************************************************************
AGREEMENT OF LEASE
between
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
Landlord,
and
WRC MEDIA, INC.
Tenant,
Dated: March , 2000
PREMISES:
The Entire Twenty-First (21st), Twenty-Second (22nd)
and Twenty-Third (23rd) Floors
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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TABLE OF CONTENTS
ARTICLE 1
RENT 1
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES 4
ARTICLE 3
ADJUSTMENTS OF RENT 6
ARTICLE 4
ELECTRICITY 12
ARTICLE 5
USE
ARTICLE 6
ALTERATIONS AND INSTALLATIONS
ARTICLE 7
REPAIRS
ARTICLE 8
REQUIREMENTS OF LAW 22
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY 23
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE 29
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC
ARTICLE 12
CERTIFICATE OF OCCUPANCY
ARTICLE 13
ADJACENT EXCAVATION SHORING 40
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ARTICLE 14
CONDEMNATION
ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES 42
ARTICLE 16
CONDITIONS OF LIMITATION
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
ARTICLE 18
DAMAGES
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
ARTICLE 20
QUIET ENJOYMENT
ARTICLE 21
SERVICES AND EQUIPMENT 50
ARTICLE 22
DEFINITIONS 52
ARTICLE 23
INVALIDITY OF ANY PROVISION
ARTICLE 24
BROKERAGE 53
ARTICLE 25
SUBORDINATION 54
ARTICLE 26
CERTIFICATE OF TENANT 56
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ARTICLE 27
LEGAL PROCEEDINGS WAIVER OF JURY TRIAL
ARTICLE 28
SURRENDER OF PREMISES 57
ARTICLE 29
RULES AND REGULATIONS
ARTICLE 30
CONSENTS AND APPROVALS
ARTICLE 31
NOTICES 59
ARTICLE 32
NO WAIVER 59
ARTICLE 33
CAPTIONS 60
ARTICLE 34
INABILITY TO PERFORM 61
ARTICLE 35
NO REPRESENTATIONS BY LANDLORD 61
ARTICLE 36
NAME OF BUILDING 61
ARTICLE 37
RESTRICTIONS UPON USE 61
ARTICLE 38
ARBITRATION 62
ARTICLE 39
INDEMNITY 62
ARTICLE 40
MEMORANDUM OF LEASE 63
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ARTICLE 41
MISCELLANEOUS
ARTICLE 42
SECURITY DEPOSIT 65
ARTICLE 43
PARTNERSHIP 67
ARTICLE 44
SUBLEASE
ARTICLE 45
INTENTIONALLY OMITTED
ARTICLE 46
INTENTIONALLY OMITTED
ARTICLE 47
FIRST OFFERING SPACE
ARTICLE 48
EXTENSION OF TERM OPTION 73
ARTICLE 49
INTENTIONALLY OMITTED 77
ARTICLE 50
LAYOUT AND FINISH; TENANT WORK CREDIT 77
EXHIBIT
A Floor Plan .........................................................A-1
B Property Description................................................B-1
C Rules and Regulations...............................................C-1
D List of Approved Contractors and Subcontractors.....................D-1
E First Offering Space................................................E-1
F Form of Security Letter.............................................F-1
G Alterations Rules and Regulations...................................G-1
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AGREEMENT OF LEASE made as of this _____ day of March, 2000, between
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, a New York limited partnership, with
its office at c/o Newmark & Company Real Estate, Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Landlord") and WRC MEDIA,
INC., a Delaware corporation, with its office at c/o Ripplewood Holdings, 0
Xxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer (hereinafter referred to as "Tenant").
W I T N E S S E T H
Landlord hereby leases and Tenant hereby hires from Landlord, in the
building (hereinafter referred to as the "Building") known as 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the following space: the entire twenty-first
(21st), twenty-second (22nd) and twenty-third (23rd) floors as shown on the
plans annexed hereto as Exhibit A (which space is hereinafter referred to as the
"demised premises"); for a term of approximately fifteen (15) years, to commence
on the date hereof (hereinafter referred to as the "Commencement Date"), and to
end on the last day of the month in which occurs the fifteenth (15th)
anniversary of the Rent Commencement Date (such date on which the term of the
Lease expires is hereinafter referred to as the "Expiration Date") or on such
date as such term shall sooner cease and terminate as hereinafter provided. The
Building is located on the land (herein called the "Land") described on Exhibit
B annexed hereto).
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, trustees, successors and
assigns, hereby covenant as follows:
ARTICLE 1
RENT
1.01 Tenant shall pay to Landlord a fixed annual rent (hereinafter
referred to as "fixed annual rent") at the annual rate of:
(a) One Million Two Hundred Eighty-Five Thousand Two Hundred
Sixty-Nine and 00/100 Dollars ($1,285,269.00) per annum, commencing on the Rent
Commencement Date until the last day of the month
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preceding the month in which occurs the fifth (5th) anniversary of the Rent
Commencement Date;
(b) One Million Three Hundred Fifty-Four Thousand Seven Hundred
Forty-Three and 00/100 Dollars ($1,354,743.00) per annum, commencing on the
first day of the month in which occurs the fifth (5th) anniversary of the Rent
Commencement Date until the last day of the month preceding the month in which
occurs the tenth (10th) anniversary of the Rent Commencement Date; and
(c) One Million Four Hundred Fifty-Eight Thousand Nine Hundred
Fifty-Four and 00/100 Dollars ($1,458,954.00) per annum, commencing on the first
day of the month in which occurs the tenth (10th) anniversary of the Rent
Commencement Date and ending on the Expiration Date.
Tenant agrees to pay the fixed annual rent in lawful money of the
United States of America, in equal monthly installments in advance on the first
day of each calendar month during said term, at the office of Landlord or such
other place in the United States of America as Landlord may designate, without
any setoff or deduction whatsoever, except such deduction as may be occasioned
by the occurrence of any event permitting or requiring a deduction from or
abatement of rent as specifically set forth herein. Should the obligation to pay
fixed annual rent commence on any day other than on the first day of a month,
then the fixed annual rent for such month shall be prorated on a per diem basis.
The first month's installment of fixed annual rent due under this Lease
shall be paid by Tenant upon the execution of this Lease.
If this lease be a renewal of any existing lease any rent due
thereunder after the expiration of the term of such lease shall be deemed
additional rent under this lease.
1.02 Tenant shall pay the fixed annual rent and additional rent as
above and as hereinafter provided, by good and sufficient check (subject to
collection) drawn on The Bank of New York or such other bank which is a member
of the New York Clearinghouse Association or a successor thereto. All sums other
than fixed annual rent payable by Tenant hereunder shall be deemed additional
rent (for default in the payment of which Landlord shall have the same remedies
as for a default in the payment of fixed annual rent), and shall be payable
twenty (20) days after demand, unless other payment dates are hereinafter
provided.
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1.03 If Tenant shall fail to pay when due any installment of fixed
annual rent or any payment of additional rent for a period of five (5) days
after such installment or payment shall have become due, Tenant shall pay
interest thereon at the Interest Rate (as such term is defined in Article 22
hereof), from the date when such installment or payment shall have become due to
the date of the payment thereof, and such interest shall be deemed additional
rent.
1.04 If any of the fixed annual rent or additional rent payable under
the terms and provisions of this Lease shall be or become uncollectible, reduced
or required to be refunded because of any Legal Requirement (as such term is
defined in Article 22 hereof), Tenant shall enter into such agreement(s) and
take such other steps (without additional expense to Tenant) as Landlord may
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 (and not in excess of the amounts
reserved therefor under this Lease). Upon the termination of such legal rent
restriction, (a) the rents 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, to the maximum extent legally permissible, an
amount equal to (i) the rents which would have been paid pursuant to this Lease
but for such legal rent restriction less (ii) the rents paid by Tenant during
the period such legal rent restriction was in effect.
1.05 (a) Notwithstanding any language to the contrary contained herein,
the fixed annual rent payable hereunder shall be abated during the period
commencing on the Commencement Date and ending on August 31, 2000 (the date
following the expiration of the Abatement Period is hereinafter called the "Rent
Commencement Date").
(b) If Landlord shall not have substantially completed Landlord's
Work in the demised premises as set forth in Section 2.01 herein by May 31, 2000
(the "Landlord's Work Completion Date") and such failure results in a delay in
the completion of Tenant's Work (as hereinafter defined), then the Rent
Commencement Date shall be extended one (1) day for each day thereafter that
Landlord's Work is not so substantially completed (except for minor or
insubstantial details of construction, mechanical adjustment, decoration, or
other punch-list items which remain to be performed). Notwithstanding any
language to the contrary contained in this Lease, the Landlord's Work Completion
Date shall be extended by one day for each day that Landlord is prevented from
performing or completing such work by reason of a Tenant Delay. A "Tenant Delay"
shall mean: (a) delays in submitting the final plan (as defined in Section 50.02
herein) with
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respect to Tenant's Work, or in approving any drawings or specifications, giving
authorizations or supplying information; or (b) additional time needed by
Landlord, as a result of Tenant requesting Landlord to make a change or addition
to Landlord's Work or change in the final plan.
ARTICLE 2
PREPARATION OF THE DEMISED PREMISES
2.01 Tenant has examined the demised premises and agrees to accept the
same in their condition and state of repair existing as of the date hereof
subject to normal wear and tear and to the removal therefrom of the property of
the existing tenant or occupant thereof, if any, and understands and agrees that
Landlord shall not be required to perform any work, supply any materials or
incur any expense to prepare the demised premises for Tenant's occupancy, except
that Landlord, at Landlord's sole cost and expense, shall:
(a) demolish the demised premises other than core areas therein
and remove asbestos in the demised premises in accordance with applicable legal
requirements to facilitate Tenant's Work in and to the demised premises, except
for any vinyl asbestos tile ("VAT") which shall be Tenant's obligation to remove
or encapsulate at Tenant's expense, and, following receipt from Tenant of
Tenant's plans and specifications showing the proposed Tenant's Work, deliver to
Tenant an original ACP-5 or ACP-7 form, as applicable, in connection therewith;
(b) provide a reasonable number of connection points to the
Building life safety system for Tenant to connect its devices in the demised
premises, provided that the cost for such connection shall be at Tenant's
expense; and
(c) remove all existing exterior windows in the demised premises;
and supply and install new Building Standard (as defined herein) exterior
windows throughout the demised premises; and
(d) deliver all existing radiators within the demised premises in
working order.
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2.02 Landlord shall use all reasonable efforts to complete items (a),
(b), and (d) of Landlord's Work prior to May 1, 2000 and item (c) by June 30,
2000.
2.03 If the Commencement Date is other than the specific date
hereinabove set forth then Tenant shall at Landlord's request, execute a written
agreement confirming the Commencement Date. Any failure of the parties to
execute such written agreement shall not affect the validity of the Commencement
Date as fixed and determined by Landlord as aforesaid.
2.04 (a) Tenant agrees that part of the twenty-first (21st) floor of
the demised premises (the "21st Floor") is currently occupied and that Tenant
shall occupy ("Pre-Work 21st Floor") the balance of the twenty-first (21st)
floor while Tenant's Work is being performed in the balance of the demised
premises. Tenant agrees that the term of this lease shall commence on the date
hereof notwithstanding Landlord's inability to deliver to Tenant on the
Commencement Date vacant possession of the entire 21st Floor. Except as
otherwise expressly set forth in this lease, Tenant shall have no claim against
Landlord, and Landlord shall have no liability to Tenant, by reason of the
delivery of possession of any portion of the 21st Floor to Tenant after the
Commencement Date. The parties hereto further agree that the failure to have the
entire 21st Floor available for occupancy by Tenant on the Commencement Date
shall in no way affect the obligations of Tenant hereunder except as hereinafter
expressly set forth, nor shall the same be construed in any way to extend the
term of this lease. Landlord shall use reasonable efforts to obtain and deliver
possession of the 21st Floor to Tenant, including commencement of summary
proceedings against the tenant(s) currently occupying the 21st Floor and
holding-over under expired leases. In the event Landlord fails to deliver any
portion of the 21st Floor to Tenant on the Commencement Date, Landlord shall not
be required to perform any of Landlord's Work on the 21st Floor until the entire
21st Floor is vacant and has been delivered to Tenant and the fixed annual rent
for that portion of the 21st Floor not so delivered to Tenant shall xxxxx for
three (3) months following delivery of the respective portion(s) of the 21st
Floor not initially delivered to Tenant; provided, however, in no event shall
Tenant be required to any fixed annual rent on any portion of the 21st Floor
prior to the date provided under Section 1.05 (a) above. The amount of such
abatement shall be the product of (i) the rentable square feet of the 21st Floor
not delivered to Tenant, multiplied by (ii) the rate per rentable square foot of
fixed annual rent then payable for the remainder of the demised premises,
calculated on a per diem basis.
(b) As provided in Section 2.04 (a) above, Landlord and Tenant
agree that there shall be no fixed annual rent payable with respect to any
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portion of the twenty-first (21st) floor until three (3) months after the date
such portion of the twenty-first (21st) floor shall be delivered to Tenant
vacant with the item of Landlord's Work specified in Section 2.01(a) completed;
provided that Tenant shall vacate the Pre-Work 21st Floor within twenty (20)
days after Landlord's notice to vacate same so that Landlord can perform
Landlord's Work therein. Any fixed annual rent payable with respect to any such
portion of the twenty-first (21st) floor shall be abated during the period
Tenant is required to vacate same for Landlord to perform Landlord's Work and
for the three (3) month period after the completion of same and the delivery of
such portion of the twenty-first (21st) floor to Tenant in the condition herein
provided. In the event Tenant fails to vacate the Pre-Work 21st Floor as
provided in this Section 2.04(b), any abatement applicable to payment of the
fixed annual rent for that portion of the Pre-Work 21st Floor shall be reduced
for each day after twenty (20) days Tenant shall not vacate the Pre-Work 21st
Floor.
ARTICLE 3
ADJUSTMENTS OF RENT
3.01 For the purposes of this Article 3, the following definitions
shall apply
(a) The term "Base Tax" shall mean the amount obtained by
multiplying (i) the assessed value of the Building and the parcel of land on
which the Building is constructed (hereinafter called the "Land") for the
purpose of establishing real estate taxes to be paid by Landlord for the Tax
Year commencing July 1, 2000, and ending on June 30, 2001 by (ii) the real
property tax rate for such Tax Year for each $100.00 of such assessed value.
(b) The term "Tenant' s Proportionate Share" shall be deemed to
mean 6.79 % percent.
(c) The term "Taxes" shall mean (i) all real estate taxes,
assessments, sewer rents and water charges, governmental levies, municipal
taxes, county taxes or any other governmental charge, general or special,
ordinary or extraordinary, unforeseen as well as foreseen, of any kind or nature
whatsoever, which are or may be assessed levied or imposed upon all or any part
of the Land, the Building and the sidewalks, plazas or streets in front of or
adjacent thereto, including any tax, excise or fee measured by or payable with
respect to any rent, and levied against Landlord and/or the Land and/or
Building, under the laws of the
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Xxxxxx Xxxxxx, the State of New York, or any political subdivision thereof, or
by the City of New York or any political subdivision thereof and any charge
imposed by any business improvement district, and (ii) any expenses incurred by
Landlord in contesting any of the foregoing set forth in clause (i) of this
sentence or the assessed valuations of all or any part of the Land and Building,
etc. or collecting any refund. If, due to a future change in the method of
taxation or in the taxing authority, a new or additional real estate tax, or a
franchise, income, transit, profit or other tax or governmental imposition,
however designated, shall be levied against Landlord, and/or the Land and/or
Building, in addition to, or in substitution in whole or in part for any tax
which would constitute "Taxes", or in lieu of additional Taxes, such tax or
imposition shall be deemed for the purposes hereof to be included within the
term "Taxes", if in accordance with the general practice of owners of real
estate in New York City. Except as set forth in the immediately preceding
sentence, Taxes shall not include sales, transfer, income, franchise, estate or
inheritance taxes or any penalties or interest imposed on Landlord in connection
with late payment thereof. Currently there are no tax exemptions or abatements
in effect affecting the Taxes.
(d) The term "Tax Year" shall mean each period of twelve (12)
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.
(e) The term "Operating Year" shall mean the calendar year 2000
and each succeeding calendar year thereafter.
(f) The term "Wage Rate" with respect to any Operating Year shall
mean the regular average hourly wage rate (excluding fringe benefits) required
to be paid to Porters in Class A Office Buildings pursuant to any agreement
between the Realty Advisory Board on Labor Relations, Incorporated or any
successor thereto (hereinafter referred to as "R.A.B.") and local 32B/32J of the
Building Service Employees International Union AFL-CIO, or any successor thereto
(hereinafter referred to as "Local 32B") in effect during such Operating Year,
provided that if any such agreement shall require Porters to be regularly
employed on days or during hours when overtime or other premium pay rates are in
effect, then the term "regular average hourly wage rate" shall mean the regular
average hourly wage rate for the hours in a calendar week which Porters are
required to be regularly employed (whether or not actually at work in the
Building), e.g., if, for example, as of January 1, 2000, an agreement between
R.A.B. and Local 32B would require the regular employment of Porters for 40
hours during a calendar
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week at a regular average hourly wage of $4.00 for the first 30 hours and at an
overtime hourly average wage of $5.00 for the remaining 10 hours, then the
regular average hourly wage rate under this subsection, as of January 1, 2000,
would be the sum arrived at by dividing the total weekly average wages of
$170.00 by the total number of required hours of employment which is 40 and
resulting in a regular average hourly wage rate of $4.25. The computation of the
regular average hourly wage rate shall be on the same basis whether based on an
hourly or other pay scale but predicated on the number of hours in such
respective work weeks, whether paid by Landlord or any independent contractor.
If there is no such agreement in effect as of the date of any Escalation
Statement on which such regular average hourly wage rate is determinable, the
computations shall be made on the basis of the regular average hourly wage rate
being paid by Landlord or by the contractor performing xxxxxx or cleaning
services for Landlord as of the date of such Escalation Statement and
appropriate retroactive adjustments shall be made when the regular average
hourly wage rate paid as of such Escalation Statement is finally determined. If
length of service shall be a factor in determining any element of wages it shall
be conclusively presumed that all employees have at least three years of
service. The Wage Rate is intended to be an index in the nature of a cost of
living index, and is not intended to reflect the actual costs of wages or
expenses for the Building.
(g) The term "Porters" shall mean that classification of employee
engaged in the general maintenance and operation of Class A Office Buildings
most nearly comparable to the classification now applicable to porters in the
current agreements between R.A.B. and Local 32B/32J (which classification is
presently termed "others" in said agreement).
(h) The term "Class A Office Buildings" shall mean office
buildings in the same class or category as the Building under any building
operating agreement between R.A.B. and Local 32B/32J, regardless of the
designation given to such office buildings in any such agreement.
(i) The term "Base Wage Rate" shall mean the Wage Rate in effect
on January 1, 2000.
(j) The term "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. Upon Tenant's request
therefore, Landlord shall furnish to Tenant a copy of the tax bills upon which
an Escalation Statement was based.
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(k) The term "Wage Rate Multiple" shall mean 34,737.
3.02 If the Wage Rate for any Operating Year shall be greater than the
Base Wage Rate, then Tenant shall in the case of such an increase pay to
Landlord as additional rent for the demised premises for such Operating Year an
amount equal to the product obtained by multiplying one hundred (100%) percent
of the difference between the Wage Rate for such Operating Year and the Base
Wage Rate, by the Wage Rate Multiple.
3.03 A. Tenant shall pay as additional rent for each Tax Year a sum
(hereinafter referred to as "Tenant's Tax Payment") equal to Tenant's
Proportionate Share of the amount by which the Taxes for such Tax Year exceed
the Base Tax. Tenant's Tax Payment for each Tax Year shall be due and payable in
two (2) equal installments, in advance, (i.e., on the first day of each June and
December during each Tax Year) based upon the Escalation Statement furnished
prior to the commencement of such Tax Year, until such time as a new Escalation
Statement for a subsequent Tax Year shall become effective. If an Escalation
Statement is furnished to Tenant after the commencement of a Tax Year in respect
of which such Escalation Statement is rendered, Tenant shall, within fifteen
(15) days thereafter, pay to Landlord an amount equal to the amount of any
underpayment of Tenant's Tax Payment with respect to such Tax Year and, in the
event of an overpayment, Landlord shall permit Tenant to credit against
subsequent payments under this lease the amount of Tenant's overpayment or if
there are no subsequent payments coming due under the lease, Landlord shall pay
such amount to Tenant. If there shall be any increase in Taxes for any Tax Year,
whether during or after such Tax Year, Landlord shall furnish a revised
Escalation Statement for such Tax Year, and Tenant's Tax Payment for such Tax
Year shall be adjusted and paid in the same manner as provided in the preceding
sentence. If during the term of this Lease, Taxes are required to be paid
(either to the appropriate taxing authorities or as tax escrow payments to a
superior mortgagee) in full or in monthly, quarterly, or other installments, on
any other date or dates than as presently required, then at Landlord's option,
Tenant's Tax Payments shall be correspondingly accelerated or revised so that
said Tenant's Tax Payments are due at least thirty (30) days prior to the date
payments are due to the taxing authorities or the superior mortgagee. The
benefit of any discount for any early payment or prepayment of Taxes shall
accrue solely to the benefit of Landlord and such discount shall not be
subtracted from Taxes.
B. 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
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included, shall be apportioned on the 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 3.03.
