rendered untenantable, then, and in
any such event, Fixed Rent and the additional rent payable pursuant to Article 5
and 6 hereof shall be
(a) completely abated in the event all of the Demised
Premises shall be untenantable, or
(b) in the event only a portion of the Demised Premises
shall be untenantable, partially abated to the extent
that such Fixed Rent and additional rent shall be
allocable to such untenantable portion of the Demised
Premises,
in both cases only for the period from the date of such damage to the date (i)
such damage shall be substantially repaired, or (ii) if the Demised Premises are
not damaged but rendered untenantable because of damage to the Building, the
date on which the Demised Premises are again tenantable, provided, however,
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that if Tenant (or any sublessee(s) or licensee(s) of Tenant) should reoccupy
all or part of such untenantable space for the conduct of business therein prior
to the date that the damage thereto is substantially repaired or such space is
again tenantable, then the abatement of Fixed Rent and additional rent pursuant
to Article 5 and 6 hereof allocable to such reoccupied space shall cease as of
the date of such reoccupancy. The term "substantially repaired" as used herein
shall mean repaired except for such minor details or so called "punch-list"
items, the non-performance of which shall not preclude Tenant from reoccupying
the affected portion or all of the Demised Premises, as the case may be, and
conducting its business therein.
Section 13.03. In the event the Building or the Demised Premises
shall be totally damaged or destroyed by fire or other casualty, or in the event
the Building shall be so damaged or destroyed by fire or other casualty
(irrespective of whether or not the Demised Premises are damaged thereby) that
Landlord shall decide to demolish or rebuild it, or if the leases in the
Building affecting seventy-five (75%) percent or more of the Building are
terminated by either Landlord or tenants (or any combination thereof) then, and
in any of said events, Landlord shall have the option, exercisable by notice
given to Tenant within one hundred twenty (120) days after the date of the
casualty, to cancel and terminate this Lease as of a date specified in
Landlord's termination notice which date shall be not more than forty-five (45)
days after the giving of Landlord's termination notice, in which event the term
of this Lease shall cease and expire on the date specified in Landlord's notice
with the same force and effect as if such date were originally provided herein
as the expiration date of the term hereof.
Section 13.04. In the event of any damage or destruction mentioned in
this Article 13 which shall cause (a) the Demised Premises to be untenantable,
and if Landlord has not substantially completed the making of the repairs and
restoration required to be made by Landlord pursuant to the provisions of this
Article within a period of one year from the date of such damage or destruction,
which period, however, shall be extended by the number of days, if any, as shall
equal the aggregate number of days (but not in excess of one hundred twenty
(120) days) that Landlord may have been delayed in making such repairs and
restoration by reason of labor trouble, governmental controls, act of God,
adjustment of insurance loss or other similar causes beyond Landlord's
reasonable control, or (b) more than 50% of the total rentable area of the
Demised Premises shall be damaged by casualty during the last Lease Year, then
Tenant may terminate this Lease by notice given to Landlord within sixty (60)
days after the expiration of such one year period or longer (by reason of any
such extension) period in the event of (a), or within sixty (60) days of the
date of such casualty in the event of (b), as the case may be, effective as of a
date specified in such notice, which shall be not more than thirty (30) days
after
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the giving thereof, and the term of this Lease shall expire on such date with
the same force and effect as if such date were originally provided herein as the
expiration date of the term hereof.
Section 13.05. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article 13. Landlord shall use reasonable efforts to effect
such repair or restoration promptly and in such a manner (working, however,
during Business Hours of Business Days unless Landlord in its sole discretion
shall otherwise determine) as not to unreasonably interfere with Tenant's use
and occupancy of the Demised Premises.
Section 13.06. Notwithstanding any of the foregoing provisions of
this Article 13, if Landlord or any Superior Lessor or the holder of any
Superior Mortgage shall be unable to collect all of the insurance proceeds
(including, without limitation thereof, rent insurance proceeds) applicable to
damage or destruction of the Demised Premises or the Building by fire or other
cause, by reason of some action or inaction on the part of the Tenant or any of
its employees, agents or contractors, then, without prejudice to any other
remedies which may be available against Tenant, there shall be no abatement of
Fixed Rent or additional rent until the total amount of such rents not abated
which would otherwise have been abated equals the amount of uncollected
insurance proceeds.
Section 13.07. Landlord will not carry separate insurance of any kind
on Tenant's Property or on property which is deemed Landlord's Property pursuant
to Section 8.01 hereof and, except as provided in Section 13.01 hereof, Landlord
shall not be obligated to repair any damage thereto or restore or replace same,
the repair, restoration and replacement of which shall be Tenant's
responsibility and Tenant shall carry appropriate insurance thereon and on all
improvements and betterments made for or on behalf of Tenant in the Demised
Premises as required by Section 12.03 hereof.
Section 13.08. In the event of the termination of this Lease pursuant
to any of the provisions of this Article 13, this Lease and the term and estate
hereby granted shall expire as of the date of such termination with the same
effect as if such date were the date originally set forth herein as the
expiration date of the term hereof, and the Fixed Rent and additional rent
payable hereunder shall be apportioned as of such date subject, however, to any
applicable abatement to which Tenant may be entitled pursuant to the provisions
hereof.
Section 13.09. The provisions of this Article 13 shall be considered
an express agreement governing any case of damage
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or destruction of the Demised Premises by fire or other casualty, and Section
227 of the Real Property Law of the State of New York, providing for a
contingency in the absence of an express agreement and any other law of like
import, now or hereafter in force, shall have no application to the Demised
Premises and this Lease.
ARTICLE 14
LIMITATION OF LANDLORD'S LIABILITY: INDEMNIFICATION
---------------------------------------------------
Section 14.01. Neither Landlord nor any partner, director, officer,
agent, servant or employee of Landlord shall be liable to Tenant for
(a) any loss, injury or damage to property of Tenant or of
others entrusted to employees of the Building, or for any loss of or damage to
any property of Tenant or others by theft or action by a third party, or
(b) 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 said Building or from the pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other cause of whatsoever nature, unless caused by or due to
the gross negligence of Landlord, its agents, servants, employees, contractors,
licensees, or
(c) any of the foregoing damage, loss or injury caused by other
tenants or persons in the Building or caused by operations in construction of
any private, public or quasi-public work, or
(d) consequential damages arising out of any loss of use of, or
loss or damage to, all or any part of the Demised Premises or any equipment or
facilities therein whether or not caused by negligence.
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 remuneration therefor or any abatement of Fixed Rent or additional rent
hereunder nor shall the same release Tenant from any of its obligations
hereunder nor constitute an eviction. Notwithstanding the foregoing, Landlord
agrees not to permanently close, darken or brick up windows of the Demised
Premises except as a result of compliance with law.
Section 14.02. Tenant shall indemnify and hold harmless Landlord and
all Superior Lessors, Superior Mortgagees and its and their respective partners,
directors, officers,
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agents and employees from and against any and all claims arising
from or in connection with
(a) the conduct or management of the Demised Premises or of any
business therein, or any work or thing whatsoever done, or any condition created
(other than by Landlord or its agents, employees, contractors or licensees), in
or about the Demised Premises during the term of this Lease or any holdover
period or during the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Demised Premises;
(b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, officers, agents,
employees or contractors;
(c) any accident, injury or damage whatever (unless caused
solely by Landlord's gross negligence or the gross negligence of Landlord's
agents, employees, contractors or licensees), occurring in, at or upon the
Demised Premises; and
(d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; together with
all costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
reasonable attorneys fees and expenses. In case any action or proceeding be
brought against Landlord and/or any Superior Lessor or Superior Mortgage and/or
its or their partners, directors, officers, agents and/or employees by reason of
any such claim, Tenant, at its expense, upon notice from Landlord or such
superior lessor, shall resist and defend such action or proceeding by counsel
reasonably satisfactory to Landlord and/or such Superior Lessor or Superior
Mortgagee.
Section 14.03. Tenant agrees to look solely to Landlord's estate and
interest in the Land and Building, or the lease of the Building, or of the Land
and Building, and the Demised Premises (and/or the proceeds of any of the
foregoing), for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord, in the event of any liability by Landlord, and no other
property or assets of Landlord or its partners or principals, disclosed or
undisclosed, shall be subject to levy, execution, attachment, or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease, the relationship of Landlord and Tenant hereunder, or
Tenant's use and occupancy of the Demised Premises, or any other liability of
Landlord to Tenant.
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ARTICLE 15
MOVING OF HEAVY EQUIPMENT, FLOOR LOAD, NOISE, WINDOW CLEANING
-------------------------------------------------------------
Section 15.01. Tenant shall not move any safe, heavy equipment or
bulky matter in or out of the Building without Landlord's prior written consent
which consent Landlord agrees not to unreasonably withhold or delay. If the
movement of such items requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do said work and all such work
shall be done in full compliance with the Administrative Code of the City of New
York and other municipal requirements. All such movements shall be made during
hours which will least interfere with the normal operations of the Building, and
all damage to the Demised Premises caused by such movement shall be promptly
repaired by Tenant at Tenant's expense, and any damage to any part of the
Building and its systems may be repaired by Landlord at Tenant's expense.
Section 15.02. Tenant shall not place a load upon any floor of the
Demises Premises which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law.
Section 15.03. Business machines and mechanical equipment belonging
to Tenant which cause noise or vibration that may be transmitted to the
structure of the Building or to the Demised Premises to such a degree as to be
reasonably objectionable to Landlord or other tenants shall be placed and
maintained by the party owning the machines or equipment, at such party's
expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to eliminate noise or vibration.
Section 15.04. Tenant will not clean, nor require, permit, suffer or
allow any window in the Demised Premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or the rules of the Board of Standards
and Appeals or of any other board or body having or asserting jurisdiction.
ARTICLE 16
CONDEMNATION
------------
Section 16.01. If the whole Building or the Demised Premises shall be
taken by condemnation or in any other manner for which any public or
quasi-public use or purpose (other than in a temporary taking for use, as to
which Section 16.04 shall apply) this Lease and the term and estate hereby
granted shall terminate as of this date of vesting of title on such taking
(herein called the "Date of the Taking"), and the Fixed Rent and additional rent
shall be prorated and adjusted as of such date.
Section 16.02. If twenty percent (20%) or more of the Demised
Premises or if twenty percent (20%) or more of the
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Building shall be so taken, this Lease shall be unaffected by such taking except
that
(a) With respect to the taking of 20% or more of the Building,
Landlord may, at its option, terminate this Lease by giving Tenant notice to
that effect within sixty (60) days after the Date of the Taking, and
(b) if twenty percent (20%) or more of the Demised Premises
shall be so taken and the remaining area of the Demised Premises and/or the
means of access (provided, however, that Landlord shall have a reasonable period
of time from the date of taking to create a new means of access to the Demised
Premises) shall not be reasonably sufficient for Tenant to continue the feasible
operation of its business therein, Tenant may terminate this Lease by giving
Landlord notice to that effect within ninety (90) days after the Date of the
Taking. This Lease shall terminate on the date specified in such notice from
Landlord or Tenant which shall be not less than sixty (60) days from the date of
such notice, and the Fixed Rent and additional rent shall be prorated and
adjusted as of such termination date. Upon such partial taking and this Lease
continuing in force as to any part of the Demised Premises, the Fixed Rent and
additional rent shall be adjusted according to the rentable area remaining.
Section 16.03. Landlord shall be entitled to receive the entire award
payment in connection with any taking without deduction therefrom for any estate
vested in Tenant by this Lease and Tenant shall receive no part of such award
except as hereinafter expressly provided in this Article. Tenant hereby
expressly assigns to Landlord all of its rights, title and interest now or
hereinafter arising in and to every such award or payment. Notwithstanding the
foregoing, in the event of a termination of this Lease by reason of any taking,
Tenant may make separate claim for its fixtures and leasehold improvements not
deemed to be Landlordes Property pursuant to this Lease actually taken and for
moving expenses.
Section 16.04. If the temporary use or occupancy of all or any part
of the Demised Premises shall be taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award or payment for such taking which repre8ents compensation
for use and occupancy of the Demised Premises, for the taking of Tenant's
Property and for moving expenses, and Landlord shall be entitled to receive that
portion which represents reimbursement for the cost of restoration of the
Demised Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall continue responsible for all of its obligations hereunder insofar
as such obligations are not affected by such taking and shall continue to pay in
full the Fixed Rent and additional rent when due. If the period of
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temporary use of occupancy shall be extended beyond the expiration date of this
Lease, that part of the award which represents compensation for the use and
occupancy of the Demised Premises (or a part thereof) shall be apportioned
between Landlord and Tenant so that Landlord shall receive for its own account
so much thereof as shall be allocable to the period after such expiration date,
and such portion thereof as shall be allocable up to and including such
expiration date shall be received, held and applied by Landlord as a trust fund
for payment of the Fixed Rent and additional rent becoming due hereunder during
such period prior to Landlord's receipt of such trust funds, Landlord shall
reimburse Tenant therefor out of such trust funds when received by Landlord.
Section 16.05. In the event of any taking of less than the whole of
the Building and/or the Land which does not result in a termination of this
Lease, or in the event of a taking for a temporary use or occupancy of all or
any part of the Demised Premises which does not result in a termination of this
Lease, Landlord, at its expense, and whether or not any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
the remaining parts of the Building and the Demised Premises (other than those
part of the Demised Premises which are Tenant's Property) to substantially their
former condition to the extent that the same may be feasible (subject to
reasonable changes which Landlord shall deem desirable) and so as to constitute
a tenantable Building and Demised Premises.
ARTICLE 17
CONDITIONS OF LIMITATION
------------------------
Section 17.01. This Lease and the term and estate hereby granted are
subject to the limitations that:
(a) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall file a voluntary petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law
(foreign or domestic) or shall make an assignment for benefit of creditors, or
shall seek or consent or acquiesce in the appointment of any trustee, receiver
or liquidator of Tenant or of all or any part of Tenant's Property; or
(b) if, within ninety (90) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future applicable federal,
state or other statute or law (foreign or domestic,) such proceeding shall not
have been dismissed, or if within ninety
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(90) days after the appointment of any trustee, receiver or liquidator of Tenant
or of all or any part of Tenant's Property, without the consent or acquiescence
of Tenant, such appointment shall not have been vacated or otherwise discharged;
or
(c) if any execution or attachment shall be issued against
Tenant or any of Tenant's Property pursuant to which the Demised Premises shall
be taken or occupied or attempted to be taken or occupied, then Landlord at any
time after the occurrence of any such event, may give Tenant a notice of
intention to end the term of this Lease at the expiration of three (3) days from
the date of the giving of such notice of intention, and upon the expiration of
said three (3) day period this Lease and the term and estate hereby granted,
whether or not the term shall theretofore have commenced, shall terminate with
the same effect as if that day were the expiration date of this Lease, but
Tenant shall remain liable for damages as provided in Article 19 hereof.
