EXHIBIT 10.6
[LOGO OF BROADVIEW NETWORKS]
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Existing Lease Abstract -- Downtown Manhattan
Building: 00 Xxxxxx Xxxx -- Xxxxxxxxx
Lease Date: December 30,1999
Landlord: 00 Xxxxxx Xxxx Associates, LLC
Tenant: Broadview Networks, Inc.
Premises: Entire 27th Floor
Rentable Area: Approximately 17,625 RSF
Lease Term: Ten (10) Years
Lease Commencement: Upon completion of Landlord's work, estimated to be May
1, 2000
Lease Expiration: Estimated to be April 30, 2010
Rent Commencement: Three (3) months after Lease Commencement
Base Rent: Years 1-5: $33.00 pRSF
Years 6-10: $36.00 pRSF
Electricity: Sub-metered
Real Estate Taxes: Tenant shall pay its proportionate share of increases
over a 1999-2000 Base Year.
Operating Expense: Tenant shall pay its proportionate share of increases
over a 2000 Base Year.
Use: General and executive offices.
Sublet/Assignment: Tenant may sublet all or a portion of the premises or
assign the lease with prior written consent of owner,
which may not be unreasonably withheld or delayed.
There shall be 50% profit sharing.
Termination Option(s): Tenant shall have the right to terminate if the
Landlord's work is not completed 270 days from when the
plans are submitted.
Expansion Option(s): Tenant shall have the Expansion Rights on an additional
floor In the same elevator bank as the 27th floor (i.e.
21st through 31st floors). Written notice to expand
must be given by March 31, 2000.
Security Deposit: $363,515.63
Renewal Option(s): Tenant shall have one (1) five (5) year renewal option
with twelve (12) months written notice.
Holdover: 150%
Eguis
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01/14/00
LEASE
between
00 XXXXXX XXXX ASSOCIATES, LLC
Landlord
and
BROADVIEW NETWORKS, INC.
Tenant
December 30, 1999
PREMISES:
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Entire 27th Floor
Page:
----
ARTICLE 1 Term and Fixed Rent .............................................. 1
ARTICLE 2 Delivery and Use of Premises ..................................... 4
ARTICLE 3 Escalations ..................................................... 13
ARTICLE 4 Security ........................................................ 22
ARTICLE 5 Subordination, Notice to Superior Lessors and Mortgagees ........ 23
ARTICLE 6 Quiet Enjoyment ................................................. 26
ARTICLE 7 Assignment, Xxxxxxxxxx and Mortgaging ........................... 26
ARTICLE 8 Compliance with Laws ............................................ 35
ARTICLE 9 Insurance ....................................................... 37
ARTICLE 10 Rules and Regulations ........................................... 39
ARTICLE 11 Alterations ..................................................... 40
ARTICLE 12 Landlord's and Tenant's Property ................................ 44
ARTICLE 13 Repairs and Maintenance ......................................... 45
ARTICLE 14 Electricity ..................................................... 46
ARTICLE 15 Landlord's Services ............................................. 51
ARTICLE 16 Access and Name of Building ..................................... 56
ARTICLE 17 Notice of Occurrences ........................................... 59
ARTICLE 18 Non-Liability and Indemnification ............................... 59
ARTICLE 19 Damage or Destruction ........................................... 60
ARTICLE 20 Eminent Domain .................................................. 63
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ARTICLE 21 Surrender ........................................................ 64
ARTICLE 22 Conditions of Limitation ......................................... 65
ARTICLE 23 Reentry by Landlord .............................................. 69
ARTICLE 24 Damages .......................................................... 70
ARTICLE 25 Affirmative Waivers .............................................. 72
ARTICLE 26 No Waivers ....................................................... 73
ARTICLE 27 Curing Tenant's Defaults ......................................... 73
ARTICLE 28 Broker ........................................................... 74
ARTICLE 29 Notices .......................................................... 75
ARTICLE 30 Estoppel Certificates ............................................ 76
ARTICLE 31 Memorandum of Lease .............................................. 77
ARTICLE 32 No Representations by Landlord ................................... 77
ARTICLE 33 Intentionally Omitted ............................................ 77
ARTICLE 34 Holdover ......................................................... 77
ARTICLE 35 Miscellaneous Provisions and Definitions ......................... 79
ARTICLE 36 Partnership Tenant ............................................... 87
ARTICLE 37 Good Guy Guaranty ................................................ 87
ARTICLE 38 Extension of Term ................................................ 90
ARTICLE 39 Additional Space ................................................. 94
Exhibit A: Description of Land
Exhibit B: Floor Plan of Premises
Exhibit C: Work Letter
Exhibit D: Rules and Regulations
Exhibit E: Tenant Construction Approval Procedures
Exhibit F: Standard Form: Subordination, Non-disturbance and Attornment
Agreement
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LEASE (herein called this "Lease"), dated as of December 30, 1999, between
59 MAIDEN LANE ASSOCIATES, LLC, a New York limited liability company, having an
office at c/o AmTrust Realty Corp., 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(herein called "Landlord") and, BROADVIEW NETWORKS, INC., a New York
corporation, having an office at 00-00 Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
00000 (herein called "Tenant").
Landlord and Tenant do hereby covenant and agree as follows:
ARTICLE 1
Term and Fixed Rent
-------------------
1.01. Landlord hereby leases to Tenant. and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this Lease, the premises described in Section 1.02 in the building (herein
called the "Building") known as 00 Xxxxxx Xxxx (a/k/a 00-00 Xxxxxx Xxxx. a/k/a
50-66 Xxxx Street, a/k/a 00-000 Xxxxxxxx Xxxxxx) in the City, County and State
of New York. The Building is located on the land (herein called the "Land")
described in Exhibit A annexed hereto and made a part hereof.
1.02. The premises (herein called the "Premises") leased to Tenant consists
of the entire 27th floor of the Building, substantially as shown on the floor
plan attached hereto as Exhibit B and made a part hereof. Landlord and Tenant
hereby covenant and agree that the Premises shall be deemed to contain 17,625
rentable square feet. Landlord hereby grants to Tenant the non-exclusive right
to use, in common with others, the public areas of the Building to the extent
required for access to the Premises or use of the Premises for general and
executive offices, including, without limitation, common hallways on the floor
on which the Premises are located, stairways, restrooms on the floor on which
the Premises are located, and the Building lobby, subject to the terms,
covenants, provisions and conditions of this Lease.
1.03. The term of this Lease (a) shall commence on the Commencement Date
(as defined in Section 1.05 hereof) and (b) shall end at 11:59 p.m. on the last
day of the month in which the ten (10) year, three (3) month anniversary of the
day preceding the Rent Commencement Date occurs (herein called the "Expiration
Date") or on such earlier date upon which the term of this Lease shall expire or
be canceled or terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law.
1.04. The rents shall be and consist of:
(a) fixed rent (herein called "Fixed Rent") for the Premises at the
following rates during the following periods:
(i) FIVE HUNDRED EIGHTY-ONE THOUSAND SIX HUNDRED TWENTY-FIVE
AND 00/100 ($581,625.00) DOLLARS per annum during the
period commencing on the Rent Commencement Date and ending
on the day preceding the fifth (5th) anniversary of the
Rent Commencement Date; and
(ii) SIX HUNDRED THIRTY-FOUR THOUSAND FIVE HUNDRED AND 00/100
DOLLARS ($634,500.00) per annum during the period
commencing on the fifth (5th) anniversary of the Rent
Commencement Date ending on the Expiration Date, which
Fixed Rent shall be payable in equal monthly installments
in advance on the first day of each and every calendar
month during the term of this Lease, except for the first
installment of Fixed Rent (i.e. $48,468.75) shall be paid
by Tenant upon the execution of this Lease; and
(b) additional rent (herein called "Additional Charges") consisting
of Tax Payments (hereinafter defined), Operating Payments
(hereinafter defined), charges for electricity furnished to
Tenant and all other sums of money as shall become due from and
payable by Xxxxxx to Landlord hereunder;
all to be paid in lawful money of the United States to Landlord at its office,
or such other place, or to Landlord's agent and at such other place, as Landlord
shall designate by notice to Tenant.
1.05. The "Commencement Date" shall be the earlier to occur of: (i) the
date on which "Landlord's Work" (as such term is defined in Section 2.01(a)
hereof) shall be "Substantially Completed" (as such term is defined in Section
2.01(c) hereof) or shall be deemed to be Substantially Completed pursuant to the
provisions of Section 2.01(g) hereof, or (ii) the date Tenant or anyone claiming
under or through Tenant, first occupies the Premises, or any part thereof, for
the preparation of the Premises for Tenant's occupancy or for the conduct of its
business or for any other purpose. Tenant and Landlord shall, upon the demand of
either Tenant or Landlord, execute, acknowledge and deliver an instrument in
form reasonably satisfactory to Landlord confirming the Commencement Date and
Expiration Date of this Lease; provided, however, that the failure of Tenant or
Landlord to execute, acknowledge and deliver such instrument shall not affect in
any manner whatsoever the validity of the Commencement Date, as determined
pursuant to the first sentence of this Section 1.05. Notwithstanding anything to
the contrary contained herein, Landlord agrees to allow Xxxxxx (and its
contractors and design consultants) access to the Premises upon reasonable
advance notice to Landlord prior to the Commencement Date to the extent
necessary for the sole purpose of taking measurements and preparing plans in
connection with any alterations or fixtures to be installed by Tenant in the
Premises, subject to the provisions of this Lease and provided that such access
by Tenant will not interfere with or delay the Substantial Completion of
Landlord's Work. In connection with such
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access. Tenant agrees (i) to cease promptly upon request by Landlord any
activity or work which, in Xxxxxxxx's good faith judgment, shall interfere with
or delay Landlord's prosecution or completion of Landlord's Work; (ii) that
Tenant shall comply promptly with all procedures and regulations reasonably
prescribed by Landlord for coordinating such work and activities with any other
activity or work in the Premises or the Building; (iii) that Tenant and its
contractors shall work harmoniously with the contractors and subcontractors
performing Landlord's Work, (iv) that such access shall be at the sole risk of
Tenant and shall be deemed to be a license on all of the same terms and
conditions contained in this Lease other than the obligation of pay Fixed Rent
or recurring Additional Charges payable in connection with Articles 3 or 14
hereof; (v) that prior to exercising such right, Tenant shall deliver to
Landlord the policies of insurance required by this Lease; (vi) that Tenant's
indemnity set forth in Article 18 of this Lease shall be effective and (vii)
that to the extent that any such access causes actual delay in the Substantial
Completion of Landlord's Work, such delay shall be deemed to be a Tenant Delay.
1.06. Tenant shall have no obligation to pay any Fixed Rent and
Additional Charges hereunder during the period commencing on the Commencement
Date and ending on the day immediately preceding the Rent Commencement Date.
Tenant covenants and agrees to pay Fixed Rent and Additional Charges promptly
when due without notice or demand therefor and without any abatement, deduction
or setoff for any reason whatsoever, except as may be expressly provided in this
Lease. Unless otherwise instructed by Landlord, Fixed Rent and Additional
Charges shall be paid by good and sufficient check (subject to collection) drawn
on a New York City bank which is a member of the New York Clearing House
Association or a successor thereto.
1.07. If the Rent Commencement Date or the Expiration Date occurs on
a day other than the first day of a calendar month (in the case of the Rent
Commencement Date) or the last day of a calendar month (in the case of the
Expiration Date), the Fixed Rent and Additional Charges for the partial calendar
month in which the Rent Commencement Date or the Expiration Date, as the case
may be, occurs shall be prorated. The Fixed Rent for any partial calendar month
in which the Rent Commencement Date occurs shall be paid on the Rent
Commencement Date.
1.08. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided.
1.09. Any apportionments or prorations of Fixed Rent or Additional
Charges to be made under this Lease shall be computed on the basis of a 360-day
year (based on 12 months of 30 days each).
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1.10. If any of the Fixed Rent or Additional Charges payable under
the terms and provisions of this Lease shall be or become uncollectible, reduced
or required to be refunded because of any act or law enacted by a governmental
authority, Tenant shall enter into such agreement(s) and take such other steps
(without additional expense to Tenant) as Landlord may reasonably request and as
may be legally permissible to permit Landlord to collect the maximum rents which
from time to time during the continuance of such legal rent restriction may be
legally permissible (but not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction, (a) the Fixed
Rent and/or Additional Charges shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination, and (b) Tenant shall pay to Landlord promptly upon being billed, to
the maximum extent legally permissible, an amount equal to (i) the Fixed Rent
and/or Additional Charges which would have been paid pursuant to this Lease but
for such legal rent restriction less (ii) the rents paid by Tenant during the
period such legal rent restriction was in effect.
1.11. Additional Charges shall be deemed to be rent and Tenant's
failure to pay Additional Charges shall be considered a failure to pay Fixed
Rent hereunder and Landlord shall be entitled to all the rights and remedies
provided herein or by law for a default in the payment of Additional Charges as
for a default in the payment of Fixed Rent (notwithstanding the fact that Tenant
may not then also be in default in the payment of Fixed Rent).
1.12. Notwithstanding the provisions of Section 1.04 hereof, and
provided Tenant is not in default hereunder beyond any applicable notice or cure
period, the Fixed Rent shall be abated for the ninety (90) day period commencing
on the Commencement Date and ending on the day eighty-nine (89) days thereafter
(the "Rent Abatement Period"). The date immediately following the expiration of
such Rent Abatement Period is sometimes referred to herein as the "Rent
Commencement Date".
ARTICLE 2
Delivery and Use of Premises
----------------------------
2.01. (a) For purposes of this Section 2.01, the following terms
shall have the following meanings:
"Base Building Work" shall mean:
(i) demolition of the existing tenant improvements located in the
Premises;
(ii) delivery of an ACP-5 to Tenant;
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(iii) performance of the following work in the existing core
restrooms located on the twenty-seventh (27th) floor of the
Building: (a) repair or replacement of broken or missing light
fixtures, (b) repair or replacement of damaged or missing
ceiling tiles, (c) repair or replacement of broken fixtures,
(d) repair or replacement of broken or damaged toilet
partitions, and (e) repair or replacement of worn flush valves,
toilet seats and handles and flushometers;
(iv) installation of one (1) Building Standard, unisex, disabled
accessible toilet facility containing one (1) sink and one (1)
water closet, on the twenty-seventh (27th) floor of the
Building in the location as shown on Exhibit C-1 annexed
hereto, which shall comply with the ADA (as hereinafter
defined);
(v) performance of such work necessary to connect the main HVAC
source duct to the Premises;
(vi) performance of such work necessary to connect the main
sprinkler loop to the Premises;
(vii) performance of such work necessary to provide electricity with
an average capacity of six (6) xxxxx per usable square foot
demand load to a disconnect switch in the Premises; and
(viii) delivery of the Premises in "broom" clean condition.
"Extra Work" shall mean any work or material requested by Tenant that
is in excess of the quantity of such work or material provided for in the Work
Letter (as such term is hereinafter defined) or is set forth in the Work Letter
as an item to be installed at Tenant's option or at Tenant's cost and expense.
"Extra Work Costs" shall mean the actual costs incurred by Landlord in
connection with the performance of Extra Work, plus Landlord's Profit and
Overhead.
"Landlord's Profit and Overhead" shall mean, for purposes of computing
Extra Work Costs and Special Work Costs either:
(x) if Landlord is performing the Extra Work or Special Work in question,
profit in the amount of ten (10%) percent of the cost of labor and
materials, and overhead in the amount of ten (10%) percent of the cost
of labor and materials, or
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(y) if a contractor or subcontractor is performing the Extra Work or
Special Work in question, profit in the amount of five (5%) percent of
the cost of labor and materials, and overhead in the amount of five
(5%) percent of the cost of labor and materials.
"Landlord's Work" shall mean the aggregate of the Base Building Work
and Tenant's Work.
"Long-Lead Work" shall mean (i) work which requires the performance of
work, labor or services or the application of skills not generally utilized in
the performance of tenant improvement work for normal office occupancy in
comparable office buildings in downtown Manhattan or (ii) any item of work,
materials and/or equipment, including, without limitation, cooling towers and
related equipment, emergency generators and related equipment, electrical switch
gear and related equipment, furnishings, cafeteria equipment, and U.P.S.
systems, which requires a lead time of more than sixty (60) days prior to the
date such item is required on site.
"Special Work" shall mean any work or material of a quality or nature
that is not specified in the Work Letter, including, without limitation, Long-
Lead Work and Tenant Change Orders.
"Special Work Costs" shall mean the actual costs incurred by Landlord
in connection with the performance of Special Work plus Landlord's Profit and
Overhead.
"Tenant Debits" shall mean the aggregate of all Extra Work Costs and
Special Work Costs.
"Tenant Change Orders" shall mean changes to the Tenant Work Final
Plans initiated by Xxxxxx.
"Tenant's Contribution" shall mean the aggregate amount of Tenant
Debits.
"Tenant Delay" shall have the meaning provided in Section 2.01(g)
hereof.
"Tenant's Work" shall mean all work shown on the Tenant Work Final
Plans, as such Tenant Work Final Plans may be modified from time to time
pursuant to the provisions of this Section 2.01.
"Work Letter" shall mean the work letter and design layout plans
annexed hereto and made a part hereof as Exhibit C.
(b) (i) Except as expressly provided to the contrary in
this Section 2.01, Tenant shall accept the Premises "as is" on the Commencement
Date and Landlord
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shall not thereafter be required to perform any work or install any fixtures or
equipment to make the Building or the Premises ready or suitable for Tenant's
use or occupancy. Notwithstanding the foregoing, Landlord shall perform the Base
Building Work in a manner using materials of a manufacture, material, design,
capacity and finish and otherwise in a manner selected by Landlord as the
standard of the Building ("Building Standard") and subject to the provisions of
this Section 2.01.
(ii) In addition to the Base Building Work, Landlord
agrees to perform, at Landlord's sole cost and expense, Xxxxxx's Work (which
will be performed in a Building Standard manner, except as otherwise set forth
in the Work Letter, and subject to the provisions of this Section 2.01 and
Exhibit C attached hereto and made a part hereof), but only to the extent that
the Tenant Work Final Plans do not call for (i) Special Work and/or (ii) Extra
Work. Landlord further agrees to perform Tenant's Work to the extent that the
Tenant Work Final Plans do call for (i) Special Work and/or (ii) Extra Work, but
only to the extent that Tenant agrees to (x) be responsible for any Tenant Delay
in connection with such Special Work and/or Extra Work and (y) reimburse
Landlord for (i) the Special Work Costs in connection with such Special Work
and/or (ii) the Extra Work Costs in connection with such Extra Work, in
accordance with the terms hereinafter set forth.
(c) Landlord's Work shall be deemed "Substantially Completed"
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment, or decoration remain (including items set forth on the
punchlist, as such term is hereinafter defined) to be performed, the non-
completion of which do not materially interfere with Xxxxxx's use of the
Premises, subject to Landlord's obligation to complete Landlord's Work at
Landlord's cost and expense.
(d) Tenant shall, at its sole cost and expense, cause (i) a
professionally recognized architect, reasonably acceptable to Landlord, to
prepare a scaled and dimensioned signed and sealed set of working drawings and
specifications for Tenant's Work, and (ii) a professional engineer licensed in
New York State, reasonably acceptable to Landlord, to prepare all mechanical,
electrical, plumbing and structural signed and sealed drawings that may be
required in connection with Xxxxxx's Work. All such working drawings and
specifications are herein called the "Tenant Work Final Plans" and shall reflect
the scope and quantity of work set forth in the Work Letter. Tenant shall submit
the Tenant Work Final Plans for Landlord's approval on or before the date
occurring twenty (20) days after Landlord delivers a fully-executed counterpart
of this Lease to Tenant (the "Final Plan Date"). Landlord shall, within ten (10)
Business Days after receipt of the Tenant Work Final Plans, notify Tenant of its
approval or disapproval thereof and, if Landlord disapproves all or any portion
of the Tenant Work Final Plans, then (i) such notice shall specify in reasonable
detail the grounds for such disapproval, and (ii) Tenant shall revise all or any
such portion of the Tenant Work Final Plans in accordance with Landlord's
objections thereto and resubmit such revised portion(s) of the Tenant Work Final
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Plans to Landlord within five (5) Business Days after Xxxxxx's receipt of
Landlord's notice of disapproval of all or any portion of the Tenant Work Final
Plans.
(e) At the time Landlord notifies Tenant of its approval of
the Tenant Work Final Plans, Landlord shall submit a statement, in reasonable
detail, setting forth all of the Special Work Costs and Extra Work Costs, if
any, based on the Tenant Work Final Plans. With respect to any work for which a
Tenant's Contribution is due, Landlord shall invoice Tenant on a monthly basis,
in an amount equal to (i) the total amount of Tenant's Contribution due with
respect to such work, multiplied by (ii) the percentage of such work that has
been completed, less (iii) any payments theretofore made by Tenant with respect
to such work.
(f) 1. In the event that Xxxxxx wishes to make any changes
to the Tenant Work Final Plans including, without limitation, substitutions,
additions or deletions of materials. Tenant shall so notify Landlord and
Landlord shall not unreasonably withhold or delay its consent to such changes,
subject to the provisions of Article 11 hereof. Any objection by Landlord shall
be in writing and shall set forth in reasonable detail the grounds for such
objection. Landlord shall not be deemed to be unreasonable in refusing to
consent to any changes to the Tenant Work Final Plans proposed by Tenant to the
extent that the same would require work or materials which do not comply with
applicable Legal Requirements or which would adversely affect the proper
functioning of Building systems. Changes to the Tenant Work Final Plans shall
constitute Tenant Change Orders.
2. Subject to (i) Tenant's right to withdraw a Tenant
Change Order and (ii) the provisions of Paragraph 3 of this Section 2.01(f),
the submission by Tenant to Landlord of a Tenant Change Order shall constitute
Tenant's agreement to be liable for all Extra Work Costs, Special Work Costs and
delays in the Substantial Completion of Landlord's Work (which delays shall
constitute Tenant Delay) resulting from such Tenant Change Order, and to pay for
such costs on a monthly basis, in an amount equal to (i) the total amount of
such costs due with respect to such work, multiplied by (ii) the percentage of
such work that has been completed, less (iii) any payments theretofore made by
Tenant with respect to such work. Xxxxxxxx's notice to Tenant approving a Tenant
Change Order shall indicate (x) the amount of the Tenant Debit, if any,
associated with such Tenant Change Order and (y) the number of days of Tenant
Delay, if any, associated with such Tenant Change Order. Landlord shall use all
commercially reasonable efforts to obtain any work which is the subject of a
Tenant Change Order at a commercially reasonable cost to Tenant. Xxxxxxxx's
version of any Tenant Debit shall, subject to the provisions of Paragraph 3 of
this Section 2.01(f), be controlling. Xxxxxxxx's determination of the number of
days, if any, of Tenant Delay shall (i) be made in Landlord's reasonable
discretion and (ii) be controlling.
3. (A) In the event that Xxxxxxxx's notice approving
a Tenant Change Order (herein called "Landlord's Change Order Approval Notice")
---------------------------------------
claims a Tenant Debit and/or Tenant Delay in connection with such Tenant Change
Order, within five (5)
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days after Xxxxxx's receipt of such Landlord's Change Order Approval Notice,
Tenant shall give Landlord either (i) a written notice electing to withdraw its
request for such Tenant Change Order, (ii) a written notice electing to proceed
with such Tenant Change Order, in which event Tenant shall be deemed to have
accepted Landlord's determination as to any Tenant Debit or Tenant Delay in
connection with such Tenant Change Order, or (iii) a written notice (herein
called "Tenant's Change Order Dispute Right Notice") electing to proceed with
------------------------------------------
such Tenant Change Order, subject to Tenant's right to dispute Landlord's
determination as to the amount of the Tenant Debit set forth in Landlord's
Change Order Approval Notice in accordance with the procedures set forth in
Paragraph 3(B) of this Section 2.01(f), in which event (i) such Tenant's Change
Order Dispute Right Notice shall state Tenant's commercially reasonable opinion
as to the amount of the Tenant Debit and (ii) Tenant shall be deemed to have
accepted Landlord's determination as to any Tenant Delay in connection with such
Tenant Change Order. In the event that Xxxxxx does not respond to any Landlord's
Change Order Approval Notice within five (5) days after Xxxxxx's receipt
thereof, Xxxxxx will be deemed to have elected to withdraw its request for such
Tenant Change Order.
(B) In the event that Tenant shall dispute
Landlord's determination as to the amount of any Tenant Debit set forth in any
Landlord's Change Order Approval Notice, provided that Tenant shall have given
Landlord a Tenant's Change Order Dispute Right Notice with respect to such
dispute in accordance with the provisions of Paragraph 3(A) of this Section
2.01(f), Tenant shall have the right to submit such dispute to arbitration upon
further notice given to Landlord following the Substantial Completion of
Landlord's Work, setting forth the Tenant Debits which are in dispute at such
time and which Tenant elects to have determined by arbitration, provided that
Xxxxxx's dispute with respect to all the Tenant Debits included in Tenant's
notice shall be resolved in a single arbitration proceeding. Such arbitration
proceeding shall be conducted in New York City in accordance with the then-
prevailing Commercial Arbitration Rules of the American Arbitration Association
(or any successor organization) and the provisions of this Lease. The decision
and award of the arbitrator(s) shall be in writing, shall be final and
conclusive, and counterpart copies thereof shall be delivered to each of the
parties. In rendering such decision and awards, the arbitrator(s) 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 arbitrator(s) so rendered in any court
of competent jurisdiction. Any arbitrator acting under this Paragraph 3(B) of
this Section 2.0 1(f) shall be an independent licensed professional architect
with at least ten (10) years experience in the design and construction of office
space in first-class office buildings in New York County. If such arbitration
shall result in a determination that Tenant is entitled to a refund of any costs
theretofore paid by Tenant in connection with any Tenant Change Order, Landlord
shall, at Landlord's option, either promptly pay such amount to Tenant or credit
such amount against future installments of Fixed Rent and Additional Charges
next coming due hereunder.
(g) To the extent Landlord shall be actually delayed in
Substantially Completing Landlord's Work, in either case, as a result of: (i)
Tenant's failure to submit the
9
Tenant Work Final Plans for Landlord's approval on or before the Final Plan
Date, (ii) Tenant's failure to revise the Tenant Work Final Plans in accordance
with Landlord's objections thereto within five (5) Business Days after Xxxxxx's
receipt of Xxxxxxxx's notice of disapproval thereof, (iii) Tenant's failure to
adequately revise the Tenant Work Final Plans in accordance with Landlord's
objections thereto, thus requiring Landlord to provide Tenant with one or more
notices of objection to the Tenant Work Final Plans, (iv) Tenant's delay, after
the expiration of a reasonable period, in submitting information reasonably
requested by Landlord or Xxxxxxxx's contractor or required to be submitted
hereunder by Xxxxxx, (v) Tenant Change Orders, (vi) any request by Tenant that
Landlord delay the completion of any portion of Landlord's Work, (vii) the
inclusion in the Tenant Work Final Plans, as same may be modified in accordance
with the terms hereof from time to time, of any work that is Long-Lead Work,
Special Work and/or Extra Work, and/or (viii) any negligent or wrongful act of
Tenant or its officers, agents, servants or contractors, then any such delay
shall be deemed to be a "Tenant Delay", and Landlord's Work shall be deemed to
have been Substantially Completed on the date on which such Landlord's Work
would have been Substantially Completed but for such Tenant Delay. If a delay in
the Substantial Completion of Landlord's Work or any substantial portion of such
delay is the result of a strike or other labor trouble, fire or other casualty,
governmental preemption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, or any other cause beyond Landlord's reasonable control,
and such delay would not have occurred but for a delay described in the
preceding sentence of this Section 2.01(g), such delay shall be deemed added to
the Tenant Delay hereinbefore described.
(h) Landlord shall permit a representative of Tenant to
inspect the progress of the performance of Landlord's Work at intervals
appropriate to the state of construction, to familiarize Tenant with the
progress of Landlord's Work.
(i) Landlord shall, in accordance with the provisions of this
Section 2.01 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 ten (10) days thereafter, at either party's request therefor, 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 as aforesaid.
(j) Subject to the terms and provisions of Section 2.01(c)
hereof, if and when Tenant shall take actual possession of the Premises, it
shall be conclusively presumed that the same were in satisfactory condition as
of the date of such taking of possession, unless within ten (10) Business Days
after such date Tenant shall give Landlord notice (hereinafter called the
"punchlist") specifying the respects in which Xxxxxxxx's Work was not
satisfactorily performed or completed. With respect to latent defects not
visually discoverable by Tenant in such walk-through inspection of the Premises,
Tenant shall give Landlord notice thereof within forty-five (45) days after the
Commencement Date specifying the items which were not in
10
satisfactory condition, which items would not be disclosed in such walk-through
inspection of the Premises. Xxxxxxxx agrees to diligently complete all items set
forth in the punchlist as soon as reasonably practicable, at Xxxxxxxx's sole
cost and expense, provided that in no event shall Landlord be required to
perform the same on an overtime or premium-pay basis.