C. If Landlord shall receive a refund of Taxes for any Tax Year,
Landlord shall permit Tenant to credit against subsequent payments under this
Lease Tenant's Proportionate Share of the refund but not to exceed Tenant's Tax
Payment paid for such Tax Year, or if there are no subsequent payments coming
due under the Lease, Landlord shall pay such amount to Tenant.
D. If the Base Tax is reduced as a result of a certiorari
proceeding or otherwise Landlord shall adjust the amounts previously paid by
Tenant pursuant to the provisions of this Section 3.03 and Tenant shall pay the
amount of said adjustment within thirty (30) days after demand setting forth the
amount of said adjustment.
3.04 Tenant shall pay to Landlord upon demand, as additional rent, 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 Landlord.
3.05 Any such adjustment payable by reason of the provisions of Section
3.02 shall commence as of the first day of the relevant Operating Year and,
after Landlord shall furnish Tenant with an Escalation Statement relating to
such Operating Year, all monthly installments of rental shall reflect
one-twelfth (1/12) of the annual amount of such adjustment until a new
adjustment becomes effective pursuant to the provisions of this Article 3,
provided, however, that if said Escalation Statement is furnished to Tenant
after' the commencement of such Operating Year, there shall be promptly paid by
Tenant to Landlord, an amount equal to the portion of such adjustment allocable
to the part of such Operating Year which shall have elapsed prior to the first
day of the calendar month next succeeding the calendar month in which said
Escalation Statement is furnished to Tenant.
3.06 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
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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.
3.07 Payments shall be made pursuant to this Article 3 notwithstanding
the fact that an Escalation Statement is furnished to Tenant after the
expiration of the term of this Lease, provided that if Landlord shall fail to
furnish an Escalation Statement with respect to any Operating Year within three
(3) years following the end of such year, then Landlord shall be deemed to have
irrevocably waived its right to furnish such Escalation Statement.
3.08 In no event shall the fixed annual rent ever be reduced by
operation of this Article 3 and the rights and obligations of Landlord and
Tenant under the provisions of this Article 3 with respect to any additional
rent shall survive the termination of this lease.
3.09 Landlord's failure to render an Escalation Statement with respect
to any Tax Year or Operating Year, respectively, 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. Tenant's obligation to pay
escalation for any Tax or Operating Year during the term of this Lease shall
survive for three (3) years after the expiration or earlier termination of this
Lease.
3.10 Each Escalation Statement shall be conclusive and binding upon
Tenant unless within ninety (90) days after receipt of such Escalation Statement
Tenant shall notify Landlord that it disputes the correctness of such Escalation
Statement. specifying the particular respects in which such Escalation Statement
is claimed to be incorrect. Any dispute relating to any Escalation Statement not
resolved within one hundred eighty (180) days after the giving of such
Escalation Statement may be submitted to arbitration by either party pursuant to
Article 38 hereof. Pending the determination of such dispute, Tenant shall pay
additional rent in accordance with the Escalation Statement that Tenant is
disputing, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment of rents resulting from compliance with Landlord's
Escalation Statement.
3.11 Notwithstanding any language to the contrary contained in this
Article 3, the additional rent payable by Tenant pursuant to Section 3.02 hereof
shall be abated until the first (1st) anniversary of the Commencement Date.
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ARTICLE 4
ELECTRICITY
4.01 Tenant agrees that Landlord shall furnish electricity to Tenant on
a "submetering" basis. Electricity and electric service, as used herein, shall
mean any element affecting the generation, transmission, and/or distribution or
redistribution of electricity, including. but not limited to, services which
facilitate the distribution of service.
4.02 Tenant covenants and agrees to purchase electricity from Landlord
or Landlord's designated agent at charges, terms and rates, including, without
limitation, fuel adjustments and taxes, equal to those specified in the Con
Edison SC#4-1 rate schedule effective on the date Landlord first provides
electricity to the demised premises on a submetering basis (the "effective"
date), or any successor rate schedule or service classification, plus ten
percent (10%) for transmission line loss and other redistribution costs. Where
more than one meter measures the service of Tenant in the Building, the service
rendered through each meter shall be aggregated and billed in accordance with
the rates herein. Bills therefore shall be rendered at such times as Landlord
may elect (but not. more frequently than monthly) and the amount, as computed
from a meter, shall be deemed to be, and be paid as, Additional Charges. If any
tax is imposed upon Landlord's receipt from the sale or resale of electrical
energy to Tenant by any Federal, State or Municipal authority, Tenant covenants
and agrees that where permitted by law, Tenant's pro-rata share of such taxes
shall be passed on to and included in the amount of, and paid by, Tenant to
Landlord.
4.03 If all or part of the submetering additional rent payable in
accordance with this Article 4 becomes uncollectible or reduced or refunded by
virtue of any law, order or regulation, the parties agrees that, at Landlord's
option in lieu of submetering Additional Charges, and in consideration of
Tenant's use of the Building's electrical distribution system and receipt of
redistributed electricity and payment by Landlord of consultant's fees and other
redistribution costs, the fixed annual rent to be paid under this lease shall be
increased by an "alternative charge" which shall be a sum equal to $3.00 per
year per rentable square foot of the demised premises, changed in the same
percentage as any increases in the cost to Landlord for electricity for the
entire Building subsequent to January 1, 2000 because of electric rate or
service classification or market price changes.
4.04 Landlord shall not be liable for any loss or damage or expense
which Tenant may sustain or incur if either the quantity or character of
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electric service is changed, unless due to negligence or willful misconduct of
Landlord or its agents or employees, or is no longer available or suitable for
Tenant's requirements. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to the
Building or wiring installation. Tenant agrees not to connect any additional
electrical equipment to the Building electric distribution system, other than
lamps and small office machines and personal computers which consume comparable
amounts of electricity, without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. Any riser or risers to supply
Tenant's additional electrical requirements, upon written request of Tenant,
will be installed by Landlord, at the reasonable cost and expense of Tenant, if,
in Landlord's sole judgment, the same are necessary and will not cause permanent
damage or injury to the Building or demised premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expenses or otherwise interfere with or disturb other
tenants or occupants of the Building except to a de minimis extent. In addition
to the installation of such riser or risers, Landlord will also at the sole cost
and expense of Tenant, install all other equipment proper and necessary in
connection therewith subject to the aforesaid terms and conditions. The parties
acknowledge that they understand that it is anticipated that electric rates,
charges, etc., may be changed by virtue of time-of-day rates or other methods of
billing, electricity purchases and the redistribution thereof, and that the
references in the foregoing paragraphs to changes in methods of or rules on
billing are intended to include any such changes. Anything hereinabove to the
contrary notwithstanding, in no event is the submetering additional rent or any
"alternative charge", to be less than an amount equal to the total of Landlord's
payment to public utilities and/or other providers for the electricity consumed
by Tenant (and any taxes thereon or on redistribution of same) plus ten percent
(10%) for transmission line loss and other redistribution costs. The Landlord
reserves the right to terminate the furnishing of electricity upon thirty (30)
days' written notice to Tenant, in which event the Tenant may make application
direction to the public utility and/or other providers for the Tenant's entire
separate supply of electric current and Landlord shall permit its wires and
conduits, to the extent available and safely capable, to be used for such
purpose, but only to the extent of Tenant's then authorized load. Any meters,
risers, or other equipment or connections necessary to furnish electricity on a
sub metering basis or to enable Tenant to obtain electric current directly from
such utility and/or other providers shall be installed by Landlord at Tenant's
sole cost and expense. On rigid conduit or electrical metal tubing (EMT) will be
allowed; provided, however, that the submeters initially required to measure
Tenant's consumption of electricity in the demised premises shall be installed
by Landlord at Tenant's expense. The Landlord, upon the expiration of the
aforesaid thirty (30)
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days' written notice to Tenant may discontinue furnishing the electric current
but this Lease shall otherwise remain in full force and effect; provided,
however, if Tenant shall be using due diligence to obtain a direct supply of
electricity from the public utility company, such thirty (30) day period shall
be extended until Tenant shall be receiving such direct service.
4.05 Landlord shall provide six (6) xxxxx per rentable square foot
connected load, exclusive of the Unit, to a disconnect switch in the demised
premises in a location to be designated by Landlord. Tenant's use of electric
energy in the demised premises shall not at any time exceed the capacity of any
of the electrical conductors and equipment in or otherwise serving the demised
premises. In order to insure that such capacity is not exceeded and to avert
possible adverse effect upon the Building's distribution of electricity via the
Building's electric system, Tenant shall not, without Landlord's prior consent
in each instance (which consent shall not be unreasonably withheld or delayed),
connect any fixtures, appliances or equipment (other than normal business
machines and personal computers, which do not materially increase Tenant's
electrical consumption) to the Building's electric system or make any
alterations or additions to the electric system of the demised premises existing
on the Commencement Date.
4.06 (a) Tenant agrees not to connect any additional electrical
equipment of any type to the Building electric distribution system, other than
lamps, typewriters and other small office machines which consume comparable
amounts of electricity, without the Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. Any additional risers,
feeders, or other equipment proper or necessary to supply Tenant's electrical
requirements, upon written request of Tenant, will be installed by Landlord, at
the sole cost and expense of Tenant, if, in Landlord's reasonable judgment, the
same are necessary and will not cause permanent damage or injury to the Building
or the demised premises, or cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations, repair or expense or interfere
with or disturb other tenants or occupants, except to a de minimis extent.
(b) At Landlord's option, Tenant shall purchase from Landlord or
Landlord's agent all lighting tubes, lamps, bulbs and ballasts used in the
demised premises and Tenant shall pay Landlord's reasonable charges for
providing and installing same, on demand, as additional rent.
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4.07 In no event shall the fixed annual rent under this Lease be
reduced below the amount set forth in Section 1.01 hereof by virtue of this
Article 4.
ARTICLE 5
USE
5.01 The demised premises shall be used solely as and for general and
executive offices and for no other purposes.
5.02 Tenant shall not use or permit the use of the demised premises or
any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in any unlawful manner or in violation of the Certificate of
Occupancy for the demised premises or the Building, and Tenant shall not suffer
or permit the demised premises or any part thereof to be used in any manner or
anything to be done therein or anything to be brought into or kept therein
which, in the judgment of Landlord, shall in any way impair or tend to impair
the character, reputation or appearance of the Building as a high quality office
building, impair or interfere with or tend to impair or interfere with any of
the Building services or the proper and economic heating, cleaning, air
conditioning or other servicing of the Building or the demised premises, or
impair or interfere with or tend to impair or interfere with the use of any of
the other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building. Tenant
shall not install any electrical or other equipment of any kind which, in the
judgment of Landlord, might cause any such impairment, interference, discomfort,
inconvenience or annoyance.
5.03 Portions of the demised premises may be used for one or more
pantry areas for reheating, but not for cooking, of food and beverages for
Tenant's officers and directors, employees and staff, subject to the provisions
of Article 6 below. Tenant shall be responsible, at Tenant's sole cost and
expense, for maintaining Tenant's pantries at all times in a clean and sanitary
condition and free of rodents and other vermin and for the removal of refuse and
garbage therefrom on a daily basis, using contractors therefor designated by
Landlord.
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ARTICLE 6
ALTERATIONS AND INSTALLATIONS
6.01 Tenant shall make no alterations, installations, additions or
improvements in or to the demised premises without Landlord's prior written
consent and then only by contractors or mechanics first approved by Landlord.
Landlord hereby approves, for use by Tenant for the performance of Tenant's
Work, the contractors, construction managers, mechanics and subcontractors/trade
contractors set forth on Exhibit D attached hereto and made a part hereof. All
such work, alterations, installations, additions and improvements shall be done
at Tenant's sole expense and at such times and in such manner as Landlord may
from time to time reasonably designate. In connection with any alterations
costing in excess of $100,000 (excluding Tenant's Work, provided Tenant shall
use bonded contractors and subcontractors in connection with the performance of
Tenant's Work), Tenant shall also provide at Landlord's request such financial
security as Landlord shall require to guarantee completion of Tenant's work and
payment of all contractors and suppliers utilized in connection therewith.
Any installations, materials and work which may be undertaken by or for
the account of Tenant other than merely decorative work such as painting or
carpeting, shall be effected solely in accordance with plans and specifications
first approved in writing by Landlord. Tenant shall reimburse Landlord promptly
upon demand for any reasonable out-of-pocket costs and expenses incurred by
Landlord in connection with Landlord's review of such Tenant's plans and
specifications. Landlord will not unreasonably withhold or delay its consent to
requests for nonstructural alterations, additions and improvements provided they
will not affect the outside of the Building or any area outside the demised
premises or adversely affect its structure, electrical, HVAC, plumbing or
mechanical systems.
Any such approved alterations and improvements shall be performed in
accordance with the foregoing and the following provisions of this Article 6:
(i) All work shall be done in a good and workmanlike manner.
(ii) In the event Tenant shall employ any contractor to do in the
demised premises any work permitted by this Lease, such
contractor and any subcontractor shall agree to
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employ only such labor as will not result in jurisdictional
disputes or strikes or result in causing disharmony with other
workers employed at the Building.
(iii) All such alterations shall be effected in compliance with all
applicable laws, ordinances, rules and regulations of
governmental bodies having or asserting jurisdiction in the
demised premises and in accordance with Landlord's Rules and
Regulations with respect to alterations. Landlord's
Alterations Rules and Regulations are set forth on Exhibit G
attached hereto and made a part hereof.
(iv) Tenant shall keep the Building and the demised premises free
and clear of all liens for any work or material claimed to
have been furnished to Tenant or to the demised premises on
Tenant's behalf, and all work to be performed by Tenant shall
be done in a manner which will not unreasonably interfere with
or disturb other tenants or occupants of the Building.
(v) During the progress of the work to be done by Tenant, said
work shall be subject to inspection by representatives of
Landlord who shall be permitted access to the demised premises
and the opportunity to inspect, at all reasonable times, but
this provision shall not in any way whatsoever create any
obligation on Landlord to conduct such an inspection.
(vi) With respect to alteration or improvement work other than
Tenant's Work, costing more than Five Thousand
Dollars($5,000), Tenant agrees to pay to Landlord's managing
agent, as additional rent, promptly upon being billed
therefor, a sum equal to seven (7%) percent of the cost of
such work or alteration, for Landlord's indirect costs, field
supervision and coordination in connection with such work.
(vii) Prior to commencement of any work, Tenant shall furnish to
Landlord certificates evidencing the existence of:
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(1) workmen's compensation insurance covering all persons
employed for such work; and
(2) reasonable comprehensive general liability and
property damage insurance naming Landlord, its
designees and Tenant as insureds, with coverage of at
least Three Million Dollars ($3,000,000) single
limit.
(viii) Before commencing any work Tenant shall furnish to Landlord
such bonds for payment and completion or such other security
for completion thereof and payment therefor as Landlord shall
reasonably require and in such form as is reasonably
satisfactory to Landlord and in an amount which will be one
hundred twenty percent (120%) of the cost of performing such
work as specified by Tenant's general contractor in its
contract with Tenant for the performance of such work.
(ix) Any work affecting any mechanical systems of the Building,
including, without limitation, the electrical, plumbing and
life safety systems, shall be performed at Tenant's expense by
a contractor designated by Landlord, provided charges of such
contractors shall be commercially reasonable.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for any such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
demised premises.
6.02 Any mechanic's lien filed against the demised. premises or the
Building for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant at its expense within
thirty (30) days after Tenant receives notice of such filing, by payment, filing
of the bond required by law or otherwise.
6.03 All alterations, installations, additions and improvements made
and installed by Landlord, including without limitation any work referred to in
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Article 2 hereof shall be the property of Landlord and shall remain upon and be
surrendered with the demised premises as a part thereof at the end of the term
of this Lease.
6.04 All alterations, installations, additions and improvements made
and installed by Tenant, or at Tenant's expense, upon or in the demised premises
which are of a permanent nature and which cannot be removed without damage to
the demised premises or Building shall become and be the property of Landlord,
and shall remain upon and be surrendered with the demised premises as a part
thereof at the end of the term of this Lease, except that Landlord shall have
the right and privilege at any time up to six (6) months prior to the expiration
of the Term to serve notice upon Tenant that any "Non-Standard Alterations" (as
hereinafter defined in this Section 6.04) shall be removed and, in the event of
service of such notice, Tenant will, at Tenant's own cost and expense, remove
the same in accordance with such request, repair any damage to the demised
premises caused by such removal and restore the demised premises to their
original condition, ordinary wear and tear and casualty excepted; provided that
Landlord shall have advised Tenant at the time it consented to any such
Non-Standard Alteration that Landlord may require its removal at the end of the
Term if Tenant shall have requested such advice when it requested Landlord's
consent to such Alteration. For the purposes of this Article 6, "Non-Standard
Alteration" shall mean the following non-standard Building improvements:
auditoriums or similar type special use areas, vaults, atriums, kitchen
equipment and installations, internal stairways, slab reinforcements which
reduce the height of the finished ceiling from the floor (assuming a customary
distance between the finished ceiling and the underside of the floor stab above)
or impede the installation of duct work and other normal installations above the
finished ceiling, and any other Alteration which is not suitable for normal
office occupancy or which would be unusually difficult or costly to remove in
comparison to the usual Alterations required for general office purposes.
Notwithstanding anything to the contrary in this lease, Tenant shall not be
required to remove the air-conditioning louvers in the demised premises at the
end of the Term.
6.05 All furniture, furnishings and trade fixtures, including without
limitation, murals, business machines and equipment, counters, screens, grille
work, special panelled doors, cages, movable partitions, metal railings, movable
closets, panelling, lighting fixtures and equipment, drinking fountains,
refrigeration and air handling equipment, and any other movable property shall
remain the property of Tenant which may, at its option, remove all or any part
thereof at any time prior to the expiration of the term of this lease. In case
Tenant shall decide not to remove any part of such property, Tenant shall notify
Landlord in writing not
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less than three (3) months prior to the expiration of the term of this lease,
specifying the items of property which it has decided not to remove. If, within
thirty (30) days after the service of such notice, Landlord shall request Tenant
to remove any of the said property, Tenant shall, at its expense, remove the
same and at Landlord's option either repair any damage caused by such removal
and with respect to any slab penetrations, restore the affected portion of the
demised premises to its original condition. As to such property which Landlord
does not request Tenant to remove, the same shall be, if left by Tenant, deemed
abandoned by Tenant and thereupon the same shall become the property of
Landlord.
If any alterations, installations, additions, improvements or other property
which Tenant shall have the right to remove or be requested by Landlord to
remove as provided in Sections 6.04 and 6.05 hereof (herein in this Section 6.06
called the "property") are not removed on or prior to the expiration of the term
of this lease, Landlord shall have the right to remove the property and to
dispose of the same without accountability to Tenant and at the sole cost and
expense of Tenant. In case of any damage to the demised premises or the Building
resulting from the removal of the property Tenant shall repair such damage or,
in default thereof, shall reimburse Landlord for Landlord's cost in repairing
such damage. This obligation shall survive any termination of this lease.
6.06 Notwithstanding any language to the contrary contained in this
Article 6, Landlord's consent shall not be required with respect to merely
decorative changes to the demised premises such as painting or the installation
of carpeting or wall covering.
6.07 Tenant shall keep records of Tenant's alterations, installations,
additions and improvements costing in excess of Five Thousand Dollars ($5,000),
and of the cost thereof. Tenant shall, within thirty (30) 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 Building, or in connection with any proceeding instituted pursuant to
Article 16 hereof.
ARTICLE 7
REPAIRS
7.01 Tenant shall take good care of the demised premises and the
fixtures, equipment and appurtenances therein and shall, at its sole cost and
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expense, make such repairs to the demised premises and the fixtures, equipment
and appurtenances therein as are necessitated by the (i) act, omission,
occupancy or negligence of Tenant or Tenant's employees, contractors, invitees,
licensees or other occupants of the demised premises or (ii) use of the demised
premises in a manner contrary to the purposes for which same are leased to
Tenant, as and when needed to preserve them in good working order and condition.
Notwithstanding the foregoing, all damage or injury to the Building, or to its
fixtures, equipment and appurtenances, whether requiring structural or
non-structural repairs, caused by or resulting from the act, omission, occupancy
or negligence of Tenant or Tenant's employees, contractors, invitees, licensees
or other occupants of the demised premises, shall be repaired promptly by Tenant
(or by Landlord, if a structural repair), at Tenant's sole cost and expense.
Except as otherwise provided in Section 9.05 hereof, all damage or injury to the
demised premises and to its fixtures, appurtenances and equipment or to the
Building or to its fixtures, appurtenances and equipment caused by Tenant moving
property into or out of the Building or by installation or removal of furniture,
fixtures or other property, shall be repaired, restored or replaced promptly by
Tenant at its sole cost and expense, which repairs, restorations and
replacements shall be in quality and class equal to the original work or
installations. If Tenant fails to make such repairs, restoration or
replacements, the same may be made by Landlord at the expense of Tenant and such
expense shall be collectible as additional rent and shall be paid by Tenant
within fifteen (15) days after rendition of a xxxx therefor.
The exterior walls of the Building, the portions of any window xxxxx
outside the windows, the windows, the fire stairs, utility closets and any
shafts passing through the floor on which the demised premises are located are
not part of the premises demised by this lease, and Landlord reserves all rights
to such parts of the Building.
7.02 Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which such floor was
designed to carry and which is allowed by law.