Section 17.02. This Lease and the term and estate hereby granted are
subject to the further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent or
additional rent, and such default shall continue uncured for ten (10) days after
notice by Landlord to Tenant of such default; or
(b) if Tenant shall, whether by action or inaction, be in
default of any of its obligations under this Lease other than a default in the
payment of any Fixed Rent or additional rent and such default shall continue and
not be remedied within thirty (30) days after notice by Landlord to Tenant of
such default, or, if such default is of such a nature that it cannot with due
diligence be remedied within said period of thirty (30) days, if Tenant shall
not (i) promptly upon the giving by Landlord of such notice, give notice to
Landlord of Tenant's intention to institute all steps necessary to remedy such
default, (ii) promptly institute and thereafter diligently and with continuity
prosecute to completion all steps necessary to remedy the default, and (iii)
complete such remedy within a reasonable time after the date of the giving of
said notice by Landlord and in any event prior to such time as would either (x)
subject Landlord, or any directors, officers, partners or employees or agents of
Landlord, or any Superior Lessor, or Superior Mortgagee to prosecution for a
crime or (y) cause a default under any Superior Lease or any Superior Mortgage;
or
(c) if any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 11; or
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(d) if Tenant shall abandon the Demised Premises; or
(e) if there shall be any default by Tenant (or any person
which, directly or indirectly, controls, is controlled by, or is under common
control with Tenant) under any other lease with Landlord for space in the
Building which shall not be remedied within the applicable grace period, if any,
provided therefor in such other lease, then and in any of said events, Landlord
may give to Tenant a notice of intention to terminate this Lease and to end the
term and estate hereby granted at the expiration of three (3) days from the date
of the giving of such notice, and upon the expiration of said three (3) day
period, this Lease and the term and estate hereby granted, whether or not the
term shall theretofore have commenced, shall terminate with the same effect as
if such third day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 19 hereof.
Section 17.03. Nothing in Sections 17.01 or 17.02 shall be deemed to
require Landlord to give the notices therein provided for prior to the
commencement of a summary proceeding for nonpayment of rent or a plenary action
for recovery of rent on account of any default in the payment of the same, it
being intended that such notices are for the sole purpose of creating a
conditional limitation hereunder pursuant to which this Lease shall terminate
and if Tenant thereafter remains in possession after such a termination, it
shall do so as a holdover tenant.
ARTICLE 18
RE-ENTRY BY LANDLORD
--------------------
WAIVER OF RIGHT OF REDEMPTION
-----------------------------
Section 18.01. If Tenant shall default in the payment of any Fixed
Rent or additional rent, and such default shall continue for ten (10) days after
notice by Landlord to Tenant of such default, or if this Lease shall terminate
as provided in Article 17:
(a) Landlord or Landlord's agent or employees may immediately or
at any time thereafter peaceably re-enter the Demised Premises, or any part
thereof, either by summary dispossess proceedings or by any other suitable
action or proceeding at law, or by force or otherwise (without being liable to
indictment, prosecution or damages therefore) and may repossess the same and
dispossess Tenant and any other person(s) from the Demised Premises and may
remove Tenant or any and all of their property and effects therefrom, without
liability for damages thereto or accountability therefor, to the end that
Landlord may have, hold and enjoy the Demised Premises, provided however, in no
event, shall any such re-entry be deemed an acceptance of surrender under this
Lease;
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(b) Landlord, at its option, may relet the whole or any
portion(s) of the Demised Premises from time to time, either in the name of the
Landlord or otherwise, to such tenant or tenants, for such term or terms ending
before, or on or after the date originally provided herein as the expiration
date of the term hereof, at such rentals and upon such other conditions, which
may include concessions and free rent period, as Landlord in its sole discretion
may determine. Landlord shall have no obligation to relet the Demised Premises
or any portion thereof and shall in no event be liable for refusal or failure to
relet the Demised Premises or any portion thereof or, in the event of any such
reletting, for failure to collect any rent due upon such reletting, and no such
refusal or failure shall operate to release or relieve Tenant from any liability
under this Lease or otherwise to affect such liability. Further, Landlord may
make such repairs, improvements, alterations, additions, decorations and other
physical changes in and to the Demised Premises as Landlord in its discretion
considers advisable or necessary in connection with any such reletting or
proposed reletting, without releasing or relieving Tenant from any liability
under this Lease or otherwise affecting any such liability; and
(c) the words "re-enter", "re-entry" and "re-entered" as used
in this Lease shall not be deemed to be restricted to their technical legal
meanings. If this Lease is terminated under the provisions of Article 17, or if
Landlord shall re-enter the Demised Premises pursuant to the provisions of this
Article, or in the event of the termination of this Lease, or of re-entry, by or
pursuant to any summary dispossess or other proceedings or action or any
provision of law by reason of default hereunder on the part of the Tenant:
(i) Tenant shall thereupon pay to Landlord the Fixed Rent and
additional rent payable up to the time of such termination of
this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, (ii) Tenant shall also
pay to Landlord damages as provided in Article 19, and (iii)
Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or
otherwise, but such monies shall be credited by Landlord against
any Fixed Rent or additional rent due from Tenant at the time of
such termination or re-entry or, at Landlord's option, against
any damages payable by Tenant under Article 19 or pursuant to
law.
Section 18.02. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant including all creditors, does hereby expressly
waive any and all rights, so far as is permitted by law, which Tenant and all
such persons might otherwise have to
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(a) the service of any notice of intention to re- enter or to
institute legal proceedings to that end,
(b) redeem the Demised Premises or any interest therein,
(c) re-enter or repossess the Demised Premises, or
(d) restore the operation of this Lease after Tenant shall have
been dispossessed by a judgment or by a warrant of any court or judge, or after
any re-entry by Landlord, or after any termination of this Lease, whether such
dispossess, re-entry by Landlord or termination shall be by operation of law or
pursuant to the provisions of this Lease.
Section 18.03. In the event of a breach or threatened breach by
Tenant of any of its obligations under this Lease, Landlord shall also have the
right of injunction. The special remedies to which Landlord may resort hereunder
are cumulative and are not intended to be exclusive of any other remedies to
which Landlord may lawfully be entitled at any time and Landlord may invoke any
remedy allowed at law or in equity as if specific remedies were not provided for
herein.
ARTICLE 19
LANDLORD'S REMEDIES DAMAGES
---------------------------
Section 19.01. If this Lease is terminated pursuant to the provisions
of Article 17, or if Landlord shall re-enter the Demised Premises pursuant to
the provisions of Article 18, or in the event of the termination of this Lease,
or of re-entry, by or pursuant to any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(a) a sum which at the time of such termination of this Lease or
at the time of such re-entry by landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate amount of the Fixed Rent
and the additional rent under Articles 5 and 6 which would have been payable by
Tenant (conclusively presuming the average monthly additional rent under
Articles 5 and 6 to be the higher of (x) the same additional rent payable under
said Articles as were payable for the year, or if less than three hundred and
sixty five (365) days have then elapsed since the commencement Date, the partial
year immediately preceding such termination or re-entry) or (y) the projected
additional rent payable under said Articles utilized in determining aggregate
rental value pursuant to clause (ii) hereof, for the period commencing with such
earlier termination of this Lease or the date of such re-entry, as the case may
be, and en4ing with the date contemplated as the expiration date
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hereof if this Lease had not so terminated or if Landlord had not so re-entered
the Demised Premises for the same period, over (ii) the aggregate rental value
of the Demised Premises for the same period, or
(b) sums equal to the Fixed Rent and the additional rent which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and until
the date contemplated as the expiration date hereof if this Lease had not so
terminated or if Landlord had not so re-entered the Demised Premises during said
period, provided, however, that if Landlord shall relet the Demised Premises
during said period, Landlord shall credit Tenant with the net rents received by
Landlord for such reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as well as
the expenses of reletting, including, without limitation, altering and preparing
the Demised Premises for new tenants, brokers' commissions, legal fees, and all
other expenses properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a period
shorter or longer than the remaining term of this Lease and that such reletting
may be of all or portion(s) of the Demised Premises either alone or together
with other space in the Building (in which event the net rents therefrom and the
expenses of reletting shall be equitably apportioned); but in no event shall
Tenant be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this subdivision to a credit in respect Cf
any net rents from a reletting, except to the extent that such net rents are
actually received by Landlord.
If the Demised Premises or any portion(s) thereof be relet by
Landlord for the unexpired portion of the term of this Lease, or any portion
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima facie,
be the fair and reasonable rental value for the Demised Premises, or portion
thereof, so relet during the term of the reletting.
Section 19.02. An action or actions for the recovery of such damages,
or any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be:
(a) deemed to require Landlord to Postpone action until the date
when the term of this Lease would have expired if it had not been so terminated
under the provisions of Article 17,
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or under any provision of law, or had Landlord not re-entered the Demised
Premises;
(b) construed to limit or preclude recovery by Landlord against
Tenant of any sums or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant; or
(c) construed to limit or prejudice the right of Landlord to
prove for and obtain as damages by reason of the termination of this Lease or
re-entry in the Demised Premises for the default of Tenant under this Lease 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 any of the
lums referred to in Section 19.01.
Section 19.03. In addition, if this Lease is terminated under the
provisions of Article 17, or if Landlord shall re-enter the Demised Premises
under the provisions of Article 18, Tenant agrees that:
(a) the Demised Premises then shall be in the same condition as
that in which Tenant has agreed to surrender the same to Landlord at the
expiration of the term hereof in accordance with this Lease;
(b) Tenant shall have performed prior to any such termination
any covenant of Tenant contained in this Lease for the making of any alteration
or for restoring or rebuilding the Demised Premises or the Building, or any part
thereof; and
(c) for the breach of any covenant of Tenant set forth above in
this Section 19.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the cost of complying with such covenant (as
estimated by an independent contractor selected by Landlord)
Section 19.04. In addition to any other remedies Landlord may have
under this Lease, and without reducing or adversely affecting any of Landlord's
rights and remedies under Article 17, if any Fixed Rent, additional rent or
damages payable hereunder by Tenant to Landlord are not paid within five (5)
days after the date due hereunder, the same shall bear interest at the rate of
one and one-half percent (1.5%) per month or the maximum rate permitted by law,
whichever is less, from the due date thereof until paid, and the amount of such
interest shall be additional rent hereunder.
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ARTICLE 20
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
------------------------------------------------
Section 20.01. If Tenant shall default in the observance or
performance of any term or covenant on its part to be observed or performed
under or by virtue of any of the terms or provisions in any Article of this
Lease, Landlord, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account and at the expense
of Tenant, without notice in the event of an emergency, and in any other event
only if such default shall continue uncured after (i) notice of such default
shall have been given by Landlord to Tenant, and (ii) any applicable grace
period for curing same shall have expired. Tenant shall reimburse Landlord, as
additional rent hereunder, within five (5) days after Landlord's rendition of a
statement therefor for all expenditures made by, or damages or fines sustained
or obligations incurred by Landlord including, without limitation, reasonable
counsel fees and legal fees in instituting, prosecuting or defending any action
or proceedings, 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.
ARTICLE 21
SERVICES AND EQUIPMENT
----------------------
Section 21.01. For purposes of this Lease,
(a) the term "Business Days" shall mean all days excluding
Saturdays, Sundays and days observed by the State or City of New York or Federal
Government as legal holidays, and further excluding holidays established by any
union contract applicable to Building employees, and
(b) the term "Business Hours" shall mean the hours from 8:00
a.m. to 6:00 p.m. of Business Days.
Section 21.02. So long as this Lease is in full force and effect, and
Tenant is not in default of any monetary obligations past applicable notice and
cure periods, Landlord shall, at its sole cost and expense:
(a) provide necessary elevator facilities to the Demised
Premises during Business Hours of Business Days and shall have sufficient
elevators available at all other times serving the Demised Premises. At
Landlord's option, the elevators shall be operated by automatic control or by
manual control, or by a combination of both of such methods;
(b) maintain and keep in good order and repair all Building
systems, including the air conditioning, heating and ventilating systems
installed by Landlord. The aforesaid systems
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will be operated by Landlord when seasonably required during Business Hours on
Business Days to provide a comfort level and service comparable to other
first-class buildings in the vicinity of the Building. Landlord shall have no
responsibility or liability for the ventilating conditions and/or temperature of
the Demised Premises during the hours or days Landlord is not required to
furnish heat, ventilation or air conditioning pursuant to this section, except
in the event Landlord is required to provide, and charges Tenant for, overtime
heat, ventilation or air conditioning as hereinafter provided in this Section
21.02(b). Landlord has informed Tenant that the windows of the Demised Premises
and the Building are or may be sealed, and that the Demised Premises may become
uninhabitable and the air therein may become unwholesome during the hours or
days when Landlord is not required pursuant to this paragraph to furnish heat,
ventilation or air conditioning. Any use or occupancy of the Demised Premises
during the hours or days Landlord is not so required to furnish heat,
ventilation or air conditioning to the Demised Premises shall be at the sole
risk, responsibility and hazard of Tenant. Such condition of the Demised
Premises shall not constitute nor be deemed to be a breach or a violation of
this Lease or of any provision thereof, nor shall it be deemed an eviction nor
shall Tenant claim or be entitled to claim any abatement of rent nor make any
claim for any damages or compensation by reason of such condition of the Demised
Premises. Tenant shall in any event cause all of the windows in the Demised
Premises to be kept closed and shall cause and keep entirely unobstructed all of
the vents, intakes, outlets and grilles, at all times and shall comply with and
observe all regulations and requirements prescribed by Landlord for the proper
functioning of the heating, ventilating and air-conditioning systems. In the
event that Tenant shall require air conditioning, heating or ventilation at
times when same are not required to be furnished by Landlord, Tenant shall give
Landlord reasonable advance notice of such requirement and, if same is furnished
by Landlord, Tenant agrees to pay Landlord's then established charges therefor
as addittonal rent; overtime air-conditioning, heating or ventilation is to be
provided at Landlord's actual cost.
(c) provide Building standard cleaning and janitorial services
in accordance with the provisions of Exhibit "D" hereof;
(d) furnish hot and cold water for lavatory and drinking and
office cleaning purposes. If Tenant requires, uses or consumes water for any
other purposes, Landlord may install a meter or meters or use other means to
measure Tenant's water consumption for all purposes, and Tenant shall reimburse
Landlord for the cost of the meter or meters and the installation thereof, and
shall pay for the maintenance of said meter equipment and/or pay Landlord's cost
of other means of measuring such water consumption by Tenant. Tenant shall
reimburse Landlord for the
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cost of all water consumed, as measured by said meter or meters or as otherwise
measured, including sewer rents; and
(e) provide Tenant with twelve (12) listings in the Building's
directory.
Section 21.03. (a) Landlord reserves the right to interrupt, curtail
or suspend the services required to be furnished by Landlord under this Article
21 when the necessity therefore arises by reason of accident, emergency,
mechanical breakdown, or when required by any law, order or regulation of any
federal, state, county or municipal authority, or for any other cause beyond the
reasonable control of Landlord. Landlord shall use reasonable efforts to
complete all repairs or other work so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will permit.