(k) (i) If for any reason whatsoever, Landlord shall be
unable to deliver possession of the Premises on the Commencement Date, then
notwithstanding anything to the contrary hereinbefore contained, the term of
this Lease shall commence on, and the Commencement Date shall be, the date on
which Landlord is able to so deliver possession of the Premises. If Landlord
does not cause the Commencement Date to occur on or prior to the day (the
"Outside Date") one hundred eighty (180) days after the date that Tenant has
provided Landlord with the "Tenant Work Final Plans" in form acceptable to and
approved by Landlord and in form acceptable for filing with the Buildings
Department of the City of New York (which date shall be extended by one day for
each day that Landlord is prevented from delivering possession of the Premises
to Tenant by reason of Force Majeure Causes or Tenant Delay), the length of the
Rent Abatement Period (as such term is defined in Section 1.12 hereof) shall be
increased by one day by each day in the period commencing on the Outside Date
and ending on the Commencement Date [by way of example, in the event that the
Commencement Date shall occur on the date which is five (5) days following the
Outside Date (as the same may be extended as hereinabove set forth), the Rent
Abatement Period shall be deemed to be the ninety-five (95) day period
commencing on the Commencement Date and ending on the day ninety-four (94) days
thereafter]. Landlord shall not be subject to any liability for failure to give
possession on the date that Landlord's Work is Substantially Completed and the
validity of this Lease shall not be impaired under such circumstances, nor the
same be construed in any way to extend the term of this Lease.
(ii) Notwithstanding anything contained in this
Section 2.01(k) to the contrary, in the event that the Commencement Date shall
not have occurred on or before the date that is two hundred seventy (270) days
after the date that Tenant has provided Landlord with the Tenant Work Final
Plans in form acceptable to and approved by Landlord and in form acceptable for
filing with the Buildings Department of the City of New York, which date shall
be extended by one day for each day that Landlord is prevented from delivering
possession of the Premises to Tenant by reason of Force Majeure Causes or Tenant
Delay (such date, as same may be so extended, is herein called the "Rescission
Date"), then Landlord shall not be subject to any liability for failure to give
possession on such date and the validity of this Lease shall not be impaired
under such circumstances, nor the same be construed in any way to extend the
term of this Lease, but Tenant shall have the right to terminate this Lease by
written notice (the "Rescission Notice") given to Landlord within five (5) days
after the Rescission Date (time being of the essence with respect to the giving
of the Rescission Notice within such five (5) day period), and such termination
shall be effective on the fifteenth (15th) day after the date that Tenant shall
give the Rescission Notice to Landlord (such date being herein called the
"Termination Date"), unless the Commencement Date shall occur before the
Termination Date.
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If Tenant fails to give the Rescission Notice to Landlord within such five (5)
day period after the Rescission Date, the provisions of this clause (ii) shall
be null and void and Tenant shall have no further right to terminate this Lease.
If Tenant exercises such option to terminate this Lease, then upon such
termination, neither Landlord nor Tenant shall have any further obligations to
the other hereunder except that Landlord shall promptly thereafter return to
Tenant all rent theretofore paid by Tenant to Landlord hereunder.
(iii) Tenant hereby waives any right to rescind this
Lease under the provisions of Section 223(a) of the Real Property Law of the
State of New York, and agrees that the provisions of this Section 2.01(k) are
intended to constitute "an express provision to the contrary" within the meaning
of said Section 223(a).
2.02. Tenant shall use and occupy the Premises for general and
executive offices, and for no other purpose.
2.03. If any governmental license or permit (other than a Certificate
of Occupancy for the entire Building) shall be required for the proper and
lawful conduct of Tenant's business in the Premises or any part thereof, Tenant,
at its expense, shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord for inspection. Tenant shall at all times
comply with the terms and conditions of each such license or permit.
Additionally, should Alterations, Xxxxxx's use of the Premises for other than
executive and general offices or Tenant's use of any portion of the Premises for
a public assembly use require any modification or amendment of any Certificate
of Occupancy for the Building, Tenant shall, at its expense, take all actions
reasonably requested by Landlord in order to procure any such modification or
amendment and shall reimburse Landlord (as Additional Charges) for all
reasonable costs and expenses Landlord incurs in effecting said modifications or
amendments. The foregoing provisions are not intended to be deemed Landlord's
consent to any Alterations or to a use of the Premises not otherwise permitted
hereunder nor to require Landlord to effect such modifications or amendments of
any Certificate of Occupancy.
2.04. Tenant shall not at any time use or occupy the Premises or the
Building, or suffer or permit anyone to use or occupy the Premises, or do
anything in the Premises or the Building, or suffer or permit anything to be
done in, brought into or kept on the Premises, which in any manner (a) violates
the Certificate of Occupancy for the Premises or for the Building; (b) causes or
is liable to cause injury to the Premises or the Building or any equipment,
facilities or systems therein; (c) constitutes a violation of the laws and
requirements of any public authorities or the requirements of insurance bodies,
provided such insurance requirements do not prohibit the use of the Premises for
the purposes permitted under Section 2.02 hereof; (d) impairs the character,
reputation or appearance of the Building as a first-class office building; (e)
impairs the proper and economic maintenance, operation and repair of the
Building and/or its equipment, facilities or systems; (f) annoys or
inconveniences other tenants or occupants of the Building; (g) constitutes a
nuisance, public or private; (h) makes unobtainable from reputable insurance
12
companies authorized to do business in New York State all-risk property
insurance, or liability, elevator, boiler or other insurance at standard rates
required to be furnished by Landlord under the terms of any mortgages covering
the Premises; or (i) discharges objectionable fumes, vapors or odors into the
Building's flues or vents or otherwise.
2.05. Tenant shall not use, or suffer or permit anyone to use, the Premises
or any part thereof, for (a) a banking, trust company, or safe deposit business,
(b) a savings bank, a savings and loan association, or a loan company operating
an "off the street" business to the general public at the Premises, (c) the sale
of travelers' checks and/or foreign exchange, (d) a stock brokerage office or
for stock brokerage purposes, (e) a restaurant and/or bar and/or the sale of
confectionery and/or soda and/or beverages and/or sandwiches and/or ice cream
and/or baked goods. (f) the business of photographic reproductions and/or offset
printing (except that Tenant and its permitted assignees, subtenants and
occupants may use part of the Premises for photographic reproductions and/or
offset printing in connection with, either directly or indirectly, its own
business and/or activities), (g) an employment or travel agency, (h) a school or
classroom, (i) medical or psychiatric offices, (j) conduct of an auction, (k)
gambling activities or (1) the conduct of obscene, pornographic or similar
disreputable activities. Further, the Premises may not be used by (i) an agency,
department or bureau of the United States Government, any state or municipality
within the United States or any foreign government, or any political subdivision
of any of them, (ii) any charitable, religious, union or other not-for-profit
organization, or (iii) any tax exempt entity within the meaning of Section
168(j)(4)(A) of the Internal Revenue Code of 1986, as amended, or any successor
or substitute statute, or rule or regulation applicable thereto (as same may be
amended).
ARTICLE 3
Escalations
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3.01. The terms defined below shall for the purposes of this Lease have the
meanings herein specified:
(a) "Base Operating Amount" shall mean the Operating Expenses for the
Base Operating Year.
(b) "Base Operating Year" shall mean the calendar year commencing on
January 1,2000.
(c) "Base Tax" shall mean the amount determined by multiplying (i)
the amount for which the Building and the Land are assessed by the City of New
York for purposes of establishing Taxes to be paid by Landlord for the Tax Year
commencing on
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July 1, 1999, and ending on June 30, 2000, as finally determined, by (ii) the
applicable real property tax rate for the Borough of Manhattan with respect to
such Tax Year.
(d) "Escalation Statement" shall mean a statement setting forth the
amount payable by Tenant for a specified Tax Year or Operating Year (as the case
may be) pursuant to this Article 3.
(e) "Operating Expenses" shall mean all expenses paid or incurred by
Landlord and Landlord's affiliates and/or on their behalf in respect of the
repair, replacement, maintenance, operation and/or security of the Real Property
(hereinafter defined) and the services provided tenants therein, including,
without limitation, (i) salaries, wages, medical, surgical. insurance
(including, without limitation, group life and disability insurance) of
employees of Landlord or Landlord's affiliates and/or the managing agent for the
Building (if any), union and general welfare benefits, pension benefits,
severance and sick day payments, and other fringe benefits of employees of
Landlord and Landlord's affiliates and/or the managing agent for the Building
(if any) and their respective contractors engaged in such repair, replacement,
maintenance, operation and/or security; (ii) payroll taxes, worker's
compensation, uniforms, dry cleaning and related expenses (whether direct or
indirect) for such employees; (iii) the cost of fuel, gas, steam, electricity,
heat, ventilation, air conditioning, chilled and condenser water, water, sewer
and other utilities, together with any taxes and surcharges on, and fees paid in
connection with the calculation and billing of such utilities; (iv) the cost of
painting and/or decorating all areas of the Real Property, excluding, however,
any space contained therein which is demised or to be demised to tenant(s); (v)
the cost of casualty, liability, fidelity, rent and all other insurance
regarding the Real Property and/or any property on, below or above the Real
Property, and the repair, replacement, maintenance, operation and/or security
thereof; (vi) the cost of all supplies, tools, materials and equipment, whether
by purchase or rental, used in the repair, replacement, maintenance, operation
and/or security of the Real Property, and any sales and other taxes thereon;
(vii) the rental value of the Landlord's Building office utilized by the
personnel of either Landlord or Landlord's affiliates, in connection with the
repair, replacement, maintenance, operation and/or security thereof, and all
Building office expenses, such as telephone, utility, stationery and similar
expenses incurred in connection therewith; (viii) the cost of cleaning,
janitorial and security services, including, without limitation, glass cleaning,
snow and ice removal and garbage and waste collection and/or disposal; (ix) the
cost of all interior and exterior landscaping and all temporary exhibitions
located at or within the Real Property; (x) the cost of alterations and
improvements made or installed after the expiration of the Base Operating Year
by reason of the laws and requirements of any public authorities or the
requirements of insurance bodies and all tools and equipment related thereto;
(xi) the cost of all other alterations, repairs, replacements and/or
improvements made or installed after the expiration of the Base Operating Year
by Landlord or Landlord's affiliates, at their respective expense, whether
structural or non-structural, ordinary or extraordinary, foreseen or unforeseen,
and whether or not required by this Lease, and all tools and equipment related
thereto; provided, however, that if under generally accepted accounting
principles consistently applied, any of the costs referred to
14
in clause (x) or this clause (xi) are required to be capitalized, then such
capitalized costs (and, at Landlord's option, any other costs included in
Operating Expenses), together with interest thereon at the Base Rate (as defined
in subsection 35.05(j) hereof) in effect as of December 31 of the year in which
such expenditure is made, shall be amortized or depreciated, as the case may be,
over a period of time which shall be the shorter of: (A) the useful life of the
item in question, as reasonably determined by Landlord; or (B) ten (10) years;
provided however that with respect to any capital improvement and/or any
machinery or equipment which is made or becomes operational, as the case may be,
after the Base Operating Year, and which has the effect of reducing the expenses
which otherwise would be included in Operating Expenses, the amount included in
Operating Expenses in any Operating Year until such improvement and/or machinery
or equipment has been fully amortized or depreciated, as the case may be, shall
be an amount which is the greater of: (X) the amortization or depreciation as
the case may be, of such capital improvement and/or machinery or equipment,
which would have been included in Operating Expenses pursuant to the foregoing
provisions; or (Y) the amount of savings, as reasonably estimated by Landlord,
resulting from the installation and operation of such improvement and/or
machinery or equipment; (xii) management fees, provided, however, that if
Landlord or an affiliate of Landlord is the managing agent of the Building then
the annual management fee shall be equal to two and one-half (2-1/2%) percent of
rents and additional rents payable by those tenants of the Building which are
leasing space therein; (xiii) all rents and additional rents (other than Taxes)
under Superior Leases (as defined in Section 5.01 hereof); (xiv) costs relating
to the elevators and escalators, (xv) all reasonable costs and expenses of
legal, bookkeeping, accounting and other professional and consulting services
incurred in connection with the operation, and management of the Real Property
except as hereinafter excluded; (xvi) fees, dues and other contributions paid by
or on behalf of Landlord or Landlord's affiliates to civic or other real estate
organizations provided same do not exceed the level customarily paid by owners
of first-class office buildings in Downtown Manhattan comparable to the
Building; and (xvii) all other fees, costs, charges and expenses properly
allocable to the repair, replacement, maintenance, operation and/or security of
the Real Property, in accordance with then prevailing customs and practices of
the real estate industry in the Borough of Manhattan, City of New York. The term
"Operating Expenses", as used and defined under this subsection (d), shall not,
however, include the following items: (1) interest on and amortization of debts
(and costs and charges incurred in connection with such financings); (2) the
cost of tenant improvements made for new or existing tenant(s) of the Building
or allowances in lieu thereof; (3) brokerage commissions; (4) financing or
refinancing costs; (5) Taxes; (6) salaries and fringe benefits for officers,
employees and executives above the grade of Building Manager; (7) the cost of
any items to the extent Landlord is actually reimbursed by proceeds of insurance
or condemnation, warranties or guarantees, or otherwise compensated, including
direct reimbursement by any tenant (including Tenant) for specific services
performed for such tenant (other than through Operating Payments or comparable
payments made pursuant to operating expense escalation provisions of a tenant's
lease); (8) the costs of work performed or services provided for other tenants
of the Building to the extent the same exceed both the level of work or services
required to be performed or provided to other tenants of the Building and to
Tenant under this Lease; (9) depreciation (except
15
as provided above in this Section 3.01(e); (10) costs arising from Landlord's
charitable or political contributions; (11) the costs of repairs or restoration
necessitated by casualty or condemnation; (12) the costs of alterations and
improvements made to cure conditions existing on the date of this Lease, which
conditions, as of the date of this Lease, constitute a violation of any laws and
requirements of any public authorities or the requirements of insurance bodies
(hereinafter called "Legal Requirements") currently in effect and applicable to
the Building, provided, however, that costs to comply with any reinterpretation,
amendment or modification of such Legal Requirements which are enacted after the
date of this Lease shall be included in Operating Expenses; (13) attorneys'
fees, leasing commissions, advertising expenses and other professional expenses
to the extent incurred in connection with the negotiation and preparation of
leases in the Building; (14) rents and additional rents under any ground lease
or Superior Lease (as defined in Section 5.01 hereof); (15) attorneys' fees or
accountants' or other consultants' fees to the extent incurred in connection
with disputes with Tenant or other tenants or occupants of the Building (other
than disputes with tenants who are disturbing other tenants in the Building by
reason of such tenant's breach of its lease and except as specifically provided
in this Lease); (16) the cost of Landlord's general administrative and overhead
expenses; and (17) capital expenditures other than those which are incurred
after the expiration of the Base Operating Year and which (i) are occasioned by
the necessity of compliance with Legal Requirements, (ii) are reasonably
intended to reduce Operating Expenses, (iii) relate to replacements or
alterations or improvements (hereinafter collectively called "replacement or
replacements") made in lieu of repairs when such replacement is reasonably
necessary in accordance with sound management and operating principles,
notwithstanding that the replacement item is of superior quality, design or
utility to the item being replaced, or (iv) relate to changes or improvements
made to the Building systems (such as the installation of remote-operated
security cameras and monitors), which changes or improvements are made to
upgrade the Building systems to the then-current standard of other first-class
office buildings similar to the Building. No item of expense shall be counted
more than once either as an inclusion in or an exclusion from Operating
Expenses, and any expense which should be allocated, in accordance with
generally accepted accounting principles, between the Land and the Building, on
the one hand, and any other property owned by Landlord or an affiliate of
Landlord, on the other hand, shall be properly allocated in accordance
therewith.
(f) "Operating Year" shall mean each calendar year in which occurs
any part of the term of this Lease following the end of the Base Operating Year.
(g) "Real Property" shall mean, collectively, the Building (together
with all personal property located therein and all fixtures, facilities,
machinery and equipment used in the operation thereof, including, but not
limited to, all cables, fans, pumps, boilers, heating and cooling equipment,
wiring and electrical fixtures and metering, control and distribution equipment,
component parts of the HVAC, electrical, plumbing, elevator and any life or
property protection systems (including, without limitation, sprinkler systems),
window washing equipment and snow removal equipment), the Land, any property
beneath the Land, the
16
curbs, sidewalks and plazas on and/or immediately adjoining the Land, and all
easements, air rights, development rights and other appurtenances to the
Building or the Land or both the Land and the Building.
(h) "Taxes" shall mean (A) all real estate and personal property
taxes, vault taxes, assessments and special assessments, sewer rents and water
charges, governmental levies, municipal taxes, county taxes, business
improvement district assessments, special ad valorem levies, and any other
governmental charges levied, assessed or imposed upon or with respect to the
Real Property, by any federal, state, municipal or other governments or
governmental bodies or authorities, and (B) all taxes assessed or imposed with
respect to the rentals payable to Landlord other than general income and gross
receipts taxes. If at any time during the term of this Lease the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of or
as an addition to or as a substitute for, the whole or any part of such taxes,
assessments, charges and levies now imposed on real estate, there shall be
levied, assessed or imposed (x) a tax, assessment, levy, imposition, license fee
or charge wholly or partially as a capital levy or otherwise on the rents
received therefrom, or (y) any other such additional or substitute tax,
assessment, levy, imposition, fee or charge, then all such taxes, assessments,
levies, impositions, fees or charges or the part thereof so measured or based,
to the extent imposed in lieu of, or as an addition to or as a substitute for,
the whole or any part of such taxes, assessments, charges or levies, shall be
deemed to be included within the term "Taxes" for the purposes hereof. The term
"Taxes" shall, notwithstanding anything to the contrary contained herein,
exclude (i) any of the foregoing which are assessed or imposed with respect to
any asset of Landlord other than the Real Property or (ii) any net income,
franchise or "value added" tax, inheritance tax or estate tax imposed or
constituting a lien upon Landlord or all or any part of the Land or Building,
except to the extent that any of the foregoing are hereafter assessed against
owners or lessors of real property in their capacity as such (as opposed to any
such taxes which are of general applicability).
(i) "Tax Year" shall mean each period of twelve months, commencing on
the first day of July of each such period, in which occurs any part of the term
of this Lease, or such other period of twelve months occurring during the term
of this Lease as hereafter may be duly adopted as the fiscal year for real
estate tax purposes of the City of New York.
(j) "Tenant's Share" shall mean 1.76 (1.76%) percent.
3.02. (a) Tenant shall pay as Additional Charges for each Tax Year a sum
(herein called a "Tax Payment") equal to Tenant's Share of the amount by which
the Taxes for such Tax Year exceed the amount of the Base Tax. Any amount due to
Landlord as a result of the preceding sentence shall be due and payable within
thirty (30) days after Landlord shall have submitted to Tenant an Escalation
Statement with respect thereto, together with copies of paid tax bills.
Commencing on July 1, 2000, Tenant shall also make payments to Landlord on
account of estimated increases in Taxes towards the following Tax Year upon
submission of an
17
Escalation Statement and copies of paid tax bills for the then current Tax Year.
The payments shall be made in advance, as Additional Charges, in equal monthly
installments on the first day of each month during the term hereof. The
installments for each month of each Tax Year shall be equal to Tenant's Share of
the difference between (x) the Taxes for the current Tax Year minus (y) the
amount of the Base Tax, divided into twelve (12) equal installments. Thus, for
example, if the amount of the Base Tax is $4.00 per rentable square foot and the
Taxes for the Tax Year commencing on July 1, 1999 are $4.12 per rentable square
foot:
(i) Pursuant to the first sentence of this Section 3.02(a), Tenant
will make a payment of $0.12 per rentable square foot (or two
or more equal payments aggregating $0.12 per rentable square
foot if Landlord pays Taxes in two or more equal installments)
to Landlord in respect of the Tax Year commencing on July 1.
2000 within thirty (30) days after submission to Tenant of an
Escalation Statement and copies of paid tax bills for such Tax
Year; and
(ii) Pursuant to the third through fifth sentences of this Section
3.02(a), commencing on July 1, 2000, Tenant will make estimated
monthly payments of $0.01 per rentable square foot to Landlord
in respect of the Tax Year commencing on July 1, 2001.
In the event the total amount paid by Tenant for any Tax Year shall be less than
the actual amount due from Tenant based on the actual tax bills paid by, for or
on behalf of Landlord, Tenant will pay to Landlord in a lump sum that amount by
which the actual amount due from Tenant exceeds the total amount of Tenant's
monthly payments within 30 days from the date Landlord presents such bills to
Tenant. If the total amount of monthly payments paid by Tenant exceeds the
actual amount due from Tenant based on the actual tax bills, then Landlord shall
credit the amount of such excess against the next installment of Fixed Rent due
under this Lease, provided that if Tenant is in default hereunder at such time
(after notice and the expiration of any applicable cure periods), Tenant shall
not receive such credit until such time as such default has been cured by
Tenant.
(b) Tenant shall pay to Landlord upon demand, as Additional Charges,
Xxxxxx's Share of any expenses incurred by Landlord (including, without
limitation, appraisal, accounting, consulting and legal fees and disbursements)
in contesting Taxes or the assessed valuation of all or any part of the Land
and/or the Building or in seeking or collecting any refund of Taxes or in filing
for the benefits and/or complying with the terms of any program providing for a
tax abatement, refund or reduction, including, without limitation, the
Industrial and Commercial Incentive Program provided for in Title 2-D of Article
4 of the New York Real Property Tax Law (the foregoing expenses being herein
collectively called "Tax Reduction Expenses").
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(c) If Landlord shall receive a refund of Taxes (herein called a "Tax
Refund") for any Tax Year, Landlord shall permit Tenant to credit against
subsequent payments under this Section 3.02 Tenant's Share of the Tax Refund,
after deducting from the Tax Refund all Tax Reduction Expenses incurred by
Landlord in obtaining such Tax Refund which have not previously been recovered
by Landlord, but not to exceed Tenant's Tax Payment paid for such Tax Year.
Notwithstanding anything to the contrary contained in this Lease, in the event
that Landlord receives any refund or abatement of Taxes pursuant to (x) Title 4
of Article 4 of the New York Real Property Tax Law (the "Lower Manhattan Plan")
or (y) another tax benefit program for which Landlord or the Building or the
Land may be eligible and under which Landlord is prohibited from paying all or
any portion of such refund or abatement to Tenant and/or Landlord is required to
pay all or any portion of such refund or abatement to specified tenant(s) or
occupant(s) of the Building, then, in such event, (i) Tenant shall not be
entitled to any payment or credit under this Lease in connection with such
refund or abatement (unless Tenant is otherwise entitled to such payment or
credit pursuant to a certificate of abatement issued pursuant to the Lower
Manhattan Plan or a similar certificate or document issued pursuant to such
other program establishing Tenant's entitlement to a portion of such refund or
abatement). and (ii) for purposes of computing Tenant's Tax Payment, there shall
not be deducted from Taxes all or any portion of such refund or abatement.
(d) Nothing contained in this Lease shall obligate Landlord to bring
any application or proceeding seeking a reduction in Taxes or assessed valuation
and, in the event that Landlord shall bring any such application or proceeding,
Landlord shall have the right to settle same on such terms as Landlord shall, in
its sole discretion, deem proper. Tenant, for itself and its immediate and
remote subtenants and successors in interest hereunder, hereby waives, to the
extent permitted by law, any right Tenant may now or in the future have to
protest or contest any Taxes or to bring any application or proceeding seeking a
reduction in Taxes or assessed valuation or otherwise challenging the
determination thereof.
(e) The benefit of any discount for the early payment or prepayment
of Taxes shall accrue solely to the benefit of Landlord and such discount shall
not be subtracted from Taxes.
(f) If the Taxes comprising the Base Tax are reduced as a result of a
certiorari proceeding or otherwise, the Taxes as so reduced shall, for all
purposes be deemed to be the Base Tax and Landlord shall give notice to Tenant
of the amount by which the Tax Payments previously made were less than the Tax
Payments required to be made under this Section 3.02, and Tenant shall pay the
amount of the deficiency in such Tax Payments within twenty (20) days after
demand therefor.
(g) If the real estate tax fiscal year of The City of New York shall
be changed during the term of this Lease, any Taxes for such fiscal year, a part
of which is included within a particular Tax Year and a part of which is not so
included, shall be apportioned on the
19
basis of the number of days in such fiscal year included in the particular Tax
Year for the purpose of making the computations under this Section 3.02.
(h) Tenant shall pay to Landlord upon demand, as Additional Charges,
any occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Xxxxxxxx.
3.03. (a) For each Operating Year, subsequent to the Base Operating Year,
any part of which shall occur during the term of this Lease, Tenant shall pay an
amount (herein called "Operating Payment") equal to the sum of Tenant's Share of
the amount by which the Operating Expenses for such Operating Year exceed the
Operating Expenses for the Base Operating Year.
(b) Landlord shall furnish to Tenant, prior to the commencement of
each Operating Year a written statement setting forth in reasonable detail
Landlord's reasonable estimate of the Operating Payment for such Operating Year.
Tenant shall pay to Landlord on the first day of each month during the Operating
Year in which the Operating Payment will be due, an amount equal to one-twelfth
(1/12th) of Landlord's reasonable estimate of the Operating Payment for such
Operating Year. If, however, Landlord shall not furnish any such estimate for an
Operating Year or if Landlord shall furnish any such estimate for an Operating
Year subsequent to the commencement thereof, then (i) 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 Article 3 in respect of the
last month of the preceding Operating Year; (ii) after such estimate is
furnished to Tenant, Landlord shall give notice to Tenant stating whether the
installments of the Operating Payment previously made for such Operating Year
were greater or less than the installments of the Operating Payment to be made
for the Operating Year in which the Operating Payment will be due in accordance
with such estimate, and (A) if there shall be a deficiency, Tenant shall pay the
amount thereof within ten (10) days after demand therefor, or (B) if there shall
have been an overpayment, Landlord shall within 30 days of such notice refund to
Tenant the amount thereof; and (iii) on the first day of the month following the
month in which such estimate is furnished to Tenant and monthly thereafter
throughout the remainder of such Operating Year Tenant shall pay to Landlord an
amount equal to one-twelfth (1/12th) of the Operating Payment shown on such
estimate. Landlord may, during each Operating Year, furnish to Tenant a revised
statement of Landlord's reasonable estimate of the Operating Payment for such
Operating Year, and in such case, the Operating Payment for such Operating Year
shall be adjusted and paid or refunded or credited as the case may be,
substantially in the same manner as provided in the preceding sentence.
(c) Landlord shall furnish to Tenant an Escalation Statement for each
Operating Year (and shall endeavor to do so within one hundred eighty (180) days
after the end of each Operating Year). Such statement shall set forth in
reasonable detail the Operating
20
Expenses for such Operating Year. If the Operating Statement shall show that the
sums paid by Xxxxxx, if any, under subsection 3.03(b) exceeded the Operating
Payment to be paid by Tenant for the Operating Year for which such Escalation
Statement is furnished, Landlord shall refund to Tenant the amount of such
excess; and if the Operating Statement for such Operating Year shall show that
the sums so paid by Tenant were less than the Operating Payment to be paid by
Tenant for such Operating Year, Tenant shall pay the amount of such deficiency
within ten (10) days after demand therefor.
(d) Xxxxxx, upon reasonable notice given within one hundred eighty
(180) days of the receipt of such Escalation Statement, may elect to have
Tenant's designated (in such notice) Certified Public Accountant (who may be an
employee of Tenant) examine such of Xxxxxxxx's books and records (collectively
"Records") as are directly relevant to the Escalation Statement in question,
together with reasonable supporting data therefor. In making such examination,
Xxxxxx agrees, and shall cause its designated Certified Public Accountant to
agree, to keep confidential (i) any and all information contained in such
Records and (ii) the circumstances and details pertaining to such examination
and any dispute or settlement between Landlord and Tenant arising out of such
examination; and Tenant will confirm and cause its Certified Public Accountant
to confirm such agreement in a separate written agreement, if requested by
Landlord. If Tenant shall not give such notice within such one hundred eighty
(180) day period, then the Escalation Statement as furnished by Landlord shall
be conclusive and binding upon Tenant. Pending the resolution of any contest
pursuant to the terms hereof, Tenant shall continue to pay all sums as
determined to be due in the first instance by such Escalation Statement and upon
the resolution of such contest, suitable adjustment shall be made in accordance
therewith with appropriate refund to be made by Landlord to Tenant if required
thereby.
3.04. (a) In any case provided in this Article 3 in which Xxxxxx is
entitled to a refund, Landlord may, in lieu of allowing such refund, credit
against the next due installments of Fixed Rent and Additional Charges any
amounts to which Tenant shall be entitled. Nothing in this Article 3 shall be
construed so as to result in a decrease in the Fixed Rent hereunder. If this
Lease shall expire before any such credit shall have been fully applied, then
(provided Tenant is not in default hereunder beyond any applicable notice and
grace periods) Landlord shall refund to Tenant the unapplied balance of such
credit.
