Exhibit 10.1
AGREEMENT OF LEASE
between
Aetna Life Insurance Company, Landlord
and
La Branche & Co., Tenant
Dated: January 6th, 1984
PREMISES:
Easterly portion of 26th floor
0 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
OFFICE LEASE
TABLE OF CONTENTS
Page
Article 1 Rent .................................................... 1
Article 2 Commencement of Term .................................... 3
Article 3 Adjustments of Rent ..................................... 5
Article 4 Electricity ............................................. 12
Article 5 Use ..................................................... 15
Article 6 Alterations and Installations ........................... 15
Article 7 Repairs ................................................. 21
Article 8 Requirements of Law ..................................... 23
Article 9 Insurance, Loss, Reimbursement, Liability ............... 24
Article 10 Damage by Fire or other Cause ........................... 27
Article 11 Assignment, Mortgaging, Subletting, Etc.................. 29
Article 12 Certificate of Occupancy ................................ 35
Article 13 Adjacent Excavation - Shoring ........................... 36
Article 14 Condemnation ............................................ 36
Article 15 Access to Demised Premises; Changes...................... 38
Article 16 Conditions of Limitation ................................ 39
Article 17 Re-entry by Landlord, Injunction ........................ 41
Article 18 Damages ................................................. 42
Article 19 Landlord's Right to Perform Tenant's Obligations ........ 44
Article 20 Quiet Enjoyment ......................................... 45
Article 21 Services and Equipment .................................. 45
Article 22 Definitions ............................................. 48
Article 23 Invalidity of any Provision ............................. 49
Article 24 Brokerage ............................................... 49
Article 25 Subordination ........................................... 50
Article 26 Certificate of Tenant ................................... 52
Article 27 Legal Proceedings, Waiver of Jury Trial ................. 53
Article 28 Surrender of Premises ................................... 53
Article 29 Rules and Regulations ................................... 54
Article 30 Consents and Approvals .................................. 54
Article 31 Notices ................................................. 55
Article 32 No Waiver ............................................... 56
Article 33 Captions ................................................ 57
Article 34 Inability to Perform .................................... 57
Article 35 No Representations by Landlord .......................... 57
Article 36 Name of Building ........................................ 58
Article 37 Arbitration ............................................. 58
Article 38 Indemnity ............................................... 58
Article 39 Memorandum of Lease ..................................... 59
Article 40 Approval of Permanent Mortgagee ......................... 59
Article 41 Security Deposit ........................................ 60
Article 42 Fair Market Rent Review/Renewal Option .................. 61
Article 43 Miscellaneous ........................................... 66
Article 44 Intentionally Omitted ................................... 68
Article 45 Partnership ............................................. 68
SCHEDULES
A - Floor Plan
B - Description of Land
C - Work Agreement
D - Form of Estoppel Letter
E - Rules and Regulations
F - Cleaning and Janitorial Services
G - Letter of Credit
AGREEMENT OF LEASE made as of this 6th day of January, 1984, between
AETNA LIFE INSURANCE COMPANY, a Connecticut corporation having an address at Xxx
Xxxxx Xxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter
referred to as "Landlord") and LA BRANCHE & CO., a New York partnership having
an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to
as "Tenant").
W I T N E S S E T H:
Landlord hereby leases and Tenant hereby rents from Landlord the
easterly portion of the 26th floor shown hatched on the plan annexed hereto as
Schedule A (the "demised premises") in the building (the "Building") constructed
by Landlord on the land (the "Land") described in Schedule B annexed hereto (the
Land and the Building being hereinafter referred to as the "Property"), for a
term (the "Term") of ten (10) years commencing on the "Commencement Date" and
ending on the "Expiration Date" (as said terms are defined in Article 2 hereof)
unless the Term shall sooner cease and terminate as hereinafter provided. It is
understood and agreed that the Building has no 13th floor.
The parties hereby covenant and agree as follows:
ARTICLE 1
RENT
1.01. Tenant agrees to pay to Landlord a fixed annual rent (the
"fixed annual rent") at the annual rate of ONE HUNDRED FORTY-SEVEN THOUSAND
EIGHT HUNDRED EIGHTY-NINE & 00/100 ($147,889.00) DOLLARS in equal monthly
installments of TWELVE THOUSAND THREE HUNDRED TWENTY-FOUR & 08/100) ($12,324.08)
DOLLARS each in advance on the first day of each calendar month during the Term,
at the office of Landlord or such other place as Landlord may designate, without
any setoff or deduction whatsoever, except such deductions as are specifically
referred to in Articles 10 and 14 hereof. The first full month's installment of
fixed annual rent and the Security Deposit described in Article 41 hereof shall
be paid by Tenant to Landlord upon the execution of this Lease. Should the
Commencement Date fall on any day other than the first day of a month, then the
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fixed annual rent for such month shall be prorated on a per diem basis, and
Tenant agrees to pay the amount thereof for such partial month on the
Commencement Date.
1.02. Tenant shall pay the fixed annual rent and all additional rent
payable hereunder in lawful money of the United States by check (subject to
collection) drawn to the order of Xxxxx Xxxx Xxxxxxx - One Exchange, or such
other party as Landlord may from time to time designate, on a bank which is a
member of the New York Clearinghouse Association or a successor thereto. All
sums, other than fixed annual rent, payable by Tenant hereunder shall be deemed
additional rent and shall be payable on demand unless other payment dates are
hereinafter provided. Landlord shall have the same right and remedies
(including, without limitation, the right to commence a summary proceeding) for
a default in the payment of additional rent as for a default in the payment of
fixed annual rent notwithstanding the fact that Tenant may not then also be in
default in the payment of fixed annual rent.
1.03. If Tenant shall fail to pay when due any installment of fixed
annual rent or any payment of additional rent for a period of 7 days after such
installment or payment shall have become due, Tenant shall pay interest thereon
at the Interest Rate (as such term is defined in Article 22 hereof), from the
date when such installment or payment shall have become due to the date of the
payment thereof, and such interest shall be deemed additional rent. The
provisions of this Section 1.03 are in addition to all other remedies available
to Landlord for nonpayment of fixed annual rent or additional rent.
1.04. If any of the fixed annual rent or additional rent payable
under this Lease shall be or become uncollectible, reduced or required to be
refunded because of any Legal Requirement (as such term is defined in Article 22
hereof), Tenant shall enter into such agreement(s) and take such other legally
permissible steps as Landlord may request to permit Landlord to collect the
maximum rents which from time to time during the continuance of such Legal
Requirement may be legally permissible and not in excess of the amounts reserved
therefor under this Lease. Upon the termination of such Legal Requirement, (a)
the rents hereunder shall be payable in the amounts reserved herein for the
periods following such termination and (b) Tenant shall pay to Landlord, to the
maximum extent legally permissible, an amount equal to (i) the rents which would
have been paid pursuant to this Lease but for such Legal Requirements less (ii)
the rents paid by Tenant during the period such Legal Requirement was in effect.
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ARTICLE 2
COMMENCEMENT OF TERM
2.01. (a) The "Commencement Date" of the Term shall be the earlier
of (i) the date on which the demised premises are substantially ready for
occupancy (as defined below), or (ii) the date Tenant or anyone claiming under
or through Tenant first occupies the demised premises for the conduct of its
business.
(b) The "Expiration Date" of the Term shall be the last day of
the month in which the tenth anniversary of the Commencement Date occurs or such
later date as shall be specified by Landlord pursuant to Section 2.06 below.
2.02. The demised premises shall be completed and prepared for
Tenant's occupancy as provided in Schedule C annexed hereto. The facilities,
materials and work so to be furnished, installed and performed in the demised
premises by Landlord at its expense are hereinafter and in Schedule C referred
to as the "Building Standard Work." All other installations, materials and work
which may be undertaken by Landlord for the account of Tenant to prepare, equip,
decorate and furnish the demised premises for Tenant's occupancy shall be at
Tenant's expense and are hereinafter and in Schedule C called "Tenant's Extra
Work". Building Standard Work and Tenant's Extra Work are herein and in Schedule
C collectively called "Landlord's Work." Any installations, materials and work
undertaken by Tenant (in the circumstances herein permitted) to prepare, equip,
decorate and furnish the demised premises for Tenant's occupancy shall be at
Tenant's expense and are hereinafter and in Schedule C called "Tenant's Special
Work".
2.03. The demised premises shall be deemed substantially ready for
occupancy when the Building Standard Work (or so much thereof as Tenant shall
require) shall have been substantially completed and a Certificate of Occupancy
(temporary or final) shall have been issued by the Department of Buildings of
the City of New York permitting use of the demised premises for the purposes
permitted by Article 5 hereof. The Building Standard Work (or so much thereof as
Tenant shall require) shall be deemed to have been substantially completed
notwithstanding that (i) minor or insubstantial details of construction,
decoration or mechanical adjustment remain to be performed, provided the demised
premises are accessible and reasonably useable and (ii) portions thereof are
incomplete which under good
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construction scheduling practice should be done after still incomplete Tenant's
Extra Work or Tenant's Special Work. Landlord shall diligently complete all such
portions of Building Standard Work as soon as reasonably practicable.
2.04. Notwithstanding anything to the contrary contained in this
Lease, the Commencement Date shall be deemed to have occurred on the date when
the demised premises would have been, in Landlord good faith judgment,
substantially ready for occupancy except for (i) Tenant's delay in complying
with, or failure to comply with, the provisions of Schedule C hereof or (ii) any
Tenant's Delay as defined in Schedule C hereof including, without limitation,
any request by Tenant for Tenant's Extra Work, even though no Certificate of
Occupancy (temporary or final) has been issued or the Building Standard Work
being done for Tenant has not been commenced or completed.
2.05. Landlord shall, in accordance with the foregoing, fix the
Commencement Date and shall notify Tenant of the date so fixed. When the
Commencement Date has so been determined, the parties shall within fifteen (15)
days thereafter, at Landlord's request, execute a written agreement confirming
such date as the Commencement Date. Any failure of the parties to execute such
written agreement shall not affect the validity of the Commencement Date as
fixed and determined by Landlord as aforesaid.
2.06. Notwithstanding anything contained to the contrary in this
Lease, Landlord at its option, upon written notice from Landlord to Tenant given
within nine (9) months after the Commencement Date is fixed, may extend the Term
as follows: (i) to a date occurring no later than one year beyond the date the
Term would have expired absent the right to extend the Term pursuant to this
Section 2.06 and/or (ii) in the event of any Tenant's Delay for the number of
days equal to the number of days of Tenant's Delay.
2.07. Notwithstanding anything to the contrary in this Lease,
Landlord shall not be entitled to collect nor shall Tenant be required to pay
fixed annual rent for the period commencing on the Commencement Date and
continuing for 59 days thereafter. All of the other terms, provisions and
conditions contained in this Lease shall apply with full force and effect during
said two-month period.
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ARTICLE 3
ADJUSTMENTS OF RENT
3.01. A. For purposes hereof, the following definitions shall apply:
(a) The term "Base Tax" shall mean the sum of $1,179,200.00.
(b) The term "Tax Year" shall mean each period of twelve
months which includes any part of the Term which now or hereafter is or may be
duly adopted as the fiscal year for real estate tax purposes of the City of New
York.
(c) The term "Taxes" shall mean (i) all real estate taxes,
assessments, governmental levies, municipal taxes, county taxes or any other
governmental charge, general or special, ordinary or extraordinary, unforeseen
as well as foreseen, of any kind or nature whatsoever, which are or may be
assessed, levied or imposed upon all or any part of the Property and the
sidewalks, plazas or streets adjacent thereto, including any tax, excise or fee
measured by or payable with respect to any rent (other than any occupancy or
rent tax payable by Tenant pursuant to Section 3.03), and levied against
Landlord and/or the Property under the laws of the United States, the City or
State of New York, or any political subdivision thereof, and (ii) any expenses
incurred by Landlord, including payments to attorneys and appraisers, in
contesting any of the items set forth in clause (i) of this sentence, or the
assessed valuations of all or any part of the Property. If due to a future
change in the method of taxation or in the taxing authority, a new or additional
real estate tax, or a franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied against Landlord,
and/or the Property, in addition to, or in substitution in whole or in part for
any tax which would constitute "Taxes", or in lieu of additional Taxes, such tax
or imposition shall be deemed for the purposes hereof to be included within the
term "Taxes."
(d) The term "Tenant's Tax Share" shall mean 1.36%.
(e) The term "Escalation Statement" shall mean a statement
setting forth the amount payable by Tenant for a specified Tax Year or Operating
Year (as defined in
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Section 3.02 hereof), as the case may be, or for some portion thereof pursuant
to this Article 3.
B. Tenant shall pay to Landlord as additional rent for each
Tax Year a sum equal to Tenant's Tax Share of the amount by which the Taxes for
such Tax Year exceed the Base Tax (hereinafter referred to as "Tenant's Tax
Payment"). Landlord shall furnish the Tenant an annual Escalation Statement
(subject to revision as hereinafter provided) for each Tax Year setting forth
Tenant's Tax Payment for such Tax Year. Tenant's Tax Payment shall be due and
payable as follows: two semi-annual installments, in advance, on the first day
of each June and December of each calendar year. If an annual Escalation
Statement is furnished to the Tenant after the commencement of the Tax Year to
which it relates, then (a) until such Escalation Statement is rendered, Tenant
shall pay Tenant's Tax Payment for such Tax Year in installments based upon the
last Escalation Statement rendered to Tenant with respect to Taxes and (b)
Tenant shall, within 20 days after such annual Escalation Statement is furnished
to Tenant, pay to Landlord an amount equal to any underpayment of the
installments of Tenant's Tax Payment theretofore paid by Tenant for such Tax
Year and, in the event of an overpayment by Tenant, Landlord shall permit Tenant
to credit against subsequent payments under this Section 3.01 the amount of such
overpayment. If there shall he any increase in Taxes for any Tax Year, whether
during or after such Tax Year, Landlord shall furnish a revised Escalation
Statement for such Tax Year to Tenant, and Tenant's Tax Payment for such Tax
Year shall be adjusted and paid or credited, as appropriate, in the same manner
as provided in the preceding sentence. If during the Term, Taxes are required to
be paid (either to the appropriate taxing authorities or as tax escrow payments
to a superior mortgagee or ground lessor) in full or in monthly, quarterly, or
other installments, on any other date or dates than as presently required, then
at Landlord's option, Tenant's Tax Payments shall be correspondingly accelerated
or revised so that said Tenant's Tax Payments are due at least 30 days prior to
the date payments are due to the taxing authorities or the superior mortgagee or
ground lessor. The benefit of any discount for any early payment or prepayment
of Taxes shall accrue solely to the benefit of Landlord and such discount shall
not be subtracted from Taxes.