7.03 Business machines and mechanical equipment used by Tenant which
cause vibration, noise, cold or heat that may be transmitted to the Building
structure or to any leased space to such a degree as to be reasonably
objectionable to Landlord or to any other tenant in the Building shall be placed
and maintained by Tenant at its expense in settings of cork, rubber or spring
type vibration eliminators sufficient to absorb and prevent such vibration or
noise, or prevent transmission of such cold or heat. The parties hereto
recognize that the operation of elevators, air conditioning and heating
equipment will cause some
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vibration, noise, heat or cold which may be transmitted to other parts of the
Building and demised premises. Landlord shall be under no obligation to endeavor
to reduce such vibration, noise, heat or cold.
7.04 Except as otherwise specifically provided in this lease, there
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from the making of any repairs, alterations,
additions or improvements in or to any portion of the Building or the demised
premises or in or to fixtures, appurtenances or equipment thereof.
7.05 Landlord, at its expense, shall keep and maintain the Building and
its systems and facilities serving the demised premises, in good working order,
condition and repair and shall make all repairs, structural and otherwise,
interior and exterior, as and when needed in or about the demised premises,
except for those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
ARTICLE 8
REQUIREMENTS OF LAW
8.01 Tenant, at Tenant's sole cost and expense, shall comply with all
laws, orders and regulations of federal, state, county and municipal
authorities, and with any direction of any public officer or officers, pursuant
to law, which shall impose any violation, order or duty upon Landlord or Tenant
with respect to the demised premises, or the use or occupation thereof;
provided, however, that it shall be Landlord's obligation to cure any violation
of law noted against the demised premises prior to the Commencement Date.
Notwithstanding the foregoing, Tenant shall not be required to make any
structural alterations in the demised premises to comply with laws unless the
necessity for same shall arise from Tenant's particular manner of use of the
demised premises or the operation of its installations, equipment or other
property in the demised premises, any cause or condition created by or at the
instance of Tenant or any breach of Tenant's obligations hereunder.
8.02 Notwithstanding the provisions of Section 8.01 hereof, Tenant, at
its own cost and expense, may contest, in any manner permitted by law (including
appeals to a court, or governmental department or authority having jurisdiction
in the matter), the validity or the enforcement of any governmental act,
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regulation or directive with which Tenant is required to comply pursuant to this
Lease, and may defer compliance therewith provided that:
(a) such non-compliance shall not subject Landlord to criminal
prosecution or subject the land and/or Building to lien or sale;
(b) such non-compliance shall not be in violation of any fee
mortgage, or of any ground or underlying lease or any mortgage thereon;
(c) Tenant shall first deliver to Landlord a surety bond issued
by a surety company of recognized responsibility, or other security satisfactory
to Landlord, indemnifying and protecting Landlord against any loss or injury by
reason of such non-compliance; and
(d) Tenant shall promptly and diligently prosecute such contest
Landlord, without expense or liability to it, shall cooperate with
Tenant and execute any documents or pleadings required for such purpose,
provided that Landlord shall reasonably be satisfied that the facts set forth in
any such documents or pleadings are accurate.
ARTICLE 9
INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.01 Tenant shall not cause, do, or permit to be done any act or thing
upon the demised premises, which will invalidate or be in conflict with New York
standard fire insurance policies covering the Building, and fixtures and
property therein, or which would increase the rate of fire insurance applicable
to the Building to an amount higher than it otherwise would be; and Tenant shall
neither do nor permit to be done any act or thing upon the demised premises
which shall or might subject Landlord to any liability or responsibility for
injury to any person or persons or to property by reason of any business or
operation being carried on within the demised premises; but nothing in this
Section 9.01 shall prevent Tenant's use of the demised premises for the purposes
stated in Article 5 hereof.
9.02 If, as a result of any act or omission by Tenant or violation of
this Lease, the rate of fire insurance applicable to the Building shall be
increased to
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an amount higher than it otherwise would be, Tenant shall reimburse Landlord for
all increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable upon the first day of the month
following any outlay by Landlord for such increased fire insurance premiums. In
any action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make-up" of rates for the Building or demised premises issued by the body
making fire insurance rates for the demised premises, shall be presumptive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rate then applicable to the demised premises.
9.03 Landlord or its agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam gas, electricity, water, rain or snow or leaks from any part of the
Building, or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless any of the foregoing shall be caused by or
due to the negligence or willful misconduct of Landlord, its agents, servants or
employees.
9.04 Landlord or its agents shall not be liable for any damage which
Tenant may sustain, if at any time any window of the demised premises is broken,
or temporarily or permanently (restricted to windows on a lot line, if
permanently) closed, darkened or bricked up for any reason whatsoever, except
only Landlord's arbitrary acts if the result is permanent, and Tenant shall not
be entitled to any compensation therefor or abatement of rent or to any release
from any of Tenant's obligations under this lease, nor shall the same constitute
an eviction.
9.05 Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord, by reason of any breach, violation or
non-performance by Tenant, or its agents, servants or employees, of any covenant
or provision of this lease, or by reason of damage to persons or property caused
by moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant except
as provided in Section 6.05 of this lease, or by reason of or arising out of the
carelessness, negligence or improper conduct of Tenant, or its agents, servants
or employees, in the use or occupancy of the demised premises. Subject to the
provisions of Section 8.02 hereof, where applicable, Tenant shall have the
right, at Tenant's own cost and expense, to participate in the defense of any
action or proceeding brought against Landlord, and in negotiations for
settlement thereof if, pursuant to this Section 9.05, Tenant would be obligated
to reimburse Landlord for expenses, damages or fines incurred or suffered by
Landlord.
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9.06 Tenant shall give Landlord notice in case of fire or accidents in
the demised premises promptly after Tenant is aware of such event.
9.07 Tenant agrees to look solely to Landlord's estate and interest in
the land and Building, or the lease of the Building, or of the land and
Building, and the demised premises, for the satisfaction of any right or remedy
of Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord, in the event of any liability by Landlord, and
no other property or assets of Landlord (or the partners or members thereof if
Landlord is other than an individual or corporation) shall be subject to levy,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the demised
premises, or any other liability of Landlord to Tenant.
9.08 (a) Landlord agrees that, if obtainable at no additional cost, it
will include in its fire insurance policies appropriate clauses pursuant to
which the insurance companies (i) waive all right of subrogation against Tenant
with respect to losses payable under such policies and/or (ii) agree that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policies. But should any additional premiums be exacted for any such clause or
clauses, Landlord shall be released from the obligation hereby imposed unless
Tenant shall agree to pay such additional premium.
(b) Tenant agrees to include, if obtainable at no additional
cost, in its fire insurance policy or policies on its furniture, furnishings,
improvements, fixtures and other property removable by Tenant under the
provisions of this lease appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation against Landlord and any
tenant of space in the Building with respect to losses payable under such policy
or policies and/or (ii) agree that such policy or policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policy or policies. But
should any additional premium be exacted for any such clause or clauses, Tenant
shall be released from the obligation hereby imposed unless Landlord or the
other tenants shall agree to pay such additional premium.
(c) Provided that Landlord's right of full recovery under its
policy or policies aforesaid is not adversely affected or prejudiced thereby,
Landlord
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hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Building and the fixtures, appurtenances and equipment therein, to the
extent the same is covered by Landlord's insurance, notwithstanding that such
loss or damage may result from the negligence or fault of Tenant, its servants,
agents or employees. Provided that Tenant's right of full recovery under its
aforesaid policy or policies is not adversely affected or prejudiced thereby,
Tenant hereby waives any and all right of recovery which it might otherwise have
against Landlord, its servants, agents and employees, and against every other
tenant in the Building who shall have executed a similar waiver as set forth in
this Section 9.08(c) for loss or damage to, Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the provisions hereof to
the extent that same is covered by Tenant's insurance, notwithstanding that such
loss or damage may result from the negligence or fault of Landlord, its
servants, agents or employees, or such other tenant and the servants, agents or
employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly
if the clauses to be included in their respective insurance policies pursuant to
subdivisions 9.08 (a) and (b) hereof cannot be obtained. Landlord and Tenant
hereby also agree to notify the other promptly of any cancellation or change of
the terms of any such policy which would affect such clauses.
9.09 Tenant covenants and agrees to provide on or before the
Commencement Date and to keep in force during the term hereof for the benefit of
Landlord and Tenant the following insurance policy naming Landlord, Landlord's
managing agent, lessors under superior leases and the holders of any mortgages
affecting the Land and/or Building as additional insureds. Tenant covenants to
provide on or before the commencement of the term of this Lease:
LIABILITY INSURANCE: Tenant shall procure and at all times during the term of
this lease shall maintain policies of commercial general and umbrella liability
insurance covering the demised premises on an occurrence basis and shall not
contain any deductibles or self-insured retentions. The policy shall provide
that general and specific aggregates are per location covered and shall further
provide minimum limits, as follows:
COMMERCIAL GENERAL LIABILITY:
$1,000,000 per occurrence; combined single limit bodily injury and
property damage
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$ 5,000 medical payments coverage
$50,000 fire legal liability coverage
$2,000,000 general aggregate
$1,000,000 per occurrence
$2,000,000 annual aggregate; personal injury coverage
$1,000,000 per occurrence
$2,000,000 annual aggregate; products/completed operations coverage
UMBRELLA LIABILITY
$10,000,000 per occurrence
$10,000,000 general and specific aggregates
Policy shall cover excess of general and automobile liability and shall include
said policies as underlying and provisions of the umbrella shall apply in the
same manner as the primary policies.
WORKERS' COMPENSATION
Tenant shall procure and at all times during the term of this Lease shall
maintain a policy of statutory worker's compensation insurance covering Tenant's
employees with unlimited employer's liability coverage.
UMBRELLA LIABILITY
Umbrella liability shall cover in the same manner as the primary commercial
general liability policy above and shall contain no additional exclusions or
limitations than those of the general liability policy.
PROPERTY INSURANCE
Tenant shall procure and at all times during the term of this Lease shall
maintain a policy of all risk property insurance in an amount adequate to cover
the cost of replacement of all Tenant's decorations, improvements, fixtures,
furniture, stock
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and other contents; time element coverage including extra expense to cover
Tenant's loss as a result of a loss sustained by a peril covered under the
policy.
GENERAL
Commercial general liability and any umbrella policy will provide coverage for
and on behalf of the Landlord and its designees pursuant to the provisions of
this Lease as additional insured and will reflect that sixty (60) days prior
written notice of cancellation, modification or non-renewal be provided to
Landlord at the address so designated by Landlord.
Policy will provide that Tenant pays all premium under the policy. Landlord or
its agents shall not be responsible for the payment of any premiums for such
insurance.
Tenant will provide a certificate of insurances to Landlord prior to occupancy
of the demised premises and a minimum of twenty (20) days in advance for each
renewal or replacement policy. If the policy contains more than one location,
Tenant may provide a certificate of insurance reflecting and confirming that the
insurance is provided in accordance with the insurance provisions of this Lease
and shall also include thereon a copy of all endorsements specifically
applicable to Landlord and the demised premises.
The minimum limits of insurance coverage required by the insurance provisions of
this Lease shall be subject to increase by Landlord from time to time, after the
Commencement Date if Landlord, in its reasonable judgment, shall deem the same
necessary for adequate protection. Within thirty (30) days of demand for such
increased coverage, Tenant shall deliver to Landlord evidence of such increased
coverage in the form of an endorsement or replacement insurance policy or
certificate and in keeping with all other insurance provisions contained herein.
In the event of Tenant's failure to procure or maintain the coverages required
hereunder in accordance with the insurance provisions contained herein, Landlord
may, but is not obligated to, procure said insurance at the cost and expense of
Tenant to be deemed additional rent hereunder, payable on demand. The minimum
limits of insurance coverage required by the insurance provisions of this Lease
shall in no way limit or diminish Tenant's liability.
Insurance companies must be satisfactory to Landlord as to an acceptable
Standard & Poor's or A.M. Best Rating with a minimum A.M. Best Rating of A +
VIII.
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In the event of Tenant's failure to procure or maintain the coverages required
hereunder in accordance with the insurance provisions contained herein, Landlord
may, but is not obligated to, procure said insurance at the cost and expense of
Tenant to be deemed additional rent hereunder, payable on demand.
Tenant will not do or permit anything to be done in or upon the demised premises
or the Building or bring or keep anything therein which shall in any way
increase the rates of all risk property or other insurance in respect of the
Building or on the property kept therein.
Prior to the time such insurance is first required to be carried by Tenant and
thereafter, at least fifteen (15) days prior to the effective date of any such
policy, Tenant agrees to deliver to Landlord either a duplicate original of the
aforesaid policy or a certificate evidencing such insurance. Said certificate
shall contain an endorsement that such insurance may not be cancelled except
upon ten (10) days' notice to Landlord. Tenant's failure to provide and keep in
force the aforementioned insurance shall be regarded as a material default
hereunder entitling Landlord to exercise any or all of the remedies provided in
this lease in the event of Tenant's default.
ARTICLE 10
DAMAGE BY FIRE OR OTHER CAUSE
10.01 If the Building or the demised premises shall be damaged or
destroyed by fire or other cause, Landlord, within sixty (60) days after such
damage or destruction, shall deliver to Tenant an estimate of the time
(hereinafter referred to as the "Estimated Time") required to repair or restore
the damage or destruction, prepared by an independent contractor or architect
selected by Landlord within twenty (20) days after such damage or destruction,
and reasonably approved by Tenant within ten (10) business days after written
notice from Landlord identifying such independent contractor or architect (such
estimate being hereinafter referred to as the "Estimate"). If the Building or
the demised premises shall be partially damaged or partially destroyed by fire
or other cause, the rents payable hereunder shall be abated to the extent that
the demised premises shall have been rendered untenantable or inaccessible and
for the period from the date of such damage or destruction to the date the
damage to the Building and the demised premises shall be repaired and restored
so as to render the demised premises tenantable and accessible. If the demised
premises or a major part thereof shall be totally (which shall be deemed to
include substantially totally)
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damaged or destroyed or rendered completely (which shall be deemed to include
substantially completely) untenantable or inaccessible on account of fire or
other cause, all of the rents shall xxxxx as of the date of the damage or
destruction and until all of the damage and destruction to the Building and the
demised premises shall be repaired and restored so as to render the demised
premises tenantable and accessible, provided, however, that should Tenant
reoccupy a portion of the demised premises during the period the restoration
work is taking place and prior to the date that the same are made completely
tenantable, rents allocable to such portion shall be payable by Tenant from the
date of such occupancy.
10.02 If the Building shall be so damaged or destroyed by fire or other
cause (whether or not the demised premises are damaged or destroyed) as to
require a reasonably estimated expenditure of more than 40% of the full
insurable value of the Building immediately prior to the casualty, Landlord may
terminate this lease by giving Tenant notice to such effect within ninety (90)
days after the date of the casualty. In case of any damage or destruction to the
Building or the demised premises mentioned in this Section 10.02 Tenant may
terminate this lease, (a) by notice to Landlord sent within sixty (60) days
after receipt of the Estimate if the Estimated Time exceeds twelve (12) months
or, (b) if Landlord has not completed the making of the required repairs and
restored and rebuilt the Building and the demised premises in such time as will
enable Tenant, commencing upon the completion of the repair and restoration
required to be performed by Landlord and prosecuting same with reasonable
diligence, to complete the restoration of the demised premises (including
Tenant's Work) within twelve {12) months from the date of such damage or
destruction, or within such period after such date (not exceeding three (3)
months) as shall equal the aggregate period Landlord may have been delayed in
doing so by labor trouble, governmental controls, act of God, or any other cause
beyond Landlord's reasonable control, by notice to Landlord sent within thirty
(30) days after such twelve (12) month period (as same may be extended pursuant
to the provisions of Section 10.02(b)).
10.03 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building pursuant
to this Article 10.
10.04 Tenant shall cooperate with the efforts of Landlord or the lessor
of any superior lease or the holder of any superior mortgage to collect all of
the insurance proceeds (including rent insurance proceeds) applicable to damage
or destruction of the demised premises or the Building by fire or other cause.
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10.05 Landlord will not carry separate insurance of any kind on
Tenant's property and improvements, and, except as provided by law or by reason
of its breach of any of its obligations hereunder, shall not be obligated to
repair any damage thereto or replace the same. Tenant shall maintain insurance
on Tenant's property and improvements, and Landlord shall not be obligated to
repair any damage thereto or replace the same.
10.06 Landlord and Tenant shall each look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty.
10.07 The provisions of this Article 10 shall be considered an express
agreement governing any cause of damage or destruction of the demised premises
by fire or other casualty, and Section 227 of the Real Property Law of the State
of New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
10.08 If during the final two (2) years of this Lease the Building or
the demised premises shall be damaged or destroyed to the extent set forth in
Section 10.02, either party shall have the right to terminate this Lease upon
written notice to the other party given within thirty (30) days following such
casualty in accordance with the notice requirements set forth herein.
ARTICLE 11
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.01 Tenant shall not (a) assign or otherwise transfer this Lease or
the term and estate hereby granted, (b) sublet the demised premises or any part
thereof or allow the same to be used or occupied by others or in violation of
Article 5 hereof, (c) mortgage, pledge or encumber this Lease or the demised
premises or any part thereof in any manner or permit any lien to be filed
against the Lease, the demised premises or the Building by reason of any act or
omission on the part of Tenant or enter into any agreement which would permit
the filing of a lien by any broker, or (d) advertise, or authorize a broker to
advertise, for a subtenant or an assignee, without, in each instance, obtaining
the prior consent of Landlord, except as otherwise expressly provided in this
Article 11. For purposes of this Article 11, (i) the transfer of a
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majority of the issued and outstanding capital stock of any corporate tenant, or
of a corporate subtenant, or the transfer of a majority of the total interest in
any partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this Lease, or of such sublease, as the case may be, except
that the transfer of the outstanding capital stock of any corporate tenant, or
subtenant, shall be deemed not to include the sale of such stock by persons or
parties, through the "over-the-counter market" or through any recognized stock
exchange, other than those deemed "insiders" within the meaning of the
Securities Exchange Act of 1934 as amended, (ii) a takeover agreement shall be
deemed a transfer of this Lease, (iii) any person or legal representative of
Tenant, to whom Tenant's interest under this Lease passes by operation of law,
or otherwise, shall be bound by the provisions of this Article 11, and (iv) a
modification, amendment or extension of a sublease shall be deemed a sublease.
11.02 Landlord agrees not to unreasonably withhold it consent (and
shall grant same within thirty (30) days following Tenant's request therefor) to
transactions with a corporation or other entity into or with which Tenant is
merged or consolidated or with an entity to which substantially all of Tenant's
assets or stock are transferred (provided such merger or transfer of assets is
for a good business purpose and not principally for the purpose of transferring
the leasehold estate created hereby , and provided further, that the assignee
has a net worth a least equal to or in excess of the net worth of Tenant
immediately prior to such merger or transfer or, if Tenant is a partnership,
with a successor partnership; provided that Landlord shall not have the rights
described in Sections 11.05 and 11.07 herein with respect to the transactions
described in this Section 11.02.
11.03 Any assignment or transfer, shall be made only if, and shall not
be effective until, the assignee shall execute, acknowledge an deliver to
Landlord a recordable agreement, in form and substance reasonably satisfactory
to Landlord, whereby the assignee shall assume the obligations and performance
of this lease and agree to be personally bound by and upon all of the covenants,
agreements, terms, provisions and conditions hereof on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
of Section 11.01 hereof shall, notwithstanding such an assignment or transfer,
continue to be binding upon it in the future. Tenant covenants that,
notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this lease, and notwithstanding the acceptance of fixed annual
rent by Landlord from an assignee or transferee or any other party, Tenant shall
remain fully and primarily liable for the payment of the fixed annual rent and
additional rent due and to become due under this Lease and for the performance
of all of the
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covenants, agreements, terms, provisions and conditions of this Lease on the
part of Tenant to be performed or observed.
11.04 The liability of Tenant, and the due performance by Tenant of the
obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee of Landlord, by way of mortgage, or
otherwise, extending the time of, or modifying any of the obligations contained
in this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations on Tenant's part to be performed under this Lease, and Tenant shall
continue liable hereunder. If any such agreement or modification operates to
increase the obligations of a tenant under this Lease, the liability under this
Section 11.04 of the tenant named in the Lease or any of its successors in
interest, (unless such party shall have expressly consented in writing to such
agreement or modification) shall continue to be no greater than if such
agreement or modification had not been made. To charge Tenant named in this
Lease and its successors in interest, no demand or notice of any default shall
be required. Tenant and each of its successors in interest hereby expressly
waive any such demand or notice.
11.05 (a) Should Tenant agree subject to the provisions of this Lease
to assign this Lease, other than by an assignment contemplated by Sections 11.02
or 11.10, Tenant shall as soon as that agreement is consummated, but no less
than two (2) months prior to the effective date of the contemplated assignment,
deliver to Landlord a duplicate original of such agreement, and all ancillary
agreements with the proposed assignee, and Landlord shall then have the right to
elect, by notifying Tenant within thirty (30) days of such delivery, to (i)
terminate this Lease, as of such effective date as if it were the Expiration
Date set forth in this Lease or (ii) accept an assignment of this Lease from
Tenant, and Tenant shall then promptly execute and deliver to Landlord, or
Landlord's designee if so elected by Landlord, in form reasonably satisfactory
to Landlord's counsel, an assignment which shall be effective as of such
effective date.