(b) The expiration or termination of this Lease during any Tax Year
or Operating Year (for any part or all of which there is a Tax Payment or
Operating Payment under this Article 3) shall not affect the rights or
obligations of the parties hereto respecting such payment and any Escalation
Statement relating to such payment may be sent to Tenant subsequent to, and all
such rights and obligations shall survive, any such expiration or termination.
Any payments due under such Escalation Statement shall be payable within twenty
(20) days after such statement or bill is sent to Tenant.
21
(c) The parties agree that the computations under this Article 3 are
intended to constitute a formula for agreed rental escalation and may or may not
constitute an actual reimbursement to Landlord for Taxes and other costs and
expenses paid by Landlord with respect to the Real Property.
3.05. In the event that the Commencement Date shall be other than the first
day of a Tax Year or an Operating Year or 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 in such event in applying the provisions of this
Article 3 with respect to any Tax Year or Operating Year in which such event
shall have occurred, appropriate adjustments shall be made to reflect the
occurrence of such event on a basis consistent with the principles underlying
the provisions of this Article 3 taking into consideration the portion of such
Tax Year or Operating Year which shall have elapsed after the term hereof
commences in the case of the Commencement Date, and prior to the date of such
expiration or termination in the case of the Expiration Date or other
termination.
3.06. Landlord's failure to render or delay in rendering an Escalation
Statement with respect to any Tax Year or Operating Year or any component of an
Operating Payment or any installment of a Tax Payment 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 or
subsequent component of an Operating Payment or subsequent installment of a Tax
Payment, nor shall the rendering of an Escalation Statement for any Tax Year or
Operating Year prejudice Landlord's right to thereafter render a corrected
Escalation Statement for such Tax Year or Operating Year.
ARTICLE 4
Security
--------
4.01. Tenant has deposited with Landlord the sum of $363,515.63 as security
for the full and faithful performance and observance by Tenant of Tenant's
covenants and obligations under this Lease. If Tenant defaults in the full and
prompt payment and performance of any of Tenant's covenants and obligations
under this Lease beyond notice and the expiration of any applicable cure
periods, including, but not limited to, the payment of Fixed Rent and Additional
Charges, Landlord may, but shall not be required to, use, apply or retain the
whole or any part of the security so deposited and the interest accrued thereon,
if any, to the extent required for the payment of any Fixed Rent and Additional
Charges or any other sums as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency in the reletting of the
Premises, whether such damages or deficiency accrue before or after summary
proceedings or other re-entry by Landlord. If Landlord shall so use, apply or
retain the whole or any part of the security or the interest accrued thereon, if
any, Tenant shall upon demand immediately deposit with Landlord a sum equal to
the amount so used, applied or retained, as security as aforesaid failing which
Landlord shall have the same rights and remedies as for the non-payment of Fixed
Rent beyond the applicable grace period.
4.02. In lieu of the cash security deposit provided for in Section 4.01
hereof, Tenant may at any time during the term hereof deliver to Landlord and,
shall, except as otherwise provided herein, maintain in effect at all times
during the term hereof, an irrevocable letter of credit, substantially in the
form annexed hereto as Exhibit G and otherwise reasonably satisfactory to
Landlord in the amount of the security required pursuant to this Lease issued by
a banking corporation reasonably satisfactory to Landlord and having its
principal place of business or a duly licensed branch or agency in the City and
State of New York. Such letter of credit shall have an expiration date no
earlier than the first anniversary of the date of issuance thereof and shall be
automatically renewed from year to year unless terminated by the issuer thereof
by notice to Landlord given not less than 45 days prior to the expiration
thereof. Except as otherwise provided herein, Tenant shall, throughout the term
of this Lease deliver to Landlord, in the event of the termination of any such
letter of credit, replacement letters of credit in lieu thereof (each such
letter of credit and such extensions or replacements thereof, as the case may
be, is hereinafter referred to as a "Security Letter") no later than 30 days
prior to the expiration date of the preceding Security Letter. The term of each
such Security Letter shall be not less than one year, shall be automatically
renewable from year to year as aforesaid, and shall not be subject to a final
expiration date. Notwithstanding the foregoing, in the event that (x) Landlord
shall elect, in its discretion, to accept a Security Letter which is subject to
a final expiration date, and (y) the Expiration Date of this Lease shall be
determined pursuant to Section 1.03 hereof to be a date occurring after the date
which is one (1) month prior to such final expiration date, Tenant shall, in
such event, within ninety (90) days after the Commencement Date (as determined
pursuant to Section 1.05 hereof), deliver to Landlord a replacement of or an
amendment to such Security Letter extending such final expiration date to a date
occurring at least one (1) month following the Expiration Date of this Lease. If
Tenant shall fall to obtain any replacement of or amendment to a Security Letter
within any of the applicable time limits set forth in this Section 4.02,
Landlord may draw down the full amount of the existing Security Letter and
retain the same as security hereunder.
4.03. In the event Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease beyond notice and the
expiration of any applicable cure periods, including, but not limited to, the
payment of Fixed Rent and Additional Charges, Landlord may, at its election,
draw down the entire Security Letter or any portion thereof and use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any Fixed Rent and Additional Charges or any other sum as to
which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
provisions, covenants, and conditions of this Lease, including but not limited
to, any damages or deficiency accrued before or after summary proceedings or
other re-entry by Landlord. To insure that Landlord may utilize the security
represented by the Security Letter in the manner, for the purpose, and to the
extent provided in this Article 4, each Security Letter shall provide that the
full amount thereof may be drawn down by Landlord upon the presentation to the
issuing bank of Landlord's draft drawn on the issuing bank without accompanying
memoranda on statement of beneficiary.
4.04. In the event that Tenant defaults in respect of any of the
terms, provisions, covenants and conditions of the Lease beyond notice and the
expiration of any applicable cure periods and Landlord utilizes all or any part
of the security represented by the Security Letter but does not terminate this
Lease as provided in Article 22 hereof, Landlord may, in addition to exercising
its rights as provided in Section 4.03 hereof, retain the unapplied and unused
balance of the principal amount of the Security Letter as security for the
faithful performance and observance by Xxxxxx thereafter of the terms,
provisions, and conditions of this Lease, and may use, apply, or retain the
whole or any part of said balance to the extent required for payment of Fixed
Rent, Additional Charges, or any other sum as to which Tenant is in default or
for any sum which Landlord may expend or be required to expend by reason of
Tenant's default in respect of any of the terms, covenants, and conditions of
this Lease. In the event Landlord applies or retains any portion or all of the
security delivered hereunder, Tenant shall forthwith restore the amount so
applied or retained so that at all times the amount deposited shall be not less
than the security required by Section 4.01 hereof.
4.05. If Tenant shall fully and faithfully comply with all of
Tenant's covenants and obligations under this Lease, the security or any balance
thereof to which Tenant is entitled [together with the interest earned thereon
(less any administrative fee to which Landlord may be entitled under applicable
Legal Requirements), if and to the extent that such security is held in cash
form] shall be returned or paid over to Tenant after the date fixed as the end
of this Lease and after delivery to Landlord of entire possession of the
Premises. In the event of any sale, transfer or leasing of Landlord's interest
in the Building whether or not in connection with a sale, transfer or leasing of
the Land to a vendee, transferee or lessee, Landlord shall have the right to
transfer the unapplied part of the security and the interest thereon, if any, to
which Tenant is entitled, to the vendee, transferee or lessee and, upon the
giving to Tenant of notice that the Building has been sold, transferred or
leased (as the case may be) and the actual transfer of the security to such
vendee, transferee or assignee (as the case may be), Landlord shall thereupon be
released by Tenant from all liability for the return or payment thereof, and
Tenant shall look solely to the new landlord for the return or payment of the
same. The provisions of the preceding
22
sentence shall apply to every subsequent sale, transfer or leasing of the
Building, and any successor of Landlord may, upon a sale, transfer, leasing or
other cessation of the interest of such successors in the Building, whether in
whole or in part, pay over any unapplied part of said security to any vendee,
transferee or lessee of the Building and shall thereupon be relieved of all
liability with respect thereto. In the event of any such sale, transfer or
leasing, Landlord shall have the right to transfer the Security Letter to the
new landlord or, in the alternative, to require Tenant to deliver a replacement
Security Letter naming the new landlord as beneficiary, and, upon such delivery
by Tenant of such replacement Security Letter, Landlord shall return the
existing Security Letter to Tenant. If Tenant shall fail to timely deliver such
replacement Security Letter, Landlord shall have the right to draw down the
existing Security Letter and retain the proceeds as security hereunder until a
replacement Security Letter is delivered. Landlord and Xxxxxx hereby agree that,
in connection with the transfer by Xxxxxxxx or its successors or assigns
hereunder of Landlord's interest in the Security Letter, Tenant shall be solely
liable to pay any and all actual expenses of the issuing bank as billed to
Landlord (other than the issuing bank's transfer commission) in connection with
any such transfer of the Security Letter, as Additional Charges hereunder, upon
Xxxxxxxx's demand therefor. Except in connection with a permitted assignment of
this Lease, Tenant shall not assign or encumber or attempt to assign or encumber
the monies deposited herein as security or any interest thereon to which Tenant
is entitled, and neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. In any event, in the absence of evidence satisfactory to Landlord
of an assignment of the right to receive the security, or the remaining balance
thereof, Xxxxxxxx may return the security to the original Tenant regardless of
one or more assignments of this Lease.
ARTICLE 5
Subordination, Notice to Superior Lessors and Mortagees
-------------------------------------------------------
5.01. The estate of this Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate to all ground leases, overriding leases and
underlying leases of the Land and/or the Building and/or that portion of the
Building of which the Premises are a part, now or hereafter existing and to the
liens of all mortgages which may now or hereafter affect the Land and/or the
Building and/or that portion of the Building of which the Premises are a part
and/or any of such leases, whether or not such mortgages shall also cover other
lands and/or buildings and/or leases, to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section 5.01 shall be self-operative and
no further instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that
23
Landlord, the lessor under any such lease or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination. Any lease to which this Lease is, at the time
referred to, subject and subordinate is herein called "Superior Lease" and the
lessor of a Superior Lease or its successor in interest, at the time referred
to, is herein called "Superior Lessor"; and any mortgage to which this Lease is,
at the time referred to, subject and subordinate is herein called "Superior
Mortgage" and the holder of a Superior Mortgage is herein called "Superior
Mortgagee."
5.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease. as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission.
5.03. If any Superior Lessor or Superior Mortgagee, or any designee of any
Superior Lessor or Superior Mortgagee, shall succeed to the rights of Landlord
under this Lease, whether through possession or foreclosure action or delivery
of a new lease or deed, then at the request of such party so succeeding to
Landlord's rights (herein called "Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attom
to and recognize such Successor Landlord as Xxxxxx's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment, Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease, except that the Successor Landlord
shall not be:
(a) liable for any previous act or omission of Landlord (or its
predecessors in interest);
(b) responsible for any monies owing by Landlord to the credit of
Xxxxxx;
(c) subject to any credits, offsets, claims, counterclaims, demands
or defenses which Tenant may have against Landlord (or its predecessors in
interest);
24
(d) bound by any payments of rent which Tenant might have made for
more than one (1) month in advance of the date such payment is due under this
Lease to Landlord (or its predecessors in interest);
(e) bound by any covenant to undertake or complete any construction
of the Premises or any portion thereof;
(f) required to account for any security deposit other than any
security deposit actually delivered to the Successor Landlord;
(g) bound by any obligation to make any payment to Tenant or grant or
be subject to any credits, except for services, repairs, maintenance and
restoration provided for under this Lease to be performed after the date of
attornment and which landlords of like properties ordinarily perform at the
Landlord's expense, it being expressly understood, however, that the Successor
Landlord shall not be bound by an obligation to make payment to Tenant with
respect to construction performed by or on behalf of Tenant at the Premises;
(h) bound by any modification of this Lease, including without
limitation, any modification which reduces the Fixed Rent or Additional Charges
or other charges payable under this Lease, or shortens the term thereof, or
otherwise materially adversely affects the rights of the lessor thereunder, made
without the written consent of the Successor Landlord; or
(i) required to remove any person occupying the Premises or any part
thereof.
5.04. Landlord agrees that the provisions of Section 5.01 hereof shall be
conditioned upon the execution and delivery by and between Tenant and Capacity
Funding Company, LLC, the holder of the existing Superior Mortgage affecting the
Real Property (the "Existing Superior Mortgagee"), of a subordination,
non-disturbance and attornment agreement (herein called the "SNDA Agreement"),
substantially in the form of Exhibit F annexed hereto, Tenant shall execute
concurrently with the execution of this Lease six (6) counterparts of the SNDA
Agreement, which SNDA Agreement Landlord shall promptly deliver to the Existing
Superior Mortgagee for counter-execution. If Tenant shall fail to execute,
acknowledge and return the SNDA Agreement to Landlord concurrently with the
execution by Tenant of this Lease, then (x) the provisions of Section 5.01 shall
apply and (y) this Lease shall be subordinate to such existing Superior Mortgage
pursuant to the terms and conditions of such SNDA Agreement, and Tenant shall be
deemed to have executed and delivered the SNDA Agreement to the Existing
Superior Mortgagee, notwithstanding the fact that Tenant has not, in fact,
executed and delivered such SNDA Agreement.
25
5.05. With respect to future Superior Mortgages and future Superior Leases
affecting the Building, Landlord agrees (subject to the qualifications
hereinafter set forth) to use reasonable efforts to obtain from the holders of
any such future Superior Mortgages and future Superior Leases, an SNDA Agreement
in favor of Tenant on such Superior Mortgagee's or Superior Lessor's standard
form, which Xxxxxx agrees to execute and deliver to Landlord within ten (10)
days after receipt thereof; provided, however, Landlord shall have no liability
to Tenant and this Lease shall not be affected in the event that Landlord is
unable, despite such reasonable efforts, to obtain such an SNDA Agreement.
Landlord shall in no event be required to expend any monies or commence or
prosecute litigation or reject financing which is otherwise satisfactory to it
to obtain such an SNDA Agreement, and Xxxxxx agrees to be liable for any
reasonable attorneys' fees of the holders of such superior instruments actually
charged in connection with obtaining such SNDA Agreement.
ARTICLE 6
Ouiet Enjoyment
---------------
6.01. So long as Tenant pays all of the Fixed Rent and Additional
Charges and observes and performs all of Tenant's other obligations hereunder,
Tenant shall peaceably and quietly have, hold and enjoy the Premises without
hindrance, ejection or molestation by Landlord or any person lawfully claiming
through or under Landlord, subject, nevertheless, to the provisions of this
Lease and to Superior Leases and Superior Mortgages. This covenant shall be
construed as a covenant running with the Land, and is not, nor shall it be
construed as, a personal covenant of Landlord, except to the extent of
Landlord's interest in the Real Property and only so long as such interest shall
continue, and thereafter Landlord shall be relieved of all liability hereunder
thereafter arising and this covenant shall be binding only upon subsequent
successors in interest of Xxxxxxxx's interest in this Lease, to the extent of
their respective interests, as and when they shall acquire the same, and so long
as they shall retain such interest.
ARTICLE 7
Assignment, Subletting and Mortgaging
-------------------------------------
7.01. Subject to the rights of Tenant set forth in the following Sections
of this Article 7, Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise (a) assign in whole or in part or otherwise
transfer in whole or in part this Lease or the term and estate hereby granted,
or advertise to do so, (b) sublet the Premises or any part thereof, or offer or
advertise to do so, or allow the same to be used, occupied or utilized by anyone
other than Tenant and Tenant's Affiliates (as such term is defined in Section
7.02 hereof), (c) mortgage, pledge, encumber or otherwise hypothecate this Lease
or the Premises or any part
26
thereof in any manner whatsoever or (d) permit the Premises or any part thereof
to be occupied, or used for desk space, mailing privileges or otherwise, by any
person other than Tenant, without in each instance obtaining the prior written
consent of Landlord (which consent shall be granted or withheld in accordance
with the following provisions of this Article 7).
7.02. If Tenant (or any subtenant) is a corporation, the provisions of
subdivision (a) of Section 7.01 shall apply to a transfer, whether by a single
transaction or by a series of related or unrelated transactions), of stock
(other than a transfer though the "over the counter market" or through any
recognized stock exchange by persons who are not deemed "insiders" within the
meaning of the Securities Exchange Act of 1934, as amended) or any other
mechanism, such as the issuance of additional stock, a stock voting agreement or
change in class(es) of stock, which results in a change of control of Tenant (or
such subtenant) as if such transfer of stock or other mechanism which results in
a change of control of Tenant (or such subtenant) were an assignment of this
Lease, and if Tenant (or such subtenant) is a partnership, joint venture or
limited liability company, said provisions shall apply with respect to a
transfer, by one or more transfers, of an interest in the distributions of
profits and losses of such partnership, joint venture or limited liability
company (or other mechanism, such as the creation of additional general
partnership or limited partnership interests) which results in a change of
control of such partnership, joint venture or limited liability company, as if
such transfer of an interest in the distributions of profits and losses of such
partnership, joint venture or limited liability company which results in a
change of control of such partnership, joint venture or limited liability
company were an assignment of this Lease; provided, however, the provisions of
subdivision (a) of Section 7.01 shall not apply to transactions with a
corporation into or with which Tenant (or any permitted subtenant of Tenant) is
merged or consolidated or to transactions with a corporation or partnership to
which substantially all of Tenant's assets are transferred or to any corporation
(herein collectively called "Tenant's Affiliates") which controls or is
controlled by Tenant or is under common control with Tenant, provided that in
any of such events:
(i) the successor to Tenant or transferee is a reputable entity of good
character and has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater of(l) the
net worth of Tenant thirty (30) days prior to such merger,
consolidation or transfer, or (2) the net worth of the Tenant herein
named on the date of this Lease,
(ii) proof reasonably satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction,
(iii) a duplicate original instrument of assignment in form and substance
reasonably satisfactory to Landlord, duly executed by Xxxxxx, shall
have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction,
27
(iv) an instrument in form and substance reasonably satisfactory to
Landlord, duly executed by the assignee, in which such assignee
assumes (as of the Commencement Date) observance and performance of,
and agrees to be personally bound by, all of the terms, covenants and
conditions of this Lease on Xxxxxx's part to be performed and observed
shall have been delivered to Landlord at least ten (10) days prior to
the effective date of any such transaction, and
(v) such merger, consolidation or transfer shall be for a good business
purpose and not principally for the purpose of transferring this
Lease.
Furthermore, the provisions of Section 7.01 shall not be deemed to prohibit the
simultaneous occupancy of the Premises by, or a subletting of all or a portion
of the Premises to, a Tenant's Affiliate, provided, however that (i) Landlord
shall be given not less than ten (10) days prior written notice of any such
sublease or occupancy arrangement accompanied by reasonable evidence of such
affiliate relationship, and (ii) the cessation of such affiliate relationship
while such sublease or occupancy is continuing shall be deemed a transaction to
which all of the terms of this Article 7 shall apply. For purposes of this
Section 7.02, the term "control" shall mean, in the case of a corporation,
ownership or voting control, directly or indirectly, of at least fifty percent
(50%) of all the voting stock, and in case of a joint venture, partnership or
limited liability company, or similar entity, ownership, directly or indirectly,
of at least fifty percent (50%) of all the general or other partnership or
membership (or similar) interests therein. Any agreement pursuant to which (x)
Tenant is relieved from the obligation to pay, or a third party agrees to pay on
Xxxxxx's behalf, all or a part of Fixed Rent or Additional Charges under this
Lease, and/or (y) such third party undertakes or is granted any right to assign
or attempt to assign this Lease or sublet or attempt to sublet all or any
portion of the Premises, shall be deemed an assignment of this Lease and subject
to the provisions of Section 7.01.
7.03. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the Fixed Rent and Additional Charges herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of Section 7.01, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to a
particular assignment, mortgaging, subletting or use or occupancy by others
shall not in any way be considered a consent by Landlord to any other or further
assignment, mortgaging or subletting or use or occupancy by others not expressly
permitted by this Article 7. References in this Lease to use or occupancy by
others (that is, anyone other than Tenant) shall not be construed as limited to
subtenants and those claiming under or through
28
subtenants but shall also include licensees and others claiming under or through
Tenant, immediately or remotely.
7.04. Any assignment or transfer, whether made with Xxxxxxxx's consent
pursuant to Sections 7.01 or 7.11 hereof or without Landlord's consent pursuant
to Section 7.02 hereof, shall be made only if, and shall not be effective until,
the assignee shall execute, acknowledge and deliver to Landlord an agreement in
form and substance reasonably satisfactory to Landlord whereby the assignee
shall assume the obligations of this Lease on the part of Tenant to be performed
or observed and whereby the assignee shall agree that the provisions in Section
7.01 shall, notwithstanding such assignment or transfer, continue to be binding
upon it in respect of all future assignments and transfers. The original named
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 Rent and/or Additional Charges by Landlord from an assignee,
transferee, or any other party, the original named Tenant shall remain fully and
jointly and severally liable with such assignee, transferee or other party for
the payment of the Fixed Rent and Additional Charges and for the performance and
observance of other obligations of this Lease on the part of Tenant to be
performed or observed.
7.05. The joint and several liability of Tenant and any immediate or remote
successor in interest of Xxxxxx and the due performance of the obligations of
this Lease on Tenant's part to be performed or observed shall not be discharged,
released or impaired in any respect by any agreement or stipulation made by
Landlord extending the time of, or modifying any of the obligations of, this
Lease, or by any waiver or failure of Landlord to enforce any of the obligations
of this Lease.
7.06. The listing of any name other than that of Tenant, whether on the
doors of the Premises or the Building directory, or otherwise, shall not operate
to vest any right or interest in this Lease or in the Premises, nor shall it be
deemed to be the consent of Landlord to any assignment or transfer of this Lease
or to any sublease of the Premises or to the use or occupancy thereof by others.
7.07. Notwithstanding anything to the contrary contained in this Article 7,
if Tenant shall at any time or times during the term of this Lease desire to
assign this Lease or sublet all or part of the Premises, Tenant shall give
notice thereof to Landlord, which notice shall set forth (i) in the case of a
proposed subletting, the area proposed to be sublet, and, in the case, of a
proposed assignment such notice shall set forth Tenant's intention to assign
this Lease, (ii) the proposed dates of the commencement and the expiration of
the term of the proposed sublease or the effective date of the proposed
assignment, as the case may be, (iii) the full consideration to be paid by the
proposed assignee to Tenant, or by Tenant to the proposed assignee (as the case
may be), in connection with any proposed assignment, or the proposed subrental
rate and any periods of rent-free occupancy, in the case of a proposed
subletting, and all other material provisions that are proposed to be included
in the transaction, (iv) any work contributions and any sums paid for
29
the sale or rental of any of Tenant's leasehold improvements, furniture,
fixtures, equipment or other personal property to be purchased or rented by the
proposed assignee or subtenant, (v) the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, all
in reasonable detail, (vi) current financial information with respect to the
proposed assignee or subtenant, including, without limitation, its most recent
financial report and (vii) such other information as Landlord may reasonably
request. Except for any assignment or sublease which does not require Landlord's
consent pursuant to Section 7.02 hereof, such notice shall be deemed an
irrevocable offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (i) terminate this Lease in the case of an
assignment or a sublease covering all or a portion of the Premises or, in the
event that the Premises shall include more than one (1) floor of the Building, a
sublease covering all or a portion of each floor of the Premises, or (ii) in the
case of a sublease which does not include space on each and every floor of the
Premises (in the event that the Premises shall include more than one (1) floor
of the Building), terminate this Lease with respect to only the entire portion
of the Premises located on the floor(s) included in such sublease. Either of the
foregoing options may be exercised by Landlord by notice to Tenant at any time
within 30 days after such notice has been given by Tenant to Landlord and
Landlord shall have received all other information required to be furnished to
Landlord by Tenant pursuant to the provisions of this Article 7; and during such
30-day period Tenant shall not assign this Lease or sublet such space to any
person.
7.08. If Landlord exercises its option to terminate this Lease in the
circumstances described in clause (i) of the penultimate sentence of Section
7.07 hereof, then this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence, as the case may be (but in
no event shall this Lease expire sooner than sixty (60) days after the date on
which Landlord exercises its option to terminate this Lease unless Landlord
waives this condition in its sole discretion), and the Fixed Rent and Additional
Charges shall be paid and apportioned to such date.
7.09. If Landlord exercises its option to terminate this Lease with respect
to a portion of the Premises in the circumstances described in clause (ii) of
the penultimate sentence of Section 7.07 hereof, then (a) this Lease shall end
and expire with respect to such part of the Premises on the date that the
proposed sublease was to commence (but in no event shall this Lease expire with
respect to such part of the Premises sooner than sixty (60) days after the date
on which Landlord exercises its option to terminate this Lease with respect to
such part of the Premises unless Landlord waives this condition in its sole
discretion) and (b) from and after such date the Fixed Rent and Additional
Charges shall be adjusted, based upon the proportion that the rentable area of
the Premises remaining bears to the total rentable area of the Premises.
7.10. Intentionally Omitted.
7.11. In the event Landlord does not exercise either of its options
pursuant to Section 7.07 to so terminate (in whole or in part) this Lease and
provided that Tenant is not in
30
default of any of Tenant's obligations under this Lease after the giving of
notice and the expiration of any applicable cure period, Landlord's consent
(which must be in writing, in form satisfactory to Landlord and signed by
Landlord, Xxxxxx and the proposed assignee or subtenant) to the proposed
assignment or sublease shall not be unreasonably withheld, provided and upon
condition that:
(a) Tenant shall have complied with the provisions of Section 7.07
and Landlord shall not have exercised any of its options under said Section 7.07
within the time permitted therefor and Tenant shall have delivered to Landlord a
duplicate original of the sublease or assignment instrument and all other
documents to be executed in connection therewith:
(b) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Premises, or the relevant part
thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building, and (ii) will not violate any negative covenant as to
use contained in any other lease of space in the Building (and Landlord shall
advise Tenant of any such negative covenants in writing promptly after written
request therefor by Xxxxxx made in connection with a proposed subletting or
assignment);
(c) The proposed assignee or subtenant is a reputable person or
entity of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(d) Neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or sublessee or any person who
controls the proposed assignee or sublessee, is 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 six (6)
months immediately preceding Xxxxxx's request for Xxxxxxxx's consent;
(e) The form of the proposed sublease or assignment instrument shall
be reasonably satisfactory to Landlord and shall comply with the applicable
provisions of this Article 7;
(f) The Premises shall not be subdivided into more than 2 separate
units;
(g) Tenant shall reimburse Landlord on demand for any reasonable and
actual out-of-pocket costs that may be incurred by Landlord in connection with
said assignment or sublease, including, without limitation, the costs of making
investigations as to the acceptability of the proposed assignee or subtenant,
and reasonable legal costs incurred in connection with the granting of any
requested consent; and
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(h) Tenant shall not have (i) advertised the availability of the
Premises without prior notice to and approval by Landlord, nor shall any
advertisement state the name (as distinguished from the address) of the Building
or the proposed rental nor (ii) listed the Premises for subletting, whether
through a broker, agent, representative, or otherwise at a rental rate less than
the Fixed Rent and Additional Charges at which Landlord is then offering to
lease other space in the Building, but nothing contained in this Article 7 shall
be deemed to prohibit Tenant from listing with brokers the availability of the
Premises for sublet or assignment.
7.12. (a) In the event that in connection with Xxxxxx's request for
Xxxxxxxx's consent pursuant to Section 7.11 hereof, the proposed sublease or
proposed assignment delivered to Landlord contains (i) economic terms which are
"substantially different from" (as hereinafter defined) the economic terms set
forth in the notice delivered to Landlord pursuant to Section 7.07 hereof
[including, without limitation, in the case of a sublease, with respect to the
subrental rate (giving effect to the financial value of any abatements,
concessions, credits or improvements for the benefit of the subtenant), the
sublet term, the sublet space or, in the case of an assignment, with respect to
the consideration and all other sums being paid in connection with such
assignment], or (ii) material non-economic terms that are different from the
material noneconomic terms set forth in the notice delivered to Landlord
pursuant to Section 7.07 hereof, then in such event. Tenant's request for
consent pursuant to Section 7.11 hereof shall be deemed to be an irrevocable
offer from Tenant to Landlord as to which Landlord shall have all of the options
set forth in Section 7.07 hereof and Tenant shall again comply with all of the
provisions and conditions of Section 7.07 hereof before entering into such
sublease or assignment. The economic terms of a proposed sublet or proposed
assignment shall be deemed "substantially different from" the economic terms set
forth in the notice delivered to Landlord pursuant to Section 7.07 hereof if the
economic terms of such proposed sublease or assignment on an aggregate basis
differ by more than eight (8%) percent from the terms contained in the terms set
forth in the notice delivered to Landlord pursuant to Section 7.07 hereof.