C. If Landlord shall receive a refund of Taxes for any Tax
Year, Landlord shall permit Tenant to credit against subsequent payments under
this Section 3.01, Tenant's Tax Share of the refund, but not in excess of,
Tenant's Tax Payment paid for such Tax Year.
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3.02. A. For purposes hereof the following definitions shall apply:
(a) The term "Expense Base Factor" shall mean $1,136,200.00.
(b) The term "Operating Year" shall mean each calendar year
which includes any part of the Term.
(c) The terms "Tenant's Expense Share" shall mean 1.41%.
(d) The term "Expenses" shall mean the total of all the costs
and expenses (and taxes thereon, if any) incurred by Landlord with respect to
the operation and maintenance of the Property and the services provided to the
tenants of the Building computed on an accrual basis including, without
limitation, the costs and expenses with respect to: steam, gas and any other
fuel or utilities; water rates and sewer rents; air conditioning for areas other
than those leased to individual Tenants; ventilation and heating; electricity
for areas other than those leased to individual Tenants as indicated by meter,
or if there be no meter, as determined by Landlord's electrical consultant (as
defined in Section 3.08 hereof); elevators and escalators; metal, elevator cab,
lobby, plaza, sidewalk, curb and other public area maintenance and cleaning;
interior and exterior landscaping and decoration; painting of non-tenant areas;
window cleaning; building standard cleaning service supplied to tenants by
Landlord; the purchase price or rental cost, as applicable, of all building and
cleaning supplies, tools, materials, machinery and equipment; depreciation of
hand tools and other movable equipment used in the operation or maintenance of
the Property; fire, extended coverage, boiler and machinery, sprinkler
apparatus, public liability and property damage, loss of rental, fidelity and
plate glass insurance and any other insurance required by the holder of any
mortgage or ground lease covering the Property or customarily carried with
respect to buildings similar to the Building; wages, salaries, bonuses,
disability benefits, hospitalization, medical, surgical, union and general
welfare benefits (including group life insurance), any pension, retirement or
life insurance plan and other benefit or similar expense respecting employees of
the Landlord up to and including the building manager; uniforms and working
clothes for such employees and the cleaning and replacement thereof; expenses
imposed on the Landlord pursuant to law or to any collective bargaining
agreement with respect to such employees; workmen's compensation insurance,
payroll, social security, unemployment and other similar taxes with respect to
such
7
employees; salaries of bookkeepers and accountants; professional and consulting
fees, including legal and accounting fees; charges for independent contractors
performing work included within the definition of Expenses; association fees or
dues; telephone and stationery; guards, watchmen, and other security personnel
services and/or systems; directory; building telephone; repairs, replacements
and improvements which are necessary or appropriate for the continued operation
of the Building as a first-class office building; and management fees for the
management of the Building, or if no managing agent is employed by Landlord
(i.e. Landlord performs such management services itself), a sum in lieu thereof
which is not in excess of the then prevailing rates for management fees in the
Borough of Manhattan for first-class office buildings similar to the building.
The following costs and expenses shall be excluded or deducted, as
appropriate, from the foregoing costs and expenses:
(i) the cost of electricity furnished to the demised
premises and other space leased to tenants as measured by meters, or if there be
no meters, as determined by Landlord's electrical consultant;
(ii) leasing commissions;
(iii) salaries for Landlord's executives above the grade
of building manager;
(iv) amounts received by Landlord through proceeds of
insurance to the extent the proceeds are compensation for expenses which were
previously included in Expenses hereunder;
(v) cost of repairs or replacements incurred by reason
of fire or other casualty or condemnation to the extent to which Landlord is
compensated therefor through proceeds of insurance or condemnation award;
(vi) advertising and promotional expenditures other than
for prospective employees of the Landlord (which expenditures shall be included
within the definition of Expenses);
(vii) Taxes;
(viii) costs for performing Landlord's Work for any
individual Tenant or for performing work or
8
furnishing services to or for individual tenants at such tenant's expense; and
(ix) expenditures for capital improvements except those
which under generally applied real estate practice are expensed or regarded as
deferred expenses and except for capital expenditures required by law, in either
of which cases the cost thereof shall be included in Expenses for the Operating
Year in which the costs are incurred and subsequent Operating Years, on a
straight line basis, to the extent that such items are amortized over an
appropriate period, but not more than ten years, with interest at the Interest
Rate.
If Landlord shall purchase any item of capital equipment or make any
capital expenditures designed to result in savings or reductions in Expenses,
then the costs for same shall be included in Expenses. The costs of capital
equipment or capital expenditures are so to be included in Expenses for the
Operating Year in which the costs are incurred and subsequent Operating Years,
on a straight line basis, to the extent that such items are amortized over such
period of time as reasonably can be estimated as the time in which such savings
or reductions in Expenses are expected to equal Landlord's costs for such
capital equipment or capital expenditure, with interest at the Interest Rate. If
Landlord shall lease any such item of capital equipment designed to result in
savings or reductions in Expenses, then the rentals and other costs paid
pursuant to such leasing shall be included in Expenses for the Operating Year in
which they were incurred.
If during all or part of any Operating Year, Landlord shall not
furnish any particular item(s) of work or service (which would constitute an
Expense hereunder) to portions of the Building, due to the fact that
construction of the Building is not completed, or such portions are not occupied
or leased, or because such item of work or service is not required or desired by
the tenant of such portion, or such tenant is itself obtaining and providing
such item of work or service, or for other reasons, then, for the purpose of
computing the additional rent payable hereunder, the amount of the Expenses for
such item for such period shall be increased by an amount equal to the
additional operating and maintenance expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished
such item of work or services to such portion of the Building.
B. If the Expenses for any Operating Year exceed the Expense
Base Factor, Tenant shall pay to Landlord
9
as additional rent for such Operating Year an amount equal to Tenant's Expense
Share of the excess of the Expenses for such Operating Year over the Expense
Base Factor (hereinafter referred to as "Tenant's Expense Payment").
C. Landlord shall furnish to Tenant for each Operating Year an
Escalation Statement (subject to revision as hereinafter provided) setting forth
Landlord's estimate of Tenant's Expense Payment for such Operating Year. Tenant
shall pay to Landlord on the first day of each month during such Operating Year
an amount equal to one-twelfth (1/12) of Landlord's estimate of Tenant's Expense
Payment for such Operating Year. If Landlord shall furnish such estimate for an
Operating Year after the commencement thereof, then (a) until the first day of
the month following the month in which such estimate is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount equal to
the monthly sum payable by Tenant to Landlord under this Paragraph C for the
last month of the preceding Operating Year; (b) Landlord shall notify Tenant in
the Escalation Statement containing such estimate whether the installments of
Tenant's Expense Payment previously paid for such Operating Year were more or
less than the installments which should have been paid for such Operating Year
pursuant to such estimate and (i) if there shall be an underpayment, Tenant
shall pay the amount thereof within ten days after being furnished with such
Escalation Statement or (ii) if there shall be an overpayment, Tenant shall be
entitled to a credit in the amount thereof against subsequent payments under
this Section 3.02; and (c) on the first day of the month following the month in
which such estimate is furnished to Tenant and monthly thereafter for the
balance of such Operating Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12) of Tenant's Expense Payment as shown on such estimate.
Landlord may at any time and from time to time (but not more often than three
times in any Operating Year) furnish to Tenant an Escalation Statement setting
forth Landlord's revised estimate of Tenant's Expense Payment for a particular
Operating Year and Tenant's Expense Payment for such Operating Year shall be
adjusted and paid or credited, as applicable, in the same manner as provided in
the preceding sentence.
D. After the end of each Operating Year Landlord shall submit
to Tenant an annual Escalation Statement prepared by Landlord setting forth the
Expenses for the preceding Operating Year and the balance of Tenant's Expense
Payment, if any, due to Landlord from Tenant for such Operating Year. If such
annual Escalation Statement shall show that the sums paid by Tenant under
subparagraph 3.02(C) above exceeded Tenant's Expense Payment for such
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Operating Year, Tenant shall be entitled to a credit in the amount of such
excess against subsequent payments under this Section 3.02. If such annual
Escalation Statement shall show that the sums so paid by Tenant were less than
Tenant's Expense Payment for such Operating Year, Tenant shall pay the amount of
such deficiency to the Landlord within ten days after being furnished with such
annual Escalation Statement.
E. The annual Escalation Statements with respect to Expenses
to be furnished by Landlord as provided above shall be in reasonable detail and
shall be certified by Landlord or by an independent firm of certified public
accountants. Landlord may use operating cost allocations and estimates if such
allocations or estimates are required for this Section 3.02.
3.03. Tenant shall pay to Landlord upon demand, as additional rent,
any occupancy tax or rent tax now in effect or hereafter enacted, which Landlord
is now or hereafter is required to pay with respect to the demised premises or
this Lease.
3.04. If the Commencement Date shall be other than the first day of
a Tax Year or an Operating Year or if the date of the expiration or other
termination of this Lease shall be a day other than the last day of a Tax Year
or an Operating Year, then Tenant's Tax Payment and/or Tenant's Expense Payment
for such partial year shall be equitably adjusted taking into consideration the
portion of such Tax Year or Operating Year falling within the Term. Landlord
shall, as soon as reasonably practicable, cause an Escalation Statement with
respect to Taxes for the Tax Year and/or Expenses for the Operating Year in
which the Term expires to be prepared and furnished to Tenant. Such Escalation
Statement shall be prepared as of the expiration date of the Term if such date
is December 31, and if not, as of the first to occur of June 30 or December 31
after the expiration date of the Term. Landlord and Tenant shall thereupon make
appropriate adjustments of amounts then owing and notwithstanding anything to
the contrary contained herein in the event any amount shall be due and owing
from Landlord to Tenant upon the expiration of or termination of the Term (other
than by reason of Tenant's default), such amount shall be refunded rather than
credited against any further rent obligations hereunder simultaneously with the
rendering of the final Escalation Statement.
3.05. In no event shall the fixed annual rent ever be reduced by
operation of this Article 3. The rights and obligations of Landlord and Tenant
under the provisions
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of this Article 3 shall survive the termination of this Lease, and payments
shall be made pursuant to this Article 3 notwithstanding the fact that an
Escalation Statement is furnished to Tenant after the expiration or other
termination of the Term.
3.06. Landlord's failure to render an Escalation Statement with
respect to any Tax Year or Operating Year shall not prejudice Landlord's right
to thereafter render an Escalation Statement with respect thereto or with
respect to any subsequent Tax Year or Operating Year.
3.07. Each Escalation Statement shall be conclusive and binding upon
Tenant unless within 10 days after receipt of such Escalation Statement Tenant
shall notify Landlord that it disputes the correctness of such Escalation
Statement, specifying the particular respects in which such Escalation Statement
is claimed to be incorrect. Any dispute relating to any Escalation Statement,
not resolved within 30 days after the giving of such notice by Tenant, may be
submitted to arbitration by either party pursuant to Article 37 hereof. Pending
the determination of such dispute, Tenant shall pay additional rent in
accordance with the Escalation Statement that Tenant is disputing, without
prejudice to Tenant's position.
3.08. Any determinations with respect to charges for electricity on
floors occupied by more than one tenant or otherwise which must be made pursuant
to the terms of this Lease shall be made by a reputable, independent electrical
consultant selected by Landlord (Landlord's "electrical consultant"). Any
determination made by Landlord's electrical consultant pursuant to or in
connection with this Lease shall be binding and conclusive on Landlord and on
Tenant.
ARTICLE 4
ELECTRICITY
4.01. Landlord agrees that prior to the Commencement Date risers,
feeders and wiring will be installed in the Building by Landlord to furnish
electrical service to the demised premises in accordance with the provisions of
the Work Agreement annexed hereto as Schedule C. After the Commencement Date any
additional risers, feeders or other equipment or service proper or necessary to
supply Tenant's electrical requirements, upon written
12
request of Tenant, will be installed by Landlord at the sole cost and expense of
Tenant, if in Landlord's sole judgment the same are necessary and will not cause
permanent damage or injury to the Building or the demised premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants.
4.02. Tenant covenants and agrees to pay directly to the utility
company supplying electricity to the demised premises the amounts due for
electric current consumed by Tenant as indicated by meters measuring Tenant's
consumption thereof.
4.03. If one meter measures the consumption of electric current by
Tenant and another lessee of space in the Building (i.e., more than one tenant
on a floor), or if there is no meter measuring Tenant's consumption of electric
current for any purpose, including without limitation, air conditioning,
ventilating and heating, Tenant agrees to pay to Landlord or Landlord's
designated agent charges for electric current consumed by Tenant as determined
by Landlord's electric consultant in accordance with Section 3.08 above. Bills
therefor, at the rate charged to Landlord for such electric current, plus the
amount of sales tax imposed thereon by any Governmental Authority, plus 5% of
the total amount thereof for administration and processing, shall be rendered at
such times as Landlord may elect based upon estimates of Landlord's electric
consultant which may be made from time to time as Landlord deems necessary. In
the event that such bills are not paid within five (5) days after the same are
rendered, Landlord may, without further notice, discontinue the service of
electric current to the demised premises without releasing Tenant from any
liability under this Lease and without Landlord or Landlord's agent incurring
any liability for any damage or loss sustained by Tenant by such discontinuance
of service. Tenant shall permit Landlord's electrical consultant to make surveys
in the demised premises from time to time during normal business hours regarding
the electrical equipment and fixtures and the use of electric current therein.
With respect to the electric current used to run the air conditioning on
Tenant's floor during normal business hours, Landlord shall charge Tenant its
proportionate share of such charge plus sales tax and the administrative fees
referred to above based upon the proportion which the demised premises bears to
the rentable square footage on the entire floor (i.e. 3,997/9,000).
4.04. Tenant's use of electric current in the demised premises shall
not at any time exceed the capacity
13
of any of the electrical conductors and equipment in or otherwise serving the
demised premises. Tenant shall not make or perform or permit the making or
performing of, any alterations to wiring, installations or other electrical
facilities in or serving the demised premises without the prior consent of
Landlord in each instance. Should Landlord grant any such consent, all
additional risers or other equipment required therefor shall be installed by
Landlord and the cost thereof shall be paid by Tenant upon Landlord's demand.
4.05. Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy furnished to the
demised premises by reason of any requirement, act or omission of the public
utility providing the Building with electricity or for any other reason
whatsoever.