(b) In the event that this lease shall be assigned to Landlord or
Landlord's designee or if the demised premises shall be sublet to Landlord or
Landlord's designee pursuant to this Section 11.05, the provisions of any such
sublease or assignment and the obligations of Landlord and the rights of Tenant
with respect thereto shall not be binding upon or otherwise affect the rights of
any holder of a superior mortgage or of a lessor under a superior lease unless
such holder or lessor shall elect by written notice to Tenant to succeed to the
position of Landlord or its designee, as the case may be, thereunder.
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(c) Should Tenant agree subject to the provisions of this lease
to sublet the demised premises or any portion thereof, other than by a sublease
contemplated by Sections 11.02 or 11.10, Tenant shall, as soon as that agreement
is consummated, but no less than two (2) months prior to the effective date of
the contemplated sublease, deliver to Landlord, a duplicate original of the
proposed sublease and all ancillary agreements with the proposed sublessee, and
Landlord shall then have the right to elect, by notifying Tenant within thirty
(30) days of such delivery, to (i) terminate this lease as to the portion of the
demised premises affected by such subletting or as to the entire demised
premises, in the case of a subletting thereof for all or substantially the
remainder of the Term, as of such effective date, (ii) in the case of a proposed
subletting of the entire demised premises for all or substantially the remainder
of the Term, or any lesser period, either terminate this Lease or accept an
assignment of this Lease to Landlord from Tenant for all or less than the
remainder of the Term, at Landlord's option, and Tenant shall then promptly
execute and deliver to Landlord, or Landlord's designee if so elected by
Landlord, in form reasonably satisfactory to Landlord's counsel, an assignment
which shall be effective as of such effective date (there being no need to
execute an agreement more than merely confirming the date of termination in the
event of Landlord's election of same, this clause being self-operative) or,
(iii) accept a sublease from Tenant of the portion of the demised premises
affected by such proposed subletting if less than all or substantially all of
the entire demised premises in the case of a proposed subletting thereof for
less than the remaining term hereof, and Tenant shall then promptly execute and
deliver a sublease to Landlord, or Landlord's designee if so elected by
Landlord, the proposed term thereof, at Landlord's option, commencing with such
effective date, at (x) the rental terms reflected in the proposed sublease or
(y) the rental terms contained in this Lease on a per rentable square foot
basis, as elected by Landlord in such notice.
(d) If Landlord should elect to have Tenant execute and deliver a
sublease to Landlord or its designee pursuant to any of the provisions of this
Section 11.05, said sublease shall be in a form reasonably satisfactory to
Landlord's counsel and on all the terms contained in this lease, except that:
(i) The rental terms, if elected by Landlord, may be
either as provided in item (x) or item (y) of
subsection 11.05(c) hereof,
(ii) The sublease shall not provide for any work to be
done for the subtenant or for any initial rent
concessions or contain provisions inapplicable to a
sublease, except that in
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the case of a subletting of a portion of the demised
premises Tenant shall reimburse subtenant for the
cost of erecting such demising walls as are necessary
to separate the subleased premises from the remainder
of the demised premises and to provide access
thereto,
(iii) The subtenant thereunder shall have the right to
underlet the subleased premises, in whole or in part,
without Tenant's consent,
(iv) The subtenant thereunder shall have the right to
make, or cause to be made, any changes, alterations,
decorations, additions and improvements that such
subtenant may desire or authorize,
(v) Such sublease shall expressly negate any intention
that any estate created by or under such sublease be
merged with any other estate held by either of the
parties thereto.
(vi) Any consent required of Tenant, as lessor under that
sublease, shall be deemed granted if consent with
respect thereto is granted by Landlord,
(vii) There shall be no limitation as to the use of the
sublet premises by the subtenant thereunder,
(viii) Any failure of the subtenant thereunder to comply
with the provisions of said sublease, other than with
respect to the payment of rent to Tenant, shall not
constitute a default thereunder or hereunder if
Landlord has consented to such non-compliance, and
(ix) Such sublease shall provide that Tenant's obligations
with respect to vacating the demised premises and
removing any changes, alterations, decorations,
additions or improvements made in the subleased
premises shall be limited to those which accrued and
related to such as were made prior to the effective
date of the sublease.
(e) If pursuant to the exercise of any of Landlord's options
pursuant to Section 11.05 hereof this Lease is terminated as to only a portion
of
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the demised premises, then the fixed annual rent payable hereunder and the
additional rent payable pursuant to Article 3 hereof shall be adjusted in
proportion to the portion of the demised premises affected by such termination.
11.06 In the event that Landlord does not exercise any of the options
available to it pursuant to Section 11.05 hereof within thirty (30) days of
Tenant's delivery of a duplicate original agreement, and all ancillary
agreements with the proposed assignee or sublessee, Landlord shall not
unreasonably withhold or delay (within such thirty (30) day period) its consent
to an assignment of this Lease or a subletting of the whole or any part of the
demised premises for substantially the remainder of the term of this Lease,
provided:
(a) Tenant shall furnish Landlord with the name and business
address of the proposed subtenant or assignee, information with respect to the
nature and character of the proposed subtenant's or assignee's business, or
activities, such references and current financial information with respect to
net worth, credit and financial responsibility as are reasonably satisfactory to
Landlord, and an executed counterpart of the sublease or assignment agreement;
(b) The proposed subtenant or assignee is a reputable party whose
financial net worth, credit and financial responsibility is, considering the
responsibilities involved, reasonably satisfactory to Landlord;
(c) The nature and character of the proposed subtenant or
assignee. its business or activities and intended use of the demised premises
is, in Landlord's reasonable judgment. in keeping with the standards of the
Building and the floor or floors on which the demised premises are located;
(d) The proposed subtenant or assignee is not then an occupant of
any part of the Building or a party who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during the
six (6) months immediately preceding Tenant's request for Landlord's consent if
comparable space is then available in the Building for a comparable term;
(e) All costs incurred with respect to providing reasonably
appropriate means of ingress and egress from the sublet space or to separate the
sublet space from the remainder of the demised premises shall, subject to the
provisions of Article 6 with respect to alterations, installations, additions or
improvements be borne by Tenant or subtenant;
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(f) Each sublease shall specifically state that (i) it is subject
to all of the terms, covenants, agreements, provisions, and conditions of this
lease, (ii) the subtenant will not have the right to a further assignment
thereof or sublease or assignment thereunder, or to allow the demised premises
to be used by others, without the consent of Landlord in each instance, (iii) a
consent by Landlord thereto shall not be deemed or construed to modify, amend or
affect the terms and provisions of this Lease, or Tenant's obligations
hereunder, which shall continue to apply to the premises involved, and the
occupants thereof, as if the sublease or assignment had not been made;
(g) Tenant shall pay Landlord any reasonable out-of. pocket costs
incurred by `Landlord to review the requested consent including any attorneys
fees incurred by Landlord;
(h) The proposed subtenant or assignee is not (i) a bank trust
company,. safe deposit business, savings and loan association or loan company;
(ii) employment or recruitment agency; (iii) school, college, university or
educational institution whether or not for profit; (iv) a government or any
subdivision or agency thereof;
(i) In the case of a subletting of a portion of the demised
premises, the portion so sublet shall be regular in shape and suitable for
normal renting purposes and such subletting will not result in more than two
occupants (including Tenant, but excluding affiliates and Relationship Entities
permitted to occupy the demised premises as herein provided) occupying each
floor of the demised premises;
(j) The proposed assignment shall be for a consideration or the
proposed subletting shall be at a rental rate determined in an arm' s length
transaction, and in no event shall Tenant advertise or list with brokers at a
lower rental rate then the rental rates then being charged under leases being
entered into by Landlord for comparable space in the Building.
11.07 If Tenant shall assign this Lease or sublease all or any part of
the demised premises, Tenant shall pay to Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to fifty (50%)
percent of all sums and other considerations paid to Tenant by the assignee for
or by reason of such assignment or otherwise (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property, less, in the case of a sale
thereof,
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the then fair market value thereof), less reasonable advertising costs and
expenses, customary brokerage commissions, reasonable legal fees and other
commercially reasonable concessions actually incurred in connection with such
assignment and amortized over the remaining term of this lease; and
(ii) in the case of a sublease, fifty (50%) percent of any rents,
additional charge or other consideration payable under the sublease or otherwise
to Tenant by the subtenant which is in excess of the fixed annual rent and
additional rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited to, sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof, the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns), less reasonable advertising costs and
expenses, customary brokerage commissions, reasonable legal fees and other
commercially reasonable concessions actually incurred in connection with such
subletting and amortized over the term of the sublease.
The sums payable under this Section 11.07 shall be paid to Landlord as and when
paid by the subtenant or assignee, as the case may be, to Tenant.
11.08 If Tenant defaults in the payment of any rent after notice and
the expiration of applicable cure periods, Landlord is authorized to collect any
rents due or accruing from any assignee, subtenant or other occupant of the
demised premises and to apply the net amounts collected to the fixed annual rent
and additional rent reserved herein. The receipt by Landlord of any amounts from
an assignee or subtenant, or other occupant of any part of the demised premises
shall not be deemed or construed as releasing Tenant from Tenant's obligations
hereunder or the acceptance of that party as a direct tenant.
11.09 Notwithstanding anything to the contrary contained herein, Tenant
shall not be required to obtain Landlord's consent to the use of up to 2,000
rentable square feet in the aggregate as desk space in the demised premises by
one or more entities (each of which is hereinafter individually called a
"Relationship Entity") each of which is a regular client or provider of service
to Tenant. Permission to such Relationship Entity{ies) to use the demised
premises shall not create a tenancy or any other interest in the demised
premises except a license revocable by Tenant at will which shall cease and
expire in any event automatically without notice upon the expiration or
termination of the letting under this lease and all acts, omissions and
operations of such Relationship Entities shall be deemed
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acts, omissions and operations of the Tenant. Use of the demised premises
pursuant thereto shall not be deemed to entitle such Relationship Entities to
rights or privileges which Landlord has or may hereafter accord to lessees of
space in the Building.
11.10 Subject to Landlord's consent, which Landlord agrees not to
unreasonably withhold or delay (and which Landlord agrees to grant or withhold
within thirty (30) days following Tenant's request therefore), Tenant may assign
this Lease or sublet the entire premises for substantially the balance of the
term of this Lease to any corporation or other entity into or with which Tenant
may be merged or consolidated or to any entity which shall be an affiliate,
subsidiary, parent or successor of Tenant, provided and on condition that (i)
such transaction is for a bona fide business purpose and not, either directly or
indirectly, principally for the purpose of transferring the leasehold created
hereby; (ii) the successor to the Tenant or the transferee has a net worth
immediately following such transfer of not less than the greater of (x) the net
worth of Tenant as of the Commencement Date, or (y) the net worth of Tenant
immediately preceding such transfer, and proof thereof, reasonably satisfactory
to Landlord, shall have been delivered to Landlord at least ten (10) days prior
to the effective date of such transfer; provided that Landlord shall not have
the rights described in Sections 11.05 and 11.07 herein with respect to the
transactions described in this Section 11.10.
For the purpose of this Section 11.10, a "subsidiary" or "affiliate" or
"successor" of Tenant shall mean the following:
(i) An "affiliate" shall mean any corporation which, directly
or indirectly, controls or is controlled by or is under common control
with Tenant. For this purpose, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of such corporation, whether through the
ownership of voting securities or by contract or otherwise.
(ii) A "subsidiary" shall mean any corporation not less than
fifty percent (50%) of whose outstanding stock shall, at the time, be
owned directly or indirectly by Tenant. Any cessation of the affiliate
or subsidiary relationship between Tenant and the entity in question
shall constitute an assignment or subletting, as the case may be, which
shall be subject to all of the terms, provisions and conditions of this
Article.
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(iii) A "successor" of Tenant shall mean (x) a corporation in
which or with which Tenant, its corporate successors or assigns, is
merged or consolidated, in accordance with applicable statutory
provisions for merger or consolidation of corporations, provided that
by operation of law or by effective provisions contained in the
instruments of merger or consolidation, the liabilities of the
corporations participating in such merger or consolidation are assumed
by the corporation surviving such merger or created by such
consolidation, or (y) a transfer of not less than eighty percent (80%)
of the issued and outstanding stock of Tenant.
11.11 In connection with any proposed assignment or sublease, Tenant
shall grant to Landlord's then managing agent the exclusive right to sublease or
to assign this lease, as the case may be, for a period of ninety (90) days after
Tenant's notice of such proposed assignment or sublease; provided, however, that
the provisions of this Section 11 .11 shall not apply to the initial subleasing
of up to one (1) full floor comprising the demised premises in a transaction
which is consummated prior to the first (1st) anniversary of the Rent
Commencement Date.
ARTICLE 12
CERTIFICATE OF OCCUPANCY
12.01 Tenant will not at any time use or occupy the demised premises in
violation of the Certificate of Occupancy issued for the Building.
ARTICLE 13
ADJACENT EXCAVATION -- SHORING
13.01 If an excavation or other substructure work shall be made upon
land adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
shall be necessary to preserve the wall of or the Building of which the demised
premises form a part from injury or damage and to support the same by proper
foundations without any claim for damages or indemnity against Landlord, or
diminution or abatement of rent.
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ARTICLE 14
CONDEMNATION
14.01 In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the demised premises shall be so condemned or taken, then, effective as of the
date of vesting of title, the fixed annual rent under Article 1 hereunder and
additional rents under Article 3 hereunder shall be abated in an amount thereof
apportioned according to the area of the demised premises so condemned or taken.
In the event that only a part of the Building shall be so condemned or taken,
then (a) Landlord (whether or not the demised premises be affected) may, at
Landlord's option, terminate this Lease and the term and estate hereby granted
as of the date of such vesting of title by notifying Tenant in writing of such
termination within sixty (60) days following the date on which Landlord shall
have received notice of vesting of title, or (b) if such condemnation or taking
shall be of a substantial part of the demised premises or of a substantial part
of the means of access thereto, Tenant may, at Tenant's option, by delivery of
notice in writing to Landlord within thirty (30) days following the date on
which Tenant shall have received notice of vesting of title, terminate this
Lease and the term and estate hereby granted as of the date of vesting of title,
or (c) if neither Landlord nor Tenant elects to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the fixed annual rent payable under Article 1 and additional
rents payable under Article 3 shall be abated to the extent hereinbefore
provided in this Article 14. In the event that only a part of the demised
premises shall be so condemned or taken and this Lease and the term and estate
hereby granted with respect to the remaining portion of the demised premises are
not terminated as hereinbefore provided, Landlord will, with reasonable
diligence and at its expense, restore the remaining portion of the demised
premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking. Landlord agrees that it shall not exercise its
rights to terminate this Lease pursuant to this Section 14.01 in a manner which
is inconsistent with the exercise of its termination rights with respect to
other tenants of the Building which are similarly affected as Tenant.
14.02 In the event of its termination in any of the cases hereinbefore
provided, this Lease and the term and estate hereby granted shall
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expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the fixed annual rent and additional rents payable
hereunder shall be apportioned as of such date.
14.03 In the event of any condemnation or taking hereinbefore mentioned
of all or a part of the Building, Landlord shall be entitled to receive the
entire award in the condemnation proceeding, including any award made for the
value of the estate vested by this Lease in Tenant, and Tenant hereby expressly
assigns to Landlord any and all right, title and interest of Tenant now or
hereafter arising in or to any such award or any part thereof, and Tenant shall
be entitled to receive no part of such award. Tenant shall be permitted to make
a separate claim with the condemning authority for its moving and relocation
expenses and the cost of its fixtures and leasehold improvements.
14.04 It is expressly understood and agreed that the provisions of this
Article 14 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
14.05 In the event of any taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the demised
premises which does not result in a termination of this Lease, Landlord, at its
expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the demised premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises.
14.06 In the event any part of the demised premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article 14, then, (i) if such compliance is
the obligation of Tenant under this lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this lease, the
fixed annual rent hereunder shall be reduced and additional rents under Article
3 shall be adjusted in the same manner as is provided in Section 14.01 according
to the reduction in rentable area of the demised premises resulting from such
taking.
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ARTICLE 15
ACCESS TO DEMISED PREMISES; CHANGES
15.01 Tenant shall permit Landlord to erect, use and maintain pipes,
ducts and conduits in and through the demised premises, provided the same are
installed adjacent to or concealed behind existing walls and ceilings of the
demised premises. Landlord shall to the extent practicable install such pipes,
ducts and conduits by such methods and at such locations as will not
unreasonably interfere with or impair Tenant's layout or use of the demised
premises. Landlord or its agents or designees shall have the right to enter the
demised premises, at reasonable times during Business Hours (as defined herein),
upon prior notice (which may be oral) for the making of such repairs or
alterations as Landlord may deem necessary for the Building or which Landlord
shall be required to or shall have the right to make by the provisions of this
lease or any other lease in the Building and, subject to the foregoing, shall
also have the right to enter the demised premises for the purpose of inspecting
them or exhibiting them to prospective purchasers or lessees of the entire
Building or to prospective mortgagees of the fee or of Landlord's interest in
the property of which the demised premises are a part or to prospective
assignees of any such mortgages or to the holder of any mortgage on the
Landlord's interest in the property, its agents or designees. Landlord shall be
allowed to take all material into and upon the demised premises that may be
required for the repairs or alterations above mentioned within the demised
premises as the same is required for such purpose, without the same constituting
an eviction of Tenant in whole or in part, and the rent reserved shall in no
wise xxxxx while said repairs or alterations are being made by reason of loss or
interruption of the business of Tenant because of the prosecution of any such
work. Landlord shall exercise reasonable diligence so as to minimize the
disturbance to Tenant but nothing contained herein shall be deemed to require
Landlord to perform the same on an overtime or premium pay basis.
15.02 Landlord reserves the right, without the same constituting an
eviction and without incurring liability to Tenant therefor, to renovate and/or
change the arrangement and/or location of public entrances, lobbies passageways,
doors, doorways, corridors, elevators, stairways, toilets and other public parts
of the Building; provided, however, that access to the Building shall not be cut
off and that there shall be no unreasonable obstruction of access to the demised
premises or unreasonable interference with the use or enjoyment thereof.
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15.03 Landlord reserves the right to light from time to time all or any
portion of the demised premises at night for display purposes without paying
Tenant therefor.
15.04 Landlord may, during the twelve (12) months prior to expiration
of the term of this lease, exhibit the demised premises to prospective tenants
upon prior reasonable notice (which may be oral).
15.05 If Tenant shall not be personally present to open and permit an
entry into the demised premises at any time when for any reason an entry therein
shall be urgently necessary by reason of fire or 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.
ARTICLE 16
CONDITIONS OF LIMITATION
16.01 This lease and the term and estate hereby granted are subject to
the limitation that whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankruptcy or insolvency law or any involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant under
the reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant or of or for the property of Tenant shall be appointed, then, Landlord
may, (a) at any time after receipt of notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of Tenant, at any
time after the event continues for sixty (60) days, give Tenant a notice of
intention to end the term of this lease at the expiration of five (5) days from
the date of service of such notice of intention, and upon the expiration of said
five (5) day period, this lease and the term and estate hereby granted, whether
or not the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for damages as provided in Article 18.
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16.02 This Lease and the term and estate hereby granted are subject to
further limitation as follows:
(a) whenever Tenant shall default in the payment of any
installment of fixed annual rent, or in the payment of any additional rent or
any other charge payable by Tenant to Landlord, on any day upon which the same
ought to be paid, and such default shall continue for five (5) days after
Landlord shall have given Tenant a notice specifying such default, or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of thirty (30) days and the
continuation of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Article 8
hereof) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant's intention to duly institute all steps necessary to remedy
such situation, (ii) duly institute within said thirty (30) day period, and
thereafter diligently and continuously prosecute to completion all steps
necessary to remedy the same and (iii) complete such remedy within such time
after the date of the giving of said notice to Landlord as shall reasonably be
necessary, or
(c) whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 11, or
(d) whenever Tenant shall abandon (i.e., vacate the demised
premises and not provide security therein or make efforts to sublet the demised
premises) the demised premises (unless as a result of a casualty), or
(e) whenever in case any other lease held by Tenant from Landlord
shall expire and terminate (whether or not the term thereof shall then have
commenced) as a result of the default of Tenant thereunder or of the occurrence
of an event as therein provided (other than by expiration of the fixed term
thereof or pursuant to a cancellation or termination option therein contained),
or
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(f) whenever Tenant shall default in the due keeping, observing
or performance of any covenant, agreement, provision or condition of Article 5
hereof on the part of Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by Tenant within three (3) days
after Landlord shall have given to Tenant a notice specifying the same,
(g) if during any consecutive eighteen (18) month period during
the term of this lease (i) Tenant shall have on three (3) or more occasions paid
any installment of fixed annual rent or any additional rent more than ten (10)
days after the same was due hereunder and (ii) Landlord shall have given Tenant
notice of such default pursuant to subsection (a) hereof before such default was
cured,
then in any of said cases set forth in the foregoing subsections (a), (b), (c),
(d), (e), (f) and (g) Landlord may give to Tenant a notice of intention to end
the term of this Lease at the expiration of three (3) days from the date of the
service of such notice of intention, and upon the expiration of said three (3)
days this Lease and the term and estate hereby granted, whether or not the term
shall theretofore have commenced. shall terminate with the same effect as if
that day were the Expiration Date. but Tenant shall remain liable for damages as
provided in Article 18.