(b) In the event that Landlord fails to exercise either of its
options under Section 7.07 hereof, and Tenant fails to request Landlord's
consent to an assignment or sublease on the terms and conditions set forth in
the notice delivered to Landlord pursuant to Section 7.07 hereof within three
(3) months from the date of Landlord's response to such notice, Tenant shall
again comply with all of the provisions and conditions of Section 7.07 hereof
before assigning this Lease or subletting all or part of the Premises.
7.13. With respect to each and every sublease or subletting authorized by
Landlord under the provisions of this Lease, it is further agreed that:
(a) No subletting shall be for a term (including any renewal or
extension options contained in the sublease) ending later than one day prior to
the expiration date of this Lease;
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(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
such sublease (and all ancillary documents executed in connection with, with
respect to or modifying such sublease) has been delivered to Landlord;
(c) Each sublease shall provide that it is subject and subordinate to
this Lease and to any matters to which this Lease is or shall be subordinate,
and that in the event of termination, reentry or dispossess by Landlord under
this Lease Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not be (i) liable for
any previous act or omission of Tenant under such sublease, (ii) subject to any
credit, offset, claim, counterclaim, demand or defense which such subtenant may
have against Tenant, (iii) bound by any previous modification of such sublease
or by any previous prepayment of more than one (1) month's rent, (iv) bound by
any covenant of Tenant to undertake or complete any construction of the Premises
or any portion thereof, (v) required to account for any security deposit of the
subtenant other than any security deposit actually delivered to Landlord by
Tenant, (vi) bound by any obligation to make any payment to such subtenant or
grant any credits, except for services, repairs, maintenance and restoration
provided for under the sublease to be performed after the date of such
attornment, (vii) responsible for any monies owing by Landlord to the credit of
Tenant or (viii) required to remove any person occupying the Premises or any
part thereof; and
(d) Each sublease shall provide that the subtenant may not assign its
rights thereunder or further sublet the space demised under the sublease, in
whole or in part, except in compliance with all of the termns of provisions of
this Article 7.
7.14. (a) If 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 Charges an amount equal to fifty (50%) percent of any
Assignment Profit (hereinafter defined) or Sublease Profit (hereinafter
defined), as the case may be.
(b) For purposes of this Section 7.14, the term "Assignment Profit"
shall mean 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 or rental 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
portion (determined on the basis of Tenant's federal income tax returns) of the
amount, if any, by which the original cost thereof exceeded any amounts paid for
or contributed by Landlord which were applied by Tenant against such original
cost pursuant to the terms of this Lease).
(c) For purposes of this Section 7.14, the term "Sublease Profit"
shall mean in any year of the term of this Lease (i) any rents, additional
charges or other consideration
33
payable under the sublease to Tenant by the subtenant which is in excess of
the Fixed Rent and Additional Charges accruing during such year of the term
of this Lease in respect of the subleased space (at the rate per square
foot payable by Tenant hereunder) pursuant to the terms hereof, and (ii)
all sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the
case of the sale thereof, the then net unamortized or undepreciated portion
(determined on the basis of Tenant's federal income tax returns) of the
amount, if any, by which the original cost thereof exceeded any amounts
paid for or contributed by Landlord which were applied by Tenant against
such original cost pursuant to the terms of this Lease), which net
unamortized amount shall be deducted from the sums paid in connection with
such sale in equal monthly installments over the balance of the term of the
sublease (each such monthly deduction to be in an amount equal to the
quotient of the net unamortized amount, divided by the number of months
remaining in the term of this Lease).
(d) Notwithstanding any of the foregoing provisions of this Section
7.14 to the contrary, before the calculation of any Assignment Profit or
Subletting Profit, there shall be subtracted therefrom Tenant's subletting or
assignment costs. "Tenant's subletting or assignment costs" shall mean, with
respect to each subletting by Tenant of the Premises or portions thereof or any
assignment of this Lease, any brokerage commissions, reasonable counsel fees and
advertising fees incurred by Tenant in connection with such subletting or
assignment, payments to Landlord pursuant to Section 7.11(g) hereof, and the
costs of any alterations performed to prepare the Premises or the sublet portion
thereof for occupancy by any subtenant or assignee (the costs of such
alterations to be amortized ratably over the term of the sublease in question or
over the remainder of the term of the Lease, in the case of an assignment).
(e) The sums payable under this Section 7.14 shall be paid to
Landlord as and when paid by the assignee or subtenant to Tenant.
7.15. Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article 7, each subletting shall be subject
to all of the covenants, agreements, terms, provisions and conditions contained
in this Lease. Notwithstanding any such subletting to Landlord or any such
subletting to any other subtenant and/or acceptance of rent or additional rent
by Landlord from any subtenant, but subject to the provisions of Section 7.10(d)
and (e) hereof to the extent applicable, Tenant shall and will remain fully
liable for the payment of the Fixed Rent and Additional Charges due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this Lease, and any such violation shall be deemed to
be a violation by Tenant. Xxxxxx further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises by Tenant or any
person claiming through or under Tenant (except as provided in Section 7.10
hereof) shall or will be made except upon compliance with and subject to the
provisions of this Article. If Landlord shall decline to give its consent to any
proposed
34
assignment or sublease, or if Landlord shall exercise any of its options under
Section 7.07 hereof, Tenant shall indemnify, defend and hold harmless Landlord
against and from any and all loss, liability, damages, costs and expenses
(including, but not limited to, reasonable counsel fees) resulting from any
claims that may be made against Landlord by the proposed assignee or sublessee
or by any brokers or other persons claiming a commission or similar compensation
in connection with the proposed assignment or sublease.
ARTICLE 8
Compliance with Laws
---------- ---- ----
8.01. (a) Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of any public authority with
respect to the Premises or the use or occupation thereof. Tenant shall, at
Tenant's expense, comply with all present and future laws and requirements of
any public authorities in respect of the Premises or the use and occupation
thereof, or the abatement of any nuisance in, on or about the Premises;
provided, however, that Tenant shall not be obligated to make structural repairs
or alterations or repairs or alterations to Building systems installed by
Landlord unless the need for same arises out of one or more of the causes set
forth in clauses (i) through (iii) of the next succeeding sentence. Tenant shall
also be responsible for the cost of compliance with all present and future laws
and requirements of any public authorities in respect of the Real Property
arising from (i) Tenant's particular manner of use of the Premises or operation
of its installations, equipment or other property therein (other than the mere
use of the Premises as generic executive and general offices), (ii) any cause or
condition created by or at the instance of Tenant, or (iii) the breach of any of
Tenant's obligations hereunder, whether or not such compliance arising from any
of the causes set forth in this sentence requires work which is structural or
non-structural, ordinary or extraordinary, foreseen or unforeseen. Tenant shall
pay all the costs, expenses, fines, penalties and damages which may actually be
imposed upon Landlord or any Superior Lessor by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the provisions of
this Section 8.01. Without limiting the generality of the foregoing, it is
specifically agreed that Tenant shall comply with all laws that require the
installation, modification or maintenance within the Premises of (i) any fire-
rated partitions, gas, smoke, or fire detector or alarm, any emergency signage
or lighting system, or any sprinkler or other system to extinguish fires or (ii)
any handicap facilities; provided that the foregoing shall not be deemed to
limit any of Landlord's obligations expressly set forth in Section 2.01 or
Exhibit C hereof. However, Tenant need not comply with any such law or
requirement of any public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Premises, in accordance
with Section 8.02 hereof.
(b) Notwithstanding anything to the contrary contained in Section
8.01(a) hereof, in the event that Landlord shall receive a notice of violation
of any Legal
35
Requirement with respect to the Premises arising in connection with the
performance by Landlord of Landlord's Work, Landlord shall cause such violation
to be cured or otherwise removed of record, except to the extent that (i)
compliance with such Legal Requirement is the obligation of Tenant pursuant to
this Section 8.01 or (ii) such violation was caused by any acts or omissions of
Tenant, its agents, contractors or employees or, notwithstanding any approval by
Landlord of the Work Letter or the Tenant Work Final Plans, by any defects in
the Tenant Work Final Plans.
(c) Except to the extent otherwise provided in Section 2.01 or
Exhibit C hereof and subject to the proviso set forth in the second sentence of
Section 8.0 1(a) hereof, Tenant shall perform all work necessary to place and
maintain the Premises (including without limitation the entry door to the
Premises) in compliance with Local Law 58 and the Americans with Disabilities
Act of 1990 ("ADA"), and Landlord shall be responsible for compliance with Local
Law 58 and the ADA with respect to the common areas of the Building.
Notwithstanding anything contained in the preceding sentence to the contrary,
Landlord shall not be responsible for compliance with the ADA (i) with respect
to the bathrooms in the Premises (except to the extent otherwise provided in
Section 2.01 or Exhibit C hereof) or (ii) to the extent same is required as a
result of Xxxxxx's manner of use of the Premises.
8.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any law or requirement of any public
authority, provided that (a) Landlord shall not be subject to criminal penalty
or to prosecution for a crime, or any other fine or charge, nor shall the
Premises or any part thereof or the Building or Land, or any part thereof, be
subject to being condemned or vacated, nor shall the Building or Land, or any
part thereof, be subjected to any lien (unless Tenant shall remove such lien by
bonding or otherwise) or encumbrance, by reason of non-compliance or otherwise
by reason of such contest; (b) before the commencement of such contest, Tenant
shall furnish to Landlord a cash deposit or other security in amount, form and
substance reasonably satisfactory to Landlord and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance;
(c) such non-compliance or contest shall not constitute or result in any
violation of any Superior Lease or Superior Mortgage, or if any such Superior
Lease and/or Superior Mortgage shall permit such non-compliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; (d) such noncompliance or contest shall not prevent Landlord from
obtaining any and all permits and licenses in connection with the operation of
the Building; and (e) Tenant shall keep Landlord advised as to the status of
such proceedings. Without limiting the application of the above, Landlord shall
be deemed subject to prosecution for a crime if Landlord, or its managing agent,
or any officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
whatever, whether by service of a summons or otherwise, unless such charge is
withdrawn before
36
Landlord or its managing agent, or such officer, director, partner, shareholder
or employee of Landlord or its managing agent (as the case may be) is required
to plead or answer thereto.
ARTICLE 9
Insurance
---------
9.01. Tenant shall not violate, or permit the violation of, any condition
imposed by any insurance policy then issued in respect of the Real Property and
shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Premises which would subject Landlord, any Superior Lessor or any
Superior Mortgagee to any liability or responsibility for personal injury or
death or property damage, or which would increase any insurance rate in respect
of the Real Property over the rate which would otherwise then be in effect or
which would result in insurance companies of good standing refusing to insure
the Real Property in amounts reasonably satisfactory to Landlord, or which would
result in the cancellation of or the assertion of any defense by the insurer in
whole or in part to claims under any policy of insurance in respect of the Real
Property; provided, however, that in no event shall the mere use of the Premises
for customary and ordinary office purposes, as opposed to the manner of such
use, constitute a breach by Tenant of the provisions of this Section 9.01.
9.02. If, by reason of any failure of Tenant to comply with the provisions
of this Lease, the premiums on Landlord's insurance on the Real Property shall
be higher than they otherwise would be, and Landlord shall notify Tenant of such
fact and, if Tenant shall not within 15 days thereafter, rectify such failure so
as to prevent the imposition of such increase in premiums, then Tenant shall
reimburse Landlord, on demand and as Additional Charges, for that part of such
premiums attributable to such failure on the part of Tenant. A schedule or "make
up" of rates for the Real Property or the Premises, as the case may be, issued
by the New York Fire Insurance Rating Organization or other similar body making
rates for insurance for the Real Property or the Premises, as the case may be,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the insurance rate then applicable to the Real Property or
the Premises, as the case may be.
9.03. Tenant, at its expense, shall maintain at all times during the term
of this Lease (a) "all risk" property insurance covering all present and future
Tenant's Property and Tenant's improvements and betterments installed by or on
behalf of Tenant (including Tenant's Work) to a limit of not less than the full
replacement value thereof, such insurance to include a replacement cost
endorsement, and (b) commercial general liability insurance, including
contractual liability, in respect of the Premises and the conduct or operation
of business therein, with Landlord and its managing agent, if any, and each
Superior Lessor and Superior Mortgagee whose name and address shall previously
have been furnished to Tenant, as additional insureds, with limits of not less
than Three Million ($3,000,000) Dollars combined single limit for bodily
37
injury and property damage liability in any one occurrence, (c) steam boiler,
air-conditioning or machinery insurance, if there is a boiler or pressure object
or similar equipment in the Premises, with Landlord and its managing agent, if
any, and each Superior Lessor and Superior Mortgagee whose name and address
shall previously have been furnished to Tenant, as additional insureds, with
limits of not less than Three Million ($3,000,000) Dollars and (d) when
Alterations are in progress, the insurance specified in Section 11.05 hereof.
The limits of such insurance shall not limit the liability of Tenant. Tenant
shall deliver to Landlord and any additional insureds, at least ten (10) days
prior to the Commencement Date, such fully paid-for certificates of insurance,
in form reasonably satisfactory to Landlord issued by the insurance company or
its authorized agent. Such insurance may be carried in a blanket policy covering
the Premises and other locations of Tenant, if any, provided that each such
policy shall in all respects comply with this Article 9 and shall specify that
the portion of the total coverage of such policy allocated to the Premises is in
the amounts required pursuant to this Section 9.03. Tenant shall procure and pay
for renewals of such insurance from time to time before the expiration thereof,
and Tenant shall deliver to Landlord and any additional insureds a certificate
of renewal at least thirty (30) days before the expiration of any existing
policy. All such policies shall be issued by companies of recognized
responsibility licensed to do business in New York State and rated by Best's
Insurance Reports or any successor publication of comparable standing and
carrying a rating of A VIII or better or the then equivalent of such rating, and
all such policies shall contain a provision whereby the same cannot be canceled
or modified unless Landlord and any additional insureds are given at least
thirty (30) days prior written notice of such cancellation or modification. The
proceeds of policies providing "all risk" property insurance of Tenant's
improvements and betterments shall be payable to Landlord, Tenant and each
Superior Lessor and Superior Mortgagee as their interests may appear. The
parties shall cooperate with each other in connection with the collection of any
insurance monies that may be due in the event of loss and Tenant shall execute
and deliver to Landlord such proofs of loss and other instruments which may be
reasonably required to recover any such insurance monies.
9.04. Each party agrees to have included in each of its insurance policies
(insuring the Building and any other Landlord's property therein in case of
Landlord, and insuring Tenant's Property (hereinafter defined) and improvements
and betterments in the case of Tenant, against loss, damage or destruction by
fire or other casualty) a waiver of the insurer's right of subrogation against
the other party during the term of this Lease or, if such waiver should be
unobtainable or unenforceable, (i) an express agreement that such policy shall
not be invalidated if the assured waives the right of recovery against any party
responsible for a casualty covered by the policy before the casualty or (ii) any
other form of permission for the release of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable from
either party's then current insurance company, the insured party shall so notify
the other party promptly after learning thereof, and shall use its best efforts
to obtain the same from another insurance company described in Section 9.03
hereof. Each party hereby releases the other party, with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party, for loss, damage or destruction with respect to its property
38
occurring during the term of this Lease to the extent to which it is, or is
required to be, insured under a policy or policies containing a waiver of
subrogation or permission to release liability, as provided in the preceding
subdivisions of this Section. Nothing contained in this Section shall be deemed
to relieve either party of any duty imposed elsewhere in this Lease to repair,
restore or rebuild or to nullify any abatement of rents provided for elsewhere
in this Lease.
9.05. Landlord may from time to time require that the amount of the
insurance to be maintained by Tenant under Section 9.03 hereof be reasonably
increased, so that the amount thereof adequately protects Landlord's interest;
provided, however, that the amount to which such insurance requirements may be
increased shall not exceed an amount then being required by landlords of
comparable first-class office buildings in lower Manhattan.
9.06. Landlord shall maintain in respect of the Building at all times
during the term of this Lease fire and casualty insurance covering the Building
and Landlord's property in amounts of coverage required by any institutional
mortgagee of the Building, or, if there is no institutional mortgagee of the
Building, then in amounts comparable to the amounts carried by owners of first-
class office buildings in lower Manhattan comparable to the Building.
ARTICLE 10
Rules and Regulations
---------------------
10.01. Tenant and its employees and agents shall faithfully observe
and comply with the rules and regulations annexed hereto as Exhibit D, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and communicate to Tenant,
which, in Landlord's reasonable judgment, shall be necessary for the reputation,
safety, care and appearance of the Real Property, or the preservation of good
order therein, or the operation or maintenance of the Real Property, and which
do not unreasonably affect the conduct of Xxxxxx's business in the Premises
(such rules and regulations as changed from time to time being herein called
"Rules and Regulations"); provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control.
10.02. Nothing in this Lease contained shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations
against Tenant or any other tenant or any employees or agents of Tenant or any
other tenant, and Landlord shall not be liable to Tenant for violation of the
Rules and Regulations by another tenant or its employees, agents, invitees or
licensees. Landlord shall not discriminate against Tenant in enforcing the Rules
and Regulations.
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ARTICLE II
Alterations
-----------
11.01. Tenant shall have the right to make improvements, changes and
alterations in or to the Premises ("Alterations") with Landlord's written
approval, which approval Landlord shall not unreasonably withheld or delay;
provided, however, that (i) Landlord's approval shall not be required with
respect to painting, wall covering, carpeting and other minor alterations which
do not require a building alteration permit, do not affect Building systems and
involve a scope of work for which plans and specifications are not generally
prepared in comparable office buildings in lower Manhattan (herein collectively
called "Minor Alterations") and (ii) notwithstanding anything to the contrary
contained in this Lease, Landlord may withhold its approval of Major Alterations
(hereinafter defined) in Landlord's sole discretion, which discretion Landlord
hereby agrees to exercise in good faith. A "Major Alteration" is an Alteration
which (a) is not limited to the interior of the Premises or which affects the
exterior (including the appearance) of the Building, (b) adversely affects the
strength or structural integrity of the Premises or the Building, (c) adversely
affects the usage or the proper functioning of the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other service systems of the
Building, or (d) requires the consent of any Superior Mortgagee or Superior
Lessor and such consent is withheld by such Superior Mortgagee or Superior
Lessor, as the case may be. Notwithstanding anything to the contrary contained
in this Lease, Tenant shall have the non-exclusive right to use, in common with
others, the common areas of the Building to the extent required to support
Tenant's use of the Premises for general and executive offices, including,
without limitation, the right to tie in to and/or connect with the water risers
and ducts of the Building in connection with any Alterations performed by Tenant
to prepare the Premises for its initial occupancy thereof, subject to the
provisions of this Article 11 and Exhibit E annexed hereto and all other
applicable terms, covenants, provisions and conditions of this Lease.
11.02. (a) Before proceeding with any Alteration (other than Minor
Alterations), Tenant shall submit to Landlord, for Landlord's approval, plans
and specifications for the work to be done, and Tenant shall not proceed with
such work until it obtains Landlord's written approval of such plans and
specifications, which approval shall not be unreasonably withheld or delayed
(except with respect to Major Alterations, the approval of which by Landlord is
subject to the provisions of Section 11.01 hereof).
(b) Tenant shall pay to Landlord within ten (10) days after
demand, as Additional Charges, Landlord's reasonable costs and expenses
(including, without limitation, the fees of any architect or engineer employed
by Landlord or any Superior Lessor or Superior Mortgagee for such purpose) for
(i) reviewing said plans and specifications (not to exceed $5,000.00 for each
set of plans and specifications) and (ii) inspecting the Alterations to
determine whether the same are being performed in accordance with the approved
plans and specifications,
40
the provisions of any Superior Lease or Superior Mortgage and all laws and
requirements of public authorities.
(c) Xxxxxx agrees that any review or approval by Landlord of
any plans and/or specifications with respect to any Alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant with respect to the adequacy, correctness or efficiency thereof or
otherwise.
11.03. (a) Before proceeding with any Alteration which will cost
more than $100,000 (exclusive of the costs of decorating work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall furnish to Landlord one of the following:
(i) a cash deposit or (ii) a performance bond and a labor and materials payment
bond (issued by a corporate surety licensed to do business in New York
reasonably satisfactory to Landlord), or (iii) an irrevocable, unconditional,
negotiable letter of credit, issued by and drawn on a bank or trust company
which is a member of the New York Clearing House Association in a form
reasonably satisfactory to Landlord; each to be in an amount equal to one
hundred twenty-five (125%) percent of the cost of the Alteration, estimated as
set forth above. Any such letter of credit shall be for one year and shall be
renewed by Tenant each and every year until the Alteration in question is
completed and shall be delivered to Landlord not less than thirty (30) days
prior to the expiration of the then current letter of credit. Failure to deliver
such new letter of credit on or before said date shall be a material breach of
this Lease and Landlord shall have the right, inter alia, to present the then
current letter of credit for payment.
(b) Upon (i) the completion of the Alteration in accordance
with the terms of this Article 11 and (ii) the submission to Landlord of proof
evidencing the payment in full for said Alteration, the security deposited with
Landlord (or the balance of the proceeds thereof, if Xxxxxx has furnished cash
or a letter of credit and if Landlord has drawn on the same) shall be returned
to Tenant.
(c) Upon Tenant's failure to properly perform, complete and
fully pay for the said Alteration, which failure continues after the giving of
notice and the expiration of applicable grace period, Landlord shall be entitled
to draw on the security deposited under this Article 11 to the extent Landlord
reasonably deems necessary in connection with the said Alteration, the
restoration and/or protection of the Premises or the Real Property and the
payment or satisfaction of any costs, damages or expenses in connection with the
foregoing and/or Tenant's obligations under this Article 11.
11.04. Tenant, in connection with any Alterations, shall fully and
promptly comply with and observe the Tenant Construction Approval Procedures set
forth as Exhibit E hereto and made a part hereof.
41
11.05. Tenant, at its expense, shall obtain (and furnish true and
complete copies to Landlord of) all necessary governmental permits and
certificates for the commencement and prosecution of Alterations and for final
approval thereof upon completion, and shall cause Alterations to be performed in
compliance therewith, with all applicable laws and requirements of public
authorities, with all applicable requirements of insurance bodies and with the
plans and specifications approved by Landlord. Alterations shall be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the better of(i) the original installations
of the Building or (ii) the then standards for the Building established by
Landlord. Alterations shall be performed by contractors first approved by
Landlord, which approval shall not be unreasonably withheld or delayed;
provided, however, that any Alterations in or to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning, life safety or other systems
of the Building shall be performed only by the contractor(s) designated by
Landlord. Alterations shall be performed in such manner as not to unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair or operation of the Building;
and if any such additional expense shall be incurred by Landlord as a result of
Tenant's performance of any Alterations, Tenant shall pay such additional
expense within twenty (20) days after demand as Additional Charges. Throughout
the performance of Alterations, Tenant, at its expense, shall carry, or cause to
be carried, worker's compensation insurance in statutory limits, all risk
"Builders Risk" insurance and general liability insurance, with completed
operation endorsement, for any occurrence in or about the Real Property, under
which Landlord and its agent and any Superior Lessor and Superior Mortgagee
whose name and address shall previously have been furnished to Tenant shall be
named as parties insured, in such limits as Landlord may reasonably require,
with insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with reasonably satisfactory evidence that such insurance is in effect at or
before the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations. No Alterations shall involve
the removal of any fixtures, equipment or other property in the Premises which
are not Tenant's Property without Landlord's prior written consent, unless such
fixtures, equipment or other property shall be promptly replaced at Tenant's
expense with new fixtures, equipment or other property of like utility and at
least equal value.
11.06. Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 11 or of any other provisions of this Lease or the
Exhibits hereto shall not be done in a manner which would violate Landlord's
union contracts affecting the Real Property, or create any work stoppage,
picketing, labor disruption or dispute or disharmony or any interference (beyond
a de minimis extent) with the business of Landlord or any tenant or occupant of
the Building. Tenant shall immediately stop work or other activity if Landlord
notifies Tenant that continuing such work or activity would violate Landlord's
union contracts affecting the Real Property, or create any work stoppage,
picketing, labor disruption or dispute or disharmony or any interference (beyond
a de minimis extent) with the business of Landlord or any tenant or occupant of
the Building. Xxxxxxxx agrees that it shall not discriminate as against Tenant
in
42
enforcing the foregoing prohibition against interfering with the business of
Landlord or other tenants in the Building.
11.07. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, or any person claiming through or
under Tenant (other than Landlord's Work, subject to the provisions of Section
8.01(b) hereof, or any other work, labor, services or materials done for or
supplied by Landlord or its affiliates, agents, representatives or contractors),
which shall be issued by the Department of Buildings of the City of New York or
any other public authority having or asserting jurisdiction. Tenant shall
defend, indemnify and save harmless Landlord from and against any and all
mechanic's and other liens and encumbrances filed in connection with
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant, including,
without limitation, security interests in any materials, fixtures or articles so
installed in and constituting part of the Premises and against all costs,
expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record of all such liens and
encumbrances within thirty (30) days after Tenant shall have received notice of
the filing thereof. However, nothing herein contained shall prevent Tenant from
contesting, in good faith and at its own expense, any notice of violation,
provided that Tenant shall comply with the provisions of Section 8.02 hereof.
11.08. Tenant will promptly upon the completion of an Alteration
(excluding Landlord's Work) deliver to Landlord "as-built" drawings of any
Alterations Tenant has performed or caused to be performed in the Premises which
cost in excess of $50,000.
11.09. All fixtures and equipment installed or used by Tenant in the
Premises shall be fully paid for by Tenant in cash and shall not be subject to
conditional bills of sale, chattel mortgage or other title retention agreements.
11.10. Tenant shall keep records of Xxxxxx's Alterations costing in
excess of $50,000 and of the cost thereof. Tenant shall, within forty-five (45)
days after demand by Landlord, furnish to Landlord copies of such records and
cost if Landlord shall require same in connection with any proceeding to reduce
the assessed valuation of the Real Property, or in connection with any
proceeding instituted pursuant to Article 8 hereof or for any other reasonable
purpose.
43
ARTICLE 12
Landlord's and Tenant's Property
-------------- -----------------
12.01. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of or during the term
of this Lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Premises, shall, upon the expiration or sooner termination
of this Lease, be deemed the property of Landlord and shall not be removed by
Tenant, except as provided in Section 12.02. Further, any carpeting or other
personal property in the Premises on the Commencement Date, unless installed and
paid for by Tenant, shall be and shall remain Landlord's property and shall not
be removed by Tenant. Notwithstanding the foregoing provisions, upon notice to
Tenant no later than thirty (30) days prior to the Expiration Date or upon
reasonable notice with respect to such earlier date upon which the term of this
Lease shall expire, Landlord may require Tenant to remove all or part of the
foregoing fixtures, equipment, improvements and appurtenances attached to or
built into the Premises during the term of this Lease; provided, however, that
(i) Tenant shall not be obligated to remove any such fixtures, equipment,
improvements and appurtenances installed prior to the date of this Lease, and
(ii) Tenant's obligation to remove fixtures, equipment, improvements and
appurtenances installed after the date of this Lease shall be limited to non-
standard items such as kitchens, vaults, private restrooms, raised or reinforced
flooring, or other items which are unusually difficult or expensive to remove.
Tenant shall remove any such items required by Landlord pursuant to the
preceding sentence from the Premises prior to the expiration of this Lease at
Tenant's expense. Upon such removal Tenant shall immediately and at its expense,
repair and restore the Premises to the condition existing prior to installation
and repair any damage to the Premises or the Building due to such removal.
12.02. All movable partitions, furniture systems, special cabinet
work, business and trade fixtures, machinery and equipment, communications
equipment (including, without limitation, telephone system, security system and
wiring) and office equipment, whether or not attached to or built into the
Premises, which are installed in the Premises by or for the account of Tenant
without expense to Landlord and can be removed without structural damage to the
Building, and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (herein collectively called
"Tenant's Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the term of this Lease; provided that if
any of Tenant's Property is removed, Tenant shall repair or pay the cost of
repairing any damage to the Premises or to the Building resulting from the
installation and/or removal thereof. Any equipment or other property for which
Landlord shall have granted any allowance or credit to Tenant shall not be
deemed to have been installed by or for the account of Tenant without expense to
Landlord, shall not be considered Tenant's Property and shall be deemed the
property of Landlord.
44
12.03. At or before the Expiration Date of this Lease (or within 15
days after any earlier termination of this Lease) Tenant, at its expense, shall
remove from the Premises all of Tenant's furniture, equipment (including,
without limitation, telecommunications equipment and wiring and cabling) and
other moveable personal property not affixed or attached to the Premises (except
for such items thereof as Landlord shall have expressly permitted to remain,
which property shall become the property of Landlord), and Tenant shall repair
any damage to the Premises or the Building resulting from any installation
and/or removal of Tenant's Property.
12.04. Any other items of Tenant's Property which shall remain in the
Premises after the Expiration Date of this Lease, or within 15 days following an
earlier termination date, may at the option of Landlord, be deemed to have been
abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine, at Tenant's expense.