4.06. If Tenant pays for electric current consumed pursuant to
Section 4.03, Landlord reserves the rights to discontinue furnishing electric
energy to Tenant at any time upon sixty (60) days' written notice to Tenant, and
from and after the effective date of such termination, Landlord shall no longer
be obligated to furnish Tenant with electric energy, provided, however that such
termination date may be extended for a time reasonably necessary for Tenant to
make arrangements to obtain electric service directly from the public utility
company servicing the Building. If Landlord exercises such right of termination,
this Lease shall remain unaffected thereby and shall continue in full force and
effect; and thereafter Tenant shall diligently arrange to obtain electric
service directly from the public utility company servicing the Building, and may
utilize the then existing electric feeders, risers and wiring serving the
demised premises to the extent available and safely capable of being used for
such purpose and only to the extent of Tenant's then authorized connected load.
Landlord shall not be obligated to pay any part of the cost incurred in Tenant
obtaining direct electric service.
4.07. Tenant covenants and agrees that at no time will the connected
electrical load in the demised premises exceed 4 1/2 xxxxx per square foot.
14
ARTICLE 5
USE
5.01. The demised premises shall be used solely as and for executive
and general offices, and for no other purpose.
5.02. Tenant shall not use or permit the use of the demised premises
or any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in any unlawful manner or in violation of the Certificate of
Occupancy for the demised premises or the Building, and Tenant shall not permit
the demised premises or any part thereof to be used in any manner or anything to
be done, brought into or kept therein which, in Landlord's judgment shall, or
tend to, impair or interfere with (i) the character, reputation or appearance of
the Building as a high quality office building, (ii) any of the Building
services or the proper and economic heating, cleaning, air conditioning or other
servicing of the Building or the demised premises, or (iii) the use of any of
the other areas of the Building by, or occasional discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building. Tenant
shall not install any electrical or other equipment of any kind which, in the
judgment of Landlord, might cause any such impairment, interference, discomfort,
inconvenience or annoyance or which might overload the risers or feeders
servicing the demised premises or other portions of the Building.
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01. Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises without Landlord's prior written
consent and then only by contractors or mechanics first selected by Tenant and
approved by Landlord; such approval not to be unreasonably withheld or delayed;
provided, however, that with respect to any work affecting the electrical,
plumbing, mechanical or HVAC systems in the Building, Tenant will use only those
contractors designated by Landlord. All such work, alterations, installations,
additions and improvements
15
shall be done at Tenant's sole expense and at such times and in such manner as
Landlord may from time to time designate.
Tenant's Extra Work and future work in the demised premises shall be
done solely in accordance with plans and specifications first approved in
writing by Landlord. Tenant shall reimburse Landlord promptly upon demand for
any costs and expenses incurred by Landlord in connection with Landlord's review
of such Tenant's plans and specifications. Landlord will not unreasonably
withhold or delay its consent to requests for nonstructural alterations,
additions and improvements (provided they will not interfere with Landlord's
Work or the operation of the Building nor affect the outside of the Building nor
adversely affect its structure, or its electrical, HVAC, plumbing or mechanical
systems).
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
1. All work shall be done in a good and workmanlike manner.
2. (a) Any contractor employed by Tenant to perform any work
permitted by this Lease, and all of its subcontractors shall agree
to employ only such labor as will not result in jurisdictional
disputes or strikes or cause disharmony with other workers employed
at the Building. Tenant will inform Landlord in writing of the names
of any contractor or subcontractors Tenant proposes to use in the
demised premises at least ten (10) days prior to the beginning of
work by such contractor or subcontractors.
(b) Tenant covenants and agrees to pay to the
contractor, as the work progresses, the entire cost of supplying the
materials and performing the work shown on Tenant's approved plans
and specifications.
3. All such alterations shall be performed in compliance with
all Legal Requirements (as defined in Article 22 hereof) including,
without limitation, those imposed by the New York City Building
Department, the New York City Fire Department and O.S.H.A.
4. Tenant shall keep the Building and the demised premises
free and clear of all liens for
16
any work or material claimed to have been furnished to Tenant or to
the demised premises on Tenant's behalf, and all work to be
performed by Tenant shall be done in a manner which will not
unreasonably interfere with or disturb other tenants or occupants of
the Building.
5. During the progress of the work to be done by Tenant, said
work shall be subject to inspection by representatives of Landlord
who shall be permitted access and the opportunity to inspect, at all
reasonable times, but this provision shall not in any way whatsoever
create any obligation on Landlord to conduct such an inspection.
6. With respect to alteration or improvement work costing more
than $25,000 (other than Tenant's Extra Work), Tenant agrees to pay
to Landlord's managing agent, as additional rent, promptly upon
being billed therefor, a sum equal to five (5%) percent of the cost
of such work or alteration, for Landlord's indirect costs, field
inspection and coordination in connection with such work. However,
such payment shall not be required of Tenant with respect to Tenant
Finish Work.
7. Prior to commencement of any work, Tenant shall furnish to
Landlord certificates evidencing the existence of:
(a) workmen's compensation insurance covering all
persons employed for such work with statutorily required
limits; and
(b) Employer's liability coverage including bodily
injury caused by disease with limits of not less than $100,000
per employee;
(c) Comprehensive general liability insurance including
but not limited to completed operations coverage, products
liability coverage, contractural coverage, broad form property
damage, independent contractor's coverage and personal injury
coverage naming (i) Landlord as well as such representatives
and consultants of Landlord as Landlord shall reasonably
specify (collectively "Landlord's Consultants"),
17
including, but not limited to, as of the date hereof Xxxxx
Lang Wootton, Baro Partners, Exchange Plaza Partners and
Xxxxxx X. Xxxxxx Company, as well as Tenant, as additional
insureds, with coverage of not less than $3,000,000 combined
single limit coverage (or such higher limits as Landlord may
from time to time impose in its reasonable judgment);
(d) Tenant shall require all contractors engaged or
employed by the Tenant to indemnify and hold Tenant, Landlord,
and Landlord's Consultants, including but not limited to, as
of the date hereof Xxxxx Lang Wootton, Baro Partners, Exchange
Plaza Partners and Xxxxxx X. Xxxxxx Company, harmless in
accordance with the following clauses (with such modifications
therein as may be required from time to time by reason of a
change in the parties constituting Landlord's Consultants):
"The contractor hereby agrees to the fullest extent permitted
by law to assume the entire responsibility and liability for
and defense of and to pay and indemnify the Landlord, Tenant,
Xxxxx Lang Wootton, Baro Partners, Exchange Plaza Partners and
Xxxxxx X. Xxxxxx Company against any loss, cost, expense,
liability or damage and will hold each of them harmless from
and pay any loss, cost, expense, liability or damage
(including, without limitation, judgments, attorney's fees,
court costs, and the cost of appellate proceedings), which the
Landlord and/or Tenant and/or Xxxxx Lang Wootton and/or Baro
Partners and/or Exchange Plaza Partners and/or Xxxxxx X.
Xxxxxx Company incurs because of injury to or death of any
person or on account of damage to property, including loss of
use thereof, or any other claim arising out of, in connection
with, or as a consequence of the performance of the work by
the contractor and/or any acts or omissions of the contractor
or any of its officers, directors, employees, agents
sub-contractors or anyone directly or indirectly employed by
the contractor or anyone for whose acts the contractor may be
liable as it relates to the scope of this Contract, whether
such injuries to person or
18
damage to property are due or claimed to be due to any
negligence of the Landlord and/or Tenant and/or Xxxxx Lang
Wootton and/or Xxxxxx X. Xxxxxx Company and/or Baro Partners
and/or Exchange Plaza Partners, its or their employees or
agents or any other person."
The contractor's insurance shall specifically insure the
foregoing hold harmless provision verbatim.
(e) Such insurance shall be placed with solvent and
responsible companies reasonably satisfactory to the Landlord
and licensed or authorized to do business in the State of New
York, and the policies shall provide that they may not be
cancelled without 30 days' prior notice in writing to the
Landlord.
8. Movement of all men and materials shall only be done at the
direction, the times and in the manner designated by Landlord.
6.02. Notice is hereby given that Landlord shall not be liable for
any labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to the
demised premises. Any mechanic's lien, filed against the demised premises or the
Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant shall be discharged by Tenant at its expense within
fifteen (15) days after notice of such filing, by payment, filing of the bond
required by law or otherwise. Failure to comply with the provisions of this
Section 6.02 shall constitute a material default by Tenant under this Lease
entitling Landlord to exercise any or all of the remedies provided in this Lease
in the event of Tenant's default.
6.03. All alterations, installations, additions and improvements
made and installed by Landlord, at its expense, including without limitation all
work referred to in Article 2 hereof and in Exhibit C hereto, other than
Tenant's Extra Work, shall be the property of Landlord and shall remain upon and
be surrendered with the demised premises as a part thereof at the end of the
Term.
6.04. All alterations, installations, additions and improvements
made and installed by Tenant, or at Tenant's expense, upon or in the demised
premises which are
19
of a permanent nature and which cannot be removed without damage to the demised
premises or Building including, without limitation, Tenant's Extra Work, shall
become the property of Landlord, and shall remain upon and be surrendered with
the demised premises as a part thereof at the end of the Term (and shall not be
removed prior thereto without Landlord's written consent), except that Landlord
shall have the right at any time up to six months prior to the expiration of the
Term to serve notice upon Tenant that any of such alterations, installations,
additions and improvements shall be removed and, in the event of service of such
notice, Tenant will, at Tenant's own cost and expense, remove the same in
accordance with such request, and restore the demised premises to its original
condition, ordinary wear and tear and casualty excepted. Notwithstanding the
foregoing, if upon submitting any plans relating to alterations, installations,
additions and improvements, Tenant shall indicate thereon that, in accordance
with this paragraph 6.04, Landlord must designate in writing such portions of
the alterations, installations, additions and improvements as Landlord may
desire to have Tenant remove at the expiration of the Term as above provided,
then unless Landlord shall, on or before the date that such plans are approved
by Landlord, specify those items which it may desire to have Tenant remove,
Landlord shall have no right to cause Tenant to remove same.
6.05. Where furnished by or at the expense of Tenant all furniture,
furnishings and trade fixtures, including without limitation, murals, business
machines and equipment, counters, screens, grille work, special panelled doors,
cages, partitions, metal railings, closets, panelling, free standing lighting
fixtures and equipment, drinking fountains, refrigeration and air handling
equipment, and any other moveable property shall remain the property of Tenant
which may at its option remove all or any part thereof at any time prior to the
expiration of the Term. In case Tenant shall decide not to remove any part of
such property, Tenant shall notify Landlord in writing not less than three (3)
months prior to the expiration of the Term, specifying the items of property
which it has decided not to remove. If, within thirty (30) days after the
service of such notice, Landlord shall request Tenant to remove any of the said
property, Tenant shall at its expense remove the same. As to such property which
Landlord does not request Tenant to remove, the same shall be, if left by
Tenant, deemed abandoned by Tenant and thereupon the same shall become the
property of Landlord.
6.06. If any alterations, installations, additions, improvements or
other property which Tenant shall
20
have the right to remove or be requested by Landlord to remove as provided in
Sections 6.04 and 6.05 hereof (herein in this Section 6.06 called the
"property") are not removed on or prior to the expiration of the Term, Landlord
shall have the right to remove the property and to dispose of the same without
accountability to Tenant and at the sole cost and expense of Tenant. In case of
any damage to the demised premises or the Building resulting from the removal of
the property Tenant shall repair such damage or, in default thereof, shall
reimburse Landlord for Landlord's cost in repairing such damage. This obligation
shall survive any termination of this Lease.
6.07. Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of $25,000, and of
the cost thereof. Tenant shall, within 45 days after demand by Landlord, furnish
to Landlord copies of such records if Landlord shall require same in connection
with any proceeding to reduce the assessed valuation of the Building, or in
connection with any proceeding instituted pursuant to Article 14 hereof.
ARTICLE 7
REPAIRS
7.01. Tenant shall, at its sole cost and expense, make such repairs
to the demised premises and the fixtures and appurtenances therein as are
necessitated by the act, omission, occupancy or negligence of Tenant or by the
use of the demised premises in a manner contrary to the purposes for which same
are leased to Tenant, as and when needed to preserve them in good working order
and condition. Except as otherwise provided in Section 9.05 hereof, all damage
or injury to the demised premises and to its fixtures, appurtenances and
equipment caused by Tenant moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property, shall be
repaired, restored or replaced promptly by Tenant at its sole cost and expense,
which repairs, restorations and replacements shall be in quality and class equal
to the original work or installations. If Tenant fails to make such repairs,
restoration or replacements, same may be made by Landlord at the expense of
Tenant and such expense shall be collectible as additional rent and shall be
paid by Tenant within 10 days after rendition of a xxxx therefor.
21
The exterior walls of the Building, the portions of any window xxxxx
outside the windows and the windows are not part of the premises demised by this
Lease and Landlord reserves all rights to such parts of the Building.
7.02. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed by law. The floor of the demised premises
will carry 50 pounds live load per square foot of floor space and 12 pounds for
partitions per square foot of floor space.
7.03. Business machines and mechanical equipment used by Tenant
which cause vibration, noise, cold or heat that may be transmitted to the
Building structure or to any leased space to such a degree as to be
objectionable to Landlord or to any other tenant in the Building shall be placed
and maintained by Tenant at its expense in settings of cork, rubber or spring
type vibration eliminators sufficient to absorb and prevent such vibration or
noise, or prevent transmission of such cold or heat. The parties hereto
recognize that the operation of elevators, air conditioning and heating
equipment will cause some vibration, noise, heat or cold which may be
transmitted to other parts of the Building and demised premises. Landlord shall
be under no obligation to endeavor to reduce such vibration, noise, heat or cold
beyond what is customary in current good building practice for buildings of the
same type as the Building.
7.04. Except as otherwise specifically provided in this Lease, there
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises or in or to fixtures, appurtenances or equipment thereof. Landlord
shall exercise reasonable diligence so as to minimize any interference with
Tenant's business operations, but shall not be required to perform the same on
an overtime or premium pay basis.
22
ARTICLE 8
REQUIREMENTS OF LAW
8.01. Tenant shall comply with all Legal Requirements which shall
impose any violation, order or duty upon Landlord or Tenant with respect to the
demised premises, or the use or occupation thereof.
8.02. Notwithstanding the provisions of Section 8.01 hereof, Tenant,
at its own cost and expense, in its name and/or (whenever necessary) Landlord's
name, may contest, in any manner permitted by law (including appeals to a court,
or governmental department or authority having jurisdiction in the matter), the
validity or the enforcement of any Legal Requirements with which Tenant is
required to comply pursuant to this Lease, and may defer compliance therewith
provided that:
(a) such non-compliance shall not subject Landlord to
criminal prosecution or subject the Property to lien or sale;
(b) such non-compliance shall not be in violation of any
mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first deliver to Landlord a surety bond
issued by a surety company of recognized responsibility, or other security
satisfactory to Landlord, indemnifying and protecting Landlord against any loss
or injury by reason of such non-compliance; and
(d) Tenant shall promptly, diligently and continuously
prosecute such contest.