ARTICLE 17
RE-ENTRY BY LANDLORD, INJUNCTION
17.01 If Tenant shall default in the payment of any installment of
fixed annual rent, or of any additional rent, on any date upon which the same
ought to be paid, and if such default shall continue for five (5) days after
Landlord shall have given to Tenant a notice specifying such default, or if this
lease shall expire as in Article 16 provided, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the demised
premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or by force (to the extent permitted
by law) or otherwise, without being liable to indictment, prosecution or damages
therefrom, to the end that Landlord may have, hold and enjoy the demised
premises again as and of its first estate and interest therein. The word
re-enter, as herein used, is not restricted to its technical legal meaning. In
the event of any termination of this lease under the provisions of Article 16 or
if Landlord shall re-enter the demised premises under the provisions of this
Article 17 or in the event of the termination of this lease, or of re-entry, by
or under any summary dispossess or other proceedings or action or
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any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall thereupon pay to Landlord the fixed annual rent and additional rent
payable by Tenant to Landlord up to the time of such termination of this lease,
or of such recovery of possession of the demised premises by Landlord, as the
case may be, and shall also pay to Landlord damages as provided in Article 18.
17.02 In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
17.03 If this Lease shall terminate under the provisions of Article 16,
or if Landlord shall re-enter the demised premises under the provisions of this
Article 17, or in the event of the termination of this lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any fixed annual rent or additional rent due from Tenant at the
time of such termination or re-entry or, at Landlord's option against any
damages payable by Tenant under Articles 16 and 18 or pursuant to law.
17.04 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the demised premises, by reason of the violation by Tenant of any
of the covenants and conditions of this lease or otherwise.
ARTICLE 18
DAMAGES
18.01 If this Lease is terminated under the provisions of Article 16,
or if Landlord shall re-enter the demised premises under the provisions of
Article 17, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
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of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be, represents the
then present value of the excess (discounted using the same rate as U.S.
Treasury Bills with a term equivalent to the period of time between the date of
termination of the Lease and the date the Lease would have expired absent such
termination), if any, of
(1) the aggregate of the fixed annual rent and the additional
rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was
payable for the year immediately preceding such termination
except that additional rent on account of increases in Taxes and
the Wage Rate shall be presumed to increase at the average of the
rates of increase thereof previously experienced by Landlord
during the period (not to exceed 3 years) prior to such
termination) for the period commencing with such earlier
termination of this lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date, had this
lease not so terminated or had Landlord not so re-entered the
demised premises, over
(2) the aggregate fair rental value of the demised premises for
the same period, or
(b) sums equal to the fixed annual rent and the additional rent
(as above presumed) payable hereunder which would have been payable by Tenant
had this lease not so terminated, or had Landlord not so re-entered the demised
premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall re-let the demised premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such re-letting, the expenses
incurred or paid by Landlord in terminating this lease or in re-entering the
demised premises and in securing possession thereof, as well as the expenses of
re-letting, including altering and preparing the demised premises in a Building
Standard manner for new tenants, brokers' commissions, and all other expenses
properly chargeable against the
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demised premises and the rental thereof; it being understood that any such
re-letting may be for a period shorter or longer than the remaining term of this
Lease; 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, or shall Tenant
be entitled in any suit for the collection of damages pursuant to this
subsection to a credit in respect of any net rents from a re-letting, except to
the extent that such net rents are actually received by Landlord. If the demised
premises or any part thereof should be re-let in combination with other space,
then proper apportionment on a square foot basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
If the demised premises or any part thereof be re-let by Landlord for the
unexpired portion of the term of this lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall, prima facie, be the fair and
reasonable rental value for the demised premises, or part thereof, so re-let
during the term of the re-letting.
18.02 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 16, or under any
provision of law, or had Landlord not re-entered the demised premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry of the
demised premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 18.01.
ARTICLE 19
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
19.01 If Tenant shall default in the observance or performance of any
term or covenant on Tenant's part to be observed or performed under or by
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virtue of any of the terms or provisions in any Article of this Lease, (a)
Landlord may remedy such default for the account of Tenant, immediately and
without notice in case of emergency (but Landlord shall send notice to Tenant
reasonably promptly thereafter), or in any other case only provided that Tenant
shall fail to remedy such default with all reasonable dispatch after Landlord
shall have notified Tenant in writing of such default and the applicable grace
period for curing such default shall have expired; and (b) if Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
with such default including, but not limited to, reasonable attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, with interest at the Interest Rate, shall be deemed to
be additional rent hereunder and shall be paid by Tenant to Landlord within
twenty (20) days after rendition of a xxxx to Tenant therefore.
ARTICLE 20
QUIET ENJOYMENT
20.01 Landlord covenants and agrees that subject to the terms and
provisions of this Lease, if, and so long as this Lease is in effect, Tenant's
rights under this Lease shall not be cut off or ended before the expiration of
the term of this Lease, subject however, to: (i) the obligations of this Lease,
and (ii) the provisions of Article 25 hereof with respect to ground and
underlying leases and mortgages which affect this Lease.
ARTICLE 21
SERVICES AND EQUIPMENT
21.01 So long as Tenant is not in default under any of the covenants of
this Lease, Landlord shall, at its cost and expense:
(a) Provide necessary elevator facilities during Business Hours
of Business Days and shall have at least one elevator subject to call at all
other times. At Landlord's option, the elevators shall be operated by automatic
control or by manual control, or by a combination of both of such methods.
(b) Furnish heat to the demised premises during Business Hours of
Business Days. Landlord shall have no responsibility or liability for the
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ventilating conditions and/or temperature of the demised premises during the
hours or days Landlord is not required to furnish heat pursuant to this
paragraph.
(c) Furnish cold water for lavatory, pantry, drinking and office
cleaning purposes. Tenant, at Tenant's sole cost and expense, shall have the
right to install a hot water heater to provide hot water to the demised
premises. If Tenant requires, uses or consumes water for any other purposes,
Tenant agrees to Landlord installing a meter or meters or other means to measure
Tenant's water consumption, and Tenant further agrees to reimburse Landlord for
the cost of the meter or meters and the installation thereof, and to pay for the
maintenance of said meter equipment and/or to pay Landlord's cost of other means
of measuring such water consumption by Tenant. Tenant shall reimburse Landlord
within twenty (20) days of demand for the cost of all water consumed, as
measured by said meter or meters or as otherwise measured, including sewer
rents.
(d) Provide Tenant with ten (10) listings in the Building's
directory.
(e) Upon reasonable prior notice from Tenant, provide heating,
plumbing and other systems during non-Business Hours at Tenant's sole cost and
expense which shall equal commercially reasonable rates imposed by Landlord
therefor.
21.02 Landlord reserves the right without any liability whatsoever, or
abatement of fixed annual rent, or additional rent, to stop the heating,
air-conditioning, elevator, plumbing, electric and other systems when necessary
by reason of accident or emergency or for repairs, alterations, replacements or
improvements, provided that except in case of emergency, Landlord will notify
Tenant in advance, if possible, of any such stoppage and, if ascertainable, its
estimated duration, and will proceed diligently with the work necessary to
resume such service as promptly as possible and in a manner so as to minimize
interference with Tenant's use and enjoyment of the demised premises.
Notwithstanding the foregoing or anything contained in Article 34 to the
contrary, if and to the extent Tenant ceases operating its business in the
demised premises based solely and directly upon Landlord's performance of work
therein or Landlord's failure to provide services required to be provided under
this Lease, Tenant shall be entitled to a day-for-day abatement in rent.
21.03 Tenant shall clean and maintain the demised premises and shall
contract directly with the cleaner and a carting company for rubbish removal
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reasonably designated by Landlord from time to time to render such services to
tenants of the Building.
21.04 It is expressly agreed that only Landlord or anyone or more
persons, firms or corporations reasonably authorized in writing by Landlord will
be permitted to furnish laundry, linen, towels, drinking water, ice, and other
similar supplies and services to tenants and licensees in the Building. Landlord
may fix, in its reasonable discretion, at any time and from time to time, the
hours during which and the regulations under which such supplies and services
are to be furnished and under which, foods and beverages may be brought into
Building by persons other than regular employees of Tenant.
21.05 As part of Tenant's Work, Tenant shall install an air cooled
packaged air conditioning unit (hereinafter called the "Unit") to provide air
conditioning to the demised premises. Tenant shall, at its sole cost and
expense, operate and maintain the Unit. Such maintenance obligations shall be
performed throughout the term of this Lease, on Tenant's behalf and at Tenant's
expense, by a reputable air conditioning maintenance company, first reasonably
approved by Landlord. Tenant's obligation to maintain the Unit shall include,
but not be limited to, the periodic cleaning and/or replacement of filters,
replacements of fuses and belts, the calibration of thermostats and all startup
and shut down of the Unit. Tenant shall, at its sole cost and expense, perform
any and all necessary repairs, and cause any and all replacements of, the Unit.
The Unit and any replacements thereof shall be and remain at all times the
property of Landlord, and Tenant shall surrender the Unit and all such
replacements to Landlord on the Expiration Date. Landlord will not be required
to furnish any other services, except as otherwise provided in this Lease.
21.06 Subject to the terms of this Lease and to force majeure and other
matters beyond Landlord's control, Tenant shall have access to the Building
twenty-four (24) hours a day, seven (7) days per week.
21.07 Tenant shall make all arrangements for, and pay all expenses
incurred in connection with, use of the freight elevators servicing the demised
premises. Landlord agrees that during the Business Hours on Business Days there
shall be no charge for Tenant's normal use of the freight elevators servicing
the demised premises. However, Tenant acknowledges that (x) Tenant's use of such
freight elevator is non-exclusive and subject to scheduling by Landlord, (y) if
Tenant's use of such freight elevator for transporting materials, supplies,
equipment, machinery, furniture or furnishings will, in Landlord's reasonable
opinion, disrupt the operation of the Building (including the normal use of the
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freight elevators), then Tenant will only be permitted to use such freight
elevator during non-Business Hours, in which event Tenant shall be obligated to
pay for such usage at Landlord's actual cost therefor and (z) there is a four
(4) hour minimum usage of the freight elevator on non-Business Days.
ARTICLE 22
DEFINITIONS
22.01 The term "Landlord" as used in this lease means only the owner,
or the mortgagee in possession, for the time being of the Land and Building (or
the owner of a lease of the Building or of the Land and Building), so that in
the event of any transfer of title to said land and Building or said lease, or
in the event of a lease of the Building and the assumption by the transferee, in
writing or by law, of all of the obligations of Landlord hereunder, or of the
Land and Building, upon notification to Tenant of such transfer or lease the
said transferor Landlord shall be and hereby is entirely freed and relieved of
any and all covenants, obligations and liabilities of Landlord hereunder, and it
shall be deemed and construed as a covenant running with the land without
further agreement between the parties or their successors in interest, or
between the parties and the transferee of title to said Land and Building or
said lease, or the said lessee of the Building, or of the Land and Building,
that the transferee or the lessee has assumed and agreed to carry out any and
all such covenants, obligations and liabilities of Landlord hereunder.
22.02 The term "Business Days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the Federal, State or local
government as legal holidays as well as all other days recognized as holidays
under applicable union contracts. The term "Business Hours" as used in this
Lease shall mean the hours between 8:00 a.m. and 6:00 p.m.
22.03 "Interest Rate" shall mean a rate per annum equal to the lesser
of (a) three percent (3%) above the commercial lending rate announced from time
to time by Citibank, N.A., as its prime rate for 90-day unsecured loans, or (b)
the maximum applicable legal rate, if any.
22.04 "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations and ordinances) and the orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices,
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commissions and other subdivisions thereof, or of any official thereof, or of
any other governmental public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Land or Building or the
demised premises or any part thereof, or the sidewalks, curbs or areas adjacent
thereto and all requirements, obligations and conditions of all instruments of
record on the date of this Lease.
ARTICLE 23
INVALIDITY OF ANY PROVISION
23.01 If any term, covenant, condition or provision of this Lease or
the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
ARTICLE 24
BROKERAGE
24.01 Landlord and Tenant each covenant, represent and warrant to the
other that it has had no dealings or communications with any broker, or agent
other than Newmark & Company Real Estate, Inc. (which is representing Landlord)
and Xxxxx & Xxxxx New York, Inc. in connection with the consummation of this
lease. Landlord and Tenant each covenant and agree to pay, hold harmless and
indemnify the other from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or
charges claimed by any broker or agent alleging to have dealt with Landlord or
Tenant, respectively, other than the brokers set forth in this Section 24.01,
with respect to this Lease or the negotiation thereof. Landlord shall pay the
brokerage fees due to Newmark & Company Real Estate, Inc. and Xxxxx & Xxxxx New
York, Inc. pursuant to separate agreements. This Article 24 shall survive the
expiration or sooner termination of this Lease.
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ARTICLE 25
SUBORDINATION
25.01 This Lease is and shall be subject and subordinate to all ground
or underlying leases which may now or hereafter affect the real property of
which the demised premises form a part and to all mortgages which may now or
hereafter affect such leases or such real property, and to all renewals,
modifications, replacements and extensions thereof. The provisions of this
Section 25.01 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver at its own cost and expense any instrument, in recordable
form if required, that Landlord, the lessor of the ground or underlying lease or
the holder of any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination, and Tenant
hereby constitutes and appoints Landlord or its successors in interest to be
Tenant's attorney-in-fact, irrevocably and coupled with an interest, to execute
and deliver any such instrument for and on behalf of Tenant. Landlord represents
that as of the date hereof there are currently no mortgages encumbering the
Building.
25.02 In the event of a termination of any ground or underlying lease,
or if the interests of Landlord under this lease are transferred by reason of,
or assigned in lieu of, foreclosure or other proceedings for enforcement of any
mortgage, or if the holder of any mortgage acquires a lease in substitution
therefor, then Tenant under this lease will, at the option to be exercised in
writing by the lessor under such ground or underlying lease or such mortgagee or
purchaser, assignee or lessee, as the case may be, either (i) attorn to it and
will perform for its benefit all the terms, covenants and conditions of this
Lease on Tenant's part to be performed with the same force and effect as if said
lessor, such mortgagee or purchaser, assignee or lessee, were the landlord
originally named in this Lease, or (ii) enter into a new lease with said lessor
or such mortgagee or purchaser, assignee or lessee, as landlord, for the
remaining term of this Lease and otherwise on the same terms and conditions and
with the same options, if any, then remaining. The foregoing provisions of
clause (i) of this Section 25.02 shall enure to the benefit of such lessor,
mortgagee, purchaser, assignee or lessee, shall be self-operative upon the
exercise of such option, and no further instrument shall be required to give
effect to said provisions. Tenant, however, upon demand of any such lessor,
mortgagee, purchaser, assignee or lessee agrees to execute, from time to time,
instruments in confirmation of the foregoing provisions of this Section 25.02,
satisfactory to any such lessor, mortgagee, purchaser, assignee or lessee,
acknowledging such attornment and setting forth the terms and conditions
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of its tenancy. Tenant hereby constitutes and appoints Landlord or its
successors in interest to be the Tenant's attorney-in-fact, irrevocably and
coupled with an interest, to execute and deliver such instrument of attornment,
or such new lease, if the Tenant refuses or fails to do so promptly upon
request.
25.03 Anything herein contained to the contrary notwithstanding, under
no circumstances shall the aforedescribed lessor under the ground lease or
mortgagee or purchaser, assignee or lessee, as the case may be, whether or not
it shall have succeeded to the interests of the Landlord under this Lease, be
(a) liable for any act, omission or default of any prior
landlord; or
(b) subject to any offsets, claims or defenses which the Tenant
might have against any prior landlord; or
(c) bound by any fixed annual rent or additional rent which
Tenant might have paid to any prior landlord for more than one month in advance
or for more than three months in advance where such rent payments are payable at
intervals of more than one month; or
(d) bound by any modification, amendment or abridgment of the
Lease, or any cancellation or surrender of the same, made without its prior
written approval, provided the same do not increase Tenant's obligations or
reduce Tenant's rights beyond a de minimis extent.
25.04 If, in connection with the financing of the Building, the holder
of any mortgage shall request reasonable modifications in this Lease as a
condition of approval thereof, Tenant will not unreasonably withhold, delay or
defer making such modifications; provided the same do not increase Tenant's
obligations or reduce Tenant's rights beyond a de minimis extent.
25.05 Tenant agrees that, except for the first month's rent and the
security required hereunder, it will pay no rent under this Lease more than
thirty (30) days in advance of its due date, if so restricted by any existing or
future ground lease or mortgage to which this Lease is subordinated or by an
assignment of this Lease to the ground lessor or the holder of such mortgage,
and, in the event of any act or omission by Landlord, Tenant will not exercise
any right to terminate this Lease or to remedy the default and deduct the cost
thereof from rent due hereunder until Tenant shall have given written notice of
such act or omission to the ground lessor and to the holder of any mortgage on
the fee or the ground lease
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who shall have furnished such lessor's or holder's last address to Tenant, and
until a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notices, during which time such lessor or holder
shall have the right, but shall not be obligated, to remedy or cause to be
remedied such act or omission. Tenant shall not exercise any right pursuant to
this Section 26.02 if the holder of any mortgage or such aforesaid lessor
commences to cure such aforesaid act or omission within a reasonable time and
diligently prosecutes such cure thereafter.
ARTICLE 26
CERTIFICATE OF TENANT
26.01 Landlord and Tenant agree, at any time and from time to time, as
requested by the other, upon not jess than ten (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 as modified and stating the modifications),
certifying the dates to which the annual fixed rent and additional rent have
been paid, and stating whether or not, to the best of its knowledge, 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 it has knowledge, it being
intended that any such statement delivered pursuant hereto may be relied upon by
others with whom the requesting party may be dealing.
ARTICLE 27
LEGAL PROCEEDINGS WAIVER OF JURY TRIAL
27.01 Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
demised premises, and/or any other claims (except claims for bodily injury or
damage to physical property), and any emergency statutory or any other statutory
remedy. It is further mutually agreed that in the event Landlord commences any
summary proceeding for non-payment of rent, Tenant will not interpose and does
hereby waive the right to interpose any counterclaim of whatever nature or
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description in any such proceeding, except with respect to compulsory
counterclaims.
ARTICLE 28
SURRENDER OF PREMISES
28.01 Upon the expiration or other termination of the term of this
Lease, Tenant shall quit and surrender to Landlord the demised premises, broom
clean, in good order and condition, ordinary wear and tear and damage by fire,
the elements or other casualty excepted, and Tenant shall remove all of its
property as herein provided. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the term of this
Lease.
28.02 In the event Tenant remains in possession of the demised premises
after the Expiration Date or the date of sooner termination of this Lease,
Tenant, at the option of Landlord, shall be deemed to be occupying the demised
premises as a holdover tenant from month-to-month, at a monthly rent equal to
two (2) times the higher of (x) the sum of (i) the monthly-installment of fixed
rent payable during the last month of the term of this Lease, and (ii)
one-twelfth (1/12th) of the additional rent payable during the last year of the
term of this Lease or (y) the fair market value of the demised premises,
calculated on a monthly basis, subject to all of the other terms and obligations
of this Lease insofar as the same are applicable to a month-to-month tenancy.
ARTICLE 29
RULES AND REGULATIONS
29.01 Tenant and Tenant's servants, employees and agents shall observe
faithfully and comply strictly with the Rules and Regulations set forth in
Exhibit C attached hereto and made part hereof entitled "Rules and Regulations"
and such other and further reasonable Rules and Regulations as Landlord or
Landlord's agents may from time to time adopt provided, however, that in case of
any conflict or inconsistency between the provisions of this lease and of any of
the Rules and Regulations as originally or as hereafter adopted, the provisions
of this lease shall control. Reasonable written notice of any additional Rules
and Regulations shall be given to Tenant. Tenant shall not be subject to any
Rules and
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Regulations which are more onerous than those imposed on any other tenant in the
Building.
Nothing in this lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or the
terms, covenants or conditions in any other lease, against any other tenant of
the Building, and Landlord shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 30
CONSENTS AND APPROVALS
30.01 Wherever in this Lease Landlord's consent or approval is
required, if Landlord shall delay or refuse such consent or approval, Tenant in
no event shall be entitled to make, nor shall Tenant make, any claim, and Tenant
hereby waives any claim, for money damages (nor shall Tenant claim any money
damages by way of set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed
its consent or approval. Tenant's sole remedy shall be an action or proceeding
to enforce any such provision, for specific performance, injunction or
declaratory judgment, unless it is finally determined that Landlord acted
arbitrarily or capriciously. Notwithstanding the foregoing, Landlord and Tenant
hereby agree that any disputes relating to alterations to the demised premises
or Tenant's rights to assign this lease or sublet the demised premises shall be
resolved by expedited arbitration in accordance with Article 38 hereof.
ARTICLE 31
NOTICES
31.01 Any notice or demand, consent, approval or disapproval, or
statement required to be given by the terms and provisions of this Lease, or by
any law or governmental regulation, either by Landlord to Tenant or by Tenant to
Landlord, shall be in writing. Landlord's and Tenant's respective attorneys
shall have the right to send any such notice on behalf of their clients. Unless
otherwise required by such law or regulation, such notice or demand shall be
given, and shall be deemed to have been served and given three (3) Business Days
after such notice or demand is mailed by registered or certified mail, return
receipt requested,
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deposited enclosed in a securely closed post-paid wrapper, in a United States
Government general or branch post office, or official depository within the
exclusive care and custody thereof, addressed to either party, at its address
set forth on page 1 of this Lease. After Tenant shall occupy the demised
premises for the conduct of its business, the address of Tenant for notices,
demands, consents, approvals or disapprovals shall be the Building, Attention:
CFO. Either party may, by notice as aforesaid, designate a different address or
addresses for notices, demands, consents, approvals or disapprovals. Copies of
notices sent by Tenant to Landlord shall be sent to Arent Fox Xxxxxxx Xxxxxxx &
Xxxx PLLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx,
Esq. Copies of notices sent by Landlord to Tenant shall be sent to Xxxxxxxx &
X'Xxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq.