ARTICLE 13
Repairs and Maintenance
-----------------------
13.01. Tenant shall, at its expense, throughout the term of this
Lease, take good care of and maintain in good order and condition the Premises
and the fixtures and improvements therein including, without limitation, the
property which is deemed Landlord's pursuant to Section 12.01 hereof and
Xxxxxx's Property, except as otherwise expressly provided in the last sentence
of this Section 13.01. Tenant shall be responsible for all repairs, interior and
exterior, structural (except as provided in the last sentence of this Section
13.01) and non-structural, ordinary and extraordinary, foreseen or unforeseen,
in and to the Premises, and shall be responsible for the cost of all repairs,
interior and exterior, structural (except as provided in the last sentence of
this Section 13.01) and non-structural, ordinary and extraordinary, foreseen or
unforeseen, in and to the Building and the facilities and systems thereof, to
the extent the need for same arises out of (a) the performance or existence of
Alterations (excluding Landlord's Work), (b) the installation, use or operation
of the property which is deemed Landlord's, pursuant to Sections 12.01 and 12.02
hereof and Tenant's Property, (c) the moving of the property which is deemed
Landlord's pursuant to Sections 12.01 and 12.02 hereof and Tenant's Property in
or out of the Building, (d) the act, omission, misuse or neglect of Tenant or
any of its subtenants or its or their employees, agents, contractors or invitees
or (e) design flaws in any of Tenant's plans and specifications regardless of
the fact that such Xxxxxx's plans may have been approved by Landlord. Tenant, at
its expense, shall promptly replace all scratched, damaged or broken doors and
glass (and the solar film, if any, attached to the window glass) in and about
the Premises, including, without limitation, entrance doors and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Premises and for all the repair, maintenance and replacement of
all horizontal portions of the systems and facilities of the Building within or
exclusively serving the Premises, including without limitation the sanitary
45
and electrical fixtures and equipment therein. All repairs in or to the Premises
for which Xxxxxx is responsible shall be promptly performed by Tenant in a
manner which will not interfere with the use of the Building by other occupants;
provided, however, any repairs in and to the Building and the facilities and
systems thereof for which Xxxxxx is responsible shall be performed by Landlord
at Tenant's expense which expense shall be commercially reasonable. 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. Notwithstanding the foregoing
provisions of this Section 13.01, Tenant shall not be responsible for repairs to
or replacements of any structural elements of the Premises or the Building,
except to the extent the need for such repairs or replacements arises from the
matters set forth in clauses (a), (c), (d) or (e) of the second sentence of this
Section 13.01 or from the negligence or willful misconduct of Tenant, its
employees, agents or contractors.
13.02. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating, air-conditioning or ventilation system or
electrical lines located in, servicing or passing through the Premises of which
it has actual knowledge. Following such notice, Landlord shall remedy the
conditions, but at the expense of Tenant if Tenant is responsible for same under
the provisions of this Article 13.
13.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury arising from Landlord's making
any repairs or changes which Landlord is required or permitted by this Lease, or
required by law, to make in or to the fixtures, equipment or appurtenances of
the Building or the Premises; provided, however, that Landlord shall use
reasonable efforts to the extent practicable to make such repairs and changes at
such times and in such manner as to minimize interference with the conduct of
Xxxxxx's business in the Premises, provided that Landlord shall not be required
to perform any such work on an overtime or premium-pay basis.
ARTICLE 14
Electricity
-----------
14.01. If and to the extent the Premises is comprised of an entire
floor or floors, Xxxxxx agrees to purchase from Landlord or from a meter company
designated by Landlord all electricity consumed, used or to be used in such
entire floor(s). The amount to be paid by Tenant for electricity consumed shall
be determined by meter or meters and related equipment installed (or, if
existing, retrofitted) by Landlord as part of Tenant's Work and billed
separately according to each meter. Bills for electricity consumed by Tenant,
which Xxxxxx hereby agrees to pay, shall be rendered by Landlord or the meter
company to Tenant at such time as Landlord may
46
elect, and shall be payable as an Additional Charge, within fifteen (15) days
after rendition of any such bill. Tenant shall make no material changes or
additions to the electrical equipment, wiring and/or appliances in the Premises
(beyond that on Tenant's approved plans for initial occupancy) without
submission of plans for the prior written consent of Landlord.
14.02. The amount to be charged to Tenant by Landlord per "KW" and
"KWHR" pursuant to this Article for electricity consumed within the Premises,
whether shown on the meters measuring Tenant's consumption of electricity or
determined by survey as herein elsewhere provided, shall be 108% of the amount
at which Landlord from time to time purchases each KW and KWHR of electricity
for the same period from the utility company, which amount (herein, as adjusted
from time to time, called "Landlord's Rate") shall be determined by dividing the
cost established by said utility company (averaged separately for KWs and KWHRs)
during each respective billing period by the number of KWs and KWHRs consumed by
the Building appearing on the utility company invoice for such period. In no
event shall the Additional Charge made to Tenant pursuant to this Article 14 for
submetered electricity supplied to the Premises (or the charge pursuant to
Section 14.04 hereof in the event electricity is supplied on a rent inclusion
basis) be less than Landlord's actual cost therefor. If Tenant shall occupy the
Premises for business purposes (including, without limitation, the testing or
operation of its computers) and consume electricity prior to the installation of
meters in the Premises, then Tenant agrees to pay Landlord the sum of $2.75 per
rentable square foot per annum for electricity pursuant to Section 14.04 hereof
until such time as said meters are installed.
14.03. In the event that the "submetering" of electricity in the
Building is hereafter prohibited by any law hereafter enacted, or by any order
or ruling of the Public Service Commission of the State of New York, or by any
judicial decision of any appropriate court, at the request of Landlord, Tenant
shall, unless Tenant elects to require Landlord to provide electricity pursuant
to Section 14.04 hereof, apply within five (5) days to the appropriate public
utility company servicing the Building for direct electric service and bear all
costs and expenses necessary to comply with all rules and regulations of such
public utility company pertinent thereto, and Landlord and/or the meter company
theretofore designated by Landlord shall be relieved of any further obligation
to furnish electricity to Tenant pursuant to this Article 14, except Landlord
shall permit its wires, conduits and electrical equipment, to the extent
available and safely capable, to be used for such purpose. Any additional riser
or risers or feeders or service, to the extent available and reasonably
feasible, to supply Tenant's electrical requirements will be installed by
Landlord, at the sole cost and expense of Tenant, if in Landlord's reasonable
judgment the same are necessary and will not cause permanent damage or injury to
the Building or the Premises or cause or create a dangerous or hazardous
condition or unreasonably interfere with or disturb other tenants or occupants.
In addition to the installation of such riser or risers, Landlord will also, at
the sole cost and expense of Tenant, install at reasonably competitive rates all
other equipment proper and necessary in connection therewith, subject to the
aforesaid terms and conditions, and subject to Landlord's prior approval of
Xxxxxx's plans therefor which shall not be unreasonably withheld or delayed.
47
14.04. (a) If(i) submetering of electricity is prohibited as
described in Section 14.03 hereof and Tenant does not elect to obtain
electricity from the public utility company, or (ii) if and to the extent that
the Premises or any portion of Tenant's electric consumption (KW and KWHR) is
measured on a meter that also measures the electric consumption of another
tenant occupying space in the Building, then in any such case Landlord shall
furnish electricity to Tenant on the basis that Tenant's consumption (KW and
KWHR) of electricity shall be measured by electric survey made from time to time
by Xxxxxxxx's consultant. Pending an initial survey made by Xxxxxxxx's
consultant, effective as of the date when Landlord has commenced furnishing
electricity to Tenant pursuant to this Section 14.04 (with suitable proration
for any period of less than a full calendar month), the Fixed Rent specified in
Section 1.04 hereof shall be increased by an amount (the "Initial Charge") which
shall be at the rate of $2.75 per rentable square foot per annum, or in the
event the reason is (i) above. then, if there has been twelve (12) months
charges of submetered electric, an amount equal to the average of the prior
twelve (12) months' charges for submetered electric. After completion of the
electrical survey made by Xxxxxxxx's consultant of Tenant's consumption (KW and
KWHR) of electricity, said consultant shall apply 100% of Landlord's Rate as
provided in Section 14.02 hereof to arrive at an amount (herein called the
"Actual Charge") and the Fixed Rent shall be appropriately adjusted
retroactively to reflect any amount by which the Actual Charge exceeds the
Initial Charge. Tenant shall pay that portion of such amount which would have
been paid to the date of the determination of the Actual Charge within ten (10)
days after being billed therefor. Thereafter and from time to time during the
term of this Lease, Landlord may cause additional surveys of Tenant's electrical
usage to be made by Landlord's consultant. Tenant from time to time may request
Landlord to have a survey made of Tenant's electrical usage, and the fees of
Landlord's consultant making such survey(s) at Tenant's request shall be paid by
Xxxxxx. In the event any of the foregoing surveys shall determine that there has
been an increase or decrease in Tenant's usage of electricity, then effective as
of the date of such change in usage the then current Actual Charge to Tenant by
reason of the furnishing of electricity to Tenant, as same may have been
previously increased pursuant to the terms hereof, shall be increased or
decreased (subject to the last sentence of subsection 14.04(b) hereof) in
accordance with such survey determination with appropriate credit allowed to
Tenant in the event of a decrease in usage and in the event of an increase in
such usage Tenant shall pay the increased amount therefor from the date of such
change in usage to the date of such survey determination within ten (10) days
after being billed therefor and thereafter as part of the increased monthly
charge for electricity by reason of such survey determination.
(b) In the event from time to time after the initial survey
or a subsequent survey any additional electrically operated equipment is
installed in the Premises by Tenant, or if Tenant shall increase its hours of
operation, or if the charges by the utility company supplying electric current
to Landlord are increased or decreased after the date thereof, then and in any
of such events the monthly charge shall be increased or decreased accordingly on
account of such additional electricity consumed by such newly installed
electrically operated equipment and/or increase in Tenant's hours of operation
and/or on account of such increased or decreased
48
Landlord's Rate. The amount of such increase or decrease in the monthly charge
shall be determined in the first instance by Landlord's consultant. In addition,
the monthly rate will be increased or decreased quarterly in accordance with
calculations by Xxxxxxxx's consultant to reflect changes in the fuel adjustment
component of the utility company charge. Tenant shall pay the amount of any
increase in the monthly charge retroactively (subject to Xxxxxx's right to
contest in the same manner as in Section 14.06 hereof provided) from the date of
the installation of all newly installed electrically operated equipment and/or
from the date when the increased charges to Landlord from the utility company
become effective and/or from the date of any increase in Tenant's hours of
operation, as the case may be, such amount to be paid promptly upon billing
therefor by Landlord. Notwithstanding anything to the contrary contained in
Section 14.04, in no event shall the Actual Charge be decreased to an amount
which is less than the Initial Charge per rentable square foot per annum.
14.05. All survey determinations (including the first survey made by
Landlord's consultant) shall be subject to contest by Xxxxxx as provided in
Section 14.06 hereof. Surveys made of Tenant's electrical consumption shall be
based upon the use of electricity between the hours of 8:00 a.m. to 6:00 p.m.,
Mondays through Fridays, on Saturdays and such other days and hours when Tenant
(or Tenant's agents, employees and/or contractors) uses electricity for lighting
and for the operation of the machinery, appliances and equipment used by Tenant
in the Premises; and if cleaning services are provided by Landlord, such survey
shall include Landlord's normal cleaning hours of five (5) hours per day (which
shall not be subject to reduction) for lighting within the Premises and for
electrical equipment normally used for such cleaning.
14.06. In the event electricity shall be furnished to Tenant as
contemplated in Section 14.04 hereof, then Tenant, within sixty (60) days after
notification from Landlord of the determination of Landlord's utility consultant
(in accordance with the provisions of Section 14.04 hereof), shall have the
right to contest, at Tenant's cost and expense, such determination by submitting
to Landlord a like survey determination prepared by a utility consultant of
Tenant's selection, which will highlight the differences between Xxxxxxxx's
survey and Tenant's survey. If the determination of Tenant's consultant does not
vary from the determination of Landlord's consultant by more than five percent
(5%), then Landlord's determination shall be deemed binding and conclusive. If
the determination of Tenant's consultant varies by more than five percent (5%)
and if Landlord's consultant and Tenant's consultant shall be unable to reach
agreement within thirty (30) days, then such two consultants shall designate a
third consultant to make the determination, and the determination of such third
consultant shall be binding and conclusive on both Landlord and Tenant. If the
determination of such third consultant shall substantially confirm the findings
of Landlord's consultant (i.e., within five percent (5%)), then Tenant shall pay
---
the cost of such third consultant. If such third consultant shall substantially
confirm the determination of Tenant's consultant (i.e., within five percent
---
(5%)), then Landlord shall pay the cost of such third consultant. If such third
consultant shall make a determination substantially different from that of both
Landlord's and Xxxxxx's consultants (or is within ten percent (10%) of both such
determinations), then the cost of such third consultant shall be borne
49
equally by Landlord and Xxxxxx. In the event that Xxxxxxxx's consultant and
Xxxxxx's consultant shall be unable to agree upon the designation of a third
consultant within thirty (30) days after Tenant's consultant shall have made its
determination (different from that of Landlord's consultant), then either party
shall have the right to request The Real Estate Board of New York, Inc. (or,
upon their failure or refusal to act, the American Arbitration Association in
the City of New York) to designate a third consultant whose decision shall be
conclusive and binding upon the parties, and the costs of such third consultant
shall be borne as hereinbefore provided in the case of a third consultant
designated by the Landlord's and Xxxxxx's consultants. Pending the resolution of
any contest pursuant to the terms hereof, Tenant shall pay the Additional Charge
on account of electricity determined by Landlord's consultant, and upon the
resolution of such contest, appropriate adjustment in accordance with such
resolution of such Additional Charge payable by Tenant on account of electricity
shall be made retroactive to the date of the determination of Landlord's
consultant.
14.07. If pursuant to any law, ruling, order or regulation the amount
which Landlord is permitted to charge to Tenant for the purchase of electricity
pursuant to this Article 14 shall be reduced below that which Landlord would
otherwise be entitled to charge Tenant hereunder, then Tenant shall pay the
difference between such amounts to Landlord as an Additional Charge within ten
(10) days after being billed therefor by Landlord, as compensation for the use
of the Building's electric distribution system.
14.08. Tenant covenants and agrees that at all times its installations
and use of electricity shall never exceed the capacity of feeders to or
electrical vaults of the Building or the risers or wiring serving the Premises.
If (i) in Landlord's reasonable opinion Tenant's installation overloads the
electrical vaults/feeders or any riser(s) and/or switch(es) in or servicing the
Building or (ii) Tenant requests additional power in addition to that which is
being supplied by Landlord on the date of initial occupancy, then if and to the
extent allocated power is available in the Building for use by Tenant without
resulting in allocation to Tenant of a disproportionate amount of allocated
power, Landlord shall, at Tenant's cost and expense, provide and install in
conformity with law any additional riser or risers and/or any and all switch or
switches to connect additional power to the Premises, and Tenant agrees to pay
Landlord its then-established connection charge for each additional amp of power
or portion hereof so supplied to the Premises, together with the cost of
installing such additional risers, switches and related equipment.
14.09. Landlord shall not in any way be liable or responsible to
Tenant for any loss, damage or expense which Tenant may sustain or incur if (i)
the supply of electric energy to the Premises is temporarily interrupted or (ii)
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements, except to the extent resulting
from Xxxxxxxx's willful misconduct or gross negligence.
50
14.10. At Landlord's option, Landlord shall furnish and install all
replacement lighting, tubes, lamps, bulbs and ballasts required in the Premises;
and in such event, Tenant shall pay to Landlord or its designated contractor
upon demand the then established reasonable charges therefor of Landlord or its
designated contractor, as the case may be.
ARTICLE 15
Landlord's Services
-------------------
15.01. (a) Landlord will provide after the term of this Lease shall
have commenced provided Tenant shall have taken occupancy of the Premises for
the conduct of its business the following services to the Premises in the manner
hereinafter more particularly set forth: (i) heat, ventilation and air
conditioning; (ii) elevator service; (iii) domestic hot and cold water; and (iv)
cleaning.
(b) As used herein, the terms "Business Hours" shall mean the
hours between 8:00 a.m. and 6:00 p.m., and "Business Days" shall mean all days
except Saturdays, Sundays, New Year's Day, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Thanksgiving, the day following Thanksgiving, and
Christmas, and any other days which shall be either (i) observed by both the
federal and the state governments as legal holidays or (ii) designated as a
holiday by the applicable Building Service Union Employee Service contract or by
the applicable Operating Engineers contract.
15.02. (a) (i) Landlord shall furnish heating, ventilation and air
conditioning to the Premises during Business Hours on Business Days by way of
the existing base Building heating, ventilation and air conditioning equipment
(herein called the "Base Building HVAC Equipment") which shall not include any
supplemental air conditioning units installed by or on behalf of Tenant, so as
to be capable of meeting the following specifications:
(x) providing air conditioning during the summer months at an
average inside design temperature of seventy-five (75)
degrees Fahrenheit dry bulb (+ or - 2 degrees) and a room
relative humidity of fifty percent (50%) (+ or - 5%) when
the outside temperature is ninety-two (92) degrees
Fahrenheit dry bulb coincident with a wet bulb
temperature of seventy-four (74) degrees Fahrenheit; and
(y) providing heating during the winter months at an average
inside design temperature of seventy-two (72) degrees
Fahrenheit dry bulb when the outside temperature is
eleven (11) degrees Fahrenheit dry bulb with a wind
velocity of fifteen (15) miles per
51
hour. HVAC System includes Economizer cycle (air
side/water side) for year-round use.
The Base Building HVAC Equipment shall be capable of meeting the
specifications set forth in the immediately preceding paragraph provided and on
the condition that:
(i) occupancy does not exceed one person per 125 square feet of
rentable floor area within the Premises;
(ii) Tenant's total connected electrical load does not exceed 6
xxxxx per rentable square foot (exclusive of base building
HVAC) for all power consumed within the Premises including,
without limitation, lighting, and business equipment;
(iii) Tenant substantially complies with all of the reasonable and
customary Rules and Regulations of the Building relating to
heating, ventilating and air conditioning including, without
limitation, the requirements that windows be kept shut at all
times and blinds be kept lowered during the operation of air
conditioning equipment.
(ii) Any use of the Premises, or any part thereof, or
rearrangement of partitioning in a manner that interferes with normal operation
of the heat and air-conditioning systems servicing the same, may require changes
in such systems. Such changes, so occasioned, shall be made by Tenant, at its
expense, subject to Landlord's prior written approval of such changes, which
approval may be withheld for any reason. Tenant shall not make any change,
alteration, addition or substitution to the air-conditioning system without
Landlord's prior written approval, which approval may be withheld for any
reason.
(b) If Landlord shall make steam available for Tenant's use
within the Premises for any additional heating or permitted kitchen use, the
cost of such steam as well as the cost of piping and other equipment or
facilities required to supply steam to and distribute steam within the Premises
shall be paid by Tenant. Landlord may install and maintain at Tenant's expense,
meters to measure Tenant's consumption of steam and Tenant shall reimburse
Landlord, on demand, for the quantities of steam shown on such meters at
Landlord's reasonable charges.
(c) (i) Landlord shall provide passenger elevator service
to each floor of the Premises at all times during Business Hours of Business
Days and at least one of such passenger elevators shall be subject to call at
all other times. Landlord shall provide freight elevator service to the Premises
on a first come-first served basis (i.e., no advance scheduling) and at no
charge to Tenant between the hours of 8:00 A.M. and 11:30 A.M. and 1:00 P.M. and
4:30 P.M. on Business Days. Freight elevator service shall also be provided to
the Premises on a reserved basis at all other times, upon the payment of
Landlord's then established charges
52
therefor which shall be Additional Charges hereunder; provided, however, that
with respect to (x) the performance of any Alterations by Xxxxxx during the
ninety (90) day period following the Commencement Date to prepare the Premises
for Tenant's initial occupancy thereof and (y) Tenant's initial move into the
Premises, Tenant shall only be required to reimburse Landlord for its actual
out-of-pocket costs of providing such freight elevator service, without profit
to Landlord. The use of all elevators shall be on a non-exclusive basis and
shall be subject to the Rules and Regulations.
(ii) At any time or times all or any of the elevators in
the Building may, at the option of Landlord, be manual and/or automatic
elevators, and Landlord shall be under no obligation to furnish an elevator
operator for any automatic elevator. If Landlord shall at any time or times
furnish any elevator operator for any automatic elevator, Landlord may
discontinue furnishing such elevator operator without any diminution, reduction
or abatement of rent.
(d) Landlord shall furnish reasonable quantities of hot and
cold water to the floor(s) on which the Premises are located for core lavatory,
cleaning and drinking purposes only. If Tenant shall require water for any other
purpose, Landlord need only furnish cold water at the Building core riser
through a capped outlet located on the floor of the Premises, and the cost of
heating such water as well as piping and supplying such water to the Premises
shall be paid by Tenant. Landlord may install and maintain, at Tenant's expense,
meters to measure Tenant's consumption of such cold water and/or hot water for
such other purposes. Tenant shall pay to Landlord at Landlord's standard charges
for the quantities of cold water and hot water shown on such meters (including
Landlord's charge for the production of such hot water, if Landlord shall have
produced such hot water) within ten (10) days after demand.
(e) (i) Except as otherwise provided below, Landlord shall
provide cleaning and janitorial services to the Premises on Business Days.
Tenant shall pay to Landlord within ten (10) days after demand the actual costs
incurred by Landlord for (x) extra cleaning work in the Premises required
because of (i) misuse or neglect on the part of Tenant or its subtenants or its
or their employees or visitors, (ii) interior glass partitions or unusual
quantity of interior glass surfaces (if cleaning thereof is requested by
Tenant), and (iii) non-building standard materials or finishes installed by
Tenant or at its request (if cleaning thereof is requested by Tenant), (y)
removal from the Premises and the Building of any refuse and rubbish of Tenant
in excess of that ordinarily accumulated in business office occupancy,
including, without limitation, kitchen refuse, or at times other than Landlord's
standard cleaning times, and (z) the use of the Premises by Tenant other than
during Business Hours on Business Days, to the extent that Landlord incurs
actual increases in costs as a result of such use. Notwithstanding the
foregoing, Landlord shall not be required to clean any portions of the Premises
used for preparation, serving or consumption of food or beverages, training
rooms, data processing or reproducing operations, private lavatories or toilets
or other special purposes requiring greater or more difficult cleaning work than
office areas and, if Tenant requires the cleaning of such areas,
53
Xxxxxx agrees, at Xxxxxx's expense, to retain Xxxxxxxx's cleaning contractor to
perform such cleaning.
(ii) Landlord, its cleaning contractor and their respective
employees shall have access to the Premises after 6:00 p.m. and before 8:00 a.m.
and shall have the right to use, without charge therefor, all light, power and
water in the Premises reasonably required to clean the Premises as required
under this subsection 15.02(e).
(iii) Tenant shall not clean, nor require, permit, suffer or
allow any windows in the Premises to be cleaned, from the outside in violation
of Section 202 of the Labor Law, or any other applicable law.
15.03. If Tenant shall require heat or air-conditioning services at any
time other than as set forth in subsection 15.02(a), Landlord shall furnish such
service for such times upon reasonable advance notice from Tenant. and Tenant
shall pay to Landlord within ten (10) days after demand as Additional Charges
hereunder Xxxxxxxx's then established charges therefor.
15.04. Except as otherwise expressly provided above, Landlord shall not be
required to provide any services to the Premises.
15.05. Subject to the provisions of Section 15.09 and Articles 19 and 20
hereof, Landlord reserves the right, without liability to Tenant and without it
being deemed a constructive eviction, to stop or interrupt any heating,
elevator, escalator, lighting, ventilating, air-conditioning, steam, power,
electricity, water, cleaning or other service and to stop or interrupt the use
of any Building facilities and systems at such times as may be necessary and for
as long as may reasonably be required by reason of accidents, strikes, or the
making of repairs, alterations or improvements, or inability to secure a proper
supply of fuel, gas, steam, water, electricity, labor or supplies, or by reason
of any other similar or dissimilar cause beyond the reasonable control of
Landlord. Subject to the provisions of Section 15.09 and Articles 19 and 20
hereof, no such stoppage or interruption shall result in any liability from
Landlord to Tenant or entitle Tenant to any diminution or abatement of rent or
other compensation nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of any such stoppage or interruption. Except in
emergency circumstances, Landlord shall give Tenant reasonable prior notice
(which notice need not be in writing) of its intention to make any repairs,
alterations or improvements referred to in this Section 15.05 or any other
stoppages of services of which Landlord has prior notice and shall use
reasonable efforts in making such repairs, alterations or improvements and in
dealing with such other stoppages of service so as to minimize interference with
Xxxxxx's business operations, provided that Landlord shall not be required to
perform any such work on an overtime or premium-pay basis.
15.06. Only Landlord or persons approved by Landlord shall be permitted to
furnish or sell laundry, linen, towels, drinking water, ice, food, beverages,
bootblacking,
54
barbering and other similar supplies and services to tenants. Xxxxxxxx may fix
the circumstances under which such supplies and services are to be furnished or
sold. Landlord expressly reserves the right at any time to act as or to
designate an exclusive supplier of all or any one or more of said supplies and
services, provided that the quality thereof and the charges therefor shall be
reasonably comparable to that of other suppliers in the downtown area of
Manhattan in the City of New York. Landlord expressly reserves the right to
exclude from the Building any person not so designated by Landlord. However,
Tenant, its regular office employees or invitees may personally bring food or
beverages into the Building for consumption within the Premises solely by
Tenant, its regular office employees or invitees.
15.07. In addition to any remedies which Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies contained elsewhere in this Lease, if there shall be a default
hereunder by Tenant which shall not have been remedied within the applicable
grace period, Landlord shall not be obligated to furnish to Tenant or the
Premises any services outside of Business Hours on Business Days; and the
discontinuance of any one or more such services shall be without liability by
Landlord to Tenant and shall not reduce, diminish or otherwise affect any of
Tenant's covenants and obligations under this Lease.
15.08. If and for so long as Landlord maintains a Building directory,
Landlord, at Tenant's request, shall maintain listings on such directory of the
names of Tenant, or its permitted subtenants, assignees or affiliates and the
names of any of their officers and employees, provided that the names so listed
shall not use more than Tenant's Share of the space on the Building directory.
The actual cost to Landlord for making any changes in such listings requested by
Tenant shall be paid by Tenant to Landlord within twenty (20) days after
delivery of an invoice therefor.
15.09. Notwithstanding anything to the contrary contained in this Lease,
but subject to the provisions of Articles 19 and 20 hereof to the extent
applicable, if for a period of seven (7) consecutive Business Days after notice
by Tenant to Landlord, (i) Landlord fails to provide services required under
this Lease to be provided to the Premises or (ii) Landlord fails to make repairs
required under this Lease to be made by Landlord, and (w) the cause of such
failure shall not be Force Majeure Causes or the act or omission of Tenant, its
agents, representatives, contractors or employees, and (x) the Premises (or, in
the event that the Premises shall include more than one (1) floor of the
Building, any affected portion of the Premises which includes all of the space
leased by Tenant on the same floor of the Building) shall be rendered
untenantable thereby and (y) Tenant shall vacate the Premises or such affected
portion thereof, as the case may be, throughout such period of untenantability
and (z) Tenant shall concurrently therewith give notice of such fact to
Landlord, then, in such event, the Fixed Rent payable pursuant to this Lease
which is allocable to the Premises or such affected portion thereof, as the case
may be, shall be abated for the period commencing on the day immediately
succeeding the expiration of such seven (7) consecutive Business Day period and
ending on the date that the Premises or such
55
affected portion thereof shall be rendered tenantable (or such earlier date, if
any, as Tenant shall reoccupy the Premises or such affected portion thereof for
the conduct of its business).
15.10. At Tenant's request, Landlord will make available condenser water
for the operation of supplemental air-conditioning units installed by Tenant in
an amount of up to twenty (20) tons in the aggregate. Xxxxxxxx's charge for
providing such condenser water to Tenant shall be at the rate of $400 per ton
per year, which charge will be subject to increase for each Operating Year
during the term hereof and shall be paid by Xxxxxx as Additional Charges
hereunder within twenty (20) days after demand. Tenant shall also pay to
Landlord as Additional Charges hereunder, within twenty (20) days after demand,
a one-time tap-in charge of $2,000 per tap, for providing condenser water
pursuant to this Section 15.10. Landlord may install and maintain at Tenant's
cost, meters to measure Tenant's consumption of such condenser water. It is
understood and agreed that Landlord shall have no responsibility with respect to
the operation, maintenance and or repair of Tenant's supplemental air-
conditioning units and all equipment relating thereto. In the event Tenant
installs supplemental air-conditioning units to serve the Premises. Tenant
covenants and agrees, at its sole cost and expense, (i) to obtain and maintain
all permits required in connection therewith and (ii) to maintain in full force
and effect for so long as such air-conditioning unit remains in the Building, a
maintenance agreement for the periodic maintenance of such unit on customary
terms with a contractor reasonably acceptable to Landlord and to furnish a copy
of said contract and all extensions thereof to Landlord within ten (10) days
after demand. Landlord shall perform routine testing and maintenance of the
Building condenser water tower and shall give Tenant reasonable prior notice of
such testing. Landlord shall cooperate with Tenant in order to schedule such
testing so as to minimize material interference with the conduct of Xxxxxx's
business. Any supplemental air-conditioning units installed by Tenant shall,
upon expiration or earlier termination of this Lease, become and remain the
property of Landlord and shall be surrendered by Tenant with the Premises.