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
23
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01. Tenant shall not do or permit to be done any act or thing upon
or about the demised premises, which will invalidate or be in conflict with New
York standard fire insurance policies covering the Building, and fixtures and
property therein, or which would increase the rate of fire insurance applicable
to the Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the demised premises; but nothing in this
Section 9.01 shall prevent Tenant's use of the demised premises for the purposes
stated in Article 5 hereof.
9.02. If, as a result of any act or omission by Tenant or violation
of this Lease, the rate of fire insurance applicable to the Building shall be
increased to an amount higher than it otherwise would be, Tenant shall reimburse
Landlord for all increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable within 5 days after demand therefor
by Landlord. In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make-up" of rates for the Building or demised premises
issued by the body making fire insurance rates for the demised premises, shall
be presumptive evidence of the facts stated therein including the items and
charges taken into consideration in fixing the fire insurance rate then
applicable to the demised premises.
9.03. Landlord or its agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or snow or leaks from any part of the
Building, or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless any of the foregoing shall be caused by or
due to the negligence of Landlord, its agents, servants or employees.
9.04. Landlord or its agents shall not be liable for any damage
which Tenant may sustain, if at any time any window of the demised premises is
broken, or temporarily or permanently closed, darkened or bricked upon for any
reason
24
whatsoever, except only Landlord's arbitrary acts if the result is permanent,
and Tenant shall not be entitled to any compensation therefor or abatement of
rent or to any release from any of Tenant's obligations under this Lease, nor
shall the same constitute an eviction or constructive eviction.
9.05. Tenant shall reimburse Landlord for all expenses, damages or
fines incurred or suffered by Landlord, by reason of any breach, violation or
non-performance by Tenant, or its agents, servants or employees, of any covenant
or provision of this Lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant, or by
reason of or arising out of the carelessness, negligence or improper conduct of
Tenant, or its agents, servants or employees, in the use or occupancy of the
demised premises. Subject to compliance with the provisions of Section 8.02
hereof, where applicable, Tenant shall have the right, at Tenant's own cost and
expense, to participate in the defense of any action or proceeding brought
against Landlord, and in negotiations for settlement thereof if, pursuant to
this Section 9.05, Tenant would be obligated to reimburse Landlord for expenses,
damages or fines incurred or suffered by Landlord.
9.06. Tenant shall give Landlord notice in case of fire or accidents
in the demised premises promptly after Tenant is aware of such event.
9.07. Tenant agrees to look solely to Landlord's interest in the
Property, or the lease of the Building or of the Property, and the demised
premises, for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord, in the event of any liability by Landlord, and no other
property or assets of Landlord 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.
9.08. (a) Landlord agrees that it will, at its sole cost and
expense, include in its fire insurance policies appropriate clauses pursuant to
which the insurance companies (i) waive all right of subrogation against Tenant
with respect to losses payable under such policies and (ii) agree that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of
25
recovery against any party for losses covered by such policies.
(b) Notwithstanding anything to the contrary contained
in this Lease, Tenant agrees that it will, at its sole cost and expense, include
in its property insurance policies appropriate clauses pursuant to which the
insurance companies (i) waive all right of subrogation against Landlord and any
tenant of space in the Building with respect to losses payable under such
policies and (ii) agree that such policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of recovery against
any party for losses covered by such policies. Tenant shall furnish Landlord
upon demand evidence satisfactory to Landlord evidencing the inclusion of said
clauses in Tenant's property insurance policies.
(c) Landlord hereby waives any and all right of recovery
which it might otherwise have against Tenant, its servants, agents and
employees, for loss or damage occurring to the Building and the fixtures,
appurtenances and equipment therein, to the extent the same is covered by
Landlord's insurance, notwithstanding that such loss or damage may result from
the negligence or fault of Tenant, its servants, agents or employees. Tenant
hereby waives any and all right of recovery which it might otherwise have
against Landlord, its servants, and employees, and against every other tenant in
the Building who shall have executed a similar waiver as set forth in this
Section 9.08(b) for loss or damage to, Tenant's furniture, furnishings, fixtures
and other property removable by Tenant under the provisions hereof to the extent
that same is covered by Tenant's insurance, notwithstanding that such loss or
damage may result from the negligence or fault of Landlord, its servants, agents
or employees, or such other tenant and the servants, agents or employees
thereof.
9.09. Tenant covenants and agrees to provide at its expense on or
before the Commencement Date and to keep in force during the Term naming
Landlord and Tenant as insured parties a comprehensive general liability
insurance policy including, without limitation, blanket contractual liability
coverage, broad form property damage, independent contractor's coverage and
personal injury coverage protecting Landlord and Tenant against any liability
whatsoever, occasioned by any occurrence on or about the demised premises or any
appurtenances thereto. Such policy is to be written by good and solvent
insurance companies licensed to do business in the State of New York
satisfactory to Landlord, and shall be in such limits as
26
Landlord may reasonably require. As of the date of this Lease Landlord
reasonably requires limits of liability thereunder of not less than $3,000,000
per occurrence for bodily or personal injury (including death) and in the amount
of $1,000,000 per occurrence in respect of property damage. Such insurance may
be carried under a blanket policy covering the demised premises and other
locations of Tenant, if any, provided that each such policy shall in all
respects, comply with this Article and shall specify that the portion of the
total coverage of such policy that is allocated to the demised premises is in
the amounts required pursuant to this Section 9.09. Prior to the time such
insurance is first required to be carried by Tenant and thereafter, at least 15
days prior to the effective date of any such policy, Tenant agrees to deliver to
Landlord a duplicate original of the aforesaid policy and a certificate
evidencing such insurance. Said certificate shall contain an endorsement that
such insurance may not be cancelled except upon 30 days' prior notice to
Landlord. Tenant's failure to provide and keep in force the aforementioned
insurance shall be regarded as a material default hereunder entitling Landlord
to exercise any or all of the remedies provided in this Lease in the event of
Tenant's default. Notwithstanding anything to the contrary contained in this
Lease, the carrying of insurance by Tenant in compliance with this Section shall
not modify, reduce, limit or impair Tenant's obligations and liability under
Article 38 hereof.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01. If the Building or the demised premises shall be partially or
totally damaged or destroyed by fire or other cause (and if this Lease shall not
have been terminated as in this Article 10 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the demised
premises, at its expense with reasonable dispatch after notice to it of the
damage or destruction.
10.02. If the Building or the demised premises shall be damaged or
destroyed by fire or other cause, then unless such fire or damage shall have
resulted from the negligence of Tenant or its officers, contractors, licensees,
agents, employees, guests, invitees or visitors, the rents payable hereunder
shall be abated to the extent that the demised premises shall have been rendered
27
untenantable for the period from the date of such damage or destruction to the
date the damage shall be repaired or restored; provided, however, that should
Tenant reoccupy a portion of the demised premises during the period the
restoration work is taking place and prior to the date that the whole of said
demised premises are made tenantable, fixed annual rent and additional rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
10.03. If the Building shall be so damaged or destroyed by fire or
other cause (whether or not the demised premises are damaged or destroyed) as to
require a reasonably estimated expenditure made by Landlord or a reputable
contractor designated by Landlord of more than 30% of the full insurable value
of the Building immediately prior to the casualty, then Landlord may terminate
this Lease by giving Tenant notice to such effect within 120 days after the date
of the casualty. In case of any damage or destruction mentioned in this Article
10 which Landlord is required to repair and restore, Tenant may terminate this
Lease by notice to Landlord if Landlord has not completed the making of the
required repairs and restorations within 12 months after the date of such damage
or destruction, or within such period after such date (not exceeding 6 months)
as shall equal the aggregate period Landlord may have been delayed in doing so
by Force Majeure Causes (as defined in Article 34 hereof).
10.04. 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 10.
10.05. Notwithstanding any of the foregoing provisions of this
Article 10, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including 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 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 Tenant's rents, but the
total amount of such rents not abated (which would otherwise have been abated)
shall not exceed the amount of uncollected insurance proceeds.
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10.06. Landlord will not carry separate insurance of any kind on
Tenant's property (including, without limitation, any property of the Tenant
which shall become the property of Landlord as provided in Article 6 hereof),
and, except as provided by law, Landlord shall not be obligated to repair any
damage thereto or replace or clean the same, or any other decorations,
installations, equipment or fixtures installed by or for Tenant at Tenant's
expense. Tenant shall maintain such fire and casualty insurance as it deems
advisable.
10.07. The provisions of this Article 10 shall be considered an
express agreement governing any case of damage 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 such 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 in such case.
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01. Except as otherwise expressly provided in this Article 11,
Tenant shall not without, in each instance, obtaining the prior consent of
Landlord, (a) assign or otherwise transfer this Lease or the term and estate
hereby granted, (b) sublet all or part of the demised premises or allow the same
to be used or occupied by others or in violation of Article 5, (c) mortgage,
pledge or encumber this Lease or all or part of the demised premises in any
manner by reason of any act or omission on the part of Tenant, or (d) advertise,
or authorize a broker to advertise, for a subtenant for all or part of the
demised premises or for an assignee of this Lease. For purposes of this Article
11, (i) the transfer of a majority of the issued and outstanding capital stock
of any corporate tenant or subtenant, or the transfer of a majority of the total
interest in any other entity (partnership or otherwise) which is a tenant or
subtenant, however accomplished, whether in a single transaction or in a series
of related or unrelated transactions, shall be deemed an assignment of this
Lease, or of such sublease, as the case may be, (ii) a takeover agreement shall
be deemed a transfer of this Lease, (iii) any person or legal representative of
Tenant, to whom Tenant's interest under this Lease passes by operation of law,
or otherwise, shall be bound by the provisions of this
29
Article 11, and (iv) a modification, amendment or extension without Landlord's
prior written consent of a sublease previously consented to by Landlord shall be
deemed a new sublease. Tenant agrees to furnish to Landlord upon demand at any
time and from time to time such information and assurances as Landlord may
reasonably request that neither Tenant, nor any subtenant, shall have violated
the provisions of this Section 11.01.
11.02. The provisions of clauses (a) and (b) of Section 11.01 hereof
shall not apply to transactions entered into by Tenant with a corporation into
or with which Tenant is merged or consolidated or with an entity to which
substantially all of Tenant's assets are transferred, provided (a) such merger,
consolidation or transfer of assets is for a good business purpose and not
principally for the purpose of transferring the leasehold estate created hereby,
and (b) the assignee or successor entity has a net worth at least equal to or in
excess of the net worth of Tenant either (i) immediately prior to such merger,
consolidation or transfer or (ii) as of the date hereof, whichever is greater.
11.03. Any assignment or transfer, whether made with Landlord's
consent as required by Section 11.01 or without Landlord's consent pursuant to
Section 11.02, shall not be effective unless and until (a) the assignee shall
execute, acknowledge and deliver to Landlord a recordable agreement, in form and
substance reasonably satisfactory to Landlord, whereby the assignee shall (i)
assume the obligations and performance of this Lease and agree to be personally
bound by all of the covenants, agreements, terms, provisions and conditions
hereof on the part of Tenant to be performed or observed on and after the
effective date of any such assignment and (ii) agree that the provisions of this
Article 11 shall, notwithstanding such assignment or transfer, continue to be
binding upon it in the future, and (b) in the case of an assignment or transfer
pursuant to Section 11.02 Tenant or its successor shall have delivered to
Landlord financial statements certified by a reputable firm of certified public
accountants evidencing satisfaction of the net worth requirements referred to in
Section 11.02. Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of fixed annual rent by Landlord from an assignee
or transferee or any other party, Tenant shall remain fully and primarily and
jointly and severally liable for the payment of the fixed annual rent and all
additional rent due and to become due under this Lease and for the performance
and observance of all of the covenants, agreements, terms, provisions and
30
conditions of this Lease on the part of Tenant to be performed or observed.
11.04. The liability of Tenant, and the due performance by Tenant of
the obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee of Landlord, by way of mortgage, or
otherwise, extending the time of, or modifying any of the obligations contained
in this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations on Tenant's part to be performed under this Lease, and Tenant shall
continue liable hereunder. If any such agreement or modification operates to
increase the obligations of a tenant under this Lease, the liability under this
Section 11.04 of the tenant named in the Lease or any of its successors in
interest (unless such party shall have expressly consented in writing to such
agreement or modification) shall continue to be no greater than if such
agreement or modification had not been made.
11.05. Landlord shall not unreasonably withhold or delay its consent
to an assignment of this Lease or a subletting of the whole or a part of the
demised premises for substantially the remainder of the term of this Lease,
provided:
(a) Tenant shall furnish Landlord with the name and
business address of the proposed subtenant or assignee, information with respect
to the nature and character of the proposed subtenant's or assignee's business,
or activities, such references and current financial information with respect to
net worth, credit and financial responsibility as are reasonably satisfactory to
Landlord, and an executed counterpart of the Letter of Intent (as defined in
Section 11.06 below);
(b) The proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial responsibility is,
considering the responsibilities involved, reasonably satisfactory to Landlord;
(c) The nature and character of the proposed subtenant
or assignee, its business or activities and intended use of the demised premises
are, in Landlord's reasonable judgment, in keeping with the standards of the
Building and the floor or floors on which the demised premises are located;
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(d) The proposed subtenant or assignee is not then an
occupant of any part of the Building or a party who dealt with Landlord or
Landlord's agent (directly or through a broker) with respect to space in the
Building during the 12 months immediately preceding Tenant's request for
Landlord's consent;
(e) All costs incurred with respect to providing
reasonably appropriate means of ingress and egress from the sublet space or to
separate the sublet space from the remainder of the demised premises shall,
subject to the provisions of Article 6 with respect to alterations,
installations, additions or improvements, be borne by Tenant;
(f) Each assignment or sublease shall specifically state
that (i) it is subject to all of the terms, covenants, agreements, provisions,
and conditions of this Lease, (ii) the subtenant or assignee, as the case may
be, will not have the right to further assign or sublet all or part of the
demised premises or to allow same to be used by others, without the consent of
Landlord in each instance, (iii) a consent by Landlord thereto shall not be
deemed or construed to modify, amend or affect the terms and provisions of this
Lease, or Tenant's obligations hereunder, which shall continue to apply to the
premises involved, and the occupants thereof, as if the sublease or assignment
had not been made, (iv) if Tenant defaults in the payment of any rent, Landlord
is authorized to collect any rents due or accruing from any assignee, subtenant
or other occupant of the demised premises and to apply the net amounts collected
to the fixed annual rent and additional rent due hereunder, (v) the receipt by
Landlord of any amounts from an assignee or subtenant, or other occupant of any
part of the demised premises shall not be deemed or construed as releasing
Tenant from Tenant's obligations hereunder or the acceptance of that party as a
direct tenant, and (vi) the subtenant shall be required to pay its proportionate
share of Tenant's Tax Payment and Tenant's Expense Payment;
(g) Tenant shall together with requesting Landlord's
consent hereunder, have paid Landlord any costs incurred by Landlord to review
the requested consent including any attorney's fees incurred by Landlord;
(h) The proposed subtenant or assignee is not (i) a bank
or trust company, safe deposit business, savings and loan association or loan
company; (ii) employment or recruitment agency; (iii) school, college,
university or educational institution whether or not for
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profit; or (iv) a government or any subdivision or agency thereof;
(i) In the case of a subletting of a portion of the
demised premises, the portion so sublet shall be regular in shape and suitable
for normal renting purposes;
(j) Intentionally omitted.