31.02 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
or demand, consent, approval or disapproval, or statement, on one other person
or entity designated in such request, such service to be effected as provided in
Section 31.01 hereof.
ARTICLE 32
NO WAIVER
32.01 No agreement to accept a surrender of this Lease shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of the demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. In the event of Tenant at any time desiring
to have Landlord sublet the premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease. The failure of
Landlord or Tenant to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this lease or any of the
Rules and Regulations set forth herein, or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Landlord of rent with or without knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of the Rules and
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Regulations set forth herein, or hereafter adopted, against Tenant and/or any
other tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. No provision of this lease shall be deemed to have been waived by
Landlord or Tenant, unless such waiver be in writing signed by such party. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on the account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment of rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
32.02 This Lease contains the entire agreement between the parties, and
any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
ARTICLE 33
CAPTIONS
33.01 The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof.
ARTICLE 34
INABILITY TO PERFORM
34.01 If, by reason of (1) strike, (2) labor troubles, (3) governmental
pre-emption in connection with a national emergency, (4) any rule, order or
regulation of any governmental agency, (5) conditions of supply or demand which
are affected by war or other national, state or municipal emergency, or any
other cause or (6) any cause beyond Landlord's reasonable control, Landlord
shall be unable to fulfill its obligations under this Lease or shall be unable
to supply any service which Landlord is obligated to supply, Landlord shall have
no liability therefor and this Lease and Tenant's obligation to pay rent
hereunder shall in no wise be affected, impaired or excused.
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ARTICLE 35
NO REPRESENTATIONS BY LANDLORD
35.01 Landlord or Landlord's agents have made no representations or
promises with respect to the Building or demised premises except as herein
expressly set forth.
ARTICLE 36
NAME OF BUILDING
36.01 Landlord shall have the full right at any time to name and change
the name of the Building and to change the designated address of the Building.
The Building may be named after any person, firm, or otherwise, whether or not
such name is, or resembles, the name of a tenant of the Building.
ARTICLE 37
RESTRICTIONS UPON USE
37.01 It is expressly understood that no portion of the demised
premises shall be used as, by or for (i) any retail bank, trust company, savings
bank, industrial bank, savings and loan association or personal loan bank open
to the public (or any branch office or public accommodation office of any of the
foregoing), or (ii) a public stenographer or typist, xxxxxx shop, beauty shop,
beauty parlor or shop, telephone or telegraph agency, telephone or secretarial
service (except in connection with Tenant's business), messenger service (except
in connection with Tenant's business), travel or tourist agency, public
restaurant or bar, commercial document reproduction or offset printing service
(except in connection with Tenant's business), public vending machines, retail,
wholesale or discount shop for sale of merchandise, retail service shop, labor
union, school or classroom, governmental or quasi-governmental bureau,
department or agency, including an autonomous governmental corporation, or a
company engaged in the business of renting office or desk space.
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ARTICLE 38
ARBITRATION
38.01 In each case specified in this Lease in which resort to
arbitration shall be required, such arbitration (unless otherwise specifically
provided in other Sections of this Lease) shall be in New York City in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and the provisions of this Lease. The decision and award of the
arbitrators shall be in writing, shall be final and conclusive on the parties,
and counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and awards, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrators so rendered in any court of competent
jurisdiction. Each party shall pay its own legal fees and other expenses.
ARTICLE 39
INDEMNITY
39.01 Tenant shall indemnify, defend and save Landlord its agents and
employees and any mortgagee of Landlord's interest in the Land and/or the
Building and any lessor under any superior lease harmless from and against any
liability or expense arising from the use or occupation of the demised premises
by Tenant or anyone in the demised premises with Tenant's permission, or from
any breach of this Lease by Tenant, unless and to the extent occasioned by the
negligence or willful misconduct of Landlord or its agents or employees.
Landlord shall promptly notify Tenant of any such claim. Tenant shall have the
right to defend same with counsel selected by Tenant. Landlord shall cooperate
with any such defense, and Landlord shall not settle any claim without Tenant's
consent. Landlord and Tenant each hereby waives any right to receive
consequential damages.
ARTICLE 40
MEMORANDUM OF LEASE
40.01 Tenant shall, at the request of Landlord execute and deliver a
statutory form of memorandum of this Lease for the purpose of recording, but
said
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memorandum of this Lease shall not in any circumstances be deemed to modify or
to change any of the provisions of this Lease. In no event shall Tenant record
this Lease or a memorandum thereof.
ARTICLE 41
MISCELLANEOUS
41.01 Irrespective of the place of execution or performance, this Lease
shall be governed and construed in accordance with the laws of the State of New
York.
41.02 This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted.
41.03 Except as otherwise expressly provided in this Lease, each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed shall be deemed and construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease.
41.04 All terms and words used in this Lease, regardless of the number
or gender in which they are used, shall be deemed to include any other number
and any other gender as the context may require.
41.05 Time shall be of the essence with respect to the exercise of any
option granted under this Lease.
41.06 Except as otherwise provided herein whenever payment of interest
is required by the terms hereof it shall be at the Interest Rate.
41.07 If the demised premises or any additional space to be included
within the demised premises shall not be available for occupancy by Tenant on
the specific date hereinbefore designated for the commencement of the term of
this Lease or for the inclusion of such space for any reason whatsoever, then
this Lease shall not be affected thereby but, in such case, said specific date
shall be deemed to be postponed until the date when the demised premises or such
additional space shall be available for occupancy by Tenant, and Tenant shall
not be entitled to possession of the demised premises or such additional space
until the same are available for occupancy by Tenant, provided, however, that
Tenant shall
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have no claim against Landlord, and Landlord shall have no liability to Tenant
by reason of any such postponement of said specific date, and the parties hereto
further agree that any failure to have the demised premises or such additional
space available for occupancy by Tenant on said specific date or on the
Commencement Date shall in no wise affect the obligations of Tenant hereunder
nor shall the same be construed in any wise to extend the term of this Lease
unless specifically provided to the contrary in the preamble to this Lease and
furthermore, this Section 41.07 shall be deemed to be an express provision to
the contrary of Section 223-a of the Real Property Law of the State of New York
and any other law of like import now or hereafter in force.
41.08 In the event that Tenant is in arrears in payment of fixed annual
rent or additional rent hereunder, Tenant waives Tenant's right, if any, to
designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
41.09 This lease shall not be binding upon Landlord until the same is
executed by Landlord and Tenant and an executed copy thereof has been delivered
to Tenant.
ARTICLE 42
SECURITY DEPOSIT
42.01 Tenant shall simultaneously upon execution of this Lease 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, in the
form annexed hereto as Exhibit F and in the amount of Two Million and 00/100
Dollars ($2,000,000.00) as security for the faithful performance and observance
by Tenant of the terms, provisions, covenants and conditions of this Lease. Such
letter of credit shall be issued by a banking corporation reasonably
satisfactory to Landlord and having its principal place of business or its duly
licensed branch or agency in the 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
forty-five (45) days prior to the expiration thereof.
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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 forty-five (45)
days prior to the expiration date of the preceding Security Letter. The term of
each such Security Letter shall be not less than one (1) year and shall be
automatically renewable from year to year as aforesaid. If Tenant shall fail to
obtain any replacement of a Security Letter within the time limits set forth in
this Section 42.01, Landlord may draw down the full amount of the existing
Security Letter and retain the same as security hereunder. Landlord shall return
any cash so drawn upon Tenant furnishing an acceptable replacement letter of
credit.
42.02 In the event Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease after receipt of any required
notice and the expiration of any applicable cure period, including, but not
limited to, the payment of rent and additional rent, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any rent and additional rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default in respect of any of the terms,
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, 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, except for a certification from Landlord
that Tenant is in default beyond any applicable notice and cure periods.
42.03 In the event that Tenant defaults in respect of any of the terms,
provisions, covenants and conditions of the lease after receipt of any required
notice and the expiration of any applicable cure period and Landlord utilizes
all or any part of the security represented by the Security letter but does not
terminate this Lease, Landlord may, in addition to exercising its rights as
provided in Section 42.02, retain the unapplied and unused balance of the
principal amount of the Security letter as security for the faithful performance
and observance by Tenant 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 rent, additional rent, or any other sum as
to which
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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 42.01 hereof.
42.04 In the event that Tenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this Lease and shall
never have been in default in the payment of fixed annual rent or additional
rent due hereunder, the security shall be reduced after the seventh anniversary
of the Rent Commencement Date to One Million Three Hundred Fifty-Four Thousand
Seven Hundred Forty-Three and 00/100 Dollars ($1,354,743.00); provided (i)
Tenant has not been in default more than two (2) times per annum in any given
year or more than five (5) times, in the aggregate, during the initial term of
this Lease and (ii) the "tangible net worth" (as that term is hereinafter
defined) of Tenant shall equal or exceed Sixty Five Million Dollars
($65,000,000) (the "Minimum Net Worth"). For purposes of this Section 42.04,
"tangible net worth" shall mean a net worth determined under GAAP and excluding
all assets which would be treated as intangible under sound accounting
principles, including but not limited to, such items as goodwill, trademarks,
copyrights and patents. Tenant agrees that if at any time after the reduction of
security pursuant to this Section 42.04 (if any) Tenant shall default under this
Lease, or the tangible net worth of Tenant shall be less than the Minimum Net
Worth, Tenant shall restore the security to Two Million and 00/100 Dollars
($2,000,000.00). Tenant agrees that on each anniversary of the date hereof,
Tenant shall deliver to Landlord an unconditional audited financial statement of
Tenant for the prior year evidencing Tenant's tangible net worth, prepared in
accordance with GAAP, consistently applied from period to period, by an
independent certified public accounting firm acceptable to Landlord (an"
Acceptable Firm"). Landlord hereby agrees that PricewaterhouseCoopers, LLP or
another so-called "Big 5" accounting firm shall be deemed acceptable to
Landlord.
42.05 Except to the extent that Tenant shall not have paid all fixed
rent and additional rent hereunder and timely deliver the demised premises to
Landlord in the manner required hereunder and provided Tenant is not then in
default of any obligation or provision hereunder, the security shall be returned
to Tenant within thirty (30) days after the date fixed as the end of the Lease
and after delivery of entire possession of the demised premises to Landlord. In
the event of a sale of the Land and Building or leasing of the Building,
Landlord shall have the right to transfer any interest it may have in the
Security Letter to the vendee or
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lessee and Landlord shall thereupon be released by Tenant from all liability for
the return of such Security Letter, provided such vendee or lessee assumes any
responsibilities of Landlord with respect to such Security Letter, and Tenant
agrees to look solely to the new landlord for the return of said Security
Letter; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Letter to a new Landlord. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. In the event of a sale of the
Building Landlord shall have the right to require Tenant to deliver a
replacement Security Letter naming the new landlord as beneficiary and, if
Tenant shall fail to timely deliver the same, to draw down the existing Security
Letter and retain the proceeds as security hereunder until a replacement
Security Letter is delivered.
ARTICLE 43
PARTNERSHIP
43.01 If Tenant is a partnership, the liability of each of the general
partners comprising the partnership Tenant shall be joint and several. The
technical dissolution of Tenant by reason of the death, retirement, resignation,
bankruptcy or adjudication of incompetency of one or more partners, shall not
affect this Lease or the liability thereunder of the general partners, and
Tenant agrees that the partnership shall nevertheless continue as Tenant with
respect to the remaining partners. Similarly, a merger or consolidation with
another firm shall not be deemed a sublease or assignment or a violation of the
provisions of this Lease.
43.02 Upon execution of this Lease by Landlord and Tenant shall
promptly deliver to Landlord a list of the names and residence addresses of all
existing partners comprising the partnership Tenant. In the event Tenant admits
any new partners, Tenant agrees, within thirty (30) days thereafter, to give
notice to Landlord of that fact and of the name and residence address of each
new partner, together with such reasonable proof as Landlord shall require that
all of such new general partners have in writing assumed performance of Tenant's
obligations under this Lease.
43.03 In the event of a merger or consolidation, Tenant agrees, within
thirty (30) days thereafter, to give notice to Landlord of that fact and all of
the names and residence addresses of the partners of the merged or consolidated
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firm, together with such reasonable proof as Landlord shall require that all of
such general partners have in writing assumed performance of Tenant's
obligations under this Lease.
ARTICLE 44
SUBLEASE
44.01 Notwithstanding anything to the contrary contained herein, Tenant
acknowledges that this Lease is a sublease of the demised premises and is
subject and subordinate to all of the terms, covenants, conditions, agreements
and provisions in the lease dated May 1, 1957 between Prudential Insurance
Company of America, as landlord and Landlord's predecessor-in-interest, as
tenant, and in the sublease dated June 27, 1958 between 000-000 Xxxxxxx Xxxxxx
Associates, as sublessor and Landlord's predecessor-in-interest (such lease and
sublease as the same has been amended and assigned are hereinafter severally and
collectively called the "Superior Documents"). Landlord warrants and represents
that nothing in the Superior Documents prohibits the making of this Lease or the
terms thereof and that the Superior Documents are in full force and effect.
Landlord represents that it has received no notice of any existing default under
the Superior Documents.
44.02 Anything in this Lease to the contrary notwithstanding, if there
exists a breach by Landlord of any of its obligations under this Lease caused
solely by a corresponding breach by the lessor under any Superior Document of
its obligations thereunder, then and in such event, Tenant's sole remedy against
Landlord in the event of any such breach of obligations under this Lease, shall
be the right to pursue a claim at Tenant's sole cost and expense in the name of
Landlord against such lessor. Landlord agrees that it will, at Tenant's expense,
cooperate with Tenant in the pursuit of such claim.
44.03 Landlord and Tenant agree that the leasehold estate created by
this Lease shall not merge with any other estate held by Landlord or an
affiliate of Landlord in the property of which the demised premises form a part
or any other interest of Landlord in the demised premises and the Building,
unless Landlord shall expressly elect to have such estates merge.
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ARTICLE 45
INTENTIONALLY OMITTED
ARTICLE 46
INTENTIONALLY OMITTED
ARTICLE 47
FIRST OFFERING SPACE
47.01 (a) For purposes of this Lease, the term "First Offering Space"
shall mean either (i) the entire twentieth (20th) floor or (ii) the entire
twenty-fourth (24th) floor of the Building shown on the floor plans annexed
hereto as Exhibit E, as designated by Landlord.
(b) Provided (i) Tenant is not in default beyond any applicable
notice and cure periods under the terms and conditions of this Lease either as
of the date of the giving of "Tenant's First Notice" or the "First Offering
Space Inclusion Date" (as such terms are hereinafter defined), and (ii) as of
either the date of the giving of Tenant's First Notice or the First Offering
Space Inclusion Date, Tenant is in actual occupancy of not less than one hundred
percent (100%) of the demised premises, if at any time during the term of this
Lease (including the Extension Term, if exercised pursuant to Article 48 of this
Lease) the First Offering Space shall become available for leasing to anyone
other than the current tenant or any subsidiary or affiliate thereof
(hereinafter called the "Current Tenant") then Landlord, before offering such
First Offering Space to anyone other than the Current Tenant, shall offer to
Tenant, subject to the provisions of this Article 47, the right to include the
entire First Offering Space within the demised premises upon all the terms and
conditions of this Lease (including the provisions of Article 3 with the base
year periods specified therein but excluding Article 50 hereof), except that:
(i) the fixed annual rent with respect to the First Offering
Space shall be at the higher of (x) the fair market rent for the First
Offering Space, which shall be determined by Landlord as of the date
(hereinafter called the "First Offering Space Determination Date")
occurring thirty (30) days prior to the First Offering Space Inclusion
Date (as such term
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is hereinafter defined) taking into account all then relevant factors
and shall be set forth in a written notice to Tenant, or (y) the
product obtained by multiplying (A) the monthly amount of fixed annual
rent (determined on a rentable square foot basis) for the last full
calendar month prior to the First Offering Space Inclusion Date (as
hereinafter defined) computed on an annualized basis without giving
effect to any abatement, credit or offset in effect, by (8) 12, and by
(C) the amount of rentable square feet included within the First
Offering Space (hereinafter called the "First Offering Space Escalated
Rent");
(ii) Effective as of the First Offering Space Inclusion Date
for purposes of calculating the additional rent payable pursuant to
Article 3 allocable to the First Offering Space, Tenant's Proportionate
Share shall be increased by a fraction, expressed as a percentage, the
numerator of which shall be the number of rentable square feet
(calculated on the same basis as the rentable square footage of the
initially demised premises) included within the First Offering Space,
and the denominator of which shall be 511,304; and
(iii) The term "Wage Rate Multiple" shall be increased by the
number of rentable square feet of the First Offering Space.
(iv) The security required to be maintained pursuant to
Article 42 hereof shall be increased by an amount equal to the fixed
annual rent for the First Offering Space.
For the purposes of this Section 47.01 (b), the term "Tenant" shall mean either
the Tenant on the date hereof or such other entity becoming an occupant
hereunder pursuant to either Section 11.02 or 11.10 above.
(c) Such offer shall be made by Landlord to Tenant in a written
notice (hereinafter called the "First Offer Notice") which offer shall specify
the fixed annual rent payable with respect to the First Offering Space,
determined in accordance with the provisions of subsection (b) hereof.
(d) Tenant may accept the offer set forth in the First Offer
Notice by delivering to Landlord an unconditional acceptance (hereinafter called
"Tenant's First Notice") of such offer within fifteen (15) days after delivery
by Landlord of the First Offer Notice to Tenant. Such First Offering Space shall
be added to and included in the demised premises on the later to occur (herein
called the "First Offering Space Inclusion Date") of (i) the day that Tenant
exercises its
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option as aforesaid, or (ii) the date such First Offering Space shall become
available for Tenant's possession. Time shall be of the essence with respect to
the giving of Tenant's First Notice.
(e) If Tenant does not accept (or fails to timely accept) an
offer made by Landlord pursuant to the provisions of this Article 47 with
respect to the First Offering Space, Landlord shall be under no further
obligation to Tenant with respect to the First Offering Space.
(f) In the event that Tenant disputes the amount of the fair
market rent specified in the First Offer Notice, then at any time on or before
the date occurring twenty (20) days after Tenant, has received the First Offer
Notice, and provided that Tenant shall have given Tenant's First Notice, Tenant
may initiate the arbitration process provided for herein by giving notice try
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. 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 Landlord's appointment of an
arbitrator within twenty (20) days after Landlord'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 fair market rent for the
First Offering Space, 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
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and exercising functions similar to those now exercised by said Court) for the
appointment of such third arbitrator. The third arbitrator shall determine the
fair market rent for the First Offering Space and render a written certified
report of its 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 subparagraph (f), and the determination of Landlord's or
Tenant's arbitrator which is closest to the determination of the third
arbitrator, shall be applied to determine as above provided, however, in no
event shall the fixed annual rent with respect to the First Offering Space be
less than the First Offering Space Escalated Rent.
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.
Each of the arbitrators selected as herein provided shall have at
least ten (10) years' experience in the leasing and renting of office space on
behalf of Landlords in Midtown Manhattan.
(g) If Tenant fails to initiate the arbitration process within
the aforesaid twenty (20) day period, time being of the essence, then Landlord's
determination of the fixed annual rent set forth in the First Offer Notice shall
be conclusive. In the event Landlord notifies Tenant that the fixed annual rent
for the First Offering Space shall be the First Offering Space Escalated Rent,
then the provisions of subparagraph (f) hereof shall be inapplicable.
(h) In the event the Tenant initiates the aforesaid arbitration
process and, as of the First Offering Space Inclusion Date, 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 First Offering Space and when the
determination has actually been made, an appropriate retroactive adjustment
shall be made as of the First Offering Space Inclusion Date.
(i) The provisions of this Article 47 shall be effective only if,
on the date on which Tenant accepts possession of the First Offering Space, the
Tenant named herein and only such Tenant is in actual occupancy of one hundred
percent (100%) of the demised premises. For the purposes of this Section 47.01
(i), the term "Tenant" shall mean either the Tenant on the date hereof
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or such other entity becoming an occupant herewith pursuant to either Section
11.02 or 11.10 above.
(j) Tenant agrees to accept the First Offering Space in its
condition and state of repair existing as of the First Offering Space Inclusion
Date and understands and agrees that Landlord shall not be required to perform
any work, supply any materials or incur any expense to prepare such space for
Tenant's occupancy.
(k) The fixed annual rent for the First Offering Space as
determined pursuant to this Article 47 shall be subject to periodic increases
for any period during the term of this Lease for which such fixed annual rent
would otherwise be less (on a per rentable square foot basis) than the fixed
annual rent payable pursuant to Section 1.01 hereof (on a per rentable square
foot basis) for such period, so that the fixed annual rent payable during such
periods with respect to the First Offering Space shall be equal (on a per
rentable square foot basis) to the fixed annual rent payable pursuant to Section
1.01 hereof during such periods.