15.11. Subject to applicable Legal Requirements, requirements of insurance
bodies. Force Majeure Causes (as such term is defined in Section 35.04 hereof)
and Landlord's reasonable security measures for the Building, Tenant shall have
access to the Premises on a twenty-four (24) hour-per-day, seven (7)
day-per-week basis.
ARTICLE 16
Access and Name of Building
---------------------------
16.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior and atrium Building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the Premises, and any space in or adjacent to the Premises used for shafts,
stacks, pipe, conduits, fan rooms, ducts, electric or other utilities,
56
sinks or other Building facilities, and the use thereof, as well as access
thereto through the Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord and persons authorized by
Landlord. Tenant acknowledges that Landlord has installed or is planning to
install in the Building on the inside of the windows thereof a film to reduce
the usage of energy in the Building. Xxxxxx agrees that the foregoing provisions
of this Section 16.01 shall apply to the installation, maintenance or
replacement of such film.
16.02. Landlord reserves the right, and Tenant shall permit Landlord and
persons authorized by Landlord, to install, erect, use and maintain pipes, ducts
and conduits in and through the Premises; provided that (a) if installed
adjacent to the Premises then such installations shall be, at Landlord's cost
and expense, located in boxed enclosures and appropriately furred, and (b) in
performing such installation work, Landlord shall use reasonable efforts not to
interfere with Tenant's use of the Premises without any obligation to employ
overtime services. Any damage to the Premises resulting from Xxxxxxxx's exercise
of the foregoing right shall be repaired promptly by Landlord, at Landlord's
expense.
16.03. Landlord and persons authorized by Landlord shall have the right,
upon reasonable advance notice, except in cases of emergency, to enter and/or
pass through the Premises at reasonable times provided Landlord shall use
reasonable efforts to minimize any interference with Xxxxxx's business
operations (without obligation to make such visits during non-business hours)
and shall be accompanied by a designated representative of Tenant if Tenant
shall have made such representative available to Landlord, (a) to examine the
Premises and to show them to actual and prospective Superior Lessors, Superior
Mortgagees, or prospective purchasers, mortgagees or lessees of the Building,
(b) to make such repairs, alterations, additions and improvements in or to the
Premises and/or in or to the Building or its facilities and equipment as
Landlord or persons authorized by Landlord is or are required or desires to
make, and (c) to read any utility meters located therein. Landlord and such
authorized persons shall be allowed to take all materials into and upon the
Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's covenants and obligations
hereunder.
16.04. If at any time any windows of the Premises are either temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building (or permanently darkened or obstructed
if required by law) or covered by any translucent material for the purpose of
energy conservation, or if any part of the Building, other than the Premises, is
temporarily or permanently closed or inoperable, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant's
obligations under this Lease.
16.05. During the time period referred to in subsection 7.07 and during the
period of twelve (12) months prior to the expiration date of this Lease,
Landlord and persons authorized by Landlord may exhibit the Premises to
prospective tenants.
57
16.06. If, during the last month of the term of this Lease, Tenant has
removed all or substantially all of Tenant's property from the Premises,
Landlord or persons authorized by Landlord may, without notice to Tenant,
immediately enter the Premises and alter, renovate and decorate the same,
without liability to Tenant and without reducing or otherwise affecting Tenant's
covenants and obligations hereunder.
16.07. Landlord reserves the right, at any time, without it being deemed a
constructive eviction and without incurring any liability to Tenant therefor, or
affecting or reducing any of Tenant's covenants and obligations hereunder, to
make or permit to be made such changes, alterations, additions and improvements
in or to the Building and the fixtures and equipment thereof, as well as in or
to the street entrances, atrium, doors, halls, passages, elevators, escalators
and stairways thereof, and other public parts of the Building, as Landlord shall
deem necessary or desirable. Landlord agrees that any changes, alterations,
additions or improvements performed pursuant to this Section shall not, when
completed, unreasonably interfere with the access to or use of the Premises by
Tenant or materially diminish any services to be provided by Landlord hereunder,
and in the event of any such interference, Tenant shall have the rights and
remedies provided for in Section 15.09 hereof, to the extent applicable.
16.08. Landlord reserves the right to name the Building and to change the
name or address of the Building at any time and from time to time. Landlord
shall endeavor to give Tenant reasonable prior notice of any change in the
address of the Building. Neither this Lease nor any use by Tenant shall give
Tenant any easement or other right in or to the use of any door or any passage
or any concourse or any plaza connecting the Building with any subway or any
other building or to any public conveniences, and the use of such doors,
passages, concourses, plazas and conveniences may without notice to Tenant, be
regulated or discontinued at any time by Landlord.
16.09. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when for any reason an entry therein shall
be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property) and without in any manner affecting
the obligations and covenants of this Lease.
16.10. Any damage to the Premises resulting from the exercise by Landlord
of its rights granted under this Article 16 shall be promptly repaired by
Landlord at Landlord's expense.
58
ARTICLE 17
Notice of Occurrences
---------------------
17.01. Tenant shall give prompt notice to Landlord of(a) any occurrence in
or about the Premises for which Landlord might be liable, (b) any fire or other
casualty in the Premises, (c) any damage to or defect in the Premises, including
the fixtures, equipment and appurtenances thereof, for the repair of which
Landlord might be responsible, and (d) any damage to or defect in any part or
appurtenance of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Premises or any part thereof, if and to the extent that Tenant shall have
knowledge of any of the foregoing matters.
ARTICLE 18
Non-Liability and Indemnification
---------------------------------
18.01. Neither Landlord, any Superior Lessor or any Superior Mortgagee, nor
any partner, director, officer, shareholder, principal, agent, servant or
employee of Landlord, any Superior Lessor or any Superior Mortgagee (in any case
whether disclosed or undisclosed), shall be liable to Tenant for any loss,
injury or damage to Tenant or to any other person, or to its or their property,
irrespective of the cause of such injury, damage or loss, nor shall the
aforesaid parties be liable for any damage to property of Tenant or of others
entrusted to employees of Landlord nor for loss of or damage to any such
property by theft or otherwise except to the extent caused by or resulting from
the willful misconduct or negligence of Landlord, its agents, servants,
employees in the operation or maintenance of the Premises or the Real Property.
Further, neither Landlord, any Superior Lessor or any Superior Mortgagee, nor
any partner, director, officer, principal, shareholder, agent, servant or
employee of Landlord, any Superior Lessor or any Superior Mortgagee, shall be
liable (a) for any such damage caused by other tenants or persons in, upon or
about the Building or the Real Property, or caused by operations in construction
of any private, public or quasi-public work; or (b) even if negligent, for
consequential damages arising out of any loss of use of the Premises or any
equipment, facilities or other Tenant's Property therein by Tenant or any person
claiming through or under Tenant.
18.02. Subject to the terms of Section 9.04 hereof relating to waivers of
subrogation (to the extent that such waivers of subrogation shall be applicable
in any case), Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and Superior Mortgagees and its and their respective partners,
directors, officers, principals, shareholders, agents and employees from and
against any and all claims arising from or in connection with (a) the conduct or
management of the Premises or of any business therein, or any work or thing
whatsoever done, or any condition created (other than by Landlord, its agents,
or employees) in
59
or about the Premises during the term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Premises; (b) any act, omission or negligence of Tenant or any of
its subtenants or licensees or its or their partners, directors, principals,
shareholders, officers, agents, employees or contractors; (c) any accident,
injury or damage whatever (except to the extent caused by Landlord's negligence
or the negligence of Landlord's agents, employees, or contractors) occurring in,
at or upon the Premises; and (d) any breach or default by Tenant in the full and
prompt payment and performance of Tenant's obligations under this Lease;
together with all reasonable costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorneys' fees and expenses. In
case any action or proceeding be brought against Landlord and/or any Superior
Lessor or Superior Mortgagee and/or its or their partners, directors, officers,
principals, shareholders, agents and/or employees by reason of any such claim,
Tenant upon notice from Landlord or such Superior Lessor or Superior Mortgagee,
shall resist and defend such action or proceeding (by counsel reasonably
satisfactory to Landlord or such Superior Lessor or Superior Mortgagee).
ARTICLE 19
Damage or Destruction
---------------------
19.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty (and if this Lease shall not be
terminated as in this Article 19 hereinafter provided), (a) Landlord shall
repair the damage to and restore and rebuild the Building and the Premises
(including Tenant's improvements and betterments but excluding the property
which is deemed Tenant's Property pursuant to Section 12.01 hereof) with
reasonable dispatch after notice to it of the damage or destruction and the
collection of the insurance proceeds attributable to such damage, and (b) Tenant
shall repair the damage to and restore and repair the property which is deemed
Tenant's Property pursuant to Section 12.01 hereof with reasonable dispatch
after such damage or destruction. Such work by Tenant shall be deemed
Alterations for the purposes of Article 11 hereof. The proceeds of policies
providing coverage for Xxxxxx's improvements and betterments shall be paid to
Landlord. Concurrently with the collection of any insurance proceeds
attributable to the damage of Xxxxxx's improvements and betterments, Tenant
shall pay to Landlord (i) the amount of any deductible under the policy insuring
Tenant's improvements and betterments and (ii) the amount, if any, by which the
cost of repairing and restoring Tenant's improvements and betterments as
estimated by a reputable contractor designated by Landlord exceeds the available
insurance proceeds therefor. The amounts due in accordance with subparagraphs
(i) and (ii) above shall be Additional Charges under this Lease and payable by
Tenant to Landlord upon demand. The proceeds of Tenant's insurance policies with
respect to Tenant's Property shall be payable to Tenant.
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19.02. Subject to the provisions of Section 19.05 hereof, if all or part of
the Premises shall be damaged or destroyed or rendered completely or partially
untenantable on account of fire or other casualty, the Fixed Rent and the
Additional Charges under Article 3 hereof shall be abated in the proportion that
the untenantable area of the Premises bears to the total area of the Premises,
for the period from the date of the damage or destruction to (i) the date the
damage to the Premises shall be substantially repaired (provided, however, that
if such repairs would have been substantially completed at an earlier date but
for Tenant's having failed to reasonably cooperate with Landlord in effecting
such repair, then the Premises shall be deemed to have been repaired
substantially on such earlier date and any reduction or abatement shall cease)
or (ii) if the Building and not the Premises is so damaged or destroyed, the
date on which the Premises shall be made tenantable; provided, however, should
Tenant or any of its subtenants reoccupy a portion of the Premises during the
period the repair work is taking place and prior to the date that the Premises
are substantially repaired or made tenantable for the conduct of its or their
business (which shall not include entry upon and occupancy of the Premises with
the prior written consent of Landlord for the purpose of performing restoration
and/or repair to Tenant's Property, improvements and finish work), the Fixed
Rent and the Additional Charges allocable to such reoccupied portion, based upon
the proportion which the area of the reoccupied portion of the Premises bears to
the total area of the Premises, shall be payable by Tenant from the date of such
occupancy.
19.03. (a) If the Building shall be totally damaged or destroyed by fire or
other casualty, or if the Building shall be so damaged or destroyed by fire or
other casualty (whether or not the Premises are damaged or destroyed) that its
repair or restoration requires more than two hundred seventy (270) days or the
expenditure of more than thirty (30%) percent of the full insurable value of the
Building immediately prior to the casualty (as estimated in any such case by a
reputable contractor, registered architect or licensed professional engineer
designated by Landlord), and provided Landlord shall terminate leases covering
no less than 50% of the office space in the Building then leased to tenants
(including Tenant) in the Building, then in such case Landlord may terminate
this Lease by giving Tenant notice to such effect within one hundred twenty
(120) days after the date of the casualty. For the purpose of this Section only,
"full insurable value" shall mean replacement cost less the cost of footings,
foundations and other structures below the street and first floors of the
Building.
(b) If the Premises or any part thereof or the means of access
thereto or Building systems servicing same shall be damaged by fire or other
casualty, and Landlord is required to or elects to repair and restore the
Premises, Landlord shall, within one-hundred twenty (120) days after such damage
or destruction, provide Tenant with a written notice of the estimated date on
which the restoration of the Premises shall be substantially completed. If such
estimated date is more than eighteen (18) months after the date of such damage
or destruction, Tenant may terminate this Lease by notice to Landlord, which
notice shall be given within thirty (30) days after the date Landlord provides
the notice required by the preceding sentence, and such termination shall be
effective upon the giving of Tenant's notice.
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Failure by Tenant to provide such notice within such thirty (30) day period
shall be deemed an election by Tenant not to terminate this Lease. If Tenant
elects not to terminate this Lease or is deemed to have so elected, and if
Landlord has not substantially completed the required repairs and restored the
Premises within the period originally estimated by Landlord or within such
period thereafter (not to exceed 3 months) as shall equal the aggregate period
Landlord may have been delayed in commencing or completing such repairs by Force
Majeure Causes, then Tenant shall have the further right to elect to terminate
this Lease upon written notice to Landlord and such election shall be effective
upon the expiration of thirty (30) days after the date of such notice, unless
Landlord substantially completes such restoration within such thirty (30) day
period.
19.04. Except as expressly provided in Section 19.03(b) hereof, Tenant
shall not be entitled to terminate this Lease and Landlord shall have no
liability to Tenant for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Premises or of the Building
pursuant to this Article 19. Landlord shall use reasonable efforts to make such
repair or restoration promptly and in such manner as not unreasonably to
interfere with Xxxxxx's use and occupancy of the Premises, but Landlord shall
not be required to do such repair or restoration work except during Business
Hours of Business Days.
19.05. Notwithstanding any of the foregoing provisions of this Article 19,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors of which Landlord shall have given Tenant notice and a
reasonable opportunity to cure either, Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Premises or the Building by fire or other casualty, then,
without prejudice to any other remedies which may be available against Tenant,
there shall be no abatement or reduction of the Fixed Rent or Additional
Charges.
19.06. Landlord will not carry insurance of any kind on Tenant's Property
and improvements and betterments, and, except as provided by law or by reason of
Landlord's negligence or wilful misconduct or its breach of any of its
obligations hereunder, shall not be obligated to repair any damage to or replace
Xxxxxx's Property. Tenant agrees to look first to its insurance for recovery of
any damage to or loss of Xxxxxx's Property. If Tenant shall fail to maintain
such insurance, and such failure shall continue for five (5) Business Days after
notice by Landlord to Tenant specifying same, Landlord shall have the right to
obtain insurance on Tenant's Property and the cost thereof shall be Additional
Charges under this Lease and payable by Tenant to Landlord on demand.
19.07. The provisions of this Article 19 shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and
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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 20
Eminent Domain
--------------
20.01. If the whole of the Building or the Premises shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this Lease and the term and estate hereby granted shall terminate as of
the date of vesting of title on such taking (herein called "Date of the
Taking"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
20.02. If more than forty (40%) percent of the Building shall be so taken,
this Lease shall be unaffected by such taking, except that (a) Landlord may, at
its option, provided that Landlord shall terminate leases of no less than fifty
(50%) percent of the office space then leased to tenants in the Building upon
which the effect of such taking shall have been substantially similar to the
effect of same upon the Premises, terminate this Lease by giving Tenant notice
to that effect within ninety (90) days after the Date of the Taking, and (b) if
twenty (20%) percent or more of the Premises shall be so taken and the remaining
area of the Premises shall not be sufficient, in Tenant's reasonable judgment,
for Tenant to continue the operation of its business, Tenant may terminate this
Lease by giving Landlord notice to that effect within 90 days after the Date of
the Taking. This Lease shall terminate on the date that such notice from
Landlord or Tenant to the other shall be given, and the Fixed Rent and
Additional Charges shall be prorated and adjusted as of such termination date,
except that with respect to any portion of the Premises which is the subject of
the taking, if earlier, as of the Date of the Taking. Upon such partial taking
and this Lease continuing in force as to any part of the Premises, the Fixed
Rent and Additional Charges shall be adjusted according to the rentable area
remaining.
20.03. Landlord shall be entitled to receive the entire award or payment in
connection with any taking without deduction therefrom for any estate vested in
Tenant by this Lease and Tenant shall receive no part of such award except as
hereinafter expressly provided in this Article 20. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in and to every such
award or payment; provided, however, that Tenant shall have the right to make a
separate claim for its moving expenses and to the extent the award otherwise
payable to Landlord shall not be diminished thereby, for any of Tenant's
Property taken.
20.04. If the temporary use or occupancy of all or any part of the Premises
shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose during the term of this Lease, Tenant shall be
entitled, except as hereinafter set forth, to receive
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that portion of the award or payment for such taking which represents
compensation for the use and occupancy of the Premises, for the taking of
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of restoration
of the Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall continue to be responsible for all of its obligations hereunder
insofar as such obligations are not affected by such taking and shall continue
to pay in full the Fixed Rent and Additional Charges when due. If the period of
temporary use or occupancy shall extend beyond the Expiration Date of this
Lease, that part of the award which represents compensation for the use and
occupancy of the Premises (or a part thereof) shall be divided between Landlord
and Tenant so that Tenant shall receive so much thereof as represents the period
up to and including such Expiration Date and Landlord shall receive so much
thereof as represents the period after such Expiration Date. All monies paid as,
or as part of an award for temporary use and occupancy for a period beyond the
date to which the Fixed Rent and Additional Charges have been paid shall be
received, held and applied by Landlord as a trust fund for payment of the Fixed
Rent and Additional Charges becoming due hereunder.
20.05. In the event of a taking of less than the whole of the Building
and/or the Land which does not result in termination of this Lease, or in the
event of a taking for a temporary use or occupancy of all or any part of the
Premises which does not result in a termination of this Lease, (a) Landlord, at
its expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair the remaining parts
of the Building and the Premises (other than those parts of the Premises which
are deemed Landlord's property pursuant to Section 12.01 hereof and Tenant's
Property) to substantially their former condition to the extent that the same
may be feasible (subject to reasonable changes which Landlord shall deem
desirable) and so as to constitute a complete and rentable Building and Premises
and (b) Tenant, at its expense, and whether or not any award or awards shall be
sufficient for the purpose, shall proceed with reasonable diligence to repair
the remaining parts of the Premises which are deemed Landlord's property
pursuant to Section 12.01 hereof (excluding any structural elements of the
Premises) and Tenant's Property, to substantially their former condition to the
extent that the same may be feasible, subject to reasonable changes which shall
be deemed Alterations.
ARTICLE 21
Surrender
---------
21.01. On the Expiration Date or upon any earlier termination of this
Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease,
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and Xxxxxx shall remove all of the Tenant's Property therefrom except as
otherwise expressly provided in this Lease.
21.02. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord and each
Superior Lessor and Superior Mortgagee whose lease or mortgage, as the case may
be, provides that no such surrender may be accepted without its consent.
ARTICLE 22
Conditions of Limitation
------------------------
22.01. This Lease and the term and estate hereby granted are subject to the
limitation that whenever Tenant, or any guarantor of Tenant's obligations under
this Lease, shall make an assignment for the benefit of creditors, or shall file
a voluntary petition under any bankruptcy or insolvency law, or an involuntary
petition alleging an act of bankruptcy or insolvency shall be filed against
Tenant or such guarantor under any bankruptcy or insolvency law, or whenever a
petition shall be filed by or against Tenant or such guarantor under the
reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant, or such guarantor, under the arrangement provisions of the United States
Bankruptcy Code or under the provisions of any law of like import, or whenever a
permanent receiver of Tenant, or such guarantor, or of or for the property of
Tenant, or such guarantor, shall be appointed, then Landlord (a) if such event
occurs without the acquiescence of Tenant, or such guarantor, as the case may
be, at any time after the event continues for ninety (90) days, or (b) in any
other case at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the term of this Lease at the expiration of five days
from the date of service of such notice of intention, and upon the expiration of
said five-day period this Lease and the term and estate hereby granted, whether
or not the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 24 hereof.
22.02. This Lease and the term and estate hereby granted are subject to the
further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent or
Additional Charges, and such default shall continue for ten (10) days after
written notice thereof has been given to Tenant, or
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(b) if Tenant shall, whether by action or inaction, be in default of
any of its obligations under this Lease (other than a default in the
payment of Fixed Rent or Additional Charges) and such default shall
continue and not be remedied as soon as practicable and in any event within
twenty (20) days after Landlord shall have given to Tenant a notice
specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of twenty (20) days and the continuance
of which for the period required for cure will not (i) subject Landlord or
any Superior Lessor or any Superior Mortgagee to prosecution for a crime or
any other fine or charge, (ii) subject the Premises or any part thereof or
the Building or Land, or any part thereof, to being condemned or vacated,
(iii) subject the Building or Land, or any part thereof, to any lien or
encumbrance which is not removed or bonded within the time period required
under this Lease, or (iv) result in the termination of any Superior Lease
or foreclosure of any Superior Mortgage, if Tenant shall not (x) within
said twenty (20) day period advise Landlord of Tenant's intention to take
all steps reasonably necessary to remedy such default, (y) duly commence
within said 20-day period, and thereafter diligently prosecute to
completion all steps reasonably necessary to remedy the default and (z)
complete such remedy within a reasonable time after the date of said notice
of Landlord, or
(c) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted by Article 7 hereof, or
(d) if Tenant shall abandon the Premises, or
(e) if there shall be any default by Tenant under any other lease with
Landlord (or any person which, directly or indirectly, controls, is
controlled by, or is under common control with, Landlord) covering space in
the Building which shall not be remedied within the applicable grace
period, if any, provided therefor under such other lease, or if Tenant
holds over in the premises demised under such other lease,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the term of this Lease at the expiration of five days from the date of the
service of such notice of intention, and upon the expiration of said five 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
was the day herein definitely fixed for the end and expiration of this Lease,
but Tenant shall remain liable for damages as provided in Article 24 hereof.
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22.03. (a) If Tenant shall have assigned its interest in this Lease, and
this Lease shall thereafter be disaffirmed or rejected in any proceeding under
the United States Bankruptcy Code or under the provisions of any Federal, state
or foreign law of like import, or in the event of termination of this Lease by
reason of any such proceeding, the assignor or any of its predecessors in
interest under this Lease, upon request of Landlord given within ninety (90)
days after such disaffirmance or rejection shall (a) pay to Landlord all Fixed
Rent and Additional Charges then due and payable to Landlord under this Lease to
and including the date of such disaffirmance or rejection and (b) enter into a
new lease as lessee with Landlord of the Premises for a term commencing on the
effective date of such disaffirmance or rejection and ending on the Expiration
Date, unless sooner terminated as in such lease provided, at the same Fixed Rent
and Additional Charges and upon the then executory terms, covenants and
conditions as are contained in this Lease, except that (i) the rights of the
lessee under the new lease, shall be subject to any possessory rights of the
assignee in question under this Lease and any rights of persons claiming through
or under such assignee, (ii) such new lease shall require all defaults existing
under this Lease to be cured by the lessee with reasonable diligence, and (iii)
such new lease shall require the lessee to pay all Additional Charges which, had
this Lease not been disaffirmed or rejected, would have become due after the
effective date of such disaffirmance or rejection with respect to any prior
period. If the lessee shall fail or refuse to enter into the new lease within
ten (10) days after Landlord's request to do so, then in addition to all other
rights and remedies by reason of such default, under this Lease, at law or in
equity, Landlord shall have the same rights and remedies against the lessee as
if the lessee had entered into such new lease and such new lease had thereafter
been terminated at the beginning of its term by reason of the default of the
lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is permitted to assign
this Lease in disregard of the restrictions contained in Article 7 hereof (or if
this Lease shall be assumed by a trustee), the trustee or assignee shall cure
any default under this Lease and shall provide adequate assurance of future
performance by the trustee or assignee including (a) of the source of payment of
rent and performance of other obligations under this Lease [for which adequate
assurance shall mean the deposit of cash security with Landlord in an amount
equal to the sum of one year's Fixed Rent then reserved hereunder plus an amount
equal to all Additional Charges payable under Article 3 for the calendar year
preceding the year in which such assignment is intended to become effective
(such cash security being herein called the "Adepuate Assurance Security"),
---------------------------
which deposit shall be held by Landlord, without interest, for the balance of
the term as security for the full and faithful performance of all of the
obligations under this Lease on the part of Tenant yet to be performed] and that
any such assignee of this Lease shall have a net worth exclusive of good will,
computed in accordance with generally accepted accounting principles, equal to
at least ten (10) times the aggregate of the annual Fixed Rent reserved
hereunder plus all Additional Charges for the preceding calendar year as
aforesaid and (b) that the use of the Premises shall in no way diminish the
reputation of the Building as a first-class office building or impose any
additional burden upon the Building or increase the services to be provided by
Landlord. Notwithstanding anything to the contrary set forth in the
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preceding sentence, the security deposited by Tenant pursuant to Article 4
hereof (or any remaining balance thereof then held by Landlord) may be applied
in partial satisfaction of the obligation of the trustee or the assignee (as the
case may be) to deposit the Adequate Assurance Security, provided that the
trustee or assignee (as the case may be) shall give notice to Landlord of its
election to effect such application and provided further that such application
shall not be prohibited pursuant to the United States Bankruptcy Code or other
applicable Federal, state or foreign law of like import. If all defaults are not
cured and such adequate assurance is not provided within 60 days after there has
been an order for relief under the Bankruptcy Code, then this Lease shall be
deemed rejected, Tenant or any other person in possession shall vacate the
Premises, and Landlord shall be entitled to retain any rent or security deposit
previously received from Tenant and shall have no further liability to Tenant or
any person claiming through Tenant or any trustee. If Tenant receives or is to
receive any valuable consideration for such an assignment of this Lease, such
consideration, after deducting therefrom (a) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (b) any
portion of such consideration reasonably designed by the assignee as paid for
the purchase of Tenant's Property in the Premises shall be and become the sole
exclusive property of Landlord and shall be paid over to Landlord directly by
such assignee. If Xxxxxx's trustee, Tenant or Tenant as debtor-in-possession
assumes this Lease and proposes to assign the same (pursuant to Title 11 U.S.C.
Section 365, as the same may be amended) to any person, including, without
limitation, any individual, partnership or corporate entity, who shall have made
a bona fide offer to accept an assignment of this Lease on terms acceptable to
the trustee, Tenant or Tenant as debtor-in-possession, then notice of such
proposed assignment, setting forth (x) the name and address of such person, (y)
all of the terms and conditions of such offer, and (z) the adequate assurance to
be provided Landlord to assure such person's future performance under this
Xxxxx, including, without limitation, the assurances referred to in Title 11
U.S.C. Section 365(b)(3) (as the same may be amended), shall be given to
Landlord by the trustee, Tenant or Tenant as debtor-in-possession no later than
twenty (20) days after receipt by the trustee, Tenant or Tenant as debtor-in-
possession of such offer, but in any event no later than ten (10) days prior to
the date that the trustee, Tenant or Tenant as debtor-in-possession shall make
application to a court of competent jurisdiction for authority and approval to
enter into such assignment and assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to the trustee, Tenant or
Tenant as debtor-in-possession, given at any time prior to the effective date
of such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the assignment of this
Lease.
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Reentry by Landlord
-------------------
23.01. If Tenant shall default in the payment of any Fixed Rent or
Additional Charges, and such default shall continue for ten (10) days after
written notice thereof has been given to Tenant, or if this Lease shall
terminate as provided in Article 22 hereof, Landlord or Landlord's agents and
employees may immediately or at any time thereafter reenter the Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law, or otherwise as permitted by law (but in no event by
force), without being liable to indictment, prosecution or damages therefor, and
may repossess the same, and may remove any person therefrom, to the end that
Landlord may have, hold and enjoy the Premises. The word "reenter," as used
herein, is not restricted to its technical legal meaning. If this Lease is
terminated under the provisions of Article 22, or if Landlord shall reenter the
Premises under the provisions of this article, or in the event of the
termination of this Lease, or of reentry, 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 beyond notice and the expiration of any
applicable cure periods. Tenant shall thereupon pay to Landlord the Fixed Rent
and Additional Charges payable up to the time of such termination of this Lease,
or of such recovery of possession of the Premises by Landlord, as the case may
be, and shall also pay to Landlord damages as provided in Article 24 hereof.
23.02. 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 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.
23.03. If this Lease shall terminate under the provisions of Article 22
hereof, or if Landlord shall reenter the Premises under the provisions of this
Article 23, or in the event of the termination of this Lease, or of reentry, 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 beyond notice and
the expiration of any applicable cure periods, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
Fixed Rent or Additional Charges due from Tenant at the time of such termination
or reentry or, at Landlord's option, against any damages payable by Tenant under
Article 24 hereof or pursuant to law.