Landlord acknowledges that nothing contained in this Lease shall preclude Tenant
from bringing, and Tenant shall have the right to bring, an action for damages
against Landlord resulting from a Service Interruption or Elevator Interruption.
(b) In the event that there shall be an interruption,
curtailment or suspension of the Building's electricity service, heating,
ventilating or air conditioning systems (a "Service Interruption"), and if (i)
such Service Interruption shall continue for at least five (5) consecutive
Business Days following receipt by Landlord of written notice from Tenant
describing such Service Interruption, (ii) such Service Interruption shall
materially impair the operation of Tenant's business in the Demised Premises,
render the Demised Premises untenantable and cause Tenant not to use the Demised
Premises for the conduct of its business and (iii) such Service Interruption
shall not have been caused, in whole or in part, by an act or omission in
violation of this Lease or negligence of Tenant, or of Tenant's agents,
servants, employees, contractors or visitors (a Service Interruption that
satisfies all of the foregoing conditions being referred to hereinafter as a
"Material Service Interruption"), then, as Tenant's sole remedy in connection
with such Material Service Interruption, Tenant shall be entitled to an
abatement of Fixed Rent and additional rent payable pursuant to Articles 5, 6
and 7 for the period which shall begin on the commencement of such Material
Service Interruption and which shall end on the earlier of the day of which (a)
such Material Service Interruption shall cease or (b) Tenant shall recommence
use of the Demised Premises.
(c) In the event that there shall be an interruption,
curtailment or suspension of the Building's elevator facilities (an "Elevator
Interruption"), and if (i) such Elevator Interruption shall continue for at
least five (5) consecutive Business Days following receipt by Landlord of
written notice from Tenant describing such Elevator Interruption, (ii) such
Elevator Interruption shall render the Demised Premises
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inaccessible and cause Tenant not to use the Demised Premises for the conduct of
its business and (iii) such Elevator Interruption shall not have been caused, in
whole or in part, by an act or omission in violation of this Lease or negligence
of Tenant or o'f Tenant's agents, servants, employees, contractors or visitors
(an Elevator Interruption that satisfies all of the foregoing conditions being
referred to hereinafter as a "Material Elevator Interruption"), then, as
Tenant's sole remedy in connection with such Material Elevator Interruption,
Tenant shall be entitled to an abatement of Fixed Rent and additional rent
payable pursuant to Articles 5, 6 and 7 for the period which shall begin on the
commencement of such Material Elevator Interruption and which shall end on the
day Tenant may obtain access to the Demised Premises through at least one
elevator.
Section 21.04. Tenant shall reimburse Landlord for the cost to
Landlord of removal from the Demised Premises and the Building of so much of any
refuse and rubbish of Tenant as shall exceed that ordinarily accumulated daily
in the routine of business office occupancy or by any use of the Demised
Premises during other than Business Hours.
Section 21.05. It is expressly agreed that only Landlord or any one
or more persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen, towels, drinking water, ice and other
similar supplies and services to tenants and occupants of the Building. Landlord
may fix, in its own absolute discretion, at any time and from time to time, the
hours during which and the regulations under which such supplies and services
are to be furnished. Landlord expressly reserves the right to act as or to
designate, at any time and from time to time, an exclusive supplier of all or
any one or more of the said suppliers and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers; and Landlord furthermore expressly reserves the right to exclude from
the Building any person, firm or corporation attempting to furnish any of said
supplies or services not so designated by Landlord.
Section 21.06. Deleted prior to execution.
Section 21.07. Tenant agrees to employ such office maintenance
contractor as Landlord may from time to time designate for all waxing,
polishing, lamp replacement, cleaning (other than those cleaning services
Landlord is obligated to furnish) and the maintenance work in the Demised
Premises, provided that the quality thereof and the charges therefor are
reasonably comparable to that of other contractors. Tenant shall not employ any
other contractor without Landlord's prior written consent, which shall not be
unreasonably withheld or delayed.
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Section 21.08. Landlord will not be required to furnish any other
services, except as may otherwise be specified in this Lease.
Section 21.09. Tenant, at its sole cost and expense, shall cause the
Demised Premises to be exterminated on a monthly basis to the satisfaction of
Landlord and shall for such purposes employ exterminators designated by
Landlord. If Tenant shall have facilities in the Demised Premises for cooking,
drinking, eating, washing and/or storage of food, or similar items, Tenant
shall, on a weekly basis, cause the portion of the Demised Premises on which
such facilities are located to be exterminated to the satisfaction of Landlord
by exterminators designated by Landlord. The foregoing shall not, however,
constitute any approval or consent to the use of the Demised Premises for such
purposes.
If Tenant fails to comply with the provisions of this Section 21.09,
Landlord, in addition to any other remedies available to it under this Lease or
pursuant to law, may furnish such exterminating service and the cost therefor
shall be paid by Tenant on demand as additional rent hereunder.
ARTICLE 22
ACCESS. RIGHT TO CHANGE PUBLIC PORTIONS OF BUILDING
---------------------------------------------------
Section 22.01. Except for the space within the inside surfaces of all
walls, hung ceilings, floors, windows (which term "windows" shall include any
film now or hereafter installed thereon by Landlord, at its option, to conserve
energy in the Building) and doors bounding the Demised Premises, all of the
Building, including, without limitation, exterior Building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the Demised Premises and any space in or adjacent to the Demised Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord, subject to
Tenant's rights under this Lease.
Section 22.02. Landlord reserves the right, and Tenant shall permit
Landlord, to install, erect, use and maintain pipes, ducts and conduits in and
through the Demised Premises. Landlord shall use reasonable efforts to install
new pipes, ducts and conduits so that same are substantially located within the
walls, columns, floor or hung ceilings of the Demised Premises, or, in the case
of vertical lines, adjacent to the walls of the Demised Premises to the extent
practicable and appropriately furred by Landlord at its sole cost and expense.
Landlord shall use reasonable efforts to perform such installation, use and
maintenance of these items so that same shall not unreasonably interfere with
Tenant's use and enjoyment of the Demised
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Premises. Landlord agrees that the foregoing work will not materially diminish
the ceiling height and/or the floor area, and Tenant's use of the Demised
Premises shall not be materially affected after such installation.
Notwithstanding the foregoing, there shall be no liability of Landlord, nor any
right of Tenant to terminate this Lease or xxxxx its rental obligations, for
Landlord's breach under this section, and Tenant's sole remedy shall be
injunctive relief.
Section 22.03. Subject to the provisions of this Lease specifying the
time and manner in which Landlord may perform any of its obligations and
exercise any of its rights hereunder, Landlord and its employees and agents
shall have the right, on reasonable prior notice, except in an emergency, to
enter and/or pass through the Demised Premises at any time or times (a) to
examine the Demised Premises and to show same to actual and prospective lessors,
mortgagees, purchasers, or lessees of the Land and/or the Building or any
interest therein, and (b) to make such repairs, changes, alterations, additions
and improvements in or to the Demised Premises and/or in or to any portion(s) of
the Building facilities, equipment and systems located in or passing through the
Demised Premises as Landlord is required by law or reasonably desires to make.
Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be required in connection therewith without any liability to
Tenant and without the same constituting an eviction of Tenant, in whole or in
part, and without any abatement or reduction in Fixed Rent or additional rent
payable hereunder or any reduction of Tenant's covenants and obligations
hereunder. Without limiting the generality of the foregoing, except in case of
emergency, neither Landlord nor any other party entitled access to the Demised
Premises, as set forth above, shall be entitled access to areas of the Demised
Premises in which cash, securities, or confidential material are stored except
in the presence of Tenant's representative (and only during Business Hours).
Section 22.04. Subject to Section 22.02, Tenant shall permit Landlord
to use and maintain and replace pipes and conduits in and through the Demised
Premises and to erect new pipes and conduits therein. Subject to the provisions
of this Lease specifying the time and manner in which Landlord may perform any
of its obligations and exercise any of its rights hereunder, Landlord may,
during the progress of any work in the Demised Premises, take all necessary
materials and equipment into the Demised Premises without the same constituting
an eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Throughout the term hereof Landlord shall have the right
to enter the Demised Premises at reasonable hours upon reasonable prior notice
for the purpose of showing the same to prospective purchasers or mortgages of
the building, and during the last eighteen (18) months of the term for the
purpose of showing the same to
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prospective tenants. If Tenant is not present to open and permit an entry into
the premises, Landlord or Landlord's agent may enter the same whenever such
entry may be necessary or permissable by master key or forcibly and provided
reasonable care is exercised to safeguard Tenant's property and such entry shall
not render Landlord or its agents liable therefor unless caused by or due to the
gross negligence or willful misconduct of Landlord, its agents, employees,
contractors or licensees nor in any event shall the obligations of Tenant
hereunder be affected.
Section 22.05 If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, rigging,
maintenance and/or cleaning in or about the Building, or if any part of the
Building other than the Demised Premises is temporarily or permanently closed or
inoperable, the same shall be without liability to Landlord and without any
reduction or diminution of Tenant's obligations under this Lease.
Notwithstanding the foregoing, Landlord shall not permanently close, darken or
brick up the windows of the Demised Premises except as required by law.
Section 22.06. If, during the last three (3) months of the term of
this Lease, Tenant has removed all or substantially all of Tenant's property
from the Demised Premises and is no longer using the Demised Premises, Landlord
may, upon reasonable prior written notice to Tenant, immediately enter the
Demised Premises and alter, renovate and decorate the same, without liability to
Tenant and without reducing or otherwise affecting Tenant's covenants and
obligations hereunder.
Section 22.07. Landlord reserves the right at any time, without
incurring any liability to Tenant therefor, and without affecting or reducing
any of Tenant's covenants and obligations hereunder, to make such changes,
alterations, additions and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, doors, halls,
passageways, elevators, escalators and stairways thereof, and other public parts
of the Building, as Landlord shall deem necessary or desirable, provided any
such change does not materially diminish Tenant's access to the Demised
Premises, materially and adversely interfere with Tenant's use of the Demised
Premises or the services or facilities furnished or available to the Demised
Premises.
ARTICLE 23
INVALIDITY OF ANY PROVISION
---------------------------
Section 23.01. If any term, covenant, condition or provision of this
Lease or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease, or the application
thereof to any circumstances or to any person, firm
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or corporation other than those as to which any term, covenant, condition or
provision is held invalid or unenforceable, shall not be affected thereby and
each remaining term, covenant, condition and provision of this Lease shall be
valid and shall be enforceable to the fullest extent permitted by law.
ARTICLE 24
BROKER
------
Section 24.01. Tenant and Landlord covenant, warrant and represent
that no broker other than JNB Properties Company and its affiliates, as
Landlord's agent, and X.X. Xxxxxxxxxxx & Company, Inc., (individually and
collectively referred to as the "Broker") was in any way instrumental in
bringing about or consummating this Lease and that neither Landlord nor Tenant
had any conversations or negotiations with any broker other than Broker
concerning the leasing of the Demised Premises. Tenant and Landlord each agree
to indemnify the other and hold the other harmless against and from any claims
for any brokerage commissions and all costs, expenses and liabilities in
connection therewith including, without limitation, attorneys' fees and expenses
arising out of any conversations or negotiations had by Tenant or Landlord, as
the case may be, with any broker other than Broker. Subject to the foregoing,
Landlord agrees to pay any commissions earned by Broker in connection with this
Lease pursuant to separate agreements.
ARTICLE 25
SUBORDINATION
-------------
Section 25.01. This Lease and all rights of Tenant hereunder are
subject and subordinate to all ground leases, overriding leases and underlying
leases of the Land and/or the Building now or hereafter existing (any of the
foregoing being herein referred to as a "Superior Lease") and to all mortgages
which may now or hereafter affect the Land and/or the Building and/or any of
such leases (any of the foregoing being herein referred to as a "Superior
Mortgage") whether or not such Superior Mortgages shall also cover other lands
and/or buildings and/or leases, to each and every advance made or hereafter to
be made under such Superior Mortgages, and to all renewals, modifications,
consolidations, replacements and extensions of such Superior Leases and such
Superior Mortgages. This Section shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
certificate that Landlord, the lessor under any Superior Lease or the holder of
any Superior Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instruments within seven (7) business
days after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact,
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coupled with an interest, to execute any such certificate or certificates for
and on behalf of Tenant.
Section 25.02. At the option of Landlord or any successor landlord,
including the holder of any Superior Mortgage, the purchaser of the mortgaged
premises in foreclosure and any lessor under any Superior Lease who shall
succeed to the Landlord's interest herein (collectively the "Successor
Landlord"), Tenant agrees that neither the cancellation nor termination of any
Superior Lease to which this Lease is now or may hereafter become subject or
subordinate, nor any foreclosure of a Superior Mortgage affecting the Land
and/or the Building and/or the Demised Premises, nor the institution of any
suit, action, summary or other proceeding against the Landlord herein or any
successor to Landlord, or any foreclosure proceeding brought by the holder of
any such Superior Mortgage (any such holder being herein referred to as a
"Superior Mortgagee") to recover possession of the premises covered thereby,
shall by operation of the law or otherwise result in cancellation or termination
of this Lease or the obligations of the Tenant hereunder, and upon the option of
and at the request of any such Successor Landlord, Tenant covenants and agrees
to attorn to and recognize such Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct Lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not
(a) be liable for any previous act or omission of Landlord under
this Lease;
(b) be subject to any offset not expressly provided for in this
Lease, which theretofore shall have accrued to Tenant against Landlord; or
(c) be bound by any previous modification of this Lease or by
any previous prepayment of more than one month's Fixed Rent or additional rent,
unless such modification or prepayment shall have been expressly approved in
writing by the lessor of the Superior Lease or the holder of the Superior
Mortgagee, through or by reason of which the Successor Landlord shall have
succeeded to the rights of Landlord under this Lease.
Section 25.03. In the event of any act or omission by the Landlord
which would give the Tenant the right to terminate this Lease or to claim a
partial or total eviction, pursuant to the terms of this Lease, if any, the
Tenant will not exercise any such right until (a) Tenant has given written
notice of such act or omission to: (i) the holders of any Superior Mortgages
whose names and addresses shall previously have been furnished to
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Tenant, and (ii) to the lessors under any Superior Leases to which this Lease is
subject and subordinate, whose names and addresses shall previously have been
furnished to Tenant, by delivering such notice of such act or omission addressed
to such holders at the last addresses so furnished, and (b) a reasonable period
for remedying such act or omission shall have elapsed following the giving of
such notice during which none of such parties, following the giving of such
notice, has given notice to Tenant of its intention to remedy such act or
omission or to cause the same to be remedied (which period shall not be in
excess of that period of time with respect to which Landlord would be entitled
under this Lease to effect such remedy, unless such act or omission shall be one
which is not capable of being remedied by Landlord or such holder or lessor
within a reasonable period of time) and promptly commences and thereafter
continues with reasonable diligence to remedy such act or omission or cause the
same to be remedied.