ARTICLE 48
EXTENSION OF TERM OPTION
48.01 (a) Subject to the provisions of subsection (k) hereof, Tenant
shall have the right to extend the term of this Lease for one (1) additional
term of five (5) years commencing on the day following the Expiration Date
(hereinafter referred to as the "Commencement Date of the Extension Term" and
ending on the last day of the calendar month in which occurs the day preceding
the fifth (5th) anniversary of the Commencement Date of the Extension Term (such
additional term is hereinafter called the "Extension Term") provided that:
(i) Tenant shall give Landlord notice (hereinafter called the
"Extension Notice") of its election to extend the term of this Lease at
least twelve (12) months prior to the Expiration Date, and
(ii) Tenant is not, and has not been in default more than two
(2) times per annum or more than six (6) times during the initial term
of this Lease (after notice and the expiration of any applicable cure
periods) as of the time of the giving of the Extension Notice and as of
the Commencement Date of the Extension Term, and
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(iii) as of the time of the giving of the Extension Notice and
as of the Commencement Date of the Extension Term, Tenant is in actual
occupancy of not less than one hundred percent (100%) of the demised
premises (including any additional space in the Building hereafter
leased by Tenant). For the purposes of this Section 48.01(a)(iii), the
term "Tenant" shall mean either the Tenant on the date hereof or such
other entity becoming an occupant hereunder pursuant to either Section
11.02 or 11.10 above.
(b) The fixed annual rent payable by Tenant to Landlord during
the Extension Term shall be the higher of:
(i) the fair market rent for the demised premises determined
as of the date occurring six (6) months prior to the Commencement Date
of the Extension Term (such date is hereinafter called the
"Determination Date") taking into account all then relevant factors and
which determination shall be made within a reasonable period of time
after the occurrence of the Determination Date pursuant to the
provisions of subsection (d) hereof, or
(ii) the product obtained by multiplying the rentable square
foot area of the demised premises by the fixed annual rent and
additional rent payable by Tenant to Landlord pursuant to Articles 1
and 3, respectively, hereof for the last month of the initial term of
this Lease on an annualized basis (including the most recent rate of
additional rent calculated on a monthly basis payable pursuant to
Article 3 hereof) with respect to the demised premises (without giving
effect to any abatements, set offs or concessions then in effect)
determined on a per rentable square foot basis.
(c) Effective as of the Commencement Date of the Extension Term:
(i) the "Base Tax" set forth in Section 3.01 (a) hereof shall
be deemed to be the product of (x) the amount for which the land and
the Building are assessed for the purpose of establishing the real
estate taxes to be paid by Landlord for the Tax Year ending on the June
30 immediately preceding the Determination Date, multiplied by (y) the
real estate tax rate for such Tax Year, and
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(ii) the "Base Wage Rate" set forth in Section 3.01(i) hereof
shall be deemed to mean the Wage Rate in effect on January 1st of the
calendar year immediately preceding the calendar year in which occurs
the Determination Date.
(d) Landlord and Tenant shall endeavor to agree as to the amount
of the fair market rent for the demised premises pursuant to the provisions of
clause (i) of subsection (a) hereof, during the thirty (30) day period following
the Determination Date. In the event that Landlord and Tenant cannot agree as to
the amount of the fair market rent within such thirty (30) day period following
the Determination Date, then Landlord or Tenant may initiate the arbitration
process provided for herein by giving notice to that effect to the other, and
the party so initiating the appraisal process (such party hereinafter referred
to as the "Initiating Party") shall specify in such notice the name and address
of the person designated to act as an arbitrator on its behalf. Within thirty
(30) days after the designation of such arbitrator, the other party (hereinafter
referred to as the "Other Party") shall give notice to the Initiating Party
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If the Other Party fails to notify the Initiating Party of the
appointment of its arbitrator within the time above specified, then the
appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator 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, 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 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.
(e) 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'
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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.
(f) The third arbitrator shall determine the fair market rent of
the demised premises and render a written certified report of its 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 subsection
(d), and the determination of Landlord's or Tenant's arbitrator which is closest
to the determination of the third arbitrator, shall be applied to determine as
above provided, whether the fixed annual rent shall be increased pursuant to
clause (i) of subsection (b) hereof for the Extension Term.
(g) 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 Midtown Manhattan, New York County.
(h) If Landlord notifies Tenant that the fixed annual rent for
the Extension Term shall be equal to the amount set forth in clause (ii) of
subsection (b) hereof, then the provisions of subsection (d) hereof shall be
inapplicable and have no force or effect.
(i) In the event Landlord or Tenant initiates the appraisal
process pursuant to subsection (d) hereof 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 demised premises and when such determination has been made, an
appropriate retroactive adjustment shall be made as of the Commencement Date of
the Extension Term.
(j) Except as provided in subsections (b) and (c) hereof,
Tenant's occupancy of the demised 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.
(k) If Tenant does not send the Extension Notice pursuant to
provisions of subsection (a) hereof, this Article shall have no force or effect
and shall be deemed deleted from this Lease.
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(l) If this Lease is renewed for the Extension Term, then
Landlord or Tenant can request the other party hereto to execute 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.
(m) If Tenant exercises its right to extend the term of this
Lease for the Extension Term pursuant to this Article, the phrases "the term of
this Lease" or "the term hereof" as used in this Lease, shall be construed to
include, when practicable, the Extension Term.
ARTICLE 49
INTENTIONALLY OMITTED
ARTICLE 50
LAYOUT AND FINISH; TENANT WORK CREDIT
50.01 Tenant hereby covenants and agrees that Tenant will, at Tenant's
own cost and expense, and in a good and workmanlike manner, make and complete
the work and installations in and to the demised premises set forth below in
such manner so that the demised premises will be tasteful and dignified
executive and general offices.
50.02 Tenant, at Tenant's expense, shall prepare a final plan or final
set of plans and specifications (which said plan or set of plans, as the case
may be, and specifications are hereinafter called the "final plan") which shall
contain complete information and dimensions necessary for the construction and
finishing of the demised premises. The final plan shall be submitted to Landlord
for Landlord's written approval which approval shall not be unreasonably
withheld or delayed with respect to work which is interior, non-structural and
does not affect Building Systems, the exterior of the Building or any area of
the Building outside the demised premises. Landlord shall not be deemed
unreasonable in withholding its consent to the extent that the final plan
prepared by Tenant pursuant hereto involves the performance of work or the
installation in the demised premises of materials or equipment which do not
equal or exceed the standard of quality of Building Standard installations.
Landlord agrees that it shall respond to Tenant's request for approval of the
final plan within fifteen (15) Business Days after Tenant's submission thereof.
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50.03 In accordance with the final plan, Tenant, at Tenant's expense,
will make and complete in and to the demised premises the work and installations
(hereinafter called "Tenant's Work") specified in the final plan. Tenant agrees
that Tenant's Work will be performed with the least possible disturbance to the
occupants of other parts of the Building and to the structural and mechanical
parts of the Building and Tenant will, at its own cost and expense, leave all
structural and mechanical parts of the Building which shall or may be affected
by Tenant's Work in good and workmanlike operating condition. Tenant, in
performing Tenant's Work will, at its own cost and expense, promptly comply with
all laws, rules and regulations of all public authorities having jurisdiction in
the Building with reference to Tenant's Work. If any act or omission of Tenant
or its general contractor, subcontractors or agents render the Building of which
the demised premises are a part liable to any mechanic's lien or other lien and
if any such lien or liens be filed against the Building of which the demised
premises are a part, or against Tenant's Work, or any part thereof, Tenant will,
at Tenant's own cost and expense, promptly remove the same of record within
thirty (30) days after Tenant's receipt of notice of the filing of such lien or
liens; or in default thereof, Landlord may cause any such lien or liens to be
removed of record by payment of bond, as Landlord may elect, and Tenant shall
reimburse Landlord for all costs and expenses incidental to the removal of any
such lien or liens incurred by Landlord. Tenant shall indemnify and save
harmless Landlord of and from all claims, reasonable counsel fees, loss, damage
and expenses whatsoever by reason of any liens, charges or payments of any kind
whatsoever that may be incurred or become chargeable against Landlord or the
Building of which the demised premises are a part, or Tenant's Work or any part
thereof, by reason of any work done or to be done or materials furnished or to
be furnished to or upon the demised premises in connection with Tenant's Work.
Tenant hereby covenants and agrees to indemnify and save harmless Landlord of
and from all claims, reasonable counsel fees, loss, damage and expenses
whatsoever by reason of any injury or damage, howsoever caused, to any person or
property occurring prior to the completion of Tenant's Work or occurring after
such completion, as a result of anything done or omitted in connection therewith
or arising out of any fine, penalty or imposition or out of any other matter or
thing connected with any work done or to be done or materials furnished or to be
furnished in connection with Tenant's Work. At any and all times during the
progress of Tenant's Work, Landlord shall be entitled to have a representative
or representatives on the site to inspect Tenant's Work and such representative
or representatives shall have free and unrestricted access to any and every part
of the demised premises upon reasonable notice and provided such access shall
not unduly disrupt Tenant's Work. Tenant shall advise Landlord in writing of
Tenant's general contractor who are to do Tenant's Work, and such general
contractor shall be subject to Landlord's prior written approval which
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approval shall not be unreasonably withheld; such contractor shall, to the
extent permitted by law, use subcontractors and employees for Tenant's Work who
will work harmoniously with other employees on the job. Notwithstanding the
foregoing, Tenant shall use the life safety system subcontractor designated by
Landlord to perform any work to connect Tenant's installations to the Building's
life safety system. Annexed hereto as Exhibit D is a list of contractors and
subcontractors which have been approved by Landlord.
50.04 Tenant shall, at Tenant's sole cost and expense, file all
necessary architectural plans and obtain all necessary approvals and permits in
connection with Tenant's Work being performed by it pursuant to this Article 50.
Tenant shall submit to Landlord Tenant's final plans for Landlord's review no
later than June 1, 2000, subject to force majeure.
50.05 The following conditions shall also apply to Tenant's Work
(i) all Tenant's Work shall be of material, manufacture, design
capacity and color at least equal to the standard adopted by Landlord for the
Building (hereinafter called "Building Standard");
(ii) Tenant, at Tenant's expense, shall (i) file all required
architectural, mechanical and electrical drawings and obtain all necessary
permits, and (ii) furnish and perform all engineering and engineering drawings
in connection with Tenant's Work. Tenant shall obtain Landlord's approval of the
drawings referred to in (i) and (ii) hereof, which approval shall be within
fifteen (15) Business Days and shall not be unreasonably withheld or delayed;
(iii) Tenant shall use an engineer reasonably approved by Landlord with
respect to the preparation of Tenant's engineering drawings for Tenant's Work;
(iv) All of the provisions of Articles 6 and 8 hereof shall apply to
Tenant's performance of Tenant's Work; and
(v) Tenant's Work shall be completed no later than September 30, 2000
subject to delays beyond Tenant's control.
50.06 Tenant agrees to install the Unit (as defined in Section 21.05)
as part of Tenant's Work and to perform all work necessary to upgrade the
restrooms on the entire twenty-first (21st), twenty-second (22nd) and
twenty-third (23rd) floors of the Building in compliance with the Building
standards, with Local
-80-
Law 58 and with the Americans with Disabilities Act of 1990 (collectively
"Credit Work"). Landlord shall allow Tenant a credit not to exceed the amount of
Two Hundred Forty-Three Thousand One Hundred Fifty-Nine Dollars ($243,159)
(hereinafter called the "Work Credit"), which credit shall be applied solely
against the cost and expense incurred in connection with the Credit Work.
Notwithstanding anything contained in this lease to the contrary, up to ten
(10%) percent of the Work Credit may be used for architectural, engineering,
space planning, expediter and inspection fees, fees for all municipal and other
permits, licenses and approvals and fees, directly relating to Credit Work, (as
opposed to being related to furniture, furnishings or other non-"hard cost"
items). In the event that the cost and expense of the Credit Work shall exceed
the amount of the Work Credit, Tenant shall be entirely responsible for such
excess. In the event that the cost and expense of Credit Work shall be less than
the amount of the Work Credit, then the amount of the Work Credit shall be
reduced accordingly.
50.07 Landlord shall allow Tenant a credit not to exceed the amount of
One Million Two Hundred Fifteen Thousand Seven Hundred Ninety-Five Dollars
($1,215,795.00) (hereinafter called the "Tenant's Work Credit"), which credit
shall be applied solely against the cost and expense incurred in performing
Tenant's Work other than the Credit Work. In the event that the cost and expense
of the Tenant's Work (exclusive of the Credit Work) shall exceed the amount of
Tenant's Work Credit, Tenant shall be entirely responsible for such excess. In
the event that the cost and expense of Tenant's Work (exclusive of the Base
Work) shall be less than the amount of Tenant's Work Credit, then the amount of
Tenant's Work Credit shall be reduced accordingly. Notwithstanding anything
contained in this lease to the contrary, up to ten (10%) percent of the Tenant's
Work Credit may be used for architectural, engineering, space planning,
expediter and inspection fees, fees for all municipal and other permits,
licenses and approvals and fees, directly relating to Tenant's Work, (as opposed
to being related to furniture, furnishings or other non-"hard cost" items).
50.08 (a) Provided Tenant shall not be in default under the terms of
this Lease beyond applicable notice and cure periods, Landlord hereby agrees to
make periodic payments of up to ninety (90%) of the Tenant's Work Credit and/or
Work Credit to Tenant as Tenant's Work and Credit Work progresses, in accordance
with the terms and conditions hereinafter set forth (the "Work Payment
Conditions") in this subsection (a) Tenant shall submit to Landlord from time to
time, but not more often than once per month, requisitions (herein referred to
as "Tenant's Request") for such periodic payment with respect to the portion(s)
of Tenant's Work and Credit Work performed subsequent to the immediately
preceding Tenant's Request (if any), together with the following:
-81-
(i) copies of invoices from the contractors and subcontractors
who performed the portions of Tenant's Work and Credit Work referred to in such
Tenant's Request, and from the materialmen and suppliers who supplied the
materials and supplies referred to in such Tenant's Request (which may be
grossed up by Tenant as required to add back the retainage held by Tenant for
such work and not reflected in the corresponding invoices);
(ii) a certificate from Tenant's architect or general contractor
or construction manager that (1) such portion of the Tenant's Work and Credit
Work has been substantially completed in accordance with the final plan and
revisions thereto theretofore approved by Landlord; and (2) there are no uncured
violations of record as a result of such portion of the Tenant's Work and Credit
Work; and
(iii) lien waivers from Tenant's general contractor and
construction manager, and each major (for purposes hereof, a contract amount in
excess of $10,000.00) subcontractor, materialman and supplier to the extent of
the amount paid to such parties through the requisition preceding such Tenant's
Request.
Promptly following any Tenant's Request together with the aforesaid
accompanying documentation, Landlord shall have the right to enter the demised
premises for the purpose of verifying that such portion of Tenant's Work and
Credit Work covered by Tenant's Request has been performed substantially in
accordance with the Tenant's Plans and revisions thereto theretofore approved by
Landlord. If the Work Payment Conditions have been satisfied, then within thirty
(30) days after Landlord's receipt of Tenant's Request, together with the
accompanying documentation, Landlord shall pay to Tenant the amount shown on the
"Current Payment Due" on the Tenant's Request. The balance of the Tenant's Work
Credit and/or Work Credit, if any, after the completion of Tenant's Work and
Credit Work, shall be paid to Tenant in accordance with the terms and conditions
set forth in paragraph (b) below.
(b) Subject to the provisions of this Section, Landlord hereby
agrees to pay the balance of the Tenant's Work Credit and/or Work Credit, in
accordance with the terms and conditions hereinafter in this subsection (b) (the
"Final Work Payment Conditions"). After the completion of the Tenant's Work and
Credit Work, Tenant shall submit to Landlord a requisition (herein referred to
as the "Final Request") for the balance of the Tenant's Work Credit and/or Work
Credit, together with the following:
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(i) a certificate from Tenant's architect or general contractor
or construction manager that (1) all Tenant's Work and Credit Work has been
completed in substantial accordance with the final plans and revisions thereto
theretofore approved by Landlord; (2) there are no uncured violations of record,
as a result of any of the Tenant's Work; and all Tenant's Work and Credit Work
has been paid for in full;
(ii) a general release and lien waivers from Tenant's general
contractor, and each major (for purposes hereof, a contract amount in excess of
$10,000.00) subcontractor, materialman and supplier and any other lien waiver
Tenant has received in connection with Tenant's Work and Credit Work;
(iii) copies of all Xxx Xxxx Xxxx Xxxxxxxx Xxxxxxxxxx xxx Xxx
Xxxx Xxxx Fire Department sign-offs, inspection certificates and/or
self-certifications by Tenant's subcontrators and/or any permits required to be
issued by any governmental entity having jurisdiction thereover to the extent
required to permit the lawful occupancy of the demised premises by Tenant; and
(iv) two (2) copies of CAD ``as built" plans of the demised
premises, or if Tenant has not had such CAD ``as builts" prepared, the final
plan as finally approved by Landlord and filed with the New York City Department
of Buildings, legibly marked with all field changes made during the performance
of Tenant's Work and Credit Work (other than de minimis changes) and certified
by Tenant's architect as containing all such field changes.
(c) Promptly following the Final Request together with the
aforesaid accompanying documentation, Landlord shall have the right to enter the
demised premises for the purpose of verifying that all of the Tenant's Work and
Credit Work has been completed and performed substantially in accordance with
the final plan and revisions thereto theretofore approved by Landlord. If the
Final Work Payment Conditions have been satisfied, then within thirty (30) days
after Landlord's receipt of the Final Request together with the accompanying
documentation, Landlord shall pay to Tenant the balance of the Tenant's Work
Credit and/or Work Credit.
50.09 Tenant acknowledges that as of the date hereof there are separate
Class E systems and sprinkler risers for the Building and that certain building
known and located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "500
Building"). Tenant further acknowledges that during the term of this Lease,
Landlord in its sole election, may combine the lobbies of the Building and the
500 Building into a single lobby in a location to be selected by Landlord, in
its sole
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discretion, and unify the Class E systems for the Building. In the event
Landlord shall elect to combine the lobbies of the Building and the 500 Building
and unify the Class E systems, then Tenant shall make all necessary
modifications and install all necessary devices within the demised premises to
comply with applicable laws and regulations. Landlord shall reimburse Tenant for
any reasonable actual out-of pocket expenses to modify the Class E systems in
the demised premises incurred by Tenant as a result of Landlord's combining such
lobbies and unifying the Class E system of the Building and the 500 Building. In
connection with the performance of Tenant's Work, Landlord shall provide to
Tenant a reasonable number of connection points (at least one connection point
on every third (3rd) floor of the Building) to the Building's fire safety system
to which it may connect its smoke detectors and other life safety and security
devices in the demised premises to comply with applicable laws, including,
without limitation, New York City local law; provided, however, Tenant shall
solely be responsible for the cost of making such connection.
* * *
The remainder of this page is left intentionally blank
the signature page follows.]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
lease as of the day and year first above written.
LANDLORD:
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
500-512 ArCap LLC
By: Archon Capital, L.P. By:
By: WH MezzCo GP, L.L.C., its General
Partner
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Vice President
By: GS MezzCo GP, L.L.C., its General Partner
By: /s/ signature illegible
---------------------------------
Name:
Title:
TENANT
WRC MEDIA, INC.