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ARTICLE 24
Damages
-------
24.01. If this Lease is terminated under the provisions of Article 22
hereof, or if Landlord shall reenter the Premises under the provisions of
Article 23 hereof, or in the event of the termination of this Lease, or of
reentry, 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 reentry by Landlord, as the case may be, represents
the then value of the excess, if any (assuming a discount at a rate per
annum equal to the interest rate then applicable to 7-year Federal Treasury
Bonds), of (i) the aggregate amount of the Fixed Rent and the Additional
Charges under Article 3 hereof which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges under
Article 3 hereof to be the same as were payable for the last 12 calendar
months, or if less than 12 calendar months have then elapsed since the
Commencement Date, all of the calendar months immediately preceding such
termination or reentry) for the period commencing with such earlier
termination of this Lease or the date of any such reentry, as the case may
be, and ending with the date contemplated as the expiration date hereof if
this Lease had not so terminated or if Landlord had not so reentered the
Premises, over (ii) the aggregate fair market rental value of the Premises
for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges under
Article 3 hereof which would have been payable by Tenant had this Lease not
so terminated, or had Landlord not so reentered the Premises, payable upon
the due dates therefor specified herein following such termination or such
reentry and until the date contemplated as the expiration date hereof if
this Lease had not so terminated or if Landlord had not so reentered the
Premises, provided, however, that if Landlord shall relet the Premises
during said period, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord
from such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in reentering the Premises and in securing
possession thereof, as well as the reasonable expenses of reletting,
including, without limitation, altering and preparing the Premises for new
tenants, brokers' commissions, reasonable legal fees, and all other
expenses properly chargeable against the Premises and the rental therefrom,
it being understood that any such reletting may be for a period shorter or
longer than the remaining term of this
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Lease; but in no event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord hereunder, nor
shall Tenant be entitled in any suit for the collection of damages pursuant
to this subdivision to a credit in respect of any net rents from a
reletting, except to the extent that such net rents are actually received
by Landlord. If the Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot
basis shall be made of the rent received from such reletting and of the
expenses of reletting.
If the Premises or any part thereof be relet by Landlord for the unexpired
portion of the term of this Lease, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Premises, or part thereof, so relet during the term of the
reletting. Landlord shall not be liable in any way whatsoever for its failure or
refusal to relet the Premises or any part thereof, or if the Premises or any
part thereof are relet, for its failure to collect the rent under such
reletting, and no such refusal or failure to relet or failure to collect rent
shall release or affect Tenant's liability for damages or otherwise under this
Lease.
24.02. 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 of this Lease would have expired if it had not been
so terminated under the provisions of Article 22 hereof, or had Landlord not
reentered the 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 beyond notice
and the expiration of any applicable cure periods. Nothing herein contained
shall be construed to limit or prejudice the right of Landlord to prove for and
obtain as damages by reason of the termination of this Lease or reentry on the
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 than any of the sums referred to in Section 24.01 hereof.
24.03. In addition, if this Lease is terminated under the provisions of
Article 22 hereof, or if Landlord shall, reenter the Premises under the
provisions of Article 23 hereof, Xxxxxx agrees that:
(a) the Premises then shall be in the condition in which Xxxxxx has
agreed to surrender the same to Landlord at the expiration of the term hereof;
71
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any Alterations or
for restoring or rebuilding the Premises or the Building, or any part thereof;
and
(c) for the breach of any covenant of Tenant set forth above in this
Section 24.03, Landlord shall be entitled immediately, without notice or other
action by Landlord, to recover, and Tenant shall pay, as and for liquidated
damages therefor, the actual cost of performing such covenant (as estimated by
an independent contractor selected by Landlord).
24.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under Article 22, if any Fixed Rent, Additional Charges or damages
payable hereunder by Tenant to Landlord are not paid within seven (7) days after
the due date thereof, the same shall bear interest at the rate of one and one-
half (1 1/2%) percent per month or the maximum rate permitted by law, whichever
is less, from the due date thereof until paid, and the amount of such interest
shall be an Additional Charge hereunder. For the purposes of this Section 24.04,
a rent bill sent by first class mail, to the address to which notices are to be
given under this Lease, shall be deemed a proper demand for the payment of the
amounts set forth therein.
ARTICLE 25
Affirmative Waivers
-------------------
25.01. Tenant, on behalf of itself and any and all persons claiming through
or under Tenant, does hereby waive and surrender all right and privilege which
it, they or any of them might have under or by reason of any present or future
law, to redeem the Premises or to have a continuance of this Lease after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as provided in this Lease.
25.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Xxxxxx agrees that Landlord
may apply any payments made by Tenant to such items as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items which any such payments shall be credited.
25.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Xxxxxx's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
72
25.04. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Premises
(other than compulsory counterclaims).
ARTICLE 26
No Waivers
----------
26.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, and such
right to insist upon strict performance shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of Fixed Rent or partial payments thereof or Additional Charges or
partial payments thereof with knowledge of breach by Tenant of any obligation of
this Lease shall not be deemed a waiver of such breach.
26.02. If there be any agreement between Landlord and Tenant providing for
the cancellation of this Lease upon certain provisions or contingencies and/or
an agreement for the renewal hereof at the expiration of the term, the right to
such renewal or the execution of a renewal agreement between Landlord and Tenant
prior to the expiration of the term shall not be considered an extension thereof
or a vested right in Tenant to such further term so as to prevent Landlord from
canceling this Lease and any such extension thereof during the remainder of the
original term; such privilege, if and when so exercised by Landlord, shall
cancel and terminate this Lease add any such renewal or extension; any right
herein contained on the part of Landlord to cancel this Lease shall continue
during any extension or renewal hereof; any option on the part of Tenant herein
contained for an extension or renewal hereof shall not be deemed to give Tenant
any option for a further extension beyond the first renewal or extended term.
ARTICLE 27
Curing Tenant's Defaults
------------------------
27.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, any Superior Lessor or any Superior
Mortgagee without thereby waiving such default, may (but shall not be obligated
to) perform the same for the account and at the expense of Tenant, without
notice in a case of emergency, and in any other case only if such default
continues after the expiration of the applicable grace period, if any. If
Landlord effects such cure by bonding any lien which Tenant is required to bond,
Tenant shall obtain and
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substitute a bond for Landlord's bond at its sole cost and expense and reimburse
Landlord for the cost of Xxxxxxxx's bond.
27.02. Bills for any expenses incurred by Landlord or any Superior Lessor
or any Superior Mortgagee in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable counsel fees, involved in
collecting or endeavoring to collect the Fixed Rent or Additional Charges or any
part thereof or enforcing or endeavoring to enforce any rights against Tenant or
Tenant's obligations hereunder, under or in connection with this Lease or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Premises after default by Tenant or upon the expiration or sooner
termination of this Lease, and interest on all sums advanced by Landlord or such
Superior Lessor or Superior Mortgagee under this Section 27.02 and/or Section
27.01 (at the Interest Rate or the maximum rate permitted by law, whichever is
less) may be sent by Landlord or such Superior Lessor or Superior Mortgagee to
Tenant monthly, or immediately, at its option, and such amounts shall be due and
payable as Additional Charges in accordance with the terms of such bills.
Notwithstanding anything to the contrary contained in this Section, Tenant shall
have no obligation to pay Landlord's costs, expenses, or disbursements in any
proceeding in which there shall have been rendered a final judgment against
Landlord, and the time for appealing such final judgment shall have expired.
ARTICLE 28
Broker
------
28.01. Tenant covenants, warrants and represents that no broker except
Equis of New York, Inc. and Newmark & Company, Inc. (herein called the "Broker")
was instrumental in bringing about or consummating this Lease and that Tenant
had no conversations or negotiations with any broker except the Broker
concerning the leasing of the Premises. Landlord covenants, warrants and
represents that no broker except the Broker was instrumental in bringing about
or consummating this Lease and that Landlord had no conversations or
negotiations with any broker purporting to represent Tenant, other than Equis of
New York, Inc., concerning the leasing of the Premises. Xxxxxx agrees to
indemnify and hold harmless Landlord against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses, arising out of any conversations or negotiations had by Xxxxxx with
any broker other than the Broker. Xxxxxxxx agrees to indemnify and hold harmless
Tenant against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses, arising out of conversations or
negotiations had by Landlord with any broker purporting to represent Tenant and
with whom Tenant shall
74
have had no dealings. Landlord shall pay any commission due the Broker pursuant
to separate agreement(s) between Landlord and the Broker.
ARTICLE 29
Notices
-------
29.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to this Lease or pursuant to any applicable law or requirement of public
authority (collectively, "notices") shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if sent by overnight delivery by a nationally recognized
overnight courier service (such as Federal Express) providing for receipted
delivery or by registered or certified mail, return receipt requested, posted in
a United States post office station or letter box in the continental United
States, addressed to the other party as follows:
If to Landlord:
00 Xxxxxx Xxxx Associates, LLC
c/o AmTrust Realty Corp.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxx
with a copy to:
Xxxxxxx Xxxxx & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
and if to Tenant as follows:
Broadview Networks
00-00 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
with a copy to:
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Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
(except that after the Commencement Date, Xxxxxx's address, unless Tenant shall
give notice to the contrary, shall be the Building), and shall be deemed to have
been given, rendered or made when received or when receipt is refused, if sent
by nationally recognized overnight courier service, or on the second business
day following the day mailed, if mailed by registered or certified mail, unless
mailed to a location outside of the State of New York, in which case it shall be
deemed to have been given, rendered or made on the third business day after the
day so mailed. Either party may, by notice as aforesaid, designate a different
address or addresses for notices intended for it. Notwithstanding the foregoing,
with respect to an occurrence presenting imminent danger to the health or safety
of persons or damage to property in, on or about the Building or during a postal
strike, notices may be hand delivered to a party at the address to which notices
to that party are to be sent, provided that the same notice is also sent in the
manner set forth above.
29.02. Notices hereunder from Landlord may be given by Xxxxxxxx's managing
agent, if one exists, or by Landlord's attorney. Notices hereunder from Tenant
may be given by Xxxxxx's attorney.
29.03. 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 29.01 or 29.02 hereof.
ARTICLE 30
Estoppel Certificates
---------------------
30.01 Each party agrees, at any time and from time to time, as requested by
the other party with not less than 10 days' prior notice, to execute and deliver
to the other a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the
dates to which the Fixed Rent and Additional Charges have been paid, stating
whether or not, to the best knowledge of the signer, the other party is in
default in performance of any of its obligations under this Lease, and if so,
specifying each such default of which the signer shall have knowledge, and
stating whether or not, to the best knowledge of the signer, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event, it being
intended that any such statement delivered
76
pursuant hereto shall be deemed a representation and warranty to be relied upon
by the party requesting the certificate and by others with whom such party may
be dealing, regardless of independent investigation. Tenant also shall include
in any such statement such other information concerning this Lease as Landlord
may reasonably request.
ARTICLE 31
Memorandum of Lease
-------------------
31.01. Tenant shall not record this Lease or any memorandum thereof.
ARTICLE 32
No Representations by Xxxxxxxx
------------------------------
32.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and shall expressly refer to this
Lease. All understandings and agreements heretofore had between the parties are
merged in this Lease and any other written agreement(s) made concurrently
herewith, which alone fully and completely express the agreement of the parties
and which are entered into after full investigation, neither party relying upon
any statement or representation not embodied in this Lease or any other written
agreement(s) made concurrently herewith.
ARTICLE 33
Intentionally Omitted
---------------------
ARTICLE 34
Holdover
--------
34.01. (a) In the event this Lease is not renewed or extended or a new
lease is not entered into between the parties, and if Tenant shall then hold
over after the expiration of the term of this Lease, and if Landlord shall then
not proceed to remove Tenant from the Premises in the manner permitted by law
(or shall not have given written notice to Tenant that Tenant must
77
vacate the Premises) irrespective of whether or not Landlord accepts rent from
Tenant for a period beyond the Expiration Date, the parties hereby agree that
Xxxxxx's occupancy of the Premises after the expiration of the term shall be
under a month-to-month tenancy commencing on the first day after the expiration
of the term, which tenancy shall be upon all of the terms set forth in this
Lease except Tenant shall pay on the first day of each month of the holdover
period as Fixed Rent (i) for the first three (3) months of such month-to-month
tenancy, an amount equal to the product of (x) 150% and (y) one-twelfth (1/12)
of the sum of the Fixed Rent and Additional Charges payable by Tenant during the
last year of the term of this Lease (i.e., the year immediately prior to the
holdover period) (the amount described in the preceding clause (y) being
hereinafter referred to as the "Escalated Monthly Rent"; and (ii) thereafter,
an amount equal to the higher of (x) the product of 200% and the Escalated
Monthly Rent and (y) the then market rental value for the Premises as shall be
established by Landlord giving notice to Tenant of Landlord's good faith
estimate of such market rental value. Tenant may dispute such market rental
value for the Premises as estimated by Landlord by giving notice to Landlord
within but in no event after twenty (20) days after the giving of Landlord's
notice to Tenant (as to the giving of which notice to Landlord, time shall be
deemed of the essence). Enclosed with such notice, Tenant shall be required to
furnish to Landlord the written opinion of a reputable New York licensed real
estate broker having leasing experience in the Borough of Manhattan, for a
period of not less than ten (10) years setting forth said broker's good faith
opinion of the market rental value of the Premises. If Tenant and Landlord are
unable to resolve any such dispute as to the market rental value for the
Premises then an independent arbitrator who shall be a real estate broker of
similar qualifications and shall be selected from a listing of not less than
three (3) brokers furnished by the American Arbitration Association (or any
successor thereto) to Tenant and Landlord (at the request of either Landlord or
Tenant). If Landlord and Tenant are unable to agree upon the selection of the
individual arbitrator from such listing, then the first arbitrator so listed by
the American Arbitration Association (or any successor thereto) shall be
conclusively presumed to have been selected by both Landlord and Tenant and the
decision of such arbitrator shall be conclusive and binding upon the parties as
to the market rental value for the Premises. Pending the determination of the
market rental value of the Premises upon the expiration of the term of this
Lease, Tenant shall pay to Landlord as Fixed Rent an amount computed in
accordance with clauses (i) or (ii) of this subsection 34.01(a) (as Landlord
shall then elect), and upon determination of the market rental value of the
Premises in accordance with the preceding provisions hereof appropriate
adjustments and payments shall be effected. Further, Landlord shall not be
required to perform any work, furnish any materials or make any repairs within
the Premises during the holdover period. It is further stipulated and agreed
that if Landlord shall, at any time after the expiration of the original term or
after the expiration of any term created thereafter, proceed to remove Tenant
from the Premises as a holdover, the Fixed Rent for the use and occupancy of the
Premises during any holdover period shall be calculated in the same manner as
set forth above. In addition to the foregoing, Landlord shall be entitled to
recover from Tenant any losses or damages arising from such holdover as provided
in Section 34.01(c) hereof.
78
(b) Notwithstanding anything to the contrary contained in this Lease,
the acceptance of any rent paid by Tenant pursuant to subsection 34.01(a) above
shall not preclude Landlord from commencing and prosecuting a holdover or
summary eviction proceeding, and the preceding sentence shall be deemed to be an
"agreement expressly providing otherwise" within the meaning of Section 223-c of
the Real Property Law of the State of New York.
(c) If Tenant shall hold-over or remain in possession of any portion
of the Premises beyond the Expiration Date, Tenant shall be subject not only to
summary proceeding and all damages related thereto, but also to any damages
arising out of any lost opportunities (and/or new leases) by Landlord to re-let
the Premises (or any part thereof) in accordance with and subject to the
following provisions of this Section 34.01(c). In the event that Landlord shall
enter into one or more leases for all or any portion of the Premises which
either (i) is for a term that is scheduled to commence within six (6) months
after the Expiration Date of this Lease or (ii) is for a term that is scheduled
to commence within twelve (12) months after the Expiration Date of this Lease
and which requires Landlord to perform any demolition, tenant improvement work
or any other work as a precondition to the commencement of such term (any such
lease is hereinafter referred to as a "Qualifying Lease"), Landlord may give
Tenant a written notice thereof (the "Qualifying Lease Notice"), which
Qualifying Lease Notice may be given at any time prior to or following the
Expiration Date. In the event that Landlord shall have given Tenant a Qualifying
Lease Notice and Tenant shall hold-over or remain in possession of any portion
of the Premises beyond the date which is ninety (90) days following the later of
(i) the Expiration Date or (ii) the date on which Landlord shall have given such
Qualifying Lease Notice to Tenant, Tenant shall be subject to all damages
arising out of any lost opportunities (and/or new leases) by Landlord to re-let
all or any part of the Premises covered by a Qualifying Lease Notice given at
least ninety (90) days prior to the date on which Landlord incurs such damages,
including without limitation any such damages in connection with Landlord's
inability to deliver the premises leased pursuant to such Qualifying Lease to
the tenant under such Qualifying Lease. All damages to Landlord by reason of
such holding over by Tenant may be the subject of a separate action and need not
be asserted by Landlord in any summary proceedings against Xxxxxx.
ARTICLE 35
Miscellaneous Provisions and Definitions
----------------------------------------
35.01. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, including, without limitation, this Section 35.01, unless such
agreement is in writing, refers expressly to this Lease and is signed by the
party against whom enforcement of the change, modification, waiver, release,
discharge, termination or effectuation of the abandonment is sought. If Tenant
shall at
79
any time request Landlord to sublet the Premises for Tenant's account, Landlord
or its agent is authorized to receive keys for such purposes without releasing
Tenant from any of its obligations under this Lease, and Tenant hereby releases
Landlord of any liability for loss or damage to any of the Tenant's Property in
connection with such subletting unless caused by or resulting from the
negligence or willful act of Landlord, its agents, servants, contractors, or
employees.
35.02. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 7 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Article 35 shall not be
construed as modifying the conditions of limitation contained in Article 22.
35.03. Tenant shall look only to Xxxxxxxx's estate and property in
the Land and the Building for the satisfaction of Xxxxxx's remedies, for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord or its partners, officers, directors,
shareholders or principals, disclosed or undisclosed, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Xxxxxx's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Xxxxxx's use or occupancy of the Premises.
35.04. (a) Except as expressly provided in Articles 19 and 20 hereof,
the obligations of Tenant hereunder shall be in no wise affected, impaired or
excused, nor shall Landlord have any liability whatsoever to Tenant, nor shall
it be deemed a constructive eviction because (a) Landlord is unable to fulfill,
or is delayed in fulfilling, any of its obligations under this Lease by reason
of strike, lock-out or other labor trouble, governmental preemption of
priorities or other controls in connection with a national or other public
emergency or shortages of fuel, supplies or labor resulting therefrom, or any
other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) of any failure or defect in the supply, quantity or character of
electricity or water furnished to the Premises, by reason of any requirement,
act or omission of the public utility or others serving the Building with
electric energy, steam, oil, gas or water, or for any other reason whether
similar or dissimilar, beyond Landlord's reasonable control (the foregoing
circumstances described in this Section 35.04 being herein called "Force Majeure
Causes").
(b) If by reason of strike, lock-out or other labor trouble,
governmental preemption of priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, or any other cause beyond Tenant's reasonable control,
Tenant shall be unable to fulfill its non-monetary obligations under this Lease
(i.e., obligations other than with respect to the payment of Fixed Rent and
Additional Charges), then for so long as such circumstances continue to prevent
such fulfillment, Tenant shall have no
80
liability in connection therewith and this Lease shall not be affected or
impaired thereby. In no event or under any circumstance shall any such delay or
failure by Tenant in performing such non-monetary obligations be deemed to
relieve Tenant of any of its monetary obligations under this Lease.
35.05. For the purposes of this Lease, the following terms have the
meanings indicated:
(a) The term "mortgage" shall include a mortgage and/or a deed of
trust, and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
(b) The term "laws and requirements of any public authorities" and
words of a similar import shall mean laws and ordinances of any or all of the
federal, state, city, town, county, borough and village governments including,
without limitation. The Americans with Disabilities Act of 1990, as amended, and
rules, regulations, orders and directives of any and all departments,
subdivisions, bureaus, agencies or offices thereof, and of any other
governmental, public or quasi-public authorities having jurisdiction over the
Building and/or the Premises, and the direction of any public officer pursuant
to law, whether now or hereafter in force.
(c) The term "requirements of insurance bodies" and words of similar
import shall mean rules, regulations, orders and other requirements of the New
York Board of Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance over the Building and/or the
Premises, whether now or hereafter in force.
(d) The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease.
(e) The term "Landlord" shall mean only the owner at the time in
question of Landlord's interest in the Land or a lease of the Land and the
Building or a lease thereof so that in the event of any transfer or transfers of
Landlord's interest in the Land or a lease thereof or the Building the
transferor shall be and hereby is relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, and it shall be deemed,
without further agreement that such transferee has assumed and agreed to perform
and observe
81
all obligations of Landlord herein during the period it is the holder of
Landlord's interest under this Lease.
(f) The terms "herein,""hereof" and "hereunder," and words of
similar import, shall be construed to refer to this Lease as a whole, and not to
any particular article or section, unless expressly so stated.
(g) The term "and/or" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(h) The term "person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity.
(i) The terms "Landlord shall have no liability to Tenant" or "the
same shall be without liability to Landlord" or "without incurring any liability
to Tenant therefor", or words of similar import shall mean that Tenant is not
entitled to terminate this Lease, or to claim actual or constructive eviction,
partial, or total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of its other obligations hereunder, or to be
compensated for loss or injury suffered or to enforce any other right or kind of
liability whatsoever against Landlord under or with respect to this Lease or
with respect to Xxxxxx's use or occupancy of the Premises.
(j) The term "Interest Rate," when used in this Lease, shall mean an
interest rate equal to two percent (2%) above the so-called annual "Base Rate"
of interest established and approved by Citibank, N.A., New York, New York, from
time to time, as its interest rate charged for unsecured loans to its corporate
customers, but in no event greater than the highest lawful rate from time to
time in effect.
35.06. Upon the expiration or other termination of this Lease neither party
shall have any further obligation or liability to the other except as otherwise
expressly provided in this Lease and except for such obligations as by their
nature or under the circumstances can only be, or by the provisions of this
Lease, may be, performed after such expiration or other termination; and, in any
event, unless otherwise expressly provided in this Lease, any liability for a
payment (including, without limitation, Additional Charges under Article 3)
which shall have accrued to or with respect to any period ending at the time of
expiration or other termination of this Lease shall survive the expiration or
other termination of this Lease.
35.07. (a) If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction, and that
such remedy shall be available only in those cases
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where Xxxxxxxx has expressly agreed in writing not to unreasonably withhold its
consent or where as a matter of law Landlord may not unreasonably withhold its
consent.
(b) If Tenant desires to determine any dispute between Landlord and
Tenant as to the reasonableness of Landlord's decision to refuse to consent or
approve any item as to which Landlord has specifically agreed that its consent
or approval shall not be unreasonably withheld, such dispute shall be settled
and finally determined by arbitration in The City of New York in accordance with
the following provisions of this subsection 35.07(b). Within ten (10) Business
Days next following the giving of any notice by Xxxxxx stating that it wishes
such dispute to be so determined, Landlord and Tenant shall each give notice to
the other setting forth the name and address of an arbitrator designated by the
party giving such notice. If the two arbitrators shall fail to agree upon the
designation of a third arbitrator within five (5) Business Days after the
designation of the second arbitrator then either party may apply to the American
Arbitration Association in New York City for the designation of such arbitrator
and if he is unable or refuses to act within ten (10) Business Days, then either
party may apply to the Supreme Court in New York County or to any other court
having jurisdiction for the designation of such arbitrator. The three
arbitrators shall conduct such hearings as they deem appropriate, making their
determination in writing and giving notice to Landlord and Tenant of their
determination as soon as practicable, and if possible, within five (5) Business
Days after the designation of the third arbitrator; the concurrence of or, in
the event no two of the arbitrators shall render a concurring determination,
then the determination of the third arbitrator designated, shall be binding upon
Landlord and Tenant. Judgment upon any decision rendered in any arbitration held
pursuant to this subsection 35.07(b) shall be final and binding upon Landlord
and Tenant, whether or not a judgment shall be entered in any court. Each party
shall pay its own counsel fees and expenses, if any, in connection with any
arbitration under this subsection 35.07(b), including the expenses and fees of
any arbitrator selected by it in accordance with the provisions of this
subsection 35.07(b), and the parties shall share all other expenses and fees of
any such arbitration. The arbitrators shall be bound by the provisions of this
Lease, and shall not add to, subtract from or otherwise modify such provisions.
The sole remedy which may be awarded by the arbitrators in any proceeding
pursuant to this Section 35.07 is an order compelling Landlord to consent to or
approve the matter in dispute, and the arbitrators may not award damages or
grant any monetary award or any other form of relief.
35.08. If any Superior Mortgagee shall require any modification(s) of this
Lease, Tenant shall, at Landlord's request, promptly execute and deliver to
Landlord such instruments effecting such modification(s) as Landlord shall
require, provided that such modification(s) do not decrease any of Tenant's
rights under this Lease, or increase any of Tenant's obligations under this
Lease, in either case beyond a de minimis extent.
35.09. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license to enter the Premises
for the purpose of performing
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such work as said person shall deem necessary or desirable to preserve and
protect the Building from injury or damage to support the same by proper
foundations, without any claim for damages or liability against Landlord and
without reducing or otherwise affecting Tenant's obligations under this Lease.
35.10. Tenant shall not place a load upon any floor of the Premises which
violates applicable law or the certificate of occupancy of the Building or which
exceeds the floor load per square foot which such floor was designed to carry.
All heavy material and/or equipment must be placed by Tenant, at Tenant's
expense, so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant, at Xxxxxx's expense, in
settings sufficient in Landlord's reasonable judgment to absorb and prevent
vibration, noise and annoyance. If the Premises be or become infested with
vermin as a result of the use or any misuse or neglect of the Premises by
Tenant, its agents, employees, visitors or licensees, Tenant shall at Tenant's
expense cause the same to be exterminated from time to time to the reasonable
satisfaction of Landlord and shall employ such exterminators and such
exterminating company or companies as shall be reasonably approved by Landlord.
35.11. The submission by Landlord of this Lease in draft form shall be
deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed this
Lease and duplicate originals thereof shall have been delivered to the
respective parties.
35.12. 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. If any provisions of this Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of references and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. 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. All terms and words used in this Lease, shall be
deemed to include any other number and any other gender as the context may
require.
35.13. If under the terms of this Lease Tenant is obligated to pay Landlord
a sum in addition to the Fixed Rent under this Lease and no payment period
therefor is specified, Tenant shall pay Landlord the amount due within twenty
(20) days after being billed.
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35.14. Notwithstanding anything to the contrary contained in this Lease,
during the continuance of any default by Tenant after the giving of notice and
the expiration of any applicable grace periods hereunder, Tenant shall not be
entitled to exercise any rights or options, or to receive any funds or proceeds
being held, under or pursuant to this Lease.
35.15. Tenant represents and warrants that this Lease has been duly
authorized, executed and delivered by Xxxxxx.
35.16. Tenant acknowledges that it has no rights to any development rights,
"air rights" or comparable rights appurtenant to the Real Property, and
consents, without further consideration, to any utilization of such rights by
Landlord and agrees to promptly execute and deliver any instruments which may be
requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent. The provisions of this Section 35.16 shall be
deemed to be and shall be construed as an express waiver by Tenant of any
interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Real Property.
35.17. If any sales or other tax is payable with respect to any cleaning or
other services which Tenant obtains or contracts for directly from any third
party or parties, Tenant shall file any required tax returns and shall pay any
such tax, and Tenant shall indemnify and hold Landlord harmless from and against
any loss, damage or liability suffered or incurred by Landlord on account
thereof.
35.18. If the Premises or any additional space to be included within the
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 whatsoever, then, except as otherwise
provided in Section 2.01(k) hereof, 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 Premises or such additional space shall be available for occupancy
by Tenant, and Tenant shall not be entitled to possession of the 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 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 of this
Lease. This Section 35.18 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.
35.19. In connection with any examination by Tenant of Landlord's books and
records, Xxxxxx agrees to treat, and to instruct its employees, accountants and
agents to treat, all information as confidential and not disclose it to any
other person, except as may be required (i)
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by applicable legal requirements or (ii) by a court of competent jurisdiction or
arbitrator or in connection with any action or proceeding before a court of
competent jurisdiction or arbitrator, or (iii) to Tenant's attorneys,
accountants and other professionals in connection with any dispute between
Landlord and Xxxxxx; and Tenant will confirm or cause its agents and accountants
to confirm such agreement in a separate written agreement if requested by
Landlord.
35.20. (a) Tenant shall not cause or permit "Hazardous Materials" (as
defined below) to be used, transported, stored, released, handled, produced or
installed in, on or from, Tenant's premises or the Building. The term "Hazardous
Materials" shall, for the purposes hereof, mean any flammable explosives,
radioactive materials, hazardous wastes, hazardous and toxic substances, or
related materials, asbestos or any material containing asbestos, or any other
substance or material, as defined by any federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
breach of the provisions of this Section 35.20, Landlord shall, in addition to
all of its rights and remedies under this Lease and pursuant to law, require
Tenant to remove any such Hazardous Materials from the Premises in the manner
prescribed for such removal by Legal Requirements. The provisions of this
Section 35.20 shall survive the termination of this Lease.