Section 25.04. If, in connection with obtaining financing, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications of this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not, in Tenant's reasonable opinion, materially 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.
Section 25.05. (a) Notwithstanding anything contained herein to the
contrary, Landlord shall use its best efforts to obtain and deliver on or before
the Commencement Date, and, if not obtained and delivered on or before the
Commencement Date, Landlord shall continue thereafter to use its best efforts to
obtain and deliver, a Subordination of Mortgage from Teachers Insurance and
Annuity Association of America ("XXX") substantially in the form attached hereto
as Exhibit "E", the holder of a Superior Mortgage, which Subordination of
Mortgage Tenant shall accept and sign, provided that such Subordination of
Mortgage does not adversely affect Tenant's right of offset as described in
Article 43. If, after using its best efforts, Landlord shall fail to obtain a
Subordination of Mortgage from XXX by April 1, 1993, Landlord's obligation to so
obtain and deliver a Subordination of Mortgage pursuant to the provisions of
this Section 25.05(a) terminates, and, the validity of this Lease shall not be
affected, nor shall Landlord be subject to any liability to Tenant resulting
from such failure. Tenant shall be responsible for any costs, expenses, fees or
charges incurred by or charged to Landlord, or otherwise due and payable in
connection with obtaining a Subordination of Mortgage pursuant to this Section
25.05(a), and nothing contained in this Section 25.05 shall be deemed to require
Landlord to institute any legal action or proceeding to compel XXX to deliver
such Subordination of Mortgage. Landlord represents and warrants that, as of the
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date hereof, the Superior Mortgage held by XXX is the sole Superior Mortgage
affecting the Land and/or Building and there are no Superior Leases affecting
the Land and/or the Building.
(b) Furthermore, in consideration of, and as an express
condition precedent to, Tenant's agreement to permit its interest pursuant to
this Lease to be subject and subordinate to a Superior Lease or the lien of any
Superior Mortgage entered into after the date hereof, and provided Tenant is not
in default under this Lease beyond the expiration of applicable notice and cure
periods, Landlord shall deliver to Tenant a subordination, non-disturbance and
attornment agreement executed and delivered by the Superior Mortgagee or the
lessor under such Superior Lease ("Superior Lessor"), as the case may be, and in
recordable form reasonably satisfactory to the Superior Mortgagee, Superior
Lessor and Tenant, and Tenant agrees to execute and deliver any such
subordination, non-disturbance and attornment agreement. If Landlord elects not
to request such subordination, non-disturbance and attornment or in the event
Landlord fails to deliver such agreement to Tenant in accordance with the
foregoing, and provided Tenant is not in default under this Lease beyond the
expiration of applicable notice and cure periods, then this Lease shall not be
subject and subordinate to such Superior Mortgage and Superior Lease. Tenant
shall be responsible for any costs, expenses, fees or charges incurred by or
charged to Landlord, or otherwise due and payable in connection with obtaining
such agreement. Nothing contained in this Section 25.05 shall be deemed to
require Landlord to institute a legal action or proceeding to compel such
Superior Mortgagee or Superior Lessor to deliver such nondisturbance agreement.
ARTICLE 26
EXCAVATION
----------
Section 26.01. In the event that an excavation should be made for
building or other purposes upon land adjacent to the Building, or should be
authorized to be made, Tenant shall, if necessary, afford to the person or
persons causing or authorized to cause such excavation, license to enter upon
the Demised Premises for the purpose of doing such work as shall reasonably be
necessary to protect or preserve the wall or walls of the Building, or the
Building, from injury or damage and to support them by proper foundations,
pinning and/or underpinning, provided that Landlord shall undertake such work
after Business Hours, at Tenant's expense for the additional costs incurred by
reason of such work being performed after Business Hours, if such work would in
Tenant's reasonable opinion cause material interference with the conduct of
Tenant's business.
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ARTICLE 27
LEGAL PROCEEDINGS: WAIVER OF JURY TRIAL
---------------------------------------
Section 27.01. Landlord and Tenant hereby waive, to the extent such
waiver is not prohibited by law, the right to a jury trial in any action,
summary proceeding or legal proceeding between or among the parties hereto or
their successors arising out of this Lease or Tenant's occupancy of the Demised
Premises or Tenant's right to occupy the Demised Premises.
Section 27.02. Tenant hereby waives the right to interpose a
counterclaim in any summary proceeding instituted by Landlord against Tenant or
in any action instituted by Landlord for unpaid Fixed Rent or additional rent
under this Lease, except compulsory counterclaims.
Section 27.03. In the event the Tenant claims or asserts that the
Landlord has violated or failed to perform a covenant of Landlord not to
unreasonably withhold or delay Landlord's consent or approval, or in any case
where Landlord's reasonableness in exercising its judgment is in issue, Tenant's
sole remedy shall be an action for specific performance, declaratory judgment or
injunction and in no event shall Tenant be entitled to any money damages for a
breach of such covenant and in no event shall Tenant claim or assert any claims
for money damages in any action or by way of set-off, defense or counterclaim
and Tenant hereby specifically waives the right to any money damages or other
remedies.
ARTICLE 28
ESTOPPEL CERTIFICATE
--------------------
Section 28.01. Tenant agrees, at any time, and from time to time,
upon not less than seven (7) days prior notice by Landlord, to execute,
acknowledge and deliver to Landlord, a statement in writing addressed to
Landlord or Landlord's designee 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 Fixed Rent and additional rent have been paid and stating whether
or not to the best knowledge of the signer of such certificate, there exists any
default in the performance of any covenant, agreement, term, provision or
condition contained in this Lease, and any claim or offset in favor of the
Tenant, and, if any, specifying each such default, claim or offset in favor of
the Tenant, of which signer may have knowledge, and stating whether or not, to
the best knowledge of the signer, any event has occurred which with the giving
of notice or the passage of time or both, would constitute such a default and,
if so, specifying each such event, it being intended that any such statement
delivered pursuant hereto shall be deemed a representation and warranty which
may be relied upon, regardless of independent investigation, by Landlord and
others
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with whom Landlord may be dealing including, without limitation, any purchaser
or prospective purchaser of the Land and/or the Building and/or Landlord's
interest under any Superior Lease, and by any mortgagee or prospective mortgagee
of any Superior Mortgage and/or Landlord's interest in any Superior Lease, and
by any landlord under a Superior Lease. Landlord agrees, upon not less than
fifteen (15) days prior written notice by Tenant, to execute, acknowledge and
deliver to Tenant, a statement in writing addressed to Tenant 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 Fixed Rent and additional
rent have been paid and stating whether or not to the best knowledge of the
signer of such certificate after due inquiry, there exists any default in the
performance of any covenant, agreement, term, provision or condition contained
in this Lease, and any claim or offset, and, if any, specifying each such
default, claim or offset of which signer may have knowledge, and stating whether
or not, to the best knowledge of the signer, any event has occurred which with
the giving of notice or the passage of time, or both, would constitute such a
default and, if so, specifying each such event, it being intended that any such
statement may be relied upon, regardless of independent investigation, by others
with whom Tenant may be dealing including, without limitation, Tenant's lender
or any purchaser of Tenant's business. Notwithstanding anything contained herein
to the contrary, Tenant shall only be entitled to such certificate from Landlord
in connection with a merger, acquisition or the sale of all or substantially all
of the assets or business of Tenant.
ARTICLE 29
RULES AND REGULATIONS
---------------------
Section 29.01. Tenant, its servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with the rules and
regulations (the "Rules and Regulations") set forth in Exhibit "F" attached
hereto and made a part hereof. Landlord shall have the right from time to time
during the term of this Lease to make reasonable changes in and additions to the
Rules and Regulations thus set forth provided same are not retroactively applied
unless such changes and their retroactive application are required by law or
regulations promulgated by a governmental agency or authority.
Section 29.02. Any failure by Landlord to enforce any Rules and
Regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of any such Rules and
Regulations. Landlord agrees not to enforce any Rules and Regulations in a
discriminatory manner.
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ARTICLE 30
SURRENDER OF DEMISED PREMISES
-----------------------------
Section 30.01. Upon the expiration or other termination of the term
of this Lease, Tenant shall quit and surrender the Demised Premises in good
order and condition, ordinary wear and tear and damage by fire or other casualty
excepted, and shall remove all property therefrom, required to be removed as in
Article 8 provided. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
Section 30.02. No act or thing done by Landlord or its agents shall
be deemed an acceptance of a surrender of the Demised Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by
Landlord.
Section 30.03. Tenant agrees it shall indemnify and save Landlord
harmless against all costs, claims, loss or liability resulting from delay by
Tenant in surrendering the Demised Premises upon the expiration or sooner
termination of the term of this Lease, including, without limitation, any claims
made by any succeeding tenant founded on such delay. Promptly upon receipt of
the written request of Tenant, and only upon such request, Landlord agrees to
deliver to Tenant a copy of the provisions of any lease relating to Landlord's
obligation to deliver the Demised Premises (or any portion thereof) to any
succeeding tenant. The parties recognize and agree that the damage to landlord
resulting from any failure by Tenant timely to surrender the Demised Premises
will be substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant therefore
agrees that if possession of the Demised Premises is not surrendered to Landlord
upon the Expiration Date or sooner termination of the term of this Lease, then
Tenant will pay Landlord as liquidated damages for each month and for each
portion of any month during which Tenant holds over in the Demised Premises
after expiration or sooner termination of the term of this Lease, an amount (the
"Holdover Rent") equal to two (2) times the average of the monthly installments
of Fixed Rent and additional rent which was payable per month under this Lease
during the six (6) month period preceding such expiration or sooner termination
of the term of this Lease. In addition to all other damages as provided in this
Lease or pursuant to law, if Landlord shall, at any time after the expiration or
sooner termination of the term hereof, proceed to remove Tenant from the Demised
Premises as a holdover tenant, Tenant shall pay the Holdover Rent for the use
and occupancy of the Demised Premises during any holdover period. Tenant's
aforesaid obligations shall survive the expiration or earlier termination of the
term of this Lease.
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ARTICLE 31
DEFERRED COLLECTIONS
--------------------
Section 31.01. If all or any part of the Fixed Rent or additional
rents, as above defined, shall at any time become uncollectible, reduced or
required to be refunded by virtue of any rules, regulations, orders, laws and
ordinances (including, without limitation, rent control or stabilization laws),
of governmental or quasi governmental authorities having jurisdiction
(collectively, "Laws and Ordinances") then for the period prescribed by said
Laws and Ordinances Tenant shall pay to Landlord the maximum amounts permitted
pursuant to said Laws and Ordinances (but not in excess of the applicable amount
provided herein). Upon the expiration of the applicable period of time during
which such amounts shall be uncollectible, reduced or all such uncollected,
reduced or refunded amounts that would have been payable for the period absent
such Laws and Ordinances, provided the retroactive collection thereof shall then
be lawful. Tenant's aforesaid obligations shall survive the expiration or
earlier termination of the term of this Lease.
ARTICLE 32
NOTICES
-------
Section 32.01. (a) Except as expressly stated otherwise in this
Lease, any notice or other communication required or permitted to be given or
made by either Landlord or Tenant to the other pursuant to this Lease or
pursuant to any applicable law or requirement of public authority shall be in
writing and shall be delivered to such other party personally, or sent by
registered or certified mail (return receipt requested) or by a nationally
recognized overnight courier, addressed to Tenant at the Building, Attention:
General Counsel and to Landlord, c/o JMB Properties Company, 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Legal Department, or at such other
address designated by such party in accordance with this Article. The date of
the giving of such xxxx, statement, notice or communication shall be deemed to
be the date of personal delivery or mail. Either party may, by notice from time
to a different address (which, however, shall be located in the continental
United States and shall not be a Post Office Box) for notices intended for it.
Any notice of change of address shall be deemed to have been given when received
by the party to whom such notice is given.
(b) A copy of all notices to Tenant and Landlord shall be sent
to the following addresses and otherwise in accordance with the provisions of
this Article:
If to Tenant, Battle Xxxxxx
A COPY TO: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
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If to Landlord,
A COPY TO: JMB Properties Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Building Manager
Pircher, Xxxxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Notices
(c) Landlord and Tenant agree that any notice required to be
given to the other party under the provisions of the Lease may be given by
Landlord's or Tenant's agents or attorneys (as the case may be), as same are set
forth above, and in such event, such notice shall be deemed to have been given
by Landlord or Tenant (as the case may be).
ARTICLE 33
NO WAIVER: ENTIRE AGREEMENT
---------------------------
Section 33.01. 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 set forth or
hereafter adopted by Landlord shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. No provision of this Lease shall be deemed to have been waived by
Landlord, unless such waiver be in writing signed by Landlord. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of rent be deemed an accord and
satisfaction, and Landlord may accept and deposit such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
Section 33.02. This Lease with the Exhibits annexed hereto, if any,
contains the entire agreement between Landlord and Tenant and any executory
agreement hereafter made between Landlord an Tenant shall be ineffective to
change, modify, waive, release, discharge, terminate, or effect an abandonment
of this Lease, in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, termination or the effecting of the
abandonment is sought.
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ARTICLE 34
LETTER OF CREDIT
----------------
Section 34.01. (a) Upon execution hereof by Landlord and Tenant,
Tenant will deliver to Landlord a clean, irrevocable, expressly assignable and
unconditional letter of credit (such letter of credit and any renewal thereof
being referred to herein, collectively, as the "Letter of Credit") issued by and
drawn upon a commercial bank which is a member of the New York Clearing House
Association, reasonably acceptable to Landlord, with offices for banking
purposes in the City of New York (the "Bank"), which Letter of Credit has a term
of one year, is for the account of Landlord and is in the amount of $400,000.00
as security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease, including, without limitation, the
surrender of possession of the Demised Premises to Landlord as herein provided.
Tenant agrees to cause the Bank to renew the Letter of Credit, in the same form
from time to time during the term of this Lease, at least sixty (60) days prior
to the expiration thereof so that a Letter of Credit issued by the Bank to
Landlord shall be in force and effect through the Expiration Date hereunder. It
is agreed that in the event Tenant defaults in respect of any of the terms,
conditions, or provisions of this Lease, including, but not limited to, the
payment of the Fixed Rent and additional rent and the aforesaid agreement to
cause the Bank to renew the Letter of Credit, (I) Landlord shall have the right
to require the Bank to make payment to Landlord of the entire sum represented by
the proceeds of the Letter of Credit; (ii) Landlord may apply or retain the
whole or any part of said sum so paid to it by the Bank to the extent required
for the payment of any Fixed Rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this Lease, including, but not limited to, any
damages or deficiency in the reletting of the Demised Premises, whether such
damages or deficiency accrues before or after summary proceedings or other
re-entry by Landlord, without thereby waiving any other rights or remedies of
Landlord with respect to such default; and (iii) Landlord shall hold the
remainder of such sum paid to it by the Bank, if any, as security for the
faithful performance and observance by Tenant of the terms, covenants, and
conditions of this Lease on Tenant's part to be observed and performed, with the
same rights as hereinabove set forth to apply or retain the same in the event of
any further default by Tenant under this Lease. If Landlord applies or retains
any part of the proceeds of the Letter of Credit, Tenant, upon demand, promptly
shall deposit with Landlord the amount so applied or retained so that Landlord
shall have the full deposit on hand at all times during the term of this Lease
that is required pursuant to the terms of this Article. If Tenant shall fully
and faithfully comply with all of terms, provisions, covenants, and conditions
of this Lease, the Letter of Credit or
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any remaining portion of any sum collected by Landlord thereunder from the Bank,
together with any other portion of any other sums then held by Landlord as such
security, shall be returned to Tenant within thirty (30) days after the
Expiration Date.