/s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title:
Tenant's Tax Identification Number is
------------------------------------------
EXHIBIT A
FLOOR PLAN
[Attached]
EXHIBIT A
(WRC MEDIA)
[FLOOR PLAN]
EXHIBIT A
(WRC MEDIA)
[FLOOR PLAN]
EXHIBIT A
(WRC MEDIA)
[FLOOR PLAN]
EXHIBIT B
PROPERTY DESCRIPTION
(512 SEVENTH AVENUE)
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, known as
000 Xxxxxxx Xxxxxx and designated as follows:
Section: 3
Block: 787
Lot: 44
EXHIBIT C
RULES AND REGULATIONS
Tenant shall not:
1. obstruct, encumber or use, or allow or permit any of its employees,
agents, licensees or invitees to congregate in or on, the sidewalks, driveways,
entrances, passages, courts, arcades, esplanade areas, plazas, elevators,
vestibules, stairways, corridors or halls of the Building, outside of the
demised premises, or use any of them for any purposes other than for ingress and
egress to and from the demised premises;
2. attach awnings or other projections to the outside walls of the
Building or place bottles, parcels or other articles, or lettering visible from
the exterior, on the windows, windowsills or peripheral air conditioning
enclosures;
3. attach to, hang on, or use in connection with, any exterior window
or entrance door of the demised premises, any blinds, shades or screens which
are not of a quality, type, design and color, or which are not attached in a
manner, approved by Landlord;
4. place or leave any door mat or other floor covering in any area
outside of the demised premises;
5. exhibit, inscribe, paint or affix any sign, insignia, advertisement,
object or other lettering in or on any windows, doors, walls or part of the
outside or inside of the Building (exclusive of the inside of the demised
premises), or in the demised premises if visible from the outside, without
Landlord's approval, except that the name(s) of Tenant and any permitted
sublessee may be displayed on the entrance doors of the premises occupied by
each, subject to Landlord's reasonable approval of the size, color and design of
such display and, if Landlord elects to perform such work, Tenant shall pay
Landlord for the performance of such work;
6. cover or obstruct the sashes, sash doors, skylights, windows and
doors that reflect or admit light and air into the halls, passageways or other
public areas of the Building;
7. place in, sweep or permit to be swept, attach to, put in front of,
or affix to any part of the exterior of, the Building or any of its halls,
doors, windows,
C-1
elevators, corridors or vestibules, outside of the demised premises, any
lettering, signs, decorations, showcases, displays, display windows, packages,
boxes or other articles;
8. except in the normal decoration of the interior of the demised
premises, xxxx, paint, drill into, or in any way deface, any part of the
Building or the demised premises or cut, bore or string wires therein;
9. permit or allow bicycles, vehicles, animals, fish or birds of any
kind to be brought into or kept on or about the Building or the demised
premises;
10. make, permit or allow to be made, any unseemly or disturbing
noises, whether by musical instruments, recordings, radio, talking machines,
television, whistling, singing or in any other way, which might disturb other
occupants in the Building or those having business with them or impair or
interfere with the use or enjoyment by others of neighboring buildings or
premises;
11. bring into or keep on any part of the demised premises or the
Building any inflammable, combustible, radioactive or explosive fluid, chemical
or substance;
12. place upon any of the doors (other than closet or vault doors) or
windows in the Building any locks or bolts which shall not be operable by the
Grand Master Key for the Building, or make any changes in locks or the
mechanisms thereof which shall make such locks inoperable by said Grand Master
Key unless such change is approved by Landlord in which event Tenant shall give
Landlord duplicate keys for such locks or bolts;
13. remove, or carry into or out of the demised premises or the
Building, any safes, freight, furniture, packages, boxes, crates or any bulky or
heavy objects except during such hours and in such elevators as Landlord may
reasonably determine from time to time;
14. use any lighting in perimeter areas of the Building, other than
that which is standard for the Building or approved by Landlord, so as to permit
uniformity of appearance to those viewing the Building from the outside;
15. engage or pay any employees on the demised premises except those
actually working for the Tenant in the demised premises, or advertise for
laborers giving the demised premises as an address;
C-2
16. obtain, permit or allow in the Building the purchase, or acceptance
for use in the demised premises, by means of a service cart, vending machine or
otherwise, of any ice, drinking water, food, tobacco in any form, beverage,
towel, barbering, boot blackening, cleaning, floor polishing or other similar
items or services from any persons, except such persons, during such hours, and
at such places within the Building and under such requirements as may be
determined by Landlord with respect to the furnishing of such items and
services, provided that the charges for such items and services by such persons
are not excessive;
17. use, permit or allow any advertising or identifying sign which the
Landlord shall have notified Tenant tends, in Landlord's judgment, to impair the
reputation of the Building or its desirability as a building for offices;
18. close and leave the demised premises at any time without closing
all operable windows and, if requested by Landlord, turning out all lights;
19. permit entrance doors to the demised premises to be left open at
any time or unlocked when the demised premises are not in use;
20. encourage canvassing, soliciting or peddling in any part of the
Building or permit or allow the same in the demised premises;
21. use, or permit or allow any of its employees, contractors,
suppliers or invitees to use, any space or part of the Building, including the
passenger elevators or public halls thereof, in the moving, delivery or receipt
of safes, freight, furniture, packages, boxes, crates, paper, office material or
any other matter or thing, any hand trucks, wagons or similar items which are
not equipped with such rubber tires, side guards and other safeguards which
shall have been approved by Landlord or use any such hand trucks, wagons or
similar items in any of the passenger elevators;
22. cause or permit any food odors or any other unusual or
objectionable odors to exist in or emanate from the demised premises or permit
any cooking or preparation of food except in areas approved by Landlord and in
compliance with local ordinances;
23. create or permit a public or private nuisance, by reason of noise,
odors and/or vibrations or otherwise;
24. throw or allow or permit to be thrown anything out of the doors
windows or skylights or down the passageways or stairways of the Building;
C-3
25. lay vinyl asbestos tile or other similar floor covering so that the
same shall come in direct contact with the floor or in a manner or by means of
such pastes or other adhesives which shall not have been approved by Landlord,
it being understood that if linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall be first affixed to
the floor, by a paste or other material which is soluble in water, the use of
cement or other similar adhesive material being expressly prohibited;
26. use, allow or permit the passenger elevators to be used by Tenant's
working hands (persons in rough clothing handling packages, cartons and
shipments of material or mail) or persons carrying bulky packages or by persons
calling for or delivering mail or goods to or from the demised premises, and
Tenant shall cooperate with Landlord in enforcing this Rule on those making
deliveries to Tenant;
27. request any of Landlord's agents, employees or contractors to
perform any work, or do anything, outside of their regular duties, unless
previously approved by the Building manager;
28. invite to the demised premises or the Building, or permit the visit
of, persons in such numbers or under such conditions as unreasonably to
interfere with the use and enjoyment of any of the plazas, entrances, corridors,
arcades, escalators, elevators or other facilities of the Building by other
occupants thereof;
29. use, permit or allow the use of any fire exits or stairways for any
purpose other than emergency use;
30. employ any firm, person or persons to move safes, machines or other
heavy objects into or out of the Building, without prior approval of Landlord of
such persons and the manner in which such items will be moved, which approval
shall not be unreasonably withheld:
31. install or use any machines or machinery of any kind whatsoever
which may disturb any persons outside of the demised premises;
32. use the water and wash closets or other plumbing fixtures for any
purpose other than those for which they were constructed, and shall not allow or
permit sweepings, rubbish, rags, or other solid substances to be thrown therein;
or
33. install any carpeting or drapes, or paneling, grounds or other
decorative wood products, in the demised premises, other than those wood
products
C-4
considered furniture, which are not treated with fire-retardant materials and,
in such event, shall submit, to Landlord's reasonable satisfaction, proof or
other reasonable certification of the materials reasonably satisfactory fire
retardant characteristics.
34. smoke or carry cigars or cigarettes in the elevators of the
building.
II Tenant shall:
1. pay Landlord for any damages, costs or expenses incurred by Landlord
with respect to the breach of any of the Rules and Regulations contained in or
provided by this Lease by Tenant, or any of its servants, agents, employees,
licensees or invitees, or the misuse by Tenant, or any of the aforesaid, of any
fixture or part of the demised premises or the Building and shall cause its
servants, agents, employees, licensees and invitees to comply with the Rules and
Regulations contained in or provided for by this Lease;
2. upon the termination of this Lease, turn over to Landlord all keys;
either furnished to, or otherwise procured by, Tenant with respect to any locks
used by Tenant in the demised premises or the Building and, in the event of the
loss of any such keys, pay to Landlord the cost of procuring same;
3. subject to the provisions of Article 18 hereof, refrain from, and
immediately upon receipt of notice thereof, discontinue any violation or breach
of the Rules and Regulations contained in or provided for by this Lease;
4. request Landlord to furnish passes to persons whom Tenant desires to
have access to the demised premises during times other than Business Hours and
be responsible and liable to Landlord for all persons and acts of such persons
for whom Tenant requests such passes;
5. furnish artificial light and electrical energy (unless Landlord
shall furnish electrical energy as a service included in the rent) at Tenant's
expense for the employees of the Landlord or Landlord's contractors while doing
janitorial or other cleaning services or while making repairs or Alterations in
the demised premises.
6. apply at the office of the Building's manager with respect to all
matters and requirements of Tenant which require the attention of Landlord, his
agents or any of his employees;
C-5
7. pay Landlord reasonable charges for the installation and replacement
of ceiling tiles removed for Tenant by telephone installers or others in the
demised premises and public corridors, if any;
8. purchase from Landlord or Landlord's designee, at Landlord's option,
all lighting tubes, lamps, bulbs and ballasts used in the demised premises and
shall pay Landlord, or Landlord's designee, as the case may be, reasonable
charges for the purchase and installation hereof; and
9. pay Landlord reasonable charges for the hiring or providing of
security guards during times when Tenant, or any subtenant of Tenant, is moving
into or out of portions of the demised premises or when significant quantities
of furniture or other materials are being brought into or removed from the
demised premises.
III. Landlord shall:
1. have the right to inspect all freight objects or bulky matter
(except printed matter) brought into the Building and to exclude from the
Building all objects and matter which violate any of the Rules and Regulations
contained in or provided for by this Lease;
2. have the right to require any person leaving the demised premises
with any package, or other object or matter, to submit a pass, listing such
package or object or matter, from Tenant;
3. in no way be liable to Tenant or any other party for damages or loss
arising from the admission, exclusion or rejection of any person or any property
to or from the demised premises or the Building under the provisions of the
Rules and Regulations contained in or provided for by this Lease;
4. have no liability or responsibility for the protection of any of
Tenant's property as a result of damage or the unauthorized removal of any such
property resulting wholly or in part from Landlord's failure to enforce, in any
particular instance, or generally, any of Landlord's rights.
5. have the right to require all persons entering or leaving the
Building, during hours other than Business Hours, to sign a register and may
also exclude from the Building, during such hours, all persons who do not
present a pass to the Building signed by Landlord;
C-6
6. furnish passes to persons for whom Tenant requests same;
7. have the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of other occupants, of the Building; and
8. have the right to remove any violation of Paragraph I items 2, 3, 4,
5, 6 or 7 of these Rules and Regulations without any right of Tenant to claim
any liability against Landlord, and have the right to impose a reasonable charge
against Tenant for removing any such violation or repairing any damages
resulting therefrom
C-7
EXHIBIT D
LIST OF APPROVED CONTRACTORS AND SUBCONTRACTORS
[Attached]
HVAC-Eastern Aire & Tedair
Plumbing-Xxxxx & API Plumbing
Electrical-Xxxxxxxxxx & Accuglow
Sprinkler-Ace & Xxxxx
Drywall-Precision & San-Xxx
Acoustical- Precision & San-Xxx
Door & Hardware-Canaan Door
Flooring-Consolidated & Chelsea Floor
Glass-Checker & Port Xxxxxxx
Arch. Metal-Port Xxxxxxx & Aval
Ceramic-Bay Xxxxx & Goal Tile
Paint-Encore & State
Millwork-S&G Millwork & Dimensional Concepts
Convector Covers-Rainbow
Misc., Steel-Xxxxxx Iron Works
Window Treatment-International Blinds
(Preliminary List-WRC Media)
*ALL THOSE LISTED HEREIN MUST BE UNION LABOR
EXHIBIT E
FIRST OFFERING SPACE
[Attached]
EXHIBIT E
(WRC MEDIA)
[FLOOR PLAN]
EXHIBIT E
(WRC MEDIA)
[FLOOR PLAN]
EXHIBIT F
FORM OF SECURITY LETTER
[Attached]
FROM ____________________ _______________________________________________
_______________________________________________
ISSUE DATE:_________________
L/C NO.:___________________
Advising Bank
************ DIRECT ***************** APPLICANT:_______________________
_______________________
Beneficiary
000-000 XXXXXXX XXXXXX XXXXXXX XXXXXX: USD ______________
PARTNERSHIP, C/O NEWMARK & CO., _____________________________
REAL ESTATE, INC.. _____________________________
000 XXXX XXX., XXX XXXX, XX 00000 _____________________________
GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. ______ IN FAVOR
OF 000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP (THE "LANDLORD") FOR AN AGGREGATE
AMOUNT NOT TO EXCEED U.S. DOLLARS ___________________________________. THIS
LETTER OF CREDIT IS AVAILABLE WITH __________________________ NEW YORK AGAINST
PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON _______________________. NEW YORK
WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.
BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS OR AN
OFFICIAL OF ITS AGENT READING AS FOLLOWS: "THE AMOUNT OF THIS DRAWING USD
___________ UNDER _________________________ LETTER OF CREDIT NUMBER
_______________ REPRESENTS FUNDS DUE US AS AN EVENT OF DEFAULT HAS OCCURRED
UNDER ONE OR MORE TERMS OF THAT CERTAIN LEASE AGREEMENT DATED ______ 2000 BY AND
BETWEEN 000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, AS LANDLORD AND
__________________, AS TENANT."
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED. WE FURTHER UNDERTAKE THAT ANY
DRAFT(S) PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE PAID NOT WITHSTANDING
ANY CLAIM BY ANY PERSON THAT THE SUM DEMANDED IS NOT DUE OR FOR ANY OTHER REASON
THAT SAID DRAFT(S) IS NOT TO BE HONORED.
THIS LETTER OF CREDIT EXPIRES AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF
BUSINESS ON __________________.
IT IS A CONDITION OF THIS IRREVOCABLE LETTER OF CREDIT THAT IT SHALL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR
FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 45 DAYS PRIOR
TO SUCH DATE WE SEND YOU NOTICE IN WRITING BY REGISTERED MAIL, OR HAND DELIVERY
AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR SUCH
ADDITIONAL PERIOD. HOWEVER, IN NO EVENT SHALL THIS LETTER OF CREDIT BE EXTENDED
BEYOND THE FINAL EXPIRY DATE OF __________________. UPON SUCH NOTICE TO YOU, YOU
MAY DRAW DRAFTS ON US AT SIGHT FOR AN AMOUNT NOT TO EXCEED THE BALANCE REMAINING
IN THIS LETTER OF CREDIT WITHIN THE THEN APPLICABLE EXPIRY DATE, ACCOMPANIED BY
YOUR DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS READING: "THE
AMOUNT OF THIS DRAWING USD ________ UNDER _________________ LETTER OF CREDIT
NUMBER ________ REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM
_________________ OF THEIR DECISION NOT TO EXTEND LETTER OF CREDIT.
CONTINUED--
______________________________
______________________________
______________________________
________________________________
FROM ____________________ _______________________________________________
_______________________________________________
ISSUE DATE:_________________
L/C NO.:___________________
Advising Bank
************ DIRECT ***************** APPLICANT:_______________________
_______________________
Beneficiary
000-000 XXXXXXX XXXXXX XXXXXXX XXXXXX: USD ______________
PARTNERSHIP, C/O NEWMARK & CO., _____________________________
REAL ESTATE, INC.. _____________________________
000 XXXX XXX., XXX XXXX, XX 00000 _____________________________
NUMBER __________ FOR AN ADDITIONAL YEAR, AND THE LEASE IS STILL OUTSTANDING."
THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) TO A
SUCCESSOR LANDLORD AND ___________________________ ONLY IS AUTHORIZED, TO ACT AS
THE TRANSFERRING BANK.
WE SHALL NOT RECOGNIZE ANY TRANSFER OF THIS LETTER OF CREDIT UNTIL THIS ORIGINAL
LETTER OF CREDIT TOGETHER WITH ANY AMENDMENTS AND A SIGNED AND COMPLETED
TRANSFER FORM AS PER EXHIBIT A ATTACHED HERETO IS RECEIVED BY US.
ALL TRANSFER FEES ARE FOR THE ACCOUNT OF THE APPLICANT.
THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER
FORMS MUST BE VERIFIED BY YOUR BANK.
IN CASE OF ANY TRANSFER UNDER THIS LETTER OF CREDIT, THE DRAFT AND ANY REQUIRED
STATEMENT MUST BE EXECUTED BY THE TRANSFEREE.
THIS LETTER OF CREDIT MAY NOT BE TRANSFERRED TO ANY PERSON WITH WHICH U.S.
PERSONS ARE PROHIBITED FROM DOING BUSINESS UNDER U.S. FOREIGN ASSETS CONTROL
REGULATIONS OR OTHER APPLICABLE U.S. LAWS AND REGULATIONS.
ALL CORRESPONDENCE AND ANY DRAWINGS PRESENTED IN CONNECTION WITH THIS LETTER OF
CREDIT ARE TO BE DIRECTED TO OUR OFFICE AT _____________
____________________________________________________________________________
______________________________ CUSTOMER INQUIRY NUMBERS AND _________________
AND __________________ WE HEREBY ISSUE THIS STANDBY LETTER OF CREDIT IN YOUR
FAVOR. IT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS, 1993 REVISION, PUBLICATION NO. 500 AND ENGAGES US IN ACCORDANCE WITH
THE TERMS THEREOF. THE NUMBER AND THE DATE OF OUR CREDIT AND THE NAME OF OUR
BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED.
______________________________
______________________________
______________________________
________________________________
FROM _____________________ ______________________________
XXXXXXX "X"
XXX XXXX, XXX XXXX 00
________________________________
________________________________
________________
________________________
________________________________________________
RE: LETTER OF CREDIT NO.
ISSUED BY_____________________________
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY
TRANSFERS TO;
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED. BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT IN ITS ENTIRETY.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH
LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE AND THE TRANSFEREE SHALL HAVE
THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY
AMENDMENTS WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS AND WHETHER NOW
EXISTING OR HEREAFTER MADE ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE
TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED
BENEFICIARY.
THE ADVICE OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK
YOU TO ENDORSE THE TRANSFER ON THE REVERSE HEREOF, AND FORWARD IT DIRECT TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
YOURS VERY TRULY,
_____________________________
SIGNATURE OF BENEFICIARY
SIGNATURE GUARANTEED AND IS IN CONFORMITY TO THAT ON FILE WITH US AS TO SIGNER'S
AUTHORIZATION FOR THE EXECUTION OF THESE INSTRUMENTS.
BANK:
BY:____________________
TITLE:
THIS FORM MUST BE EXECUTED IN DUPLICATE.
EXHIBIT G
ALTERATION RULES AND REGULATIONS
1. All costs and expenses in connection with or arising out of the
performance of any Alteration shall be borne by Tenant and all payments thereof
shall be made by Tenant as they become due, and evidence of such payments shall
be furnished to Landlord (on standard AlA document and lien releases) within ten
(10) business days after Landlord's request.
2. All materials as well as methods and processes used in the
performance of any Alteration shall conform to the Building standards.
3. All alterations requiring partition changes shall comply with
compartmentation requirements in that portion of the Building being altered, in
accordance with Section C26-504.1 of the City of New York Administrative Code,
as amended December 1, 1972.
4. Landlord may refer Tenant's mechanical plans to a consultant
selected by Landlord for review, and, in such event, Tenant agrees to pay the
reasonable cost of such within ten (10) business days after receipt of invoices
either from Landlord or from Landlord's consultant. Tenant agrees further to
comply with all reasonable changes and requirements that may be recommended by
Landlord's consultant.
5. Tenant will perform any Alteration in a safe and lawful manner,
using contractors reasonably approved by Landlord in accordance with the Lease
and complying with applicable laws and all requirements and regulations of
municipal and other governmental or duly constituted bodies exercising
authority, and this compliance shall include the filing of plans and other
documents as required, and the procuring of any required licenses or permits,
prior to commencement of any Alteration. Tenant shall submit the following
certificates to the Landlord upon completion of any Alteration:
a. Approvals issued by the Department of Buildings; and
b. Electrical certificates issued by the Department of Water
Supply, Gas and Electricity and the Board of Fire Underwriters.
6. Tenant hereby indemnifies and agrees to defend and hold Landlord
harmless from and against any and all suits, claims, actions, loss, cost or
expense (including claims for workmen's compensation) based on personal injury
or property
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damage caused in the performance of any Alteration by Tenant, Tenant's
employees, agents, servants or contractors engaged by Tenant, and Tenant will
repair or replace, or at Landlord's election, reimburse Landlord for the
reasonable cost of repairs, or replacing any portion of the Building or item of
equipment, or any of Landlord's real or personal property so damaged, lost or
destroyed in the performance of any Alteration.
7. Worker's Compensation, Comprehensive Liability, Bodily Injury and
Property Damage Insurance in the amount of $1,000,000.00, Combined Single Limit
(CSL) with companies and on forms reasonably satisfactory to Landlord, shall be
provided and at all times maintained by Tenant and Tenant's contractors engaged
in the performance of any Alteration and before proceeding with any Alteration,
certificates of such insurance shall be furnished to Landlord.
8. Landlord shall have no responsibility for or in connection with any
Alteration and Tenant will remedy at Tenant's expense and be responsible for any
and all defects in any Alteration that may appear during or after the completion
thereof whether the same shall affect the Demised Premises in particular or any
part of the Building in general.
9. The Landlord or its agents shall not be responsible for any
disturbances or deficiency created in the air-conditioning or other mechanical,
electrical or structural facilities within the Building as a result of any
Alteration. If such disturbances or deficiencies result, it shall be the
Tenant's entire responsibility to correct the resulting conditions and to
restore the services to the reasonable satisfaction of the Landlord, its
architects and engineers within ten (10) days.
10. If the performance of any Alteration shall require that additional
services or facilities (including, but without limiting the generality of the
foregoing, extra elevator and cleaning services) be provided, Tenant shall pay
Landlord the charges therefor provided in the lease.
11. Tenant's workmen and mechanics must work in harmony and not
interfere with any labor employed by the Landlord, Landlord's mechanics or
contractors or by any other tenant or its contractors.
12. Tenant's contractors shall comply with the rules of the Building
and the terms of the Lease as to the hours of availability of the Building
elevators and the manner of handling materials, equipment and debris to avoid
conflict and interference with Building operation.
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13. Tenant's contractors shall make available fire extinguishers based
on the following:
a. Alterations up to 3,000 square feet - one (1) fire
extinguisher; and
b. Alterations over 3,000 square feet - one (1) fire extinguisher
for every 3,000 square feet.
Such fire extinguishers shall be kept and maintained on the Demised
Premises by Tenant's contractor for the duration of the Alteration.
14. Demolition and other work that produces excessive noise (including
without limitation, all core drilling) must be performed between 5:00 p.m. and
8:00 a.m. or on weekends. The delivery of the materials and equipment and the
removal of debris must be arranged to avoid any inconvenience and annoyance to
other tenants. Cleaning must be controlled to prevent dirt, debris and dust from
causing unsafe conditions infiltrating into adjacent tenant or mechanical areas.
15. Nothing herein contained shall be construed as (i) constituting
Tenant Landlord's agent (Tenant to do any Alteration as principal), or (ii) a
waiver by Landlord of any of the terms or provisions of the lease.
16. Tenant agrees to comply with such reasonable rules and regulations
that might be established from time to time by the Building Manager during
construction.
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