(k) The subletting or assignment shall not be at a lower
rental rate than that being obtained by Landlord at the time for similar space
then available in the Building; and
(l) Tenant shall have complied with the provisions of
said Section 11.06 and Landlord shall not have made any of the elections
provided for therein.
11.06. (a) Should Tenant be willing to agree to assign this Lease or
to sublet all or any portion of the demised premises (other than by an
assignment or sublease permitted by Section 11.02 hereof), Tenant shall, deliver
to Landlord executed counterparts of a letter of intent (the "Letter of Intent")
between Tenant and the proposed assignee or sublessee (who shall be a bona fide
third-party), as applicable, setting forth the material terms of the proposed
assignment or subletting, including, without limitation, (i) the price per
square foot, (ii) any work being performed by Tenant for such proposed subtenant
or assignee, (iii) any contribution to the cost of any work being performed by
such subtenant or assignee being made by Tenant, (iv) any rent concessions, and
(v) any lease takeover obligations. Simultaneously with delivering of the Letter
of Intent, Tenant will deliver to Landlord the information required by Section
11.05 hereof, and Landlord shall then have the right to elect by notice to
Tenant given within 30 days after such delivery (x) to consent or refuse to
consent to such proposed assignment or sublease in accordance with the terms of
this Lease or (y) to elect to:
A. With respect to a proposed assignment of this Lease,
terminate this Lease by giving written notice of such
termination to Tenant as of the Effective Date (as hereinafter
defined) specified in such notice as if it were the Expiration
Date set forth herein;
B. With respect to a proposed subletting of the entire demised
premises, terminate this Lease by giving written notice of
such
33
termination to Tenant as of the Effective Date specified in
such notice as if it were the Expiration Date set forth
herein; and
C. With respect to a proposed subletting of less than the
entire demised premises, terminate this Lease by giving
written notice of such termination to Tenant with respect to
such portion of the demised premises as of the Effective Date
specified in such notice as if it were the Expiration Date set
forth herein in which case Tenant shall promptly execute and
deliver to Landlord an appropriate modification of this Lease
in form reasonably satisfactory to Landlord.
For purposes hereof, the "Effective Date" shall mean the date set forth in
Landlord's notice of termination as the date upon which such termination shall
become effective, which date shall not be less than sixty (60) days nor more
than one hundred and fifty (150) days after such notice is given. If Landlord
does not exercise its option to terminate this Lease as to all or a portion of
the demised premises as above provided in this Section 11.06, Tenant shall have
the right to negotiate and enter into an assignment or sublease subject to all
of the other terms, provisions and conditions of this Lease (other than
Landlord's termination right under this Section 11.06) for a period of one
hundred and eighty (180) days after the expiration of said 30-day period on the
terms and conditions set forth in the Letter of Intent. If no such assignment or
sublease is executed and exchanged within such 180-day period, or if the terms
and conditions set forth in the Letter of Intent are changed in any material
respect, Tenant must once again comply with the provisions of Section 11.06 with
respect to such proposed assignment or subletting.
(b) If pursuant to the exercise of any of Landlord's
options under this Section 11.06, this Lease is terminated as to only a portion
of the demised premises, then the fixed annual rent payable hereunder and the
additional rent payable pursuant to Article 3 hereof shall be adjusted in
proportion to the portion of the demised premises affected by such termination.
(c) 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 50% of the following amounts:
34
(i) in the case of an assignment, an amount equal to all
sums and other considerations paid to Tenant by the assignee for or by reason of
such assignment (including, but not limited to, sums paid for the sale of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns); and
(ii) in the case of a sublease, any rents, additional
charges or other consideration payable under the sublease to Tenant by the
subtenant which is in excess of the fixed annual rent and additional rent
accruing during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or furnishings
other personal property, less, in the case of the sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns). The sums payable under this Section 11.06(c) shall
be paid to Landlord as and when paid by the assignee or subtenant to Tenant.
(d) If Landlord exercises any of its options under this
Section 11.06, Landlord shall be free to, and shall have no liability to Tenant
if Landlord shall, lease the demised premises or any portion thereof with
respect to which one of such options exercised, to Tenant's proposed assignee or
subtenant, as the case may be.
ARTICLE 12
CERTIFICATE OF OCCUPANCY
12.01. Landlord represents that the Certificate of Occupancy for the
Building will permit the use of the demised premises for the purposes specified
in this Lease. Landlord will make no changes in the Building which would result
in a change in the Certificate of Occupancy so as to prevent Tenant from using
the demised premises for the purposes specified in this Lease.
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ARTICLE 13
ADJACENT EXCAVATION - SHORING
13.01. If an excavation or other substructure work shall be made
upon land adjacent to the demised premises, or shall be authorized to be made,
Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the purpose of doing
such work as shall be necessary to preserve the wall of or the Building of which
the demised premises form a part from injury or damage and to support the same
by proper foundations without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent.
ARTICLE 14
CONDEMNATION
14.01. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article 1 hereof and
additional rents under Article 3 hereof shall be abated proportionately
according to the reduction in the rentable area of the demised premises
resulting from such condemnation or taking. In the event that only a part of the
Building shall be so condemned or taken, then (a) Landlord (whether or not the
demised premises be affected) may, at Landlord's option, terminate this Lease
and the term and estate hereby granted as of the date of such vesting of title
by notifying Tenant in writing of such termination within 60 days following the
date on which Landlord shall have received notice of vesting of title, or (b) if
such condemnation or taking shall be of a substantial part of the demised
premises (25% or more) or of a substantial part of the means of access thereto,
Tenant may, at Tenant's option, by delivery of notice in writing to Landlord
within 30 days following the date on which Tenant shall have received notice of
vesting of title, terminate this Lease and the term and estate hereby granted as
of the date of vesting of title, or (c) if neither Landlord nor Tenant elects to
36
terminate this Lease, as aforesaid, this Lease shall be and remain unaffected by
such condemnation or taking, except that the fixed annual rent payable under
Article 1 and additional rents payable under Article 3 shall be abated to the
extent hereinbefore provided in this Article 14.
14.02. In the event of termination of this Lease in any of the cases
hereinbefore provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
14.03. In the event of any condemnation or taking of all or a part
of the Building, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant. Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in or to
any such award or any part thereof, and agrees that it shall not be entitled to
receive any part of such award.
14.04. In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the demised premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises.
14.05. In the event any part of the demised premises be taken to
effect compliance with any law or requirement of public authority other than in
the manner hereinabove provided in this Article 14, then, (i) if such compliance
is the obligation of Tenant under this Lease, Tenant shall not be entitled to
any diminution or abatement of rent or other compensation from Landlord
therefor, but (ii) if such compliance is the obligation of Landlord under this
Lease, the fixed annual rent hereunder shall be reduced and additional rents
under Article 3 shall be adjusted in the same manner as is provided in Section
14.01 according to the reduction in rentable area of the demised premises
resulting from such taking.
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ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01. Tenant shall permit Landlord to erect, use and maintain
pipes, ducts and conduits in and through the demised premises, provided the same
are installed adjacent to or concealed behind walls and ceilings of the demised
premises. Landlord shall to the extent practicable install such pipes, ducts and
conduits by such methods and at such locations as will not materially interfere
with or impair Tenant's layout or use of the demised premises. Landlord or its
agents or designees shall have the right, but only upon notice to Tenant or any
authorized employee of Tenant at the demised premises, to enter the demised
premises, during business hours, (a) for the making of such repairs or
alterations as Landlord may deem necessary for the Building or which Landlord
shall be required to or shall have the right to make by the provisions of this
Lease or any other lease in the Building and (b) for the purpose of inspecting
them or exhibiting them to existing or prospective purchasers, mortgagees or
lessees of all or part of the Land, Building or Property or to prospective
assignees, agents or designees of any such parties. Landlord shall be allowed to
take all material into and upon the demised premises that may be required for
the repairs or alterations above mentioned without the same constituting an
actual or constructive eviction of Tenant in whole or in part, and the rent
reserved hereunder shall not xxxxx while said repairs or alterations are being
made by reason of loss or interruption of the business of Tenant because of the
prosecution of any such work. Landlord shall exercise reasonable diligence so as
to minimize the disturbance to Tenant but nothing contained herein shall be
deemed to require Landlord to perform the same on an overtime or premium pay
basis.
15.02. Landlord reserves the right, without the same constituting an
actual or constructive eviction and without incurring liability to Tenant
therefor, to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairways, toilets and other
public parts of the Building; provided, however, that access to the Building
shall not be cut off and that there shall be no unreasonable obstruction of
access to the demised premises or unreasonable interference with the use or
enjoyment thereof.
38
15.03. Landlord reserves the right to light from time to time all or
any portion of the demised premises at night for display purposes without paying
Tenant therefor.
15.04. Landlord may, during the twelve (12) months prior to
expiration of the Term exhibit the demised premises to prospective tenants.
15.05. If Tenant shall not be personally present to open and permit
an entry into the demised premises at any time when for any reason an entry
therein shall be urgently necessary by reason of fire or emergency, Landlord or
Landlord's agents may forceably enter the same without rendering Landlord or
such agents liable therefor (if during such entry Landlord or Landlord's agents
shall accord reasonable care to Tenant's property) and without in any manner
affecting the obligations and covenants of this Lease.
ARTICLE 16
CONDITIONS OF LIMITATION
16.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant shall make an assignment of the property
of Tenant for the benefit of creditors, or if a petition shall be filed by or
against Tenant under any provisions of the United States Bankruptcy Act or under
the provisions of any other bankruptcy or insolvency law or any law of like
import, or whenever a permanent receiver of Tenant or of or for the property of
Tenant shall be appointed, then, Landlord may, (a) at any time after receipt of
notice of the occurrence of any such event, or (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues for thirty
(30) days, give Tenant a notice of intention to end the Term of this Lease at
the expiration of 5 days from the date of service of such notice of intention,
and upon the expiration of said 5 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, but
Tenant shall remain liable for damages as provided in Article 18.
16.02. This Lease and the Term and estate hereby granted are subject
to further limitation as follows:
39
(a) whenever Tenant shall fail to pay any installment of
fixed annual rent or any additional rent or any other charge payable by Tenant
to Landlord, on the day the same is due and payable pursuant to the terms
hereof, and such default shall continue for 5 days after Landlord shall have
given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within 15 days after Landlord shall have given to Tenant a notice
specifying the same, or, in the case of a happening or default which cannot with
due diligence be cured within a period of 15 days and the continuation of the
period required for cure will not subject Landlord to the risk of criminal
liability (as more particularly described in Article 8 hereof) or termination of
any superior lease or foreclosure of any superior mortgage, if Tenant shall not,
(i) within said 15 day period advise Landlord of Tenant's intention to duly
institute all steps necessary to remedy such situation, (ii) duly institute
within said 15 day period, and thereafter diligently and continuously prosecute
to completion all steps necessary to remedy the same and (iii) complete such
remedy within such time after the date of the giving of said notice of Landlord
as shall reasonably be necessary, or
(c) whenever 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
(d) whenever Tenant shall abandon the demised premises
(unless as a result of a casualty), or
(e) whenever in case any other lease held by Tenant from
Landlord shall expire and terminate (whether or not the term thereof shall then
have commenced) as a result of the default of Tenant thereunder, or
(f) whenever Tenant shall fail to do, observe or perform
any act or thing to be done, observed or performed by Tenant pursuant to the
Work Agreement annexed hereto as Schedule C, or
(g) whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or condition of
Article 5 hereof on the
40
part of Tenant to be kept, observed or performed and if such default shall
continue and shall not be remedied by Tenant within 24 hours after Landlord
shall have given to Tenant a notice specifying the same,
then in any of said cases set forth in the foregoing Subsections (a), (b), (c),
(d), (e), (f) and (g) Landlord may give to Tenant a notice of intention to end
the Term at the expiration of 3 days from the date of the service of such notice
of intention, and upon the expiration of said 3 days 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,
but Tenant shall remain liable for damages as provided in Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.01. If Tenant shall fail to pay any installment of fixed annual
rent, or of any additional rent, or any other charge payable by Tenant to
Landlord on the date the same is due and payable, and if such default shall
continue for 5 days after Landlord shall have given to Tenant a notice
specifying such default, or if this Lease shall terminate as in Article 16
provided, Landlord or Landlord's agents and employees may immediately or at any
time thereafter re-enter the demised premises, or any part thereof, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
or by force or otherwise, without being liable to indictment, prosecution or
damages therefrom. The word re-enter, as herein used, is not restricted to its
technical legal meaning.
17.02. 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 or means
of redress 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.
17.03. If this Lease shall terminate under the provisions of Article
16, or if Landlord shall re-enter the demised premises under the provisions of
this Article 17, or
41
in the event of the termination of this Lease, or of re-entry by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, then (a) Tenant shall
thereupon pay to Landlord the fixed annual rent and additional rent payable by
Tenant to Landlord 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,
and shall also pay to Landlord damages as provided in Article 18, and (b)
Landlord shall be entitled to retain all moneys, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such moneys shall
be credited by Landlord against any fixed annual 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 Articles 16 and 18 or pursuant to
law.
17.04. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or otherwise.