(b) Tenant shall have the right to reduce the amount of the Letter of
Credit from and after January 1, 1997 in the event that (i) Tenant shall not
have defaulted in its non-monetary obligations under this Lease (beyond the
expiration of applicable notice and cure periods) or monetary obligations under
this Lease, in either event during the six (6) month period immediately
preceding delivery by Tenant to Landlord of the financial statements hereinafter
described and (ii) the total indebtedness of, or guaranteed by, Tenant (the
"Indebtedness"), as evidenced by financial statements delivered to Landlord,
prepared in accordance with generally accepted accounting principles and
certified by an independent, reputable certified public accounting firm, is less
than $10,000,000. In such events, Tenant shall have the right to reduce the
Letter of Credit, but not earlier than thirty (30) days after delivery to
Landlord of the financial statements described above, to (w) $360,000.00 in the
event the Indebtedness is between $9,000,000 and $8,000,000, (x) $320,000.00 in
the event the Indebtedness is between $7,999,999 and $7,000,000, (y) $280,000.00
in the event the Indebtedness is between $6,999,999 and $6,000,000, and (z)
$250,000.00 in the event the Indebtedness is $5,999,999 or less; provided,
however, that in no event shall the Letter of Credit be less than $250,000.00
during the term of this Lease.
Section 34.02. Landlord agrees that Tenant, at any time during the
term, but at least sixty (60) days prior to the expiration of the Letter of
Credit, may deposit with Landlord the entire sum represented by the Letter of
Credit, as security hereunder in lieu of the Letter of Credit. Landlord shall
have all of the same rights with respect to such cash security as Landlord has
hereunder with respect to the Letter of Credit. Landlord agrees, that if not
prohibited by law or the general policies of lending institutions in the City of
New York, Landlord shall deposit any sums held by Landlord as security under
this Article in an interest-bearing account at a bank selected by Landlord, and
all interest accruing thereon, less an administrative fee equal to 1% of such
security, shall be added to the amount being held as security hereunder.
Section 34.03. In the event of a sale of the Land and Building or
leasing conveyance or transfer of the Building, of which the Demised Premises
form a part, Landlord shall have the right to transfer the security to the
vendee, lessee or transferee and Landlord shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Landlord solely for the return of maid security and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
security to a new
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landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Landlord nor its successors or assigns shall be bound by any assignment,
encumbrance, attempted assignment or attempted encumbrance.
Section 34.04. Nothing contained in this Article 34 nor the exercise
by Landlord of its rights with respect to the Letter of Credit shall be deemed
to preclude, limit or otherwise restrict Landlord's rights under any separate
guaranty executed in connection with this Lease.
ARTICLE 35
CAPTIONS
--------
Section 35.01. The captions of Articles in this Lease are inserted
only as a matter of convenience and for reference and they in no way define,
limit or describe the scope of this Lease or the intent of any provision
thereof.
ARTICLE 36
NAME OF BUILDING
----------------
Section 36.01. The Building may be known as or by such name as
Landlord, in its sole discretion, may determine, and Landlord shall have the
right, at any time and from time to time, to change the name and/or the address
of the Building without Tenant's consent.
ARTICLE 37
INABILITY TO PERFORM
--------------------
Section 37.01. This Lease and the obligations of Tenant to pay Fixed
Rent and additional rent hereunder and performance all of the other covenants
and agreements hereunder on the part of Tenant to be performed shall in no wise
be affected, impaired or excused because Landlord is unable to fulfill any of
its obligations under this Lease to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or decorations or is unable
to supply or is delayed in supplying any equipment or fixtures if Landlord is
prevented or delayed from so doing by reason of strike or labor troubles or any
outside cause whatsoever, including, but not limited to, governmental preemption
in connection with a national emergency or by reason of any rule, order of
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.
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ARTICLE 38
COVENANT OF QUIET ENJOYMENT
---------------------------
Section 38.01. Landlord covenants that Tenant may peaceably and
quietly enjoy the Demised Premises, subject nevertheless to the terms and
conditions of this Lease and provided, however, that no eviction of Tenant by
reason of paramount title, the foreclosure of any mortgage now or hereafter
affecting the Demised Premises or by reason of any termination of any ground or
underlying lease to which this Lease is subject and subordinate, whether such
termination is by operation of law, by agreement or otherwise, shall be
construed as a breach of this covenant nor shall any action by reason thereof be
brought against Landlord, and provided further that this covenant shall bind and
be enforceable against Landlord, subject to the terms hereof, only so long as
Landlord is the holder of the Landlord's interest in this Lease and is
collecting rent from Tenant but not thereafter.
ARTICLE 39
NO REPRESENTATION BY LANDLORD
-----------------------------
Section 39.01. Landlord or Landlord's agents have made no
representations or promises with respect to the Building, the Land or the
Demised Premises except as herein expressly set forth and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease. The taking of possession of
the Demised Premises by Tenant shall be conclusive evidence, as against Tenant,
that Tenant accepts said premises and that the Demised Premises and the Building
were in good and satisfactory condition at the time such possession was so
taken, except as to latent defects.
ARTICLE 40
DEFINITION OF LANDLORD
----------------------
Section 40.01. The term "Landlord" wherever used in this Lease shall
be limited to mean and include only the owner or owners at the time in question
of the Land and the Building or the Building or the tenant under a ground or
underlying lease affecting the Land and the Building or the Building, or both,
to whom this Lease may be assigned, or a mortgagee in possession, so that in the
event of any sale, assignment or transfer of the Land and the Building or the
Building, or of such ground or underlying lease, such owner, tenant under a
ground lease or mortgagee in possession shall thereupon be released and
discharged from all covenants, conditions and agreements of Landlord thereafter
accruing hereunder; but such covenants, conditions and agreements shall be
binding upon each new owner, tenant under a ground or underlying lease, or
mortgagee in possession for the time being of the Land and the Building or the
Building, until sold, assigned or transferred.
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ARTICLE 41
LANDLORD'S WORK
---------------
Section 41.01. Provided that Tenant shall not then be in monetary
default or in default of any material obligation under the Lease beyond
applicable notice and cure periods, Landlord shall, at its sole cost and expense
and using Building standard materials, perform the work necessary to build out
the eighth (8th) floor corridor of the Building, including, without limitation,
the installation of wall coverings, carpeting, lighting and ceiling tiles
("Landlord's Work"), such that when completed the installation shall be
comparable in quality and appearance to the common corridor of the eighteenth
(18th) floor of the Building. Landlord shall substantially complete Landlord's
Work within one hundred twenty (120) days after receipt of notice from Tenant
that Tenant's Demising Work has been substantially completed.
ARTICLE 42
TENANT'S WORK
-------------
Section 42.01. Prior to commencing any work in the Demised Premises,
Tenant shall submit to Landlord, for Landlord's written approval, not to be
unreasonably withheld or delayed, architectural, engineering, mechanical,
electrical and plumbing drawings, plans and specifications (herein collectively
referred to as "Tenant's Plan") for or in connection with the improvements and
installations to be made by Tenant (such improvements or installations herein
collectively referred to as "Tenant's Work"). Tenant's Plan shall be fully
detailed, shall show complete dimensions, shall not require any changes in the
structure of the Building and shall not be in violation of any laws, orders,
rules or regulations of any governmental department or bureau having
jurisdiction over the Demised Premises.
Section 42.02 Within ten (10) business days after submission to
Landlord of Tenant's Plans, Landlord shall either approve same or shall set
forth in writing the particulars in which Landlord does not approve Same In the
latter case Tenant shall, if Tenant wishes to proceed with Tenant's Work, within
five (5) business days after Landlord's notification, submit to Landlord a
revised Tenant's Plan, which shall be subject to Landlord's approval which shall
be either granted or denied within ten (10) business days. Landlord shall not
collect any fees from Tenant for the review of Tenant's Plans.
In the event Landlord neither grants nor denies its consent or
approval within the relevant time period allowed pursuant to this Article 42,
(i) such consent or approval is required in order for Tenant to proceed with
Tenant's Work and Landlord's inaction has, therefore, caused a delay in the
performance of Tenant's Work, and (ii) Tenant has given Landlord notice of such
delay and a good faith estimate by Tenant's
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engineer or architect of the number of days of such delay, which number of days
shall not include (a) the time period allowed for Landlord's response pursuant
to this Article, or (b) any days following the day Landlord grants or denies
consent or approval, then the date that the Fixed Rent commences (as provided in
Article 4 herein) shall be delayed by the number of days contained in Tenant's
notice pursuant to (ii) hereinabove.
Section 42.03. Tenant further agrees that Tenant shall not make any
changes in Tenant's Plan subsequent to approval by Landlord without the further
written consent of Landlord not to be unreasonably withheld or delayed. Landlord
shall have the right to refuse to consent to any such changes if, in the
reasonable judgment of Landlord or Landlord's Architect, such changes materially
deviate from Tenant's Plan theretofore approved by Landlord or otherwise violate
the terms of this Lease.
Landlord agrees to cooperate with Tenant with respect to installation
and planning of Tenant's Work.
Section 42.04 Following compliance by Tenant with its obligations
under the foregoing subsections and approval of Tenant's Plan and Tenant's
Contracts by Landlord, Tenant shall file Tenant's Plan with all necessary and
appropriate governmental agencies and bureaus and shall obtain all required
permits, licenses and authorizations from governmental agencies and bureaus,
including without limitation, the New York City Buildings Department. Tenant
shall commence Tenant's Work and it shall proceed diligently with same in order
to complete same within a reasonable period of time using first class materials
and in a good and workmanlike manner.
Section 42.05. Tenant agrees that in the performance of Tenant's Work
that (i) neither Tenant nor its agents or employees shall interfere with the
work being done by Landlord and its contractors, agents and employees, (ii)
Tenant shall comply with any reasonable work schedule, rules and regulations
proposed by Landlord, its agents, contractors or employees, (iii) the labor
employed by Tenant shall be harmonious and compatible with the labor employed by
Landlord in the Building, it being agreed that, if in Landlord's judgment the
labor is incompatible Tenant shall upon Landlord's demand immediately withdraw
such labor from the Demised Premises, (iv) prior to commencing Tenant's Work,
Tenant shall procure and deliver to Landlord workmen's compensation, public
liability, property damage and such other insurance policies, in such amounts as
shall be reasonably acceptable to Landlord in connection with Tenant's Work, but
in no event less than the amounts required of Tenant under this lease, and shall
upon Landlord's request cause Landlord, any Superior Mortgagee and any Superior
Lessor to be named as an insured thereunder, (v) Tenant shall indemnify and hold
Landlord harmless from and against any and all claims
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arising from or in connection with any act or omission of Tenant or its agents,
contractors and employees, (vi) Tenant's Work shall be performed in accordance
with the approved Tenant's Plan and in compliance with the laws, orders, rules
and regulations of any governmental agency or bureau having jurisdiction over
the Demised Premises and Tenant shall immediately correct any non-conforming
work, and (vii) Tenant shall promptly pay for Tenant's Work in full, and shall
not permit any lien to be filed against the land and/or building.
Section 42.06. Landlord may, at any time and from time to time, at
Tenant's reasonable expense, in addition to any other right of access given to
Landlord pursuant to the terms of this lease, enter upon the Demised Premises
with one or more engineers and/or architects of Landlord's selection
("Landlord's Architect") to determine the course and degree of completion of
Tenant's Work and its compliance with Tenant's Plan and the terms and conditions
of this Lease.
Section 42.07. Notwithstanding anything to the contrary, nothing
contained herein shall be construed to be a consent by Landlord to any lien
filed against Land and/or Building.
Section 42.08. In the event there is no sprinkler system in the
Demised Premises, Tenant shall install a sprinkler system in the Demised
Premises as part of Tenant's Work, (i) such sprinkler system must comply with
all applicable laws, orders, ordinances, regulations and requirements of any
public authority or directions of any public official applicable to the Demised
Premises; (ii) the supplying and installing of any such sprinkler system shall
be made in accordance with the provisions of the Lease, including but not
limited to the provisions of this Article 42, and the type, brand, location and
manner of installation of such sprinkler system shall be subject to Landlord's
prior written approval; (iii) Tenant shall make all repairs and replacements
thereof in accordance with the provisions of this Lease; and (iv)
notwithstanding anything in the Lease to the contrary, such sprinkler system and
any installations in connection therewith shall, upon expiration or earlier
termination of the Lease, be deemed Landlord's Property. Notwithstanding the
foregoing, Landlord shall have the election of supplying and installing such
sprinkler system either by itself or its agents or contractors, in which event
(a) all costs and expenses incurred by Landlord in connection therewith shall be
reimbursed by Tenant upon demand of Landlord as additional rent, (b) all costs
and expenses incurred by Landlord in connection with the repair and replacement
of such sprinkler system and replacements thereto shall be reimbursed by Tenant
upon demand of Landlord as additional rent, and (c) such sprinkler system shall
be deemed Landlord's Property.