(b) In the event that at any time during the term of this Lease any
asbestos or asbestos-containing materials (collectively, "ACM") or materials
which are known to constitute Hazardous Materials as of the date hereof shall be
discovered in the Premises which ACM or Hazardous Materials are required under
applicable Legal Requirements to be removed, encapsulated or abated, Landlord
shall have no liability to Tenant in connection therewith, except that, unless
such ACM or Hazardous Materials were placed in or introduced into the Premises
by Tenant or Tenant's employees, agents or contractors, or the requirement for
such removal, encapsulation or abatement arose in connection with any
Alterations performed by or on behalf of Tenant, Landlord shall, at Landlord's
cost and expense, promptly remove, encapsulate or xxxxx such ACM or Hazardous
Materials in accordance with applicable Legal Requirements. In such event,
Tenant shall permit Landlord, its agents, employees and contractors, such access
to the Premises as is reasonably required to effectuate such removal,
encapsulation or abatement.
35.21. Notwithstanding anything to the contrary contained in this Lease, in
the event that this Lease shall grant to Tenant any option or right to extend or
renew the original term of this Lease and/or any option or right to add
additional space to the Premises originally demised hereunder (the foregoing
options and rights are herein collectively called "Tenant's Options"), any such
Tenant's Options shall inure exclusively to the benefit of the Tenant named
herein and shall be exercisable only by the Tenant named herein.
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ARTICLE 36
Partnership Tenant
------------------
36.01. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually and/or as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two (2) or more
persons, individually and/or as co-partners of a partnership) pursuant to this
Article 36 (any such partnership and such persons are referred to in this
Article 36 as "Partnership Tenant"), the following provisions of this Article 36
shall apply to such Partnership Tenant: (a) the liability of each of the parties
comprising Partnership Tenant shall be joint and several, (b) each of the
parties comprising Partnership Tenant hereby consents in advance to, and agrees
to be bound by, any written instrument which may hereafter be executed,
changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord or renewing or
extending this Lease and by any notices, demands, requests or other
communications which may hereafter be given, by Partnership Tenant or by any of
the parties comprising Partnership Tenant, (c) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of the parties comprising Partnership Tenant shall be deemed
given or rendered to Partnership Tenant and to all such parties and shall be
binding upon Partnership Tenant and all such parties, (d) if Partnership Tenant
shall admit new partners, all of such new partners shall, by their admission to
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, (e) Partnership Tenant shall give prompt notice to Landlord of the
admission of any partner or partners, and upon demand of Landlord, shall cause
each such partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume performance
of all of the terms, covenants and conditions of this Lease on Tenant's part to
be observed and performed (but neither Xxxxxxxx's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of subdivision (d) of this
section) and (f) on each anniversary of the Commencement Date, Partnership
Tenant shall deliver to Landlord a list of all partners together with their
current residential addresses.
ARTICLE 37
Good Xxx Xxxxxxxx
-----------------
37.01 (a) In order to induce Landlord to enter into this Lease and in
consideration of Landlord's entering into this Lease, the individual executing
this Article at the foot hereof (hereinafter referred to as "Guarantor") hereby
guaranties, unconditionally and absolutely, to Landlord, its successors and
assigns (without requiring any notice of nonpayment, nonkeeping, nonperformance
or nonobservance or proof of notice or demand whereby to charge Guarantor, all
87
of which Guarantor hereby expressly waives), the full and faithful keeping,
performance and observance of all the covenants, agreements, terms, provisions
and conditions of this Lease provided to be kept, performed and observed by
Tenant (expressly including, without being limited to, the payment as and when
due of the fixed annual rent, additional rent, charges and damages payable by
Tenant under this Lease) and the payment of any charges for use and occupancy
and all other damages for which Tenant shall be liable by reason of any act or
omission contrary to any of said covenants, agreements, terms, provisions or
conditions. Guarantor's liability pursuant to this Article (hereinafter
sometimes referred to as this "Guaranty") shall be limited to: (i) the
performance of those obligations and the payment of such fixed annual rent,
additional rent and other charges as accrue up to the date that Tenant vacates
and surrenders the demised premises in the condition required under this Lease,
free of claims of occupancy by third parties, and removes its property
therefrom, delivers the key to Landlord and gives written notice, executed by
Xxxxxx, to Landlord that it is surrendering possession of the demised premises,
(ii) the payment of all costs and expenses referred to in subparagraph (c)(vii)
below, plus (iii) the payment of all costs and expenses incurred by Landlord,
including, without limitation, reasonable attorneys fees and expenses, in
connection with enforcing the terms and provisions of this Lease or exercising
any remedy permitted thereunder or at law or in equity as against Tenant.
(b) As a further inducement to Landlord to enter into this Lease and
in consideration thereof, Guarantor represents and warrants that Guarantor is
the owner and holder of all of the capital stock of Tenant.
(c) As a further inducement to Landlord to enter into this Lease and
in consideration thereof, Guarantor hereby expressly covenants and acknowledges
as follows:
(i) The obligations hereunder of Guarantor shall not be terminated
or affected in any way or manner whatsoever by reason of Landlord's resort, or
Landlord's omission to resort, to any summary or other proceedings, actions or
remedies for the enforcement of any of Landlord's rights under this Lease or
with respect to the demised premises or by reason of any extensions of time or
indulgences granted by Landlord, or by reason of the assignment or surrender of
all or any part of this Lease or the term and estate thereby granted or all or
any part of the demised premises. The liability of Guarantor is coextensive with
that of Tenant and also joint and several. If Guarantor consists of more than
one individual, then the liability of each of the individuals comprising
Guarantor is individual, joint and several. Action or suit may be brought
against Guarantor and carried to final judgment and/or completion and recovery
had, either with or without making Tenant a party thereto. Insofar as the
payment by Tenant of any sums of money to Landlord is involved, this Guaranty is
a guaranty of payment and not of collection and shall remain in full force and
effect until payment in full to Landlord of all sums payable under this Lease,
subject to the provisions of the last sentence of Section 37.01(a) hereof.
Guarantor waives any right to require that any action be brought against Tenant
or to require that resort be had to any security or to any other credit in favor
of Tenant or to claim, if there is resort
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to any security, that resort thereto reduces Guarantor's obligations hereunder
in the amount of such application.
(ii) If, pursuant to law or to any option granted by this Lease,
this Lease shall be renewed, or its term extended, for any period beyond the
date specified in this Lease for the expiration of said term, or if pursuant to
any such option, additional space shall be included in, or substituted for all
or any part of, the demised premises, or if this Lease be modified by agreement
between Landlord and Tenant in any other similar or dissimilar respect, the
obligations hereunder of Guarantor shall extend and apply with respect to the
full and faithful keeping, performance and observance of all of the covenants,
agreements, terms, provisions and conditions which under such renewal of this
Lease or extension of its term and/or with respect to any such additional space,
or which under any supplemental indenture or new lease or modification
agreement, entered into for the purpose of expressing or confirming any such
renewal, extension, inclusion, substitution or modification, are to be kept,
performed and observed by Tenant (expressly including, without being limited to,
the payment as and when due of fixed annual rent, additional rent, charges and
damages provided for thereunder) and the payment of any and all other damages
for which Tenant shall be liable by reason of any act or omission contrary to
any of said covenants, agreements, terms, provisions or conditions.
(iii) Neither the giving nor the withholding by Landlord of any
consent or approval provided for in this Lease shall affect in any way the
obligations hereunder of Guarantor.
(iv) Neither Guarantor's obligation to make payment in accordance
with the terms of this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed, stayed, released or limited in any manner
whatsoever by any impairment, modification, change, release, limitation or stay
of the liability of Tenant or its estate in bankruptcy or any remedy for the
enforcement thereof, resulting from the operation of any present or future
provision of the Bankruptcy Act of the United States or other statute or from
the decision of any court interpreting any of the same, and Guarantor shall be
obligated under this Guaranty as if no such impairment, stay, modification,
change, release or limitation had occurred.
(v) This Guaranty, and all of the terms hereof, shall be binding
on Guarantor and the successors, assigns, and legal representatives of
Guarantor.
(vi) Guarantor hereby waives the right to trial by jury in any
action or proceeding that may hereafter be instituted by Landlord against
Guarantor in respect of this Guaranty.
(vii) Guarantor will pay to Landlord all Landlord's expenses,
including, but not limited to, reasonable attorneys' fees and expenses, in
enforcing this Guaranty.
(viii) This Guaranty shall survive the termination of this Lease;
however, the foregoing shall not be deemed to modify the provisions of the last
sentence of Section 37.01(a) hereof.
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(ix) This Guaranty and Guarantor's obligations hereunder are and
shall at all times continue to be absolute, present, primary, and unconditional
in all respects, and shall at all times be valid and enforceable irrespective of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to this Guaranty and the obligations of Guarantor
under this Guaranty or the obligations of any other person or party (including,
without limitation, Tenant) relating to this Guaranty or the obligations of
Guarantor hereunder or otherwise with respect to the Lease. This Guaranty sets
forth the entire agreement and understanding of Landlord and Guarantor, and
Guarantor absolutely, unconditionally and irrevocably waives any and all right
to assert any defense, set-off, counterclaim or cross-claim of any nature
whatsoever with respect to this Guaranty or the obligations of any other person
or party (including, without limitation, Tenant) relating to this Guaranty or
the obligations of any other person or party (including, without limitation,
Tenant) relating to this Guaranty or the obligations of Guarantor hereunder or
otherwise with respect to the Lease in any action or proceeding brought by
Landlord with respect to the Lease or the obligations of Guarantor hereunder. No
oral or other agreements, understandings, representations or warranties exist
with respect to this Guaranty or with respect to the obligations of Guarantor
hereunder except as specifically set forth in this Guaranty.
The undersigned Xxxxxxxxx has executed this Article of the Lease for
the purposes set forth herein.
/s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Address: 000 Xxxxxxxx Xxxx
Xxxxx Xxxxx XX 00000
Social Security No.: 000 00 0000
ARTICLE 38
Extension of Term
------------ ----
38.01. (a) Subject to the provisions of Section 38.04 hereof, Tenant,
at Tenant's sole option, shall have the right to extend the term of this Lease
for an additional term of five (5) years commencing on the day following the
last day of the initial term of this Lease (hereinafter referred to as the
"Commencement Date of the Extension Term") and ending on the last day of the
month in which the fifth (5th) anniversary of the day preceding the Commencement
Date of the Extension Term occurs (such additional term is hereinafter called
the "Extension Term") provided that:
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(i) Tenant shall give Landlord notice (hereinafter called the
"Extension Notice") of its election to extend the term of the Lease not later
than twelve (12) months prior to the Expiration Date, and
(ii) Tenant shall not be in default under this Lease after
notice and the expiration of any applicable cure periods either as of the time
of the giving of the Extension Notice or the Commencement Date of the Extension
Term (which requirement Landlord may waive in its sole and absolute discretion),
and
(iii) The Tenant named herein shall, as of the date of the
giving of the Extension Notice and as of the Commencement Date of the Extension
Term, be in actual occupancy of one hundred (100%) percent of the rentable
square foot area of the Premises, provided that such occupancy requirement may
be waived by Landlord in its sole discretion at any time.
(b) The Fixed Rent payable by Tenant to Landlord during the
Extension Term shall be the higher of(i) the fair market rent for the Premises
as determined by Landlord and set forth in a written notice to Tenant, which
determination shall be as of the date (hereinafter called the "Determination
Date") occurring six (6) months prior to the Commencement Date of the Extension
Term and which determination shall be made by Landlord and given in writing to
Tenant within a reasonable period of time after the occurrence of the
Determination Date, or (ii) an amount equal to twelve (12) times the sum of the
monthly Fixed Rent, Operating Payment, and Tax Payment payable by Tenant with
respect to the Premises for the last full month of the initial term of this
Lease, without giving effect to any abatement, credit -or offset then in effect
(hereinafter called the "Original Term Escalated Rent").
For the purposes of determining the fair market rent for the
Premises during the Extension Term pursuant to this Article 38, the
determination shall take into account all then-relevant factors.
Effective as of the Commencement Date of the Extension Term,
(1) the Base Operating Amount shall be the Operating Expenses for the calendar
year immediately preceding the calendar year in which occurs the Commencement
Date of the Extension Term; and (2) the Base Tax Amount shall be the taxes for
the last complete Tax Year ending immediately prior to the occurrence of the
Commencement Date of the Extension Term, as finally determined.
38.02. (a) In the event Tenant gives the Extension Notice in
accordance with the provisions of Section 38.01 hereof and Tenant disputes the
fair market rent as determined by Landlord pursuant to Section 38.01(b) hereof,
then at any time on or before the date occurring thirty (30) days after Tenant
has been notified by Landlord of Landlord's determination of the fair market
rent, Tenant may initiate the arbitration process provided for herein by giving
notice
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to that effect to Landlord, and if Tenant so initiates the arbitration process
such notice shall specify the name and address of the person designated to act
as an arbitrator on its behalf. If Xxxxxx fails to initiate the arbitration
process as provided above, time being of the essence, then Landlord's
determination of the Fixed Rent during the Extension Term shall be conclusive.
Within thirty (30) days after the Landlord's receipt of notice of the
designation of Tenant's arbitrator, Landlord shall give notice to Tenant
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If Landlord fails to notify Tenant of the appointment of its
arbitrator within the time above specified, then Tenant shall provide an
additional notice to Landlord requiring Xxxxxxxx's appointment of an arbitrator
within twenty (20) days after Xxxxxxxx's receipt thereof. If Landlord fails to
notify Tenant of the appointment of its arbitrator within the time specified by
the second notice, the appointment of the second arbitrator shall be made in the
same manner as hereinafter provided for the appointment of a third arbitrator in
a case where the two arbitrators appointed hereunder and the parties are unable
to agree upon such appointment. The two arbitrators so chosen shall meet within
ten (10) days after the second arbitrator is appointed, and if, within sixty
(60) days after the second arbitrator is appointed, the two arbitrators shall
not agree upon a determination of the Fixed Rent for the Extension Term, they
shall together appoint a third arbitrator. In the event of their being unable to
agree upon such appointment within eighty (80) days after the appointment of the
second arbitrator, the third arbitrator shall be selected by the parties
themselves if they can agree thereon within a further period of fifteen (15)
days. If the parties do not so agree, then either party, on behalf of both and
on notice to the other, may request such appointment by the American Arbitration
Association (or any organization successor thereto) in accordance with its rules
then prevailing or if the American Arbitration Association (or such successor
organization) shall fail to appoint said third arbitrator within fifteen (15)
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
said Court) for the appointment of such third arbitrator. The majority of the
arbitrators shall determine the fair market rent of the Premises for the
Extension Term and render a written certified report of their determination to
both Landlord and Tenant within sixty (60) days of the appointment of the first
two arbitrators or sixty (60) days from the appointment of the third arbitrator,
if such third arbitrator is appointed pursuant to this Section 38.02; and the
fair market rent, so determined, shall be applied to determine the Fixed Rent
for the Premises during the Extension Term; provided, however that in no event
shall the Fixed Rent for the Extension Term be less than the Original Term
Escalated Rent.
(b) Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys 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 by
the parties equally.
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(c) Each of the arbitrators selected as herein provided shall
have at least ten (10) years experience in the leasing and renting of office
space in first class office buildings in New York County.
(d) In the event the Tenant initiates the aforesaid arbitration
process and as of the Commencement Date of the Extension Term the amount of the
fair market rent has not been determined, Tenant shall pay the amount determined
by Landlord to be the fair market rent for the Premises and when the
determination has actually been made, an appropriate retroactive adjustment
shall be made as of the Commencement Date of the Extension Term. In the event
that such determination shall result in an overpayment by Tenant of any Fixed
Rent, such overpayment shall be paid by Landlord to Tenant promptly after such
determination.
38.03. Except as provided in Section 38.01 hereof, Xxxxxx's occupancy
of the Premises during the Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the initial
term of this Lease; provided, however, Tenant shall have no further right to
extend the term of this Lease pursuant to this Article 38 and Tenant shall not
be entitled to any rental abatement or work allowance provided herein.
38.04. If Tenant does not timely send the Extension Notice pursuant to
the provisions of Section 38.01 hereof, this Article 38 shall have no force or
effect and shall be deemed deleted from this Lease. Time shall be of the essence
with respect to the giving of the Extension Notice. The termination of this
Lease during the initial term hereof shall also terminate and render void any
option or right on Tenant's part to extend the term of this Lease pursuant to
this Article 38 whether or not such option or right shall have theretofore been
exercised. None of Tenant's options or elections set forth in this Article 38
may be severed from this Lease or separately sold, assigned or transferred.
38.05. If Tenant exercises its right to extend the term of this Lease
for the Extension Term pursuant to this Article 38, the phrases "the term of
this lease" or "the term hereof' as used in this Lease, shall be construed to
include the Extension Term, and the Expiration Date shall be construed to be the
date of the expiration of the Extension Term.
38.06. if this Lease is renewed for the Extension Term, then Landlord
or Tenant can request the other party hereto to execute, acknowledge and deliver
an instrument in form for recording setting forth the exercise of Tenant's right
to extend the term of this Lease and the last day of the Extension Term.
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ARTICLE 39
Additional Space
----------------
39.01. (a) The "Additional Space" shall mean the entire rentable area
of any one (1) floor of the Building located not lower than the twenty-first (2
1st) floor and not higher than the thirty-first (31st) floor and in the same
elevator bank as the premises originally demised hereunder, as designated by
Landlord in Landlord's sole discretion in the Additional Space Notice (as such
term is hereinafter defined).
(b) Provided that Tenant is not then in default of any of the
terms, provisions and conditions of this Lease on the part of Tenant to be
performed, after notice and the expiration of any applicable cure periods,
either as of the "Inclusion Date" or as of the giving of Tenant's Notice (as
such terms are hereinafter defined), then Tenant shall have the option to
include the entire Additional Space within the Premises upon the terms and
subject to the conditions of this Lease (including without limitation the
provisions of Article 3 and the Base Operating Amount and Base Tax set forth
therein) and to such additional terms and conditions as are hereinafter set
forth. Any such option shall be effected by a written notice (hereinafter called
"Tenant's Notice") from Tenant to Landlord, given not later than March 31,2000.
In the event that Tenant shall give a Tenant's Notice to Landlord, Landlord
shall give a written notice to Tenant (the "Additional Space Notice")
designating the Additional Space by the later to occur of (x) thirty (30) days
following Xxxxxxxx's receipt of Tenant's Notice or (y) March 1, 2000, and the
Additional Space shall be added to and included in the Premises effective as of
the Inclusion Date (as such term is hereinafter defined).
(c) The Additional Space shall be added to and included within
the Premises on the date (the "Inclusion Date") which shall be the earlier to
occur of: (i) the date on which Landlord's Work with respect to the Additional
Space shall be Substantially Completed or shall be deemed to be Substantially
Completed pursuant to the provisions of Section 2.01(g) hereof, or (ii) the date
Tenant or anyone claiming under or through Tenant, first occupies the Additional
Space, or any part thereof, for the preparation of the Additional Space for
Tenant's occupancy or for the conduct of its business or for any other purpose.
(d) Promptly following the Inclusion Date, at the request of
Landlord, Landlord and Tenant shall enter into a supplementary agreement with
respect thereto, but their failure to do so shall not affect any of the rights
and obligations of the parties hereunder.
39.02. Effective as of the Inclusion Date:
(a) the Fixed Rent hereunder shall be increased by the
following amounts per annum during the following periods:
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(x) the product obtained by multiplying (A) the number of
rentable square feet comprising the Additional Space, and
(B) $33.00, for the period commencing on the Inclusion
Date and ending on the day preceding the fifth (5th)
anniversary of the Rent Commencement Date; and
(y) the product obtained by multiplying (A) the number of
rentable square feet comprising the Additional Space, and
(B) $36.00 during the period commencing on the fifth
(5th) anniversary of the Rent Commencement Date ending on
the Expiration Date.
(b) Tenant's Share, as defined in Subsection 3.01(j) hereof,
shall be increased by the percentage obtained by dividing the number of rentable
square feet comprising the Additional Space by 1,000,904; and
(C) The security required to be maintained pursuant to
Article 4 hereof shall be increased by an amount equal to the product of (x)
$20.63 (i.e. 7 1/2 months rent based on an annual rental rate of $33.00 per
rentable square foot), multiplied by (y) the number of rentable square feet
comprising the Additional Space (such amount being herein called the "Additional
Space Security"), and Tenant shall, on the Inclusion Date, deliver the
Additional Space Security to Landlord in the form of either a cash deposit or a
replacement of or amendment to the Security Letter theretofore delivered to
Landlord increasing such Security Letter by the amount of the Additional
Security.
(d) Notwithstanding anything to the contrary contained
herein, provided Tenant is not in default hereunder beyond any applicable notice
or cure period, the Fixed Rent attributable to the Additional Space shall be
abated for the ninety (90) day period commencing on the Inclusion Date and
ending on the day eighty-nine (89) days thereafter (the "Additional Space Rent
Abatement Period").
39.03. Section 2.01 of this Lease shall apply to the Additional Space,
except that the following changes shall apply to Section 2.01 as it is applied
to the Additional Space (Section 2.01 shall not be modified by this Article 39
as it applies to the Premises originally set forth in this Lease):
(a) The "Work Letter" shall be deemed to mean the work letter
annexed hereto and made a part hereof as Exhibit C and shall be deemed to
exclude the design layout plans included in Exhibit C;
(b) The "Final Plan Date" shall be deemed be the date that is
twenty (20) days after the delivery by Landlord of the Additional Space Notice;
(c) "Extra Work" shall be deemed to mean any work or material
requested by Tenant that (i) is in excess of the quantity of such work or
material required to be provided by Landlord in Connection with the Tenant's
Work performed in the premises originally
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demised hereunder (hereinafter called the "Original Premises Tenant's Work") as
-------------------------------
set forth in the Work Letter applicable thereto (which quantity shall be
determined on a per rentable square foot basis in the case of any costs which
vary in relation to the rentable square foot area of the premises in question)
or (ii) is set forth in the Work Letter as an item to be installed at Tenant's
option or at Tenant's cost and expense. By way of example, in the event that the
Work Letter in connection with the Original Premises Tenant's Work requires
Landlord to install three duplex outlets for every 100 rentable square feet of
individual offices throughout the Premises and the Tenant Work Final Plans with
respect to the Tenant's Work to be performed in the Additional Space
(hereinafter called the "Additional Space Tenant's Work") require Landlord to
------------------------------
install four duplex outlets for every 100 rentable square feet of individual
offices throughout the Additional Space, the installation of the fourth outlet
for every 100 rentable square feet of individual offices throughout the
Additional Space shall, for purposes of the application of Section 2.01 hereof
to the Additional Space, be deemed to be Extra Work;
(d) "Special Work" shall be deemed to mean any work or material
which is of a different quality or nature, or involves greater complexity, than
the work or material required to be provided by Landlord in connection with the
Original Premises Tenant's Work, as set forth in the Work Letter applicable
thereto, including, without limitation, Long-Lead Work and Tenant Change Orders;
(e) All references to the 27th floor of the Building shall be
deemed to be references to the floor of the Building where the Additional Space
is located; and
(f) All references to the Commencement Date and the
determination of the Commencement Date shall be deemed references to the
"Inclusion Date".
39.04. (a) The provisions of Section 2.01(k) hereof shall be
inapplicable to the Additional Space. If for any reason whatsoever, Landlord
shall be unable to deliver possession of the Additional Space on the Inclusion
Date, then notwithstanding anything to the contrary hereinbefore contained, the
Additional Space shall be added to and included within the Premises on, and the
Inclusion Date shall be, the date on which Landlord is able to so deliver
possession of the Additional Space. If Landlord does not cause the Inclusion
Date to occur on or prior to the day (the "Additional Space Outside Date") which
shall be the later to occur of (i) October 1, 2000 or (ii) the date occurring
one hundred eighty (180) days after the date Tenant has provided Landlord with
the Tenant Work Final Plans with respect to the Additional Space Tenant's Work
in form acceptable to and approved by Landlord and in form acceptable for filing
with the Buildings Department of the City of New York (which date shall be
extended by one day for each day that Landlord is prevented from delivering
possession of the Additional Space to Tenant by reason of Force Majeure Causes
or Tenant Delay), the length of the Additional Space Rent Abatement Period (as
such term is defined in Section 39.02(d) hereof) shall be increased by one day
by each day in the period commencing on the Additional Space Outside Date and
ending on the Inclusion Date [by way of example, in the event that the Inclusion
Date
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shall occur on the date which is five (5) days following the Additional Space
Outside Date (as the same may be extended as hereinabove set forth), the
Additional Space Rent Abatement Period shall be deemed to be the ninety-five
(95) day period commencing on the Inclusion Date and ending on the day ninety-
four (94) days thereafter]. Landlord shall not be subject to any liability for
failure to give possession on the date that Landlord's Work with respect to the
Additional Space is Substantially Completed and the validity of this Lease shall
not be impaired under such circumstances, nor the same be construed in any way
to extend the term of this Lease.
(b) Notwithstanding anything contained in this Section 39.04 to
the contrary, in the event that the Inclusion Date shall not have occurred on or
before the date which shall be the later to occur of (i) December 26, 2000 or
(ii) the date occurring two hundred seventy (270) days after the date that
Tenant has provided Landlord with the Tenant Work Final Plans with respect to
the Additional Space Tenant's Work in form acceptable to and approved by
Xxxxxxxx and in form acceptable for filing with the Buildings Department of the
City of New York, which date shall be extended by one day for each day that
Landlord is prevented from delivering possession of the Additional Space to
Tenant by reason of Force Majeure Causes or Tenant Delay (such date as the same
may be so extended, is herein called the "Additional Space Rescission Date"),
then Landlord shall not be subject to any liability for failure to give
possession of the Additional Space on such date and the validity of this Lease
shall not be impaired under such circumstances, nor the same be construed in any
way to extend the term of this Lease, but Tenant shall have the right to
terminate this Lease with respect to the Additional Space only by written notice
(herein called the "Additional Space Rescission Notice") given to Landlord
within five (5) days after the Additional Space Rescission Date (time being of
the essence with respect to the giving of the Additional Space Rescission Notice
within such five (5) day period), and such termination shall be effective on the
fifteenth (15th) day after the date that Tenant shall give the Additional Space
Rescission Notice to Landlord (such date being herein called the "Additional
Space Termination Date"), unless the Inclusion Date shall occur before the
Additional Space Termination Date. If Tenant fails to give the Additional Space
Rescission Notice to Landlord within such five (5) day period after the
Additional Space Rescission Date, the provisions of this Section 39.04(b) shall
be null and void and Tenant shall have no further right to terminate this Lease
with respect to the Additional Space. If Tenant exercises such option to
terminate this Lease with respect to the Additional Space, then upon such
termination, neither Landlord nor Tenant shall have any further obligations to
the other hereunder with respect to the Additional Space except that Landlord
shall promptly thereafter return to Tenant all rent theretofore paid by Tenant
to Landlord hereunder with respect to the Additional Space.
(c) Tenant hereby waives any right to rescind this Lease under
the provisions of Section 223(a) of the Real Property Law of the State of New
York, and agrees that the provisions of this Section 39.04 are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223(a).
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39.05. The provisions of this Article 39 shall be effective only if on
the Inclusion Date, the named Tenant herein shall be in actual occupancy of
eighty (80%) percent of the Premises.
39.06. The termination of this Lease during the term of this Lease
shall also terminate and render void all of Tenant's options or elections under
this Article 39 whether or not the same shall have been exercised; and nothing
contained in this Article shall prevent Landlord from exercising any right or
action granted to or reserved by Landlord in this Lease to terminate this Lease.
None of Tenant's options or elections set forth in this Article 39 may be
severed from this Lease or separately sold, assigned or transferred.
39.07. If Tenant within the applicable time period, time being of the
essence, does not send Tenant's Notice pursuant to the provisions of this
Article 39, then this Article 39 shall have no further force and effect and
shall be deemed deleted from this Lease, and Tenant shall have forever waived
and relinquished its right to the Additional Space and Landlord shall at any and
all times thereafter be entitled to lease such Additional Space to others at
such rental and upon such terms and conditions as Landlord in its sole
discretion may desire.
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IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have duly executed this Lease as of
the day and year first above written.
00 XXXXXX XXXX ASSOCIATES, LLC, Landlord
By: Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Manager
BROADVIEW NETWORKS, INC., Tenant
By: Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP-Admin
Tenant's Federal Identification Number:
00-0000000
----------
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TENANT ACKNOWLEDGMENT
---------------------
State of New York )
):ss
County of Westchester )
On the 30 day of December in the year 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Xxxxx X. Xxxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies) as VP of Admin., and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Xxxxxxxxx X. XxxXxxxx
-------------------------
Notary Public
XXXXXXXXX X. XxxXXXXX
Notary Public, State of New York
No. 01MA6000748
Qualified in Xxxxxx County
Commission Expires December 22, 2001
100