ARTICLE 18
DAMAGES
18.01. If this Lease is terminated under the provisions of Article
16, or if Landlord shall re-enter the demised premises under the provisions of
Article 17, or in the event of the termination of this lease, or of re-entry by
or under 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 any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of
(1) the aggregate of the fixed annual rent and the additional
rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as
42
was payable for the year immediately preceding such termination
except that additional rent on account of increases in Real Estate
Taxes and Expenses shall be presumed to increase at the average of
the rates of increase thereof previously experienced by Landlord
during the period (not to exceed 3 years) prior to such termination)
for the period commencing with such earlier termination of this
Lease or the date of any such re-entry, as the case may be, and
ending with the Expiration Date, had this Lease not so terminated or
had Landlord not so re-entered the demised premises, over
(2) the aggregate rental value of the demised premises for the
same period, or
(b) sums equal to the fixed annual rent and the
additional rent payable hereunder 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 Expiration Date, provided, however,
that if Landlord shall re-let the demised premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such re-letting, 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
re-letting, including 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 thereof; it being
understood that any such re-letting may be for a period shorter or longer than
the remaining term of this Lease. In no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder for the period of such re-letting, or shall Tenant be entitled in any
suit for the collection of damages pursuant to this subsection to a credit in
respect of any net rents from a re-letting, except to the extent that such net
rents are actually received by Landlord. If the demised premises or any part
thereof should be re-let in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such re-letting and of the expenses of re-letting. If the demised premises or
any part thereof be re-let by Landlord for the unexpired portion of the term of
this Lease, or any part thereof, before presentation of proof of such damages
43
to any court, commission or tribunal, the amount of rent payable pursuant to
such re-letting shall, prima facie, be the fair and reasonable rental value for
the demised premises, or part thereof, so re-let during the term of the
re-letting.
18.02. Suit or suits 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 deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 16, or under any provision of law,
or had Landlord not re-entered the demised premises. Nothing herein contained
shall be 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. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of the termination of this Lease or re-entry of 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 sums referred to in Section 18.01.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01. If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under any of
the terms or provisions of this Lease, (a) Landlord may remedy such default for
the account of Tenant, immediately and without notice in case of emergency, or
in any other case if Tenant shall fail to remedy such default with all
reasonable dispatch after Landlord shall have notified Tenant in writing of such
default and the applicable grace period for curing such default shall have
expired; and (b) if Landlord makes any expenditures or incurs any obligations
for the payment of money in connection with such default including, but not
limited to, reasonable attorneys' fees in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations incurred, with
44
interest at the Interest Rate, shall be deemed to be additional rent hereunder
and shall be paid by Tenant to Landlord upon rendition of a xxxx to Tenant
therefor. The provisions of this Article 19 shall survive the expiration or
other termination of this Lease.
ARTICLE 20
QUIET ENJOYMENT
20.01. Landlord covenants and agrees that subject to the terms and
provisions of this Lease, if, and so long as, Tenant keeps and performs each and
every covenant, agreement, term, provision and condition herein contained on the
part or on behalf of Tenant to be kept or performed, then Tenant's rights under
this Lease shall not be cut off or ended before the expiration of the term of
this Lease, subject however, to: (i) the obligations of this Lease, and (ii) the
provisions of Article 25 hereof with respect to Superior Instruments which
affect this Lease.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01. So long as Tenant is not in default under any of the
covenants of this Lease, Landlord shall:
(a) Provide necessary elevator facilities on business
days from 8:00 A.M. to 6:00 P.M. and shall have at least one elevator subject to
call at all other times. At Landlord's option, the elevators shall be operated
by automatic control or by manual control, or by a combination of both of such
methods.
(b) Maintain and keep in good order and repair the air
conditioning, heating and ventilating systems installed by Landlord. The heating
and ventilation systems will function when seasonably required on business days
from 8:00 A.M. to 6:00 P.M. as more fully described in Schedule C annexed hereto
and made a part hereof. The air conditioning system (as it relates to the
demised premises) shall have separate controls in the demised premises and may
be operated by Tenant as required if the demised premises constitute an entire
floor; with respect to partial floors
45
said controls shall be operated by the concierge of the Building. Landlord has
informed Tenant that the windows of the demised premises and the Building are
sealed, and that the demised premises may become uninhabitable and the air
therein may become unbreathable during the hours or days when Landlord is not
required pursuant to this paragraph to furnish heat or ventilation or when
Tenant does not operate the air-conditioning systems. Any use or occupancy of
the demised premises during such hours shall be at the sole risk, responsibility
and hazard of Tenant, and Landlord shall have no responsibility or liability
therefor. 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 actual or constructive 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 cause and keep entirely unobstructed all 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. Nothing contained herein shall be
deemed to require Landlord to furnish at Landlord's expense such electric energy
as is required to operate the air conditioning system serving the demised
premises. Subject to the provisions of Article 4 hereof all such electric energy
shall be furnished to Tenant at Tenant's cost and expense. In the event that
Tenant shall require heating or ventilation (or air conditioning if Tenant
occupies a partial floor) at such times as same are not furnished by Landlord,
Tenant shall advise the concierge of the Building of such requirement and, the
same shall be furnished by Landlord. Tenant agrees to pay the Landlord's charges
therefor as additional rent. The temperature controls for the air conditioning
shall be in the demised premises as provided for in Schedule C but the controls
for turning on said air conditioning shall be with the concierge.
(c) Provide the cleaning and janitorial services
described on Schedule F annexed hereto on business days.
(d) Furnish water for lavatory and drinking and office
cleaning purposes. If Tenant requires, uses or consumes water for any other
purposes, Tenant agrees that Landlord may install a meter or meters or other
means to measure Tenant's water consumption, and Tenant further agrees to
reimburse Landlord for the cost of the meter or meters and the installation
thereof, and to pay for the
46
maintenance of said meter equipment and/or to pay Landlord's cost of other means
of measuring such water consumption by Tenant. Tenant shall reimburse Landlord
for the cost of all water consumed, as measured by said meter or meters or as
otherwise measured, including sewer rents.
21.02. Landlord reserves the right without any liability whatsoever,
or abatement of fixed annual rent, or additional rent, to stop the heating, air
conditioning, elevator, plumbing, electric and other systems when necessary by
reason of accident or emergency or for repairs, alterations, replacements or
improvements, provided that except in case of emergency, Landlord will notify
Tenant in advance, if possible, of any such stoppage and, if ascertainable, its
estimated duration, and will proceed diligently with the work necessary to
resume such service as promptly as possible and in a manner so as to minimize
interference with the Tenant's use and enjoyment of the demised premises, but
Landlord shall not be obligated to employ overtime or premium labor therefor.
21.03. 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 general business office occupancy.
21.04. It is expressly agreed that any firm or corporation
furnishing laundry, linen towels, drinking water, ice, food or beverages, cable
television and other similar supplies and services to tenants and licensees in
the Building is subject to being excluded from the Building if Landlord, in its
reasonable judgment, determines that such firm or corporation interferes with
the operation 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. It is understood,
however, that Tenant or regular office employees of Tenant who are not employed
by any supplier of such food or beverages or by any person, firm or corporation
engaged in the business of purveying such food or beverages, may personally
bring food or beverages into the Building for consumption within the demised
premises by employees of Tenant, but not for resale to or for consumption by any
other tenant. Landlord may fix in its absolute discretion, at any time and from
time to time, the hours during which, and the regulations under which, foods and
beverages may be brought into the Building by regular employees of Tenant.
47
21.05. Tenant agrees to employ such office maintenance contractor as
Landlord may from time to time designate, for all waxing, polishing, cleaning
(other than those cleaning services Landlord is obligated to furnish) and
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.
21.06. Landlord will not be required to furnish any other services,
except as otherwise provided in this Lease.
ARTICLE 22
DEFINITIONS
22.01. The term "Landlord" as used in this Lease means only the
owner, or the mortgagee in possession, for the time being of the Land and
Building (or the owner of a lease of the Building or of the Land and Building),
so that in the event of any transfer of title to said Land and Building or said
lease, or in the event of a lease of the Building, or of the Land and Building,
upon notification to Tenant of such transfer or lease the said transferor
Landlord shall be and hereby is entirely freed and relieved of all existing or
future covenants, obligations and liabilities of Landlord hereunder, and it
shall be deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest, or
between the parties and the transferee of title to said Land and Building or
said lease, or the said lessee of the Building or of the Land and Building, that
the transferee or the lessee, as applicable, has assumed and agreed to carry out
any and all such covenants, obligations and liabilities of Landlord hereunder.
22.02. The term "Business Days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed as legal holidays and defined as Public
Holidays in the Official Directory of the City of New York as well as all other
days recognized as holidays under applicable union contracts; provided, however,
that the Building shall be open on all days that the New York Stock Exchange is
open for business.
22.03. "Interest Rate" shall mean a rate per annum equal to the
lesser of (a) 2% above the so-called
48
"prime rate" of Republic National Bank, as publicly announced from time to time
or if Republic National Bank shall cease to exist or cease to announce such
rate, any similar rate designated by Landlord which is publicly announced from
time to time by any other bank (a "Substitute Bank") in the City of New York
having combined capital and surplus in excess of $100,000,000 or (b) the maximum
rate of interest, if any, which Tenant may legally contract to pay.
22.04. "Legal Requirements" shall mean laws, statutes and ordinances
including building codes and zoning regulations and ordinances and the orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices, commissions
and other subdivisions thereof, or of any official thereof, or of any other
governmental, public or quasi-public authority, whether now or hereafter in
force, which may be applicable to the Land or Building or the demised premises
or any part thereof, or the sidewalks, curbs or areas adjacent thereto and all
requirements, obligations and conditions of all instruments of record on the
date of this Lease.
ARTICLE 23
INVALIDITY OF ANY PROVISION
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 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
BROKERAGE
24.01. Tenant covenants, represents and warrants that Tenant has had
no dealings or negotiations with any broker or agent other than Xxxxx Xxxx
Xxxxxxx (which is representing Landlord) and Xxxxxx X. Xxxxxx & Company in
connection with the consummation of this Lease, and Tenant covenants and agrees
to pay, hold harmless and indemnify
49
Landlord from and against any and all cost, expense (including reasonable
attorneys' fees and court costs), loss and liability for any compensation,
commissions or charges claimed by any broker or agent, other than the brokers
set forth in this Section 24.01, with respect to this Lease or the negotiation
thereof if such claim or claims by any such broker or agent are based in whole
or in part on dealing with Tenant or its representatives. Landlord agrees to pay
to the brokers specified in this Section 24.01 such compensation, commissions or
charges to which they are entitled pursuant to the separate agreements between
said brokers and Landlord.
ARTICLE 25
SUBORDINATION
25.01. This Lease is and shall be subject and subordinate to all
ground or underlying leases which may now or hereafter affect the Land or the
Building and to all mortgages which may now or hereafter affect such leases, the
Land or the Building, and to all renewals, refinancings, modifications,
replacements and extensions thereof (hereinafter called "Superior Instruments").
The provisions of this Section 25.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver at its own cost and
expense any instrument, in recordable form if required, that Landlord, the
holder of any Superior Instrument or any of their respective successors in
interest may request to evidence such subordination, and Tenant hereby
constitutes and appoints Landlord or its successors in interest to be Tenant's
attorney-in-fact, irrevocably and coupled with an interest, to execute and
deliver any such instrument for and on behalf Tenant.
25.02. In the event of a termination of any ground or underlying
lease, or if the interests of Landlord under this Lease are transferred by
reason of, or assigned in lieu of, foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, then Tenant under this Lease will, at the option to be
exercised in writing by the holder of any such Superior Instrument or any
purchaser, assignee or lessee, as the case may be, either (i) attorn to it and
will perform for its benefit all the terms, covenants and conditions of this
Lease on Tenant's part to be performed
50
with the same force and effect as if it were the landlord originally named in
this Lease, or (ii) enter into a new lease with it for the remaining term of
this Lease and otherwise on the same terms and conditions and with the same
options, if any, then remaining. The foregoing provisions of clause (i) of this
Section 25.02 shall enure to the benefit of such holder of a Superior
Instrument, purchaser, assignee or lessee, shall be self-operative upon the
exercise of such option, and no further instrument shall be required to give
effect to such option, and no further instrument shall be required to give
effect to said provisions. Tenant, however, upon demand of any such holder of a
Superior Instrument, purchaser, assignee or lessee agrees to execute, from time
to time, instruments in confirmation of the foregoing provisions of this Section
25.02, satisfactory to any such holder of a Superior Instrument, purchaser,
assignee or lessee, acknowledging such attornment and setting forth the terms
and conditions of its tenancy. Tenant hereby constitutes and appoints Landlord
or its successors in interest to be the Tenant's attorney-in-fact, irrevocably
and coupled with an interest, to execute and deliver such instrument of
attornment, or such new lease, if the Tenant refuses or fails to do so promptly
upon request.
25.03. Anything herein contained to the contrary notwithstanding,
under no circumstances shall any such holder of a Superior Instrument,
purchaser, assignee or lessee, as the case may be, whether or not it shall have
succeeded to the interests of the landlord under this Lease, be
(a) liable for any act, omission or default of any prior
landlord; or
(b) subject to any offsets, claims or defenses which the
Tenant might have against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might
have paid to any prior landlord for more than one month in advance or for more
than three months in advance where such rent payments are payable at intervals
of more than one month; or
(d) bound by any modification, amendment or abridgment of the
Lease, or any cancellation or surrender of the same, made without its prior
written approval.
25.04. If, in connection with the financing of the Building, the
holder of any mortgage shall request
51
reasonable modifications in this Lease as a condition of approval thereof,
Tenant will not unreasonably withhold, delay or defer making such modifications
provided the same do not (i) increase the fixed annual rent or additional rents
payable by Tenant, (ii) reduce the term hereof or (iii) extend the term hereof
except as otherwise provided in Section 2.06.
25.05. If Landlord shall turn over to the holder of a Superior
Instrument the Security Deposit deposited by Tenant with Landlord pursuant to
Article 41 hereof, then notwithstanding anything to the contrary contained
herein, such holder shall hold same subject to and in accordance with all Legal
Requirements.
ARTICLE 26
CERTIFICATE OF TENANT
26.01. Tenant shall, without charge, at any time and from time to
time, within ten (10) days after request by Landlord, execute, acknowledge and
deliver to Landlord, the holder of a Superior Instrument or any other person,
firm or corporation specified by Landlord, a written instrument (an "Estoppel
Certificate") in the form attached hereto as Schedule D or such other form as
may be required by the holder of any Superior Instrument. Prior to taking
occupancy of the demised premises, and as a condition precedent thereto, Tenant
shall execute, acknowledge and deliver such an estoppel certificate to Landlord.
26.02. Tenant agrees that, except for the first month's rent
hereunder, it will pay no rent under this Lease more than thirty (30) days in
advance of its due date, if so restricted by any existing or future Superior
Instrument or by an assignment of this Lease to the holder of such Superior
Instrument, and, in the event of any act or omission by Landlord which would
give Tenant the right to terminate this Lease, Tenant will not exercise such
right until Tenant shall have first given written notice of such act or omission
to the holder of any Superior Instrument who shall have furnished such holder's
last address to Tenant, and until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notices, during which
time such holder shall have the right, but shall not be obligated, to remedy or
cause to be remedied such act or omission. Tenant further agrees not to exercise
any such right if the holder of any such Superior
52
Instrument commences to cure such act or omission within a reasonable time after
having received notice thereof and diligently prosecutes such cure thereafter.