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ARTICLE 43
LANDLORD'S CONTRIBUTION
-----------------------
Section 43.01. Supplementing the provisions of Article 9 and Article
42 hereof, provided that Tenant shall not then be in monetary default or in
default of a material obligation under this Lease beyond applicable notice and
cure periods, Landlord shall (subject to, and in accordance with, the provisions
of this Article) contribute an amount, not to exceed in aggregate (including
soft costs), the sum of $260,968.00 ("Landlord's Contribution") towards the cost
of performing Tenant's Work to prepare the portion of the Demised Premises
located on the eighth (8th) floor for Tenant's initial occupancy, but not any
costs associated with the design and construction of a staircase connecting the
seventh (7th) and eighth (8th) floors of the Demised Premises. Tenant shall
deliver to Landlord evidence of the expenses incurred in the installation and
construction of Tenant's Work, such as paid invoices, receipted bills, or
cancelled checks to the contractors or sub-contractors employed in the
performance of said Tenant's Work. The evidence of the expenses incurred with
respect to labor and materials theretofore performed and incorporated into the
Demised Premises, shall be allocated as follows: (i) expenses with respect to
"soft costs" (which shall be defined herein to mean all costs, fees and charges
for permits and licenses and any architectural, engineering and design
consulting and construction management fees incurred in connection with Tenant's
Work), and (ii) the amount of "hard costs" (which shall be defined herein to
mean all costs and expenses of labor, materials and supplies incurred in
connection with Tenant's Work, including, without limitation, carpeting). The
terms "soft costs" and "hard costs" shall specifically exclude any expenses for
the purchase or installation of moveable communications equipment, moveable
computer equipment, furniture and art work and Landlord shall have no obligation
to make any Landlord's Contribution with respect to such items. Landlord's
obligation to pay Landlord's Contribution toward soft costs in connection with
the Tenant's Work shall not exceed seventeen percent (17%) of Landlord's
Contribution disbursed. Tenant shall provide a reasonable initial estimate (the
"Initial Estimate") of the cost of Tenant's Work, which Initial Estimate may be
reasonably updated from time to time. Landlord shall reimburse Tenant, or in the
event Tenant shall use one of the contractors on Landlord's then approved list,
shall make payment to such contractor, in the same proportion that Landlord's
Contribution bears to the Initial Estimate, as reasonably updated from time to
time, not more often than one (1) time per month, for the expenses incurred in
performing Tenant's Work to the extent that such expenses do not exceed
Landlord's Contribution and subject to a 10% holdback. Such reimbursement shall
be made as the performance of Tenant's Work progresses within thirty (30) days
of receipt of evidence of such expenses. Provided that Tenant shall not then be
in default under this Lease beyond the expiration of applicable notice and
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cure period, within thirty (30) days following the last to occur of: (v)
Tenant's request for payment of the final installment of Landlord's
Contribution, (w) completion of Tenant's Work in accordance with the provisions
of this Lease, (x) the certification of Tenant's architect that the same has
been completed in a good and workmanlike manner, to the satisfaction of Tenant's
architect, substantially in accordance with Tenant's plans and specifications
and in compliance with all governmental permits, (y) delivery by Tenant to
Landlord of waivers of lien from all contractors desiring final payment for all
work performed by such Contractors and (z) delivery by Tenant to Landlord of "as
built" drawings with respect to Tenant's Work, the balance of Landlord's
Contribution which has not been previously disbursed shall be disbursed to much
contractor, or Tenant, am the came may be. Landlord Shall be entitled to deduct
from Landlord's Contribution the supervisory fee referred to in Article 9 of
this Lease, if any. Notwithstanding the foregoing, if Landlord has not received,
on or before January 1, 1994, a request from Tenant in accordance with the
provisions of this Article 43 for payment of all or any portion of the
Landlord's Contribution, then, at Landlord's option, Landlord shall be relieved
of any further obligations with respect to Landlord's Contribution and shall
credit any unpaid Landlord's Contribution against the monthly installments of
Fixed Rent and additional rent next due under the Lease.
(b) In the event Landlord shall fail to pay to Tenant the amount of
any Landlord's Contribution improperly withheld from Tenant within five (5) days
after Tenant shall notify Landlord of such failure, and Landlord shall fail to
pay such amount within five (5) days after receipt of such notice from Tenant,
then Tenant shall have the right, by notice to Landlord delivered no later than
five (5) days prior to the first (1st) day of any calendar month in which Fixed
Rent shall be payable to Landlord, to obtain a reduction in the next payments of
Fixed Rent and additional rent that shall thereafter become due, equal to the
amount of any portion of Landlord's Contribution not paid pursuant to
subparagraph (a) above, plus interest from the date due until the date of
reduction or payment at the Prime Rate then in effect, which amounts shall be
deemed to satisfy payment of such unpaid portion of Landlord's Contribution.
ARTICLE 44
SUCCESSORS AND ASSIGNS
----------------------
Section 44.01. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and, except as otherwise
provided herein, their assigns.
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ARTICLE 45
TENANT'S EIGHTH FLOOR EXPANSION RIGHTS
--------------------------------------
Section 45.01. (a) Landlord agrees that if at any time during the
period between the Commencement Date and the commencement of the Final Period
(the "Expansion Period") Landlord shall receive from a prospective tenant or its
representative a reasonable request for lease proposal, reasonable written offer
or reasonable term sheet (which does not include a proposal to lease any other
space in the Building) with respect to the leasing of any portion of the eighth
(8th) floor of the Building, then and in any such event Landlord shall not enter
into or consummate a lease for such space unless and until Landlord shall have
made an offer (the "Offer") to Tenant to lease the remainder of the eighth (8th)
floor of the Building (the "Expansion Space") as described on the floor plan
attached hereto am Exhibit "G" in accordance with the terms of this Article 45
and Tenant shall have had an opportunity to exercise its rights under this
Article.
(b) Notwithstanding anything to the contrary contained in this
Article, this Article shall not be effective and Tenant shall not have any
rights with respect to the Expansion Space if (i) Tenant shall be in monetary
default or in default of any of its material obligations under this Lease
beyond, in either case, any applicable notice or cure periods either on the date
on which Landlord shall give Tenant such Offer or on the Expansion Space
Commencement Date (as hereinafter defined), (ii) there shall have been a
termination, cancellation or surrender of this Lease, or a surrender of all or
substantially all of the Demised Premises (as defined in Article 11), (iii) on
the date on which Landlord shall give Tenant such Offer or on the Expansion
Space Commencement Date, Xxxxx Associates, Inc. (and not its successors or
assigns) and its Related Entities (as defined herein) is not in actual occupancy
of the entire sixth (6th) and seventh (7th) floors of the Building, or (iv) the
Expansion Period shall have expired.
Section 45.02. With respect to the Offer, Tenant shall have the right
to accept the Offer only by giving Landlord written notice of such acceptance
within five (5) business days after Landlord shall have delivered the Offer to
Tenant, time being of the essence with respect to said five (5) business day
period. If Tenant shall timely exercise its right to accept the Offer, then the
Expansion Space shall be added to and become part of the Demised Premises upon
the following terms and conditions:
(a) The commencement date for the Expansion Space (the "Expansion
Space Commencement Date") shall be at noon on that date which is ten (10) days
after Landlord shall have given Tenant the Offer and the expiration date of the
term applicable to the Expansion Space shall be co-terminus with the term of
this Lease.
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(b) If the Expansion Space Commencement Date shall occur at any time
on or before December 31, 1995, then Fixed Rent for such Expansion Space shall
be an amount equal to (i) $242,690.00 per annum ($20,224.17 per month) for the
period commencing on the Expansion Space Commencement Date and ending on the
expiration of the First Period, (ii) $270,426.00 per annum ($22,535.50 per
month) during Second Period, and (iii) $298,162.00 per annum ($24,846.83 per
month) during Final Period, payable by Tenant in accordance with the terms and
conditions established for the payment of Fixed Rent in Article 4 of this Lease,
except that Fixed Rent and additional rent payable for the Expansion Space shall
be conditionally excused for a period of ninety (90) days commencing on the
Expansion Space Commencement Date. If, at any time prior to the Expiration Date,
Tenant shall be in default under the Lease beyond the expiration of any
applicable notice and cure period, then the total sum of such Fixed Rent and
additional rent so conditionally excused shall become immediately due and
payable by Tenant to Landlord. If, as of the Expiration Date, Tenant shall not
have defaulted under this Lease beyond the expiration of any applicable notice
and cure period, Landlord shall waive payment of all such Fixed Rent and
additional rent so conditionally excused. Except as set forth in subparagraph
45.02(f) below, there shall be no change with respect to Articles 5 and 6 of
this Lease and additional rent payable thereunder shall be apply prospectively
to the Expansion Space as if such Expansion Space shall have been part of the
Demised Premises as of the Expansion Space Commencement Date of this Lease.
(c) If the Expansion Space Commencement Date shall occur at any time
on or after January 1, 1996 through and including December 31, 2002, then Fixed
Rent and additional rent for such Expansion Space shall be as provided for in
the first sentence of Section 45.02(b) above ("Current Rent"), unless Landlord
determines that Market Rent (as hereinafter defined) is greater than Current
Rent. Landlord agrees that Tenant shall under all circumstances be entitled to a
90-day free rent period in connection with its leasing of the Expansion Space
pursuant to this Article 45. In such event, Landlord shall endeavor to notify
Tenant of its initial determination of Market Rent ("Landlord's MR") no later
than the Expansion Space Commencement Date. Tenant shall have fifteen (15) days
after Landlord's delivery of notice to Tenant of Landlord's MR to deliver notice
to Landlord objecting thereto and setting forth Tenant's determination of Market
Rent ("Tenant's MR") and, if Tenant fails to deliver much notice within this
fifteen (15) day period, Tenant shall be deemed to have accepted Landlord's MR,
provided, however, that Landlord shall have delivered a second notice of
Landlord's MR and Tenant fails to deliver notice with Tenant's MR within five
(5) days after delivery to Tenant of such second notice. Within fifteen (15)
days after receipt by Landlord of the notice specifying Tenant's MR, Landlord
and Tenant shall mutually select an umpire in this matter (the "MR Umpire"). The
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MR Umpire shall be a real estate broker or consultant having at least fifteen
(15) years continuous experience in the business of leasing commercial
properties in Midtown area in the borough of Manhattan, City of New York. In the
event that Landlord and Tenant shall fail to agree upon the designation of the
MR Umpire within thirty (30) days after delivery of Landlord's notice rejecting
Tenant's MR, then either party shall have the right to request that The Real
Estate Board of New York, or if such organization fails to act in accordance
herewith or no longer exists, then the American Arbitration Association (or any
organization which is the successor thereto) select an MR Umpire in accordance
with the requirements of this Article and such selection shall be conclusive and
binding upon the parties. Within fifteen (15) days after the date of selection
of the MR Umpire, the MR Umpire shall hold one hearing during which Landlord and
Tenant shall have an opportunity to present evidence supporting their
determination of the Market Rent. Within ten (10) days after the date of such
hearing, the MR Umpire shall determine whether Landlord's MR is the Market Rent
or Tenant's MR is the Market Rent and shall so notify Landlord and Tenant. In no
event, however, shall the Market Rent be less than Current Rent. Each party
shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this Article and the parties shall share equally all other
expenses and fees of any such arbitration, including the expenses and fees of
any MR Umpire selected in accordance with the provisions of this Article. The MR
Umpire's determination rendered in accordance with the provisions of this
Article shall be final and binding in determining the Market Rent. The MR Umpire
shall not have the power to add to, modify, or change any of the provisions of
this Lease. In determining Market Rent, Landlord, Tenant and the MR Umpire shall
give effect to the other terms and conditions of this Lease, but shall not take
into account or give any credit or allowance to Tenant for the value of
leasehold improvements made by or for the benefit of Tenant. If for any reason
the Market Rent shall not have been determined prior to the Expansion Space
Commencement Date, then until the Market Rent and, accordingly, the Fixed Rent
shall have been finally determined, the Fixed Rent shall be equal to the
Landlord's MR. Upon final determination, an appropriate adjustment shall be made
reflecting such final determination, and Landlord shall pay Tenant any
overpayment from the Expansion Space Commencement Date to the date of such final
determination.
The term "Market Rent" shall mean the annual fair market rental value
of the Demised Premises in an arms length transaction, including Fixed Rent and
additional rent pursuant to Articles 5 and 6 and a 90 day free rent period for
construction (which shall be taken into account in determining fair market
value), in its then existing condition based on the rentals obtained for
comparable space in the Building or, if no such comparables exist, in other
comparable first-class office buildings in the vicinity of the Building.
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(d) If the Expansion Space Commencement Date shall occur at any time
on or prior to December 31, 1998, then Landlord shall reimburse Tenant as
Landlord's Contribution an amount not to exceed $232,982.40 in accordance with
Article 43 hereof for its expenses incurred in connection with any Tenant
Changes necessary to prepare the Expansion Space for Tenant's initial occupancy
(subject to and in accordance with the provisions of Article 9 and Article 42).
(e) If the Expansion Space Commencement Date shall occur at any time
on or after January 1, 1999 through and including December 31, 2002, Landlord
shall reimburse Tenant as Landlord's Contribution in accordance with Article 43
hereof for its expenses incurred in connection with any Tenant Changes necessary
to prepare the Expansion Space for Tenant's initial occupancy (subject to and in
accordance with the provisions of Article 9 and Article 42), an amount equal to
$23,298.24 multiplied by the number of years (with whole months expressed as
fractions) remaining on the term of this Lease.
(f) Tenant's Proportionate Operating Share under this Lease shall be
increased by 1.43%, and Tenant's Proportionate Tax Share shall be increased by
1.35%.
(g) Tenant shall accept the Expansion Space vacant and free of
tenants and other occupants and in its "as is" and "where is" condition, and
Landlord shall have no obligation whatsoever to perform any work to prepare the
Expansion Space for Tenant's occupancy, or make any repairs, improvements or
alterations in or to the Expansion Space, except the sprinkler loop in existence
as of the date hereof shall remain in the Expansion Space and the Expansion
Space shall be delivered in compliance with all laws applicable to such space as
of the Expansion Space Commencement Date. Upon Tenant's acceptance of the Offer,
Tenant and Landlord shall execute, upon the request of the other party, any
amendment or other documentation reasonably required by the other party to
reflect Tenant's acceptance of the Offer.
(h) The amount of the Letter of Credit shall be increased by an
amount equal to the amount of the Letter of Credit required of Tenant as of the
Expansion Space Commencement Date (assuming no leasing of the Expansion Space)
multiplied by 21% prior to the Expansion Space Commencement Date and held in
accordance with Article 34 hereof.
Section 45.03. In the event Tenant shall fail to exercise its right
with respect to any Offer, Tenant shall, within five (5) days after Landlord's
request therefor, deliver an instrument in form reasonably satisfactory to
Landlord confirming the aforesaid waiver, but no such instrument shall be
necessary to make the provisions hereof effective.
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Section 45.04. The rights of Tenant set forth in this Article are
available only to the Tenant first named in the heading of this Lease, or to any
assignee that is a parent, subsidiary or affiliate as such terms are defined in
Section 11.02(b) hereof (a "Related Entity"), and the rights accorded in this
Article shall be available only to Tenant, and to no other person, party or
entity whatsoever, other than any assignee who is a Related Entity.
Section 45.05. If Tenant does not accept (or fails to timely accept)
the Offer, then Landlord shall have the right to lease all or any portion of the
Expansion Space to any other party upon such terms and conditions as Landlord
shall, in its sole discretion, determine. Following Landlord's initial leasing
of such Expansion Space (and any extension or renewal thereof), if at any time
during the Expansion Period the Expansion Space shall again become available for
leasing, then Tenant's rights under this Article 45 shall be reinstated. If
Tenant does not accept (or fails to timely accept) a subsequent Offer, then
Landlord shall have the right to lease all or any portion of the Expansion Space
to any other party upon such terms and conditions as Landlord shall, in its sole
discretion, determine, and Tenant shall have no further rights under this
Article 45.
Section 45.06. If Tenant accepts the Offer and if the Expansion Space
shall not be available for Tenant's occupancy on the date Landlord has offered
to deliver such Expansion Space for any reason including the holding over of the
then existing tenant, then Landlord shall not be subject to any liability for
the failure to give possession on such date, and the failure to have such
Expansion Space available for occupancy by Tenant shall in no way affect or
impair the validity of this Lease or the inclusion of such Expansion Space as a
part of the Demised Premises or the obligations of Landlord or Tenant hereunder,
nor shall the same be construed in any way to extend the term of this Lease, and
for the purpose of this Article the Expansion Space Commencement Date shall be
deferred to and shall be the date such Expansion Space is available for Tenant's
occupancy unleased and free of tenants or other occupants. The provisions of
this Section are intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property Law and the
parties hereto expressly waive the provisions of such Section 223-a.
Section 45.07. The termination of this Lease shall also terminate and
render void all of Tenant's options or elections under this Article whether or
not the same shall have been exercised; and nothing contained in this Article
shall prevent Landlord from exercising any right or action granted to or
reserved by Landlord in this Lease to terminate this Lease. None of Tenant's
options or elections set forth in this Article may be severed from this Lease or
separately sold, assigned or transferred.
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ARTICLE 46
MISCELLANEOUS
-------------
Section 46.01. Landlord warrants and represents that there is no
asbestos or material containing the same in the Demised Premises (including any
utility system or other facility which serves the Demised Premises whether
located in the Demised Premises or in other portions of the Building) including
by way of example, but not by limitation, the interior of any partition or
demising walls, whether structural or otherwise, columns or beams, and all
utility lines, shafts and ducts, HVAC or other equipment. Landlord shall be
solely responsible for and shall comply with all laws, rules, ordinances or
regulations of any governmental authority having jurisdiction over the Demised
Premises with respect to the presence or removal of asbestos.
Section 46.02 Landlord and Tenant agree to keep and maintain this
Lease and all information received under this Lease confidential and not to
publicize any such information or copies of this Lease or portion hereof, except
(i) in the normal course of Landlord's business, (ii) in connection with a bona
fide sale or loan application, (iii) in connection with any litigation, or (iv)
as required by law or judicial process. Notwithstanding the foregoing, neither
party shall have any liability to the other, nor shall either party have the
right to terminate this Lease, in the event of a breach under this section. The
sole remedy of either party in the event of such breach shall be injunctive
relief.
ARTICLE 47
EXECUTION AND DELIVERY OF LEASE
-------------------------------
Section 47.01. Submission to Tenant by Landlord of the within Lease
for review and execution by Tenant shall confer no rights nor impose any
obligations on either party unless and until both Landlord and Tenant shall have
executed this Lease and duplicate originals thereof have been delivered to the
respective parties hereto.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this Lease as
of the day and year first and above written.
LANDLORD: PROGRESS PARTNERS,
a New York general partnership
By: JNB Properties Company,
Agent
By:___________________________
Name:
Title:
- 83 -
87
TENANT: KROLL ASSOCIATES, INC.
By:________________________
- 00 -
00
XXXXX XX XXX XXXX )
: SS.:
COUNTY OF NEW YORK )
On the _____ day of ____________ l9__, before me personally
came ___________to me known, who being by me duly sworn, did depose and say that
he resides at________________________________ that he is the _______________, of
_______________________the corporation which is named herein as Tenant; and that
he signed his name thereto by like order of the board of directors of such
corporation.
_______________________________________
Notary Public
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EXHIBIT "A"
FLOOR PLAN
----------
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90
EXHIBIT "A"
-----------
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EXHIBIT "B"
EXISTING KROLL LEASES
---------------------
1. That certain Lease dated July 23, 1984 by and between
Progress Partners, as landlord, and Datapoint Corporation ("Datapoint"), as
tenant.
2. That certain Agreement of Sublease dated as of May 22, 1986
by and between Datapoint, as landlord, and Xxxxx Associates, Inc. ("Kroll"),
as tenant.
3. That certain First Amendment to Agreement of Sublease by
and between Datapoint and Kroll, dated as of May 22, 1986.
4. That certain letter agreement dated August 5, 1991, by and
Progress Partners, Datapoint and Kroll.
5. Non-Disturbance Agreement dated May 22, 1986, by and
between Progress Partners, as prime landlord, and Kroll, as subtenant.
6. First Amendment to Non-Disturbance Agreement dated June
19,1989, by and between Progress Partners, as prime landlord, and Kroll, as
subtenant
7. That certain Lease dated as of August 25, 1989 between
Progress Partners, as landlord, and Kroll, as tenant, for premises consisting
of the entire eighth (8th) floor of the Building.
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EXHIBIT "C"
CONTRACTORS
-----------
X.X. XxXxxx & Son Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx XxXxxxx
(000) 000-0000
Xxxxx X. Xxxxxxx & Company Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx X'Xxxxx
(000) 000-0000
Planned Management Construction Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxx
(000) 000-0000
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EXHIBIT "D"
CLEANING SCHEDULE
-----------------
GENERAL CLEANING NIGHTLY
------------------------
General Offices
---------------
1. Dust mop all hard surface floors with treated dust
mop.
2. Using a manual carpet sweeper remove all obvious
litter from carpet areas.
3. Mop all stains and spills especially coffee and
drink spills.
4. Dust all horizontal surfaces.
5. Empty and damp wipe ashtrays.
6. Empty all trash receptacles and replaces liners as
necessary.
7. Remove all collected trash to designated area.
8. Dust wipe all telephones including ear and mouth
piece.
9. Clean and polish all drinking fountains.
10. Empty recycle paper trash containers; replace
correct color liners in containers as necessary.
11. Remove recycle paper trash and store in designated
area.
Public Lavatories
-----------------
1. Clean and sanitize all restroom fixtures.
2. Wipe mirrors and polish all chrome.
3. Refill all dispensers.
4. Empty trash.
5. Xxxx xxx xxxxx.
- 00 -
00
WEEKLY
------
General Office
--------------
1. Fully vacuum all carpets from wall to wall.
2. Dust all low reach areas.
3. Clean and polish all bright metal work.
MONTHLY
-------
Public Lavatories
-----------------
1. Dust and clean all return air vents.
2. Machine scrub all restroom floors using germicidal
detergent.
3. Wash all restroom partitions on both sides.
QUARTERLY
---------
General Office
--------------
1. Dust all high reach areas.
2. Dust all venetian blinds.
3. Clean all ceiling diffusers.
Public Lavatories
-----------------
1. Hand wash all walls.
Wash exterior and interior of windows periodically, subject to weather
conditions and requirements of law.
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EXHIBIT "E"
SUBORDINATION OF MORTGAGE
-------------------------
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, as owner and
holder of a certain Note in the aggregate principal sum of NINETY-ONE MILLION
SEVEN HUNDRED FIFTY THOUSAND AND NO/lOOTHS ($91,750,000.00) DOLLARS and of a
certain Mortgage securing said Note (which Note and Mortgage are more
particularly described in Exhibit A attached hereto and hereby made a part
hereof)1 which Mortgage is now a first lien upon the premises more
particularly demised and described in that certain Lease dated ____________
199__, by and between Progress Partners, as Lessor, and ___________________ as
Lessee, and upon other property, in consideration of such leasing and of the
sum of One (*1.00) Dollar and other good and valuable consideration, receipt
of which is hereby acknowledged,
DOES hereby covenant and agree that the said Mortgage shall be and
the same is hereby made SUBORDINATE to the said Lease with the same force and
effect as if the said Lease had been executed, delivered and recorded prior to
the execution, delivery and recording of the said Mortgage;
EXCEPT, however, that this Subordination of Mortgage shall not affect
nor be applicable to and does hereby expressly exclude:
(a) The prior right, claim and lien of the said Mortgage in, to
and upon any award or other
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96
compensation heretofore or hereafter to be made for
any taking by eminent domain of any part of the
said premises, and to the right of disposition
thereof in accordance with the provisions of the
said Mortgage,
(b) The prior right, claim and lien of the said Mortgage
in, to and upon any proceeds payable under all
policies of fire and rent insurance upon the said
premises and as to the right of disposition thereof
in accordance with the terms of the said Mortgage,
and
(c) Any lien, right, power or interest, in any, which may
have arisen or intervened in the period between the
recording of the said Mortgage and the execution of
the said Lease, or any lien or judgment which may
arise at any time under the terms of such Lease.
This Subordination of Mortgage shall inure to the benefit of
and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Subordination of Mortgage has been
duly signed and delivered by the undersigned as of this _____ day of ________
1992.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
BY:_______________________________
Title: Assistant Secretary
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
Before me, a Notary Public, in and for said County,
personally appeared _______________________ to me known and
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97
known to me to be the person who, as ________________________ of TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, the corporation which executed the
foregoing instrument, signed the name, and acknowledged to me that he did so
sign said instrument in the name and upon behalf of said corporation as such
officer; that the same is his free act and deed as such officer and the free act
and deed of said corporation; that he was duly authorized thereunto by its board
of trustees; and that the seal affixed to said instrument is the corporate seal
of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and
affixed my official seal at New York, New York this day of ________, 1992.
____________________________________
Notary Public
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98
LESSEE'S AGREEMENT
------------------
The undersigned, as Lessee under the lease herein described,
does hereby accept and agree to the terms of the foregoing Subordination of
Mortgage, which shall inure to the benefit of and be binding upon the
undersigned and the heirs, executors, administrators, legal representatives,
successors and assigned or the undersigned.
[NAME OF TENANT]
By:____________________________________
Name:_________________________
Title:________________________
CORPORATE
---------
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this ____ day of _______, 1992, before me appeared to me
personally known, who, being by me duly sworn, did say that he is the
_____________________________ of ____________________ and that the seal affixed
to the foregoing instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed on behalf of said corporation by authority
of its Board of Directors, and he acknowledged said instrument to be the free
act and deed of said corporation.
_________________________________
Notary Public
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99
EXHIBIT "F"
RULES AND REGULATIONS
---------------------
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors,
escalators or elevators for any other purpose. No 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 any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, 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.
2. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with
other tenants, caused by a tenant or the employees, licensees, agents,
contractors or invitees or the tenant, shall be paid by such tenant.
3. The Landlord may refuse admission to the Building outside of
Business Hours on Business Days (as such terms are defined in the lease to
which this Exhibit is attached) 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
Business Hours on Business Days 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 Landlord may prevent
all access to the Building during the continuance of the same, by closing the
doors or otherwise, for the safety of
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100
the tenants and protection of property in the Building. Landlord reserves the
right to inspect all objects and matter to be brought into the Building and to
exclude from the Building all objects and matter which violate any of these
Rules and Regulations or the lease of which this Exhibit is a part. Landlord
reserves the right to restrict or prohibit access to the Building elevators and
the tenant premises in the Building to persons with food deliveries, messengers
and couriers (which are not employees of Tenant), package delivery services and
express mail delivery services (except for reputable, national overnight express
mail services, Le. U.S. Postal Service, Federal Express, DHL). If Landlord
prohibits delivery to the tenant's premises, Landlord agrees to inform Tenant of
such deliveries, and, at Tenant's option, Landlord will either have a Building
employee make such delivery to tenant's premises or Landlord will hold such
deliveries in a designated area in the lobby of the Building until picked up by
tenant. The Landlord may require any person leaving the Building with any
package or other object to exhibit a pass, listing such package or other object,
from the tenant from whose premises the package or object is being removed, but
the establishment and enforcement, or failure to enforce, of such requirements
shall not impose any responsibility on 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 of any person to or form the tenant's
premises or the Building under the provisions of this rule. Tenant shall comply
with and shall require its principal, officers, employees, agents, visitors and
invitees to comply with all security rules and regulations as may be put into
effect by Landlord from time to time.
4. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverages, towels, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by the Landlord in writing to furnish much services. No
tenant shall install or permit to be installed any vending machines 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
from time to time.
5. No awnings, window or other air-conditioning units or other
projections over or around the windows shall be installed by any tenant and
only such window coverings as are supplied or permitted by the Landlord shall
be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise or mail, any hand trucks, except those equipped with
rubber tires and side guards.
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101
7. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left
open at anytime. All windows in each tenant's premises shall be kept closed at
all times and all blinds or drapes therein above the ground floor shall be
lowered or closed when and as reasonably required because of the position of
the sun, during the operation of the Building air conditioning system to cool
or ventilate the tenants' premises.
8. No noise, including, but not limited to, music or 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's services or the proper and economic heating, ventilating, air
conditioning, cleaning or other servicing of the Building or the premises, or
the use or enjoyment by any other tenant of any other premises, nor shall
there be installed by any tenant any ventilating, air conditioning, electrical
or 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, material or fluid shall be brought into the
Building by any tenant or with the permission of any tenant.
9. No tenant shall cause or permit any cooking, food or other odors
to emanate from its premises into other portions of the Building.
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the
Building. The water and wash closets and other plumbing fixtures in or serving
any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by the
tenant who, or whose servants, employees, agents, visitors or licensees, shall
have caused the same.
11. No lettering, signs, advertisement, notice or other objects shall
be exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside of 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 violating this rule. Interior
signs, elevator cab designations and lettering on doors and the Building
directory shall be inscribed, painted, or affixed for each tenant by Landlord
at the
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102
expense of such tenant, and shall be of a size, color and style acceptable to
Landlord. Any permitted changes or additions to the Building directory shall be
made by Landlord upon Tenant's request and Tenant shall pay Landlord's
administrative charge therefor. Landlord shall have the right to prohibit any
advertising or identifying sign by any tenant which impairs the reputation of
the Building or its desirability as a building for others, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such advertising
or identifying signs.
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any tenant's premises and no lock on any door
therein shall be changed or altered in any respect. Duplicate keys for a
tenant's premises and toilet rooms shall be procured only from the Landlord,
who may make a reasonable charge therefor. Upon the termination of a tenant's
lease, all keys of the tenant's premises and toilet rooms shall be delivered
to the Landlord and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost thereof.
13. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Building or the premises demised to such tenant. 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.
14. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building or advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any time,
as a store for the sale or display of goods or merchandise of any kind, or as
a restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which involves direct patronage of the general public
in the premises demised to such tenant, or for manufacturing or for other
similar purposes.
16. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of the irregular duties, unless under
special instructions from the office of the Landlord.
17. 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
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103
janitorial or other cleaning services and making repairs or alterations in
said premises.
18. Employees of Tenant shall not loiter in or. around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
19. If the premises become infested with insects or 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.
20. Any and all water and/or food garbage, including coffee grinds,
are to be deposited in a plastic liner bag in a water basket or other
receptacle.
21. No premises of any tenant shall be used for lodging or sleeping
or for any immoral or illegal purpose.
22. No animals or birds, bicycles, mopeds or vehicles of any kind
shall be kept in or about the Building permitted therein.
23. No furniture, office equipment, packages or merchandise will be
received in the Building or carried up or down in the elevator, except between
such hours as shall be designated by Landlord. Landlord shall prescribe the
charge for freight, elevator use and the method and manner in which any
merchandise, heavy furniture, equipment or safes shall be brought in or taken
out of the Building, and also the hours at which such moving shall be done.
Landlord in all cases retains the right to prescribe the weight and proper
position of such heavy furniture and safes. All damages done to the Building
by taking in or out such merchandise, heavy furniture or safes or any damages
done to the Building while any of said property shall be therein, shall be
made good and paid for by tenant on demand.