ARTICLE 27
LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL
27.01. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way in connection with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the demised premises, and/or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any other statutory
remedy. It is further mutually agreed that in the event Landlord commences any
summary proceeding for non-payment of rent, Tenant will not interpose and does
hereby waive the right to interpose any counterclaim of whatever nature or
description in any such proceeding. Tenant shall reimburse Landlord upon demand
for all costs and expenses (including attorney's fees and disbursements and
court costs) incurred by Landlord in connection with enforcing Tenant's
obligations hereunder or in protecting Landlord's rights hereunder whether
incurred in connection with an action or proceeding commenced by Landlord, by
Tenant, by a third party or otherwise. All such amounts shall be deemed to be
additional rent and shall be collectible in the same manner as provided in
Section 1.02 hereof.
ARTICLE 28
SURRENDER OF PREMISES
28.01. Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the demised premises, broom clean, in good
order and condition, ordinary wear and tear and damage by fire, the elements or
other casualty excepted, and Tenant shall remove all of its property as herein
provided. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Term.
53
28.02. If Tenant shall, without the written consent of Landlord,
hold over after the expiration of the Term such tenancy shall be deemed a
month-to-month tenancy, which tenancy may be terminated as provided by
applicable law. During such tenancy, Tenant agrees to (a) pay to Landlord, each
month, the greater of the fair market rental value for the Premises or one
hundred twenty (120) percent of the fixed annual rent and all additional rent
payable by Tenant for the last month of the Term and (b) be bound by all of the
terms, covenants and conditions herein specified.
ARTICLE 29
RULES AND REGULATIONS
29.01. Tenant and Tenant's servants, employees and agents shall
observe faithfully and comply strictly with the Rules and Regulations set forth
in Schedule E attached hereto and made part hereof entitled "Rules and
Regulations" and such other and further reasonable Rules and Regulations as
Landlord or Landlord's agents may from time to time adopt provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as hereafter
adopted, the provisions of this Lease shall control. Reasonable written notice
of any additional Rules and Regulations shall be given to Tenant.
Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 30
CONSENTS AND APPROVALS
30.01. Wherever in this Lease Landlord's consent or approval is
required, if Landlord shall delay or refuse such consent or approval, Tenant in
no event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall
54
Tenant claim any money damages by way of set-off, counterclaim or defense) based
upon any claim or assertion by Tenant that Landlord unreasonably withheld or
unreasonably delayed its consent or approval. Tenant's sole remedy shall be an
action or proceeding to enforce any such provision, for specific performance,
injunction or declaratory judgment.
ARTICLE 31
NOTICES
31.01. Any notice or demand, consent, approval or disapproval, or
statement (collectively called "Notices") required or permitted to be given by
the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be in
writing and unless otherwise required by such law or regulation, shall be sent
by United States mail postage prepaid as registered or certified mail, return
receipt requested. Any Notice shall be addressed to Landlord or Tenant, as
applicable, at its address set forth on page 1 of this Lease as said address may
be changed form time to time as hereinafter provided. After Tenant shall occupy
the demised premises, the address of Tenant for Notices shall be the Building.
By giving the other party at least ten days prior written notice, either party
may, by Notice given as above provided, designate a different address or
addresses for Notices.
31.02. Any Notice shall be deemed given as of the date of delivery
as indicated on the return receipt; and in the case of failure to deliver by
reason of changed address of which no Notice was given or refusal to accept
delivery, as of the date of such failure as indicated on the return receipt or
by notice of the postal department.
31.03. In addition to the foregoing, either Landlord or Tenant may,
from time to time, request in writing that the other party serve a copy of any
Notice on one other person or entity designated in such request, such service to
be effected as provided in Section 31.01 hereof.
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ARTICLE 32
NO WAIVER
32.01. No agreement to accept a surrender of this Lease shall be
valid unless in writing signed by Landlord. No employee of Landlord or of
Landlord's agents shall have any power to accept the keys of the demised
premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agent shall not operate as a termination
of this Lease or a surrender of the demised premises. In the event of Tenant at
any time desiring to have Landlord sublet the premises for Tenant's account,
Landlord or Landlord's agents are authorized to receive said keys for such
purpose without releasing Tenant from any of the obligations under this Lease.
The failure of Landlord to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this Lease or any of the
Rules and Regulations set forth herein, or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach. The failure of Landlord to
enforce any of the Rules and Regulations set forth herein, or hereafter adopted,
against Tenant and/or any other tenant in the Building shall not be deemed a
waiver of any such Rules and Regulations. No provision of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing signed
by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on the
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment of rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
32.02. This Lease contains the entire agreement between the parties,
and any executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
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ARTICLE 33
CAPTIONS
33.01. The captions are inserted only as a matter of convenience and
for reference, and in no way define, limit or describe the scope of this Lease
nor the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.01. If, by reason of (1) strike, (2) labor troubles, (3)
governmental pre-emption in connection with a national emergency, (4) any rule,
order or regulation of any governmental agency, (5) conditions of supply or
demand which are affected by war or other national, state or municipal
emergency, or any other cause or (6) fire or other casualty, (7) adjustment of
insurance claims, (8) acts of God, or (9) any other cause beyond Landlord's
reasonable control (collectively "Force Majeure Causes"), Landlord shall be
unable to fulfill its obligations under this Lease or shall be unable to supply
any service which Landlord is obligated to supply, this Lease and Tenant's
obligation to pay rent hereunder shall in no wise be affected, impaired or
excused.
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01. Landlord or Landlord's agents have made no representations or
promises with respect to the Building or demised premises except as herein
expressly set forth.
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ARTICLE 36
NAME OF BUILDING
36.01. The name of the Building shall be One Exchange Plaza.
Landlord shall have the full right at any time to name and change the name of
the Building and to change the designated address of the Building. The Building
may be named after any person, firm, or otherwise, whether or not such name is,
or resembles, the name of a tenant of the Building.
ARTICLE 37
ARBITRATION
37.01. In each case specified in this Lease in which resort to
arbitration shall be required, such arbitration (unless otherwise specifically
provided in other Sections of this Lease) shall be in New York City in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and the provisions of this Lease. The decision and award of the
arbitrators shall be in writing, shall be final and conclusive on the parties,
and counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and awards, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrators so rendered in any court of competent
jurisdiction.
ARTICLE 38
INDEMNITY
38.01. Tenant shall indemnify Landlord and save it harmless from and
against any and all liability, damages, costs or expenses, including attorneys'
fees, arising from any act, omission, or negligence of Tenant or its officers,
contractors, licensees, agents, employees, guests, invitees, or visitors in or
about the Building or arising from any breach or default under this Lease by
Tenant, or arising from any accident, injury, or damage, howsoever and by
whomsoever caused, to any person or property, occurring in
58
or about the Building or Premises. This provision shall not be construed to make
Tenant responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by the negligence of Landlord, or its officers,
contractors, licensees, agents, employees, or invitees.
ARTICLE 39
MEMORANDUM OF LEASE
39.01. Tenant shall, at the request of Landlord execute and deliver
a statutory form of memorandum of this Lease for the purpose of recording, but
said memorandum of this Lease shall not in any circumstances be deemed to modify
or to change any of the provisions of this Lease.
ARTICLE 40
APPROVAL OF PERMANENT MORTGAGEE
40.01. This Lease is conditioned on Landlord obtaining the approval
of this Lease (hereinafter referred to as "Approval") by the holder of the
construction and/or permanent first mortgage on the Land and Building or a
commitment therefor (the "Mortgagee"). Landlord represents that it will use
reasonable efforts to obtain the Approval.
40.02. In the event Landlord has not obtained the Approval within 15
days after the date hereof, Landlord shall have the obligation to terminate this
Lease upon 7 days' notice to Tenant and this Lease shall terminate upon the
expiration of 7 days after the date of such notice.
40.03. In the event a Mortgagee notifies Landlord that it will not
give the Approval, then Landlord shall have the right to terminate this Lease by
written notice to Tenant, and upon the giving of such notice, this Lease shall
terminate.
40.04. In the event of the termination of this Lease pursuant to
Sections 40.02 or 40.03 hereof, and upon such termination, all further
obligations of the parties hereunder shall end and neither Landlord or Tenant
shall
59
have any liability to the other, except Landlord shall refund any pre-paid rent
and/or security deposit to Tenant.
40.05. In the event that the Approval is not obtained, Landlord will
reimburse Tenant for any of its reasonable out-of-pocket architectural fees
incurred in connection with the demised premises.
ARTICLE 41
SECURITY DEPOSIT
41.01. Tenant has deposited with Landlord an unconditional,
irrevocable letter of credit substantially in the form attached hereto as
Schedule G in an amount equal to two monthly installments of fixed annual rent,
as security for the full and punctual performance by Tenant of all of the terms
of this Lease. In the event Tenant defaults in the performance of any of the
terms of this Lease, Landlord may draw upon the letter of credit in full and any
amounts not applied as hereinafter provided shall be held by Landlord subject to
and in accordance with the provisions of this Article. Landlord may then apply
the whole or any part of the security so drawn upon to the extent required for
the payment of (i) any rent or (ii) any sum which Landlord may expend or may be
required to expend by reason of Tenant's default including, without limitation,
any damages or deficiency in the re-letting of the demised premises, whether
accruing before or after summary proceedings or other re-entry by Landlord. Upon
each such application, Tenant shall, on demand, pay to Landlord the sum so
applied in cash which shall be added to the remaining proceeds from the letter
of credit so that the security held by Landlord shall be restored to the amount
first set forth above. If Tenant shall fully and punctually comply with all of
the terms of this Lease, the letter of credit or the amount of the security
deposit, as the case may be, shall be returned to Tenant after the termination
of this Lease, delivery of exclusive possession of the Premises to Landlord and
the payment to Landlord of the balance of Tenant's Expense Payment and Tax
Payment for the final Operating Year and Tax Year. In the event of a sale or
lease of the Building, Landlord shall have the right to transfer the letter of
credit or the security deposit to the vendee or lessee and Landlord shall ipso
facto be released by Tenant from all liability for the return of such security;
and Tenant agrees to look solely to the new landlord for the return of said
security and it is agreed that the provisions hereof shall
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apply to every transfer or assignment made of the letter of credit or security
to a new landlord. If 30 days prior to the date of such sale, Landlord shall be
holding a letter of credit as Tenant's security, Tenant will upon 5 days' prior
written notice, deliver a substitute letter of credit naming the new landlord as
the new beneficiary thereof. In the event Tenant shall default on such
obligation, Landlord may draw upon the letter of credit and transfer the
proceeds thereof to the new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, or attempted assignment or encumbrance. In the event
the letter of credit referred to above or any substitute letter of credit is not
renewed so that at all times the letter of credit held by Landlord hereunder is
valid for a period in excess of 30 days, Landlord may draw upon said letter of
credit and hold the proceeds thereof subject to and in accordance with the terms
of this Section. Anything to the contrary contained herein notwithstanding, if
Tenant shall fully and punctually comply with all the terms of this Lease for
two years following the Commencement Date, Landlord shall within 30 days
thereafter return the letter of credit to Tenant upon receiving (a) a substitute
letter of credit with an expiration date no earlier than one year from the date
of such letter of credit and in substantially the same form as the letter of
credit initially deposited with Landlord hereunder but in an amount equal to one
monthly installment of fixed annual rent, and (b) a receipt for the original
letter of credit from Tenant. The substitute letter of credit shall be held and
applied subject to and in accordance with the terms of this Article 41.
ARTICLE 42
FAIR MARKET RENT REVIEW/RENEWAL OPTION
42.01. On the fifth anniversary of the Commencement Date (the
"Review Date"), the fixed annual rent payable pursuant to Article 1 shall be
increased so as to equal the lesser of (i) the fair market rent for the demised
premises as determined in the manner hereinafter provided, or (ii) 125% of the
fixed annual rent payable under Article 1 hereof immediately prior to such
Review Date; provided, however, that in no event may the fixed annual rent
payable under Article 1 hereof be reduced by the operation of this Article 42.
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42.02. If in Landlord's opinion an increase in the fixed annual rent
is warranted because the fair market rent for the demised premises has
increased, Landlord shall give Tenant notice thereof (hereinafter called the
"Review Notice") which Review Notice shall specify the new increased fixed
annual rent that Tenant shall be obligated to pay. The increased fixed annual
rent set forth in the Review Notice shall be effective as of the Review Date to
which such Review Notice relates.
42.03. (a) If Landlord gives a Review Notice, then at any time
within 15 days after the giving of such Review Notice, Tenant may dispute the
fair market rent for the demised premises as determined by Landlord by giving
notice to Landlord that it is initiating the appraisal process provided for
herein and specifying in such Notice the name and address of the arbitrator
designated by Tenant to act on its behalf. Within 15 days after the designation
of Tenant's arbitrator, Landlord shall give notice to Tenant specifying the name
and address of Landlord's arbitrator. The two arbitrators so chosen shall meet
within 10 days after the second arbitrator is appointed and if, within 20 days
after the second arbitrator is appointed, the two arbitrators shall not agree
upon a determination in accordance with Paragraph (c) of this Section 42.03 they
shall together appoint a third arbitrator. If said two arbitrators cannot
agree upon the appointment of a third arbitrator within 10 days after the
expiration of such 20 day period, then either party, on behalf of both, and on
notice to the other may request such appointment by the American Arbitration
Association (or any successor organization) in accordance with its then
prevailing rules. If the American Arbitration Association shall fail to appoint
said third arbitrator within 10 days after such request is made, then either
party may apply, on notice to the other, to the Supreme Court, New York County,
New York (or any other court having jurisdiction and exercising functions
similar to those now exercised by the foregoing court) for the appointment of
such third arbitrator.
(b) Each of the arbitrators selected as herein provided shall
have at least five years experience in the leasing or management of office space
in the "Downtown" office market in the Borough of Manhattan. Each party shall
pay the fees and expenses of the arbitrator selected by it. The fees and
expenses of the third arbitrator and all other expenses (not including the
attorney's fees, witness fees and similar expenses of the parties which shall be
borne separately by each of the parties) of the arbitration shall be borne
equally by the parties hereto.