24. Landlord reserves the right to rescind, alter or waive any rule
or regulation at any time prescribed for the Building, which, in its judgment,
it deems is necessary, desirable or proper for its best interest and for the
best interests of the tenants generally, and no alteration or waiver of any
rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the non-observance or violation by any other tenants of any of the
rules and regulations at any time prescribed for the Building.
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EXHIBIT "G"
EXPANSION SPACE FLOOR PLAN
--------------------------
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105
EXHIBIT "G"
-----------
- 102 -
106
BATTLE XXXXXX
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
000 Xxxx Xxxxxx
Xxx Xxxx, XX 000x0
(000) 000-0000
FACSIMILE TRANSMISSION COVER SHEET
----------------------------------
DATE:________________________________________________________________________
FROM:________________________________________________________________________
CLIENT/MATTER NAME:__________________________________________________________
CLIENT/MATTER NO.:___________________________________________________________
PLEASE DELIVER THE FOLLOWING PAGES TO:
NAME:________________________________________________________________________
FAX NUMBER:__________________________________________________________________
TOTAL PAGES (INCLUDING COVER SHEET): _____
MESSAGE:
Our facsimile number is (000) 000-0000. If any problems occur during this
transmission, please notify us immediately by telephone at either (000) 000-0000
or (000) 000-0000.
TRANSMITTED BY: ______ DATE: ________ TIME: ________
[ ] Original will not follow.
[ ] Original will follow via:
[ ] Regular Delivery [ ] Overnight Delivery [ ] Hand Delivery
[ ] Other:____________________________________________________________________
The information contained in this facsimile message is
attorney client privileged and confidential information intended only for the
use of the individual or entity named above. If you are not the intended
recipient, you are hereby notified that any dissemination, distribution or
copying of the communication is strictly prohibited. If you received this
communication in error, please immediately notify us by telephone and return the
original message to us at the above address. Thank you.
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AGREEMENT AND GUARANTEE
-----------------------
KNOW ALL MEN BY THESE PRESENTS THAT:
WHEREAS:
1. PROGRESS PARTNERS ("LANDLORD"), a New York general
partnership, having an office c/o JMB Realty Corporation, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, has been requested by XXXXX ASSOCIATES, INC.
("TENANT"), a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, to
enter into a proposed lease ("LEASE"), whereby Landlord would let and demise
unto Tenant, and Tenant would hire and rent from Landlord the entire sixth (6th)
and seventh (7th) floors and a portion of the eighth (8th) floor, as more
particularly described and set forth in the Lease ("DEMISED PREMISES"), in the
building located at 000 Xxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and
State of New York, which Lease is hereby incorporated in this instrument by
reference; and
2. XXXXX XXXXX ("GUARANTOR"), an individual having an address
at 000 Xxxxx Xxxxxx, Rev York, Rev York, is the owner of issued and outstanding
stock of Tenant and is willing to guarantee the obligations of Tenant under the
Lease to the extent Bet forth below; and
3. Guarantor acknowledges that Landlord would not enter into
the Lease unless this Agreement and Guarantee accompanied the execution and
delivery of the Lease.
NOW, THEREFORE, in consideration of the execution and delivery
of the Lease and of other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged by Guarantor, Guarantor agrees as
follows:
FIRST: Guarantor does hereby:
A. Guarantee to Landlord the full and prompt payment of the
rent, additional rent and all other sums and charges payable by Tenant or its
successors and assigns under the Lease, and Guarantor covenants to and agrees
with Landlord that if Tenant, or its successors or assigns, shall default at any
time during the term demised in the Lease in the payment of rent, additional
rent, or other charges payable by Tenant under the Lease beyond the applicable
grace period provided in the Lease for the curing of such default, if any, then
Guarantor will, without notice or demand, forthwith pay to Landlord the rent,
additional rent and other charges payable by Tenant under the Lease, or any
arrears thereof that may remain due to Landlord, its successors and assigns, and
all damages, costs and expenses,
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108
including, but Rot limited to, any damages payable pursuant to
the Lease that may arise in consequence of Tenant's insolvency;
B. Covenant to and agree with Landlord that any action, suit
or proceeding brought against Guarantor to collect the amount of any deficiency
under the Lease for any month or months shall not prejudice in any way the
rights of Landlord to collect any such deficiency for any subsequent mouth or
months in any similar suit or proceeding;
C. Covenant to and agree with Landlord that Guarantor may, at
Landlord's option, without prior notice or demand, be joined in any action, suit
or proceeding commenced by Landlord against Tenant in connection with or based
upon the Lease or any term, covenant or condition thereof , that recovery may be
had against Guarantor in much action or proceeding or in any independent action
or proceeding against Guarantor without Landlord, it. successors or assigns,
first asserting, prosecuting, or exhausting any remedy or claim against Tenant,
its successors or assigns, or against any security of Tenant held by Landlord
under the Lease, and that Guarantor will be conclusively bound in any
jurisdiction by the judgment in any such action by Landlord against Tenant as if
Guarantor were a party to such action even though Guarantor is not joined as a
part in such action;
D. Covenant to and agree with Landlord that this Agreement
and Guarantee shall be a continuing guarantee and shall remain in full force
and effect notwithstanding any modifications, amendments or extensions of the
Lease by Xxxxx Associates, Inc. or a Related Entity (as defined in the Lease),
any releases or discharges of Tenant (other than full release and complete
discharge of all of Tenant's obligations under the Lease by Landlord, as
opposed to pursuant to an adjudication by any bankruptcy or other legal
proceeding), any extension of time that Ray be granted by Landlord to Tenant,
any subletting or assignment (whether entered into with or without Landlord's
consent), any changed or different use of the Demised Premises, any other
dealings or matters occurring between Landlord and Tenant, the taking by
Landlord of any additional guarantees from other persons or entities, the
releasing by Landlord of any other guarantor, the taking of any legal action
by Landlord against Tenant, or Landlord's failure to perfect or rely upon any
security interest provided in the Lease or any Landlord's lien provided by
law, to all of which foregoing matters Guarantor hereby consents in advance;
E. Covenant to indemnify and save Landlord harmless of and
from all loss, cost, liability, expense or damage, including, but not limited
to counsel fees and disbursements which may arise by reason of Tenant's
default under the Lease, Tenant's insolvency, Guarantor's default hereunder or
otherwise enforcing the Lease and this Agreement and Guarantee;
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109
F. Covenant to and agree with Landlord (I) that the validity
of this Agreement and Guarantee shall in no way be terminated, modified,
affected, diminished or impaired by reason of (a) any action which Landlord
may take or fail to take against Tenant, or by reason of any waiver of, or
failure to enforce, any of the rights or remedies of Landlord under the Lease
or otherwise, or by release of Tenant from any of Tenant's obligations under
the Lease or otherwise, or (b) the release or discharge of Tenant in any
creditors' proceedings, receivership, bankruptcy or other proceedings, (c) the
impairment, limitation or modification of the liability of Tenant or the
estate of Tenant in bankruptcy, or any remedy for the enforcement of Tenant's
Bald liability under the Lease, resulting from the operation of any present or
future provision of The Bankruptcy Reform Act of 1978, as amended, or other
statute or from the decision of any court, or (d) the rejection or
disaffirmance of the Lease in any such proceedings; (ii) that the failure or
refusal of Landlord to re-let the Demised Premises or any part thereof in the
event that Landlord shall obtain possession thereof after Tenant's insolvency
or default shall not release or affect Guarantor's liability hereunder, nor
shall Landlord be liable in any way whatsoever for failure to re-let the
Demised Premises or any part thereof, nor, in the event that the Demised
Premises are re-let, for failure to collect rent under any such re-letting;
and (iii) that Landlord, at Landlord's option, may make such alterations,
repairs, replacement or decorations in the Demised Premises or any part
thereof 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 or decorations shall not operate or be construed to
release Guarantor from its liability hereunder;
G. Waive notice of the acceptance of thin Agreement and
Guarantee and of any and all defaults by Tenant in the payment of rent,
additional rent, or other charges, and of any and all defaults by Tenant in
the performance of any of the terms, covenants or conditions of the Lease on
Tenant's part to be observed or performed, and of any and all notices or
demands which may be given by Landlord to Tenant, whether or not required to
be given to Tenant under the terms of the Lease;
H. Waive (i) trial by jury of any and all issues arising in
any action or proceeding between the parties, upon, under or in connection
with this Agreement and Guarantee or any and all negotiations and agreements
in connection therewith, (ii) any defenses of Tenant to payment and
performance. under the Lease that may be available to Guarantor and (iii) the
benefit of any statute of limitations affecting Guarantor~s liability under
this Agreement and Guarantee;
I. Acknowledge that this Agreement and Guarantee is an
absolute and unconditional guarantee of payment up to the Guarantee Amount,
and not of collection in respect to any
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obligations which Ray accrue to Landlord from Tenant under the provisions of the
Lease, and that this Agreement and Guarantee shall be enforceable against
Guarantor without the necessity of any suit or proceedings on the part of
Landlord of any kind or nature whatsoever against Tenant, its successors and
assigns, without the necessity of resorting to any security of Tenant held by
Landlord and without the necessity of any notice of nonpayment, nonperformance
or nonobservance or any notice of acceptance of this Agreement and Guarantee or
of any other notice or demand to which Guarantor might otherwise be entitled,
all of which Guarantor hereby expressly waives in advance;
J. Covenant to and agree with Landlord that the validity of
this Agreement and Guarantee shall in no way be terminated, affected or
otherwise impaired by reason of any assignment or transfer of all or any part
of Tenant's interest in the Lease;
K. Covenant to and agree with Landlord that in the event of
termination of the Lease by reason of the occurrence of any of the events of
default set forth in the Lease, or in the event of the disaffirmance or
rejection of the Lease Guarantor shall, upon written request of Landlord given
by certified mail, return receipt requested, at Guarantor's address first set
forth above, within thirty (30) days next following any such termination,
disaffirmance or rejection (and actual notice thereof to Landlord in the event
of a disaffirmance or rejection or in the event of a termination other than by
act of Landlord) pay to Landlord all rent, additional rent and other charges
due and owing from Tenant to Landlord under the Lease;
L. Covenant to and agree with Landlord that, until all the
covenants and conditions in the Lease on Tenant's part to be performed and
observed are fully performed and observed, Guarantor (i) waives any right that
Guarantor may have against Tenant by reason of any payments or acts of
performance by Guarantor herewith or any right to enforce any remedy which
Guarantor may have against Tenant by reason of any such payment or
performance, and (ii) subordinates any liability or indebtedness of Tenant nov
or hereafter held by Guarantor to the obligations of Tenant to Landlord under
the Lease;
M. Covenant to and agree with Landlord that if the Lease
shall be renewed, or its term extended, for any period beyond the date
specified in the Lease for the expiration of said term, either pursuant to any
option granted under the Lease or otherwise, or if Tenant holds over beyond
the term of the Lease, the obligations of Guarantor hereunder shall extend and
apply with respect to any such modification thereof;
N. Deleted prior to execution.
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O. Submit Guarantor to the jurisdiction of the Courts of the
State of New York and the United States Federal Courts sitting in the City of
New York;
P. Represent that Guarantor has the legal right and capacity
to enter into this Agreement and Guarantee, and that this Agreement and
Guarantee constitutes a valid and binding agreement enforceable against
Guarantor in accordance with its terms;
Q. Deleted prior to execution.
R. Covenant to and agree with Landlord that if this
Agreement and Guarantee be held ineffective or unenforceable Guarantor shall
be deemed to be a tenant under the Lease with the same force and effect as if
Guarantor were expressly named as a joint tenant therein with joint and
several liability thereunder; and
SECOND: The liability of Guarantor under this Agreement and
Guarantee (including, without limitation, the operation of paragraph I above)
shall in no event exceed, in an aggregate, TWO HUNDRED THOUSAND DOLLARS
($200,000.00) (as such amount may be reduced as provided below, the "Guarantee
Amount").
Notwithstanding the foregoing, the Guarantee Amount shall be
reduced to (i) $100,000.00 so long as the net worth of Tenant exceeds
$3,000,000.00 and (ii) $0.00 so long as the net worth of Tenant exceeds
$4,000,000.00, provided that, in each instance such net worth is evidenced by
financial statements delivered to Landlord no later than April 1 of each
calendar year prepared in accordance with generally accepted accounting
principles and certified by a nationally recognized public accounting firm. In
such events, upon Landlord's satisfactory review of such financial statements,
Landlord shall confirm in writing the reduction of the Guarantee Amount as set
forth above, provided, however, that (i) the Guaranteed Amount cannot be reduced
below $100,000 prior to January 1, 1997 and (ii) no such reduction in the
Guarantee Amount shall be effective against Landlord during the periods of time
that Tenant's net worth is less than $3,000,000 or $4,000,000, as the case may
be.
Moreover, this Agreement and Guarantee shall terminate and be
of no further force and effect in the event that Tenant, at its sole option,
either (a) increases the amount of the Letter of Credit (as defined in the
Lease) then required to be held pursuant to the Lease by $200,000.00 or (b)
delivers an additional letter of credit in the amount of $200,000.00 in form
satisfactory to Landlord, less, in either case, the amount of any payments Rate
by Guarantor to Landlord pursuant to this Agreement and Guarantee prior to the
date of such increase of the Letter of Credit or the delivery of the additional
letter of credit. In the event Tenant elects to deliver an additional letter of
credit
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112
same shall not be subject to any reduction. In the event Tenant elects to
increase the Letter of Credit as provided for herein then such increased portion
of the Letter of Credit shall not be subject to any reduction, notwithstanding
the provisions of Article 34 of the Lease which provides for reduction of the
Letter of Credit on the basis of total indebtedness of Tenant. In the event of
such increase in the Letter of Credit or the delivery of the additional letter
of credit as set forth above, Landlord agrees to execute any documents
reasonably requested by Guarantor in order to evidence the termination of this
Agreement and Guarantee.
THIRD: The provisions, covenants and guarantees of this
Agreement and Guarantee shall be binding upon Guarantor, its successors, assigns
and legal representatives and shall inure to the benefit' of Landlord, its
successors, assigns and legal representatives, and shall not be deemed waived or
modified unless specifically set forth in writing, executed by Landlord and
delivered to Guarantor.
FOURTH: The provisions of this Agreement and 'Guarantee
shall be governed by and interpreted in accordance with the law of the State
of New York, without giving effect to its principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned Guarantor has signed and
sealed Agreement and Guarantee as of this _____ day of ______________ , l9__.
_______________________________
XXXXX XXXXX
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000
XXXXX XX XXX XXXX )
: SS.:
COUNTY OF NEW YORK )
On this ______ day of ________________, 199__, before me
personally came Xxxxx Xxxxx to me known, who being by me duly sworn, did
depose and say that he resides at __________________________________________
that he is the individual described in and who executed the foregoing
instrument.
__________________________________
Notary Public
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