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(c) The majority of the arbitrators shall determine the fair
market rent of the demised premises as of the later of the Review Date or the
date a Review notice is given and render a decision and award as to their
determination to both Landlord and Tenant within 20 days after the appointment
of the third arbitrator. In rendering such decision and award, the arbitrators
shall assume or take into consideration as appropriate all of the following: (i)
the Landlord and prospective tenant are typically motivated; (ii) the Landlord
and prospective tenant are well informed and well advised and each is acting in
what it considers its own best interest; (iii) a reasonable time under
then-existing market conditions is allowed for exposure of the demised premises
on the open market; (iv) the rent is unaffected by concessions, special
financing amounts and/or terms, or unusual services, fees, costs or credits in
connection with the leasing transaction; (v) the demised premises are fit for
immediate occupancy and use "as is" and require no additional work by Landlord
and that no work has been carried out thereon by the Tenant, its subtenant, or
their predecessors in interest during the Term which was diminished the rental
value of the demised premises; (vi) in the event the demised premises have been
destroyed or damaged by fire or other casualty, they have been fully restored;
(vii) that the demised premises are to be let with vacant possession and subject
to the provisions of this Lease (assuming, however, that the Base Tax and
Expense Base Factor are the same as those specified in Article 3 hereof) for a
five-year term; and (viii) market rents then being charged for comparable space
in other similar office buildings in the same area. For example, if (i) the fair
market rent for the demised premises were $50 per square foot on the Review Date
if one assumed a Base Tax and Expense Base Factor which would be used in leases
generally entered into at the time such fair market rent is being determined,
(ii) escalations for Taxes and Expenses from the Base Tax and Expense Base
Factor contained in the Lease at the time when fair market rent is being
determined are $5 per square foot and (iii) the initial fixed annual rent
payable hereunder were $40 per square foot, then (a) the fair market rent for
the demised premises on the assumptions set forth above (including assumption
vii) would be $45 per square foot (i.e. the $50 per square foot less the $5 of
escalations) and the increase to bring Tenant's fixed annual rent to fair market
rent would be $5 per square foot. In rendering such decision and award, the
arbitrators shall not modify the provisions of this Lease. The decision and
award of the arbitrators shall be in writing and be final and conclusive on all
parties and counterpart copies thereof shall be delivered to each of said
parties. Judgment may be had on the decision and award of the
63
arbitrators so rendered in any court of competent jurisdiction.
(d) Prior to the determination of the arbitrators, Tenant
shall pay as the fixed annual rent it is obligated to pay under this Lease the
amount set forth in the Review Notice and in the event the arbitrators determine
that the fixed annual rent payable pursuant to this Article 42 is greater than
that set forth in the Review Notice, then Tenant shall promptly pay to Landlord
the amount of its underpayment of fixed annual rent for the period commencing on
the Review Date, or if the arbitrators determine that the fixed annual rent
payable pursuant to this Article 42 is less than that set forth in the Review
Notice, then Tenant shall be entitled to a credit in the amount of its
overpayment for the period commencing on the Review Date against subsequent
payments of fixed annual rent due hereunder. In the event the arbitrators
determine that the rent set forth in Landlord's Review Notice is more than 110%
of the rent which should be payable to Landlord pursuant to the provisions of
this Article 42, Tenant shall be entitled to receive an additional credit
against fixed annual rent by reason of any overpayment of fixed annual rent paid
by Tenant under this paragraph (d) equal to interest on the amount of any such
overpayment to the extent paid by Tenant at the rate being paid by Republic
National Bank or, if Republic National Bank shall cease to exist, a Substitute
Bank (as defined in Article 22) on 30-Day Certificates of Deposit at the time
such overpayment is made from the date paid by Tenant to the date credit for
such overpayment is taken. In no event shall the fixed annual rent (as the same
may have been increased from time to time in accordance with this Article 42) be
reduced pursuant to this Article 42.
(e) Nothing contained in this Article 42 shall be deemed in
any way to alter or modify the provisions or Article 3 hereof.
42.04. (a) Tenant shall have an option (the "Option") to extend the
term of the Lease for one (1) additional term of five (5) years (the "Renewal
Term") commencing on the first day next succeeding the Expiration Date upon the
same terms, conditions and provisions as are provided for in the Lease
(including, without limitation, the same Base Tax and Expense Base Factor but
excluding this Section 42.04 and Section 2.07 hereof) except that the fixed
annual rent payable pursuant to Article 1 hereof for the Renewal Term shall be
the greater of (i) the fixed annual rent payable thereunder immediately prior to
the Expiration Date, or (ii) the fair market rent for the demised premises
64
as of such Expiration Date determined in the manner provided in paragraph (c)
below.
(b) The Option may be exercised only by Tenant giving written
notice to Landlord of Tenant's exercise of said Option by Certified Mail, return
receipt requested, not more than fourteen (14) nor less than nine (9) months
prior to the Expiration Date of the Term (the "Exercise Notice"). Upon Tenant's
giving of the Exercise Notice, the term of this Lease shall be extended
automatically upon the terms and conditions herein specified without the
execution of an extension agreement or other instrument. It is expressly agreed
that Tenant shall have only one opportunity to exercise the Option. If Tenant
shall not give Landlord the Exercise Notice at the time and in the manner set
forth above, the Option shall terminate and be deemed waived by Tenant. Time is
of the essence as to the date for the giving of the Exercise Notice.
(c) After Landlord receives the Exercise Notice, and if in
Landlord's opinion an increase in the fixed annual rent for the Renewal Term is
warranted because the fair market rent for the demised premises has increased,
Landlord shall send Tenant a Review Notice stating the amount which, in
Landlord's opinion, shall constitute the fair market rent for the demised
premises as of the Expiration Date. The increased fixed annual rent set forth in
the Revised Rent Notice shall be effective as of the first date of the Renewal
Term. The provisions of Section 42.03 shall apply to any disputes as to the fair
market rent specified by Landlord in the Review Notice with respect to the
Renewal Term with all references to the Review Date being deemed to refer to the
first day of the Renewal Term.
42.05. Notwithstanding the foregoing provisions of this Article 42,
if on the date that Tenant exercises the Option, or if on any subsequent date up
to and including the Expiration Date, Tenant is in default in the performance of
any of the terms, conditions or provisions of this Lease and such default has
continued beyond the applicable grace period herein provided, than Tenant's
exercise of the Option and the extension of the Term of this Lease contemplated
thereby shall, at the option of Landlord exercised by written notice to Tenant,
be rendered null and void and shall be of no further force and effect and Tenant
shall have no further or additional right to exercise the Option, all of which
shall be deemed waived by Tenant.
42.06. If Tenant exercises the Option, or if the fixed annual rent
payable under Article 1 hereof is increased pursuant to the operation of
Sections 42.01 --
65
42.03 hereof, then, at Landlord's request, Tenant agrees within ten (10) days
after such request is made to execute, acknowledge and deliver to Landlord an
instrument in form and substance reasonably satisfactory to Landlord, confirming
(i) the extension of the Term, (ii) the increased fixed annual rent payable
under this Lease pursuant to this Article 42, and (iii) the other modifications
provided for in this Article 42, but no such instrument shall be required in
order to make the provisions hereof effective.
ARTICLE 43
MISCELLANEOUS
43.01. Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of New York.
43.02. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
43.03. Except as otherwise expressly provided in this Lease, each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease.
43.04. All terms and words used in this Lease, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
43.05. Time shall be of the essence with respect to the exercise of
any option on the part of Tenant to extend the term of this Lease.
43.06. Except as otherwise provided herein whenever payment of
interest is required by the terms hereof it shall be at the Interest Rate.
43.07. If the demised premises or any additional space to be
included within the demised premises shall not be available for occupancy by
Tenant on the specific date hereinbefore designated for the commencement of the
term of this Lease or for the inclusion of such space for any reason
66
whatsoever, then this Lease shall not be affected thereby but, in such case,
said specific date shall be deemed to be postponed until the date when the
demised premises or such additional space shall be available for occupancy by
Tenant, and Tenant shall not be entitled to possession of the demised premises
or such additional space until the same are available for occupancy by Tenant;
provided, however, Tenant shall have no claim against Landlord, and Landlord
shall have no liability to Tenant by reason of any such postponement of said
specific date, and the parties hereto further agree that any failure to have the
demised premises or such additional space available for occupancy by Tenant on
said specific date or on the Commencement Date shall in no way affect the
obligations of Tenant hereunder nor shall the same be construed in any way to
extend the Term. This Section 42.07 shall be deemed to be an express provision
to the contrary of Section 223-a of the Real Property Law of the State of New
York and any other law of like import now or hereafter in force.
43.08 In the event that Tenant is in arrears in payment of fixed
annual rent or additional rent hereunder, Tenant waives Tenant's right, if any,
to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
43.09. All Exhibits referred to in this Lease are hereby
incorporated in this Lease by reference.
43.10. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
43.11. No remedy or election hereunder shall be deemed exclusive but
shall, whenever possible, be cumulative with all other remedies at law or in
equity.
43.12. Under no circumstances shall Tenant record a copy of this
Lease without Landlord's prior written consent.
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ARTICLE 44
INTENTIONALLY OMITTED
ARTICLE 45
PARTNERSHIP
45.01. The liability of each of the general partners of the
partnership Tenant shall be joint and several. The technical dissolution of
Tenant (or of any of the partnerships constituting Tenant) by reason of the
death, retirement, resignation, bankruptcy or adjudication of incompetency of
one or more partners, shall not affect this Lease or the liability thereunder of
the general partners, and Tenant agrees that the partnership shall nevertheless
continue as Tenant with respect to the remaining general partner(s).
45.02. Simultaneously with execution of this Lease by Landlord and
Tenant, Tenant has delivered to Landlord a list of the names and addresses of
all existing general partners of the partnership Tenant. In the event Tenant
admits any new general partner(s) (a "New General Partner"), Tenant agrees,
within thirty (30) days thereafter, to give notice to Landlord of that fact and
of the name and address (residence address, if an individual) of each New
General Partner(s), together with such reasonable proof as Landlord shall
require that all of such New General Partner(s) have in writing assumed
performance of Tenant's obligations under this Lease. The admission of any new
partner or withdrawal of any partners pursuant to paragraph 45.04 below shall
constitute a permitted assignment under Article 11 hereof.
45.03. In the event of a merger or consolidation with another firm,
Tenant agrees, within thirty (30) days thereafter, to give notice to Landlord of
that fact and all of the names and addresses (residence address, if individuals)
of the New General Partners of the merged or consolidated firm, together with
such reasonable proof as Landlord shall require that all of such New General
Partners
68
have in writing assumed performance of Tenant's obligations under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the day and year first above written.
AETNA LIFE INSURANCE COMPANY,
Landlord
By:
------------------------------------
Vice-President
LA BRANCHE & CO., Tenant
By: /s/ [ILLEGIBLE]
------------------------------------
A Partner
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FIRST AMENDMENT TO LEASE AGREEMENT
AGREEMENT made as of the 1st day of May, 1993, between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation, having an
office at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and LA
BRANCHE & CO., a New York partnership, having an office at Xxx Xxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H
WHEREAS:
(A) Landlord is the owner of premises located at Xxx Xxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx ("Building").
(B) Tenant is the tenant of a portion of the twenty-sixth floor of
the Building ("Demised Premises") pursuant to that certain Agreement of Lease
("Lease"), dated as of January 6, 1984, between Aetna Life Insurance Company and
Tenant.
(C) Tenant has requested that Landlord extend the term of the Lease
and modify certain other provisions thereof and Landlord has agreed to do so
subject to and in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, the parties hereto hereby agree as follows:
1. The term of the Lease, as modified hereby, is hereby extended to
April 30, 2003 upon all the terms, covenants and conditions of the Lease, except
as herein expressly set forth. Accordingly, all references in the Lease to the
"Expiration Date" shall be deemed to refer to April 30, 2003.
2. Effective from and after May 1, 1993,
(a) the fixed annual rent payable under the Lease, as modified
hereby, shall be in the amount of $103,922.00 which shall be payable in equal
monthly installments of $8,660.17;
(b) the Base Tax shall be the Taxes for the tax fiscal year
commencing on July 1, 1993 and ending on June 30, 1994; and
(c) the Expense Base Factor shall be the Expenses for the
calendar year commencing on January 1, 1993 and ending on December 31, 1993.
3. Effective from and after May 1, 1998, the fixed annual rent
payable under the Lease, as modified hereby, shall be increased to $119,910.00
which shall be payable in equal monthly installments of $9,992.50.
4. Promptly after the execution hereof by Landlord and Tenant,
Landlord shall perform the following work ("Landlord's Work") in the Demised
Premises, all of which shall be of a material, design, finish and color, if
-2-
applicable, of the standard adopted by Landlord for the Building ("Building
Standard"):
(i) install new carpeting;
(ii) paint all walls and trim;
(iii) furnish and install new energy saving Con Edison
lighting fixtures and replace ceiling titles, where necessary;
(iv) clean existing curtains throughout and replace liners,
where necessary; and
(v) install a chair rail molding on all walls.
Tenant shall inform Landlord of its paint color and carpet
selection, chosen from the Building Standard selections, not later than ten (10)
days from the date of the execution of this Agreement by Landlord and Tenant.
5. Article 31 of the Lease is hereby modified to provide that all
notices to Landlord shall be addressed to Landlord as follows:
The Prudential Insurance Company of America
c/o Premisys Real Estate Service, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000
with copies to:
The Prudential Insurance Company of America
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10020-1903
Attn: Xxx Xxxxxx,
Associate Regional Counsel
and
The Prudential Insurance Company of America
Three Gateway Center
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxx Xxxxxx, Director, Equity Investments
-3-
6. Articles 40 and 42 of the Lease are hereby deleted.
7. Tenant represents and warrants to Landlord that it has not dealt
with any broker in connection with this Agreement other than Xxxxxx X. Xxxxxx
Company, Inc. and Xxxxxx Xxxxxxxx Company ("Brokers") and Landlord shall pay any
commission payable to the Brokers in connection with this Agreement pursuant to
separate agreements with the Brokers. Tenant shall indemnify Landlord and hold
Landlord harmless against all liability and expense (including, without
limitation, reasonable attorneys' fees) for any other brokerage commission or
finder's fee relating to this Agreement based on the alleged actions of Tenant
or its agents or representatives. Tenant's liabilities under such
indemnification shall survive any expiration or termination of the Lease, as
modified hereby.
8. Unless otherwise defined herein, the terms contained in this
Agreement shall have the respective meanings ascribed to them in the Lease.
9. The submission of this Agreement to Tenant shall not constitute
Landlord's agreement to execute and exchange this Agreement and is made subject
to Landlord's acceptance, execution and delivery thereof.
10. Except as expressly modified hereby, the Lease shall remain in
full force and effect in accordance with its terms and is hereby ratified and
confirmed.
-4-
11. This Agreement may not be modified or terminated orally and
shall be binding upon and inure to the benefit of the successors and, subject to
the provisions of Article 11 of the Lease, assigns of Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the day and year first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:_____________________________________
LA BRANCHE & CO.
By:_____________________________________
, General Partner
